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P. Krishnamurthi Vs. Assistant Collector of Central Excise, I.D.O - Court Judgment

LegalCrystal Citation
SubjectCriminal;Excise
CourtChennai High Court
Decided On
Case NumberCriminal Misc. Petition Nos. 904 and 905 of 1978
Judge
Reported in1978(2)ELT628(Mad)
ActsCentral Excise Act, 1944 - Sections 9; Central Excise Rules - Rules 9 and 52; ;Indian Partnership Act - Sections 30(1), 30(2) and 30(3)
AppellantP. Krishnamurthi
RespondentAssistant Collector of Central Excise, I.D.O
Excerpt:
- .....accused are partners of the firm. the petitioner is also being prosecuted as partner of the first accused firm. the officers of the central excise, preventive group, kolhapur, intercepted the lorry kip 4563 while it was being driven along the bangalore-fspoona road on 2-9-1973. the lorry contained bundles of matches. since the driver of the lorry could not produce the gate pass for the transport of the matches, the officers took the lorry to kolhapur and examined it and found it to contain 843 bundles of anil brand matches and 33 bundles of crackers. on investigation it was revealed that a consignment of 157 bundles of anil brand matches had been delivered to bhimarao nan.a chavan of gadhinglaj out of 1,000 bundles of matches despatched by the accused. the officers seized the 843.....
Judgment:

Paul, J.

1. Cri. M.P. No. 904 of 1978 is for quashing the charges framed against the petitioner in C.C. No, 321 of 1977 on the file of the Chief Judicial Magistrate, Ramanathapuram. Crl. M.P. No. 905 of 1978 is a petition to stay the trial of the aforesaid case pending disposal of Crl. M.P. No. 904 of 1978.

2. In CC. No. 321 of 1977, the petitioner is being prosecuted by the respondent for an offence punishable under Section 9(1)(b) and (bb) of the Central Excises and Salt Act. The respondent laid a complaint against petitioner who was the 4th accused in the trial court and three others of whom the first accused is the partnership firm and the second and third accused are partners of the firm. The petitioner is also being prosecuted as partner of the first accused firm. The Officers of the Central Excise, Preventive Group, Kolhapur, intercepted the lorry KIP 4563 while it was being driven along the Bangalore-fsPoona road on 2-9-1973. The lorry contained bundles of matches. Since the driver of the lorry could not produce the gate pass for the transport of the matches, the officers took the lorry to Kolhapur and examined it and found it to contain 843 bundles of Anil brand matches and 33 bundles of crackers. On investigation it was revealed that a consignment of 157 bundles of Anil brand matches had been delivered to Bhimarao Nan.a Chavan of Gadhinglaj out of 1,000 bundles of matches despatched by the accused. The officers seized the 843 bundles of Anil brand matches on the belief that the matches were being transported without payment of the excise duty due on the same. From Bhimarao Nana Chavan 139 bundles of Anil brand matches were recovered. The investigation disclosed that the accused who were manufacturers of the matches seized had removed 100 bundles of such matches without payment of the duty of Rs. 21,500, and had despatched the same in the aforesaid lorry. The accused are thereby said to have committed offences punishable under Section. 9(d) of the Central Excises and Salt Act and contravened Rule 9 of the Central Excise Rules, an offence punishable under Section 9(d)(ii) of the Central Excises and Salt Act, and contravened also the provisions of Rule 52A of the Central Excise Rules, punishable under Section 9(d)(ii) of the Central Excises and Salt Act.

3. The Central Excise Superintendent was examined as P.W. 1. The contention of the fourth accused, the petitioner herein, is that he does not know anything about the transaction. The learned Chief Judicial Magistrate has framed a charge against the accused in the following terms :-

'That you A-1 is a partnership firm, and you A-2 to A-4 are partners of that firm. On 2-9-1973, you A-l to A-4 removed 843 bundles of Anil brand matches along with 33 bundles of crackers to Kolhapur and despatched 157 bundles of Anil brand matches to Bhimarao Nana Chavan of Gadhinglaj without payment of duty in contravention of the provisions of Rule 9 of the Central Excise Rules and without the gate pass in contravention of the provisions of Rule 52-A of the Central Excise Rules and thereby committed an offence, punishable under Section 9(b)(ii) of the Central Excises and Salt Act.'

It is now contended on behalf of the petitioner that the learned Magistrate should not have framed any such charges so far as the petitioner is conceorned in view of the fact that at the time of the entering into the partnership he, the petitioner, was a minor and was represented by his mother and guardian and the licence issued to the first accused firm itself mentions that the petitioner was a minor and was represented by his guardian-mother, and that he, the petitioner, never participated in the working of the first accused firm which was actually being looked after by his elder brother P. Lakshmanan and P.W. 1 himself admitted in cross-examination that Central Excise licences are not issued to minors and. minors cannot look after the affairs of the factory and that he had not seen the petitioner at any time in the factory; nor had the petitioner signed in any documents pertaining to the firm. The licence issued to the Palaniappa Match Industries for manufacture of matches mentions the name of the petitioner and three others; and while mentioning the name of the petitioner and another it is stated that they were minors and that their guardian was P. Seethalakshmi Ammal and the licensee recites that those four persons having undertaken to comply with the conditions prescribed in the Central Excise Rules and any orders issued thereunder and having paid the prescribed licence fee and authorised to manufacture safely matches.

4. P.W. 1 the Excise Inspector has stated in his testimony that licences are not given to minors and that minors cannot attend to any matters connected with the factory and that he had never seen the petitioner in the factory nd had not come across any documents signed by the petitioner.

5. Section 30(1) of the Indian Partnership Act states that a person who is a minor according to the law to which he is subject may not be a partner in a firm, but, by the consent of all the partners for the time being, he may be admitted to the benefits of partnership. Sub-section (2) states that such minor has a right to such share of the property and of the profits of the firm as may be agreed upon, and he may have access to and inspect and copy any of the accounts of the firm. Sub-section (3) states that such minor's share is liable for the acts of the firm, but the minor is not personally liable for any such act. Therefore, merely on the ground that petitioner is a partner of the first accused firm, he cannot be prosecuted for the aforesaid offences. If, however, he has personally done anything in contravention of the Excise Rules and thereby committed any offence under the Excises and Salt Act, no doubt, he can be proceeded against. But in this case, there is absolutely no evidence to show that he had personally contravened any of the provisions of the Excises and Salt Act. In these circumstances, so far as the petitioner is concerned, I am of the view that the prosecution is misconceived. Therefore the charges framed against the petitioner are quashed and the proceedings against him in the aforesaid case are also quashed. In view of the above order in the main petition, no orders are necessary in Crl- M.P. No. 905 of 1978.


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