G.L. Gupta, J.
1. Through this misc. petition, accused Dharampal and Pushpa Devi seek quashment of the proceedings pending against them in the Court of Addl. Chief Judicial Magistrate, Udaipur under Section 7 read with Section 3 of the Essential Commodities Act, 1955.
2. The relevant facts of the case are these. Shri Khema Ram Vishnoi, Enforcement Inspector on 18-11-79 intercepted a tanker of kerosene oil in village Bikarni. There was no invoice with the tanker. Puran s/o. Champalal was the driver of the tanker and Khuman Singh who was on the tanker disclosed himself to be an employee of M/s. Narendra and Company, Udaipur. Shri Vishnoi found that kerosene oil worth 9,000 Its had been sold in the village. After an enquiry was held, a complaint was filed in the Court of Chief Judicial Magistrate alleging various irregularities and illegalities committed by M/s. Narendra & Co., Udaipur which firm was authorised wholesale dealer and distributor of the kerosene oil. The complaint was filed against 8 persons viz. Puran driver, Khuman Singh, Dharampal, Pushpa Devi, Chhogamal, Sunita, Ashok Kumar and Sri Chand. The petitioners in this petition were shown as partners of the firm M/s. Narendra & Co., Udaipur. After the accused persons appeared, the statement of Khema Ram, Enforcement Inspector, was recorded. By the order D/- 9-3-84 Ashok Kumar, Chhogamal and Sunita who, had been disclosed as partners of M/s. Narendra & Company were discharged. By the same order Khuman Singh and Puran, employees of M/s. Narendra & Co., were also discharged. It was ordered that charges shall be framed against Dharampal, Pushpa Devi and Sri Chand under Section 146(1) read with Section 3 of the E. C. Act. However, by the subsequent order D/- 21-4-84 the trial Court reversed its earlier order and discharged Sri Chand also. It is not understood, as to how the trial Court could review its own order of framing charge against him. However, it appears that the State was satisfied with that order, and it did not challenge the same.
3. Be that as it may, the case proceeded against Dharampal and Pushpa Devi, petitioners. They made an application that they should also be discharged. The learned Addl. Chief Judicial Magistrate vide order D/- 15-5-86 rejected their application and framed charges against them on 5-3-87.
4. Mr. Thakur, vehemently contended that the two petitioners were not the partners of M/s. Narendra & Co. on the date of checking, and therefore, the proceedings against them should be quashed. To support his contention, he referred to certain documents, viz. a copy of the entry of register issued by the Registrar of Firms on 20-6-83, application for licence Ex. P.-16 and the licence Ex. P-15. Mr. Thakur pointing out that in the complaint it has nowhere been stated that the petitioners were incharge and were responsible to the partnership firm for the conduct of business urged that the proceedings against them are abuse of the process of the court and should be quashed.
5. Learned Public Prosecutor, on the other hand, pointing out that the two persons disclosed as partners of M/s. Narendra & Co. have already been discharged by the trial Court, and admittedly at one point of time the petitioners were partners of the firm, canvassed that the trial against them should not be quashed.
6. I have carefully considered the above arguments. The application form for the renewal of the licence of kerosene oil Ex. P-16 was made on 17-11-73. In the application, Dharampal, Chhogamal, Sunita and Pushpa Devi were shown as partners of the firm. In the licence Ex. P-15 however the names of the partners of the firm are not mentioned. The petitioners have brought on record a copy of the entry of the register under Section 67 of the Indian Partnership Act issued by the office of Registrar of firms, a reading of which makes it clear that on 1-4-78 Sri Chand and Dasu Mai were the only partners of the firm. They had joined the firm on that day. The names of the petitioners as partners were not shown in that list. The date of the commission of the offence as disclosed in the complaint is 17-11-79. There is nothing on record to presume that the two petitioners were partners of the firm on the said date of checking. It may be that up to the year 1973 when the licence was renewed, the petitioners were the partners of the firm. By this, it cannot be presumed that they continued to be partners up to 1979. It is significant to point out that in his cross examination Khema Ram admits that he did not see Pushpa Devi and Dharampal sitting or working at M/s. Narendra & Co., Udaipur. On the contrary, the copy of the list of partners issued by the office of the Registrar of Firms, which is a public document, establishes that the two petitioners were not partners of the firm M/s. Narendra & Co. from 1-4-78. The prosecution has not brought any material on record to show that the two petitioners were the partners of the firm of M/s. Narendra & Co. on the date of checking.
7. Simply because Ashok Kumar, Chhogamal and Sunita have been discharged by the trial Court, it cannot be presumed that the two petitioners constituted the partnership firm. The burden to establish that the petitioners were the partners of the firm M/s. Narendra & Co., Udaipur, lay on the prosecution. The prosecution has failed to bring any material on record to establish that Dharam Pal and his wife Pushpa Devi were the partners of the firm. It may be that Sri Chand has been discharged by the Court but that is no ground to allow the proceedings to continue against the petitioners. If the prosecution thought that the order of discharge passed in favour of Sri Chand was wrong, it ought to have challenged the same.
8. Moreover, in the complaint even it has not been alleged that the petitioners were responsible and incharge to the conduct of business of the firm. It has been the case of the petitioners from very beginning that they were not the partners of the firm and they have been falsely roped in the case. It has been held in the preceding paras that the prosecution has not brought on record any material to establish that the petitioners were partners of the firm M/s. Narendra & Co. on the date of checking. Therefore, the continuance of the proceedings against the petitioners will be nothing but abuse of the process of the court.
9. Consequently, the petition is accepted and the proceedings against the two petitioners are quashed.