Jharkhand High Court
Sushila Devi vs State Of Jharkhand & Ors. on 1 July, 2010
Equivalent citations: 2010 (4) AIR JHAR R 256, (2010) 3 JCR 413 (JHA), (2010) 94 ALLINDCAS 472 (JHA), (2011) 1 CURCRIR 246
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
Cr. M.P. No. 979 of 2006
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Sushila Devi ... ... Petitioner
-V e r s u s-
1. The State of Jharkhand
2. The Inspector of Police [Food], Crime Investigation Department,
Jamshedpur. ... Respondents.
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CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
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For the Petitioner : - Mr. Anil Kumar Sinha, Sr. Advocate.
and Mr. Abhishek Sinha, Advocate.
For the Opposite Parties : - Mr. M. B. Lala, A.P.P.
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5/01.07.2010Heard the learned counsel for the petitioner and learned counsel for the Opposite Parties.
2. The petitioner, in this application, filed under Section 482 of the Cr.P.C., has prayed for quashing the order dated-28.02.2006, passed in Cr. Revision No. 19 of 2001, by the 04th Additional District & Sessions Judge, Jamshedpur, whereby the impugned order dated-13.12.2000, passed by the Judicial Magistrate, Jamshedpur has been confirmed by rejecting the petitioner's prayer for his discharge in the proceedings pending against her, which was initiated on the basis of an F.I.R. lodged in the Police Station vide Bistupur P.S. Case No. 113 of 1999 (G.R. Case No. 938 of 1999).
3. The facts of the case briefly stated is that in the Establishment of M/s. Ashok and Company, a partnership firm, constituted by the partners, namely, the present petitioner and her husband, Ratan lal Agrawal (now deceased), a raid was conducted on 27.05.1997 by the Inspector of Police (Food), Crime Investigation Department, Jamshedpur. Upon alleged detection of several irregularities and violations of the provisions of the Bihar Finance Act, a case was registered against the partners of the Firm including the present petitioner, for the alleged offences under Section 467, 468, 420 and 120 B of the Indian Penal Code and Sections 49 (2-g) and 49 (3-d) of the Bihar Finance Act.
At the stage, when the trial was to commence, the petitioner filed an application, praying for her discharge from the case. The grounds on which the prayer for discharge was made, was that except the fact that she happened to be a sleeping partner of the firm, she was never involved in running or managing the affairs of the business of the firm in any manner. Rather, her husband was the sole person who used to manage and run the affairs of the business of the firm and whatever transactions, referred to in the F.I.R., relating to the alleged offences, were indulged in by her husband.
4. The learned court below refused to accept the grounds advanced by the petitioner and rejected her prayer for discharge. Against the impugned order of the trial court, the petitioner filed a Revision application before the Sessions Judge, which also came to be dismissed by the impugned order, passed by the Revisional Court.
5. Assailing the impugned orders, Mr. Anil Kr. Sinha, learned Senior counsel would argue that the impugned orders passed, both by the learned trial court as also by the Revisional Court, are bad in law and have been passed in a mechanical manner without application of judicial mind and without appreciating the facts of the case in proper perspective.
Elaborating his arguments, learned counsel submits that the facts, even as admitted by the informant/Opposite Party No. 2 in his counter affidavit, is that except the fact that the petitioner was a sleeping partner of the partnership firm, she had never participated in any such offensive/illegal transaction, which could directly invite any criminal liability upon her. Learned counsel submits further that it is by now well-settled that vicarious liability cannot be saddled upon any person, unless it is established that there is some involvement of the person in the alleged offences.
Referring to a judgment of the Supreme Court in the case of National Small Industries Corporation Limited-versus-Harmeet Singh Paintal and Another reported in (2010) 3 SCC 330 and to yet another judgment of the Supreme Court in the case of Shyam Sundar and others-versus-State of Haryana reported in AIR 1989 SC 1982, learned counsel submits that such vicarious criminal liability cannot be thrust upon any person merely because the person concerned happens to be a member of the Board of directors or a sleeping partner of the firm.
6. Learned counsel for the Opposite Parties on the other hand submits, by reference to the statements contained in the counter affidavit, that the petitioner being admittedly, a partner of the firm against which the case was registered, she has to bear the vicarious liability for the offences, even though she may have been a silent partner of the firm.
7. The issue regarding sharing of criminal liability in a case relating to the offence under Section 138 of the Negotiable Instruments Act, came up for consideration before the Supreme Court in the case of National Small Industries Corporation Limited (Supra), in which the accused persons were the members of the board of directors of the Company. The apex Court while explaining the scope and ambit of vicarious liability in respect of the offences alleged to have been committed by the Company and its directors, has observed that only those persons, who are in-charge and responsible for conduct of the business of the Company at the time of commission of offence are held, vicariously liable.
In the case of Shyam Sundar (Supra) while considering a similar issue, where the female accused was prosecuted on the ground that she was a sleeping partner to the partnership firm and was convicted for the offence under the Essential Commodities Act, the apex Court has recorded its observations as follows: -
8. xxx xxx xxx xxx "there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not".
"9. It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State."
8. Even though, in the present case, the partners of the Firm have been made accused, yet from the admitted facts, the petitioner being a silent partner, was never in-charge of the affairs and business of the firm, at the time of commission of the alleged offences. The ratio as decided by the Supreme Court in the case of National Small Industries Corporation Limited (Supra) and in the case of Shyam Sundar (Supra), in my opinion, would apply in the facts of the present case.
9. It is an established law that for imposing criminal liability against any person, the element of mens rea and consciousness of the nature of acts have also to be taken into account and if such elements are lacking, then the accused cannot be held responsible for the offences.
10. I find from the impugned order of the learned trial court as also of the impugned order of the Revisional court that the aforementioned aspects of the matter have not been taken into consideration and the principle of law relating to imposition of criminal vicarious liability has not been considered in proper perspective.
11. In the result, finding merit in this application, the same is allowed. The impugned order of the trial court rejecting the petitioner's prayer for her discharge and the impugned order of the Revisional court, passed in Cr. Rev. No. 19 of 2001, by the 04 th Additional District & Sessions Judge, Jamshedpur are hereby quashed. The entire criminal proceedings pending against the petitioner before the court below vide G.R. Case No. 938 of 1999 arising out of Bistupur P.S. Case No. 113 of 1999 is also hereby quashed.
(D.G.R. Patnaik, J.) APK