Karnataka High Court
Ravikumar Patil vs The State Of Karnataka And Anr on 7 September, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07th DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.200795/2022
BETWEEN:
RAVIKUMAR PATIL
S/O A LINGANNA,
PROPRIETOR OF
M/S BASAVESHWAR KRISHI
SEVA KENDRA,
DEVADURGA,
AGE 46 YEARS,
OCC.BUSINESS,
R/O 8-1-620,
NAGARA GUNDA ROAD,
DEVADURGA,
DIST.RAICHUR-584111. ...PETITIONER
(By Sri: AVINASH A UPLOANKAR, ADVOCATE)
AND:-
1 . THE STATE OF KARNATAKA
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH 585107.
2 . THE GOVERNMENT OF KARNATAKA
DEPARTMENT OF AGRICULTURE
REPRESENTED BY THE
ASSISTANT DIRECTOR OF AGRICULTURE
CUM FERTILIZER INSPECTOR,
2
DEVADURGA,
DIST.RAICHUR-584111. ........RESPONDENTS
(By Sri :VEERANAGOUDA MALIPATIL, HCGP)
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THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO
EXERCISE INHERENT POWERS U/SEC. 482 OF CR.PC,
EXAMINE THE RECORDS AND QUASH THE TAKING
COGNIZANCE DATED 14.03.2021 IN C.C. NO. 491/2022
(PRIVATE COMPLAINT NO. 38/2021) FOR THE OFFENCES
P/U/SEC. 3 AND 7 OF ESSENTIAL COMMODITIES ACT 1955,
PENDING BEFORE THE CIVIL JUDGE AND JMFC AT
DEVADURGA, AGAINST THE PETITIONER, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR DICTATING ORDERS
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), seeking to quash the order dated 14.03.2021 in C.C.No.491/2022 for(Private complaint No.38/2021) for the offences punishable under sections 3 and 7 of Essential Commodities Act, 1955('E.C. Act', for short) on the file of Civil Judge and JMFC, Devadurga.
2. It is contended that a complaint came to be lodged by the Assistant Director of Agriculture-cum-Fertilizer 3 Inspector, Department of Agriculture, Devadurga, Raichur alleging offences punishable under sections 3 and 7 of E.C Act. The complainant when visited the shop of the petitioner, found the stock of DAP 18:46:0 fertilizer of M/s. Indian Potash Limited of 15.00 metric Tonne and took the sample on the same day and sent it for examination to the Fertilizer Control laboratory Waddarahatti, TQ:Gangavathi and after receiving the report stated that the sample is not in accordance to the specification and the fertilizer is of sub- standard. Hence, he filed a complaint. Taking cognizance of the said offence is challenged.
3. Heard Sri. Avinash A. Uploankar, learned counsel for the petitioner and Sri. Veeranagouda Malipatil, learned HCGP for respondent. No.1.
4. Learned counsel for the petitioner argued that the petitioner is not connected in any way with these allegations. The company is not made as a party as required under section 10 of the Companies Act and as per the dictum laid down in State of Madras v. C.V. Parekh and Another reported in 1970(3) SCC 491. The petitioner is only a 4 Distributor. He is in no-way connected to the production of the fertilizer. Learned counsel argued that the Coordinate Bench of this Court in Crl.P.No.200840/2022 and connected matters dated 12.08.2022 allowed the petitions and hence, prayed to allow the petition on similar grounds.
5. Against this, learned HCGP supported the order passed by learned Magistrate and stated that respondent No.2 is the Manager of the said company and he is made a party. Learned JMFC has taken the cognizance and has rightly issued summons. In view of the cognizance taken by the learned Magistrate, without impleading or making the company as a party to the proceedings is not bad in law.
Perused the records.
6. This Court in Crl.P.No.200840/2022 c/w Crl.P.No.200841/2022 and Crl.P.No.2000842/2022 dated 12.08.2022 at paras 7 and 8 observed as under:-
7. As per Section 10 of the EC Act if a person contravening an order made under Section 3 of the EC Act is a company, the person in charge of the company and the company shall be 5 deemed to be guilty of contravention shall be punished and the offence is cognizable one.
Section 7 of the EC Act is a penalty clause. In order to appreciate the contention, it is necessary to refer to Section 10 of the EC Act, 1955 which reads as under:
"10. Offences by companies.-
(1) If the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly."
8. Therefore, on perusing the said Section, it is evident that when a complaint is lodged for alleged contravention of Section 3 of the EC Act which is punishable under Section 7 of the EC Act, not only the person who is responsible or incharge is to be made as a party, but the company shall also be made as a party. But 6 admittedly, in this case, in complaint it is stated that petitioner No.1 is a Market Coordinator and other accused is only trader.
7. Therefore, taking into note of sections 3 and 7 of EC Act, unless the company is made a party, there cannot be any criminal prosecution against the Distributor or any other person. Therefore, in view of the decision of the Coordinate Bench, as the company is not made party and as the petitioner is only a Distributor of the said company, he cannot be prosecuted in the absence of company being party to the proceedings. Therefore, the cognizance taken by the learned Magistrate is not in accordance with law and it is to be set-aside. Therefore, in view of the said provisions and the decision of the Hon'ble Supreme Court referred above, the order requires interference by this Court.
Accordingly, I pass the following:-
ORDER The petition is allowed. The impugned order 14.03.2021 passed by learned Civil Judge and JMFC, Devadurga in C.C.No.491/2022(Private Complaint No.38/2021) for the offence punishable under sections 3 and 7 7 of Essential Commodities Act, 1955 is hereby quashed, sofar as this petitioner is concerned. However, liberty is reserved to the complainant to cure the defect as observed in the above paras and proceed against the accused in accordance with law, if he is advised so, if he is entitled under law.
Sd/-
JUDGE *MN/-