Karnataka High Court

The Agricultural Produce Market ... vs M/S Siddalingeswara Industries on 21 November, 2023

Author: Rajendra Badamikar

Bench: Rajendra Badamikar

                            1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 21ST DAY OF NOVEMBER, 2023

                         BEFORE

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

          CRIMINAL APPEAL No.1166/2011(A)

BETWEEN:
THE AGRICULTURAL PRODUCE
MARKET COMMITTEE,
HONNALI, HONNALI TALUK,
DAVANAGERE DISTRICT,
REP. BY ITS SECRETARY,
N. SHEKARAPPA.
                                            ....APPELLANT
(BY SRI. T. SWAROOP, ADVOCATE)

AND:

1.     M/S SIDDALINGESWARA INDUSTRIES,
       KAMMARAGATTE,
       HONNALI TALUK,
       REP. BY ITS PARTNERS.
2.     N.D. PANCHAKSHARAPPA,
       S/O N.D. BASAPPA,
       MAJOR, R/O NEHRU ROAD,
       NYAMATHI,
       HONNALI TALUK.
3.     B. RUDRAPPA,
       S/O SHIVAPPA,
       MAJOR, R/O VISVESWARAIAH ROAD,
       NYAMATHI,
       HONNALI TALUK.
       APPEAL AGAINST R-3 ABATED
       V/O DTD: 2.12.2021
                                         .... RESPONDENTS
                                    2




(BY SRI. UMESH .P.B, ADVOCATE FOR
    SRI. R.B. DESHPANDE, ADVOCATE FOR R1 AND R2,
    V/O DTD:2.12.2021, APPEAL AGAINST R3 IS ABATED)

      THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED:3.9.2011 PASSED
BY THE CIVIL JUDGE AND JMFC, HONNALI IN C.C.NO.461/2004-
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/Ss 65 AND 66 OF K.A.P.M.(R&D) ACT, 1966 AND P/U/S 114
AND 117A OF THE ACT.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.10.2023, COMING ON FOR 'PRONOUNCEMENT
OF   JUDGMENT'       THIS   DAY,   THE   COURT   DELIVERED   THE
FOLLOWING:


                            JUDGMENT

This appeal is filed by the complainant-APMC, Honnali,

challenging the judgment of acquittal passed by Civil Judge

& JMFC, Honnali, in CC.No.461/2004 dated 03.09.2011.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are

that on 25.10.2002, at about 10.30 a.m., the Deputy

Director of agricultural marketing Enforcement Cell,

Bangalore has inspected M/s. Siddalingeshwara Industries,

which is a Rice Mill of the first respondent and found that

the person by name Jayadeva son of Rudrappa was present

and he was taking care of Rice Mill as Manager. He was

directed by deputy director to produce stock book, purchase

bills, sale bills and receipts for having paid the market fee

for purpose of verification and the said person did not

produce the same. Therefore, the deputy director has

verified the physical stock with the assistance of the said

person and found that there were 104 quintals of rice

valued about Rs.1,20,000/- and 200 quintals of paddy

valued of Rs.1,30,000/. On the said stock the accused were

liable to pay market fee of Rs.2,500/- calculated at the rate

of 1% on the total value of Rs.2,50,000/- and penalty of

Rs.7,500/- calculated at the rate of 3 times of the market

value. It is further asserted that on 23.06.2003 and

23.07.2003 Deputy Director had issued notices to the

accused calling upon to produce the accounts pertaining to

year 2002-03 for the purpose of verification, but there is no

response. Thereafter, the Deputy Director collected

information from Electrical Department regarding the

consumption of electricity by the respondents and a notice

came to be issued informing the respondents that 7,361

qunital of paddy was hulled in the mill by utilizing 29,445

units from 01.04.2002 to 31.03.2003 and details were

sought and respondent had furnished information stating

that 75% of the paddy were belonged to agriculturists and

the same was hulled into rice. Thereafter, on 14.10.2003, a

fresh notice came to be issued calling details of particular

agriculturists who have brought paddy to the Rice Mill for

the purpose of hulling. But the said particulars were not

produced. Hence, on the basis of utilization of electricity of

29,449 units in the mill, it is asserted that respondents had

hulled 7,361 quintal of paddy worth of Rs.36,80,500/- and

by hulling paddy, the respondents had got 4,785 quintal of

rice value of Rs.47,85,000/- in total Rs.84,65,500/- and

were liable to pay Rs.84,655/- as a market fee and penalty

thereon to the tune of Rs.2,53,965/-. As payment was not

made, a complaint was lodged by the Secretary and the

learned Magistrate has taken cognizance of the matter.

Accused appeared and contested the matter by pleading not

guilty.

4. There after, 4 witnesses were examined as PW1

to PW4 and Ex.P1 to Ex.P23 were marked. Then, the

statement of the accused under Section 313 Cr.P.C. was

recorded to enable the accused to explain the incriminating

evidence appearing against him in the case of the

prosecution. The case of accused is of total denial and they

did not choose to lead any oral or documentary evidence in

support of their defence.

5. Having heard the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate has acquitted the accused for the

offences punishable under Sections 114, 116 & 117A. Being

aggrieved by this judgment of acquittal, the complainant is

before this Court by way of this appeal.

6. Heard the arguments advanced by the learned

counsel for appellant and learned counsel for respondent.

