Gujarat High Court
Kishor vs State on 19 March, 2009
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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CR.MA/4988/2003 10/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 4988 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
Sd/-
====================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2.
To
be referred to the Reporter or not ?
NO
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
====================================
KISHOR
RAMNIKLAL BHOJAK & 11 - Applicants
Versus
STATE
OF GUJARAT & 1 - Respondents
====================================
Appearance
:
MR HARESH J TRIVEDI for
Applicants.
MR LR PUJARI, ADDL. PUBLIC PROSECUTOR for
Respondents.
====================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 19/03/2009
ORAL JUDGMENT
The applicants original accused have filed this Criminal Misc. application under Section 482 of the Code of Criminal Procedure praying for quashing and setting aside the Criminal Case No.794 of 2003 pending before the learned Judicial Magistrate First Class, 4th Court, Baroda.
This Court has issued rule on 11.11.2003 and ad-interim relief in terms of paragraph 5 (c) of the application was granted whereby proceedings of Criminal Case No.794 of 2003 were stayed. The said ad-interim relief is continued till this date.
Mr. Haresh J. Trivedi, learned advocate appearing for the applicants has submitted that the applicants were the office bearers of the Employees Consumer Co-operative Society (for short 'Society') under the provisions of the Gujarat Co-operative Societies Act and were rendering voluntary services to the employees of the institution, namely, Indian Peterochemical Chemicals Limited (IPCL). He has further submitted that one of the objects of running such society was to provide food articles, grains, household and provision articles etc. to the employees of the institution. The said staff canteen was being run and managed on no profit no loss basis and the same was getting raw material by way of food grains etc. being part of co-operative movement and other articles at the concessional rate and were selling the same at the concessional rate. The said staff canteen as a part of the activity of the Society was run and managed by the Manager, accused No.1 in the complaint, appointed by the Society and was solely responsible for day to day business and conduct of the said canteen and the very object of appointing him was to see that the functioning of the consumer store was running smoothly without any hindrance whatsoever by following all the provisions of law strictly in accordance with the directions of the concerned authority issued from time to time. He has further submitted that the said Manager was held to be responsible for due compliance of the various provisions of law as contemplated and applicable to the staff co-operative store from time to time and was working continuously for the last about 25 years as a Manager of the said sales depot.
Mr. Trivedi has further submitted that the applicants were the office bearers of the Society and they were employees of the institution, namely, IPCL and were elected office bearers duly declared elected as per the constitution of the society. The applicant No.12 was the representative of the Company management and was of the rank of Deputy Manager working in the Corporate Industrial Relation, who has nothing to do with the day to day functioning of the consumer store.
Mr. Trivedi has further submitted that the respondent No.2 original Complainant visited and inspected said store on 30.06.2001 in presence of the Manager-cum-Vendor of the store. He collected sample of Ghee from the store in presence of the Manager and sent it for further analysis under the provisions of the Prevention of Food Adulteration Act. The said sample was not found in accordance with the standard prescribed under the law and thereby the complaint came to be filed against the present applicants, Society and Manager-cum-Vendor.
Despite the fact that the store was managed by the Manager-cum-Vendor, the respondent No.2 has lodged the complaint against all the office bearers of the Society. He has further submitted that the present petition is filed under Section 482 of Cr.P.C. praying for quashing and setting aside the complaint as well as the process issued by the learned Magistrate under Section 2 (a) and sub-section (a) (b) (c) &
(m) for breach of Section 7 (1) & 7 (5) of the P.F. Act, 1954. He has further submitted that the applicants were not at all attending to the business of the society and were not falling within the meaning and purview of 'Vendor' as defined under the Act. Even as per the complaint itself, Shri Niranjan K. Dalal was identified as Vendor of the Society. As per the provisions of the Act, Vendor as defined and explained under Section 19 of the Act, means and includes the person from whom sample was actually taken by the complainant. He has further submitted that the applicants are impleaded irrespective of the fact that whether they have played any active role or otherwise in the sell of adulterated articles. Before filing the complaint, the respondent No.2 has not applied his mind nor carefully considered the principles and ratio of the judgments delivered by the Hon'ble Supreme Court as well as by this Court. There is no whisper in the complaint alleging anything against the applicants or indicating that the applicants were involved in carrying out day to day activities of the Society. He has, therefore, submitted that the criminal case filed against the applicants is not just and proper and it is contrary to the provisions of the Act as well as settled legal principles.
