Karnataka High Court
Sidgonda S/O Mayappa Bennadi vs The State Of Karnataka And Anr on 12 August, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.200840/2022
C/W
CRIMINAL PETITION NO.200841/2022
CRIMINAL PETITION NO.200842/2022
In CRL.P.NO.200840/2022
BETWEEN:
SIDGONDA S/O MAYAPPA BENNADI
AGE: 36 YEARS,
OCC: MARKET CO-ORDINATOR,
SAVIO BIO ORGANIC AND FERTILIZERS PVT. LTD.,
AMAR AMPERE OFFICE NO. 5, GOA CIRCLE,
BELAGAVI-011
R/O 23, NEAR VITTAL TEMPLE, HUNNUR,
YARNAL, BELGAUM-591221
...PETITIONER
(BY SRI MAHANTESH PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585107
2. THE STATE OF KARNATAKA
DEPARTMENT OF AGRICULTURE,
REP. BY ASSISTANT DIRECTOR OF
AGRICULTURE AND FERTILIZER INSPECTOR,
SINDHANUR, TQ. SINDHANUR,
DIST.RAICHUR-584 101
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, HCGP)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE ORDER OF COGNIZANCE
DATED 10.06.2021 IN C.C.NO.2318/2021 (P.C.NO.170/2021)
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 3 AND 7
OF THE ESSENTIAL COMMODITIES ACT, PASSED BY THE
PRINCIPAL JMFC, SINDHANUR.
IN CRL.P.NO.200841/2022
BETWEEN:
SIDGONDA S/O MAYAPPA BENNADI
AGE: 36 YEARS,
OCC: MARKET CO-ORDINATOR,
SAVIO BIO ORGANIC AND FERTILIZERS PVT. LTD.,
AMAR AMPERE OFFICE NO. 5, GOA CIRCLE,
BELAGAVI-011
R/O 23, NEAR VITTAL TEMPLE, HUNNUR,
YARNAL, BELGAUM-591221
...PETITIONER
(BY SRI MAHANTESH PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585107
2. THE STATE OF KARNATAKA
DEPARTMENT OF AGRICULTURE,
REP. BY ASSISTANT DIRECTOR OF
AGRICULTURE AND FERTILIZER INSPECTOR,
SINDHANUR, TQ. SINDHANUR,
DIST. RAICHUR-584 101
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, HCGP)
3
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE ORDER OF COGNIZANCE
DATED 10.06.2021 IN C.C.NO.2321/2021 (P.C.NO.172/2021)
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 3 AND 7
OF THE ESSENTIAL COMMODITIES ACT, PASSED BY THE
LEARNED PRL. JMFC, SINDHANUR.
IN CRL.P.NO.200842/2022
BETWEEN:
SIDGONDA S/O MAYAPPA BENNADI
AGE: 36 YEARS,
OCC: MARKET CO-ORDINATOR,
SAVIO BIO ORGANIC AND FERTILIZERS PVT LTD,
AMAR AMPERE OFFICE NO. 5, GOA CIRCLE,
BELAGAVI-011
R/O 23, NEAR VITTAL TEMPLE, HUNNUR,
YARNAL, BELGAUM-591221
...PETITIONER
(BY SRI MAHANTESH PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585107
2. THE STATE OF KARNATAKA
DEPARTMENT OF AGRICULTURE,
REP. BY ASSISTANT DIRECTOR OF
AGRICULTURE AND FERTILIZER INSPECTOR,
SINDHANUR, TQ. SINDHANUR,
DIST. RAICHUR-584 101
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, HCGP)
4
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE ORDER OF COGNIZANCE
DATED 10.06.2021 IN C.C.NO.2317/2021 (P.C.NO.169/2021)
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 3 AND 7
OF THE ESSENTIAL COMMODITIES ACT, PASSED BY THE
PRINCIPAL JMFC, SINDHANUR.
