Bangalore District Court
M/S. India Sugar And Refineries Ltd vs M/S. Shamanur Sugar Co on 31 July, 2018
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH82)
Dated: This the 31st July, 2018
Spl. CC No. 347 of 2018
-: Present :-
Sri B.V.PATIL, B.Com., LLB., (Spl)
LXXXI ACC & SJ, Bengaluru City (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected MPs/MLAs
in the State of Karnataka)
Complainant :- M/s. India Sugar and Refineries Ltd.,
Company registered under the
Provisions of Companies Act
Having its registered office at:
Chitwadgi - 583 211
Hospet, Bellary Dist
Rep: by its Manager (Sales & Admn)
Sri A.G.Phani Shai S/o A.Gopalakrishna
Aged about 53 years
ISR Officers Colony
Chittawadgi, Hospet.
(Sri M.Gururaj, Adv for complainant)
V/s
Accused:- 1. M/s. Shamanur Sugar Co.,
A Company registered under the
Provisions of Companies Act
Duggavathi, Harappanahalli Taluk
Davanagere Dist.,
Represented by its
Managing Director
Sri Shivashankarappa Bakkesh
2 Spl.CC No.347/2018
2. Sri Bavaguthu Raghuram Shetty
(Not pressed)
3. Sri Shamanur Shivashankarappa Ganesh
Director M/s.Shamanur Sugars Ltd
D.No.2634, MCC B Block
Davanagere-577 004
Karnataka, India.
4. Sri Shamanur Shivashankarappa
Chairman, M/s.Shamanur Sugars Ltd
D.No.2631/1, MCC B Block
Davanagere-577 004
Karnataka, India.
5. Sri Shivashankarappa Bakkesh
Managing Director
M/s.Shamanur Sugars Ltd.,
D.No.2633/1, MCC B Block
Davanagere-577 004
Karnataka, India.
(Accused No.1 company rep: by it
Managing Director Accused No.4)
(case against A2-Not pressed)
(Sri H.V.Ramadas, for Accused)
JUDGMENT
A private complaint in PCR No.36/2009 was filed before Civil Judge and JMFC, Hospet by the complainant company M/s.India Sugars and Refineries Ltd., against accused No.1 to 5 i.e., M/s.Shamanur Sugar Company and others, alleging that the accused have committed offences punishable U/s.3, 7, 8, 10 and 11 of Essential Commodities Act, 1955.
3 Spl.CC No.347/2018
2. After recording the sworn statement of complainant, learned Magistrate ordered for registering the case against the accused for the above said offences. Summons was issued to accused No.1 to 5. In response to the summons, accused 1, 3 to 5 appeared before the learned Magistrate. Case against accused No.2 was dismissed as not pressed its vide order dt.18.2.2012. Thereafter, the trial of the case was commenced and completed, the matter was posted for arguments.
3. In view of the notification issued by the Government of Karnataka bearing No.LAW 10 LCE 2018 dt.8.2.2018 and letter No.RSB 288/2017 dt.26.2.2018 of Hon'ble High Court of Karnataka, after establishing special court i.e., LXXXI Addl. City Civil and Sessions Judge Court, Bengaluru, exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka, as accused No.4 in the case was elected MLA from Davanagere Constituency in Davanagere District, the case was transferred to this Court. On receiving the records, the case was re-numbered as Special. CC No.347/2018. On service of Court notice, accused No.1 and 3 to 5 appeared before this Court through their Advocate.
4. The brief facts of the case of the prosecution are that: 4 Spl.CC No.347/2018
"The Complainant is a Company registered under the provisions of Companies Act and established a sugar factory at Hospet in the year 1933, with a daily crushing capacity of 2500 TCD, it used to crush the sugar cane from reserved area unabatedly. In exercise of power conferred U/s.3 of Essential commodities Act, the Government of India had promulgated Sugarcane (Control) Order 1966. Clause 6 of the said order provides for regulation, distribution and movement of sugarcane. The Government of Karnataka as per the delegated powers by the Central Government, in exercise of its power under clause 6 of Sugarcane (Control) Order 1966, issued Karnataka Sugarcane (Regulation of Distribution) (Hospet), Order 1974 dt.28.8.2006 reserving certain sugar cane growing areas as shown in the schedule in favour of the complainant sugar factory. As per the said notification, no farmer in the reserved area can transport or export sugarcane from the reserved area of the complainant sugar factory to any other factory. The farmer is liable to transport the sugar cane grown by him to the factory for which the area was reserved. However, the Deputy Commissioner, Bellary is empowered under the Hospet Order 1974 and Notification dt.28.8.2006 issued by Govt of Karnataka, to issue permits to export 5 Spl.CC No.347/2018 or transport sugarcane from the reserved area of the complainant - sugar factory in accordance with law.
