The absence of a firm's representation does not invalidate prosecution against individual partners under the Central Excise Act.

ORDER

This Criminal Original Petition has been filed to quash the private complaint filed by the respondent/Assistant Commissioner of Central Excise, in E.O.C.C.No.166 of 1997 pending on the file of the Additional Chief Metropolitan Magistrate, EO1, Egmore, Chennai.

2.The following are the brief facts leading to the filing of the criminal complaint :

A1 is M/s.Printwraps, which is a partnership firm. A2 is the Managing Partner of the A1 firm and A3 is an ex-partner of A1 firm. It is the case of the respondent/complainant that, based on the intelligence gathered as to the persistent and deliberate violations made by the accused in contravention to the provisions of the Central Excise Act, 1944, an inspection was conducted on 02.07.1992 in the A1 firm. At that time, A2 S.Subash was present. At the time of search, A3-S.A.Khan, the petitioner herein, was also present and he was in-charge of the company. On inspection, 1738 kg of non-duty paid printed polyester philaminated rolls valued at Rs.2,52,010/- were found in the residence of A3/petitioner and various invoices indicating removal of excisable goods valued at Rs.21,23,113.40 were found and the goods were seized. On the basis of such search and seizure, as the petitioner was also in-charge of the firm, a criminal complaint had been filed for various offences under Sections 9(1), 9(1)(b), 9(1)(bb), 11D of Central Excise Act, 1944, r/w. Rules 49, 173F, 52A, 173E, 57F(2), 57A of the Central Excise Rules, 1944, as against the firm (A1), Managing Partner (A2) and the petitioner, who was the ex- partner and in-charge of the company (A3). The said complaint was taken on file by the learned Additional Chief Metropolitan Magistrate, EO1, Egmore, Chennai, in E.O.C.C.No.166 of 1997. Challenging the same, the present Criminal Original Petition has been filed.

3.The quashment is sought mainly on the ground that the Managing Partner of the company (A2) is no more and there is no one to represent the company, namely A1. Therefore, according to the petitioner, unless some representative is appointed to represent A1, without the company being made as an accused, the very complaint is not maintainable. The undue delay in examining the witnesses by the respondent/complainant is also raised as a ground for quashment.

4.Previously, the complainant filed M.P.No.2270 of 2000 before the learned Additional Metropolitan Magistrate, E.O.I, Chennai, for an order that the 3^rd accused (petitioner herein) shall represent the A1 company, as the Managing Partner of the firm had passed away and there was no other person to represent the firm. The said petition was dismissed by the learned Magistrate. Challenging the same, the complainant preferred a revision before the learned Principal Sessions Judge, Chennai, in Crl.R.C.No.147 of 2002, which was allowed. Challenging the said order, the 3^rd accused (petitioner herein) filed Crl.R.C.No.1256 of 2003 before this Court. This Court, by order dated 29.09.2011, accepted the contention of the petitioner (A3) and held that the petitioner (A3) cannot be compelled to represent the firm in the criminal prosecution. Thereafter, it appears that, once again, the petitioner (A3) has filed a Criminal Original Petition in Crl.O.P.No.18577 of 2014 before this Court to quash the complaint on the ground that the company has not been made as an accused and as per 305 Cr.P.C., the method of selecting a person is a unique right vested with the company/firm and the Court cannot direct any person to represent the firm. This Court, by order dated 31.07.2020 in Crl.O.P.No.18577 of 2014, had directed the trial Court to issue summons under Section 63 Cr.P.C. to A1 firm to the present Pr