Companies Act Case Law The Assistant Commissioner Assessment-II Bangalore & Ors Vs M/s Velliappa Textiles Ltd & Anr

CASE NO.:
Appeal (crl.) 142 of 1994

PETITIONER:
The Assistant Commissioner, Assessment-II, Bangalore & Ors.

RESPONDENT:
M/s. Velliappa Textiles Ltd. & Anr.

DATE OF JUDGMENT: 16/09/2003

BENCH:
B. N. Srikrishna.

JUDGMENT:
JUDGMENT

SRIKRISHNA, J.

I have had the benefit of perusing the erudite judgment of
learned brother Mathur, J. I, however, find myself unable to agree
with one aspect of the judgment and the resultant outcome.

The facts have been succinctly stated in the judgment of
brother Mathur, J. Hence it is not necessary to elaborate them, except
to recapitulate them very briefly. The first respondent is a limited
company which, along with its Managing Director, was sought to be
prosecuted under Sections 276C, 277 and 278 read with Section
278B of the Income Tax Act (hereinafter referred to as ‘the Act’).
The respondents challenged the prosecution by a petition under
Section 482 of the Criminal Procedure Code and urged the following
grounds in support:

(1) That the sanction of the Commissioner of Income Tax granted
under Section 279 of the Act is vitiated for failure to observe the
principles of natural justice inasmuch as no opportunity of hearing
was given to the respondents before the sanction was given.

(2) The first respondent is a company, a juristic person, and
therefore, incapable of being punished with a sentence of
imprisonment, which is mandatory under the provisions of Sections
276C and 277. Hence, the prosecution under these Sections
against a juristic person like a company is not maintainable, even if
by reason of Section 278B some other persons connected with it and
responsible for running the business of the company can be held
liable for the offence.

As far as the first contention is concerned, I respectfully agree
with the view taken in the judgment of brother Mathur, J and the
reasons given in support. It is only with regard to the second
contention, that I am unable to agree with the views expressed in the
judgment.

It is a basic principle of criminal jurisprudence that a penal
statute is to be construed strictly. If the act alleged against the
accused does not fall within the parameters of the offence described
in the statute the accused cannot be held liable. There is no scope for
intendment based on the general purpose or object of law. If the
Legislature has left a lacuna, it is not open to the Court to paper it
over on some presumed intention of the Legislature. The doctrine of
casus omissus, expressed in felicitous language in CST Vs. Parson
Tools and Plants (1975) 4 SCC 22, is:
“If the legislature wilfully omits to incorporate
something of an analogous law in a subsequent
statute, or even if there is a casus omissus in a
statute, the language of which is otherwise plain
and unambiguous, the court is not competent to
supply the omission by engraving on it or
introducing in it, under the guise of interpretation,
by analogy or implication, something what it thinks
to be a general principle of justice and equity. To
do so “would be entrenching upon the preserves of
legislature”, (At p 65 in Prem Nath L Ganesh v.
Prem Nath,L. Ram Nath, AIR 1963 Punj 62, Per
Tek Chand,J.). The primary function of a court of
law being jus dicere and not jus dare.”
(Emphasis supplied)

The maxim “Judicis est jus dicere, non dare” pithily expounds
the duty of the Court. It is to decide what the law is and apply it;
not to make it.

The question of criminal liability of a juristic person has
troubled Legislatures and Judges for long. Though, initially, it was
supposed that a Corporation could not be held liable criminally for
offences where mens rea was requisite, the current judicial thinking
appears to be that the mens rea of the person in-charge of the affairs
of the Corporation, the alter ego, is liable to be extrapolated to the
Corporation, enabling even an artificial person to be prosecuted for
such an offence. I am fully in agreement with the view expressed on
this aspect of the matter in the judgment of brother Mathur, J. What
troubles me is the question whether a Corporation can be prosecuted
for an offence even when the punishment is a mandatory sentence of
imprisonment.

That in India the situation has not been free from doubt is
evident from two reports of the Law Commission of India which
recommended specific amendments in order to get over this
difficulty. The Law Commission of India in its 41st report at
paragraph 24.7 recommended as under: –
“24.7 – As it is impossible to imprison a
corporation practically the only punishment which
can be imposed on it for committing an offence is
fine. If the penal law under which a corporation is
to be prosecuted does not provide for a sentence of
fine, there will be a difficulty. As aptly put by a
learned writer, –

“Where the only punishment which
the court can impose is death, penal
servitude, imprisonment or whipping,
or a punishment which is otherwise
inappropriate to a body corporate,
such as a declaration that the offender
is a rogue and a vagabond, the court
will not stultify itself by embarking on
a trial in which, if the verdict of guilt
is returned no effective order by way
of sentence can be made”.

