P L D 1962 (W (PLP)

A. H. Qureshi for the State. Date of hearing : 26th February 1962. This is an application under section 561‑A of the Criminal Procedure Code for quashing the proceedings taken against the applicant and, one other person named Muhammad Anwar under section 420 of the P. P. C. at the instance of the respondent Mir Muhammad Hasan. The allegations made by the respondent were that he had supplied cotton on two occasions to Shah Cotton Factory, of which the present applicant is described as a proprietor while his co‑accused Muhammad Anwar is described as manager. Only a part of the sale‑price was paid by the Shah Cotton Ginning Factory and with regard to the first transaction relating to the year 1958‑59 the manager of the factory, namely, the co‑accused Muhammad Anwar executed two hundies on a firm named Kamal Yaqub & Co. for an aggregate amount of Rs. 14,400 while with regard to the second transaction relating to the subsequent year 1959‑60 only a part was paid while the balance remains outstanding. The complainant‑respondent has alleged that he could not trace the firm K. Yaqub & Co. on which the hundies were drawn. He contacted the two accused and demanded payment but both of them have turned a deaf ear to his request.

2. From the allegations made in the complaint, as well as the statement made by the complainant before the trial Magistrate, no doubt is left that the present applicant Muhammad Yaqub Gorowara was not the person with whom the complainant entered into the sale transaction, nor was the applicant the person who executed the two hundies in‑ question which have been dishonoured. It is contended by Mr. Mazhar Ali, the learned counsel appearing for the respondent, that the 'manager' of the factory could not have been acting for his personal gain, but for the factory and, therefore, the applicant as the proprietor of the factory must be burdened with criminal liability. The learned counsel sought support for this proposition from Emperor v. Harish Chandra Bagla (I L R 1945 All. 540). A reference to that authority however shows that the principles laid down 'therein are completely against the proposition put forward by Mr. Mazhar Ali. The learned Judge has observed as follows :‑ "The general rule is that there is no criminal liability of the principal for any act or omission of his agent unless the principal himself takes part in, authorises or connives at such act or omission. Another principle is that there is no vicarious liability in criminal law ; the condition of mind of the servant is not to be imputed to the master. But it is in the power of the legislature to enact that a man may be convicted and punished, although there is no blame‑worthy condition of the mind. This exception, however, will have to be made out convincingly and cannot be presumed lightly."

3. After laying down, these principles the learned Judge, in that case proceeded to examine clause 12 of the Cotton Cloth' and Yarn (Control) Order, 1943 which specifically imposed punishment on a `dealer' as defined in that order. It appeared to the learned Judge that clause 12 was intended to introduce the exception to which his Lordship referred in the closing part of the paragraph cited above.

4. Now, Mr. Mazhar Ali has not been able to show that section 420, under which the present applicant is sought to be prosecuted, contains any exception of the kind which would make the applicant punishable by imposing vicarious liability on him. It is clear that with regard to the offence punishable under, section 420, P. P. C. the general principle would apply, namely, that no criminal liability would attach to the principal for any act or omission of his agent unless the principal himself takes part in, authorises, or connives at such act or omission. In the complaint made by the respondent as well as his statement before the Court there is no mention at all of any circumstances which would show that the present applicant as the principal of the co‑accused Muhammad Anwar participated in the crime in any manner or he authorised the commission of the criminal offence or connived at the alleged action of his Manager, Muhammad Anwar.

5. For all these reasons it is clear to me that on the com plaint as made in this case no criminal liability is made out against the applicant Muhammad Yaqub and it will amount to an abuse of the process of the Court if the complaint is allowed to proceed as against the applicant. I would, therefore, accept this petition and quash the proceedings against the applicant. The proceedings shall, however, continue as against the co‑accused Muhammad Anwar and be decided on merits. S. B./A. H. Petition accepted.