Sri Vikram Kundalikrao Javale Vs Mohammed Kibria

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NC: 2025:KHC:26228 CRL.P No. 13 of 2023 C/W CRL.P No. 12491 of 2022 CRL.P No. 56 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MS. JUSTICE J.M.KHAZI CRIMINAL PETITION NO. 13 OF 2023 (482(Cr.PC) / 528(BNSS)) C/W CRIMINAL PETITION NO. 12491 OF 2022 CRIMINAL PETITION NO. 56 OF 2023

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IN CRL.P No. 13/2023

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BETWEEN:

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SRI VIKRAM KUNDALIKRAO JAVALE AGED ABOUT 54 YEARS GENERAL MANAGER (COMPLEX / ACIDS / R & D) R C F LIMITED, TROMBAY MUMBAI-400074

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…PETITIONER

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(BY SRI. CHANDRASHEKAR H B, ADVOCATE)

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Digitally signed by REKHA R Location: High Court of Karnataka

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AND:

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MOHAMMED KIBRIA S/O MOHAMMED YAHIYA AGED ABOUT 62 YEARS, AGRICULTURE OFFICER-CUM-FERTILIZER SUPERINTENDENT, SOOLIBELE RAITHNA SAMPARKA KENDRA HOSAKOTE TALUK-562114

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…RESPONDENT

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(RESPONDENT SERVED)

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO QUASH THE ENTIRE

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NC: 2025:KHC:26228 CRL.P No. 13 of 2023 C/W CRL.P No. 12491 of 2022 CRL.P No. 56 of 2023

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HC-KAR

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PROCEEDINGS AS AGAINST THE PETITIONER IN C.C.NO.620/2017 REGISTERED ON THE BASIS OF THE PRIVATE COMPLAINT FILED U/S 200 OF CR.PC BY THE 2^nd RESPONDENT PENDING ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, HOSAKOTE VIDE ANNEXURE-A.

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IN CRL.P NO. 12491/2022

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BETWEEN:

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SRI KOTRESHA H N SENIOR MANAGER MARKETING RASHTRIYA FERTILIZERS AND CHEMICALS LTD REGIONAL OFFICE 174, 2ND FLOOR 8 FEET ROAD, M.L.A LAYOUT R.T.NAGAR, BENGALURU-560 032

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...PETITIONER

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(BY SRI. CHANDRASHEKAR H B, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY ASSISTANT DIRECTOR

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FOR AGRICULTURE AND FERTILIZER INSPECTOR SAKALESHPURA TALUK HASSAN DISTRICT

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...RESPONDENT

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(BY SRI.VENKAT SATYANARAYAN.A, HCGP)

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO QUASH ENTIRE PROCEEDINGS AS AGAINST THE PETITIONER IN C.C.NO.259/2017, REGISTERED ON THE BASIS OF THE PRIVATE COMPLAINT FILED U/S 200 OF CR.P.C. BY THE RESPONDENT PENDING ON THE FILE OF CIVIL JUDGE AND J.M.F.C., SAKALESHPURA AS PER ANNEXURE A.

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NC: 2025:KHC:26228 CRL.P No. 13 of 2023 C/W CRL.P No. 12491 of 2022 CRL.P No. 56 of 2023

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HC-KAR

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IN CRL.P NO. 56/2023

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BETWEEN:

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SRI VIKRAM KUNDALIKRAO JAVALE AGED ABOUT 54 YEARS GENERAL MANAGER (COMPLEX / ACIDS / R & D) R C F LIMITED, TROMBAY MUMBAI-400074

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...PETITIONER

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(BY SRI. CHANDRASHEKAR H B, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY FERTILIZER INSPECTOR AND AGRICULTURAL OFFICER (I/C), RAITHA SAMPARKA KENDRA HUDUKERE, VIRAJPET TALUK KODAGU DISTRICT

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...RESPONDENT

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(BY SRI.VENKAT SATYANARAYAN, HCGP)

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO QUASH THE ENTIRE PROCEEDINGS AS AGAINST THE PETITIONER IN C.C.NO.490/2021 REGISTERED ON THE BASIS OF THE PRIVATE COMPLAINT FILED U/S 200 OF CR.P.C. BY THE RESPONDENT PENDING ON THE FILE OF CIVIL JUDGE AND J.M.F.C., PONNAMPET VIDE ANNEXURE-A.

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THESE PETITIONS, COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE J.M.KHAZI

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HC-KAR

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COMMON ORDER

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In these petitions filed under Section 482 of the Code of Criminal Procedure, accused have sought for quashing of criminal proceedings initiated against them for the offences punishable under Clauses of Fertilizer (Control Order) and under Section 3 and 7 of the Essential Commodities Act.

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The petitioner in Crl.P.No.12491/2022 is

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arraigned as accused No.3 in C.C.No.259/2017 on the file of Civil Judge and JMFC, Sakaleshpur.

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The petitioner in Crl.P.No.13/2023 is arraigned

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as accused No.3 in C.C.No.620/2017 on the file of Prl.Civil

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Judge and JMFC, Hoskote.

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The petitioner in Crl.P.No.56/2023 is arraigned

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as accused No.1 in C.C.No.490/2021 on the file of Civil Judge and JMFC, Ponnampet, Kodagu.

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HC-KAR

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While the petitioner in Crl.P.No.12491/2022 is

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prosecuted in his capacity as the Senior Manager Marketing, the petitioner in remaining two petitions is prosecuted in his capacity as the General Manager of Rashtriya Chemical and Fertilisers Limited.