In order to get over this difficulty we recommend
that a provision should be made in the Indian
Penal Code e.g. as section 62 in Chapter III relating
to punishments, on the following lines:-

“In every case in which the offence is
only punishable with imprisonment or
with imprisonment and fine and the
offender is a company or other body
corporate or an association of
individuals, it shall be competent to
the Court to sentence such offender to
fine only”.
Again, the Law Commission of India in its 47th report vide
paragraph 8.3 recommended as under: –
“8.3 – In many of the Acts relating to economic
offences, imprisonment is mandatory. Where the
convicted person is a corporation, this provision
becomes unworkable, and it is desirable to provide
that in such cases, it shall be competent to the
court to impose a fine. This difficulty can arise
under the Penal Code also, but it is likely to arise
more frequently in the case of economic laws. We,
therefore, recommend that the following provision
should be inserted in the Penal Code as, say,
Section 62:-

“(1) In every case in which the
offence is punishable with
imprisonment only or with
imprisonment and fine, and the
offender is a corporation, it shall be
competent to the court to sentence
such offender to fine only.

(2) In every case in which the
offence is punishable with
imprisonment and any other
punishment not being fine, and the
offender is a corporation, it shall be
competent to the court to sentence
such offender to fine.

(3) In this section, ‘corporation’
means an incorporated company or
other body corporate, and includes a
firm and other association of
individuals.”

The Law Commission’s recommendations focussed on the
fact that the law as it exists renders it impossible for a court of law to
convict a Corporation where the statute mandates a minimum term
of imprisonment plus fine. It would not be open to the court of law to
hold that a Corporation would be found guilty and sentenced only to
a fine for that would be re-writing the statute and exercising a
discretion not vested in the court by the statute. It is precisely for
this reason that the Law Commission recommended that where the
offence is punishable with imprisonment, or with imprisonment and
fine, and the offender is a corporation, the Court should be
empowered to sentence such an offender to fine only. These
recommendations have not been acted upon, though several other
recommendations made by the 47th Report of the Law Commission
have been accepted and implemented by Parliament vide the
Taxation Laws (Amendment) Act, 1975. Hence, the state of law as
noticed by the Law Commission continues.

A number of judgments of High Courts as well as one
judgment of this Court were cited at the bar which render the
situation more complex and perhaps necessitated reference of the
matter to a larger Bench. This Court speaking through a Bench of
two learned Judges in M.V. Javali Vs. Mahajan Borewell &
Company & Ors. (1997) 8 SCC 72 made the following observations
vide paragraphs 6 and 8:
“6 – From a plain reading of the above section it is
manifest that if an offence under the Act is
committed by a company the persons who are
liable to be proceeded against and punished are: (i)
the company, (which includes a firm); (ii) 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;
and (iii) any director (who in relation to a firm
means a partner), manager, secretary or other
officer of the company with whose consent or
connivance or because of neglect attributable to
whom the offence has been committed. The
words “as well as the company” appearing in the
section also make it unmistakably clear that the
company alone can be prosecuted and punished
even if the persons mentioned in categories (ii) and
(iii), who are for all intents and purposes
vicariously liable for the offence, are not
arraigned, for it is the company which is primarily
guilty of the offence.

xxx xxx xxx xxx

8. Keeping in view the recommendations of the
Law Commission and the above principles of
interpretation of statutes we are of the opinion that
the only harmonious construction that can be given
to Section 276-B is that the mandatory sentence of
imprisonment and fine is to be imposed where it
can be imposed, namely on persons coming under
categories (ii) and (iii) above, but where it cannot
be imposed, namely on a company, fine will be
the only punishment. We hasten to add, two other
alternative interpretations could also be given : (i)
that a company cannot be prosecuted (as held in
the impugned judgment); or (ii) that a company
may be prosecuted and convicted but not punished,
but these interpretations will be dehors Section
278-B or wholly inconsistent with its plain
language.”
Though, Javali (supra) refers to the recommendations of
47th report of the Law Commission of India dated 28.2.1972 in
support of its view, I find it difficult to agree with its reasoning.
The report of the Law Commission indicates a lacuna in the law and
suggests a possible remedy by amending the law. Since the
function of the court of law is jus dicere and not jus dare, the court
of law cannot read the recommendations of the Law Commission as
justifying an interpretation of the Section in tune with them, even
when the words of the Section are plain and unambiguous. Though
Javali (supra) also refers to the general principles of interpretation of
statutes, the rule of interpretation of criminal statutes is altogether a
different cup of tea. It is not open to the court to add something to or
read something in the statute on the basis of some supposed
intendment of the statute. It is not the function of this Court to
supply the casus omissus, if there be one. As long as the
presumption of innocence of the accused prevails in this country, the
benefit of any lacuna or casus omissus must be given to the accused.
The job of plugging the loopholes must strictly be left to the
legislature and not assumed by the court.

