Kerala High Court
Moonnukandathil Modern Mills vs Abraham Thomas on 10 October, 2012
Equivalent citations: 2013 CRI. L. J. 939, (2013) 122 ALLINDCAS 556 (KER), 2012 (4) KER LT 129.2 SN, (2012) 4 KER LJ 654
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 10TH DAY OF OCTOBER 2012/18TH ASWINA 1934
Crl.Rev.Pet.No. 2107 of 2006 ( )
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CRA.401/2002 of ADDL.SESSIONS JUDGE,KOTTAYAM
CC.160/2000 of JUDL. MAGI. OF FIRST CLASS-III, KOTTAYAM
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REVISION PETITIONER(S)/APPELLANT/ACCUSED :-
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MOONNUKANDATHIL MODERN MILLS,
REPRESENTED BY ITS MANAGING PARTNER, M.J. JACOB
MOONNUKANDATHIL MODERN MILLS, ARPOOKKARA, KOTTAYAM.
BY ADV. SRI.M.J.THOMAS
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE :-
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1. ABRAHAM THOMAS, VACHAPARAMBIL HOUSE,
PULIMKUNNU P.O., ALAPPUZHA.
2. STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.MATHEW JOHN (K)
R1 BY ADV. SRI.SUJESH MENON V.B.
PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 10-10-2012, ALONG WITH CRRP. 2108/2006, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
jvt
N.K.BALAKRISHNAN, J.
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Crl.R.P. Nos.2107 & 2108 of 2006
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Dated this the 10th day of October 2012
O R D E R
When the firm alone is made an accused can the Managing Partner of that firm, who is only representing the firm be sentenced to undergo imprisonment till the rising of the court and also to undergo imprisonment in default of payment of fine/compensation is the crucial question raised by the learned counsel for the petitioner. According to the learned counsel, the petitioner who only represents the firm cannot be sentenced to undergo imprisonment, for the fine/compensation amount which the firm is liable to pay can only be realised by resorting to Sec.421 Cr.P.C.
2. There can be no doubt that a firm being a separate legal entity can be prosecuted and convicted. But the learned counsel for the petitioner submits that Mr. M.J. Jacob has not been independently arrayed as accused but he is only representing the firm-Moonnukandathil Modern Mills. Crl.R.P. Nos.2107 & 2108 of 2006 -: 2 :- Though Mr. M.J.Jacob represented the firm and even if he is the Managing Partner or a partner who was in charge of and responsible to the conduct of the business of the company, he cannot be directed to undergo imprisonment in default of payment of fine/compensation, for, his liability is only vicarious in nature. Mr.M.J.Jacob is not prosecuted for his individual act and he was not arrayed as an accused in his individual capacity. Had it been a case where he was impleaded as an accused as the Managing Partner or Partner of that firm or a person in charge of the business of the Firm then the position would have been different. But here the firm alone is the accused, though, it is represented by Mr.M.J.Jacob, the Managing Partner. He represents the firm only for the conduct of the case before court, the learned counsel submits.
3. It was held by the Honourable Supreme Court in ANZ Grindlays Bank Ltd. v. Directorate of Enforcement [2005 (2) KLT 876 (SC)] :
"As the company cannot be sentenced to imprisonment, Crl.R.P. Nos.2107 & 2108 of 2006 -: 3 :- the Court cannot impose that punishment, but when imprisonment and fine is the prescribed punishment the Court can impose the punishment of fine which could be enforced against the company. Such a discretion is to be read into the Section so far as the juristic person is concerned. Of course, the Court cannot exercise the same discretion as regards a natural person. Then the Court would not be passing the sentence in accordance with law. As regards company, the Court can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be carried out in respect of a company."
In the light of the law adumbrated by the Apex Court in ANZ Grindlays Bank Ltd.'s case cited supra, it has to be held that though the company/firm can be convicted and sentenced, the Managing Director/Managing Partner who represents the company cannot be sentenced to undergo imprisonment nor can he be sentenced to undergo jail sentence for default of payment of the fine amount. Therefore, the conviction is to be confirmed and the sentence is to be modified. It is submitted by the learned counsel that a total amount of Rs.75,000/- (Rs.37,500/- each) was deposited by the petitioner. If so, the petitioner will pay only the Crl.R.P. Nos.2107 & 2108 of 2006 -: 4 :- balance amount. The petitioner firm is given one month time to pay the balance amount.
In the result, both revision petitions are disposed of as stated below :-
The conviction is confirmed.
In supersession of the sentence awarded by the courts below, the petitioner firm is sentenced to pay a fine of Rs.75,000/- each. The amount already deposited shall be given deduction to and the balance fine amount shall be paid by the firm. If the balance amount is not paid, it shall be realised by resorting to Sec.421 Cr.P.C. The amount already deposited shall be released to the complainant.
N.K.BALAKRISHNAN, JUDGE.
Jvt/Das