TMI Blog1968 (3) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the provisions of section 5(1) of the Act. As a result of the search of the petitioner's premises under the provisions of section 19(3) of the Act, certain incriminating documents were seized and a close scrutiny of the documents revealed, according to the department, a number of contraventions of the provisions of the Act. The petitioner was called upon to give full details about the petitioner's connection with one K. S. Mohamed Ismail of Penang. Not being satisfied with the explanation offered, the department proceeded to take proceedings under section 23D. Finally, the department found the petitioner-firm guilty of contravening the provisions of section 5(1) of the Act, relating to restrictions on payments and imposed the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. On January 1, 1953, the partnership firm was dissolved and K. S. M. Ismail continued to have his branch at Madurai. This petitioner firm has nothing to do with the business activities of the Penang firm. The father of the petitioners had transactions ever since 1952 with the said Madurai firm and in the account books of the sole proprietorship concern of the father, there was a folio in the name of K. S. M. Ismail Bros., Madurai, until January 1, 1953, and subsequently in the name of K. S. M. Ismail, Madurai. The accounts were not closed at the time of the death of their father and the petitioners' firm had perforce to continue the accounts. The learned counsel for the petitioners contends that the entire transactions were with the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The action taken by the department against the legal representatives of Thulkarunai (father) is in the nature of enforcement of the doctrine of vicarious liability. The application of the doctrine of vicarious liability in criminal law may be described as actuated by necessity rather than desirability. Criminal responsibility is generally regarded as being essentially personal in character and it is with considerable diffidence that the principle is accepted whereby a man may be found guilty and punished for an offence which is actually committed by another. In Salmond's Jurisprudence, it is stated at page 366 : "... there are two conditions to be fulfilled before penal responsibility can rightly be imposed. The one is the doing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f statutory crimes. It is a matter of construction in each case. It is worth while to quote the words of Atkin J. in Mousell Bros. v. L. N. W. Ry. Co. [1917] 2 KB. 836,845. : "... regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed. " If we apply the above principles to the facts of the instant case, it is clear that the sons of Thulkarunai would not be liable to pay the penalty of Rs. 10,000 imposed on them for the alleged acts of contravention by their father. The department cannot fasten the liability on the sons on the ground that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no provision in the Act itself that the legal representatives of a person who had contravened the provisions of the Foreign Exchange Regulation Act would also be liable for the penalty provided in the Act. Originally, even in the Income-tax Act, there was no such provision. It was only after the decision in Commissioner of Income-tax v. Ellis C. Reid AIR 1931 Bom. 333 that the Income-tax Act was amended, so as to make the legal representatives of an assessee liable to pay the tax due by the assessee. I do not think, therefore, that the department is right in imposing a penalty of Rs. 10,000 on the legal representatives of Thulkarunai Co., which was originally run by the father as a sole proprietorship concern. The writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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