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2015 (4) TMI 1152 - HC - Central ExciseOffence punishable u/s 120B, 420, 467, 468, 471 and 511 of Indian Penal Code and u/s 15 of the Prevention of Corruption Act, 1988 - principle of vicarious liability - It is alleged in the FIR that said Shri Macwana intentionally and willfully concealed the fact that the unit had not commenced the commercial production in order to cause undue pecuniary advantage to the unit for availing the refund of the duty. Held that: - From the record, it appears that the petitioner is the Managing Director of the company. The company passed a resolution in its Board Meeting and decided to apply for getting excise benefit as per Notification dated 31.07.2001 and therefore the company submitted an application on 24.12.2005. However, from the record, it appears that before the registration of the FIR, an application seeking withdrawal of the benefit, which was sought under Notification dated 31.07.2001, was submitted by the company and therefore the company has not received any wrongful gain on the basis of its earlier application dated 24.12.2005 and therefore no pecuniary loss is caused to the Department. Thus, the ingredients of the alleged offence punishable u/s. 420 of IPC are not attracted. It is also clear from the record and more particularly from the order dated 19.09.2008 passed by the Chief Commissioner, Central Excise that when the Central Excise Department had initiated the proceedings under Section 9 of the Central Excise Act against the company and its officers with regard to the similar set of allegations made in the impugned FIR, the department compounded the offence and therefore the allegations made in the proceedings initiated under Central Excise Act have come to an end. Thus, when the company and its officers including the petitioner have compounded the offence, initiation of proceedings under the provisions of IPC for the same type of allegations cannot be permitted. There cannot be two different prosecutions for the same incident and petitioner cannot be prosecuted twice for the same offence even in different proceedings. Since there is no specific allegation in the FIR or in the chargesheet against the petitioner and merely because the petitioner was the Managing Director of the company, he has been implicated in the offence, the petitioner cannot be made vicariously liable for the act and/or omission on the part of the company for the offence punishable under the provisions of the IPC. The impugned FIR being RC20( A)/2008 – GNR and all proceedings initiated pursuant thereto are nothing but a gross abuse of the process of the Court and therefore in the interest of justice, the same are required to be quashed and set aside - petition allowed - decided in favor of petitioner.
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