State of Maharashtra vs Patheja Forgings and Auto Parts

R.G. Sindhakar, J.—These appeals arise out of the decision rendered by the Chief Judicial Magistrate, Pune, in Criminal Case No. 18923 of 1980 and other connected cases bearing Criminal Case Nos. 18924/80, 18925/80 and 18926/80. A private complaint was filed by the State of Maharashtra through Shri M.Y. Kakade, Assistant Collector, Central Excise & Customs, Preventive Headquarters, Pune, against the three Respondents. Respondent No. 1 was a company and Respondent Nos. 2 and 3 were its Directors. It was urged that they committed an offence u/s 9(a)(b)(bb)(bbb)(c) and (d) of Central Excises and Salt Act read with Rule 174 of the Rules framed under the aforesaid Act punishable u/s 9(i)(ii) of the Central Excises and Salt Act (hereafter referred to as "the said Act"). The complainant case was that the accused No. 1 is a Private Limited Company. It was having a factory in the Industrial block of Bhosari. Respondent Nos. 2 and 3 were Directors of the said Company. Since 1972 the accused started manufacturing or producing electric wiper motors after importing components from Japan and Germany. Accused did not possess the relevant licence and, therefore, contravened the provisions. This was noticed on 30th April 1977 when the Central Excise Officers, Pune visited the factory premises of the accused No. 1. They, therefore, started departmental adjudication proceedings and also filed a complaint in the court of law. In the departmental proceedings a penalty of Rs. 5,000/- was imposed on accused No. 1. Earlier the learned Magistrate discharged the accused against which a revision application was filed by the State and after the Sessions Court directed the learned Magistrate to frame the charge, the learned Magistrate framed the necessary charge as directed by the learned Sessions Judge and recorded the evidence.

After recording the evidence, he was of the view that the prosecution failed to prove the charge levelled against the accused and, therefore, acquitted them. Aggrieved by this order of acquittal, the State has preferred these appeals in this Court. The learned Additional Public Prosecutor and the learned Advocate for the Respondents have been heard by me. It is not necessary to dwell at length on the oral evidence adduced by the parties. The contention of the appellant was that the electric wiper motors fall in the category No. 30 of the First Schedule of the Act and the learned Magistrate, therefore, ought to have held the accused Respondents guilty of the same. However, it was pointed out to me by the learned Advocate for the Respondents accused that the charge has referred to Entry No. 34A of the First Schedule and not 30. According to the learned Advocate for the Respondent, the learned Chief Judicial Magistrate was specifically directed to frame a charge with reference to that entry and not Entry No. 30. In view of this position, it would not be open to the State to urge that the charge ought to have had a reference to Entry No. 30. I think the submission is sound and there is no satisfactory reply to this part of the argument advanced by the learned Advocate for the Respondents-accused.

If that be the case, the Counsel referred to the admission given by Shri Joshi who initiated the prosecution. He has in the course of his evidence admitted and to this admission a reference has been made by the Chief Judicial Magistrate that the Item 30 was the proper item and not 34A of the First Schedule. If that be the position, there is hardly any escape for the prosecution from the situation in which it has landed itself. If it is admitted that Entry 34A was not attracted, then there is in my view, the end of the prosecution and if that be so, the learned Magistrate, in my view, was right in holding the accused not guilty of the charge levelled against them. With this, the matter should end and it is not necessary to deal with any of the aspects of the matter. The connected appeals also raise the same point and in view of the observation made above, they also will meet with the same fate.

The appeals, are, therefore, dismissed and the orders passed by the learned Chief Judicial Magistrate on 30th November 1982 acquitting the accused of the offences with which they are charged are upheld.