G. M. LODHA, J. - (1.) THE Secretary, Krishi Upaj Mandi Samiti, Pali has filed this appeal under Section 378 (1) Cr. P. C. against the judgment of Munsif and Judicial Magistrate, Pali, dated 22. 9. 1978 passed in Criminal Case No 205/75.
(2.) A complaint was filed against M/s Manmal Kewal Chand u/s 4 (2) and 17 of the Rajasthan Agricultural Produce Markets Act, 1961 (as amended by the Act of 1973) for contravening Section 28 (1) and 28 (2 ). The Trial Court acquitted the accused on 22. 9. 1978 after holding that the prosecution has failed to prove the offence under Section 28 (1) and (2) of the Act. In the Appeal before this court, the non-petitioner has been shown as M/s Manmal Kewal Chand. It has not been specified who is the accused and whether Manmal or Kewal Chand or both are accused or one of them is accused and in what capacity. In cases of Firms, in order to hold them liable under the criminal law, it is necessary that the person should be specified by name. A Firm can be sole propriety Firm or a partnership Firm. In order to punish a person, he must be served in person, though it may be in the capacity of proprietor of the Firm or partner of the firm or manager or employee of the firm, as the case may be. I enquired from Mr. Mathur as to who is the accused and he was unable to point out anything about the accused. In the grounds of appeal it has not been specified as to who is the person, who is to be prosecuted. It is not possible to mention as to the name of the person to whom the notice of appeal was served. In view of this, no criminal liability can be questioned on a firm without specifying the name of the person, who is to be punished. I have repeatedly enquired from Mr. Mathur if it is possible to mention the name of the person who is the accused in this case and in case conviction and sentence is to be imposed, who would undergo the sentence, but Mr. Mathur could not assist the court in this respect. On a study of the file of the trial court, it appears that neither Manmal nor Kewal Chand was the accused and one Paras Mal s/o Shri Mishri Mal was examined as an accused. This makes it clear that in this appeal before this court, as Paras Mal has not been made accused in any capacity whatsoever nor he has been served in person and M/s Man Mal Kewal Chand cannot be treated as the accused, therefore, no effective judgment can be given. In view of the above, although on principle I have held in State vs. Mool Chand, (l) an identical case, that the acquittal was not justied, yet that question cannot be examined and decided in the absence of the accused.
(3.) IT is unfortunate that the Krishi Vpaj Mandi Samiti has filed this appeal in such an unsatisfactory manner and even when the office pointed out this defect on 1. 12. 1978, it was not removed. I may observe that in criminal cases, where the question arise as to who is liable for punishment, only an individual person can be punished, though punishment may be in various capacities as discussed above. IT is, therefore, incumbent upon the prosecution to name that person in the complaint and consequently in the appeal. In the absence of mention of that name, the appeal cannot be entertained, as no effective judgment can be given without providing an opportunity of hearing. In view of this as the appellant has mentioned only the name of the firm without mentioning the name of the person, who is to be made as the accused, as has been done in this appeal, this defect is fatal for the appellant and consequently, this appeal is dismissed. .;