ORDER :

1. This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the order of taking cognizance and issue of process dated 14.02.2012 passed by the Civil Judge and JMFC, at Nelamangala, Bengaluru Rural District in C.C. No. 323/2012 for the offences punishable under Sections 41(2) and 43 of Water (Prevention and Control Pollution) Act, 1974 (‘the Act’ for short) and quash the entire proceedings insofar as the petitioners are concerned and pass such other relief/s as this Court deemed fit in the facts and circumstances of the case.

2. The factual matrix of the case is that the respondent had initiated the proceedings against the petitioners herein by filing a complaint invoking Sections 25 and 26 of the Water Prevention and Control of Pollution Act, 1974, making the allegation that the offences are punishable under Sections 41 and 44 of the Act against the petitioners herein and also accused No. 3 for violation of Section 25(1) of the said Act and also the offences punishable under Sections 41 to 44 of the Act against accused Nos. 1 to 3 for violation of Section 33A of the Act regarding non compliance of the directions of the complainant- Board.

3. Learned Magistrate, after considering the averments made in the complaint and also the documents, vide order dated 14.02.2012 passed an order of taking cognizance and comes to the conclusion that sworn statement of the complainant is dispensed with under Section 200(a) of Cr.P.C. and thereafter, considering the material available on record took cognizance of the offence against the petitioners herein and other accused.

4. Learned counsel for the petitioners would vehemently contend that the petitioner, particularly, second petitioner is not responsible for any violation of the provisions of the Act since there is no any specific averment in the complaint that he was in charge of the affairs of the Company and the petitioner No. 2 was only the Director of the Company. The complaint dated 07.02.2012 is filed after seven years of the incident and according to the complaint averments, the allegation made is pertinent to the year 2006. Thus, it clearly discloses, that with mala-fide intention, the complaint is filed.

5. In support of the contention, learned counsel also relied upon the judgment of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Another, 2005 AIR SCW 4070, wherein it is held that the Director of the Company is not deemed to be vicariously liable merely because by virtue of office he holds unless the specific averments are made in the complaint that he was in charge of the affairs of the Company. Learned counsel also brought to the notice of this Court Para Nos. 19 and 20 of the judgment, wherein the Apex Court also discussed with regard to Section 141 of the Act.

6. Learned counsel also relied upon the judgment of the Madhya Pradesh, Jabalpur High Court in the case of M/s. Daawat Foods Limited vs. M.P. Pollution Control Board decided on 05.02.2018 and brought to the notice of this Court Para No. 8, wherein the High Court held that Section 47 is largely pari materia with Section 141 of the Act, 1881. Learned counsel also brought to the notice of this Court Para No. 19, wherein the High Court has discussed the judgment of the Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Limited vs. Neeta Bhalla and Another and observed with regard to provisions of the Water Act as Section 47, providing for vicarious liability of the Directors and their prosecution for offences committed by Companies is in pari matria with Section 141 of the Act, 1881, in which Hon’ble the Supreme Court has held that there must be a specific averment that the Director was a person in charge of and responsible for the conduct of the business of the Company.

7. Learned counsel referring to these two judgments would vehemently contend that there is no specific averment in the complaint that the Director was in charge of the affairs of the Compan