Skip to main content

All partners can't be made accused: HC

All the partners of a company cannot be made accused in a criminal case arising out of a defective product unless there is specific allegation in the complaint regarding responsibility of each of the partners in the conduct of business, the Kerala high court has held.

The ruling by Justice K Ramakrishnan came after considering a petition filed by Mukesh Bhagubhai Patel, Miteshbhai Jeshingbhai Patel, and Gargiben Atulbhai Patel, who are partners of Ahmedabad-based Indica Laboratories.

In the petition filed in the high court, they had challenged the case against them on the file of Karunagappally judicial first class magistrate court naming them as the third, fifth, and sixth accused, respectively.

The case was registered on a complaint filed by Kollam drugs inspector alleging sale of a substandard drug, thereby violating provisions of Drugs and Cosmetics Act, 1940.

Appearing for the petitioners, advocate V V Raja argued that they are only sleeping partners and they have nothing to do with the day-to-day conduct of the business and that it was another person who was the working partner. There is no allegation in the complaint to come to the conclusion, even prima facie, that the petitioners have got anything to do with the day-to-day business, the counsel contended.

Against this, public prosecutor Sareena George submitted that as per the Act the burden is on the accused to prove that the offence was committed without their knowledge and consent.

Quashing the case against the petitioners, the court held that the case against them is not maintainable in the absence of any specific allegation regarding their role in the conduct of the business. Merely because they are partners, they cannot be proceeded against and the case against them is liable to be quashed, the court held.

Further, the court pointed out that while it is the burden of the accused to prove that the offence was committed without his knowledge as per Section 34 of the Act, the complaint must mention the act of each partner in the conduct of business. Only if such an allegation is there, the burden shifts to the partner to prove that the act was done without his consent or knowledge, the court held.

The ruling by justice K Ramakrishnan was after considering a petition filed by Mukesh Bhagubhai Patel, Miteshbhai Jeshingbhai Patel, and Gargiben Atulbhai Patel, who are partners of Ahmedabad-based Indica Laboratories.

In the petition filed to the high court, they had challenged the case against them on the file of Karunagappally judicial first class magistrate court naming them as the third, fifth, and sixth accused, respectively.

The case was registered on a complaint filed by Kollam drugs inspector alleging sale of a substandard drug, thereby violating provisions of Drugs and Cosmetics Act of 1940. Appearing for the petitioners, advocate VV Raja argued that they are only sleeping partners and they have nothing to do with the day to day conduct of the business and that it was another person who was the working partner.

There is no allegation in the complaint to come to the conclusion, even prima facie, that the petitioners have got anything to do with the day to day business, the counsel contended.

Against this, public prosecutor Sareena George submitted that as per the Act the burden is on the accused to prove that the offence was committed without their knowledge and consent.

Quashing the case against the petitioners, the court held that the case against them is not maintainable in the absence of any specific allegation regarding their role in the conduct of the business. Merely because they are partners, they cannot be proceeded against and the case against them is liable to be quashed, the court held.

Further, the court pointed out that while it is the burden of the accused to prove that the offence was committed without his knowledge as per section 34 of the Act, the complaint must mention the act of each partner in the conduct of business. Only if such an allegation is there, the burden shifts to the partner to prove that the act was done without his consent or knowledge, the court held.

Article referred: http://timesofindia.indiatimes.com/city/kochi/All-partners-cant-be-made-accused-HC/articleshow/35039657.cms

Comments

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...

Court approached in the early stages of arbitration will prevail in all other subsequent proceedings

In National Highway Authority of India v. Hindustan Steelworks Construction Limited, the Hon'ble Delhi High Court opined that once the parties have approached a certain court for relief under Act at earlier stages of disputes then it is same court that, parties must return to for all other subsequent proceedings. Language of Section 42 of Act is categorical and brooks no exception. In fact, the language used has the effect of jurisdiction of all courts since it states that once an application has been made in Part I of the Act then ―that Court alone shall have jurisdiction over arbitral proceedings and all subsequent applications arising out of that agreement and arbitral proceedings shall be made in that Court and in no other Court. Court holds that NHAI in present case cannot take advantage of Section 14 of the Limitation Act, 1963 for explaining inordinate delay in filing present petition under Section 34 of this Act in this Court.

Procedure to be followed on admissibility of additional evidence at appeal stage

In The Corporation of Madras vs M. Parthasarathy & Ors., the trial court had allowed the respondent company to file evidence in the form of photocopies and had dismissed all the four suits filed by the respondents with costs as the evidence were in the form of photocopies and were objected to by the respondents. On appeal the Additional District Judge allowed the respondents to file additional evidence in the form the original documents of the earlier admitted photocopies and based on the same allowed the appeal. In its turn the High Court also dismissed the appeal filed by the appellants who in turn approached the Supreme Court. The Supreme Court decided that the first Appellate Court committed two jurisdictional errors in allowing the appeals.  Referring to earlier judgements of the Supreme Court in Land Acquisition Officer, City Improvement Trust Board vs. H. Narayanaiah & Ors., , Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineri...