S. Ashok Kumar vs The Commercial Tax Officer (Intelligence) 10, South Zone, Bangalore and Another

Though the matter is posted for admission, since the same can be disposed of on a short question of law, the matter is taken up for final disposal with the consent of the learned Counsel for the petitioner and the learned Additional State Public Prosecutor for the respondents.

The petitioner in the capacity of the Manager of the firm called M/s. Wire House (Mysore Cables), Bangalore, is the accused in C.C. No. 1783 of 2002 before the Special Judicial Magistrate First Class (Sales Tax), Bangalore. The offence alleged against the firm is violation of 29(1)(e) and Section 29(2)(e) and (m) of the Karnataka Sales Tax Act, 1957 (for short, ''the Act''). Learned Counsel for the petitioner has contended that the petitioner Sri S. Ashok Kumar, being the Manager of the firm, cannot be proceeded with the criminal liability, when the firm is a proprietary concern and the proprietor has not been prosecuted by the police. In support of his contention, the learned Counsel has produced photostat copy of the Certificate of Registration, vide Annexure-A, which shows that M/s. Wire House is a proprietary concern and the proprietor is one Sri Prakashchand. Looking into the provisions of Section 29 of the Act especially the opening words "any person who....", it is clear that the person must be responsible for keeping the records, etc., that is to say the proprietor, firm or dealer, etc. Merely because the petitioner is the Manager of the firm, even if there is violation of the provisions of the Act or commission of the offence, in the absence of any specific provision in the Act or creating any obligation on the part of any other person to maintain the records or submit the returns etc., it is to be held that the primary accused would be the proprietor or the dealer himself and as such the prosecution of the Manager alone is illegal especially in the absence of necessary allegations in that regard. This view of mine is supported by the judgment of this Court in the case of Shankar Raj v Joint Commissioner of Commercial Taxes (Intelligence), South Zone, Bangalore and Another, 2003(54) Kar. L.J. 183 (HC).

In view of this pronouncement, as no purpose will be served by prosecuting the petitioner-Manager and as his prosecution will be definitely a harassment for him by making him to attend the criminal trial and later there are chances to be declared him innocent or not liable, exercising the inherent jurisdiction under Section 482 of the Cr. P.C., I quash the proceedings in C.C. No. 1783 of 2002 on the file of the Special Judicial Magistrate First Class (Sales Tax), Bangalore so far as the petitioner is concerned.