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CR.A/90/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 90 of 2010
To
CRIMINAL
APPEAL No. 94 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ARVINDKUMAR
SHANTILAL SONI - Appellant(s)
Versus
BHARTIBEN
VIRENDRAKUMAR SHAH & 1 - Opponent(s)
=========================================================
Appearance
:
MR
KAUSHAL D PANDYA for
Appellant(s) : 1,
None for Opponent(s) : 1 - 2.
MR. H.L. JANI,
ADDL. PUBLIC PROSECUTOR for Opponent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 21/01/2010
ORAL
JUDGMENT
1. The
present appeal, under Section 387(4) of the Code of Criminal
Procedure, 1973, is directed against the judgment and order
of acquittal dated 31.12.2008 passed by the learned JMFC (Municipal),
Surat, in Municipal case No. 1081 of 1992.
2. The
brief facts of the case is that on 14.11.1991 the Octoroi Officer of
Surat Municipal Corporation had visited the business place of the
accused to inquire about the fact as to whether Octroi of the
electric goods lying the business premises is paid by the accused or
not. The concerned Officer had also asked for the records for the
same from the accused. It is alleged that the statement of the
accused was also recorded. It is also alleged that in December, 1991
the accused had produced the record of the year 1988-89, 1989-90 and
1990-91 and after verifying the said record it was found that the
accused has not paid the Octroi as per bill. The accused could not
give any explanation though repeatedly reminded by the complainant,
and thereby the accused has committed the theft of Octroi worth Rs.
1,59,85=71 Paise. Thereby the respondent-accused has committed the
breach of Rule 13(1)(E), 13(2) 28(1), 28(2)(A), 28(2)(B) of the
Octroi Rules and Standing Order (1) and, therefore, the complaint has
been filed against the accused for the offence under Section 358 of
the BPMC Act, in the Court of learned J.M.F.C.(Municipal), Surat.
3. The
learned Magistrate has recorded the plea of the accused. The accused
has not pleaded guilty to the charge. Thereafter, the trial was
conducted by the learned Magistrate. The prosecution has examined the
witnesses and also produced the documentary evidence.
4. Thereafter,
after considering the oral as well as documentary evidence the
learned Magistrate, by judgment and order dated 31.12.2008, has
acquitted the respondent-accused from the charges leveled against
him. Against the said judgment and order of learned Magistrate,
original complainant has filed this appeal.
5. I
have heard learned Counsel Mr. Kaushal Pandya, appearing on behalf of
appellant Surat Municipal Corporation, at length. I have also
gone through the judgment and record of the Trial Court, produced
before me. Mr. Pandya has also taken this court through the Octroi
Rules and contended that the Surat Municipal Corporation is a Public
Body and it is the obligatory duty on the part of the respondent
accused to pay the octroi as per Rules. Mr. Pandya has contended that
despite the demand for octroi, the respondent accused had refused
to pay the amount of octroi and, therefore, the accused has committed
an offence under the Provisions of BPMC Act and the Rules framed
thereunder.
6.
I have perused the judgment and order of learned Magistrate and also
gone through the records produced before me. From the record
produced before me, I am of the opinion that there is no need to call
for Record & proceedings from the trial Court and,therefore, I
decide all the Appeal finally at the admission stage.
7. From
the perusal of Rule 19, 19(2) and 20 of the Octroi Rule, it is the
duty of the corporation to serve the notice of claim to the opposite
party, but, Mr. Pandya is unable to produce any evidence to that
effect. From the record it is clearly established that notice of
claim, which is mandatory, is not issued to the respondent
accused. From the record it is not proved that under Rule- 9, the
demand was made by the complainant to pay the Octroi and the accused
has not paid the same. The trial Court has also clearly observed
that as per the evidence of the complainant, both the parties, the
seller and the purchaser, are of the same plea and when the goods
were sold and purchased in Surat, there is no question of octroi to
be paid by the respondent accused.
8. The
Learned advocate appearing on behalf of corporation is not in a
position to show any evidence to take a contrary view of the matter
or that the approach of the trial court is vitiated by some manifest
illegality or that the decision is perverse or that the trial court
has ignored the material evidence on record.
9. In
the above view of the matter, I am of the considered opinion that the
trial court was completely justified in acquitting the respondent of
the charges leveled against him.
10.
I find that the findings recorded by the trial court are absolutely
just and proper and in recording the said findings, no illegality or
infirmity has been committed by it.
11. I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the court
below and hence find no reasons to interfere with the same. Hence the
appeal is hereby dismissed. Impugned judgment and order of acquittal
dated 31.12.2008 passed by the
learned JMFC (Municipal), Surat, in Municipal case No. 1081 of 1992,
is hereby confirmed. Bail bond, if any, stands cancelled.
(Z.K.
SAIYED, J.)
Pawan
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