THESE PETITIONS COMING ON FOR ADMISSION THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
These petitions are filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for short), seeking to quash the orders of taking cognizance against the petitioner, which are as follows:
Crl.P.No. C.C.No. P.C.No. PC Date
200840/2022 2318/2021 on 170/2021 10.06.2021
the file of
Principal Civil
Judge and JMFC,
Sindhanur
200841/2022 2321/2021 on 172/2021 10.06.2021
the file of
Principal Civil
Judge and JMFC,
Sindhanur
200842/2022 2317/2021 on 169/2021 10.06.2021
the file of
Principal Civil
Judge and JMFC,
Sindhanur
2. It is contended by the petitioner that respondent No.2-Fertiliser Inspector filed private complaints mentioned 5 above before the JMFC Court, Sindhanur, against accused Nos.1 and 2 alleging that on 24.01.2014, when he visited the shop of accused No.2, he found fertilizer 17:17:17 manufactured by Savio Bio Organic and Fertilizers Private Limited, Belagavi. Thereafter, he collected the samples as required under the law and one portion of the sample was sent to Deputy Director of Agriculture and Quality Control Laboratory, Gangavathi for quality analysis of seized fertilizer. On 25.02.2014, respondent No.2 received the lab analysis report which discloses that fertilizers in question are of sub-standard quality. Therefore, he issued show cause notice to the accused. Accused stopped selling the said fertilizers. It is alleged that accused No.2 being the manufacturer has committed offence under Sections 3 and 7 of Essential Commodities Act, and Order 28(1)(a) of Fertiliser (Control) Order. Based on the aforesaid information, the private complaints came to be lodged in P.C.Nos.170/2021, 172/2021 and 169/2021. On the basis of the said complaint, the learned Magistrate has taken cognizance and issued summons to the petitioner which is challenged herein. 6
3. Heard Sri Mahantesh Patil, learned counsel for the petitioners and Sri Gururaj V.Hasilkar, learned High Court Government Pleader for the respondent-State.
4. Learned counsel for the petitioner in all these petitions argued that the petitioner is falsely implicated in the case. The private complaint is filed only against the authorized officer of the company without charging the company with any liability which is against Section 10 of the Companies Act, 1956. The very proceedings initiated is against the dictum of Hon'ble Apex Court in State of Madras vs. C.V.Parekh and Another reported in 1970(3) SCC
491. The petitioner is appointed as Market Coordinator of Savio Bio Organic and Fertilizers Private Limited, Belagavi. He is not a Quality Control Officer nominated by the Company and he is not responsible for quality control. Sections 3 and 7 of the EC Act require that action is to be taken in respect of violation of provisions of EC Act only at the instance of authorized officer. It is further contended that Co-ordinate Bench of this Court in similar case has quashed the order of taking cognizance. In order to charge vicarious liability, complaint must show the responsibility for conduct of the 7 business at relevant point of time. Therefore, continuation of criminal proceedings against the petitioner is abuse of process of Court and prayed to set aside the impugned orders.
5. Against this, learned High Court Government Pleader argued that complainant is an authorized officer and he has filed the private complaints under Section 200 of Cr.P.C., the learned Magistrate has taken cognizance with regard to Sections 3 and 7 of the EC Act and ordered to issue summons. Accused No.2 has appeared before the Court and NBW was issued against accused No.1.
6. In view of the aforesaid contention, the point that arises for consideration is-
"Whether the cognizance taken by the learned Magistrate without impleading or making the company as party is bad in law?"
My answer to the above point is as under for the reasons given below:
7. As per Section 10 of the EC Act if a person contravening an order made under Section 3 of the EC Act is 8 a company, the person in charge of the company and the company shall be 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 admittedly, in this case, in complaint it is stated that petitioner No.1 is a Market Coordinator and other accused is only trader. 9
9. Learned counsel for the petitioner referred to the order passed by the Co-ordinate Bench of this Court in Criminal Petition No.201683/2021 and connected matters disposed of on 21.12.2021, in the case of Mahesh Naik S/o Vijaya S.Naik vs. The State of Karnataka and Another relying on the earlier order passed by this Court, in the similar complaint wherein only the compliance officer/ quality control officer of the company is prosecuted but not the company, taking into note of Sections 3 and 7 of the EC Act and also Order 19(a) of the Fertiliser (Control) Order, 1985, there is bar under Section 10 of the EC Act, unless the company is made a party, there cannot be criminal prosecution against the Market Coordinator. Therefore, Section 10 of the EC Act clearly mandates if the offence is committed, the company ought to have been made a party to the proceedings. So on perusing the orders of the Co- ordinate Bench of this Court, it is evident that in this case also the company is not made as accused. It is only Market Coordinator of the said company is made as an accused and other traders are made as accused. Therefore, the learned Magistrate has not taken all these aspects into consideration 10 while taking cognizance and proceeded to pass the impugned order of taking cognizance mechanically. Hence, in view of Section 10 of the EC Act and also the orders passed by the Co-ordinate Bench of this court referred above regarding taking cognizance, the interference of this Court is required.
10. Accordingly, I proceed to pass the following:
ORDER The petitions are allowed. The impugned orders dated 10.06.2021 passed by the learned Principal Civil Judge and JMFC, Sindhanur in C.C.No.2318/2021 (P.C. No.170/2021), C.C.No.2321/2021 (P.C.No.172/2021) and C.C.No.2317/2021 (P.C.No.169/2021) are hereby quashed. However, liberty is reserved to the complainant to cure the defect and proceed against the accused in accordance with law, if he is advised to do so and if he is entitled under law.
Sd/-
JUDGE VN R