In the year 2008-09, due to mis-understanding between the farmers and the complainant - sugar factory, there was a large scale illegal transport and export of the sugarcane by the growers of the reserved area of the complainant sugar factory to other neighboring sugar factories without valid permit issued by the Deputy Commissioner. The complainant - sugar factory reported the matter to the Deputy Commissioner, Bellary prayed to initiate action. Later, the complainant - sugar factory also filed writ petition No.31532/2008 before Hon'ble High Court of Karnataka seeking directions to Deputy Commissioner, Bellary, in which the accused No.1 was one of the respondents. Hon'ble High Court of Karnataka by its order dt.9.9.2009 directed the Deputy Commissioner to implement the provisions of Sugarcane (Control) Order 1966 and also directed the Deputy Commissioner, Bellary to prosecute accused No.1 for procuring the sugar cane from the reserved area of complainant's sugar factory.
The sugar cane crushing season in 2009-10 was required to commence from first week of October 2009, however due to illegal 6 Spl.CC No.347/2018 demand of higher price by the Hospet Raithara Sangha for the sugar cane grown by the farmers, the crushing work was not commenced as per schedule. The Raithara Sangha demanded sugar cane price of Rs.2000/- per MT which was uneconomical. The complainant factory expressed its desire to pay Rs.1408/- PMT, fixed by Government of India. Even the complainant has offered to pay sugarcane price of Rs.1530/- PMT. However the accused No.1 factory was paying Rs.1530/- PMT to the farmers who have grown sugarcane in its reserved area. The farmers filed application before the Deputy commissioner, Bellary seeking permission to transport sugarcane to other sugar factories who are offering higher price. However, the Deputy Commissioner refused to issue such permits.
The accused No.2 to 5 who established their sugar factory at Davanagere, lured the farmers of the reserved area of the complainant - sugar factory by offering higher sugarcane price of Rs.2000/- PMT which is not permissible under law. Accordingly, the farmers of the reserved area of complainant - sugar factory started supplying sugarcane to the accused, which was brought to their notice by issuing notice dt.25.9.2009 and the same was also brought to the notice of Deputy Commissioner, Bellary. On 2.12.2009 the 7 Spl.CC No.347/2018 Deputy Commissioner passed an order directing the accused to stop procuring sugarcane from the reserved area of complainant - sugar factory. However, the accused continued their illegal act. On 25.9.2009 a legal notice was also issued to the accused requesting not to procure sugarcane from the farmers of reserved area of complainant-sugar factory. In spite of it, the accused continued to procure sugarcane from the reserved area of the complainant - sugar factory, which is clear contravention of the provisions o the Sugarcane (Control) order 1966 and Hospet Order 1974 and thereby committed offences punishable U/s. 3, 7, 8, 10 and 11 of the Essential Commodities Act, 1955. Therefore, the complainant filed private complaint praying for taking appropriate action against the accused."
After taking cognizance of the offence, the learned Magistrate recorded sworn statement of the complainant. Thereafter, issued summons to accused. In response to the summons, accused No.1, 3 to 5 appeared before the Court through their counsel. Case against accused No.2 was dismissed as not pressed its vide order dt.18.2.2012. Charge was framed, read over and explained to accused, accused denied the charge, who claims to be tried. 8 Spl.CC No.347/2018
5. In order to prove its case, the complainant examined in all nine witnesses as PW1 to PW9, got marked forty two documents as Ex.P.1 to 42, complainant closed his side. Statement of the accused under Sec.313 of Cr.P.C., was recorded. The defence of the accused is one of total denial.
6. I heard the arguments of the learned advocate for complainant and learned advocate for the accused.
7. The points that arise for the consideration of this Court are:-
1. Whether the complainant proves that Government of Karnataka by virtue of provisions contained in the Sugarcane (Control) order 1966, Hospet Order 1974 and Notification dt.28.8.2006 reserved the area for complainant-sugar factory and issued an order against the farmers not to transport the sugarcane from reserved area, however, by violating the said order, accused No.1 and 3 to 5 lured the farmers by offering higher price to the sugarcane and procured sugarcane from the reserved area of the complainant sugar factory 9 Spl.CC No.347/2018 during November and December 2009 in contravention of the provisions of Sugarcane (Control) orders and thereby committed offence under Sec.3 of Essential Commodities Act, 1955, which is punishable U/s. 7 of Essential Commodities Act, 1955?
2. Whether the prosecution further proves that the accused have lured the farmers who have grown sugarcane in the reserved area of complainant-
sugar factory in contravention of provisions of Sugarcane (Control) order 1966, also Hospet Order 1974 and Notification dt.28.8.2006 and purchased sugarcane at higher price and thereby committed offences punishable U/s.3, 8 and 10 of Essential commodities Act?