Perused the records.

7. The learned counsel for appellant would contend

that PW2 who is the investigating officer, has visited the

Rice Mill and accused Nos.2 & 3 were partners and they did

have license during relevant period and accused No.3 died

during pendency and case against him is already abated. It

is asserted that on 25.10.2002, there was a visit and 106

quintal of rice and 200 quintal of paddy was traced and 1%

market value was required to be paid with three times

penalty. It is also asserted that notice under Ex.P3 was

served and there was no reply and hence, the consumption

of electricity was taken note of and Ex.P4 notice came to be

issued which is replied as per Ex.P7. It is replied that 75%

was used by way of out sourcing and details were called,

but details were not furnished. It is asserted that there is

verification by securing the consumption of electricity and

the information regarding the Commercial Tax Department

and it is contended that the consideration of consumption of

electricity is permissible under Section 83(A) of the Act as 3

to 3½ units is required for hulling 1 quintal of paddy into

rice. He would also contend that under Section 66

production of document is mandatory, which is punishable

under Section 117A of the Act and the trial Court has

committed an error by placing reliance on the judgment of

1979 which has no application after amendment and hence,

he would seek for conviction by allowing the appeal.

8. The learned counsel for respondent would

contend that the raid was held on 25.10.2002 and

complaint came to be lodged on 25.09.2004 after nearly 2

years. It is asserted that there is delay in lodging a

complaint and only fine is prescribed and under Section 468

of Cr.P.C. entire prosecution itself is barred by law of

limitation. Hence, it is contended that recovery of market

fee is entirely different and penal proceedings are entirely

different and hence, when the proceedings are barred under

the provisions of 468 of Cr.P.C. question of prosecuting the

accused does not arise at all. Hence, it is contended that

the trial Court has rightly acquitted the accused and sought

for dismissal of the appeal.

9. Having heard the arguments and after

appreciating the oral and documentary evidence, now the

following point would arise for my consideration:

"Whether judgment of acquittal passed by the trial Court in CC No.461/2004 is arbitrary, erroneous and perverse so as to call for any interference by this Court."

10. There is no serious dispute of the fact that

accused No.1 is a firm, while accused Nos.2 & 3 are the

partners. Accused No.3 died during pendency of the suit

and case against him is already abated. As per the case of

the prosecution, the accused have committed offences

punishable under Sections 65 & 66 of the Karnataka

Agricultural Produce Marketing (Regulation and

Development Act), 1966 which is punishable under Sections

114 & 117 of the Act and liable to recover the market value

under Section 116 of the Act. But we are concerned about

the penal provisions only.

11. As per the case of the prosecution, the inspection

was said to have been conducted on 25.10.2002 to the Mill

and there the stock register, sale bills, purchase bills etc.,

were not produced. It is further asserted that on physical

verification, they found 104 quintal of rice and 200 quintal

of paddy. On the basis of these aspects, this prosecution

was initiated. The prosecution has placed reliance on

evidence of PW1 to PW4. PW1 is only Secretary who has set

the law in motion, while PW2 is a person who visited the

spot. PW3 & PW4 have given information regarding

commercial tax and consumption of electricity and their

evidence is not of much relevancy. The entire case of the

prosecution rests on evidence of PW2. PW2 though asserts

that he visited on 25.10.2002 and demanded the purchase

bill, cash bill and stock bill, he has not issued any notice

during the visit to enable the accused to produce the same.

Even he claims that he has physically verified. But

interestingly, no mahazar was drawn. In the absence of

drawing any mahazar, it is hard to accept the contention of

the prosecution that PW2 visited the Rice Mill and

demanded the details.

12. No doubt, subsequently, notices have been

issued, but the physical verification is required to be first

proved. But there is no such evidence to substantiate this

aspect.

13. The prosecution is placing reliance on electricity

consumption under Section 83A, which is permissible under

the Act. But there is no evidence produced by the

prosecution that the concerned officials have visited the

installation and asserted what are the lightings used and

what is the base for calculation. It simply discloses the

consumption of electricity and it cannot be presumed that

the entire consumption was towards hulling the paddy.

Hence, the said arguments in this regard cannot be

accepted in the absence of drawing any mahazar regarding

visit and getting details from the concerned Department as

to hulling the paddy and consumption of electricity and how

much electricity can be consumed for hulling and how much

can be consumed for general electricity and how it can be

segregated. This material evidence is missing.

14. Apart from that, these offences are triable in a

summary way and punishable with fine alone. Under such

circumstances, under Section 468 of Cr.P.C. there is

limitation prescribed for taking cognizance and bar for

taking cognizance. Section 468 Cr.P.C. stipulates limitation

for taking cognizance and it reads as under:

"468. Bar to taking cognizance after lapse of the period of limitation.

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation. (2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

(3) 1 For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]."

(Underlined by me)

15. In the instant case, the offence is punishable

with a fine alone and hence, the period for taking

cognizance is six months. Further, the wording used is no

Court 'shall' take cognizance and further, under Section

469, the limitation commences on the date of the offence

and no leave was sought by the prosecution for condonation

of the delay and straight way complaint came to be lodged.

When the offences are punishable with fine only, the

limitation commences on 25.10.2010 and complaint ought

to have been field on or before 24.04.2003, but the

complaint itself was filed on 25.09.2004 and it is clearly