M.B.SHAH, J. - (1.)THE petitioner - Managing Director of Maheshwari Mills Co. Ltd. has filed this petition for quashing the process issued by the Metropolitan Magistrate, Court No. VIII, Ahmedabad in Criminal Complaint No. 28687/81 filed by the Octroi Inspector, Ahmedabad Municipal Corporation, Ahmedabad.
(2.)THE opponent No.1 Octroi Inspector filed the aforesaid complaint before the Metropolitan Magistrate alleging that Maheshwari Mills Company was a limited Company and that the Manager of the said Mills (accused No.1) through his representative Indravadanbhai Patel (accused No.3) brought 6 cases containing Yarn - Evenness - Tester machine within the limits of Ahmedabad Municipal Corporation on 23.9.81 at about 6.15 p.m. in Ambassador Tali No. G.R.T. 14 without paying octroi duty to the tune of Rs. 12,659.05 P. and thereby the accused have committed an offence Punishable under section 398 of the Bombay Provincial Municipal Corporation Act, 1949, hereinafter referred to as "the Act". In the said complaint the accused No.1 was shown as Maheshwari Mills Co. Ltd. through its Manager. The petitioner was shown as accused No.2 as she was Managing Director of the company. Accused No.3 was named as Indravadanbhai Patel, who was Assistant Accountant of the said Mills Co. On the said complaint the learned Metropolitan Magistrate had issued summons to all the accused including the petitioner.
The learned advocate appearing on behalf of the petitioner submitted that the Metropolitan Magistrate ought not to have issued any process against the petitioner accused No.2 because in the complaint it is nowhere averred by the complainant that the accused No.2 has committed any offence or that she was connected in any way with the conduct of the business of the Company at the time of the commission of the al1eged offence. He relied upon the judgment in the case of Municipal Corporation of Delhi v. Purushottam Dass Jhunjunwala1, and the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi2

(3.)IN the case of Ram Kishan (supra) the Supreme Court has held that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under section 482. In that case the Food Inspector of Municipal Corporation of Delhi had filed a complaint for the offence under the provisions of the Prevention of Food Adulteration Act against the Manager of the Company and the Directors of the Company including the Company also. On the said complaint the process was issued against the accused. The Delhi High, Court had quashed the issuance of the process against the Manager and the Directors of the Company which had manufactured 'Morton Toffees which were sold by Shri Madan Lal, who was respondent No.6 in the said case, at his shop. In that case after considering the averments in the complaint, the Court came to the conclusion that so far as the Manager of the Company was concerned, it could not be reasonably argued that no case was made out against him because from the very nature of his duties it was manifest that he must be in the knowledge about the affairs of the same and manufacture of the disputed sample. But with regard to the Directors the Court held that there was no evidence or anything to show apart from the presumption drawn by the complainant that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In the case of Purshottam Dass (supra) the Supreme Court was dealing with the complaint filed by the Food Inspector of the Municipal Corporation of Delhi for the alleged offence under the Prevention of Food Adulteration Act. As there were sufficient allegations in the complaint involving the Managing Director and the Directors of the Hindustan Sugar Mills Ltd., which manufactured the toffees in question, the Court bad allowed the appeal of the Municipal Corporation of Delhi against the judgment and order of the Delhi High Court which had quashed the proceedings.