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CR.A/67319/1996 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL NO. 673 OF 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
======================================
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 ?
======================================
PATEL
PRAVINCHNADRA VADILAL - Appellant(s)
Versus
PATEL
BHAGWANDAS PRAHLADJI AND CO. & ORS. - Respondent(s)
======================================Appearance
:
Ms. Jirga Jhaveri for
Appellant(s).
Mr. Y. S. Lakhani for Respondent(s) : 1 - 4.
Mr.
K. T. Dave, APP for Respondent(s) :
5.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 07/10/2008
ORAL
JUDGMENT
1. By
way of the present appeal under Section 378 of the Code of Criminal
Procedure, 1973 ( the Code for short), the appellant has
questioned the legality and validity of the impugned judgement and
order of acquittal dated 30th December, 1995 passed by
the learned Judicial Magistrate (First Class), Mehsana in Criminal
Case No.969 of 1992.
2. The
facts of the case briefly summarised are that the
complainant-Pravinchandra Vadilal is the inspector of the
Agricultural Produce Market Committee, Mehsana which is engaged in
the trading business of agricultural produces. The complainant as an
Inspector of the Agricultural Produce Market Committee, Mehsana has
lodged the complaint against respondent Nos.1 to 4 with regard to
violation of rules, regulations and by-laws of the Market Committee.
The Agricultural Produce Market Committee in exercise of the powers
under the Gujarat Agricultural Produce Markets Act, 1963 ( the Act
for short) has framed the regulations for regulating business of sale
of the agricultural produces and it regulates the business or trading
in the agricultural produce market committee. The trader and the
commission agent are required to take license for the purpose of
doing business in the market yard and they are required to fulfill
the rules and regulations of the Agricultural Produce Market
Committee and also have to comply with the general conditions of the
licence granted to the traders. It is alleged that the accused
persons, who are doing the business in the market yard, have charged
Rs.2/- and Rs.3.50 excessively in their bill in violation f the
rules, regulations and the bye-laws. It is, therefore, alleged that
Regulation 42 has been violated and the offence under Regulation 42
has been committed by the accused persons. Therefore, Resolution No.7
dated 24th October, 1983 was passed authorising the
complainant to initiate necessary proceedings, on the basis of which
the complaint has been lodged for the alleged offences before the
learned Chief Judicial Magistrate, Mehsana, who passed the order to
register the offence against the accused persons by the order dated
29th February, 1992. The learned Magistrate recorded the
plea of the accused persons, who claimed to be tried for the
offence. Thereafter, the learned Magistrate proceeded with the trial
and on conclusion of the trial, passed the impugned judgement and
order recording acquittal of the accused persons, which has been
assailed by the present appellant in this appeal on the grounds set
out in the memo of the appeal.
3. Ms.
Jirga Jhaveri, learned Advocate for the appellant, submitted that the
learned Court below has erred in not appreciating that the
complainant was authorised by the Agricultural Produce Market
Committee to issue notice for breach of the provisions of the Act and
the Rules. She also submitted that the learned Magistrate has erred
in appreciating that the books of accounts have not been produced.
Further, she submitted that Rule 59(3) of the Agricultural Produce
Market Committee Rules, 1965 ( the Rules for short) has been
violated and it has not been appreciated. For that purpose, she
referred to Rule 59(3) of the Rules, which reads as under:
Any
licensee who commits a breach of provisions of sub-rule (1) shall be
deemed to have violated the conditions of the license.
She
submitted that the traders and the commission agents are required to
keep the books of accounts and they are required to be submitted for
examination in the Office of the Agricultural Produce Market
Committee as and when required. She, therefore, submitted that as it
has not been done in the present case, not only Rule 59(3) has been
violated, but, the terms and conditions of the license have also been
violated, which the learned Court below has failed to appreciate. She
also submitted that there is a clear violation of Section 8 of the
Act, which provides for the requirement of the license for operation
in the market. Section 8 provides that no person shall operate in the
market area or any part thereof except under and in accordance with
the conditions of a license granted under this Act. She, therefore,
submitted that the accused herein have collected excessive charges,
which were not authorised, and as it was found by the complainant
during inspection, the complaint came to be filed, on the basis of
which after recording the evidence, the learned Magistrate has
recorded the order of acquittal, which is erroneous. It was submitted
that the learned Court below has failed to appreciate the material
and evidence on record with regard to illegal collection of the so
called hamal charges and other pala (to spread the
agricultural produce for inspection by the buyer) and again fill it
back in the grain bags.
4. Mr.
Y. S. Lakhani, learned Advocate for the accused, referred to the
judgement and also material and evidence on record and submitted that
there is no violation of any rules, regulations or terms and
conditions of the license. It was submitted that the complainant
himself has admitted in the cross examination that he has not
recorded the statements of hamals or traders or farmers from whom the
additional charges is said to have been collected by the accused
persons. He, submitted that though it is alleged that the amount has
been illegally deducted by way of charges in violation of the rules
and regulations, there is no evidence collected or statement recorded
by the prosecution. He also referred to the deposition of the witness
examined on behalf of the accused persons, which include the
traders/farmers, who used to sell the agricultural produce to the
accused persons, and referring to this evidence, he emphasised that
it has been specifically stated that the charges were in accordance
with the norms and rules and it has also been paid to the hamals
for the work done by them. Thus, all the persons from whom the amount
has been collected have admitted that these charges were paid to the
hamals for doing their job of bringing the agricultural
produce from the market yard to the place/area in the Market
Committee where the buyer would examine. Pala charges
are the charges paid to the hamals for spreading the
agricultural produce for the purpose of inspection by the buyer and
again refilling it in the grain bags, for which the additional
charges are to be paid by way of labour charges. Therefore, there is
no breach of any rules and regulations or conditions of the license,
much less no offence can be said to have been committed. He
submitted that the judgement and order of the learned Court below
recording acquittal is just and proper and it does not call for any
interference. He also submitted that the complainant has failed to
establish any charges for the offence under the Act and the Rules, as
alleged, and therefore, this Court may not interfere with the
impugned judgement and order. He also submitted that it is well
settled that even if there are two views, normally, the Court should
not interfere with the order of the acquittal unless it is perverse.