3. What order?
8. My findings on the above points are as under;
Point No.1:- In the Negative Point No.2:- In the Negative 10 Spl.CC No.347/2018 Point No.3:- As per the final order, for the following;
REASONS
9. Points No.1 and 2: Before examining the evidence adduced by the prosecution it is quite necessary to refer the facts of the case as narrated in the complaint:-
"The Complainant is a Company registered under the provisions of Companies Act and established a sugar factory at Hospet in the year 1933, with a daily crushing capacity of 2500 TCD, it used to crush the sugar cane from reserved area unabatedly. In exercise of power conferred U/s.3 of Essential commodities Act, the Government of India had promulgated Sugarcane (Control) Order 1966. Clause 6 of the said order provides for regulation, distribution and movement of sugarcane. The Government of Karnataka as per the delegated powers by the Central Government, in exercise of its power under clause 6 of Sugarcane (Control) Order 1966, issued Karnataka Sugarcane (Regulation of Distribution) (Hospet), Order 1974 dt.28.8.2006 reserving certain sugar cane growing areas as shown in the schedule in favour of the complainant sugar factory. As per the said notification, no farmer in the reserved area can transport or export sugarcane from the reserved area of the 11 Spl.CC No.347/2018 complainant sugar factory to any other factory. The farmer is liable to transport the sugar cane grown by him to the factory for which the area was reserved. However, the Deputy Commissioner, Bellary is empowered under the Hospet Order 1974 and Notification dt.28.8.2006 issued by Govt of Karnataka, to issue permits to export or transport sugarcane from the reserved area of the complainant - sugar factory in accordance with law.
In the year 2008-09, due to mis-understanding between the farmers and the complainant - sugar factory, there was a large scale illegal transport and export of the sugarcane by the growers of the reserved area of the complainant sugar factory to other neighboring sugar factories without valid permit issued by the Deputy Commissioner. The complainant - sugar factory reported the matter to the Deputy Commissioner, Bellary prayed to initiate action. Later, the complainant - sugar factory also filed writ petition No.31532/2008 before Hon'ble High Court of Karnataka seeking directions to Deputy Commissioner, Bellary, in which the accused No.1 was one of the respondents. Hon'ble High Court of Karnataka by its order dt.9.9.2009 directed the Deputy Commissioner to implement the provisions of Sugarcane (Control) Order 1966 and 12 Spl.CC No.347/2018 also directed the Deputy Commissioner, Bellary to prosecute accused No.1 for procuring the sugar cane from the reserved area of complainant's sugar factory.
The sugar cane crushing season in 2009-10 was required to commence from first week of October 2009, however due to illegal demand of higher price by the Hospet Raithara Sangha for the sugar cane grown by the farmers, the crushing work was not commenced as per schedule. The Raithara Sangha demanded sugar cane price of Rs.2000/- per MT which was uneconomical. The complainant factory expressed its desire to pay Rs.1408/- PMT, fixed by Government of India. Even the complainant has offered to pay sugarcane price of Rs.1530/- PMT. However the accused No.1 factory was paying Rs.1530/- PMT to the farmers who have grown sugarcane in its reserved area. The farmers filed application before the Deputy commissioner, Bellary seeking permission to transport sugarcane to other sugar factories who are offering higher price. However, the Deputy Commissioner refused to issue such permits.
The accused No.2 to 5 who established their sugar factory at Davanagere, lured the farmers of the reserved area of the complainant - sugar factory by offering higher sugarcane price of 13 Spl.CC No.347/2018 Rs.2000/- PMT which is not permissible under law. Accordingly, the farmers of the reserved area of complainant - sugar factory started supplying sugarcane to the accused, which was brought to their notice by issuing notice dt.25.9.2009 and the same was also brought to the notice of Deputy Commissioner, Bellary. On 2.12.2009 the Deputy Commissioner passed an order directing the accused to stop procuring sugarcane from the reserved area of complainant - sugar factory. However, the accused continued their illegal act. On 25.9.2009 a legal notice was also issued to the accused requesting not to procure sugarcane from the farmers of reserved area of complainant-sugar factory. In spite of it, the accused continued to procure sugarcane from the reserved area of the complainant - sugar factory, which is clear contravention of the provisions o the Sugarcane (Control) order 1966 and Hospet Order 1974 and thereby committed offences punishable U/s. 3, 7, 8, 10 and 11 of the Essential Commodities Act, 1955. Therefore, the complainant filed private complaint praying for taking appropriate action against the accused."