The judgment of the Karnataka High Court under appeal
relies on its earlier judgment in P.V.Pai Vs. R.L. Rinawma ILR
(1993) KAR 709. To similar effect are the views of the Calcutta
High Court in Kusum Products Ltd. Vs. S.K.Sinha, ITO,Central
Circle-X,Calcutta (1980) 126 ITR 804, Modi Industries Ltd. Vs.
B.C. Goel (1983) 144 ITR 496.

The judgment of the Full Bench of the Delhi High Court in
Municipal Corporation of Delhi Vs. J.B. Bottling Company
(1975) Crl.L.J. 1148 followed by the judgment of the Full Bench of
the Allahabad High Court in Oswal Vanaspati & Allied Industries
Vs. State of U.P. (1993) 1 CLJ 172 take the view that where a
statute imposes a minimum sentence of imprisonment plus fine,
since the court cannot imprison a juristic person like company, it has
the option of imposing fine only. With great respect, I am unable to
subscribe to this view. Where the legislature has granted discretion
to the court in the matter of sentencing, it is open to the court to use
its discretion. Where, however, the legislature, for reasons of policy,
has done away with this discretion, it is not open to the court to
impose only a part of the sentence prescribed by the legislature, for
that would amount re-writing the provisions of the statute.

Prior to the substitution of Section 276C, 277 and 278 by the
Taxation Laws (Amendment) Act, 1975 with effect from 1.10.1975
in the present form, there was no minimum sentence of
imprisonment provided for. The intention of the legislature in
imposing a minimum term of imprisonment for offences punishable
thereunder was to do away with the Court’s discretion of only
imposing of a fine and make the punishment more stringent.

The Law Commission in its 47th Report recommended
(Chapter 18, pg. 157) that the punishment under sections 276B,
276C, 276E, 277 and 278 should be increased. It further
recommended, “there should be a provision for minimum
imprisonment and minimum fine’. These recommendations were
implemented vide the Taxation Laws (Amendment) Act, 1975. In
fact, at the time of introduction of the amendment bill, the Finance
Minister Shri C. Subramaniam stated:
“To those who make a lot of money
through infringement of laws, monetary
penalties do not really serve as deterrents. The
provisions relating to prosecutions for tax
offences are, therefore, proposed to be
tightened up. The Select Committee has further
recommended that in order to make the
provisions relating to prosecution more
effective, the discretion vested in courts to
award monetary punishment as an alternative to
rigorous imprisonment or to reduce the term fo
imprisonment below the prescribed minimum
should be taken away. I welcome these changes
and commend them to the house.”
Hence, it is apparent that the legislative mandate is to prohibit
the Courts from deviating from the minimum mandatory punishment
prescribed by the statute. If, in spite of the amendment, the situation
is seen as before, then I fail to see the purpose of the amendments
made by the Taxation Laws (Amendment) Act, 1975.

I am of the view that the Court should be slow in interpreting
a penal statute in a manner which would amount to virtual re-writing
of the statute to prejudice to the accused.

As Loreburn,J. observed in Bristol Guardians Vs. Bristol
Waterworks Company (1914) AC 379, 388:
“After all, it is not our function to repair the
blunders that are to be found in legislation.
They must be corrected by the legislature.”

A court cannot breach a casus omissus and no canon of
construction permits the court to supply a lacuna in a statute; nor can
courts of law fill up the lacuna in an ill-drafted and hasty legislation.
This was echoed by the Full Bench of the Calcutta High Court in
Tarak Chandra Vs. Ratanlal [AIR (1957) Cal. 257 thus:
“It is true that one must not expect in a
statute the completeness and elaboration of a
deed, and where the minimum required to
make a particular meaning which is
obviously intended is found, effect must be
given to such meaning. But courts cannot
dispense with even the minimum. Even
where such minimum is absent, courts must
declare the deficiency and let it have its
effect rather than strain themselves to make
it good. Thereby, not only will the courts
prevent themselves from taking up the
functions of the legislature but the
legislature may also profit because it may
take care to avoid such deficiencies in
future.”

