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TMI Blog1995 (6) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... nued up to 3rd December. The inspection was made in presence of Shri A. Devraj acting Manager and Shri Mohanlal Kumawat Section Incharge/Works Supervisor of the factory. The statement of Shri A. Devraj was also recorded during inspection. On completion of inspection it was noticed that the company has evaded or failed to pay Excise Duty in the tune of Rs. 93,894.09 and, thus, violated S. 9(1)(bb), 9(1)(bbb) and 9(1)(ii) of the Act. After obtaining necessary sanction for prosecution a complaint was filed against the petitioner on September 29, 1989 by the Superintendent (Prosecution) Central Production and Excise Duty. 3.The case was instituted otherwise than on police report i.e. on a private complaint and it was triable as a warrant case. Pre-charge prosecution evidence was recorded by the concerned Magistrate as required under Section 244 of the Code and statement of Shri S.C. Rawat (PW 1), Shri Gajraj Singh Saktawat (PW 2), Shri Gautam Nath (PW 3) and Shri B.L. Sharma (PW 4) were recorded. Out of them, PW 1 to PW 3 are inspecting officers who also made a spot enquiry; while PW 4 Shri B.L. Sharma has filed the complaint after obtaining necessary sanction. The learned Magistrate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) points out that where an offence has been committed by a company and it is proved that the offence was committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer, he shall also be deemed to be guilty of that offence and shall be liable to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Thus, Section 9AA raises presumption of guilt against a person in particular situation narrated there. 6.In Criminal Law the person who commits an offence is only liable for prosecution and punishment. There is no vicarious liability in Criminal Law unless the statute provides so and it takes that within its fold. Section 9AA is in deviation from the general law and creates presumptions in case the offence is committed by a company. The combined effect of Sections 9 and 9AA of the Act, in cases where offences are committed by a company is that the following persons are liable to be prosecuted and punished accordingly : (i) the company and the person who commits an offence; (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge to be groundless. S. Procedure where accused is not discharged. -246. (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused." 10.At pre-charge stage, the Magistrate is required to take all such evidence as may be produced in support of the prosecution. The Magistrate then considers whether a prima facie case was made out or grounds exist to connect the accused with the offence from the evidence referred to in Section 244 of the Code. It is true that at this stage he is not required to go into meticulous consideration of evidence and material produced before him but Section 244 definitely mandates a sincere and honest application of mind or the evidence to see if a prima facie case has been made out to frame a charge or not. If prima facie case is made out, he shall frame charge and if there is no legal evidence or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess." The power to discharge is exercisable under S. 245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction....." It is a fact that Ss. 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to two parties to be heard. The stage for discharge under S. 245, on the other hand, is reached only after the evidence referred to in S. 244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under S. 245(1) is a preliminary one and the test of 'prima facie' case has to be applied. Inspite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary, one Ramesh Advani as a resident-director of the company was named by him. It may be stated here that statement Ex.P 3 of Shri Devraj was recorded by the officer of the Department during inspection of the factory and in that statement he has only stated that detailed informations may be obtained from resident- director Shri Ramesh Advani. PW 4 Shri B.L. Sharma has also admitted his statement that he himself did not make any investigation or enquiry in the case. Thus the statement of Shri B.L. Sharma PW 4, even taken on its face value, does not implicate the petitioner with the commission of the crime. He had no personal knowledge about the facts of the case and he himself did not make any enquiry or investigation. He has simply filed the complaint on the basis of authorisation by the Collector. From his statement recorded at pre-charge stage, it was not prima facie proved that the petitioner committed the offence or that he was incharge of, and responsible to, the company for the conduct of the business of the company or that the offence has been committed with his consent or connivance or otherwise attributable to any neglect on his part. In absence of an evidence, no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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