Shamsuddin Ahmed, J. - (1.) This is an application for quashing a proceeding being Criminal Case No. C-625 of 1983 pending before the learned Metropolitan Magistrate, 8th Court, Calcutta u/s. 11(1) read with section 12 of the Export (Quality Control and Inspection) Act, 1963 and also for setting aside an order dated 26.2.1983 and order dated 31.7.1984.
(2.) Petitioner's case is that it is a public limited company registered under the Companies Act, on 26.2.1983. A petition of complaint was filed before the learned C.M.M. alleging commission of offence u/s. 11(1) of the Export (Quality Control and Inspection) Act, 1963. Learned Magistrate took cognizance and directed issue of summons. The accused-petitioner appeared and raised objection regarding maintainability of the case. According to the petitioner the offence was barred by limitation u/s. 468(2)(a) of the Code as the date of the alleged offence was 2..12.1980 and the complaint was filed on 26.2.1983. It was also contended that the only accused is a company and in committing an offence u/s. 11 of the said Act a guilty intention is one of the requisite. Company not being a living being cannot have any mens rea. The learned Magistrate by his order dated 31.7.1984 found that the period of limitation for taking cognizance of the alleged offences is three years and therefore there was no limitation. Mr. Bhattacharjee appealing for the petitioner has submitted that the maximum penalty that can be imposed for the alleged offence is two years imprisonment and a fine of Rs. 5000/- or with both. But since the accused is a company he cannot be imprisoned and therefore only effective punishment is imposition of Company he cannot be imprisoned and therefore only effective punishment is imposition of fine and if the alleged offence is punished by imposing fine only then the limitation would be six months. Accordingly the alleged offence was barred by limitation when the learned Magistrate took the cognizance. Section 468 provides that no court shall take cognizance of an offence of the category specified in sub-section (2) after the period of limitation. This section clearly indicates that what has been barred is taking cognizance of an offence and not of an offender and the learned Magistrate has rightly pointed out to this. The amount of punishment that can be inflicted after trial is not a criterion for deciding what should be the period of limitation under sub-section (2). What has to be looked into is how the offence has been made to be punishable under the Act. Therefore the learned Magistrate is right in holding that the offence is not barred by limitation.
(3.) The other point raised by Mr. Bhattacharjee is that in the instant complaint the company is only accused. Petition of complaint disclosed that the offending action punishable u/s. 11(1) of the Export (Quality Control and Inspection) Act, 1963 must be fraudulent. Section 25 of the I.P.C. defines "fraudulently" thus "a person is said to do a thing fraudulently if he does that thing with the intend to defraud but not otherwise. According to Mr. Bhattacharjee a company is at best a juristic person and it cannot have an intention to defraud. So on the face of it the complaint fails and should be quashed. According to section 11 of the I.P.C. the word person includes any company or association or body of persons whether incorporated or not. Whether mens rea can be imputed on the company is a question of fact. Moreover it cannot be said that if in evidence other offenders come into light the court is competent to rope them in this case. Accordingly this case cannot be quashed at this stage.;