Renuka Mukesh W. Jagathia vs State Of Karnataka on 16 July, 2013
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION Nos.3504/2013 TO 3516/2013
BETWEEN:
1. RENUKA MUKESH W. JAGATHIA
DIRECTOR.
2. H. RAMNATHAN HARIHARAN
DIRECTOR.
3. VIPIN BHANDARI
WHOLE TIME DIRECTOR.
4. SUNDARARAMAN NAGARAJ
DIRECTOR.
5. GURUPRASAD
STORE MANAGER.
ALL PETITIONERS ADDRESS:
MAX HYPERMARKET INDIA PRIVATE LIMITED H. M. CITY CENTRE, K. S. RAO ROAD MANGALORE - 575 001
REGISTERED OFFICE AT
2ND FLOOR, Nos.39/3 & 44
BANNERGHATTA ROAD
BANGALORE 560 029. ... PETITIONERS
(COMMON IN ALL PETITIONS)
2
(BY SRI. NATARAJ .R., ADVOCATE)
AND:
IN CRL.P.Nos.3504/13 to 3508/13 & 3510/13 TO 3516/13
1. STATE OF KARNATAKA
REPRESENTED BY INSPECTOR OF LEGAL METROLOGY MANGALORE SUB DIVISION
MANGALORE 575 001.
2. INSPECTOR OF LEGAL METROLOGY
MANGALORE SUB DIVISION
MANGALORE 575 001. ... RESPONDENTS
(BY SRI.B.RAJA SUBRAMANYA BHAT, HCGP)
IN CRL.P.No.3509/13:
STATE OF KARNATAKA
REPRESENTED BY INSPECTOR OF LEGAL METROLOGY MANGALORE SUB DIVISION
MANGALORE 575 001. ...RESPONDENT
(BY SRI.B.RAJA SUBRAMANYA BHAT, HCGP)
THESE CRIMINAL PETITION Nos.3504/13, 3505/13, 3506/13, 3507/13, 3508/13, 3509/13, 3510/13, 3511/13, 3512/13, 3513/13, 3514/13, 3515/13 AND 3516/13 ARE FILED UNDER SECTION 482 CR.P.C BY THE ADVOCATE FOR THE PETITIONERS PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO QUASH THE CRIMINAL PROCEEDINGS IN C.C.Nos.667/13, 660/2013, 668/13, 661/2013, 662/13, 663/13, 669/13, 670/13, 671/13, 664/13, 665/13, 672/13 AND 666/13 RESPECTIVELY ON THE FILE OF THE JMFC-II COURT, MANGALORE, DAKSHINA KANNADA DISTRICT AGAINST THE PETITIONERS AS WELL AS THE PROCESS ISSUED TO THEM.
THESE CRIMINAL PETITIONS COMING FOR ADMISSION ON THIS DAY, THE COURT MADE THE FOLLOWING: 3
COMMON ORDER
Though these petitions are listed today for admission, having regard to the short point of law involved
in these matters, with consent of both sides, matters were heard for final disposal.
2. As the parties to these petitions are common and common questions of fact and law arises for consideration, these petitions were heard together and are being disposed of by this common order.
3. The common petitioners 1 to 5 in all these petitions have been arrayed as accused 2 to 6 in
C.C.Nos.667/13, 670/13, 660/2013, 668/13, 661/2013, 662/13, 663/13, 669/13, 671/13, 664/13, 665/13,
672/13, 666/13 on the file of JMFC-II Court, Mangalore, Dakshina Kannada District. In addition to this, petitioners
1 to 4 have also been arrayed as accused 8 to 11 in C.C.No.660/13.
4. The inspector of Legal Metrology, Mangalore, Sub- Division, initiated prosecution in the aforesaid cases against these petitioners and others for the violation of various provisions of The Legal Metrology Act, 2009 (for short the Act) and the rules framed therein, which are punishable under Section 36 (1) of the Act. These petitioners have been arrayed as accused in the capacity as Directors and Store Manager of M/s Max Hyper Market India Pvt. Ltd. Accused No.1 arrayed in the case is the Managing Director of the said company. Quashing of the prosecution in the aforesaid cases have been sought by these petitioners on the legal ground that though accused No.1 as Managing Director of the Company, has been nominated under Section 49(2) of the Act, as a person responsible and such nomination has been intimated to the department well before the alleged date of offence, the prosecution have been launched against the petitioners, though under the Act they are not liable to be prosecuted for any of the offences.
5. I have heard the learned counsel appearing on both the sides.
6. There is no dispute that these petitioners have been sought to be prosecuted as the Directors of the Company, which is the principal offender.
7. Section 49 of the Legal Metrology Act, 2009 reads as under:
"Offences by companies and power of court to publish name, place of business, etc., for companies convicted.
(1) Where an offence under this Act has been committed by a company,-
(a) (i) the person, if any, who has been nominate under Sub-Section(2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as a person responsible); or (ii) Where no person has been nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and
(b) the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub- section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Any company may, by order in writing, authorize any of its directors to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Director or the concerned Controller or any legal metrology officer authorized in this 7
behalf by such Controller (hereinafter in this section referred to as the authorised officer) in such form and in such manner as may be prescribed, that it has nominated such director as the person responsible, along with the written consent of such director for being so nominated.
