Judgment

SIKRI, CJI.: We disposed of Criminal Appeals Nos. 211 and 212 of 1959 by our judgment dated August 18, 1970* whereby the appeals of Girdharilal Gupta, and Bhagwandeo Tewari against their convictions were dismissed. Girdharilal Gupta put in this review petition stating that the counsel had omitted to bring to our notice the provisions of S. 23C (2) of the Foreign Exchange Regulation Act, 1947-hereinafter referred to as the Act-which has a vital bearing on the case. The judgment in Criminal Appeal No. 211 of 1959 has, therefore, been reopened. We may mention that Bhagwandeo Tewari has not filed a review petition against his conviction, upheld by this Court.

* Reported in AIR 1971 SC. 28

2. Mr. Daphtary contends then on the facts, as found by us, the appellant, Girdhari Lal Gupta, does not come within the purview of S. 23C (1) or S. 23C (2) of the Act. Sections 23C (1) and 23C (2) read as follows:

23C. (1) If the person committing a contravention is a company, every person who, at the time the contravention was committed, was in-charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.

23C. (2) Notwithstanding anything contained in sub-section (1), where a contravention under this Act has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the Company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation - For the purposes of this section-

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm means a partner in the firm.

3. Mr. Daphtary contends that there is no evidence to show that the appellant was in charge of the conduct of the business of the firm at the relevant time and therefore, S. 23C (1) does not apply. He further says that as the appellant was abroad, the contravention took place without his knowledge. We may mention, however, that the defence that he was abroad at the relevant time was not taken in the courts below. At the time of the last hearing learned counsel produced the passport of the appellant before us from which it appears that he was abroad at that time and came back a few days after the alleged contravention.

4. Mr. Daphtary further contends that S. 23C (2) also does not apply because there is no evidence that the contravention took place with the consent or connivance of, or was attributable to any neglect on the part of the appellant. He referred to us a number of authorities of the High Courts in India which have interpreted similar provisions and we shall refer to them later.

5. It seems to us quite clear that S. 23C (1) is a highly penal section as it makes a person who was in-charge and responsible to the company for the conduct of its business vicariously liable for an offence committed by the company. Therefore in accordance with well-settled principles this section should be construed strictly.

6. What then does the expression "a person incharge and responsible for the conduct of the affairs of a company mean"? it will be noticed that the word company includes a firm or other association, and the same test must apply to a director-in-charge and a partner of a firm in-charge of a business. It seems to us that in the context a person in-charge must mean that the person should be in over all control of the da