Patna High Court
Amarnath Prasad And Ors. vs State Of Bihar And Anr. on 20 January, 1976
Equivalent citations: 1976CRILJ1778
ORDER J. Narain, J.
1. This is an application for quashing the order dated the 25th of May, 1973 passed by the Sub-divisional Magistrate, Buxar taking cognizance.
2. On the 24th of April, 1973 the Assistant District Supply Officer, Buxar made a surprise check of the firm of M/s. Laxmi Ram Amar Nath Prasad, which is a retail licensee under the Bihar Vanashpati Dealers' Licensing Order, 1967, He noticed that the stock register made a mention of 163 tins of 16.5 Kilograms each whereas on physical verification there were only 161 tins. So far as the mustard oil tins were concerned he found that the stock register indicated 272 tins whereas on physical verification the stock was found to be 276 tins. It was also noticed that the dealer was issuing cash memos showing price of one tin of Dalda as Rs. 110.50 paise whereas he was obtaining price at the rate of Rupees ISO/- per tin. Accordingly, the Assistant District Supply Officer made a complaint saying that the licensee M/s. Laxmi Ram Amarnath Prasad had been violating provisions of the Bihar Vanaspati Dealers' Licensing Order, 1967 and was cheating the purchasers and, accordingly, recommended prosecution under Section 7 of the Essential Commodities Act and Section 420 of the Indian Penal Code (hereinafter referred to as 'the Code'). The column of accused in the complaint petition, however, recited the names of (a) Amarnath Prasad, Proprietor of the firm (b) Rameshwar Prasad, Munib of the firm and (c) Kailash Ram, Munib of the firm. The learned Sub-divisional Magistrate, Buxar took cognizance against M/s. Laxmi Ram Amar Nath Prasad for the two offences and transferred the case to a Munsif Magistrate for disposal. Processes were issued against the three petitioners, namely, Amarnath Prasad, Rameshwar Prasad and Kailash Ram and the present petition has been filed on their behalf.
3. It has been argued by Mr. Prem Shankar Sahay on behalf of the petitioners that the prosecution of the three petitioners cannot be sustained in law by reason of the fact that the facts disclosed in the complaint petition do not constitute an offence committed by them and, secondly, provision of Section 10 of the Essential Commodities Act 1955 is a bar for the prosecution of the proprietor. The aforesaid section says that if the person contravening any 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. In Rabindra Nath Dutta v. State of Bihar 1971 BLJR 1005 the complaint petition did not contain the aforesaid allegations as required by Section 10 and as such the order taking cognizance of the case was quashed. Above being the law, the petitioner Amarnath Prasad, in respect of whom the complaint petition does not say that he was in charge of and was responsible to the company for conduct of the business of the company cannot be prosecuted.
4. It will, however, be noticed that cognizance has been taken against the firm and not against the petitioners. That in law the firm is liable to be prosecuted follows from Section 10 of the Essential Commodities Act and as stated above cognizance has been taken against the firm M/s. Laxmi Ram Amar Nath Prasad. As such, the order dated the 25th of May, 1973 is not assailable.
5. It was argued for the petitioners that the written report does not spell out an offence under Section 420 of the Code inasmuch as the names of the persons cheated nor the names of witnesses in whose presence the offence was committed, have been disclosed. The hard fact, however, is that the complaint petition does speak of the manner in which the cash memos were being issued showing an inflated price and the facts alleged do constitute the offence of cheating. Mr. Prem Shanker Sahay, however, invited my attention to the defence on the point set out in paragraph 15 of the petition. It is stated there that prevailing rate of sale of Dalda those days was Rs. 124/- per tin. The submission is that it does not stand to reason that having purchased Dalda at the rate of Rs. 124/- per tin the petitioners or for the matter of that the firm would sell them at Rs 110.25 as the cash memos purport to show and as such no offence under Section 420 of the Code is made out. The argument is untenable since the plea is not of the kind which according to the dictum laid down in Kapur's case can be available in quashing matters. I do not think that names of persons, who have been cheated should be specifically disclosed in the complaint petition otherwise cognizance taken is liable to be quashed. The complaint petition clearly says that public complaints had been received and that the cash memos confirm the allegations of the public. So far as the names of witnesses are concerned, two names are mentioned in the petition and it is not known at the present stage the kind of testimony they will give during the course of trial. Therefore, the argument that the offence under Section 420 of the Code is not indicated cannot be upheld.
6. There still remains the question whether order summoning the three petitioners can be allowed to stand as it is. So far as the two petitioners Rameshwar Prasad and Kailash Ram are concerned, the complaint petition does not contain any allegation against them in respect of the two offences concerned. Therefore, processes issued against them cannot be allowed to stand nor their prosecution can be allowed to continue.
7. Now as to the third petitioner Amarnath Prasad, who is described as proprietor of the firm, I have held above that he cannot be prosecuted as a proprietor of the firm. The question is whether process can be issued against him or not. In this connection provisions of Sub-section (3) of Section 69 of the Criminal Procedure Code are relevant. It says that service of a summons on an incorporated company or other body corporate may be effected by serving it on the secretary, local manager or other principal officer of the corporation. That being so, processes should have been issued against the accused firm through Amarnath Prasad as the Proprietor of the firm and, in my opinion, that would be in consonance with law. My above view finds support from certain decisions.
8. It was observed in Sudhir Ranjan Ray Chowdhury v. N.K. Mazumdar AIR 1944 Pat 210 that:
there is nothing to prevent the issue of a summons against the company itself, Sub-section (3) of Section 69 Criminal Procedure Code provides for the service of such summons.
In Commr. of South Dum Dum Municipality v. Om Khosla says that:
In view of the terms of Section 69 (3) Cr. P.C. showing that summons on a company may be served on the Secretary or the local manager or other principal officer it may be held by analogy that the secretary or the local manager or the principal officer of the company will represent the company in such a prosecution.
In Agra Electric Supply Company v. State of U.P. a number of applications were presented for quashing the prosecution. In one case the Electric Supply Company alone was mentioned as an accused without mentioning through whom the company was impleaded as accused. In some cases, as a result of the prayer made, the Magistrate had issued summonses for appearance of the Resident Engineer instead of issuing summons for appearance of the Electric Supply Company through Resident Engineer. It was held that the prayer for putting the Resident Engineer personally on trial was inappropriate and should not have been granted by the Magistrate. It was also held that the accused who was to be tried and who should have been tried was the Electric Supply Company concerned though all the time the company could be directed to put in appearance as accused through the Resident Engineer. It was also observed that:
When the Resident Engineer appears the appearance would be treated as the appearance of the company being prosecuted.
The position in law as emerges is that the firm Laxmi Ram Amarnath Prasad through its proprietor Amarnath Prasad will be treated as the accused in the case and the process will also be issued in the above form against the firm and not against Amarnath Prasad as the proprietor of the firm.
9. In the result the application is allowed so far as petitioners Rameshwar Prasad and Kailash Ram are concerned and dismissed with the above modification against the petitioner Amarnath Prasad.