Jagjitsingh Dalipsingh Chiragia vs Satyanarayan Mathuraprasad
2016 Latest Caselaw 5164 Bom

                                                                   176.04crvn
                                     (1)




                                                                   
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD
                                                  




                                           
            CRIMINAL REVISION APPLICATION NO.176 OF 2004

     Jagjitsingh s/o Dilipsingh Chiragia,
     Age: 53 years, Oc: Service,




                                          
     R/o. Nanded, C/o Nanded Waghala
     Municipal Corporation, Nanded.       ..APPLICANT

              VERSUS




                                   
     Satyanarayan s/o Mathuraprasad
     Agrawal, Age: 48 years, 
                             
     Occ: Business, R/o. Ganaraj
     Apartment, Bhagatsing Road,
                            
     Nanded.                                        ..RESPONDENT


     Mr M.V. Deshpande, Advocate for applicant;
      
   



                             CORAM :  N.W. SAMBRE, J.

DATE : 1st SEPTEMBER, 2016

ORAL JUDGMENT :

Learned Chief Judicial Magistrate, Nanded

vide order dated 26th July, 2001 in Summary

Criminal Case No. 3739 of 1999, in exercise of

powers under Section 255(2) of the Code of Criminal

Procedure, convicted the respondent-accused for the

offence punishable under Section 398 of the Bombay

Provincial Municipal Corporation Act, 1949

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(hereinafter shall be referred to 'Corporation Act'

for the sake of brevity) and sentenced him to pay

penalty to the tune of Rs.79011/-, in default, to

suffer simple imprisonment for two months, which is

modified in Criminal Appeal No. 52 of 2001 by

learned Sessions Judge, Nanded at the behest of

respondent-accused, reducing the amount of penalty

from Rs.79011/- to Rs.9217-50 ps.

2. Learned Counsel for the applicant would

urge that learned Sessions Judge has taken

non-pragmatic view. According to him, the fact

remains that there has to be presumption against

the respondent-accused, particularly when he was

caught red handed qua non payment of octroi for

goods which he has traded in earlier point of time

than date of raid without paying an octroi. He

would then urge that learned appellate Court should

have remanded back the matter, if it was not

satisfied with approach of the Corporation

authorities and that of the Magistrate in proving

offence under the provisions of Corporation Act for

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evasion of octroi.

3. Learned Counsel for the respondent is

absent.

4. It is required to be noted that learned

Magistrate has presumed that there is evasion of

octroi even for goods which were in the trade of

respondent-accused prior to date of seizure of

goods by the flying squad i.e. commission of

offence in question of 6th October, 1999, whereas

learned Sessions Judge has considered that there

was hardly any material much less the notice to the

respondent-accused calling upon him to produce

octroi receipts so as to demonstrate that he has

not paid octroi for period earlier to 6th October,

1999.

5. Prima facie, the view taken by learned

Sessions Judge appears to be practical view,

particularly in the light of reasons recorded in

paragraph-10 of the judgment impugned. Learned

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Sessions Judge has observed that original bill book

seized by the complainant is not produced on record

during the trial, from which, it was presumed by

the Magistrate that octroi for the goods was not

paid. Apart from above, it is to be noted that

offence in question is old and 17 years back. At

this juncture, by exercising revisional

jurisdiction, no fruitful purpose will be served.

Criminal Revision Application, as such, fails and

stands rejected.

(N.W. SAMBRE, J.)

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