1. This is a revision by accused 1 in C. C. No. 121 of 1950 on the file of the Court of the Sub-Divisional Magistrate of Srikakulam.
2. The prosecution is for an offence under Section 15 (b), Madras General Sales-tax Act. Accused 1, 2 & another who is the son of accused 1 are partners of a firm called Behara Latchanna Patnaick and Sons and Kallepalli Chiranjeevi. The firm was doing business for a very long time & the notice of assessment for the year 1946-47 was served on them on 12-7-1940. Notice was served on Satyanarayana, the son of B.L. Patnaick. Then accused 1 & his son Satyanarayana who themselves constituted a separate firm presented a petition to the Commercial Tax Officer, Vizagapatam admitting the liability and paying half the amount assessed and stated therein that the firm was dissolved on 1-10-1948 and asked for the notice to be issued for the half share of the other partner to accused 2 in the case. For failure to pay the taxes assessed a complaint was laid against accused 1 and 2 and they were convicted for non-payment of the tax.
3. Mr. Dhikshitalu appearing for the petitioner contends that it is not the firm that has been prosecuted but that two of the partners of the firm are individually prosecuted for nonpayment of the tax and such a prosecution cannot lie against them individually. In support of his contention he has relied upon the ruling of Subba Rao J. in -- 'Public Prosecutor v. Jacob Nadar', : AIR1951Mad886 . In that case there were two partners but one of them alone was prosecuted for non-payment of the tax. Subba Rao J. observed that though Jacob might be made liable if the proper procedure had been followed as a partner of the firm on that question he did not express his finalopinion -- Jacob was not liable as the firm was the person who made the default and who should have been prosecuted. Earlier he observed:
'As the defaulter in this case is the firm, the firm should have been prosecuted for contravening the provisions of Section 15'.
He also referred to the Judgment of Chandrasekhara Aiyar J. in -- 'Akula Paddayya Naidu', In re', 1947 2 Mad L.J. 255 on which strong reliance is placed by the learned Public Prosecutor. In the case of Akula Paddayya, 'In re', : AIR1948Mad104 there were two partners and both of them were prosecuted. Subba Rao J. referring to this case has observed:
'As both the partners were made accused, the learned judge presumably treated the firm as accused and convicted both the partners who constituted the firm'.
He further added that in the case before him he could not treat the firm as the accused as one of the accused only was prosecuted in his personal capacity. These observations will apply with equal force to the facts of this case. Behara Latchanna Patnaick and Sons constituted one firm & this firm along with Kellepalli Chiranjeevi constituted another firm which is now assessed and on which tax is levied. To prosecute this firm there are undoubtedly three partners namely accused 1 in this case, his son Satyanarayana who is not an accused before the Court and the other partner, Kallepalli Charanjeevi (accused 2.) If all the three partners had been made accused, then it could well be contended that the firm had been prosecuted. But the omission of one of the partners renders it difficult to say that the firm as such is prosecuted though every partner individually is liable to pay the tax.
On the facts of this case, I must hold that it is not the firm Behara Latchanna Patnaick & Sons and Sri Kallepalli Chiranjeevi that is prosecuted but only two of the partners of the firm namely accused 1 and 2, are prosecuted in their individual capacity. Such a prosecution cannot lie within the ruling of Subba Rao J. in -- 'Public Prosecutor v. Jacob Nadar', : AIR1951Mad886 . I must therefore set aside the conviction and sentence of the petitioner herein who is accused I. Accused 2 has not preferred any revision. Under Sections 435 and 439, Criminal P. C., I take notice of the case of accused 2 also. To make the judgment consistent, I must set aside the conviction and sentence of accused 2 also in this case though he has not preferred any revision. Both the accused are acquitted. The fine if paid, will be refunded.
4. Since in this case the firm, has not been prosecuted and the conviction is being set aside because the two accused are prosecuted individually, this acquittal will not stand in the way of a fresh complaint being laid against the firm B.L. Patnaick and Sons and K. Chiranjeevi and against all the three partners of the firm as such and they being prosecuted for non-payment of the tax. It will not be open to either of these accused or even the other partner who is not joined as an accused to raise any plea under Section 403, Criminal P. C.