Madras High Court
Jesudoss vs State Rep. By Inspector Of Police, ... on 5 September, 2001
ORDER
1. This appeal has been filed by one Jesudoss, an employee in the Fair Price Shop at No. 39 in Podanur, run by C.C.M.S at Coimbatore, against the conviction rendered by the Special Judge for Essential Commodities Act, Coimbatore passed in STC.No.1 of 1995 under Section 7(I)a(ii) of the Essential Commodities Act read with 6(3) and 14(l)a(c) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982.
2. The allegation against the appellant is that on 3.3,94, the Special Tahsildar, Coimbatore South along with his party visited the fair price shop at No.39 in Podanur run by C.C.M.S and found a shortage of 378 Kgs of Sugar, 1373 kgms of Raw rice and 302 kg of boiled rice, all worth Rs.10,999. Hence a report was given to the Inspector of Police, Civil Supplies CID, who after investigation filed the chargesheet against the appellant and the Society represented by its Special officer.
3. The prosecution in order to establish the case against the accused examined P.W.I to P.W.4 marked Ex.P-1 to Ex.P-10. P.W.I is the Special Tahsildar, who conducted the Inspection and found the shortage. P.W. 2 is the clerk attached to the Collector's office who accompanied P.W.I and was present at the time inspection made by the Special Tahsildar. P.W.3 is the yet another witness who is also a Special Tahsildar speaks with reference to the handing over of the report given by P.W.I to P.W.4. P.W.4 is the concerned Investigating Officer. It may not be necessary for me to go deep into the facts of the case. The prosecution has clearly established that there had been a shortage of the above said commodities in the fair price shop. The same has not been vindicated and moreover, P.W.I has no axe to grind against the accused to come out with the false case. Therefore, I am of the view that there had been a shortage of the above said Commodities as narrated earlier, on the perusal of the records and by the check made in respect of the articles available.
4. The learned Judge after conclusion of the case and after hearing the arguments of the respective parties, found the appellant herein guilty as aforesaid and had acquitted A-2, holding that A-2 was only representing the society and the society as such has not committed any offence. What remains is the conviction of A-1. He has been charged for an offence punishable under Rule 6(3) of Tamil Nadu Schedule Commodities Order, 1982. Rule 6(3) reads as follows;
6(3) The authorised dealer shall not supply the scheduled commodities against any family card not registered with him or to non-card holder.
Therefore, the person who is said to be committing an offence under this provision, is only the authorised dealer and not the individual as such. The authorised dealer has been defined as follows:
'authorised dealer' means a dealer, appointed by the Collector in the district other than Madras, and by the Deputy Commissioner of Civil Supplies in Madras Cily including it belt area and includes the Co-operative Societies and the Tamil Nadu Civil Supplies Corporation and such other agencies running fair price shops.
But however, by virtue of Rule 14 of the said order, every authorised dealer shall be held responsible for all the acts of commission and omission of his partners, agents, servants and other persons who are allotted to work in the shop. Consequently, A-1 is an employee of the shop and the dealer as such is liable for the commission of the defalcation committed by the appellant herein.
5. The [earned counsel for the appellant would argue that without holding the dealer guilty, it is not possible for convicting the individual as such. In other words, he would argue that unless the dealer is prosecuted and the Court comes to a conclusion that the dealer has committed the offence, the employees by themselves cannot be saddled with criminal liability of an offence under Rule 6(3) TNSC, order 1982.
6. The accused in the above case have been charged for violating Rule 6(3) of the said order and 14(1)(a)(c) of the said rules. As stated earlier 6(3) of the said rules relates to an offence committed by the authorised dealer. The authorised dealer in the present case is A-2 who has been acquitted in the case. 14(1)(a)(c) specifies that every dealer shall always maintain adequate stocks of the scheduled commodities. Therefore, in terms if there had been a violation of either 14(l)(a)(c) or Rule 6(3), it is only the dealer who is punishable but in the present case, the specific finding is that the dealer has not committed an offence and consequently the dealer has been acquitted.
7. At this point of time, it is pertinent to note that there is no charge against A-1/appellant who have committed any offence in his individual capacity. It is relevant to note that in a similar situation the Supreme Court in Sheoratan Agarwal and another v. State of Madhya Pradesh, , their lordships have categorically held that unless there is a finding that the Company has contravened the provisions of the Iron and Steel Control order passed under the Essential Commodities Act, the other accused cannot be held responsible. In my view, on going through the above said decision, I feel that this decision squarely applies to the facts and circumstances of the present case.
8. In addition to the above said decision, a recent judgment of the Supreme Court In Anil Hada v. Indian Acrylic Ltd., It has been held that though the prosecution is under the Negotiable Instruments Act and when Section 141 was sought to be interpreted, the Supreme Court has clearly held that even though the Company may not be prosecuted, only the persons in-charge of the Company were prosecuted, there must be a clear finding that the person who had contravened the provisions is only the Company.
9. Therefore, in my opinion, in view of Rule 14 of the TNSC (SDCS) Order 1982 and in view of Section 10 of the Essential Commodities Act, it is incumbent on the part of the trying Court to find the dealer guilty and it is only on that basis its employees be convicted. In the present case before us, the clear finding of the learned Special Judge is that the Society has not committed any offence and that is the reason why A-2 has been acquitted, it is pertinent to note that A-2 as disclosed in the judgment as the Society and the specific evidence of the Investigating Officer is also to the effect that he has prosecuted the Society, since it was a dealer. Therefore, I am of the opinion that the conviction of A-1 cannot he sustained in view of the specific finding by the Special Judge that the Society has not committed an offence. Accordingly, I allow this appeal. Fine amount if already paid is ordered to be paid to the appellant.