Heard the learned Senior counsel Sri.Udaya Holla

appearing for the petitioner.

2.

The learned Senior counsel would submit that a

co-ordinate Bench of this Court in Crl.P.No.6211/2016,

disposed of on 29.03.2021, against the co-accused, has already

quashed the very same complaint, on the score that the

company is not made as a party. Therefore, the same finding

would become applicable to this case as well.

3.

The co-ordinate Bench of this Court has held as

follows:

<7.

So far as violation of Section 49(1)(b) of

the Act in filing the complaint, he relies upon the

following judgments of the Hon'ble Supreme Court:

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i) Aneeta Hada vs. Godfather Travels

and Tours Pvt. Ltd¹

ii) Pepsico India Holdings (P) Ltd. vs.

Food Inspector²

8.

Per contra, Shri.Rohith B.J., learned

HCGP submits that the company was not made party

in the complaint. He further submits that the

petition

may

be

disposed

of

permitting

the

respondent to implead the company as the accused

in the complaint.

9.

Admittedly, the petitioner is arrayed as

accused in the case on his alleged vicarious liability

under the Companies Act. Further, Pepsi company

which is responsible for business is not arrayed as

accused in the complaint.

10.

Section 49 of the Legal Metrology Act,

2009 which deals with the offence by the Companies

and power of the Court to publish name, place of

business etc for the companies convicted. Section

49(1) and (2) of the Act are relevant for the purpose

of this case. They read as follows:

<49. Offences by companies and

power of court to publish name, place of

business, etc., for companies convicted.

1 (2012)5 SCC 661

2 (2011)1 SCC 176

- 4 -

(1) Where an offence under this Act has been

committed by a company,-

(a) (i) the person, if any, who has been

nominated under sub-section (2) to be in

charge

of,

and

responsible

to,

the

company for the conduct of the business

of the company (hereinafter in this section

referred to as a person responsible); or

(ii) where no person has been nominated,

every person who at the time the offence was

committed was in charge of, and was

responsible to, the company for the conduct

of the business of the company; and

(b) the company,

shall be deemed to be guilty of the

offence 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

any punishment provided in this Act if he

proves

that

the

offence

was

committed

without his knowledge and that he exercised

all due diligence to prevent the commission of

such offence.

(2) Any company may, by order in

writing, authorise any of its directors to

exercise all such powers and take all such

- 5 -

steps as may be necessary or expedient to

prevent the commission by the company

of any offence under this Act and may give

notice to the Director or the concerned

Controller or any legal metrology officer

authorised in this behalf by such Controller

(hereinafter in this section referred to as the

authorised officer) in such form and in such

manner as may be prescribed, that it has

nominated such director as the person

responsible,

along

with

the

written

consent of such director for being so

nominated.

11.

The reading of the above provisions

makes it clear that in addition to the Directors of the

company and the person nominated under Sub-

section (2), the company shall be arraigned as

accused in prosecution of the company in any

offence under the Act.

12.

The larger bench of the Hon'ble Supreme

Court in para 58 of the judgment in Aneeta Hada9s

case referred to supra on reference on the point of

vicarious liability of the Directors of the Company

without arraying the company as accused, held that

the Directors can be vicariously liable for the

offences committed by the company only if company

- 6 -

is also prosecuted. It was further held that vicarious

liability of the Directors is subject to the averments

in the petition that the Directors were respo