10. In order to prove its case, complainant examined its Manager as PW1, who deposed before the Court that in the year 14 Spl.CC No.347/2018 2008-09 the accused No.1 and other sugar factories such as Davanagere and Siraguppa Sugar Factories, started purchasing sugar cane grown in the reserved are of the complainant factory. The accused lured the farmers offering higher cane price apart from paying the sugar cane cutting and transporting expenses to them. Complainant issued notice to the accused and informed the same to the Deputy Commissioner. As the Deputy Commissioner did not taken effective steps against the accused, the complainant filed writ petition before the Hon'ble High Court of Karnataka. When the Deputy Commissioner failed to take suitable action against the accused No.1 factory and also the other factories, who continued to purchase sugar cane from the reserved area of the complainant factory. It is further deposed that in the year 2009-10 Government of India has fixed sugar cane price at Rs.1408/- PMT. The other factories fixed the sugar cane price at Rs.1530/- PMT. The farmers of the complainant factory demanded the sugar cane price at Rs.2000/- PMT. However, the complainant factory was ready to pay Rs.1530/- PMT. The accused No.1 factory started paying Rs.1643/- PMT to the farmers of the reserved area of the complainant factory. 15 Spl.CC No.347/2018
11. It is the further evidence of PW1 that as the accused company started paying the sugar cane price at Rs.1700/- PMT and paid the sugar cane cutting and transportation expenses separately to the farmers who have grown sugar cane in the reserve area of the complainant factory, in the year 2009-10 the factory crushed approximately 19600 MT. Pw1 further deposed that in order to check the illegal transportation of sugar cane to other factories including the factory of the accused, they erected check posts at T.B.Dam, Kanive, H.G.Halli and Kamalapura. The staff of the complainant factory collected the information about the illegal transportation of the sugar cane from reserved area of the complainant to other factories and sent the same to Cane Manager, which was in turn sent to Deputy Commissioner. Due to the illegal purchasing of sugar cane from the reserved area of the complainant, the complainant sustained huge loss. The capacity of the complainant factory to crush sugar cane per day was 2500 MT and yearly crushing capacity of the complainant factory was about 04 lakhs MT. Due to the illegal transportation and purchasing of sugar cane from the reserved area of the complainant factory, the complainant sustained huge loss.
16 Spl.CC No.347/2018
12. In the cross-examination PW1 has categorically admitted that in response to alleged illegal transportation of the sugar cane from the reserved area of the complainant, complaint submitted a report to the Deputy Commissioner, who in turn got filed the complaint through his officers against the accused, on the basis of such complaint a case was registered by the Police, who investigated the same and filed 'B' final report. The same is pending consideration before the JMFC, Hospet. It was also admitted that this private complaint filed by the complainant also pertaining to the alleged offences as complained by the Deputy Commissioner. The complainant factory is simultaneously conducting both the cases.
13. PW1 further admitted that he cannot say who are the owners of sugar cane loaded in the lorry found in Ex.P.35, 36 and
38. It was also admitted that the person who was seen in the photos Ex.P.35 to 38 are one and same, the photos were snapped in different angles. The details of the illegal transportation of the sugar cane to the accused factory from the reserved area of the complainant is with the complainant. However, the same is not produced before the Court.
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14. Further more, PW1 categorically admitted that the supply of sugar cane details as shown in Ex.P.40 to 42 though mentioned that the same were supplied to the accused factory, the drivers stated that the sugar cane was taken by them to the Davanagere Sugar Factory. It is the further evidence of PW1 during his cross-examination that various factories purchased sugar cane from the reserved area of the complainant factory. They are possessing documents about the details of the same. However, the report of the cane manager was not at all submitted in this case. PW1 during his further cross-examination categorically admitted that they did not posses any documents in respect of purchasing of the sugar cane by the accused on offering higher price from the reserved area of the complainant factory. He cannot say what was the total quantum of sugar cane illegally purchased by the accused from the reserved area of the complainant factory.
15. It was also admitted by PW1 that number of lorries were loaded with sugar cane cut and removed from the reserve area of the complainant factory were transported to other factories. The farmers of the reserved area have also joined their hands in 18 Spl.CC No.347/2018 transportation of sugar cane, farmers were not made as an accused in this case.
16. PW2 Shivakumar.S deposed before the Court that for the year 2009-10 this complaint was filed, the complainant factory has not started crushing of sugar cane in September 2009. The accused No.1 factory lured the farmers by paying higher price to the sugar cane and diverted the sugar cane grown in the reserve area of the complainant factory to their factory. In the year 2009-10 the Government of India fixed the sugar cane price at Rs.1408/- PMT. However, the farmers of the reserve area of complainant factory demanded Rs.2000/- PMT. The complainant factory was ready to pay Rs.1700/- PMT, however, accused No.5 purchased the sugar cane from the farmers of the complainant factory at Rs.1950/- PMT. The accused illegally purchased the sugar cane grown in the reserved area of the complainant factory and paid transportation and sugar cane cutting charges separately to the farmers. The same was reported to the Deputy Commissioner. On the basis of the complaint filed before him, the Deputy Commissioner warned the accused No.1 factory not to purchase sugar cane from the reserve area of the complainant factory. Later they filed Writ petition No.31532/2008 and 19 Spl.CC No.347/2018 a direction was also issued to the Deputy Commissioner for taking suitable action. In spite of the directions issued, the Deputy Commissioner did not take effective action. Only the Revenue Officers used to file complaint before the police, wherein the police have filed 'B' final report, the report was under challenge before the JMFC, Hospet.
