Bombay High Court
Department vs M/S. Motiram Javharmal Bafna & Co on 24 October, 2013
Author: A. H. Joshi
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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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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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.
4/ 10 ::: Downloaded on - 27/11/2013 20:29:25 :::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."
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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."
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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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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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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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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.
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