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The allegations against the petitioners are that when complainant collected samples of fertilisers manufactured by the Rashtriya Chemical and Fertilisers Ltd, they found to be not in accordance with the standard prescribed by law and thereby they have violated the provisions of Fertiliser Control Order r/w Section 3 and 7 of the Essential Commodities Act.

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In support of the petitions, among the other

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grounds, the petitioners have contended that as required under Section 10 of the Essential Commodities Act, unless

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the company is arraigned as accused, the vicarious liability cannot be fastened on them. In support of their

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HC-KAR

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contention, the petitioners have relied upon the following

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orders passed by Co-ordinate Bench of this Court:

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(i) Mahadevappa Vs. The State of Karnataka

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( Mahadevappa )¹

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(ii) Shri.Bireshwar Banerjee Vs. Karnataka State Government Rep. by the Fertilizer Inspector cum Assistant Director of Agriculture.

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( Bireshwar Banerjee )²

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In this regard, the learned High Court

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Government Pleader representing the respondent State fairly conceded that Company is the necessary party and in the absence of company, the petitioners cannot be prosecuted. He further submitted that complainant may be permitted to file a fresh complaint by arraigning company as a party.

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Heard arguments and perused the record.

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1 Crl.P.No.201037/2021 Dt:02.09.2021

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2 Crl.P.No.102568/2022 Dt:14.09.2022

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NC: 2025:KHC:26228 CRL.P No. 13 of 2023 C/W CRL.P No. 12491 of 2022 CRL.P No. 56 of 2023

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HC-KAR

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Undisputedly, the allegations are that when

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the samples of the fertilisers manufactured by Rashtriya Chemical and Fertiliser Ltd was collected and examined by the FSL, they were found not complying with the standards prescribed and therefore in their capacity as the Senior Marketing Manager and General Manager of the said company, petitioners are liable which are punishable under the provisions of Section 3 and 7 of the Essential Commodities Act.

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Section 10 of the Essential Commodities Act, 1955, deals with offences by companies and it reads as follows

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"10. Offences by companies.—

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(1) If the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

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Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or

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NC: 2025:KHC:26228 CRL.P No. 13 of 2023 C/W CRL.P No. 12491 of 2022 CRL.P No. 56 of 2023

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HC-KAR

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that he exercised all due diligence to prevent such contravention.

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(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

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Explanation.—For the purposes of this section,

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(a)“company" means any body corporate, and includes a firm or other association of individuals; and

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(b)“director" in relation to a firm means a partner in the firm."

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The plain reading of Section 10 of the Essential Commodities Act, 1955 makes it evident that whenever contravention is by a company, then every person who at the time of the contravention committed, was in charge of and responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against

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HC-KAR

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and punished accordingly. Therefore, petitioner is being made liable on account of he being an employee of the company in question and as such until and unless company is arraigned as accused, petitioner cannot be held responsible.

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In fact, the Hon'ble Supreme Court in Aneeta Hada Vs Godfather Travels and Tours Private Ltd ( Aneeta Hada )³ , while considering the offence under Section 138 of N.I Act held as follows:

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"53. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant.

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56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless

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3 (2012) 5 SCC 661

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NC: 2025:KHC:26228 CRL.P No. 13 of 2023 C/W CRL.P No. 12491 of 2022 CRL.P No. 56 of 2023

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HC-KAR

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they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term "as well as" in the Section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words "as well as" have to be understood in the context.

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59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so n the basis of the ratio laid down in C.V.Parekh [(1970) 3 SCC 491: 1971 SCC (Cri) 97)] which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualified as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove."

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Even though this decision was rendered in a

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petition arising out of Section 138 of N.I Act, the ratio is applicable to the case on hand.

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NC: 2025:KHC:26228 CRL.P No. 13 of 2023 C/W CRL.P No. 12491 of 2022 CRL.P No. 56 of 2023

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HC-KAR

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In the light of the ratio in Aneeta Hada ,

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referred to supra and also the fact that as per Section 10 of the Essential Commodities Act, when company is not made a party, the continuation of the proceedings against

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the petitioners would amount to abuse of the process of the Court. However, the complainant is at liberty to file a fresh complaint by arraigning the company as accused and proceed against the petitioners in accordance with law and accordingly the following:

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In the result, petitioners succeed and

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accordingly, the following:

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ORDER

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(i) Crl.P.No.12491/2022 filed by accused No.3, Crl.P.No.13/2023 filed by accused No.3 and Crl.P.No.56/2023 filed by accused No.1 under Section 482 Cr.P.C. are allowed.

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(ii) The entire proceedings in C.C.No.259/2017 on the file of Civil Judge

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NC: 2025:KHC:26228 CRL.P No. 13 of 2023 C/W CRL.P No. 12491 of 2022 CRL.P No. 56 of 2023

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HC-KAR

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and JMFC, Sakaleshpur is hereby quashed so far as against accused No.3.

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(iii) The entire proceedings in C.C.No.620/2017 on the file of Prl.Civil Judge and JMFC, Hoskote is hereby quashed so far as against accused No.3.

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(iv) The entire proceedings in in C.C.No.490/2021 on the file of Civil Judge and JMFC, Ponnampet, Kodagu is hereby quashed so far as against accused No.1.

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(v) However, the complainant is at liberty to file a fresh complaint by arraigning the company as accused and proceed against the petitioners in accordance with law

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(vi) The Registry is directed to send a copy of this order to the trial court through e-mail.

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Sd/(J.M.KHAZI) JUDGE

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RR

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List No.: 1 Sl No.: 58

Sri Vikram Kundalikrao Javale v. Mohammed Kibria

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Sri Vikram Kundalikrao Javale v. Mohammed Kibria

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