The Agricultural Produce Market ... vs Mohammed Ali
2023 Latest Caselaw 7718 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF NOVEMBER, 2023

                        BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

           CRIMINAL APPEAL NO. 164/2013(A)

BETWEEN:

THE AGRICULTURAL PRODUCE
MARKET COMMITTEE,
YESHWANTHAPURA,
BENGALURU,
REP. BY ITS SECRETARY,
SRI. N. PUTTAWAMY.
                                             ....APPELLANT
(BY SRI. T. SWAROOP, ADVOCATE)

AND:

MOHAMMED ALI
S/O KHADAMALLI,
AGED ABOUT 55 YEARS,
OWNER OF:
M/S ANEES STORES,
NO.2, BILAL MASIDI COMPLEX,
AREBIC COLLEGE MAIN ROAD,
KADUGONDANAHALLI,
BENGALURU-560 045.
                                          .... RESPONDENT
(BY SRI. S.D.N. PRASAD, ADVOCATE)

     THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE IMPUGNED ORDER OF ACQUITTAL
DATED 30.07.2012 PASSED BY THE M.M.T.C.-1, BANGALORE
CITY       IN        C.C.NO.498/2010-ACQUITTING      THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 114, 117 AND
114(A) OF K.A.P.M. (R&D) ACT, 1966.
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     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.10.2023, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                         JUDGMENT

This appeal is filed by the appellant challenging

the judgment of acquittal passed by M.M.T.C - 1, Bangalore

City in C.C.No.498/2010 dated 30.07.2012.

2. For the sake of convenience, the parties herein

are referred with original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are

that the complainant had filed a private complaint against

respondent / accused alleging that he has committed

offences under Sections 8, 65, and 66 of Karnataka

Agricultural Produce Marketing (Regulation and

Development) Act, 1966 (hereinafter referred to as 'the Act'

for brevity), which are punishable under Section 117, 114

and 117A of the said Act. According to the prosecution, the

officials of the complainant had inspected the shop of the

accused and found that accused was carrying wholesale

business of notified agricultural produce on 02.12.2009. It

is also alleged that he was found in possession of 336 bags

of rice weighing about 25 kgs each, 20 bags of rice

weighing 50 kgs each, 4 bags toor dal weighing about 50

kgs each, 2 bags of groundnut weighing 50 kgs each and

6 bags of urad dal weighing about 50 kgs each, totally

valued about Rs.3,69,733/- without obtaining licence and

without submitting statement of accounts along with other

particulars to the complainant. It is also alleged that the

market fee of Rs.5,546/- was required to be paid along with

penalty of Rs.16,638/-, but that was not done and hence,

notices were issued and inspite of service, they were not

responded and hence, the complaint came to be filed by the

Secretary as an authorized person.

4. On the basis of the complaint, the learned

Magistrate has taken cognizance and issued process. The

accused / respondent appeared through his counsel and

was enlarged on bail. He denied the accusation.

5. The prosecution has examined in all, 3 witnesses

and placed reliance on 9 documents. After conclusion of the

evidence of the prosecution, the statement of accused

under Section 313 of Code of Criminal Procedure, 1973 was

recorded to enable the accused to explain the incriminating

evidence appearing against him in the case of the

prosecution. The case of the accused is of total denial. He

has not led any evidence in support of his defence.

     6.    Having      heard   the   arguments         and        after

appreciating   the oral and documentary             evidence,      the

learned Magistrate has acquitted the accused for the

offences punishable under Section 8, 65 and 66 of the Act,

which were punishable under Section 117, 114 and 117A of

the said Act. Being aggrieved by this judgment of acquittal,

the prosecution is before this court by way of this appeal.

7. Heard the arguments advanced by the learned

counsel for the appellant and learned counsel for the

respondent. Perused the records.

8. The learned counsel for the appellant would

contend that the accused was trading in huge quantity of

notified agricultural produce without licence and raid was

conducted on 02.12.2019 and notified goods worth of

Rs.3,69,773/- were found and he was required to pay

market value, which was not paid. He would also assert that

Ex.P4 is the mahazar and it is signed by the accused and

seal is also affixed and Ex.P5 and Ex.P7 are the notices,

while Ex.P6 and Ex.P8 are the acknowledgements, which

disclose that notices were serviced and Ex.P3 is the bill

recovered during inspection. He would contend that in view

of the signing of the mahazar by the accused, the burden

shifts on the accused, but the learned Magistrate casted

burden on the prosecution regarding proof of existence of

the shop, disclosure of schedule of the shop and ownership

of the shop by the accused, which has resulted in

miscarriage of justice. Hence, he would seek for setting

aside the impugned judgment of acquittal and sought for

convicting the accused / respondent.

