Karnataka High Court
Mahesh Naik S/O Vijaya S Naik vs The State Of Karnataka And Anr on 21 September, 2022
Author: P.N.Desai
Bench: P.N.Desai
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21 ST DAY OF September, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.201195/2022
BETWEEN:
MAHESH NAIK S/O VIJAYA S. NAIK
AGE: 48 YEARS OCC: COMPLIANCE OFFICER
ZUARI AGRO CHEMICALS LIMITED, JAI KISAN BHAWAN
ZUARINAGAR GOA-403726
R/O: 230/D, NORONHA APPTS, NEAR FATORDA
MARGAO SALCETE, SOUTH GOA
GOA-503 602.
...PETITIONER
(BY SHRI. SHEKHAR GURUBHIMRAO, ADVOCATE)
AND:
01. THE STATE OF KARNATAKA
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585 107.
02. THE GOVERNMENT OF KARNATAKA
DEPARTMENT OF AGRICULTURE
REPRESENTED BY THE OFFICER-CUM-INSPECTOR
OF FERTILIZER ASSISTANT DIRECTOR OF AGRICULTURE
OFFICE, ALAND, DIST: KALABURAGI-58.
...RESPONDENTS
(BY SRI. VEERANAGOUDA MALIPATIL, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO
EXERCISE INHERENT POWERS UNDER SECTION 482 OF CR.P.C.
EXAMINE THE RECORDS AND QUASH THE TAKING COGNIZANCE
ON 08.11.2021 IN C.C.NO.9753/2021 (PRIVATE COMPLAINT
NO.13/2021) FOR THE OFFENCE PUNISHABLE UNDER SECTION 7
(I) (A) (II) OF ESSENTIAL COMMODITIES ACT, 1955 AND
CLAUSE 19 (1)(A) OF THE FERTILIZER CONTROL ORDER 1995,
PENDING BEFORE THE COURT OF PRL. CIVIL JUDGE AND JMFC
ALAND, AGAINST THE PETITIONER.
THIS PETITION COMNG ON FOR ORDERS THIS DAY, THE
COURT PASSED THE FOLLOWING:
2
ORDER
This petition is filed under Section 482 of Criminal Procedure Code (for short 'Cr.P.C.') seeking to quash the cognizance taken on 08.11.2021 in C.C.No.9753/2021 (Private Complaint No.13/2021) for the offence punishable under Section 7 (i) (a) (ii) of the Essential Commodities Act, 1955 (for short 'E.C. Act') and Clause 19 (1) (a) of the Fertilizer Control Order 1995, pending before the Court of the Prl. Civil Judge and JMFC Aland, against the petitioner.
02. It is contended by the petitioner that on 16.07.2018 the complainant visited shop of accused No.2 - M/s. Maidargi Agro Agency near new Bus Stand Aland, where Zuari Agro Chemicals Ltd. Goa DAP Fertilizer was sold. The sample was drawn from the stitched bags. Thereafter, 10 bags out of 290 bags were selected from the lot. The contents of the bags made empty on a level clean, hard surface and drawn a composite sample divided into three equal parts as per Fertilizer Control Order, 1985. Each of these samples weighs 400 grams. After confirming the 3 weight, samples were transferred to a thick polythene bag. Each test sample was sealed and one sample Urea Fertilizer was sent to Deputy Director of Agriculture Fertilizer Control, Belagavi. Another sample was given to the dealer and third sample was sent to higher authority i.e., Assistant Director of Agriculture Aland for keeping safe custody. Thereafter, as per the Laboratory report, the said sample was found non-standard as per the report of Government analyst. Thereafter, show cause notice was issued to the accused No.2. The complainant proceed to prosecute the petition and accused No.2 under the provisions of clause 7 (i) (a)
(ii) of the Essential Commodities Act, 1955 and clause 19 (1) (a) of the Fertilizer Control Order 1995.
03. The learned Magistrate took cognizance of offence and issued summons to the accused by registering the case in C.C.No.9753/2021 for the offences punishable under Sections 3 and 7 of the Essential Commodities Act, 1955 on 08.11.2021. Hence, the petitioner has filed this petition.
