MOONNUKANDATHIL MODERN MILLS Vs. ABRAHAM THOMAS

JUDGEMENT

(1.) When the firm alone is made an accused can the Managing Partner of that firm, who is only representing the firm be sentenced to undergo imprisonment till the rising of the court and also to undergo imprisonment in default of payment of fine/compensation is the crucial question raised by the learned counsel for the petitioner. According to the learned counsel, the petitioner who only represents the firm cannot be sentenced to undergo imprisonment, for the fine/compensation amount which the firm is liable to pay can only be realised by resorting to Sec.421 Cr.P.C.

(2.) There can be no doubt that a firm being a separate legal entity can be prosecuted and convicted. But the learned counsel for the petitioner submits that Mr. M.J. Jacob has not been independently arrayed as accused but he is only representing the firm-Moonnukandathil Modern Mills. Though Mr. M.J.Jacob represented the firm and even if he is the Managing Partner or a partner who was in charge of and responsible to the conduct of the business of the company, he cannot be directed to undergo imprisonment in default of payment of fine/compensation, for, his liability is only vicarious in nature. Mr.M.J.Jacob is not prosecuted for his individual act and he was not arrayed as an accused in his individual capacity. Had it been a case where he was impleaded as an accused as the Managing Partner or Partner of that firm or a person in charge of the business of the Firm then the position would have been different. But here the firm alone is the accused, though, it is represented by Mr.M.J.Jacob, the Managing Partner. He represents the firm only for the conduct of the case before court, the learned counsel submits.

(3.) It was held by the Honourable Supreme Court in ANZ Grindlays Bank Ltd. v. Directorate of Enforcement, 2005 2 KerLT 876 :