17. It is further evidence of PW2 that a legal notice was issued to accused No.1. At the behest of accused No.3 to 5, transporters, including the staff of accused No.1, who are responsible for transportation of sugar cane illegally from the reserve area of the complainant factory. Personally he saw the illegal transportation of sugar cane from the reserved area of the complainant factory to the accused No.1 factory.
18. During the cross-examination PW2 has categorically admitted that he did not produce any documents to show that in the year 2009-10 the complainant factory crushed sugar cane to the tune of 19000 MTs. He admitted that he has not produced such document before the court. It was also admitted by PW2 that in the complaint they have not stated about the payment of higher price of Rs.1950/- PMT by accused No.1. He also admitted that a complaint 20 Spl.CC No.347/2018 was filed in respect of illegal transportation of sugar cane to the accused No.1 factory, wherein after the investigation, the police have filed 'B' final report, the 'B' final report was challenged before the JMFC, Hospet.
19. It was also admitted by PW2 during the cross-
examination that he deposed in CC No.184/2013 that the complainant does not possess any document in respect of illegal purchasing of sugar cane from the reserve area of the complainant factory by paying higher price as the said transaction was in cash. It was also admitted that the complainant does not possess any documents in respect of illegal transportation of sugar cane by the accused from the reserved area of the complainant factory by paying higher prices. It was also admitted that they did not filed any complaint against farmers who transported sugar cane from the reserved area.
20. PW3 Dhruvaraj, Cane Manager, deposed before the Court that in the year 2009-10 the farmers grown sugar cane in 10,000 Acres of land which was reserved area of the complainant factory. The crushing work of the complainant factory usually starts in the month of October. As the factory of accused and others 21 Spl.CC No.347/2018 purchased the sugar cane grown by the farmers of reserved area of complainant by paying higher price, the complainant factory did not crushed sufficient quantity of sugar cane. In the year 2009, the Government of India fixed the cane price at Rs.1408/- per ton. The complainant factory offered cane price at Rs.1700/- per ton. However, the accused No.1 factory lured the farmers by offering higher price of Rs.1965/- per ton. Accordingly, in the year 2009-10 the complainant factory crushed sugar cane to the extent of 19,600 tons. Therefore, the complainant factory sustained huge loss.
21. During cross-examination PW3 categorically admitted that the complainant factory did not possess any documents in respect of payments made at Rs.1645/- per ton to the farmers of reserved area of the complainant factory.
22. PW4 Srinivas Achaar deposed before this Court that in the year 2009-10 sugar cane was grown in 2000 acres of land. The total quantum of sugar cane grown was 60000 to 70000 tons. In the month of October - November in 2009-10 the complainant factory did not commenced crushing work. The other factories situated near by location, namely Shamanuru Sugars and Davanagere Sugar Factories purchased the sugar cane at Rs.1950/- per ton from the 22 Spl.CC No.347/2018 reserved area of the complainant factory. Therefore, the complainant factory did not crushed sugar cane. When he enquired with the farmers and the drivers of the sugar cane loaded lorries, they informed that they sold sugar cane at the rate of Rs.1950/- per ton to the accused No.1 factory. Accordingly he submitted a report to the Cane Manager. During the cross-examination this witness categorically admitted that in CC No.184 of 2013 he deposed in respect of illegal transport of sugar cane in the year 2009-10. Further more, it was also admitted that the complainant factory does not possess any document in respect of purchasing of sugar cane from the reserved area of complainant factory at the rate of Rs.1950/- per ton by the accused. He deposed only on the basis of information furnished by the lorry drivers and farmers. It was also admitted that the complainant factory does not possess any documents to show the total quantity of sugar cane illegally transported from the reserved area of complainant factory. It was also admitted that only some of the lorries loaded with sugar cane passed in front of their factory, he assumed and presumed that the same were transported to the accused factory.
