S A KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS criminal revision case has been preferred against the order of the learned Additional Principal Sessions Judge, Chennai dated 23.07.2003 made in Crl.R.C.No.147 of 2002 reversing the order of the trial Judge, namely Additional Metropolitan Magistrate, E.O.I dated 24.08.2001 made in M.P.No.2270 of 2000 in E.O.C.C.No.166 of 1997.

(2.) THE facts leading to the filing of the present criminal revision in brief, are as follows:- (i) M/s.Printwraps, the second respondent herein/first accused was a partnership firm in which S.Subash, the third respondent herein/second accused and the petitioner in the present criminal revision/third accused were the partners. Union of India represented by Assistant Commissioner of Central Excise, Chennai, the first respondent herein, preferred a criminal complaint on the file of the Additional Metropolitan Magistrate, E.O.I, Egmore, Madras under Sections 9(1), 9(1)(b), 9(1)(bb), 11D of Central Excise Act, 1944 r/w. Rules 49, 173F, 52A, 173E, 57F(2), 57A of the Central Excise Rules, 1944 for their prosecution and punishment for the offence of violation of the above said provisions of Central Excise Act and Central Excise Rules. (ii) Though the partnership firm, namely M/s.Printwraps, was sought to be prosecuted by virtue of Section 9-AA of the Central Excise Act, 1944. 57F(2), 57A of the Central Excise Rules, 1944, which equates a partnership firm with a company/corporation for the purpose of prosecution under the Act. Respondent No.3 and the revision petitioner herein were arraigned as accused Nos.2 and 3 respectively on the ground that they were not only partners on the date of occurrence, but also were responsible for the conduct of the business of the second respondent firm. THE complaint was taken on file by the trial Court following the private complaint procedure and was numbered as C.C.No.166 of 1997. Processes were issued to the revision petitioner and Respondents 1 and 2 (Accused 1 and 2). But it is not known whether the service was effected on the firm, namely the second respondent herein / first accused. THE other two accused, namely revision petitioner and the Respondent No.3 were served with summons and they entered appearance to defend themselves. (iii) During the pendency of the case, the third respondent, namely S.Subash, who was described as Managing Partner of the partnership firm, passed away and pursuant to the death of the said Subash, the first respondent herein/complainant preferred a miscellaneous petition in M.P.No.2270 of 2000 in C.C.No.166 of 1997 on the file of the trial Court praying for an order that the revision petitioner herein/3rd accused shall represent the first accused company (firm), as there was no other person to represent the firm and the above said Subash described as Managing Partner had passed away. THE said miscellaneous petition was resisted by Mr.S.A.Khan, the revision petitioner/3rd accused on the ground that he had already retired from the partnership firm and hence, he was not competent to represent the second respondent firm. It was his further contention that as per Section 305 of Criminal Procedure Code, the Corporation (here the Firm) may appoint a representative for the purpose of inquiry or trial and that such a power available to the Company (the firm in this case) cannot be used by the prosecution to force upon anybody, the duty to represent the corporation (firm). (iv) THE Additional Metropolitan Magistrate, E.O.I, after hearing both sides, accepted the above said contention of the revision petitioner herein/3rd accused S.A.Khan and dismissed M.P.No.2270 of 2000 by an order dated 24.08.2001. As against the said order passed by the trial Judge, the first respondent herein/complainant preferred a revision before the learned Principal Sessions Judge, Chennai in Crl.R.C.No.147 of 2002 under Section 397 Cr.P.C. THE learned Principal Sessions Judge, Chennai, after hearing, allowed the revision by an order dated 23.07.2003, set aside the order passed by the trial Judge dated 24.08.2001, allowed M.P.No.2270 of 2000 and directed that the revision petitioner herein/3rd accused S.A.Khan shall represent the second respondent herein /1st accused in the criminal proceedings initiated against it in C.C.No.166 of 1997. Aggrieved by and challenging the same and also questioning the correctness and legality of the said order passed by the learned Principal Sessions Judge, Chennai in Crl.R.C.No.147 of 2002, the present revision petition has been filed by S.A.Khan, the third accused on various grounds set out in the memorandum of criminal revision case.

(3.) SINCE the facts have already been narrated, it shall be unnecessary to again repeat. Suffice to state that the first respondent has launched prosecution for the offences of violation of Sections 9(1), 9(1)(b), 9(1)(bb), 11D of Central Excise Act, 1944 and the Rules 49, 173F, 52A, 173E, 57F(2) and 57A of the Rules framed thereunder, as referred to in the narration of the facts indicated supra, against 2nd respondent /M/s.Printwraps, which is a partnership firm, S.Subash/3rd respondent, who is no more, in his capacity as Managing Partner of the second respondent firm and hence was accountable for the conduct of the business of the firm and S.A.Khan, the revision petitioner herein as an ex-partner, who was also responsible for the conduct of the business of the firm at the time of commission of the alleged offences and they had been arraigned as Accused Nos.1, 2 and 3 respectively. Admittedly S.Subash, Accused No.2, after the filing of the complaint passed away and is no more. Hence, the charge against him shall stand abated. So far as the revision petitioner is concerned, he is sought to be prosecuted for the alleged offence committed by the firm, which is equated to a corporation by virtue of a specific provision, namely Section 9-AA of the Central Excise Act. For better appreciation the section is reproduced as under:-