Gujarat High Court
Now Since The Facts-Situation And The ... vs Bhavani Industries on 15 November, 2011
CRIMINAL REVISION APPLN. NO. 151 of 1991
to 274 of 1991
CRIMINAL REVISION APPLN. NO. 276 of 1991
to 374 of 1991
CRIMINAL REVISION APPLN. NO. 490 of 1991
to 592 of 1991
CRIMINAL REVISION APPLN. NO. 394 of 1991
{Total 327 Matters}
DATE OF DECISION : 30-12-1993
For Approval and Signature :
THE HON'BLE MR. JUSTICE K.J VAIDYA
CHHATRASINH V PARMAR
OCTROI INSPECTOR
VADODARA MU..
jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
V.
ARTI TRANSPORT COMPANY
VADODARA & Ors.
1.Whether Reporters of Local Papers may be
allowedto see the judgment ? YES
2.To be referred to the Reporter or not ? YES
3.Whether their Lordships wish to see the fair copy
of the judgment ? NO
4.Whether this case involves a substantial question
of law as to the interpretation of the
Constitution of India, 1950 or
any other ordermade thereunder ? NO
5.Whether it is to be circulated to the Criminal
Courts ? NO
Mr. Giriraj N Desai, the learned Senior Counsel with Mr.
Pranav Desai for the Petitioner.
Mr. D.K Trivedi, learned PP for the Respondent-State
Mr. B.T Rao, learned Advocate for Respondents in
Criminal Revision Application No. 394 of 1980 only.
In rest of the matters - respondents served.
CORAM : K.J VAIDYA, J.
30-12-1993
ORAL JUDGEMENT
This group of 327 Criminal Revision Applications under
Section 397 and 401 of the Criminal Procedure Code, 1973, at
the instance of the original Complainant - Mr. Chhatarsinh C
Parmar, Octroi Inspector, Vadodara Municipal Corporation,
Vadodara is directed against the impugned judgment and order
dated 7-9-1990, dismissing the complaints under Section 468 (2)
(a) of the Criminal Procedure Code, 1973 rendered seperately in
as many criminal cases by the learned J.M.F.C (Muni.),
Vadodara, wherein as a result the respondents transport owners
who came to be prosecuted for the alleged contravention of the
Clause-3 of Standing Orders and Octroi Rules (as stated in
detail in the complaints framed under Section 466 (1) (A) (f)
and (a)(b) respectively read with Section 398, 468 of the
Bombay Municipal Corporations Act, 1949), were ordered to be
released.
1.1Now since the facts-situation and the law of limitation
regarding taking cognizance of the offence under Section 468
(2) (a), 470 and 473 of the Code arising in group of these
cases being common; except some variations in matters of
particulars about the : (a) name and addresses of the
concerned accused, (b) type of imported goods in question, (c)
date of importing the said goods, (d) issuance of notice to pay
octroi duty, etc., at the joint request and with the consent of
the learned advocates appearing for the respective parties, it
has been so decided to hear and dispose of all these Criminal
Revision Applications together by this common judgment.
2.In substance, to briefly narrate the broad facts of all
these cases,according to Mr. Chattarsinh Parmar, Octroi
Inspector, the respondents herein are the transport owners,
doing their respective businesses of transporting goods in
Vadodara City. These respondents on given dates, as set-out in
the respective complaints, had imported certain goods in their
respective vehicles within the limits of the Vadodara Municipal
Corporation, by making palpably false representation before the
concerned Octroi Clerk that the same were to be immediately
exported from the City limits, and on the basis of the same,
they obtained "transit passes" under Clause 3 of the Standing
Orders (made by Baroda Municipal Corporation confirmed by the
Government vide its Resolution dated 12-3-1970) framed u/s.466
(1)(A)(f) of the Bombay Municipal Corporation Act, 1949 {for
short "B.M.C. Act"}. This Clause 3 of the Orders reads as
under :-
"(3)Procedure to be followed for exporting the good
intended for immediate exportation :- Any person in
charge of the goods indended for immediate exportation
that are being imported into the Octroi limits of the
Municipl Corporation will be bound to convey the said
goods from the Import Naka to the Export Naka under the
Municipal Supervision in accordance with the conditions
and in the manner prescribed below :-
(i) The said goods will have to be exported
within six hours from the time of import or such
longer period as may be permitted in accordance
with provisions contained herein after.
(ii) The said goods will have to be conveyed from
the Import Naka to the Export Naka without any
change of hands (due to sale or otherwise) or
form, condition or appearance by any process of
manufacture or otherwise and without their being
used Consumed or sold within the octroi limits of
the Municipal Corporation.
(iii) The person bringing the goods at the Import
Naka shall give a declaration and an undertaking
to the Import Naka Karkun in the form prescribed
in Scheduled "A", pay the supervision fees
prescribed in Schedule "B" and obtain from him a
Transit Pass in the form prescribed in Schedule
"C".
(iv) After obtaining the Transit Pass he shall
proceed to the Export Naka with the said goods in
the company of the Municipal Escort provided for
this purpose by the routes which are specified in
Schedule "G".
