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CR.MA/14138/2009	 2/ 4	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
MISC.APPLICATION No. 14138 of 2009
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MR.JUSTICE AKIL KURESHI
 
 
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1
		
		 
			 

Whether
			Reporters of Local Papers may be allowed to see the judgment ?
		
	

 
	  
	 
	  
		 
			 

2
		
		 
			 

To be
			referred to the Reporter or not ?
		
	

 
	  
	 
	  
		 
			 

3
		
		 
			 

Whether
			their Lordships wish to see the fair copy of the judgment ?
		
	

 
	  
	 
	  
		 
			 

4
		
		 
			 

Whether
			this case involves a substantial question of law as to the
			interpretation of the constitution of India, 1950 or any order
			made thereunder ?
		
	

 
	  
	 
	  
		 
			 

5
		
		 
			 

Whether
			it is to be circulated to the civil judge ?
		
	

 

 
=========================================================

 

ASTAD
PARAKH & 1 - Applicant(s)
 

Versus
 

STATE
OF GUJARAT & 1 - Respondent(s)
 

=========================================================
 
Appearance
: 
MR
ADIL R MIRZA for
Applicant(s) : 1 - 2. 
MR KP RAWAL, APP for Respondent(s) : 1, 
MR
SUNIL L MEHTA for Respondent(s) :
2, 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE AKIL KURESHI
		
	

 

 
 


 

Date
: 04/02/2010 

 

 
 
ORAL
JUDGMENT

Rule.

Learned APP Mr. K.P. Rawal waives service of rule for respondent State.

The petitioner seeks quashing of complaint Annexure-A. Complaint is with respect to pollution allegedly caused by original accused no.1 which was a private limited company. Rest of the accused were stated to be the Directors of the said company. The petitioners are original accused No. 4 and 5. In the complaint it is stated inter-alia that accused No.1 is a private limited company, accused No. 2 to 5 are its partners and administrators. They are therefore, co-accused and are jointly and severally responsible for the offence.

Counsel for the petitioner submitted that the company was situated at Anand. The petitioners from beginning were residing permanently at Mumbai. They were in no way connected with the day to day affairs of the company or in any manner responsible for the conduct of the affairs of the company. From the complaint, it can be seen that there is nothing to show that the present petitioners were in-charge of or responsible tot he company for conduct of the business.

Counsel for the Pollution Control Board however, relied on Section 47 of Water (Prevention and Control of Pollution) Act, 1974, which reads as follows :

47. Offences by companies.(1)Where an offence under this Act has been committed by a company, 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, as well as 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 or that he exercised all due diligence to prevent the commission of such offence.

(2)

Notwithstanding anything contained in sub-section(1), where an 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 any neglect on the part of, any director, manager, secretary or other officer of the company, 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.

It can thus be seen that language used in the above provision of passing any vicarious liability of offence committed by the company is on material aspect identical to language used in Section 141 of the Negotiable Instrument Act, which reads as follows :

41. Offences by companies.(1)If the person committing an offence under Section 138 is a company, 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, as well as 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 person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:

[Provided further that where a person is nominated as a Director of a company by virtue of his holding any officer or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.

(2)

Notwithstanding anything contained in sub-section(1), where any 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, any neglect on the part of, any director, manager, secretary or other officer of the company, 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.

Relying on the decision in case of Saroj Kumar Poddar v. State (NCT of Delhi) and another reported in (2007) 3 Supreme Court Cases 693, and decision in case of K.K. Ahuja v. V.K. Vora and another reported in (2009) 10 Supreme Court Cases 48, it can be seen that in absence of any allegation that petitioners were in-charge of and were responsible to the company for its day to day functioning, their mere status of being the Directors of the company would not make them responsible for any alleged act of the company particularly, when it is pointed out that factory of the company was situated at Anand and petitioners were all through out residing at Mumbai. Additionally, I also find that complaint was filed way back in the year 1997, summons was served to the petitioner only recently. It is stated that the company has also gone sick and principal accused who was in-charge of the company has died.

Considering all these aspects of the matter, complaint at Annexure-A qua the present petitioners is quashed.

Petition is disposed of . Rule made absolute accordingly.

(Akil Kureshi,J.) (raghu)     Top