5. In
view of the rival submissions and also on appreciation and scrutiny
of the evidence, which has been referred to by both the sides, it is
required to be considered that whether it would call for any
interference in the impugned judgement and order recording acquittal.
From the scrutiny of the evidence, it transpires that the charges
levelled against the accused are with regard to illegal collection of
excessive charges in violation of the rules, regulation and
conditions of the licence. It is evident from the deposition of the
complainant at Exh.33 that he has not recorded the statement of any
farmer or any other person, though the charge about illegal
collection of hamal charges (labour charges) has been
levelled. Moreover, in the cross examination, it has been further
admitted that no opportunity has been given to explain as to why such
charges are claimed and without giving any such opportunity, the
complaint has been filed for the alleged offences. It transpires from
the record that in support of their defence, the accused persons have
examined Somabhai Ishwarbhai Patel and Dhulabhai Patel, who were
selling their agricultural produces to the accused persons. These
witnesses have clearly stated in their deposition that the amount has
been paid towards the labour charges. Bhulabhai Patel has initially
stated in his deposition about different charges being levied for the
agricultural produces and thereafter, has stated that though the
normal charges are either Re.1/- or Rs.0.50, the accused had
collected Re.1/- per bag, but, has explained that this includes the
amount for spreading the agricultural produces which is known as
pala charges. Pala charges is the
additional charge levied for spreading the agricultural produces for
the purpose of inspection by the buyer in the market area and
thereafter, it is again required to be refilled in the grain bags.
Therefore, on the basis of this material and evidence on record, the
learned Court below has recorded the order of acquittal.
6. Though
the learned Advocate, Ms. Jhaveri, for the appellant, has referred to
the grounds set out in the memo of the appeal and as regards Section
8 of the Act, which provides for operation in the market area under
the license, there is no quarrel that no person shall operate in the
market area without any license and also except in accordance with
the terms and conditions of the license. There is no evidence,
however, as to any breach or violation of any of the terms or
conditions of the license. Though reliance is placed on Rule 59(3),
which refers to the fact that anyone who commits a breach of
provisions of sub-rule (1) of Rule 59 shall be deemed to have
violated the conditions of the license, it cannot be said on perusal
of the material and evidence on record that there is any such
violation or breach of either rule or regulation or any terms and
conditions of the license.
7. Therefore,
on appreciation and scrutiny of the evidence on record, it is evident
that the view taken by the learned Court below recording acquittal
cannot be said to be perverse, but, possible and this Court is in
agreement with the ultimate conclusions arrived at and recorded by
the learned Court below. Therefore, it may not be further necessary
to elaborate on this aspect and scrutinise the evidence threadbare,
as observed by the Honourable Apex Court in its judgement in the case
of State of Karnataka vs. Hemareddy & Anr.,
reported in AIR 1981 SC 1417.
8. Moreover,
it is well settled that if two views are possible or even if a
different view is possible is not by itself sufficient to interfere
with the order of acquittal. If two views are possible on the basis
of the evidence and the view taken by the trial Court is reasonable
and possible, then, normally, the High Court would not interfere with
the order of acquittal. This principle has been laid down by the
Honourable Apex Court in its judgement in the case of Shingara
Singh vs. State of Haryana & Anr., reported in AIR 2004
SC 124. The same view has been consistently followed in the
subsequent judgement in the case of State of Goa vs. Sanjay
Thakran & Anr., reported in (2007) 3 SCC 755,
wherein it has been observed referring to the scope of interference
by the appellate court that the appellate court can review the
evidence and interfere with the order of acquittal only if the
approach of the lower court is vitiated by some manifest illegality
or decision is perverse or the Court has committed a manifest error
of law and ignored the material evidence on record. The same view has
also been reiterated in the subsequent judgement of the Honourable
Apex Court in the case of K. Prakashan vs. P.K. Surenderan,
reported in (2008) 1 SCC
258.
9. Therefore,
in view of the discussion made herein above and the settled legal
position, the impugned judgement and order dated 30th
December, 1995 passed by the learned Judicial Magistrate (First
Class), Mehsana below in Criminal Case No.969 of 1992, is possible,
reasonable and on appreciation of evidence, broadly the conclusion
arrived at is just and proper and therefore, this Court is not
inclined to interfere with the acquittal recorded by the learned
Court below. Therefore, the impugned judgement and order passed by
the learned Court below recording acquittal is hereby confirmed and
the present appeal deserves to be dismissed.
10. In
the result, the present appeal hereby stands dismissed.
[R.
H. Shukla, J.]
kamlesh*
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