(v) After arriving at the concerned Export Naka,
he shall after satisfying himself that the goods
brought to the Export Naka are the same as those
that are noticed in the Transit Pass and that
they are brought in accordance with the
Conditions prescribed, note the time of export
and other necessary details and certify the
export of goods on the Transit Pass. He shall
thereafter be bound to remove the said goods
outside the Octroi limits of the of the Municipal
Corporation forthwith. The Transit Pass shall be
retained by the Export Naka Karkun, and
certificate of the export of material shall be
given by the Export Naka Karkun to the Importer
on the tripliciate Transit pass. "
Further according to the petitioner, since the respondents
herein in contravention of the aforesaid sub-clause (iii) of
Clause-3 of the Orders did not transport the imported goods in
question out of the Octroi limits, they were liable to pay the
octroi duty by virtue of Clause-8 of the Orders which reads as
under :-
"(8) If the goods declared at the time of import to be
the goods intended for immediate exportation are not
conveyed out of the Octroi limits of the Municipal
Corporation within the prescribed time of six hours
from the time of import or within the time extended by
the Export Naka Karkun or if the said goods are not
exported in the manner prescribed in the foregoing
provisions, the said goods shall for all intends and
purposes be deemed as goods imported for use,
consumption or sale within the Octroi limits of the
Corporation and
(i) Octroi due thereon shall be recovered from
the person importing such goods and he shall pay
the amount of octroi within 72 hours of the time
and date of import.
(ii) If the Octroi is not paid as mentioned in
standing order 8 (i) the same shall be recovered
as if it is a property tax and recovered in the
manner laid down in Chapter (viii) of the
Schedule "A" of the Bombay Provincial Municipal
Corporations Act, 1949.
(iii) The Deposit amount if paid as per foregoing
provisions shall be treated as octroi and the
additional octroi if any will be recovered as per
standing order No. 8 (1) and (2) and the person
from whom the deposit is received shall alone be
deemed to be the importer."
This procedure was also not complied with and accordingly the
goods in question ultimately remained goods as having been
imported within the municipal limits of Vadodara without paying
any octroi duty thereupon. Now this unpaid octroi duty is
payable on demand and the procedure prescribed for the same in
Clause-11 of Vadodara Municipal Corporation Octroi Rules, 1985,
framed under Section 457 (7) read with Section 149 (1) of the
B.M.C Act (for short "Octroi Rules") which reads as under :-
"11. Octroi payable on demand :-
(a) Octroi shall be payable on demand.
(b) Every person authorised by the Commissioner
to demand octroi shall tender to every person on
whom the demand is made a bill specifying the
goods taxable, the amount claimed and the rate at
which the tax is calculated.
Provided that when any consignment is received in
part of parts at different times, the tax shall
be levied only in respect of such portion as is
actually imported from time to time and not on
the whole of the consignment entered in the
invoice.
Now, the penalty prescribed for breach of the Standing
Orders, etc. etc. is provided in clause 11 of the said
Standing Order which reads as under :-
11. Penalty :- Whoever commits a breach of any of the
foregoing standing orders or whoever
supplies any false information or
produces false Transport Pass, Transit
Pass or a Deposit Receipt shall be
punishable with fine which may extend to
Five Hundred Rupees and in the case of
continuing breach the offender shall be
punishable with fine which may extent to
Twenty Rupees for every day during which
the breach continues after Conviction for
the first breach.
The aforesaid provision regarding penalty appears to be
primarily for the purposes of the departmental proceeedings for
recovery of octroi dues from the concerned defaulters.
Accordingly, mere recovery of octroi by officers of the
Corporation will not absolve concerned defaulters from the
criminal prosecution, where the penalty provided under section
398 of the BMC Act reads as under :-
Section 398 - Penalty for evasion of Octroi or toll.
Where any vehicle, animal, or goods imported into the
limits of the City are liable to the payment of tool or
octroi any person who, with the intention of defrauding
the Corporation, causes or abets the introduction of or
himself introduces or attempts to introduce within the
limits of the City any such vehicle, animal or goods
upon which payment of the toll or octroi due on such
introduction has neither been made nor tendered, shall,
on conviction, be punished with fine which may extend
toten times the amount of such toll or octroi or to two
hundred and fifty rupees, whichever may be greater.
Similarly, Section 399 provides for the general penalty
which reads as under :-
Section 399 - General Penalty.
Whoever contravenes any provision of this Act or rule,
by-law, regulation, standing order, licence, permission
or notice issued thereunder or fails to comply with any
requisition lawfully made under any such provision
shall, if no penalty is provided in any other provision
of this Act for such contravention or failure, be
punished, for each such offence, with fine which may
extend to one hundred rupees and with further fine
which may extend to twenty rupees for every day on
which such contravention or failure continues after the
first conviction.
On the authorities coming to know about the aforesaid default
committed by the respondents, notices were issued against them
under Rule 16 of the Octroi Rules. The said Rule 16 reads as
under :-
(16) Issue of requisition notices :-
If th Commissioner or any other officer
authorised in this behalf is of opinion or has
reason to believe that it is necessary in the
interest of Municipal Revenue to issue a
requisition notice as per Form 'B' or in such a
form as may be prescribed by the Municipal
Commissioner, from time to time may issue the
same asking any owner or importer of goods or any
person connected with import of goods to return
it duly filled in and signed by him within 15
days from the date of receipt of the same. The
person, who is required by a written notice so to
do, shall fill in correct details and submit a
true account of the goods imported by him. The
Commissioner or the officer authorised may
require of the said person to produce before him
any accounts or documents and to furnish any
information relating to the import of goods or
any other information in connection therewith as
may be required together with the copies of
abstract from such documents, etc. as appear to
him to be necessary. The Octroi duty found due on
the information received as per requisition
notices or when such information is believed to
be incorrect, or such other authentic information
as may be obtained, shall immediately, be paid by
the said person on demand. If the amount so
demanded is not paid on demand, it shall be
recovered as if it were tax by process of
recovering as provided in Chaper VIII (rules of
the Schedule appended to Bombay Provincial
Municipal Corporation Act, LIX of 1949).
