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CR.MA/2699/2010	 3/ 5	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
MISC.APPLICATION No. 2699 of 2010
 

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

MAGANLAL
H DOSHI, DIRECTOR & 2 - Applicant(s)
 

Versus
 

M
B PATEL OR HIS SUCCESSOR & 1 - Respondent(s)
 

============================================= 
Appearance
: 
MS ANUJA S NANAVATI for
Applicant(s) : 1 - 3. 
NOTICE SERVED BY DS for Respondent(s) :
1, 
MR SUNIL L MEHTA for Respondent(s) : 1, 
MR KARTIK PANDYA
ADDL. PUBLIC PROSECUTOR for Respondent(s) :
2, 
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CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE ANANT S. DAVE
		
	

 

 
 


 

Date
: 13/04/2010 

 

ORAL
ORDER

1. Rule.

Mr. Sunil Mehta, learned advocate, waives service of rule on behalf of respondent No.1 and Mr. Kartik Pandya, learned APP, for respondent No.2.

2. This petition under Article 482 of the Code of Criminal Procedure, 1973, is filed to quash and set aside the Criminal Case No.4596 of 1997 pending before learned Judicial Magistrate First Class, Ankleshwar for alleged offences punishable u/s. 24, 25, 43, 44 and 47 of the Water (Prevention and Control of Pollution) Act, 1974 (in short the Water Act, 1974 ).

3. So far as averments made in the complaint are concerned with regard to submissions of report and analysis carried out by the authorised officer, there is no dispute. However, Mr. Devang Nanavati learned advocate for applicants submit that allegations levelled against the applicants herein (accused Nos. 4, 5 and 6) are not specific and general in nature. Even it is not averred that applicants are in any manner in charge of day-to-day affairs of the Company or responsible for such affairs.

3.1. Learned advocate further submits that when there are no specific allegations qua applicants with regard to conduct of business/affairs of the Company, permitting proceeding of criminal case before the competent court of law to proceed further will be a travesty of justice and result into undue hardship and agony to applicants.

4. By relying on Section 47 of the Water Act,1974, it is submitted that to make a person criminally liable one of the essential requirement is that such a person at the time of commission of offence is to be in charge of and responsible of day-to-day affairs and conduct of the business of the Company. Since averments in the complaint lack the above ingredients, the impugned complaint deserves to be quashed and set aside.

5. Learned advocate for the applicants also placed reliance on oral judgment dated 4.2.2010 passed by learned Single Judge (Coram: Hon'ble Mr. Justice Akil Kureshi) in Criminal Misc. Application No.14138 of 2009 and submitted that in identical facts and circumstances of the case, the complaint challenged in the said application came to be quashed and set aside.

6. Learned advocate appearing for the Gujarat Pollution Control Board-Respondent No.1 is unable to dispute the above proposition of law.

7. Having heard learned advocates appearing for the parties and considering the facts and circumstances of the case and perusal of the impugned complaint and provisions of Section 47 and 49 of the Water Act, 1974, it appears that there are no specific averments with regard to applicants being in charge of or responsible for the conduct of the business of the Company. It is further revealed that the applicants are stationed at Mumbai and the factory is at Ankleshwar, managed by the Manager concerned. In the decision of Astad Parakh v. State of Gujarat by referring to Section 47 of Water Act, 1974 and Section 141 of Negotiable Instrument Act, in paras 3, 4 and 5 learned Judge has observed as under:

3. 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.

4. 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 :

141. 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.

5. 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.

8. I am in the agreement with the above observations and findings of the learned Judge. So far as the case on hand is by and large similar to the facts of the above case and, therefore, above decision and law laid therein will apply with equal force since the complaint lack necessary ingredients of section 47 of the Act, I deem it just and proper to quash and set aside the proceedings of Criminal Case No.4596 of 1997 pending before learned Judicial Magistrate First Class, Ankleshwar and accordingly the same is quashed and set aside.

9. Petition is allowed accordingly. Rule is made absolute.

[ANANT S. DAVE, J.] //smita//     Top