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Judgment
Somasundaram, J.—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.
The prosecution is for an offence u/s 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.
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 -- The Public Prosecutor Vs. K. Jacob Nadar, . 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 final opinion -- 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 In Re: Akulu Paddayya Naidu, 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 -- The Public Prosecutor Vs. K. Jacob Nadar, . 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.
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 u/s 403, Criminal P. C.