Judgment:
M. Karpagavinayagam, J.
1. The Madurai District Pandiyan Consumers Co-operative Wholesale Stores Ltd., represented by its Special Officer, the appellant herein, has filed this appeal challenging the judgment of the Special Court dated 5-4-1994 in S.T.C. No. 18 of 1993 convicting the appellant and another under Clause 6 (3) and 14(1)(a) of the Tamil Nadu Scheduled Comodities (Regulation of Distribution by Card System) Order, 1982 read with Section 7(1)(a)(ii) of the Essential Commodities Act and sentencing the appellant to pay a fine of Rs. 2,000/-.
2. The case of the prosecution is as follows :--
(a) The appellant/the first accused is the authorised dealer to distribute essential commodities to the family cardholders and they are doing so through their various fair price shops situate at various places.
(b) One Pandi, the second accused, was the salesman of the fair price shop situate at Prasad Road, Narimedu, Madunal. He was responsible and in charge of the day-to-day affairs of the said fair price shop. He should supply prescribed quantity of essential commodities only to the cardholders registered with the said fair price shop. He should not supply to non-card holders or to those whose cards are not registered with the said shop.
(c) The Tahsildar (Civil Supplies) Madurai North, inspected the said fair price shop and checked the records and family cards with reference to the period from 2-3-1992 to 27-3-1992. On inspection, it was found that the second accused sold 1473 kgs. of rice, 83- kgs. of sugar, 352 kgs. of wheat, 1690 litres of kerosene, 52 kgs. of palmolein to non-card holders. It was detected that he created records as it they were distributed to the cardholders registered with the said fair price shop.
(d) The said Tahsildar examined the cardholders and obtained statement to the effect that they did not receive any supply of essential commodities from the said fair price shop. Therefore, a complaint was given to the police. Accordingly, the police registered a case, investigated the matter and filed a charge-sheet against both the appellant being the authorised dealer and the second accused, who committed the above acts.
3. During the course of trial, on the side of the prosecution P.Ws. 1 to 7 were examined and Exs. P-1 to P.27 were marked. On behalf of the defence, Ex. D-1 was marked.
4. On conclusion of the trial, the Special Court on analysis of the materials, convicted the appellant and the second accused under Clause 6(3) and 14(1)(a) of the Tamil Nadu Scheduled Commodities (R.D.C.S.) Order, 1981 read with Section 7(1)(a)(ii) of the Essential Commodities Act and sentenced them to pay a fine of Rs. 2,000/-each. As against the said judgment, the appellant/first accused has filed this appeal separately.
5. I heard the learned counsel for the appellant and the learned Government Advocate appearing for the respondent.
6. There is no dispute in the fact that the fair price shop in which the inspection was made by P.W. 1 Tahsildar was completely entrusted to the second accused for the day management and he was responsible and in charge for the day to day affairs of the said fair price shop.
7. The evidence adduced by P.Ws. 1 to 7 also would reveal that the second accused alone had made the false entries and fabricated the vouchers as if the essential commodities were supplied to the family cardholders, whereas such a supply was not actually made to the cardholders. These things have been clearly proved by the prosecution through the materials placed before the Special Court.
8. However, there is no material to show that the company, namely, the appellant/first accused being the authorised dealer has played any role in the offence committed by the second accused.
9. Even as per the bye-laws and other provisions, the appellant is the company, which is the authorised dealer, running fair price shops situate at various places for the purpose of distribution of essential commodities to the family card holders. Under those circumstances, merely, because a salesman of a particular shop has committed some offences, it cannot be said that the company or the authorised dealer also is criminally liable.
10. Even without any material, the conviction was imposed upon the appellant only on the basis of Clause 14(1)(a) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982. Clause 14(1)(a) of the said Order provides thus :--
Every authorised dealer shall be held responsible for all the acts of commission and omission of his partners, agents, servants and other persons who are allowed to work in the shop.
11. By virtue of the above provision, it was contended by the prosecution that the authorised dealer also vicariously liable.
12. It is true that the wordings contained in the above clause would go to show that the authorised dealer is responsible for the acts of commission and omission done by the servants. But, it would not mean that the authorised dealer also is liable to be punished under the criminal law, as the criminal liability would be entirely different from the responsibility imposed upon the authorised dealer by virtue of Clause 14(1) of the said order.
13. As stated above, no witness would speak nor any document would indicate the involvement of the appellant/first accused for the offence committed by the second accused. In such a circumstance, the conviction imposed upon the appellant cannot be said to be legal and the same is liable to be set aside.
14. Accordingly, this appeal is allowed. The conviction and sentence imposed upon the appellant is set aside and thereby, the appellant is acquitted. The fine, if any, paid is to be refunded to the appellant.