9. Per contra, the learned counsel for the accused

would contend that prosecution has not proved that accused

is the owner of the Anis Stores. It is also asserted that the

witnesses were not able to state the boundaries of the shop

and no photographs were taken and signatures of localites

were also not obtained. He would also assert that the

evidence of the owner of the building is also not recorded to

show that accused was running Anis stores in the said

building and hence, he would contend that the court below

has appreciated all these aspects in its proper perspective

and has rightly acquitted the accused. Hence, he would

seek for dismissal of the appeal.

10. Having heard the arguments and on perusing the

records, now the following point would arise for my

consideration:

Whether the judgment of acquittal passed by the trial court is perverse, arbitrary and erroneous so as to call for any interference by this court?

11. It is important to note that this is an appeal

against the judgment of acquittal. The basic principle of law

is that the appellate court should be slow enough while

interfering with the judgment of acquittal. Further, it is

settled law that when two conclusions are possible, the

conclusion beneficial to the accused shall prevail.

12. It is the contention of the prosecution that on

02.12.2009, PW2 along with his staff visited Anis Stores and

there they found that the notified agricultural goods worth

of Rs.3,69,733/- were stored without paying market fee and

inspite of issuance of notice to pay the penalty, the same

was not paid. It is alleged that the said store was situated in

the Arabic College Main Road in Bilal Masjid complex

bearing stall No.2. It is further asserted that the accused /

respondent is the owner of the said store. In this regard,

the reliance was placed on Ex.P4-mahazar, which is claimed

to be signed by the accused.

13. The accused has disputed his signature on Ex.P3

and Ex.P4. It is the contention that Ex.P3 was seized from

the said shop, but on perusal of Ex.P3, it does not disclose

that it was seized from the said shop. The complainant has

not obtained the original of Ex.P3 from concerned Seema

Traders who had issued the same. No explanation was

offered in this regard. The complainant is the Secretary who

has simply set the law in motion and her cross-examination

reveals that she had not visited the spot prior to lodging of

the complaint. Hence, it is evident that her statement is

based on Ex.P4. PW2 is the person who conducted the raid

and PW3 is the signatory to the mahazar witness Ex.P4. But

both these witnesses specifically asserted that they are

unable to disclose the boundaries of Anis stores. Even

prosecution has not examined the neighbouring stall holders

to prove the fact that the accused is running Anis Stores

and he is the proprietor of the same. Except Ex.P4 and

statement of PW2 and PW3, there is nothing on record to

substantiate this contention.

14. As per the allegations, the Anis store is being run

in Bilal Masjid complex in Stall No.2. In that event, the

complainant should have secured relevant documents from

the Bilal Masjid to show that the stall No.2 was leased to

accused on rent and he is running Anis Stores. This material

evidence was not secured by the complainant.

15. PW2 and PW3 are admittedly official witnesses

and only on their self interested testimony, the prosecution

cannot prove the guilt of the accused. Even as observed

above, the original documents pertaining to Ex.P3 were not

secured to prove that these goods were delivered to the

accused. Nothing prevented PW2 from taking relevant

photographs at the time of inspection to prove the raid as

asserted. Considering all these facts and circumstances, it is

evident that the complainant has not made any sincere

attempts to prosecute the accused and only on the basis of

Ex.P3 and Ex.P4 they are proceeding. Unless the

relationship between accused and anis stores is established,

the complainant cannot succeed in the prosecution, but the

evidence fall short in this regard. The learned Magistrate

has appreciated all these aspects in its proper perspective

and has rightly acquitted the accused. No illegality or

perversity is found in this judgment so as to call for any

interference. Hence, the point under consideration is

answered in the negative and hence, I proceed to pass the

following:

ORDER

The appeal stands dismissed by

confirming the judgment of acquittal passed by

the trial court.

Sd/-

JUDGE

SS