Dismissed

Mohammed Sheriff v. the Assistant Commissioner of

Madras HC17 Jul 2013CRL RC/895/2009

Case brief

AI extract

What is this about?

Criminal revision filed against the dismissal of a discharge petition in a Central Excise case. The High Court found no infirmity in the trial court order since the prosecution was at a partly heard stage, dismissing the revision while directing the Magistrate to dispose of the case on merit with topmost priority.

What did the court decide?

Revision dismissed; order of discharge petition dismissed confirmed; case to be disposed on merits with topmost priority.

Mohammed Sheriff Vs the Assistant Commissioner of — Cheque Dishonour | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 17/ 07 /2013

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CORAM

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THE HONOURABLE MR.JUSTICE C.S.KARNAN

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Crl.R.C.No.895 of 2009 &
M.P.No.1 of 2009
1.Mohammed Sheriff
2.Yusuff Sheriff ... Petitioners
Vs.
The Assistant Commissioner of
Central Excise,
Vellore Divison,
Vellore. ... Respondent

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PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C., to call for the records of the Judicial Magistrate-I, Vellore in Crl.M.P.No.2746 of 2008 in C.C.No.388 of 1998 and allow the revision and discharge the petitioners from the proceedings.

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For Petitioners : Mr.T.S.Gopalan and Co. For Respondent : Mr.Y.P.Sekar Special Public Prosecutor (Central Excise)

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O R D E R

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The brief facts of the case are as follows:-

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The respondent herein / The Assistant Commissioner of Central Excise has filed a complaint in C.C.No.388 of 1998, on the file of Judicial Magistrate-I, Vellore, against the four accused, stating that the accused are charged for the offence of manufacture of biris and the removal of the same, illicitly, to the tune of Rs.15,50,88,000/- biris (inclusive of 86,400/- biris under seizure) and evasion of payment of central excise duty to the tune of Rs.5,76,726.15/- in contravention of Rule 9(1), 52-A, 53, 94 and 226 of the Central Excise Rules 1944. The complainant has listed six witnesses and annexed 14 documents in order to prove the

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prosecution case.

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In the said prosecution case, P.W.1, P.W.2, P.W.3 and P.W.4 were examined. Under the circumstances, the accused has filed discharge petition under Section 245 of Cr.P.C., to discharge them from the proceedings and the same has been resisted by the complainant/Assistant Collector, Central Excise, after filing detailed counter statement. The learned Magistrate after hearing the arguments of both sides and on perusing the records and on considering the averments made by the parties, dismissed the said discharge petition in Crl.M.P.No.2746 of 2008.

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Against the dismissal of the said discharge petition, the third and fourth accused have filed the above revision.

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The learned counsel for the revision petitioners, argued that there is absolutely no evidence against the revision petitioner warranting framing of charges under Section 246 of Cr.P.C. Actually, no case has been made out against the revision petitioners herein. P.W.1 had adduced evidence that he did not know who are all the parties of the first accused company and had also stated that he is not aware of who is managing the day to day affairs of the company and as such, there is lacuna in the prosecution case. Actually, there is no prima facie case against the revision petitioner herein and they have been falsely implicated in the case. P.W.1 had admitted that the prosecution against the revision petitioners herein under Section 9AA of the Central Excise and Salt Act is not maintainable. As per the evidence of P.W.1, no charge can be framed against the petitioners herein. The evidence of P.W.2, P.W.3 and P.W.4 had also not implicated the petitioners in the prosecution case. The petitioners have no role to participate in the business of the first accused company. As per the partition deed, the petitioners are not active participants of the affairs of the first accused company. As per Ex.P2, viz., statement of Mohammed Ishaq Sheriff, who is the main accused, it is evident that the revision petitioners herein are not necessary parties. As such, the original complaint is not maintainable against the accused 3 and 4 and the same was not considered by the learned Magistrate.

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The learned counsel for the revision petitioners further contended that authorization letter given by Commissioner, Central Excise to P.W.1 for laying the complaint, refers that the second accused, viz.,Mohammed Ishaq Sheriff alone should be prosecuted along with first accused Company. M/s.M.S.Abdullah Sons beedi factory. According to 9AA of the Central Excise and Salt Acts, in case, a company is prosecuted, the person, who is incharge of the day to day affairs of running of the firm alone should be arrayed as an accused, along with the firm. The proviso to the Section contemplates that any person, who is a partner of the firm is not liable for prosecution, provided he proves that the offence

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was committed without his knowledge or that he had exercised due care to prevent such offence. The learned competent counsel vehemently argued that in the prosecution case, the prosecution witnesses viz., P.W.1 and P.W.2 have admitted that they are not aware as to who is in charge of day to day administration of the affairs of the first accused company. There is no discussion in the ingredients of the complaint about A-3 and A-4. Therefore, on the strength of the prosecution witnesses, 1 to 4, the accused 3 and 4 are entitled to be discharged from the criminal proceedings.

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The learned competent counsel for the respondent herein vehemently contended that as per the partnership deed registered on 01.06.1992, all the four accused have been listed as partners and have agreed to keep themselves actively engaged in conducting the business of the first accused company, as working partners. As such, admittedly, all the partners are actively taking into participation to manage the day to day affairs of the first accused company. The second accused is the Managing Partner, who has given statement that all the partners are engaged in business activity as working partners. Therefore, the prosecution case has been levelled against all the accused. The learned counsel further pointed out that similar petitions had been filed by the accused for the same remedy and it was negatived by this Court. Again, similar petition has been filed by the accused which is nothing but creating multiplicity of proceedings, in order to drag on the prosecution case. Further, both the accused are necessary parties in these proceedings, as the prosecution case is in a partly heard stage. The learned counsel further contended that there is no infirmity in the impugned order passed by the learned Magistrate. The learned Magistrate after well considering the partnership deed, has concluded that the accused are partners in the first accused company.

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On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the trial Court, this Court does not find any shortcomings in the said order. This Court is of the further view that on the side of the prosecution, four witnesses have been examined and as such, the prosecution case is at a partly heard stage. Under the circumstances, this Court is not inclined to interfere with the impugned order passed by the learned Magistrate. However, the accused are entitled for speedy trial as per Article 21 of the Constitution. Therefore, this Court directs the learned Magistrate to dispose the case on merits on the topmost priority basis without being influenced by this Court's discussion.

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In the result, the above revision is dismissed. Consequently, the order passed in Crl.M.P.No.2746 of 2008 in C.C.No.388 of 1998, on the file of Judicial Magistrate-I, Vellore, dated 03.07.2009 is confirmed. Connected miscellaneous petition is closed. Accordingly ordered.

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Sd/-
Asst. Registrar.
/true copy/
Sub Asst. Registrar.
r n s
To
1] The Judicial Magistrate-I,
Vellore.
2] The Asst. Commissioner of Central Excise, Vellore Division,
Vellore.
3] The Special Public Prosecutor, [Central Excise], Chennai.
1 CC To M/s.T.S.Gopalan & co., Advocate SR NO.36155
Crl.R.C.No.895 of 2009
ppa[co]
gp/31.7

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Mohammed Sheriff v. the Assistant Commissioner of

Case brief

What is this about?

What did the court decide?

Mohammed Sheriff v. the Assistant Commissioner of

Case brief

What is this about?

What did the court decide?

What the court decided

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