S.J.Hyder - (1.) THIS is an application under section 482 CrPC filed by the applicants for quashing the proceedings in Criminal Case No. 2713 of 1979, State v. S. S. Varma and others pending in the court of the First Additional Munsif Magistrate, Bareilly. The application has been opposed on behalf of the State and a counter-affidavit has been filed purporting to rebut the averments made by the applicants.
(2.) THE principal ground on whi:h the application is pressed, which is determinative of the controversy between the parties, is that the Synthetics and Chemicals Ltd., Rampur Road, Bareilly, thereinafter referred to as the 'Company' has not been arrayed as an accused in the case and as such there is a noncompliance with the provision contained in Sec. 39 of the Weights and Measures (Enforcement) Act, 1959, hereinafter referred to as 'the Act'. It appears that Inspector of Weights and Measures made an inspection of the weights inside the premises of the Company on August 24, 1979 at about 11:05 A. M. On making the inspection of the Weights, each of which was of 50 kgs. they were not found stamped for the year 1978-79. The inspection was made in the presence of Sri Narain Singh, Supervisor, who is applicant No. 3 before the court. The complaint was filed by the Inspector, Weights and Measures, on 27-10-1979 and summons were issued against the applicants. It is not in controversy that the company is duly registered under the Indian Companies Act, 1956. Section 39 of the Act is re-produced below ;- "39, Offences by companies-(1) If the person committing an offence under this Act is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to llhe 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 punished accordingly : Provided that nothing contained in this sub-section "shall render any such person liable to punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any Managing Agent, Secretaries and Treasurers, director, manager, secretary or other officer, such Managing Agent, Secretaries and Treasurers, directors, manager, secretary or other officer of the company shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation-For the purposes of this section- fa) "company" means any body corporate and includes a firm or other association of individuals, and (b) "director" in relation to firm, means a partner in the firm."
(3.) FROM a reading of the Section, it is evident that the primary responsibility under the Act for an offence punishable thereunder is placed on the shoulders of the company. Any person who, at tie time of the commission of the offence, is incharge of or responsible to the company for the conduct of the business of the company has also been made liable for indictment for the breach of the provisions of the Act only vicariously. A person who is incharge of the business of a company may escape from liability if he is able to prove that the offence was committed without his knowledge or that he exercised all due deligence to prevent the commission of such an offence. The contention on behalf of the applicants is that only Sarvasri S. S. Varma, Factory Manager, Y. B. Mehrotra, Material Manager and Narain Singh, Material Supervisor of the company, have been arrayed as accused in the case. This averment has been denied in the counter-affidavit filed on behalf of the State by Sri Ramesh Chandra Pande who has averred that the company is also an accused in the case and that its name appears in the complaint as accused No. 4. In the counter affidavit of Ramesh Chandra Pandey, it is stated that the copy of the complaint annexed with the affidavit filed along with the application is not a correct copy. The deponent of the counter-affidavit has annexed another copy of the complaint which, according to him, is the correct copy of the said complaint dated October 27, 1979.;