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23. PW5 Ekantha Reddy, Cane Inspector, deposed before the Court that in the month of September 2009 the crushing of sugar cane was started by the complainant factory. The sugar cane which was reserved for the complainant factory was illegally transported to the factories of accused No.1 and also to Siraguppa Sugar factory. When he enquired with the farmers and the lorry drivers, he came to know that the sugar cane is being illegally transported to three factories who are paying higher price including cutting and transportation charges separately. Accordingly he submitted his report to the Cane Manager. During the cross-examination, this witness admitted that in CC No.184/2013 he deposed that in the year 2009-10 nearly 13000 Tons of sugar cane was grown, he cannot say the total quantum of sugar cane illegally transported to the three factories. He further admits that the complainant factory does not possess any document in respect of the illegal purchasing of sugar cane from the reserve area of the complainant factory by paying higher price including the cutting and transportation charges by the accused.
24. PW6 Anwar Basha deposed before the Court that in the year 2009-10 he worked as Field Assistant of the complainant 24 Spl.CC No.347/2018 factory at Halli Rampura and Naraspura limits. During the 2009-10 season sugar cane was grown in 800 acres of land at both the villages. In the month of March 2010 the complainant factory commenced sugar cane crushing as there was problem of fixation of cane price. The complainant factory offered the cane price at Rs.1700/- per ton. However, the other factories were purchasing the sugar cane at the rate of Rs.1900 to 1950/- per ton separately paying the transportation and sugar cane cutting charges. When he enquired about the transportation of sugar cane grown in the reserved area of the complainant factory, the farmers told him that as they are getting higher price for their sugar cane, they are transporting the same to accused No.1. In the cross-examination this witness categorically admitted that in CC No.184/2013 he deposed before the JMFC, that he cannot say about the quantum of sugar cane transported to each factory.
25. PW7 R.Manohar Singh, Cane Inspector deposed before the Court that in the year 2009-10 he was working as Cane Inspector of Nagena Halli, Mudlapura and other areas. In the said villages sugar cane was grown approximately in an area 1800 acres, the farmers supplied only 3500 tons of sugar cane to the 25 Spl.CC No.347/2018 complainant factory, remaining sugar cane was supplied to accused No.1 and other factories. When he enquired with the farmers, they informed him that they are transporting sugar cane to accused No.1 factory who offered higher price of Rs.1950/- per ton. During the cross-examination this witness categorically admitted that in CC No.184/2013 his evidence was recorded wherein he deposed that totally 72000 tons of sugar cane was grown in his area. Out of which, 1800 ton was supplied to the complainant factory. It was also admitted that they did not produce the agreement entered between the complainant and farmers in respect of supplying of sugar cane to the complainant factory. No action was taken against the farmers who did not supplied sugar cane to the complainant factory. Further more it was also admitted that in CC No.184/2013 he deposed that about 20000 Tons of sugar cane was used to preparing jaggery.
26. Pw8 Prabhuswamy, field assistant deposed before this Court that in the year 2009-10 he was working as field assistant at Ankasamudra and other villages. Totally in 43 acre of land sugar cane was grown, only 60 ton was supplied to complainant factory. The remaining sugar cane was purchased by accused No.1 by paying higher price at Rs.1950/- per ton. The complainant factory 26 Spl.CC No.347/2018 was fixed the cane price at Rs.1700- per ton. Therefore, the farmers supplied the sugar cane to the accused No.1 factory.
27. It is further evidence of PW8 that when he requested the farmers to supply the sugar cane to the complainant factory, they refused to supply the sugar cane, as the accused No.1 was paying higher price to the sugar cane grown by them. Accordingly, he submitted his report to the Cane Manager.
28. During the cross-examination this witness categorically admitted that in CC No.19/2010 he deposed that in the year 2009-10 totally sugar cane was grown in 125 acres of land. It was also admitted by him that the complainant factory does not possess any document in respect of purchasing of sugar cane from the reserved area of the complainant factory at higher prices with additional payment of sugar cane cutting and transportation charges.
29. PW9 Chandrashekar, Deputy Tahasildar, deposed before the Court that in the year 2009-10 when he was working as Revenue Inspector at Harappanahalli Hobli, as per the orders of Tahasildar, Harappanahalli, he went to Neelagunda Cross and checked the lorries loaded with sugar cane and submitted his report as per Ex.P.42. Said lorries were proceeding from Harappanahali to 27 Spl.CC No.347/2018 Davanagere. On the basis of statement of lorry drivers he prepared Ex.P.40 to 42. He do not know to which sugar factory the sugar cane was being transported through said lorries. The drivers of the lorries informed him that they are transporting sugar cane to Davanagere sugars, Kukkavada and Shamanur Sugars factories.