4
04. Heard Sri. Shekhar Gurubhimrao, the learned counsel for the petitioner and Sri. Veeranagouda Malipatil, the learned High Court Government Pleader for the respondents.
05. The learned counsel for the petitioner argued that the petitioner is innocent. The petitioner is falsely involved by the respondent in this case on the basis of complaint lodged by the complainant. In the similar set of facts Coordinate Bench of this Court in Crl.P.No.100263/2019 and 100264/2021 quashed the proceedings. The private complaint has to be filed only by the authorized officer of the company. Without charging the company with any liability and making company as party is against the mandate of Section 10 of the Companies Act, 1956. In order to charge vicarious liability, the complainant must show the responsibility for conduct of the business at relevant point of time. Therefore, continuation of criminal proceedings against the petitioner is abuse of process of Court. Hence, the learned counsel for the petitioner prays to allow the petition.
5
06. Against this, the learned High Court Government Pleader argued that the complainant is an authorized officer and he has filed the private complaint under Section 200 of Cr.P.C. The said fertilizer is non- standard. Now, the learned Magistrate has taken cognizance with regard to the said offences. Hence, the learned High Court Government Pleader prays to dismiss the petition.
07. I have perused the order of the Trial Court dated 18.11.2021, which reads as under:-
"Perused the entire material available on record. The present complaint is filed by Agriculture Officer. Technical Officer-cum- Inspector of Fertilizer, Office of the Asst. Director of Agriculture, Aland, in the official capacity. Hence, as per the provisions of law there is no necessity of sworn statement in the private complaint filed by public authority in the official capacity.
Perused the entire material available on record. The ingredients of complaint attract offence punishable under Section 7 (i) (a) (ii) of the Essential Commodities Act, 1955 and 6 Clause 19 (1) (a) of Fertilizer Control Order, 1995. Therefore, the cognizance of offence punishable under Section 7 (i) a) (ii) of the Essential Commodities Act, 1955 and Clause 19 (1) (a) of the Fertilizer Control Order, 1995 are taken."
08. I have perused the order of Coordinate Bench of this Court in Criminal Petition No.100263/2019 and in Criminal Petition No.100264/2019 and in Criminal Petition No.201683/2021 and connected matters. Admittedly, in this case, the owner of the said Company is not made as a party.
09. As per Section 10 of the E.C. Act if a person contravening an order made under Section 3 of the E.C. Act is 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 E.C. Act is a penalty clause. In order to appreciate the contention, it is necessary to refer to Section 10 of the E.C. Act, 1955 which reads as under:
7
"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."
10. In the absence of the company as a co-accused, the complaint filed against the petitioner who was the compliance officer of the company is not maintainable in view of the decisions of the Hon'ble Supreme Court in the case of (1) State of Madras vs. C. V. Parekh reported in 1970 (3) SCC 491, (2) Diwan Chand vs. State of Punjab and another reported in 2006 SCC Online P & H 359 and (3) Yogapal Malik vs. State of Haryana reported in 2003 EFR 150. So, in the absence of aforesaid company without being a party, the complaint filed by the complainant is not tenable.
11. The 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 8 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 type of 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 E.C. Act and also Order 19 (a) of the Fertilizer (Control) Order, 1985, there is bar under Section 10 of the E.C. Act, unless the company is made a party, there cannot be criminal prosecution against the Market Coordinator and proceedings are quashed. Therefore, Section 10 of the E.C. Act clearly mandates, if the offence is committed, the company ought to have been made a party to the proceedings. 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 while taking cognizance and proceeded to pass the impugned order of taking cognizance mechanically. Hence, in view of Section 10 of the E.C. Act 9 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. Accordingly, I proceed to pass the following:
ORDER I. The petition filed by the petitioner under Section 482 of Cr.P.C. is allowed.
II. The taking cognizance on 08.11.2021 in C.C.No.9753/2021 (Private Complaint No.13/2021) for the offences punishable under Section 7 (i) (a) (ii) of Essential Commodities Act, 1955 and Clause 19 (1)
(a) of the Fertilizer Control Order, 1995, pending before the Court of Prl. Civil Judge and JMFC, Aland and further proceedings in that case against the petitioner, are hereby quashed.
III. 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 KJJ