TMI Blog1970 (8) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... our notice the provisions of Section 23C(2) of the Foreign Exchange Regulation Act, 1947-hereinafter referred to as the Act-which has a vital bearing on-the case. The judgment in Criminal Appeal No. 211 of 1959 has, therefore, been re-opened. We may mention that Bhagwandeo Tiwari has not filed a review petition against his conviction, upheld by this Court. 2. Mr. Daphtary contends that on the facts, as found by us, the appellant, Girdhari Lal Gupta, does not come within the purview of Section 23C(1) or Section 23C(2) of the Act. Sections 23C(1) and 23C(2) read as follows : 23C. (1) If the person committing a contravention is a company, every person who, at the time the contravention was committed, was in-charge of, and was responsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s knowledge. We may mention, however, that the defence that he was abroad at the relevant time was not taken in the courts below. At the time of the last hearing learned Counsel produced the passport of the appellant before us from which it appears that he was abroad at that time and came back a few days after the alleged contravention. 4. Mr. Daphtary further contends that Section 23C(2) also does not apply because there is no evidence that the contravention took place with the consent or connivance of, or was attributable to any neglect on the part of, the appellant. He referred to us a number of authorities of the High Courts in India which have interpreted similar provisions and we shall refer to them later. 5. It seems to us quit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers of the company not in direct charge of the management of the business are immune from the liability for the offence, unless they have contributed to its commission by consent, connivance or neglect. 8. In R.K. Khandelwal v. Stated [1964] 62 A.L.J. 625 D.S. Mathur, J., in construing Section 27 of the Drugs Act, 1940, a provision similar to the one we are concerned with, observed : There can be directors who merely lay down the policy and are not concerned with the day to day working of the Company. Consequently, the mere fact that the accused person is a partner or director of the Company, shall not make him criminally liable for the offences committed by the Company unless the other ingredients are established which ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . To that, Sir, my answer is that I am. The evidence to that end is correct. I shall only add that I alone look after the affairs of this firm. 12. Mr Daphtary says that on this evidence it cannot be held that the appellant was incharge of the conduct of the business. We are unable to agree with him on this point. The appellant has himself stated that he alone looked after the affairs of the firm. This means that he is in charge of the business of the firm within the meaning of the section though there may be a Manager working under him. 13. The question then arises whether the appellant was in charge of the conduct of the business of the firm at the time the contravention was committed. He was not physically present in Calcutta at ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