Explanation
Recovery of octroi by an octroi inspector or the
oficer authorised by the Municipal Commissioner
from a person who has evaded should not absolve
the latter from criminal prosecution under
section 398 of The Bombay Provincial Municipal
Corporation Act, 1949.
Thereafter even despite issuance of notices, since the
respondents failed to bring their Bills/Invoices, etc, etc., in
question of the goods imported by them and also having further
failed to pay any octroi duty, the Octroi Inspector was
constrained to file complaints against all the concerned
respondents on 12-2-1988 before the learned J.M.F.C [Muni.] at
Vadodara for the alleged contravention of the relevant Standing
Orders 3, 8, 12 and Octroi Rule 12 punishable under Sections
468, 398 and 399 of the B.M.C Act etc., etc.
3.On the respondents appearing before the trial Court,
they submitted an Application Exh. 5, taking-up the
preliminary objection that since the alleged offences were
punishable merely with fine only, the complaints regarding the
same ought to have been filed within stipulated period of six
months as prescribed under Section 468 (2) (a) of the Code, and
since that was not done, there being an express bar to take
cognizance of the offence, all these complaints deserve to be
dismissed and accused be discharged accordingly.
3.1The aforesaid preliminary objection was opposed by the
Octroi Inspector by filing quite an exhaustive written reply at
Exh. 6, 9, etc., etc., on the various grounds as stated
therein :
3.2The learned Magistrate thereafter after hearing both
the sides while upholding the preliminary objection on the
grounds briefly set-out as under, ruled "dismissal" of the
complaints as time-barred and accordingly, ordered release of
the respondent accused.
(i) That having regard to the facts and circumstances
of the relevant octroi rules, since punishment provided
is only of fine, the complaints were required to filed
within the stipulated period of six months and since
the same has not been done, the said complaints in
question cannot be entertained.
(ii) That on going through the relevant provisions of
the Act and the Standing Order No. 8 and the Octroi
Rules, it is not necessary to obtain the sanction. Not
only that but for filing the complaint it is not
necessary to give notice under the aforesaid
provisions. Under the circumstances, the time spent
for issuing the notice and obtaining sanction cannot be
excluded while computing the period of limitation and
in that view of the matter, provision contained in
Section 470 (3) is not applicable.
(iii) That taking into consideration the cases which
have been referred to in the said chapter, the period
of limitation cannot be extended by applying Section
473 of the Code.
(iv) That the complainant had not submitted any
application giving explanation for condoning the delay
and in that view of the matter also, the period of
limitation cannot be extended, as asked for under
Section 473 of the Code.
(v) That the decision of this Court rendered in case of
State of Gujarat v/s. Bhavani Industries, 24 (1983) 1,
G.L.R p-664 was not applicable to the facts and
circumstances of the present cases.
(vi) That the decision of Supreme Court in case of
State of Punjab v/s. Swaransingh, 1981 SC p-1054, the
same was applicable and in that view of the matter
also, complaints deserves to be dismissed.
4.Mr. G.N Desai, the learned Senior Counsel appearing
for the petitioner-Octroi Inspector, while challenging all
these orders dismissing the complaints, vehemently submitted
that the same were ex-facie illegal and perverse and has
resulted into a serious miscarriage of justice. Mr. Desai
further submitted that none of the aforesaid grounds on which
the complaints in question came to be dismissed has any
reasonable base which can sustain the close scrutiny at the
hands of this Court. Making good this submission, Mr. Desai
has in the first instance, submitted that taking into
consideration (i) the date of issuance of the demand notice for
octroi under Rule-12 and the date on which the complaints
actually came to be filed before the learned Magistrate, the
same were within the prescribed time-limit of six months. Mr.
Desai further urged that in case if this Court was not inclined
to accept his above submission then in the alternative, in the
second instance, the evasion of octroi duty must be held to be
a 'continuing offence' and in that view of the matter, by
virtue of Section 472 of the Code, fresh period of limitation
begins to run at every moment of time during which the offence
continues, and therefore, all the complaints were filed within
the statutory time-bound !! and in the third instance,
according to Mr. Desai, taking into consideration the fact
that the octroi evasion is a white collar economic offence,
which day-in and day-out is being committed, defrauding and
robbing the Municipal Corporation of its precious public
revenue, even if the complaints in question were filed beyond
the prescribed period of limitation, then even in the overall
interests of justice, the Court must extend the period of
limitation and thereby take cognizance of the alleged offence.
On the basis of these submissions, it was finally urged by Mr.
Desai that since the impugned judgments and orders on face of
it were illegal and perverse, the same at once deserve to be
quashed and set-aside remanding all these cases to the trial
Curt with a direction to restore the same on record and decide
the same on merits according to law.
