IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.268 of 1997 Date of Decision: 01.02.2008. K.K.Kapoor .......Petitioner versus Union of India .......Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr.Baldev Singh, Senior Advocate with, Mr.Arshvinder Singh, Advocate, for the petitioner. None for the respondent. *** KANWALJIT SINGH AHLUWALIA, J.(Oral) On 9th February, 1987 at about 4.00 P.M., Central Excise Preventive Staff, Amritsar did the checking and verification of records of M/s Niemla Textile Finishing Mills (P) Ltd., G.T.Road, Chheharta, Amritsar. On verification, evasion of central excise duty to the tune of Rs.2,29,034.15 Ps. was found. Complaint was filed. Vide order dated 07.01.1997 (Annexure P-2), the Chief Judicial Magistrate, Amritsar came to the conclusion that offence punishable under Section 9 of Central Excise Act is made out and the petitioner be charged to this effect. Present petition has been filed for quashing the charge-sheet (Annexure P-2) along with complaint (Annexure P-1). Mr.Baldev Singh, learned Senior Advocate, appearing for the petitioner has stated that there is no evidence or allegation to show that the petitioner, in his capacity as Director, has acted in any manner, which will Criminal Revision No.268 of 1997 --2-- attract penal provision calling for his trial. At the outset, the submissions of learned counsel may look attractive. In the Indian Penal Code except for Sections 34 and 149, which provide common intention and common object, unless made out, no person in his capacity as a Director by virtue of office can be held liable, as vicarious liability is alien to Indian Penal Code. But in Central Excise Act, this is not available as under Section 9(c) of the Central Excise Act, mental state on the part of the accused is to be presumed and there shall be a defence known to each accused to prove that there was no such mental state. Since the Act presume mental state, the presumption is rebuttable. Therefore, this is a matter of evidence. At the time of framing the charge, it cannot be said that there is a strict onus on the part of the prosecution to prove that the petitioner in no way was connected with the affairs of the company. Furthermore, role of each Director is a subject matter of evidence, which is to be led. Simply because at the pre-charge stage, no evidence has come, prosecution cannot be precluded to improve its case. True that any improvement is subject matter of appreciation and the Court at the final stage may accept or condemn any improvement, if so come in the evidence. Taking the totality of the circumstances, this Court cannot come to the rescue of the petitioner. Hence, present revision petition is dismissed. February 1, 2008 (KANWALJIT SINGH AHLUWALIA) rp/seema JUDGE