Karnataka High Court
Baleshwar Prasad Tomar vs State Of Karnataka on 4 July, 2023
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2023:KHC-D:6649
CRL.P No. 100798 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 100798 OF 2023
BETWEEN:
BALESHWAR PRASAD TOMAR
S/O. SHRILLAL SUKHBIR SINGH,
AGE: 63 YEARS, OCC: GENERAL MANAGER,
HILIYOKAN AGRO CHEMICALS,
BLOCK NO. 221,
INDUSTRAIL AREA RAICHUR.
...PETITIONER
(BY SRI. AVINASH A. UPLAONKAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ADDL SPP HIGH COURT OF
KARNATAKA, DHARWAD BENCH -580011.
CHANDRASHEKAR
LAXMAN 2. THE GOVERNMENT OF KARNATAKA,
KATTIMANI
DEPARTMENT OF AGRICULTURE,
REPRESENTED BY THE FERTILIZER INSPECTOR,
Digitally signed by AND AGRICULTURE OFFICER LOKAPUR,
CHANDRASHEKAR
LAXMAN DIST: BAGALKOT -591102.
KATTIMANI ...RESPONDENTS
Date: 2023.07.10
11:22:36 -0700 (BY SMT. GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. SEEKING TO EXERCISE INHERENT POWERS U/SEC.
482 OF CR.P.C. EXAMINE THE RECORDS AND QUASH THE
TAKING COGNIZANCE IN CC NO. 916/2022 (PRIVATE
COMPLAINT NO. 10/2022) DATED 24.05.2022, FOR THE
OFFENCE PUNISHABLE U/SEC. 2(H) AND U/SEC. 12 OF
FERTILIZER ACT AND R/W 7 OF ESSENTIAL COMMODITIES ACT
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NC: 2023:KHC-D:6649
CRL.P No. 100798 of 2023
1955, PENDING BEFORE THE PRINCIPAL CIVIL JUDGE AND
JMFC COURT AT MUDHOL, AGAINST THE PETITIONER/
ACCUSED NO.2.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Avinash A Uplaonkar, learned counsel for the petit ioner and learned High Court Government Ple ader for the respondents . Perused the records on admission.
2. The present petit ion is filed under Section 482 of Cr.P.C. with the following prayer :-
"To exercise inherent powers U/sec. 482 of Cr.P.C. examine the records and quash the taking cognizance in CC No. 916/2022 (private complaint No. 10/2022) dated 24.05.2022, for the offence punishable U/sec. 2(H) and U/sec. 12 of Fertilizer Act and R/w 7 of Essential Commodities Act 1955, pending before the Principal Civil Judge and JMFC Court at Mudhol, against the petitioner/ accused No.2."
3. Though the matter is listed for adm ission by consent of the parties, it is taken up for final disposal.
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NC: 2023:KHC-D:6649 CRL.P No. 100798 of 2023
4. The brief facts of the case are as under :-
A private complaint came to be filed by respondent No.2 who is the Fertilizer Inspector cum Agriculture Officer with J.M.F.C., Mudhol. Gist of the private complaint averments reveal that the compla inant visited the business concern of f irst accused as fer tilizer inspector. On enquiry, he found that unauthorized non-st andard fertilizer are being sold by the 1 st accus ed. Accordingly, he raided the said firm and collected the samples which were being sold in the 1 st accused concern.
He drew the mahazar with regard to draw ing of samples and sent the same to laboratory and found that the samples are non-st andard and therefore, sought for action against the petitioner herein.
5. Being aggrieved by the action init iated by the complainant , accused No .2 is before this Court seeking quashing of further proceedings on the following grounds:
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NC: 2023:KHC-D:6649 CRL.P No. 100798 of 2023 x That the petitioners are innocent of the alleged offences against them and they are falsely involved in the above case.
x That, the petitio ners are falsely involv ed by respond ent and there are no other evidence to state that the petitioners are involv ed in the abov e said offences, which is bad in law.
x That, the Private complain t is filed only against authorize d officer of the company withou t charging the company with a ny liability which is again st Sec.10 of the Essen tial co mpanies Act. This v ery proceeding is ag ainst the d ictum of the Hon'ble Supreme Court in State of Madra s V/s C .V. Parekh and another reported in AI R 1970(3)SCC491.
x That, admittedly the samples were collected from the sealed bags and ab solutely there is no specific allegatio n against the p etitoner regard ing his culpability of any ad ulter ation or sub standard fe rtilizers contained in stitched bags.
x That, the petitioner is appointed as General Mana ger, Holiyokon Agro Chemicals Ltd , arrayed as accused in the complaint. Therefore complain t against petitioner is abuse of process of la w.
