KOCHHAR, J. - (1.) THE facts giving rise to this petition under Section 482 of the Code of Criminal Procedure, are as under: -
(2.) A complaint was filed before the learned Judicial Magistrate (Economic Offences) Jaipur, by Shri B. L. Sharma (the Superintendent) in the capacity of Superintendent, Central Excise and Customs Department, Jaipur, with the allegations that he had checked the premises of M/s. Diamond Marbles Pvt. Ltd. Company (the Company) on 15. 12. 1989 and had found that the actual stock was less than the stock shown in the books of account of the company and that Shri Surendra Singh, who was the General Manager of the company, had admitted that the stock was less than the quantity shown in the registers and that certain materials had been sent out of the premises of the company, without paying the necessary excise duty. It was alleged that offence having been committed by the company, the petitioner and the other Directors are responsible therefore and, as such, it was prayed that they should be punished in accordance with law. The complaint was not filed against the company, but only against Shri A. K. Sahni and the other three Directors, including the petitioner. The learned Judicial Magistrate took cognizance vide the impugned order dated 9th March 1990, and summoned the petitioner and the other Directors of the company. Feeling aggrieved the petitioner has approached this Court by filing this petition. I have heard the learned counsel for the parties and have also perused the impugned order. Section 9-AA of the Central Excise and Salt Act, 1944 ('the Act') reads as under :- "9-AA, Offences by companies-- (l) Where an offence under this Act has been committed by a company, every person who at the time of the offence was committed was in charge of, and was responsible to, the 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 shall be liable to be proceeded against and punished accordingly : (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 Director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly". The bare reading of the above-said section makes it clear that it is only when the person sought to be prosecuted, was incharge of and was responsible to the company for the conduct of the business of the company that he can be punished, if an offence is committed by the company, and the Directors, Manager etc. can be punished only if the offence is committed with their consent or connivance, or is attributable to any neglect on their part. In the complaint there are no allegations that the petitioner was in charge of the company or was responsible to the company for the conduct of its business or that the offence had been committed with his consent or connivance, or because of any neglect on his part. There being no allegations in the complaint, which had been filed in respect of the offence stated to have been committed under the Act, the learned Magistrate had no material whatsoever, to issue process to the petitioner. In the complaint, Shri A. K. Sahni has been shown as the Managing Director of the company, and the petitioner, besides Sarvshri S. G. Bhardwaj and RPS Johar have been shown as its Directors. The allegations against Sarvshri S. G. Bhardwaj and RPS Johar are the same as are against the petitioner and they are also only the Directors, as is the case of the petitioner. Although, Sarvshri S. G. Bhardwaj and RPS Johar have not approached this Court by filing any petition, it having come to the notice of this Court that the allegations against them are the same as against the petitioner and they stand on the same footing as of the petitioner, it would be against the interest of justice to allow the proceedings against them as well. Consequently, the impugned order dated 9. 03. 1990, is quashed in respect of the petitioner and Sarvshri S. G. Bhardwaj and RPS Johar, and the proceedings would continue only against Shri A. K. Sahni, the Managing Director of the company. The petition stands disposed of accordingly. . ;