9911796707
TMI Blog2020 (8) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... will nominate the representative to represent the firm. No doubt, it is for the company/Firm to decide who is to represent them in the proceedings. The right of choosing the representative rests solely with the company. Section 305 Sub-clause(ii) authorize the company/Firm to appoint its own representative for the purpose of enquiry or trial and such appointment need not be under the seal of the corporation - In this case, after the demise of A2, who was the Managing Partner of A1 firm, the summons must be sent to A1 firm for representing them. It is admitted that Ms. Saradha Subbash, the partner of M/s. Print Wraps is presently conducting the business and affairs of the firm. Thus, from the reading of Section 63 and 305 of Cr.P.C, it is seen that after the summons are served in the manner prescribed under Section 63 of Cr.P.C, the Corporation may appoint a representative as per Section 305 of Cr.P.C., for the purpose of inquiry or trial. Thus, it is evident that when the accused is a corporate body, it is not for the Court to decide who shall represent corporate body. The Court can issue the summon in the manner prescribed under Section 63 of Cr.P.C, and the representative coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, as per Central Excise Act, show cause notice was issued, adjudication proceedings were initiated, wherein, the accused persons evading duty was confirmed. In this regard, Commissioner of Central Excise passed an order in Original No.43/95 dated 22.02.1995, wherein, in lieu of confiscation, fine was imposed against the first, second and third accused. Added to it, criminal prosecution was launched by the Central Excise Department, wherein the company had been arrayed as A1 and the Managing Director, Mr.Subash arrayed as A2 and Ex-partner of Mr.S.A.Khan arrayed as A3. 3. The contention of the petitioner is that as per Section 9AA of the Central Excise Act, it is mandatory requirement to implead the company/firm as an accused. There cannot be any prosecution against the accused without arraying the Company/Firm as an accused. Further, as per Section 305(3), it is made clear that the method of selecting a person is unique right vested with the Company/Firm and the said power cannot be stretched further to say that the Court has the power to direct any person, whom it considers to be a representative of the company/firm. Further, it is submitted that in this case, no person repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 305(3) Cr.P.C., and given a finding that the power conferred on the Court is to decide whether a person who appears as a representative of the company/firm is or is not a representative of the company or firm. The said power cannot be stretched further to say that the Court has power to direct any person, which it considers to be a representative of the company, to appear on behalf of the company . 5. Moreover, the petitioner/A3 retired in the year 1994, the prosecution, in this case, was launched in the year 1997. As such, the petitioner cannot be compelled to represent A1 firm. Thereby, this Court confirmed the order passed by the Trial Court. 6. Further, it is submitted that the respondent herein filed another petition in Crl.M.P.No.2158/2011 to implead one Saradha wife of Subbash/A2, who was another partner of the firm, to represent A1 firm. The trial Court rejected the impleading petition, by order dated 20.06.2013, held that there is no impediment to proceed further as per Section 305(3) Cr.P.C. Hence, the learned counsel for the petitioner submitted that without arraying the company as an accused, the petitioner cannot be prosecuted. In support of his conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o bring Ms.Saradha Subbash as proposed party to represent the firm. It is for Ms.Saradha Subbash either to appear or to nominate a representative for A1 Firm. But the impleading petition was dismissed, on a wrong notion. Thereafter, the petitioner, by filing one petition or other petition, successfully stalled the proceedings in E.O.C.C.No.166 of 1997. For the past 13 years, there is no representation for A1 Firm. Therefore, he prayed for dismissal of this petition and suitable orders to be issued. 8. Considering the rival submissions and on perusal of the materials, it is seen from the complaint, M/s. Print Wraps is shown as A1. The petitioner contention is that he cannot be prosecuted, is not a sustainable ground. A1 firm had been represented by A2, who was the Managing partner, till his death. After his death, the entire confusion arouse. Though this petitioner is no way affected by summoning Ms. Saradha Subhas to be a representative for M/s. Print Wraps firm/A1, the petitioner opposed the petition in Crl.M.P.No.2158/2011 and the trial Court dismissed the same by order dated 20.06.2013. This Court, by order dated 29.09.2011 in CRL.R.C.No.1256/2003 observed that there is no im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined shall be construed as a requirement that the representative shall be examined. 4. Where a representative of a corporation does not appear, any such requirement as is referred to in sub-section (3) shall not apply. 5. Where a statement in writing purporting to be signed by the managing director of the Corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the Corporation to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section, is filed, the Court shall, unless the contrary is proved, presume that such person has been so appointed. (6). If a question arises as to whether any person, appearing as the representative of a corporation in an inquiry or trial before a Court is or is not such representative, the question shall be determined by the Court . 12. Thus, from the reading of Section 63 and 305 of Cr.P.C, it is seen that after the summons are served in the manner prescribed under Section 63 of Cr.P.C, the Corporation may appoint a representative as per Section 305 of Cr.P.C., for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