30. On perusal of evidence of PW1 to 9 including the contents of the complaint makes it very clear that it is the specific case of the complainant that in the year 2009-10 the accused No.2 to 5 being the directors, Chairman and Managing Director of accused No.1 factory, lured the farmers who have grown sugar cane in the reserved area of the complainant factory by offering a higher price than the one fixed by the complainant factory, violating the Sugarcane (Control) Order 1966 and Notification dt.28.8.2006 and committed offence punishable U/s. 3, 7 and 8 of Essential Commodities Act. In para-8 of the private complaint filed by the complainant it was specifically stated that accused No.2 to 5, for and on behalf of accused No.1 factory, purchased sugar cane from the reserved area of complainant company by offering higher price of Rs.2000/- per ton. Contrary to the averments of complaint, PW1 in his evidence deposed that the accused offered a higher price of 28 Spl.CC No.347/2018 Rs.1643/- per ton; PW2 deposed that the accused offered price of Rs.1950/- per ton; PW3 deposed that the accused paid cane price of Rs.1948/- per ton to the farmers who supplied the sugar cane from the reserve area of the complainant factory. PW7 deposed that Rs.200/- higher price than fixed by the Central Government was paid to the farmers. On going through the evidence of PW1 to 3, PW7 including the contents of the complaint referred to supra, makes it very clear that the above said witnesses gave a contradictory versions in respect of offering higher price to the farmers by the accused. The evidence of these witnesses clearly contradicts with the contents of complaint Ex.P.1. Thereby, the material witnesses examined in this case gave a different versions in respect of offering higher price to the farmers who have supplied the sugar cane to accused No.1 factory, thereby the complainant has failed to produce cogent, corroborative and satisfactory material evidence so as to prove that the accused offered a higher price to the farmers for supplying sugar cane from the reserved area of complainant factory.
31. It was categorically deposed by PW1 and 2 during their cross-examination admitting that Ex.P.35 to 38 photos were taken in different angles, they cannot say the ownership of sugar cane 29 Spl.CC No.347/2018 loaded in the said lorry. Furthermore, it was admitted that they had sufficient material evidence for having illegally transported sugar cane grown in the reserve area of the complainant factory by accused No.2 to 5. However, they did not produce such relevant documents in the case. If at all the complainant and his witnesses had sufficient material documentary evidence to show that accused No.2 to 5 by offering higher price purchased sugar cane from the farmers who have grown sugar cane in the reserve area of the complainant factory, why they withheld such important documentary evidence, is not satisfactorily explained by these witnesses. Therefore, non-production of material documentary evidence in proving the illegal transportation of the sugar cane from the reserved area at the behest of accused No.2 to 5, goes to the root of the case of the complainant. In the absence of such material evidence produced by the complainant and his witnesses, the complainant has failed to prove that the accused illegally purchased the sugar cane grown in the reserved area of the complainant factory by offering higher price. Ex.P.35 to 38 does not come to the aid of the complainant so as to prove the illegal transportation of sugar cane to the accused No.1 factory.
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32. Though it was deposed by PW1 that the Cane Manager of the complainant reported about the supply of sugar cane from reserve area of complainant factory to accused No.1 factory. Such a report was not at all produced by the complainant so as to prove the illegal transportation of sugar cane to the accused No.1 factory. Thereby the complainant has failed to produce satisfactory material evidence to prove such illegal supply of sugar cane.
33. None of the farmers who have grown the sugar cane in the reserve area of the complainant factory were examined in this case to prove that the accused lured them by offering a higher price than the one being paid by the complainant factory. In the absence of such material evidence produced by the complainant, the complainant has failed to prove the very allegation of luring the farmers by offering a higher price and purchasing the sugar cane from the reserve area of the complainant by accused No.1 to 5.
34. It was submitted by the Advocate for the accused that in respect of luring the farmers and illegally purchasing of the sugar cane grown by the farmers in the reserve area of the complainant, already on the instructions of Deputy Commissioner, Bellary, criminal cases were filed wherein after investigation, I.O. filed 'B' 31 Spl.CC No.347/2018 final report. The 'B' final report was questioned by the complainant, which is pending before the JMFC, Hospet. In spite of the same the complainant has filed this private complaint. Therefore, the complainant cannot simultaneously proceed against the accused in respect of the report submitted by the police and cannot prosecute the private complaint when the 'B' final report is pending consideration before the JMFC, Hospet, the complainant cannot prosecute the accused and punish for the same offence more than once in the private complaint filed by him. The case filed by the complainant is hit under Sec.300 of Cr.P.C., and also under Article 20(2) of the Constitution of India. Hence, prayed for acquittal of the accused.
35. Article 20(2) of Constitution of India provides that no person shall be prosecuted and punished for the same offence more than once. Article 20(2) embodies a protection against a second trial and conviction for the same offence. The well known maxim 'nemo delset bis vexari proeadem causa' embodies the well established common law rule that no one should be put on peril twice for the same offence. No man is to be brought into jeopardy of his life more than once for the same offence.