Mr. Trivedi in support of his submissions relied on the decision of the Hon'ble Supreme Court in the case of R. Banerjee and others V/s. H. D. Dubey and others, AIR 1992 SC 1168 wherein it is held that from the Scheme of Section 17, it is clear that where a company has committed an offence under the Act, the person nominated by the company under sub-section (2) of S. 17 to be in charge of, and responsible to, the Company for the conduct of its business shall be proceeded against unless it is shown that the offence was committed with the consent / connivance / negligence of any other Director, Manager, Secretary or Officer of the company in which case the said person can also be proceeded against and punished for the commission of the said offence. It is also held in this decision that where the allegations set out in the complaint do not constitute any offence, no process can be issued against the co-accused other than the company and the nominated person. He has, therefore, submitted that since there was no allegation against any of the applicants in the complaint, process issued against the applicants is required to be quashed and set aside.
Mr. Trivedi further relied on the decision of this Court in the case of State of Gujarat V/s. Grukrupa Kariyana Stores and others, 1999 (40) 1 GLR 452 wherein it is held that in the absence of any satisfactory evidence connecting the accused No.3, he cannot be held guilty. The Court further observed that there is no allegation regarding commission of the offence by the accused No.3. The prosecution has miserably failed to show that he was regularly attending the firm and that he was in charge of and responsible to the firm for the conduct of business. Here also, in the present case, there is nothing in the complaint making any averment to the effect that the applicants were regularly attending to the business of the Society or they have played any part or role in the business activities of the Society.
Looking to the facts and circumstances of the case and considering the judgments, Mr. Trivedi has urged that the applicants are wrongly impleaded as accused in the criminal case and process issued against them are required to be quashed and set aside. He has, however, fairly conceded that he is not making any submission in respect of the Society as well as accused No.1 and if the criminal case is proceeded further against the Society as well as accused No.1, he has no objection.
Mr. L. R. Pujari, learned Additional Public Prosecutor, on the other hand, has submitted that the applicants are the office bearers of the Society and no person is nominated against whom proceedings can be initiated. He has further submitted that the decision of the Hon'ble Supreme Court cited herein above, is not applicable to the facts of the case as in that case, the person is nominated. In that decision, it is made clear that if there is no nomination, in that case, the criminal case can be proceeded against the Company as well as the Directors. He has, therefore, submitted that the Courts should not quash the criminal case at this stage and during the course of trial, evidence would come on record whether the applicants have played any active role or not. He has, therefore, submitted that the present application is required to be rejected.
Having heard learned advocates appearing for the parties and having considered their rival submissions, the Court is of the view that there is no averment in the complaint against the applicants. Even a whisper is not made against any of the applicants. There is nothing on record to show that the applicants have played any active role. None of them were found at the time when the sample was taken. On the contrary, the Manager-cum-Vendor was very much present and he has not moved any application before this Court for quashing of the criminal case. The applicants herein are the office bearers of the Society. The applicants were rendering their services voluntarily and the Society was running on the basis of no profit no loss. Considering the entire facts and circumstances of the case, the Court is of the view that no complaint can be sustained against the applicants. In the decision of the Hon'ble Supreme Court, it is specifically held that if there is no allegation in the complaint against any of the accused, they cannot be prosecuted. In the decision of this Court, it is also specifically held that there is no averment in the complaint nor there was any evidence pointing out that they were responsible for the alleged offence.
In the above view of the matter and considering the facts and circumstances of the case, the Court is of the view that the process issued against the applicants by the learned Magistrate is not sustainable either on facts or in law. Hence, the present application is allowed. The process issued by the learned JMFC, Vadodara against the present applicants is hereby quashed and set aside. It is made clear that the learned Magistrate can proceed with the complaint against the Society as well as Manager-cum-Vendor.
Subject to the aforesaid clarification, this application is accordingly allowed. Rule is made absolute. Interim relief granted earlier stands vacated.
Sd/-
[K. A. PUJ, J.] Savariya Top