5.As against the above, Mr. B.T Rao, the learned
advocate appearing for the respondent vehemently submitted that
the reasons given by the learned Magistrate in his impugned
judgments and orders while dismissing the complaints are just,
legal and proper and therefore the same do not call for any
intereference at the hands of this Court. Mr. Rao further
submitted that the condonation of delay is a matter and the
circumstance which needs seperate special application to be
made to the trial Court and that only on making out the
'sufficient grounds' for the same that the delay in question
can be condoned. In the instant cases, according to Mr. Rao
since the complainant was himself utterly careless and indolent
in making the delay condonation application, there was no
question of condoning the delay in question arises ! Mr. Rao
further submitted that the evasion of octroi duty cannot be
said to be 'a continuing offence' by any stretch of
imagination. In support of this contention, Mr. Rao has
relied upon the decision of this Court rendred in case of M.S
Upadhyay Upadhyay v. Mistri Jayantilal Hargovinddas, reported
in 1985 G.L.H 860. Further, according to Mr. Rao non-payment
of octroi duty cannot be labelled as such a serious economic
offence which can constrain any Court to call in aid Section
473 of the Code, to extend the period of limitation, in order
to take cognizance of the alleged offence even if it is beyond
the prescribed period of limitation. Mr. Rao further
submitted that to condone delays in such type of cases would
indirectly encourage the remissness, indolence on the part of
the public servants in discharge of their duties and
accordingly therefore, to avoid bad precedent and even to set
them right and make them efficient - by way of an object lesson
the delay should not be condoned. Mr. Rao further submitted
that if this Court was not inclined to accept the decision
rendered in case of M.S Upadhyay v. Mistry Jayantilal
Hargovinddas {Supra} then in that case, these matters be
referred to the larger bench to settle once and for all the
controversy raging around this point of 'continuing offence' !
Mr. Rao further submtited that if such matters are taken
lightly, it may unnecessarily give an unjust handle to the
public bodies like Vadodara Municipal Corporation, to file
complaints leizurely at any point of time which may
unnecessarily result into unjust harrassment to the honest
citizen !! In this view of the matter, merely because it has
been alleged that the offence of evading the octroi duty is an
economic offence that by itself is not sufficient ground to
take a stern and stringent view of the matter to enhance the
period of limitation by resorting to Section 473 of the Code.
Mr. Rao further submitted that qua each respondents, Civil
Suits infact have been filed for recovery of the Octroi duty
and in that view of the matter also, these criminal
prosecutions, more particularly when they are belated one,
should not be entertained. Mr. Rao on the basis of these
submissions finally urged that since no case was made out to
interfere with the impugned judgments and orders, all these
revision applications deserve to be dismissed.
6.Now having heard the learned advocates appearing for
the respective parties quite at length, at the very outset, it
must be stated that the submissions made by Mr. Desai have
indeed considerable force, and accordingly therefore, the same
merits to be accepted straighway. In fact on taking a close
look at the chart (submitted by Mr. Desai) of 327 complaints
filed against the respondents wherein case-wise details with
regard to (i) date of offence, (ii) date of issuance of transit
pass/es, (iii) issuance of notice under Rule-12 of the Octroi
Rules, (iv) date of complaints, etc., wherein things have been
specifically particularized there is indeed no difficulty in
holding that all the complaints were filed within the
prescribed period of limitation. From the said chart, taking
into consideration the date on which the demand notices under
Rule-12 were issued and thereafter when despite the said
notices since neither the certificate of export of the goods
nor the octroi duty came to be deposited with authorities
during the stipulated notice period that it can be said with
certainty that the offences of not depositing the transit
passes and the non-payment of octroi in question, obtained on
the basis of the false representation had taken place ! To
understand this, if we look at Sr. No. 1 of the Chart which
pertains to Criminal Case No. 916 of 1988 out of which the
present Criminal Revision Application No. 151 of 1991 arises,
the transit pass was issued on 1-5-1987 and ultimately pursuant
to this, since the said Transit Pass were not deposited, on
coming to know about this fact of the case, the demand notice
was issued against the respondent on 11-11-1987. It was only
when accused did not comply with the said notice and
accordingly failed to pay the octroi duty due in question that
the offence in respect of the same came into light without any
doubt whatsoever. Similarly, in other cases also, the date of
offence would be not the date on which goods were imported on
making false representation but it would be the date on which
actually the octroi was demanded by issuing the notices, and
yet not deposited with !! Had indeed these goods would have
been brought within the Municipal Corporation limits, without
false representation of exporting it only, than perhaps the
alleged offence of non-payment of octroi duty could certainly
be said to have been committed on the date of its import. But
then precisely that is not the case here !! In this view of
the matter, the learned Magistrate was not right when he took a
view that since neither the notice under Rule-12 of the Octroi
Rules nor the sanction to prosecute was necessary, the
commencement of the period of limitation starts from the date
on which goods came to be imported. Now taking into
consideration the pressure of work which surrounds the Octroi
Department of the Municipal Corporation viz., continuous
issuance of innumberable receipts, preparing challans, transit
passes, forwarding the same to the superior officers and then
ultimately sending it to the Central Office, the possibilities
of such papers being either misplaced or lost in transit or for
whatever other reasons not reaching the decision taking
authority in time, cannot be ruled out. Under the
circumstances, to straighway rush to file complaints on mere
apprehensions without exactly ascertaining the true facts in
the first place as to whether the transit passes were deposited
or not and in the second place, if not deposited whether octroi
due has been paid or not would indeed be quite rash, premature,
harsh and unjust to the concerned transport-owners and the same
indeed does not befit the statutory corporation like the
Municipal Corporation !! Precisely, bearing in mind this
particular aspect, by issuing notices demanding the octroi, the
decision taking authority can ascertain with certainty whether
the Transit pass/es are deposited and the certificate of export
of goods obtained and if not, the octroi has been paid or not
!! Because in case if the transit passes are deposited and in
case if not deposited and the octroi is duly paid-up then on
the receipt of such notices, the respondents would surely reply
accordingly, proving their innocence by producing documentary
proof thereof from their record to avoid the prosecution ! In
this view of the matter, issuance of notice is absolutely
necessary in first hand to determine whether in fact the
alleged offences in respect of non-payment of octroi and not
depositing the transit passes have taken place or not. No
complaint in the Court of Law can ever be filed on the basis of
some hunches, apprehensions and inferences without ascertaining
the true facts regarding the commission of the alleged offence
! One must clearly understand the basic line of difference
between some hunches, general apprehensions and the definite
allegations on the basis of which any complaint can lawfully be
filed by statutory corporations in cases like the present one
!!
