Bombay High Court
Department vs M/S. Motiram Javharmal Bafna & Co. on 24 October, 2013
Bench: A.H. Joshi
Cr appeal 87-1998
smt IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 87 of 1998
Shri A.A. Shaikh )
age 63 years, Occup. Service, )
Checking Naka Officer Octroi )
Department,Pune, )
Pune Municipal Corporation, )
Pune - 411 005. ) .. Appellant.
V/s.
1. M/s. Motiram Javharmal Bafna & Co., )
its sole Proprietor- )
i) Motiram Javharmal Bafna, )
age 58 years, Occ- Business, )
residing at 826/2, )
Budhwar Peth, Pune-2. )
)
2. The State of Maharashtra ) .. Respondents.
Shri R.M. Pethe, for the appellant.
Shri Abhaykumar Apte, for the respondent no.1.
Ms. A.A. Mane a/w. Shri V.B. Konde Deshmukh, APP for the
respondent no.2-State.
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Cr appeal 87-1998
CORAM : A. H. JOSHI, J.
DECIDED ON : 24TH OCTOBER, 2013.
J U D G M E M T
1. This is one of amongst group of Appeals preferred by Pune
Municipal Corporation. The Order passed by the learned
Magistrate in all these cases is common. Facts too are common.
Those are as follows :
2. All Accused persons in the group of cases are traders
engaged in the business of precious metal (gold, silver etc.)
and precious stones. Their shop/showroom/place of business is
within the territorial limits of Municipal Corporation, Pune.
3. At the relevant time, gold was a controlled commodity.
Auction of ingots of virgin gold was held by Reserve Bank of
India at Mumbai. After auction is completed the buyers had to
make the payment and transport the gold to the destination of
their choices on the basis of a permit which was to be secured
from the Central Excise Department.
4. In the present group of cases, the accused persons
participated in the auction conducted by the Reserve Bank of
India in 1978, and purchased the gold. Thereafter, they have
brought it within the limits of municipal corporation of Pune,
in August, 1978, without payment of octroi.
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Cr appeal 87-1998
5. The Municipal Corporation made enquiry about import of
gold within municipal limits to the association of traders of
gold/silver etc. The association of traders of gold, silver
etc. expressed its inability to furnish the information.
6. Therefore, information about auction and import of gold
was sought from Reserve Bank of India. The Officer concerned
directed the Corporation to depute an Officer to inspect the
record and collect the information. The information was
collected from Reserve Bank of India and it was furnished
before the
Central Excise Department at Pune for
furnishing/certifying to the Corporation exact data relating to
actual import of gold within limits of Municipal Corporation of
Pune City.
7. After receiving the information from the Excise
Department, the Corporation filed private complaints against
the accused persons.
8. In the case at hand i.e. C.C. No. 775 of 1980, recording
the plea, where accused pleaded not guilty and claimed to be
tried, the trial began.
9. Municipal Corporation tendered the evidence of one witness
on 14th July, 1984.
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Cr appeal 87-1998
10. Thereafter, the cases remained pending for various
reasons. The accused persons submitted a printed and photo
typed application purportedly under Section 428 of Bombay
Provincial Municipal Corporations Act, 1949, in all Criminal
Cases on 24-01-1994 or about that date. By said application,
the accused persons raised an objection as to bar of limitation
against the complaint filed by the Corporation.
11. In said application, the complainant made grievance
that :-
(a)
The complaint was not filed within six months from
the date of import of gold by evading the octroi.
(b) The complaint was not accompanied by application
for condonation of delay, and was liable to be
dismissed.
12. The foundation of the application raising the objection in
Para 2 thereof reads as follows :-
"2) It is submitted that in giving the particulars
of the offence in para 3 of the complainant, the
complainant has specifically alleged that the Accused
purchased Gold in the auctions held by the Reserve Bank
of India, as alleged in the Schedule in para 3 of the
complainant.
The complainant further states in the said para 3
of the complaint that the complainant received such
information from the list which became available to him
on 25/10/1978 from the Reserve Bank of India.
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Cr appeal 87-1998
According to the Complainant, from the said list,
the auction date in which the number of the said
auction and other particulars also became known to him
from the said list on 25/10/1978.
It is, therefore, submitted that according to the
Complainant, the date of the commission of the offence
and the date of discovery of the commission of the said
offence also became known to the complainant on
25/10/1978.
It is, therefore, submitted that, having obtained
knowledge of the said two relevant dates of the actual
commission of the offence and the discovery of the
commission of the such offence, the complainant, if he
was of the opinion that the goods imported within the
octroi cordon of the Pune Municipal Corporation, were
liable for levy of octroi duty. It was for the
complainant to initiate proceedings for the recovery of
such octroi or to lodge a complaint for non payment
thereof or the attempt at evasion thereof, within six
months from the date of commission of the offence or,
assuming but not admitting that the date of commission
of such offence was not known to the complainant,
within six months from the date of discovery of
offence.
It is submitted that either from the date of
commission of such or from the date of discovery of the
such offence (viz. 25.10.1978), the compliant has not
been lodged within the period of limitation prescribed
under sec. 428 of the B.P.M.C. Act 1949.
It is therefore, submitted that the complaint is
barred by limitation prescribed under the said section
and is therefore, liable to be dismissed in limine."