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36. PW1 and 2 during their cross-examination have categorically admitted that the Deputy Commissioner, Bellary through his officers got filed a complaint in respect of illegal purchasing of sugar cane by offering a higher price from the reserve area of the complainant factory. The concerned police investigated the case and filed 'B' final report. The complainant has challenged the 'B' final report before the learned Magistrate, Hospet, the same are pending for consideration. It was also admitted during their cross-examination that the complainant cannot prosecuting this private complaint and also the 'B' final report filed in other cases simultaneously.
37. On going through the admitted evidence of PW1 as discussed by me supra makes it clear that earlier to the filing of this private complaint, on the directions of the Deputy Commissioner, Bellary, a complaint was registered before the jurisdictional police alleging that the accused lured the farmers by offering higher price to the sugar cane grown by the farmers in the reserved area of the complainant factory and illegally purchased the sugar cane from them. On the basis of the complaint, the police after investigation filed 'B' final report. The complainant challenged 'B' final report 33 Spl.CC No.347/2018 before the JMFC, Hospet which is pending consideration. When the parallel criminal case is pending before the JMFC in respect of the same offence, the allegations made in the complaint and the allegations made in the private complaint being one and the same, again the accused cannot be prosecuted for the same offence by filing private complaint under Sec.200 of Cr.P.C. Therefore, the very complaint filed by the complaint is hit under Article 20(2) of Constitution of India.
38. The proceedings contemplated both in this case and also the proceedings pending before JMFC, on the basis of 'B' final report, are in the nature of criminal proceedings. When the complainant is already prosecuting the said case on the basis of police report, the prosecution of this case is clearly prohibited under Article 20(2) of Constitution. The accused cannot be convicted for the same offence in this case also. Therefore, on this count also the accused is entitled for acquittal in view of the fact that the accused must not be put on peril twice for the same offence. Under Article 20(2) of Constitution second prosecution is prohibited. Therefore, on this count also the accused are entitled for acquittal. 34 Spl.CC No.347/2018
39. On perusal of the evidence adduced by the prosecution as discussed by me supra, the prosecution has failed to produce cogent, corroborative and satisfactory material evidence so as to prove the fact that the accused lured the farmers who have grown sugar cane in the reserve area of complainant factory and purchased the sugar cane by offering a higher price and thereby committed the alleged offences. In the absence of such material evidence, the complainant has failed to prove his case. Accordingly, I answer points No.1 and 2 in the negative.
40. Point No.3: In view of my findings on points No.1 and 2, this Court is of the considered view that prosecution has failed to establish the guilt of the accused for the offences alleged against them beyond all reasonable doubt. Hence, accused are entitled for an order of acquittal. Accordingly, I proceed to pass the following final order;
ORDER Accused No.1, 3 to 5 are found not guilty of the offences alleged against them punishable U/s.3, 7, 8 and 10 of Essential Commodities Act, 1955.
Accordingly, exercising the power under Section 248 (1) of Cr.P.C accused No.1, 3 to 5 are acquitted.
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The bail bond of the accused No.1, 3 to 5 and that of their surety shall stand cancelled.
(Dictated to the Judgment Writer, transcribed and typed by him, same is corrected by me and then pronounced in the Open Court on this the 31st day of July, 2018) (B.V.Patil) LXXXI ACC & SJ, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) ANNEXURE:
Witnesses examined by the prosecution.
PW1 A.G.Phani Shahi PW2 Shivakumar.S. PW3 D.Y.Jahagirdar PW4 A.Shreenivasachaar PW5 Yekanath Reddy PW6 Anwar Basha PW7 Manohar Singh PW8 Prabhu Swamy PW9 S.Chandrashekara
Witnesses examined by the defence/accused. -- NIL Documents exhibited by the prosecution.
Ex.P.1 Copy of order in W.P.No.31532/2018
Ex.P.2 Letter dt.10.11.2009
Ex.P.3-5 Press reports
Ex.P.6 to 15 Letters by complainant of various dates
Ex.P.16-31 Photos
Ex.P.32 C.D.
Ex.P.33 Certified Copy of letter dt.6.11.2009
Ex.P.34 Certified Copy of letter dt.26.11.2009
Ex.P.35 Letter dt.6.11.2009
Ex.P.36 Letter dt.30.11.2009
36 Spl.CC No.347/2018
Ex.P.37 Letter dt.15.11.2009
Ex.P.38 CC of letter dt.4.12.2009
Ex.P.39 CC of letter dt.8.12.2009
Ex.P.40-42 Lorry Inspection reports
Documents exhibited by the defence/accused. - NIL List of Material Objects marked by the prosecution.--NIL LXXXI ACC & SJ, Bengaluru City (CCH-82) Rrk.