6.1Similarly, the learned Magistrate was not right in
saying that there is no need to obtain the sanction for filing
the complaints. It is indeed a matter of common knowledge that
the Municipal Corporation is a Statutory body, it has its own
rules of business. Thus, no person of his/her own sweet will
can ever initiate any proceedings, prosecution on behalf of the
Municipal Corporation against any citizens before any Court
unless of course, it is duly and properly sanctioned and
accordingly so authorised. In this view of the matter, even
after the detection of the alleged default, before filing the
complaints, it is incumbent upon the Octroi Inspector, under
the relevant provisions of the rules and law to obtain the
necessary sanction to prosecute and this process obviously
consumes quite some time !! If these two glaring aspects as
highlighted abovein para 6 & 6.1 are just borne in mind then in
view of section 473 of the Code, the facts and circumstances in
which delay (if any and at all) took place stands sufficiently
self-explained to take the cognizance of the alleged offences !
In this view of the matter, since the learned Magistrate was
ex-facie wrong in appreciating the legal position, the impugned
order dismissing the complaints on the said grounds falls flat.
7.Further for the sake of argument, even if it be
accepted that there was some delay in filing the complaints in
respect of the alleged offences, then even, there is no doubt
whatsoever that the evasion of octroi duty being a "continuing
offence", as provided in Section 472 of the Code, fresh period
of limitation would begin at every moment of the time during
which the offence continues. The offence of not paying the
octroi duty and not depositing the transit pass, in the opinion
of this Court is a "continuing offence" because the date on
which the goods were imported in fact from that date the octroi
becomes due and from that date the Corporation is entitled to
recover the interest on it and as long as the same goes on
accruing and ultimately unpaid-up, the offence continues. At
this stage, the submission of Mr. Rao that in view of the
decision reported in case of M.S Upadhyay (supra), the offence
in question cannot be said to be continuing offence has no
substance. Here also it may be pointed out that there appears
to be some error on the part of Mr. Rao in reading the said
judgment because the said judgment also does say in para-4, to
quote, "..... Now, if non-payment of octroi was made an
offence, then certainly we can say that the offence continues
till the octroi is paid and that way the offence will be a
continuing offence, but Section 192-A (Gujarat Panchayats Act,
1961) penalize the introduction of goods which are liable to
the payment of octroi within the octroi limits upon which the
payment of octroi due on such introduction has neither been
made nor tendered. What is made punishable is not the
non-payment of octroi but introduction of goods or animals on
which octroi duty though payable is not paid is an offence and
that offence is complete as soon as the goods or animals are
introduced within the octroi limits....." Reading this part of
judgment with the relevant octroi rules clearly indicates that
what was alleged against the respondents-accused was non
payment of octroi and not the import of goods. Further the
word "Octroi" is defined in Section 2 (c) of the B.M.C Act, it
means a Cess on the entry of goods into the limits of a city
for consumption, use, or sale therein. The reason is goods
were not contraband goods which constituted some offence under
some Municipal Act or Rules. Everybody is free to import goods
provided he is prepared to pay the Octroi duty. In this view
of the matter since the facts in case of the M.S Upadhyaya
(Supra) are not similar, the same cannot be accepted. Apart
this, assuming even for the sake of argument that the decision
rendered in case of M.S Upadhyay (Supra) was applicable with
all force to the facts of the present group of matters, then
even, it is not necessary to refer to the point to the larger
bench as requested by Mr. Rao, as keeping aside the question
whether the alleged offences are continuing offence or not, all
these matters can be and accordingly has been alternatively
allowed on many other points discussed in this judgment.
8.Whether evasion of Octroi duty is an Economic Offence ?
It is of course true that the evasion of the octroi duty is not
included within the embrace of the Economic Offences
(In-applicability of the Limitation) Act, 1974, which came into
force in April, 1974, wherein under Section 2, a schedule is
prescribed wherein as many as 20 offences have been catalogued
as 'economic offences' and the evasion of the Octroi duty is
not so named as economic offence within the list of the sasid
economic offence. But then this list of 20 economic offences
appended to Section 2 of the said Act is merely illustrative
and cannot read as to take in its sweep those offences which
though specifically not named as 'economic offence' yet in
nature and character of facts constituting the said offence, as
an economic offence. But merely because somehow the evasion of
the Octroi duty is left out from being mentioned in the said
schedule, that by itself never makes it lose its character as
an 'economic offence' ! In fact, any offence which ultimately
affects the public-revenue to the prejudice of the public
exchequer, it is an 'economic offence' and once the same is
viewed in the said light, the public interest and justice both
warrant that offences involving the evasion of octroi duty
should be governed by Section 473 of the Code to be extended
the period of limitation in cases the complaints are filed
beyond the period of limitation !
