STATE Vs. BRIJ LAL DHODI

JUDGEMENT

(1.) THIS is an appeal by the State from an order of the Additional City Magistrate, Lashkar acquitting the respondent Brij Lal Dhodi of the charge of having committed an offence under Section 8 of the Madhya Bharat Essential Supplies (Temporary Powers) Act Samvat 2005 (Act No. 3 of 1948) by contravening the provisions of Sections 15 and 13 of the Madhya Bharat Cotton Textile Control Order 1948 made under Section 4 of the Act No. 3 of 1948. It was alleged by the prosecution that on 18. 7. 50, the respondent Brij Lal Dhodi sold 82 yards of cloth to Messrs Sharma brothers at a price in excess of the maximum price fixed by the Textile Commissioner under Section 13 of the Cotton Textile Control Order. The ex-mill price of this cloth was Rs. 130-7-9. The respondent was entitled to charge for the cloth sold in addition to the above price an amount of Rs. 1-0-6 in respect of sale-tax and a further amount of Rs. 8-3-6 in respect of the customs duty. Under notification No. 44 of 1949 dated the 6. 12. 49 (published in the Gazette of 17. 12. 49) title respondent was also entitled to make a surcharge of 14 per cent, on the ex-mill price of the cloth, namely Rs. 130-7-9. It was alleged by the prosecution that the respondent Brlj Lal Dhodi illegally realised from Messrs Sharma Brothers 14 per cent, surcharge on Rs. 139-11-9 being the total of the ex-mill price, sales tax and the customs duty,-whereas he could have charged the 14 per cent surcharge only on the amount of ex-mill price, namely, 130-7-9. The prosecution stated that the respondent thus made an overcharge of Rs. 1-9-10. The respondent did not dispute these facts. In his defence, he stated that at the time he sold the cloth to Messrs Sharma Brothers and prepared a cash memo in respect of the transaction, there were several customers in his shop and that through some mistake he calculated the 14 per cent, surcharge on Rs. 139-11-9 instead of on Rs. 130-7-9 The learned City Magistrate accepted this plea and held that the accused committed a bona fide mistake in calculating the 14 per cent. Surcharge.

(2.) IN this appeal, Mr. Shiv Dayal Deputy Govt. Advocate, firstly contends, that Section 15 of the Cotton Textile Control Order 1948 and Section 11 of the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 by necessary implication rule out mens via, as a constituent part of the offence of a contravention of the Textile Control Order, 1948 and that, therefore, the Additional City Magistrate was not justified in taking into consideration the plea of the accused that he had committed a mistake in charging the 14 per cent, surcharge on Rs. 139-11-9. Mr. Shiv Dayal secondly argues that even if it is held that there can be no conviction under Section 8 of the Essential Supplies (Temporary Powers) Act, 1948 in the absence of mens reti, the evidence on the record amply shows the criminal, mind of the accused in calculating the 14 per cent, surcharge in the manner he did.

(3.) IN my opinion, both these contentions advanced by the learned Government Advocate must be rejected. In support of his contention, that mens rea is not a constituent part of a crime under the Act No. 3 of 1948 and the Cotton Textile Control Order 1948, Mr. Shiv Dayal places reliance on a decision of a Division Bench of this Court in?state v. Genda Lal AIR 1950 Madh. B. 89. In that case the question was whether all the partners of a firm could be said to have contravened the provisions of Clause 12a of Indore Cotton Cloth and Yarn Control Order when on a search of the partnership shop time-barred cloth was found therein. One of the contentions advanced on behalf of the accused persons in that case was that the partners of the firm were not liable as they did not know that time-barred cloth was kept in the shop and that they had no guilty knowledge. The Division Bench did not accept the contention holding that Clause 11 of the Indore Essential Supplies Order under which the Indore Cotton Cloth And Yarn Control Order was made clearly recognised the principle of vicarious responsibility in offences arising out of the breach of the provisions of that order and that therefore, mens rea as an essential constituent of the crime was excluded. Clause 11 of the Indore Essential Supplies Order was to this effect: Offences of corporations. If the person contravening an order made or deemed to be made under Section 3 is a company or other body corporate every director, manager, secretary or other officer or agent thereof shall, unless he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention, be deemed to be guilty of such contravention.