x The petitioners are not respo nsible for the q uality of the fertilizer manufactured. Therefore , the issue of process against the petitioner who is un connected with affairs o f quality control, amoun ts to ab use of process of law and the same is liable to quas hed .-5-
NC: 2023:KHC-D:6649 CRL.P No. 100798 of 2023 x That, in similar matter this Hon' ble court has q uashed the proceed ings in Crl.Pet.No.201037/2021 ord er 02/09/2021, and the sa me is allo wed.
x That there is ab solutely no cogent or reliable materials to conne ct the petitioner to th is case based on the materials collected by the respond ent and thus the abov e proceeding has resulted in gross abuse of the process of the court and hence the same has to be quashed .
x That the allega tion s herein neither disclose any offence committed by the petitioners nor does it seek to link the petitioner to the allegatio ns.
x Thus, looking towards the c hain of circumstances , the allegation mad e prima facie no material is there i n the case, initiated and continu ation of crimin al proceeding is nothing b ut ab use of process of law.
x That, if the presen t petition is not allowed then there would be continuatio n of misuse of the provisions of law and harassment to the peti tioners. Hence proceeding with the case will not serve the purpose of any bod y.
x No o ther case has been filed or pending before this Hon'b le High Court or any other court seek ing the relief soug ht in the petition.
x The petitio ners crave leaves to urge a ny other points th at may b e availab le at the time of ar gumen ts.-6-
NC: 2023:KHC-D:6649 CRL.P No. 100798 of 2023
6. Reiterating the grounds urged in the petition, Sri.Avinash A Uplaonkar, learned counsel for the petitioner vehemently contended that since the company which manufactured the fertilizers of which the sample drawn from the 1 st accused-fir m is not made as party, proceeding case against accused No.2 is uncalled for and sought for setting aside the regist ration of case and proceeding with the criminal ca se in C.C.No.916/2022.
7. Per contra, High Court Government Pleader contended that non-impleading of the company which is the manufact urer of the fertilizer of which the sample is drawn is only formal in nature and therefore, sought for dismissal of the petition.
8. In view of the rival content ions of the parties, this Court perused the material on record meticulously.
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NC: 2023:KHC-D:6649 CRL.P No. 100798 of 2023
9. On such perusal of the material on record, it is seen that I ndian Farmers and Fertilizers Co-operative Limited (for short , 'IFFCO') is not made as a party to the priva te complaint. In order to appreciate the contentions urged on behalf of the petit ioner, it is necessary to cull out Sect ion 10 of the Essent ial Commodities Act which reads as under:-
"10. Offe nces b y companies.--
(1) I f the person contravening an ord er made und er section 3 is a company, every person who, at the time the contravention was committed , was in ch arge of, and was responsible to , the company for the cond uc t of the b usiness of the co mpany as well as the company, sh all be deemed to b e guilty of the contravention and shall be liable to b e proceeded against and puni shed accordingly:
Provided that nothing con tained in this sub - section shall ren der any such person liable to any punishment if he proves that the contraven tion took place without his knowledge or that he exercised all due diligence to prevent such contraventio n.
(2) Notwithstanding anythin g con tained in sub-section (1), where an offence u nder this Act has b een commi tted b y a company and it is proved that the offence has been committed with th e consen t or con niv ance of, or is attributable -8- NC: 2023:KHC-D:6649 CRL.P No. 100798 of 2023 to any neglect o n the part of an y director, ma nager, secretary or other officer of the company, such d irector, manager, secretary or other officer shall also b e de emed to b e guilty of that offence and shall be liable to be proceeded agai nst and punished accordi ngly. Explanation.--For the purposes of this section,--
(a) "company'' means any bod y corporate, and includ es a firm or other association of individuals; and (b ) "d irector'' in relation to a firm means a partner in the firm."
10. Since the company is not arraigned as an accused, t aking cognizance by the learned Magistrate against the compliance officer and Liasoning Officer, is impermissible in view of Sect ion 10 of the E.C. Act referred to (supra).
11. Therefore, the order taking cognizance needs to be quashed by this Court by exercising the power vest ed in it U/sec.482 Cr.P.C. Hence, the following order is passed. -9-
NC: 2023:KHC-D:6649 CRL.P No. 100798 of 2023 ORDER The criminal petition is allowed. Pending proceedings against the petitioner in C.C.No.916/2022 on the file of Principal Civil Judge and J.M.F.C., Mudhol are hereby quashed.
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JUDGE SH List No.: 2 Sl No.: 40