9.Further still, it appears that while deciding the
present group of Criminal Complaints, the learned Magistrate
with due respect has clearly overlooked three commonsense,
tale-telling, self-evident circumstances emerging from the
facts alleged in the complaint itself viz., firstly, that the
evasion of octroi is a white collar chronic economic offence,
as it defrauds and robs the Municipal Corporation of its
precious public revenue which is utterly indispensable and
necessary in the first place to provide and maintain the civic
amenities for the people, in the second place to run the huge
administration as a whole of the Municipal Corporation and in
third place, no Municipality and Panchayat is free from this
chronic economic disease of avoiding payment of octroi duties
by some persons. Accordingly, the leaned Magsitrate ought to
have appreciated as to how indeed without sufficient funds,
revenue of which octroi duty forms major chunk/portion and on
the basis of which the Municipal Corporation was expected to
run its aforesaid show, that is to say if not closed,
efficiently ! For example, to illustrate, the Municipal
Corporation as a statutory public welfare body always bears
very many heavy responsibility and duties towards the public in
providing essential community services like; (i) water-supply,
(ii) Bus-services, (iii) fire-brigade, (iv) public roads and
streets, (v) lighting of roads and streets, (vi) public privies
and urinals, (vii) scavenging and cleaning, (viii) gardens &
Zoo (ix) schools, (x) drains and drainage and disposal of
sewage, (xi) disposal of carcass and animals, (xii) cremation
grounds, (xiii) health, sanitation and hospitals, (xiv) Sports
stadium and town halls for cultural activities, and (xv)
maintenance and regulation of Markets and slaughter houses,
etc., etc. All these services and activities undertaken by
Municipal Corporations invariably calls for huge monetary funds
to start with and then recurring expenses to maintain them and
further to top this, to continuously maintain the staff in
thousands to look after the said essential services and
activities of Corporation and also to pay pension and service
benefits when they retire from their services !! All these
needs, means money, nothing else and less than money and its
uninterrupted regular inflow ! In fact the Municipal
Corporation by itself is as if a mini-State administration.
Thus the evasion of the octroi duty by no standards can be
viewed in isolation as a light, excusable default, howsoever a
smaller be the amount of evasion there be ! Just like a small
hole in the bottom of ship cannot be ignored as it can
certainly bring about the disasterous end by sinking it if
taken lightly !! Similarly, the gravity and seriousness of the
alleged offence on non-payment of octroi duty can not to be
viewed and measured merely and only from the angle of amount of
octroi duty involved and the penalty prescribed for it. For
example, in the instant cases, for the alleged offences of
evasion of octroi duty what is provided is only some rupees of
fine, but then what is required to be further seen is that if
the offence is of the type which is of the nature of daily
occurrence by number of defaulters and unabatedly going on and
on with ingenious schemes and designs to avoid payment of
octroi dues if it is not strictly dealt with, what would be its
resultant ultimate impact upon the public exchequer of the
Corporation is indeed not difficult to imagine ! In fact, as a
result of such wide spread and alarmingly increasing offences,
if payment of Octroi is ultimately avoided then in that case
either the quality and quantity of the public services will be
denied, dwindled or minimized to the greatest disadvantage of
citizens and/or the Corporation may not have sufficient funds
to regularly pay its staff every month !! That in a given
case, Octroi amount may be quite small but at the sametime, it
is a matter of every one's common knowledge that it is drip by
drip and rupee by rupee that the exchequer of the Municipal
Corporation is gradually filled up which ultimately is
channelized to supply money for the payment of salaries,
maintenance of the city, public welfare activities etc., etc.
Can this aspect be ever ignored ? Does it even require in the
first instance, to be pleaded by the Municipal Corporation
befaced with question of defending period of limitation in
filing the Complaint (?) and in the second instance, whether
the same is to be streamlined and highlighted by it while
praying for endoning delay in filing the complaint ?? Of
course, "NO" as how indeed any Court can ever be so myopic in
vision, wooden, insensitive and lacking in commonsense to the
basic reasonableness and perceptibility of the facts situation
to take the judicial notice of the same ? And in the third
instance, apart above, it is indeed indisputable that Vadodara
is one of the biggest and busiest city not only of the State of
Gujarat but also of the Country with hundreds and thousands of
vehicles day-in and day-out commuting across the city from all
directions, importing and exporting goods in thousands and
millions of tones, involving lacs and crores of rupees of
octroi duty, through number of Toll Nakas of the City,
constraining the Municipal Corporation to engage number of
Octroi Clerks attached to the work !! Not only that but
numbers of receipt-books, transit passes and some corresponding
entries in registers are also required to be made and regularly
maintained ! This entire administrative process exerts and
involves heavy pressure of work and thick and innumberable
bunches of papers from so many Octroi Nakas has to pass through
various tables/stages the formidable bottle necks to verify,
check and detect if something wrong was committed during the
process. This obviously takes considerable time at every table
and sometimes in a given case it also gathers dust (!!) because
the agency involved to do all these work is human agency quite
impersonal and at a time quite slow also and accordingly, by
the time, it reaches ultimate decision taking authority, it was
bound to cross-across the stipulated period of limitation !!
All these papers ultimately are forwarded to the Municipal
Authorities sitting in the Central Office to carefully examine
and detect the frauds if any of the non-payment of the octroi
duty. This is indeed a very hard, difficult and quite
cumbersome and time consuming process and thereby a stupendous
task wherein by the time any decision is taken by the decision
taking authorities, it is bound to quite consume some time,
sometimes even more time also ! In fact, the facts discussed
and highlighted above are as glaring and clear as Sun in the
sky and the light and heat it radiates and throws all-around us
for any one to feel its heat, light and presence thereby,
unless of course one is unconscious, dead and gone !!
