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TMI Blog1983 (10) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... Director of the first petitioner and is in overall charge of the first petitioner. The third petitioner was its Administrative Officer and the 4th petitioner was its Works Manager at the relevant time. The second Respondent who is accused No. 4 was its Excise Assistant and was attending the duties in respect of excise. The first Respondent who is the Assistant Collector of Central Excise, Kalyan Division I on 6-2-1980 filed a complaint against the petitioners Nos. 1 to 4 and the second Respondent in the Court of the Judicial Magistrate, First Class, Kalyan for the offence under Section 9(b), (bb), (bbb) and (c) of the Central Excises and Salt Act, 1944 on the allegations that the petitioners and the Respondent No. 2 who are the accused in that case had taken credit of Rs. 25,000/- as basic excise duty and Rs. 5,000/- as auxiliary duty, total Rs. 30,000/- on 4-2-1976 in the PLA (personal ledger account) maintained by them and removed excisable goods on which they were liable to pay basic excise duty Rs. 24,343.96 and auxiliary duty Rs. 4,019.81. The accused No. 4 who took the credit in Personal Ledger Account on 4-2-1976 without there being a corresponding deposit, deposited the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner No. 1 and held some administrative posts. The learned Counsel for the Respondent No. 1, on the other hand contends that the averments in para 3 of the complaint and other averments in the complaint were sufficient to disclose their liability for the offences alleged in this case. 6. Before proceeding to consider whether the averments made in the complaint are sufficient to disclose the alleged offence against the petitioners it is necessary to notice the law on the point. Their Lordships of the Supreme Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, A.I.R. 1976 S.C. 1947 stated the law thus : "Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside : (1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, the test is that taking the allegations in the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code." It was a case under the Prevention of Food Adulteration Act. The Food Inspector, Municipal Corporation of Delhi obtained a sample of the toffees manufactured by M/s. Upper Ganges Sugar Mills and those toffees were found to be adulterated. Therefore, the Manager of the Company M/s. Upper Ganges Sugar Mills and the directors of the company were prosecuted. The Manager of the Company was the Respondent No. 1 and the Directors were the Respondents Nos. 2 to 5. The Metropolitan Magistrate before whom the complaint was filed issued process against all the accused. The petition was filed in the Delhi High Court for quashing the proceeding taken against the Respondents Nos. 1 to 5. The Delhi High Court after examining the averments in the plaint found that the facts mentioned therein did not constitute any offence against the petitioners before them and, therefore, they quashed the criminal proceeding against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules made under this Act to supply, (unless which shall be upon him that the information supplied him is true) supplies false information;" It is not disputed before me that the excisable goods were removed without payment of excise duty during the period 4-2-1976 to 25-2-1976. It is also not disputed that in the personal ledger account maintained by the accused No. 4 the credit of Rs. 30,000/- was taken on 4-2-1976 without depositing the corresponding amount with the Bank. The said credit was taken by the accused No. 4 on the advice he had received from the head office on 3-2-1976. It is the case of the petitioners that the accused No. 4 took one credit of Rs. 30,000/- on the basis of the advice from the head office dated 3rd February, 1976 and he took the second credit on the basis of Challan dated 28th January, 1976 which he had received on 4-2-1976. The credit on the basis of the payment under the challan dated 28th January, 1976 was already taken. It is submitted that the accused No. 4 lost sight of this fact and he took another credit on the basis of the challan dated 28th January, 1976 on 4-2-1976. Thus according to the petitioners, there was some misunderstanding on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Managing Director of the Company. As Managing Director of the Company he was liable to pay the excise duty for and on behalf of the Company before removal of the excisable goods. Taking into consideration such position of the accused No. 2 vis-a-vis the Company it cannot be said that he is not at all concerned with the payments of the excise duty and also for the removal of the excisable goods from the warehouse of the Company. The learned Counsel for the petitioners in support of his contention that the petitioners were not responsible for the contravention of the provisions of the Central Excises and Salt Act, 1944 and the Rules framed thereunder, relied on the decision of the Calcutta High Court in Kedar Nath Goenka and others v. Superintendent of Central Excise and others, 1979 Criminal Law Journal 421 = 1978 E.L.T. (J 538) (Cal.). In that case five petitioners and the opposite party No. 3 who were directors of M/s. Premier Irrigation Equipment (Private) Ltd. were prosecuted for the offence under Sections 9(1) and 9C(1) of the Central Excises and Salt Act, 1944. They were sought to be implicated for the commission of the offence under Section 9 of the Act, inasmuch as they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all duties charged and to all penalties in respect of trade and/or business carried on by M/s. Garda Chemicals Private Ltd. under the Central Excises and Salt Act and the Rules framed thereunder. The credit dated 4th February, 1976 for Rs. 30,000/- was taken in the personal ledger account by the accused No. 4 at the advice of the head office and at the end of the month an incorrect statement along with the challan on which the date was altered from 25-2-1976 to 4-2-1976, was sent to the Central Excise office. The goods from the factory were removed as per the orders received from the head office. The petitioner No. 2 was in overall charge of the head office and as such it cannot be said that he had no concern with the removal of the excisable goods from the factory without payment of the excise duty. This was not the case in the decision of the Calcutta High Court relied on by the learned Counsel for the petitioners. The report of the said decision does not indicate that any of the petitioners in that case was the Managing Director and in overall charge of the business of the Company and therefore, that case is distinguishable on facts so far as the petitioner No. 2 is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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