STATE PROSECUTOR Vs. MYALAPPA AND CO

JUDGEMENT

(1.) THIS is an appeal by the state against the acquittal passed by the Sub-Divisional Magistrate, Tuticorin, in S. C. No. 542 of 1951 on his file. In this case the prosecution is against a firm called Mylappa and Co. for non-payment of Sales-tax. Mylappa and Co. , consisted of two partners Jacob Nadar and Mylappa. Jacob Nadar was prosecuted in S. C. No. 256 of 1949 before the joint Magistrate, Tuticorin, for non-payment of Sales-tax for the year 1946-47, an offence punishable under Section 15 (b) of the Madras General Sales-tax Act. He was then acquitted and an appeal was preferred against that acquittal to this Court in C. A. No. 181 of 1950. The acquittal was upheld and the appeal was dismissed on the ground that the defaulter was the firm and it is the firm that should nave been prosecuted and the individual or any partner cannot separately be prosecuted. Subba Rao J. who heard the appeal observed as follows:

(2.) AN objection was taken in the lower Court that since Jacob Nadar, one of the partners, was already prosecuted for the non-payment of sales-tax the same year 1946-47 and has been acquitted of that offence and as this prosecution also relates to the non-payment of sales-tax for the Same year, he cannot be prosecuted again. At any rate, although the firm may be prosecuted, he, one of the partners, having been acquitted cannot be joined in the prosecution against the other. The lower Court upheld the objection and not only acquitted Jacob Nadar, but also acquitted the other person on the ground that the other person also cannot be individually prosecuted in the absence of Jacob Nadar. It is against the acquittal that the state has preferred this appeal.

(3.) THE question now is whether Section 403 Cr. P. C. will apply to the facts of this case. Rule 19 of the rules framed under the Madras General Sales-tax Act says: