IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 Crl.MC.No. 1101 of 2005() ------------------------- ST.52/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... PETITIONER(S): 1ST ACCUSED: --------------------------- JOY PAUL, MANAGING PARTNER, N.T. PAUL AND COMPANY, POST BOX NO.3, ATHIRAMPUZHA P.O., KOTTAYAM. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA REPRESENTED BY ASSISTANT CONTROLLER OF LEGAL METROLOGY, FLYING SQUAD, ALAPPUZHA. BY PUBLIC PROSECUTOR SRI. B.VINOD. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.M.C. No. 1101 of 2005 ----------------------------------------------- Dated this 9th September, 2009. ORDER Petition filed under Section 482 Cr.P.C. to quash the proceeding on the file of Judicial Magistrate of First Class. 2. Petitioner is the 2nd accused. The offences alleged against him and two others are under Section 33 of the Standards of Weights and Measures (Enforcement) Act, 1985 and Rule 4, 6(1), 9 and 23(1) of the Standards of Weights and Measures (Packaged Commodities) Rule, 1977. 3. The respondent filed a complaint on the allegation that on 11.6.2004, he inspected the trade premises of M/s. Surya Hardwares and detected that some packages containing (1) ISO 9001:2000 Company “ARGIL” Wall Tiles (300 x 200 mm) and (2) ISO (9001 Certified “SWASTIK” Lustre Wall Tiles/Floor Tiles (300 mm x 200 mm) kept for sale were not having the necessary mandatory declarations such as maximum retail price and month and year of packing etc. as envisaged in the above Acts and Rules. On equiry, it was revealed that the first package was manufactured or packed by M/s.Mod Cera Industries Ltd., Morbi [Crl.M.C..1101/2005] 2 and distributed by M/s. Beena Hadwares. The second package was distributed to the retail dealer by M/s N.T.Paul and Company. 4. According to complainant, the action of the retail dealer, manufactures and distributors constitute offences under Section 39 of the Standards of Weights and Measures (Enforcement) Act, 1985 and Rules 4, 5(1), 9 and 23(1) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and punishable under section 63 of the 1976 Act, Section 51 of the Enforcement Act, 1985 and Rule 39 of the said Rules. Registered notices were sent to the offenders seeking their explanation but the reply sent by the distributor of M/s.N.T. Paul and Company was not satisfactory. So, permission was sought for prosecution and on getting sanction the complaint was filed. 5. Learned counsel appearing for petitioner submitted that there is nothing in the complaint to reveal that petitioner committed various offences. It is also submitted that in the light of the decision reported in Kedar Apte v. Inspector, Legal Metrology (2009(3) KLT 744) specific averments must be made [Crl.M.C..1101/2005] 3 in the complaint that the accused was the person in-charge of and responsible to the company for the business of the company failing which he cannot be prosecuted for commission of offence by a company, under the Act. A reading of the complaint would show that no such averments are there in the complaint and hence the proceedings initiated against petitioner are to be quashed, it is submitted. 6. Learned Public Prosecutor submitted that petitioner is the managing partner of M/s. N.T.Paul and Company which has committed the offence, as seen from a reading of the complaint. Being the managing partner, he will be responsible for the offences committed by the company but the accused has no cae that he is not the managing partner. Therefore, the proceedings cannot be quashed as provided for, it is submitted. 7. On going through the complaint and on hearing both sides, it appears that the allegations are made against the retail dealer M/s. N.T.Paul and Company. The offences are alleged to have been committed by the said company. But, the Company is not made an accused in the case. Section 74(1) deals with [Crl.M.C..1101/2005] 4 offences by companies and it is laid down that if an offence under the Act is committed by a company every person who, at the time the offence was committed, was in charge of and 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 offence and shall be liable to be proceeded against. 8. Though petitioner is shown as managing partner of M/s.N.T.Paul and Company there is absolutely no averment in the complaint that at the time of commission of offence and as on the date of inspection, namely, 11.6.2004, petitioner was in charge of and was responsible to the company for the conduct of the business of the company. In the absence of such averments, the court cannot presume that petitioner was in charge of or responsible for the conduct of the business of the company as on 11.6.2004. The court cannot therefore proceed against the petitioner in the absence of specific averments which will make him liable for the offence alleged in the complaint. 9. As held in the decision reported in Kedar Apte (Supra), in the absence of relevant averments in the complaint a [Crl.M.C..1101/2005] 5 person cannot be prosecuted for commission of offence by a company under the Act. In the above circumstances, the proceedings, initiated against petitioner are liable to be quashed and I do so. In result, the proceedings initiated in S.T.No.52 of 2005 on the file of Judicial Magistrate of First Class-I, Chegannur, so far as it relates to petitioner, are quashed . Petition is allowed. K.HEMA, JUDGE. Krs.