Therefore, for any court to understand this, it needs neither
any application for the condotion of delay nor any evidence to
be lead in support for that purpose to explain and thereby
ultimately satisfy the concerned Court regarding the facts and
circumstances under which the delay in question came to take
place. It is only when the Court unwarrantedly assumes a role
of innocent frog in the well, that it requires to be informed
!! In this view of the matter, irrespective of the attending
facts and circumstances of that particular case, it is indeed
down right - wrong first to insist for an application for delay
condonation setting out the facts and circumstances leading to
the alleged delay, if any. Evidence is indeed a need only
whenever the Court is in dark and doubt to decide any point,
but when the attending facts situation and circumstances are
more or less gallore, self-eloquent and self-evident of which
undoubtedly the judicial notice can be taken and must be taken,
there is indeed no need for any such application for delay
condonation. Ordinarily, procedure is - a device a bridge, a
step which is necessary where the gap is wide-enough which
without there being any bridge or the step in between, it is
indeed too difficult to cross across and setp-over to have the
correct assessment of the fact on the otherside !! But as
against this, when in between the gap/delay in question,
applying the test of the right minded person or the man of
ordinary prudence, attending facts-situation and commonsence,
is day light clear there is indeed no necessity upon some
written mechnical application to plead and prove the same. In
this view of the matter, it is simply strange as to how indeed
the learned Magistrate failed to appreciate this simple fact in
the first instance that the cases involving evasion of the
octroi duty and that too on such a large scale at a time by
number of transport-owners can by any strecth of imagination be
said to be trivial, insignificant offences and in the second
instance, looking to the colossal workload at every Octroi Naka
and Central Office, how it can be said that there was any
unreasonable delay in filing the complaint in case if at all
there was any delay in filing the same, which can be summarily
dismissed on the alleged ground of limitation !! Nodoubt, it
is quite true that taking into consideration merely myopic one
sided view of the picture of the case viz., (i) the facts
alleged in the complaint, (ii) the alleged contravention of
relevant octroi rules and Standing Orders, (iii) the penalty
prescribed for the same being only fine, and (iv) the relevant
provision contained in Section 468 (2) (a) of the Code, to any
casual onlooker, the same may tempt to give benefit of bar of
limitation thereunder to the accused. But this disenchanted,
unconcerned attitude is not the way in which degree and extent
of its reach on the public interest and in fact, when any Court
is called upon to decide the question of limitation, it cannot
afford to be unconcerned viewer firstly, ignoring the gravity
and seriousness of offence and the degree and extent of its
reach on the public interest, in the instant case public
revenue and secondly, looking at few words, ripples, bubbles on
the water (procedural) surface of Sea (Law) as it must also
attempt to guage and find out the depth of water !!
Accordingly, it cannot afford to be oblivious to the two
important aspects involved in the point viz., in the first
instance, the gravity and seriousness of the offence, in the
instant cases the evasion of octroi duty which is practically
irreversible, uncontrollable relapsing criminal tendency, a
chronic virus eating away the vitals of the public finance of
the Municipality and it continues on large or small scale till
the Octroi Rules continue !! If this die-hard, obnoxious
on-going habit of octroi-theft is taken casually, that only
means that the learned Magistrate has lost the judicial
perceptibility and in the second instance, provision contained
in Section 473 of the Code which calls upon the Court to
condone delay and extend the period of limitation to take
cognizance of the offence in public interest !!
9.That takes us to the ground No. 4 on which the
complainant came to be dismissed. On going through the said
judgment of State of Gujarat v. Bhavani Industries (supra),
the learned Magistrate has committed patent and obvious error
in holding that the same was not applicable to the facts and
circumstances of the present cases.
10.Turning to yet another ground viz., the Supreme Court
decision rendered in case of State of Punjab v. Swaransingh
(Supra) on the basis of which, the learned Magistrate dismissed
the complaints, it may be stated that the same having no
bearing on the facts of the present case, is of no assistance
to the respondents-accused. In fact there cannot be any
dispute as regards ratio laid down in the said decision, in the
facts and circumstances of that case. Unfortunately, the
learned Magistrate was unable to distinguish the difference
between the two sets of facts-situation of the alleged offences
in cases at hand and one in case before the Supreme Court. In
that case offence was under Section 406 only and not one that
of not paying the octroi dues which is a serious recurring
economic offence for which tdhe Legislature has taken care by
providing Section 472, 473 of the Code where it is stated that
in case of the 'continuing offence' a fresh period of
limitation shall begin to run at every moment of the time
during which offence continues and that in a given case, in the
interest of justice can be extended ! Not only that but the
facts and circumstances of the S.C were too simple where
Section 473 of the Code can have hardly any say to extend the
period of limitation unlike the present group of cases where
Section 473 of Code is immediately applicable !
11.Apart aforesaid discussion, on carefully examining the
complaints in all these matters, it is indeed significant to
note that they appear to have been filed only for the alleged
default of not returning the Transit pass/es as warranted by
Clause 3 of the Standing Order and in turn accordingly also for
not paying up the octroi dues under the relevant standing
orders and the octroi rules which are punishable under the
Vadodara Muncipal Corporation Act, blissfully ignoring
altogether that the very same facts and circumstances alleged
in all these complaints also simultaneously prima facie
constitutes offence punishable under Sections 175, 176, 177,
199, 200, 403, 406, 415 and 420 of the Indian Penal Code.