[Sub-paragraphs are made while quoting for convenience]
(Quoted from Page 21 and Page 22 of the appeal)
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Cr appeal 87-1998
13. This application raising objection on the ground of
limitation was opposed. A written reply was filed by present
appellant. The plea raised in reply, reads as follows :
"The required information regarding the
Commission of offence has not received within
stipulated period.
That on 29/8/79 the Complainant came to know and
got actual knowledge of offence committed by accused
through the letter of Central Excise department on
date 27/8/79 forwarded to Pune Municipal Corporation
with list and details of date of importation goods.
And the letter of 19th March, 1979 (with trade
notice No. 113/78 ) ( 5/gold /78) received on 21/3/79,
mean while prosecution had issued requisition under
Rule 24 of Octroi Rule of the Mpl. Corporation of the
city of Pune through Municipal Commissioner/Asstt.
Superintendent of Octroi. However accused failed to
give information of P.M.C. with the intention to
defraud the PMC, therefore prosecution submitted that
after the knowledge and discovery of the offence on
date 29/8/79 the prosecution immediately filed the
case and prosecuted the accused within time.
So the contention of the accused that complaint
is barred by limitation prescribed u/s 428 of B.P.M.C.
Act is false and baseless and trying to mislead the
Court. Accused known that they are likely to be
convicted of offence committed u/s 398 of the B.P.M.C.
Act 1949 for evasion of Octroi on imported goods and
Rule 24 of Octroi Rule."
[Sub-paragraphs are made while quoting for convenience]
(Quoted from Page 24 of the appeal)
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Cr appeal 87-1998
14. In the aforesaid background, the learned Magistrate was
required to decide as to whether the complaint was liable to be
dismissed on the ground of limitation, as the process was
already issued, and case had advanced.
15. In view of reported judgment of Hon'ble Supreme Court in
AIR 1992 Supreme Court, 2206 in the case of K.M. Mathew Vs.
State of Kerala, Magistrate held that it is open to the
Magistrate even after issuance of process to recall the same if
it was found to be unjust and erroneous.
16. Learned Magistrate had heard oral submission and passed
impugned judgment and held that the complaint was barred by
limitation.
17. The order dismissing the complaint and consequent order of
acquittal, the accused is under challenge in this appeal.
18. After hearing the parties this Court had expressed that
the accused can sort out the issue by paying octroi and
penalty, if any, and move for compounding. Hearing of appeals
was adjourned for this purpose on two dates. Learned Advocate
for appellant has reported the Court that the accused are keen
on getting logical conclusion based judicial pronouncement than
to pay voluntarily. Therefore, now this Court proceeds to
decide this appeal.
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Cr appeal 87-1998
19. Both learned Advocates have argued within the frame of
application and reply on the record of trial court.
20. A question of bar of limitation revolves around date of
knowledge of import by evading the octroi.
The date of knowledge is a question of facts.
21. A question of fact has to be decided upon proof of facts.
It could not have been decided on un-sworn objection and
un-sworn reply.
Moreover, when testimony of complainant's
witness was already recorded said witness could have been
recalled or the complainant could have brought any other
witness to prove exact date when discovery of evasion took
place.
22. It is evident that the judgement/order dismissing the
complaint is rendered without giving to present appellant an
opportunity to meet on facts the ground on which complaint was
sought to be dismissed and was dismissed.
23. K.M. Mathew (supra) is already over-ruled in case of
Adalat Prasad V/s. Rooplal Jindal (2004) 7 SCC 338. Therefore,
dismissing the case on the ground of error in issue of process
is exercise of powers and jurisdiction, not vested in the
Magistrate.
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Cr appeal 87-1998
24. When case had reached hearing and was adjourned from time
to time for various reasons, it was a matter of spending little
more days in examination of one or more witnesses for the
corporation and rebuttal if accused wanted to do. Common
evidence was to be recorded as regards date of knowledge of
evasion in all cases which were around 240 in number.
25. Learned Magistrate fell prey to the trick played by the
accused, and dismissed the complaint:-
(a)
In gross violation of principles of natural justice.
(b) On a preliminary point, complaints are dismissed
though the case was heard on merits and case was
about to be concluded.
(c) The complainant was not given a chance to bring
witnesses on the point of limitation, based on the
discovery of evasion.
26. Receipt of vague information of evasion may have received
early. However, receipt of exact information was a matter of
fact based on record. The complainant was entitled to a fair
deal by offering opportunity to meet said objection. This
opportunity was denied by the Magistrate. The procedure of
jumping to the judgement without fixing the application/
objection for leading evidence, has resulted in grave prejudice
to the cause of justice.
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Cr appeal 87-1998
27. It was a case of mass evasion of octroi on precious and
valuable metals, and dishonest effort. The act could not be
accidental, but was rather deliberate and calculated. It ought
to have been dealt with more responsibly and better
sensibility.
28. Impugned order results in perpetrating a fraudulent act of
evasion of octroi by trader of gold, who sell the product for a
pre notified price and advertise their honesty about purity of
gold. The accused had nothing to loose if they pay the taxes,
since they have to recover the octroi when paid punctually from
the buyers.
29. Therefore, impugned judgment and order deserves to be
quashed and set aside, and is accordingly set aside.
30. CC No. 775 of 1980, is remanded to the trial court.
Parties are directed to appear before trial court on
9th December, 2013.
31. The respondent accused shall apply for bail and shall
furnish fresh bond as may be ordered by trial court. Trial
Court shall decide the case in accordance with law. All points
and contentions are kept open.
(A. H. JOSHI, J.)
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