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TMI Blog1988 (8) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... n against seven accused namely, M/s. Pinky Builders, a partnership firm, the three petitioners who are the partners of that firm, one Gian Singh, driver of the truck, Surender Singh and Girraj Shukla, two alleged salesmen of the said firm. The prosecution case stated in brief is that on July 11,1983 at about 3.50 p.m. one truck bearing No. DEL-7232 which was being driven by Gian Singh accused was intercepted by the officers of the Food and Supplies Department of the Delhi Administration and accused Girraj Shukla was sitting by the side of the driver. 100 bags of levy cement were being carried in the truck. The Food and Supplies officials also found one sales register and some cash memo books in the possession of Surendra Singh at that time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold 100 bags of levy cement to Cinesales (Mfg.) Pvt. Ltd., 11, Court Road, Civil Lines, Delhi, at the rate of non-levy cement. (ii) There was a shortage of 14 bags of levy cement and an excess of 14 bags of non-levy cement with the company; and (iii) The accused had maintained duplicate sales registers and cash memo books of non-levy cement, each one of which allegedly amounted to the contravention of the provisions of the Delhi Cement (Licensing and Control) Order, 1982 as punishable under Section 7 of the Act. 4. Section 10(1) of the Act reads as below :- 10(1). If the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time. In the charge sheet as framed by the learned Additional Sessions Judge also the company i.e. the firm M/s. Pinki Builders has not been charged. The company i.e. the firm M/s. Pinki Builders itself not having been charged for the offence in question and no reference to Section 10(1) having been made in the order of charge or in the charge sheet, there could be no question of the present petitioners being charged for the offence under Section 7 read with Section 10(1) of the Act. The Supreme Court in the case The State of Madras v. C.V. Parekh and Another, AIR 1971 S.C. 447, held that in a case in which contravention of the order made under Section 3 of the Act is done by an employee of a company and not by a company itself, conviction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another, (1971) 3 S.C.R. 748, the Supreme Court held that the words incharge of must mean in overall control of the day to day business of the company or the firm . In State of Karnataka v. Pratap Chand and Another 1981 (1) FAC 374, the Supreme Court relied on its decision in Girdhari Lal Gupta s case (supra) and observed that a partner who was not in overall control of the day to day business of the firm could not be proceeded against merely because he had a right to participate in the business of the partnership firm under the terms of the partnership deed. Both these cases no doubt involved consideration of the provisions of other two Acts. In the case of Girdhari Lal Gupta the provisions of Section 23(e) of the Foreign Exchange Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detected. The prosecution has placed a copy of the supplementary partnership deed of the firm M/s. Pinki Builders on the record of the trial court. There is nothing in this deed to show if all the three petitioners or any of them was entrusted with the control for the day to day business of the firm. There is only one material clause in this deed which may be said to have some bearing on the question under consideration. This clause states that the bank account shall be operated by all the parties individually for and on behalf of the firm as a partner. This is a usual clause of a partnership deed embodying the right of the partners to operate the bank account of the partnership firm. This clause obviously cannot be construed to mean that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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