P M KARIAPPA Vs. STATE

JUDGEMENT

(1.) A complaint was filed by the District Excise Officer on 5 th December, 1995 on which case FIR No. 492/1995 was registered at PS IP Estate, Delhi. The allegations in the complaint are that M/s Karam Chand Thapar and Brothers (C.S.) Ltd., Distillery Division, Unnao (UP) had applied for renewal of L-1 License in the NCT of Delhi in respect of two brands of whisky namely Bonds Street Whisky and Lord Jin Whisky and one brand of Marco Polo XXX Rum which were being manufactured at their distillery. According to the complaint the sales figure of the IMFL brands for the years 1993-94 and 1994-95 produced by the attorney of the firm showed a sale of more than 60,000 cases for whisky and 25,000 cases for Rum throughout India excluding Delhi. Thus according to the case of the Complainant on the basis of affidavits/documents filed by the attorney of M/s Karam Chand Thapar and Brothers dated 28 th April, 1995 and 8 th May, 1995 respectively the L-1 license was renewed on 9 th May, 1995. On further verification of the sales figure it was found that no sale of the abovementioned brands was effected during the years 1993-94 and 1994-95 excluding Delhi. Thus the firm and its attorney committed an offence of forgery by submitting forged documents including affidavits in support of their claim, thereby causing unlawful gain to the firm and unlawful loss to the government exchequer. On investigation a charge sheet was filed. Vide order dated 29 th September, 2007 the learned Metropolitan Magistrate directed framing of charge under Sections 420/468/471/120B/199/200 IPC against the Petitioner herein who was the attorney of the firm. The said order was assailed before the learned Additional Sessions Judge who dismissed the revision petition vide order dated 8 th October, 2010. Thus in the present petition the orders dated 29 th September, 2007 passed by the learned Metropolitan Magistrate and 8 th October, 2010 passed by the learned Additional Sessions Judge are impugned.

(2.) Learned counsel for the Petitioner contends that as no sanction under Section 195 Cr.P.C. has been filed thus the cognizance for offences under Sections 199/200 IPC is bad in law. In view of the fact that there is a specific provision under the Punjab Excise Act providing penalty for furnishing false information, the Petitioner can only be proceeded under the said provision. Further the Petitioner cannot be prosecuted for offences under Sections 420/468/471/120B IPC. The alleged affidavits were only filed with Appendix 'B' which document was filed on 8 th May, 1995, however the firm was issued license on the 5 th May, 1995. Thus while granting license the affidavits were not taken into consideration. Hence there being no misrepresentation at the time of grant of license no forgery can be said to have been committed by the Petitioner. Thus he cannot be tried for the offences charged.

(3.) It is further contended that merely issuance of L-1 license is not sufficient to market the products. After the receipt of L-1 license, the firm was also liable to pay the brand fee and only thereafter they were entitled to use the license. In the present case the brand fee was not paid hence the license was never used. Further the Petitioner was appointed only on 28 th April, 1995 when as an attorney he was made to sign the affidavits. The Petitioner had no personal knowledge of the accounts and the affidavits were based on the figures supplied by the General Manager of the Excise Factory to the Chartered Accountant who in turn certified the same and provided it to the Petitioner. The summon qua the Chartered Accountant has already been quashed by this Court. It is further contended that the Petitioner is only an employee of the company and no vicarious liability can be fastened on the Petitioner in the absence of any statutory provision thereon. Reliance is placed on Nirmal Bhanwarlal Jain vs. GHCL Employees Stock Option Trust,2010 1 JCC(Del) 574. Thus the order framing charge passed by the learned Metropolitan Magistrate and order dismissing the revision petition by the learned Additional Sessions Judge are a clear abuse of the process of the Court which deserve to be set aside by this Court.