Whether the omission is intentional or inadvertent is no
concern of the court.
The observations in Tolaram Relumal & Anr. Vs. The
State of Bombay [AIR (1954) SC 496] , Bijaya Kumar Agarwala
Vs. State of Orissa (1996) 5 SCC 1, Sanjay Dutt Vs. State
through CBI, Bombay(II) (1994) 5 SCC 410, Niranjan Singh
Karam Singh Punjabi,Advocate Vs. Jitendra Bhimraj Bijjaya &
Ors. (1990) 4 SCC 76 make it clear that while interpreting a penal
statute, if more than one view is possible, the court is obliged to lean
in favour of the construction which exempts a citizen from penalty
than the one which imposes the penalty. The observations of Lord
Esher, MR in formulating, “the settled rule of construction of penal
Sections”, that “if there is a reasonable interpretation which will
avoid the penalty in any particular case, we must adopt that
construction . If there are two reasonable constructions, we must
give the more lenient one.” (See Tuck & Sons Vs. Priester (1887)
19 QBD 629 and London & Norm Eastern Railway Vs. Berriman
(1946) 1 ALL ER 255.

In State of Maharashtra Vs. Jugmander Lal [AIR (1966)
SC 940] this court held that the expression, “shall be punishable for
imprisonment and also for fine” means that the court is bound to
award a sentence comprising both imprisonment and fine and the
word “punishable” does not mean anything different from “shall be
punished”, punishment being obligatory in either case. The
judgment of the Bombay High court in State of Maharashtra Vs.
Syndicate Transport Company Pvt. Ltd. [AIR (1964) Bom. 195]
also supports this view.

The view taken by me also finds support from the Australian
jurisdiction. Faced with the same situation, the legislature in
Australia enacted Part 2.5 of the Commonwealth Criminal Code Act,
1995 to specifically provide: “a body corporate may be found guilty
of any offence, including one punishable by imprisonment.” This
provision has to be read with Section 4B(3) of the Crimes Act, 1914
which provides : “where a body corporate is convicted of an offence
against a law of the Commonwealth, the court may, if the contrary
intention does not appear and the court thinks fit, impose a pecuniary
penalty not exceeding an amount equal to 5 times the amount of the
maximum pecuniary penalty that could be imposed by the court on a
natural person convicted of the same offence.” This was a case of
the legislature stepping in to supply the casus omissus. The
legislature in Australia has expressly empowered the court to
exercise a discretion to impose only fine even where a mandatory
term of imprisonment is prescribed, if the accused is a Corporation.

Contrasting the situation in India, against he background of
the two reports of the Law Commission referred to, with the
situation in Australia, drives home the point. I am of this view that
this Court cannot, in the garb of construction of the penal
provisions of Section 276 (C), 277 and 278, impose a punishment of
fine in a situation which calls for no punishment by a virtual re-
writing of the statute.

The argument that the term “person” has been defined in
Section 2 (31) of the Act, so as to include a company, does not
impress me. All definitions in the Act apply “unless the context
otherwise requires”. For reasons which I have indicated, the context
does indicate to the contrary, while reading of the word “person” in
the concerned Sections.

The judgment of the U. S. Supreme Court in United States
Vs. Union Supply Company 54 Lawyers Ed. 87 (215 U.S.50)
referred to in the judgment of brother Mathur, J seems to support the
view that “the natural inference, when a statute prescribes two
independent penalties, is that it means to inflict them so far as it can,
and that, if one of them is impossible, it does not mean, on that
account, to let the defendant escape.” Apart from this, I see no other
reasoning contained therein. With respect, I am unable to agree
with the view taken in the judgment in United States Vs. Union
Supply Company (supra). The situation in India was considered by
two Law Commissions whose recommendations I have referred to
earlier. I have already discussed that import.

For the aforesaid reasons, I am of the view that the first
respondent company cannot be prosecuted for offences under
Sections 276C, 277 and 278 read with Section 278 since each one of
these Sections requires the imposition of a mandatory term of
imprisonment coupled with a fine and leaves no choice to the Court
to impose only a fine.

The following observations of Stable, J. in R. Vs. I.C. R.
Haulage, Ltd. (1944) 1 All. E.R. 691 made in similar situation are
of relevance:-
“Where the only punishment which the court
can impose is death, for this purpose the
basis of this exception is being that the
court will not stultify itself by embarking on
a trial in which, if the verdict of guilt is
returned, no effective order by way of
sentence can be made.”

Hence, in my judgment, the High Court was justified in
quashing the prosecution as far as the first respondent is concerned.
I would therefore, dismiss the appeal as far as the first respondent is
concerned and allow the appeal with regard to the prosecution
against the second respondent.

 

 

 

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