11.1Section 175 of the I. P Code pertains to intentionally
omitting to produce a document to a public servant by a person
legally bound to produce or deliver such document, for which
the sentence provided is simple imprisonment of one month or
fine of Rs. 500/- or both. Section 176 pertains to
intentionally omitting to give notice or information to a
public servant by a person legally bound to give such notice or
information, for which the punishment provided is simple
imprisonment for one month or fine of Rs. 500/- or both.
Section 177 pertains to knowingly furnishing false information
to a public servant, for which the punishment provided is
imprisonment for a period of six months or fine of Rs. 1,000/=
or both. Section 199 pertains to false statement made in any
declaration which is by law receivable as evidence and for
which punishment provided is imprisonment for seven years and
fine. Section 403 pertains to dishonest misappropriation of
the property, for which the punishment provided in Sec. 406 is
imprisonment for a term which may extend to two years or with
fine, or with both. Section 406 pertains to punishment for
criminal breach of trust, for which the punishment provided is
imprisonment for a term which may extend to three years, or
with fine, or with both. Section 415 and 420 pertains to
cheating and thereby dishonestly inducing delivery of property,
or making alteration or destruction of a valuable security and
for which sentence provided is imprisonment for seven years and
fine. Thus taking into consideration the aforesaid offences
under the Indian Penal Code and the punishment provided for the
same, the period of limitation would not be restricted to six
months only as provided under Section 468 (2) (a) of the Code
but the same would fall within the ambit of Section 468 (2) (b)
and 468 (2) (c) of the Code having more period of limitation.
This is quite clear moment we look at the Section 468, which
reads as under :-
Section 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 a term exceeding
one year but not exceeding three years.
(3) For the purpose 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.
When all these cases are examined from this stand point the
same being offenes under the I.P Code as well, there is no
question of limitation that arises in the present cases, as all
cases are filed within the prescribed statutory period of
limitation. It is unfortunate that the complainant has
lost-sight of this aspect of the cases where the
respondent-accused are liable to be prima facie tried for the
alleged offences under the I.P. Code. The learned Magistrate
in this view of the matter is directed to suitably add the
alleged offences under the I.P. Code after hearing both the
sides.
11.2Apart this case, in other such cases also, even if the
complainant for whatever reason has failed to pray the Court to
punish the accused for the alleged offences under the relevant
sections of IPC, nonetheless it shall be the duty of the
concerned learned Magistrate of his own to see the relevant
offences under the IPC are added and accordingly the accused is
punished if the offence is brought home.
12.Now turning to the next argument of Mr. Rao that some
suits are filed against the present respondents for the
recovery of the octroi duty, regarding which the complaints
have been filed and are pointed out to be time-barred, that by
itself is hardly a ground to discard the criminal prosecution
as criminal complaints stand entirely on different and its own
footings on the basis of contravention of rules constituting
Criminal offences as stated above. When that is permissible,
the complaint can be filed and merley because the said suit is
filed that cannot debar the complaintant to file the criminal
complaints against the respondent-accused before the learned
Magistrate.
12.1In view of the aforesaid discussion, in the first
place, it is indeed very clear that all complaints are filed
within the stipulated period of limitation of six months.
Apart this, remotely even, in case if this Court was to hold
that there was some delay, in the filing the complaints then
even, taking into consideration the robust common sense view of
the entire circumstances attending all these cases, it must be
said with more than certainty that the alleged offences being
'Economic and continuing offences' also, in very nature of the
facts and circumstances of the case, they indeed quite
satisfactorily explain the delay in question as warranted under
Sections 472 and 473 of the Code, to deserve the cognizance of
the same being taken. Still further, apart taking into
consideration the facts alleged in the complaint also
constitute offences under the I.P Code.
12.2In this view of the matter, since the grievance voiced
by the learned Advocate Mr. Desai is found to be absolutely
justified, it is required to be held that the impugned
judgments and orders passed by the learned Magistrate
discharging the accused on face of it being illegal and unjust,
the same deserves to be quashed and set-aside and accordingly,
these cases are remanded to the trial Court to be disposed off
on merit, according to law, more particularly, in the light of
the observations made in above para 11.1 of this judgment.
13.In the result, this group of 327 criminal revision
application is allowed. In all these cases, the impugned
judgment and orders discharging the accused, passed by the
learned JMFC (Muni.), Vadodara are hereby quashed and
set-aside, and that the cases under these revision applications
are ordered to be remanded with a direction to restore all
complaints on record and proceed with the case and decide the
same on merits, according to law; especially in the light of
decision of this Court rendered in the case of State of Gujarat
versus Dr. C.K Patel, reported in (1991) 2, GLH p-354. It is
further directed that the Complainant or his successor shall
remaim present on 28-2-1994 before the learned JMFC, Baroda and
take appropriate date for proceeding the matters and will
co-operate with the learned JMFC in disposing of the same as
expeditiously as possible. After the date is fixed, the notice
to the respondents shall be served through the Complainant with
the help of Police authorities of the concerned areas. By
chance, if that fails, it is hardly required to be told that it
will be open to the Court to get it served in any other manner
permitted under the Criminal Procedure Code.
14.The Registrar is directed to forward a copy of this
judgment to the Secretary, Legal Department, Gandhinagar with a
request to immediately forward the same to the concerned
Secretary incharge of the Municipality with a request to
circulate the same to the (i) Municipal Commissioners (Legal
Section) of the Municipal Corporations of the State, and (ii)
Chief Officers of the Municipalities of the State, for
information.
****
Prakash*