Explanation- Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.
(3) The person nominated under sub-Section (2) shall , until -
(i) further notice cancelling such nomination is received from the company by the Director or the concerned Controller or the authorized officer; or 8
(ii) he ceases to be a director of the company; or
(iii) he makes a request in writing to the Director or the concerned Controller or the legal metrology officer under intimation to the company, to cancel the nomination, which request shall be complied with by the Director or the concerned Controller or the legal metrology officer, whichever is the earliest, continue to be the person responsible:
Provided that where such person ceases to be a director of the company, he shall intimate the fact of such cessation to the Director or the concerned Controller or the authorized officer:
Provided further that where such person makes a request under clause (iii) the Director or the concerned Controller ort he authorized officer shall not cancel such nomination with effect from a date earlier than the date on which the request is made.
(4) Notwithstanding anything contained in the foregoing sub-sections, where the 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 the neglect on the part of, any, director, manager, secretary or other officer, not being a person nominated under sub-section (2), 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.
(5) xxxxxxxxx
(6) xxxxxxxxx
(7) xxxxxxxxx"
8. Thus, reading of the aforesaid provisions makes it clear that if any of the Director of the company has been nominated as a person responsible in terms of sub-section (2) of Section 49, he alone is liable to be prosecuted for any of the offences under the Act in addition to 10 prosecuting the company. It is only, if there is no nomination in terms of sub-Section (2) of Section 49, other categories of persons stated in sub clause (ii) of clause (a) of Sub Section (1) can be prosecuted. Of course, as per sub-Section (4) even if any director is nominated as a responsible person, every Directors and other functionaries of the company can be prosecuted under the circumstances enumerated therein.
9. In the case on hand, according to the petitioners, accused No.1, the Managing Director of the company had been nominated under sub-Section (2) of Section 49 as 'person responsible' and the same has been intimated to the concerned authority in the department, which has also been acknowledged and therefore, the prosecution ought to have been initiated only against accused No.1 and not against other Directors. It is also their contention that in the complaints filed by the respondent, there has been no allegations regarding the circumstances enumerated 11 under Sub-Section (4) of Section 49 for prosecuting these petitioners.
10. The learned Government Pleader sought to justify the prosecution against the petitioners contending that even according to the document produced by the petitioners along with these petitions at Annexure-E, letter of acceptance of nomination has been issued only on 2.3.2013, therefore, as on the date of the offence alleged, there was no nomination, as such, the prosecution launched against these petitioners is also valid and is in accordance with law, since they are the functionaries of the Company. However, the learned Government Pleader does not dispute the contents of the letter dated 2.3.2013 issued by the Director of Legal Metrology, Bangalore, a copy of which is produced at Annexure-E.
11. No doubt, this letter is dated 2.3.2013, whereas the offences alleged are said to have committed on 27.7.2012. According to the contents of Annexure-E, the letter of nomination nominating accused No.1 as 'person 12 responsible' in terms of Sub-Section (2) of Section 49 was submitted to the office of the Director of legal metrology, Bangalore by the Company on 1.8.11. The letter further states that the said nomination has been accepted by the Department and the same has been uploaded in the web site under citizen charter for the information of the public for the years 2011-12. The letter further states that since the letter of nomination does not specify the nomination of accused No.1 in respect of any particular branch, the nomination has been accepted in respect of all the branches of the company. Thus, a reading of the letter at Annexure-E dated 2.3.2013 makes it clear that the letter of nomination of accused No.1 reached the Director of legal metrology on 1.8.11 and the said information was also put on public domain in the website of the department for the years 2011-12. From this, it is further clear that much prior to the alleged date of offence, the nomination in terms of sub-Section (2) of Section 49 of the Act had been received and accepted by the department. Therefore, in terms of Section 49(1) (a) (i) of the Act, it is 13 only the person so nominated as 'person responsible' alone to be prosecuted in addition to the company. In the light of such nomination sub-clause (ii) of clause (a) did not come into operation. Therefore, the prosecution launched against the petitioners as functionaries of the company is without jurisdiction. Reading of the complaint in these cases do not indicate any of the circumstances enumerated in sub-Section (4) of Section 49 to prosecute these petitioners. There has been no averment in any of these complaints that these petitioners as Directors of the company have by their consent or connivance committed the offences alleged. Therefore, sub-Section (4) of Section 49 is not attracted to the facts of the case.
12. In this view of the matter, the prosecution launched against these petitioners as functionaries of the company is bad in law and therefore, prosecution launched against them are liable to be quashed. However, the prosecution may be continued against accused No.1 14 who is the Director nominated as 'person responsible' and also against the company. In this view of the matter, petitions are allowed. The prosecution launched against these petitioners in C.C.Nos.667/13, 670/13, 660/2013, 668/13, 661/2013, 662/13, 663/13, 669/13, 671/13, 664/13, 665/13, 672/13, 666/13 on the file of JMFC-II Court, Mangalore, Dakshina Kannada District, are hereby quashed.
SD/-
JUDGE
SS*
Shanmugham Kundan
Veda Legal Resources Pvt Ltd
