TMI Blog1986 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... for short " the Act ") against the said firm and its partners. Five complaints were in respect of payment and alleged non-deduction/short deduction and non-deposit of tax to three persons each and the sixth was in respect of the remaining two. These were registered as complaints Nos. 77/1 to 82/1. Learned Metropolitan Magistrate, by order dated May 7, 1983, discharged the accused in Case No. 82/1 relating to payment and non-deduction of tax to two persons mentioned at serial Nos. 16 and 17 of the complaint, holding that according to the statement contained in the complaint itself, the tax had been duly deducted. By order dated November 30, 1983, learned Metropolitan Magistrate held that the authorisation was for prosecuting the accused for non-deduction of tax and not for non-deposit of tax and the complainant could not be allowed to change the character of the complaint. In the remaining five cases, learned Metropolitan Magistrate, after examining the evidence of the complainant, by separate orders, all dated August 20, 1985, came to the conclusion that a prima facie case under section 276B of the Act had been made out in respect of payment of interest without deduction of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore him during the assessment proceedings, prima facie, proves that the accused had not deducted the tax at the rates in force at the time of crediting/making payment of the interest to the said persons. In other words, prima facie, there was contravention of the provisions contained in section 194A of the Act against the accused in all the five cases. Mr. R. N. Mathur, learned counsel for the accused, contended that the entire amount of tax, required to be deducted from the interest paid to the persons mentioned in the complaint, had been deposited to the credit of the Central Government before the filing of the complaint. Sub-section (4) of the section 194A permitted deduction of the excess amount of tax in case of deficient or no deduction previously and, therefore, there was no contravention of the provisions contained in section 194A and the accused could not be charged for an offence under section 276B of the Act. Sub-section (1) of section 194A requires deduction of tax at the rates in force at the time of credit or payment of interest. Sub-section (4) of section 194A is a sort of exception to sub-section (1) of the section. It permits excess or deficient/no deducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be. Is the firm still liable to be prosecuted for such an offence ? Similar question was examined by a Full Bench of this court in Municipal Corporation of Delhi v. J. B. Bottling Co. Pvt. Ltd. [1975] Crl Law journal 1148. It was a case under the Prevention of Food Adulteration Act, 1954. Under section 16 of the said Act, if any person, whether by himself or by any other person on his behalf, imports into India or manufactures for sale or stores, sells or distributes any article of food which is adulterated, he is liable to be punished with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine which shall not be less than Rs. 1,000. Under the proviso in certain cases, the court is competent to impose a sentence of imprisonment for a term less than six months or with fine of less than one thousand rupees or both for adequate and special reasons to be mentioned in the judgment. Under section 17(1), where an offence under the said Act had been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of imprisonment cannot be accepted. Mr. Mathur, learned counsel for the accused, relied on a decision by learned single judge of this court in D. C. Goel v. B. L. Verma [1974] 93 ITR 63. It was a case of prosecution under section 276B of the Act. Learned single judge held that no trial could be held as the company or the firm being a juridical person is not liable to be prosecuted under section 276B of the Act inasmuch as it cannot be imprisoned. This decision was no doubt a decision directly on the point under consideration but cannot be accepted as good law in view of the Full Bench decision of this court in J. B. Bottling Co.'s case [1975] Crl Law journal 1148. Learned single judge in D. C. Goel's case [1974] 93 ITR 63, had relied on the Division Bench decision in Rameshwar Dass Chottey Lal v. Union of India, ILR [1969] Delhi 1196, which was overruled by the Full Bench. It is correct that the decision of the learned single judge in D. C. Goel's case [1974] 93 ITR 63 (Delhi), has not been referred in, the Full Bench case. That, however, makes no difference. The question of law which was examined by the Full Bench was the same. Learned single judge had also relied on a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question for determination in this case. The reasons given by the Full Bench in support of its view equally apply to prosecution for an offence under section 276B of the Act. Following the Full Bench decision, I hold that the firm, though a juridical person, was liable to be prosecuted for an offence under section 276B which provides a minimum punishment of imprisonment. In case of conviction, a sentence of fine only could be imposed on the firm. It was next contended that there were no evidence to prove that the partners of the firm, accused Nos. 2 to 5, were in overall control of the day to day business of the firm, accused No. 1, and in the absence of such evidence, no charge could be framed against those accused. As held by the Supreme Court in State of Karnataka v. Pratap Chand 1981] 128 ITR 573, a person is liable to be convicted for an offence committed by the firm if he was in charge of, and responsible to, the firm for the conduct of the business of the firm or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, the partner concerned. In the present case, it has been specifically averr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x deducted at source to Government account. These provisions have no relevancy whatsoever. As mentioned earlier, learned Metropolitan Magistrate, by order dated November 30, 1983, had dropped the case so far as it related to the non-deposit of tax. Lastly, it was argued that there was no averment or evidence of mens rea which was a necessary ingredient of the offence under section 276B and consequently the accused could not be charged. Generally speaking, mens rea is an essential ingredient of a criminal offence. And it is a sound rule of construction to construe a statutory provision creating an offence in conformity with this rule rather than against it. But there might be offences even without mens rea. The statute itself might be so framed as to indicate that mens rea was not to be considered as an element of a particular offence. The subject-matter of the statute and its aim and object might necessarily exclude the application of the doctrine of mens rea. There might be quasi-criminal offences in which the question of mens rea might not arise. There might be offences in which the compelling considerations of public justice might require its exclusion. " In the large numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays an absolute embargo upon persons who without the special or general permission of the Reserve Bank and after satisfying the conditions, if any, prescribed by the bank bring or send into India any gold, etc., the absoluteness being emphasised, as we have already pointed out, by the terms of s. 24(1) of the Act. No doubt, the very concept of 'bringing' or 'sending' would exclude an involuntary bringing or an involuntary sending. Thus, for instance, if without the knowledge of the person, a packet of gold was slipped into his pocket, is it possible to accept the contention that such person did not bring the gold into India within the meaning of s. 8(1) ? Similar considerations would apply to a case where the aircraft on through flight which did not include any landing India has to make force-landing in India-owing say to engine trouble. But if the bringing into India was a conscious act and was done with the intention of bringing it into India, the mere 'bringing' constitutes the offence and there is no other ingredient that is necessary in order to constitute contravention of section 8(1) than that conscious physical act of 'bringing'. If then under s. 8(1) the conscious physical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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