Karnataka High Court
The Agricultural Produce Market ... vs Sri. Venkateshwara Wood Industries on 9 December, 2020
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL No.185/2011
BETWEEN:
THE AGRICULTURAL PRODUCE MARKET COMMITTEE
KADUR - 577 548
CHIKKAMANGALUR DISTRICT
REPRESENTED BY ITS SECRETARY ... APPELLANT
(BY SRI. A.C. BALARAJ, ADVOCATE)
AND:
SRI VENKATESHWARA WOOD INDUSTRIES
PARTNERSHIP FIRM
REPRESENTED BY ITS PARTNER
SRI. S. RAMESH KUMAR
AGED ABOUT 42 YEARS
TIMBER MERCHANT
KADUR TOWN ... RESPONDENT
(BY SRI. GOPAL SINGH, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C PRAYING THIS COURT TO SET ASIDE THE ORDER
DATED 15.12.2010 PASSED BY THE PRINCIPAL CIVIL JUDGE
AND JMFC, KADUR IN C.C.NO.986/2008 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 114, 117 OF APMC ACT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This appeal is filed by the appellant/complainant challenging the Judgment of acquittal dated 15.12.2010 passed in Criminal Case Nos.986/2008 by the Principal Civil Judge & JMFC., Kadur for the offences punishable under Sections 114 and 117 of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 (the 'APMC Act' for short).
2. In the complaint, it is averred that the complainant is represented by its Secretary and the Secretary is authorized under Section 66(ii) of the APMC Act to initiate the criminal proceedings. The accused is dealing with the wood business coming in the schedule 11 of the Act. The accused is legally bound to take licence for dealing in Agricultural produce as provided under Section 8 of the Act. The accused has not taken the license or renewed the previous licence to deal with the wood business. Hence, the accused has committed the offence punishable under Section 117 of the Act. The accused is also legally bound to submit the accounts of the business periodically 3 to assess the payment of market fee to be collected as provided under Section 66 of the Act. The accused is suppose to produce the Stock book, Sale bill book, Purchase bill books, Day book, Ledger, KST, CST returns and Market paid receipts. But the accused has not submitted any of the documents for verification. Thus, the accused has committed the offence punishable under Section 117-A of the Act. It is also alleged that the accused has not paid the arrears of the market fee even after service of notice. Thus, the accused has committed the offence punishable under Section 114 of the Act. The suit filed by the accused in O.S.No.61/1994 on the file of Principal Civil Judge (Jr. Dn.) was dismissed. Even after the dismissal of the suit, the accused has not obtained the licence and produced the accounts and submit the documents, which are legally bound to submit. It is contended that to issue licence, the accused has produce the accounts upto date and the market fee has to be assessed and then arrears of market fee has to be recovered without following the procedure the licence either cannot be issued nor renewed. It is stated that in the complaint that the accused has committed 4 the offences punishable under Sections 117, 117-A and 114 of the Act.
3. The Trial Court after receiving the complaint took the cognizance and registered a case against the accused in Criminal Case No.986/2008. The accused appeared through his Counsel and charges were framed and he denies the same and claimed the trial. The complainant to substantiate the complaint averments examined the witness i.e., Secretary of the Complainant as P.W.1 and got marked the documents as Exs.P1 to P11 and defense also got marked the document as Ex.D1. The accused was subjected to 313 statements and he denied the incriminating circumstances. However, he did not choose to lead any defense evidence.
4. The Trial Judge after considering both oral and documentary evidence, acquitted the accused for the offences punishable under Sections 114 & 117 of the APMC Act and convicted the accused for the offence punishable under Section 117-A of the APMC Act by imposing a fine of Rs.1,000/- under 5 Section 117-A of the APMC Act. Aggrieved by the same, these appeals are filed.
5. The main contention urged in the appeal is that the trial Judge failed to take note of the civil suit filed by the accused, which was dismissed and being aggrieved by the dismissal of the suit, the Regular Appeal also filed and the same also came to be dismissed. Thereafter, issued notice against the respondent demanding for submission of books of accounts and also legal notice to obtain license. The respondent did not comply the demand. The Trial judge not at all considered the oral and documentary evidence and erroneously rejected the complaint and the same is not tenable under law.
6. The Trial Court also erred in not taking into consideration the undertaking of the respondent and granted 15 days time. Even after lapse of the said period, respondent failed to submit the Books of Accounts. Hence, the prosecution initiated a case against the accused for the offences punishable under Sections 114, 117 and 117-A of the APMC Act. 6
7. The very conclusion of the Trial Court is that the prosecution has not proved the case beyond all reasonable doubt is erroneous and the Trial Judge mainly relied upon the document marked as Ex.D1, in coming to the conclusion that the respondent has complied with the demand. The receipts are not licenses and license will be issued by the Market Committee if all conditions are fulfilled in Form No.36 under Rule 76(4) of the Karnataka Agricultural Produce Marketing (Regulation and Development) Rules, 1968. Admittedly, the respondent has not produced any license issued in Form No.36. Hence, the respondents having carried on trade without valid license and have committed the offences. In spite of the same, the Trial judge has committed an error in acquitting the accused.
8. Learned counsel appearing for the appellant, in his arguments, he vehemently submits that in spite of Suit, Regular Appeal and Writ Petition are dismissed, the trial Court failed to take note of the same, even though sought time to produce the Books of Accounts, they have not produced. Hence, the proceedings were initiated against the respondents. The 7 complainant examined as P.W.1 and got marked the documents as Exs.P1 to P9 and the trial Judge mainly relied upon the documents produced by the accused and did not appreciate the charges levelled against the accused. It is the specific case that the market fee has not been paid and also not produced the Books of Accounts. When such being the case, the Trial Court ought not to have acquitted the accused for the offences punishable under Sections 114 and 117 of the APMC Act. But convicted the accused for the offence punishable under Section 117-A of the APMC Act and when the trial Judge came to the conclusion that the accused has committed an offence under Section 117-A of the APMC Act, the trial Judge ought not to have acquitted the accused for the offences punishable under Sections 114 and 117 of the APMC Act.
9. Per contra, learned Counsel appearing for the respondents would submit that the very complaint itself is mis- conceived though the complainant is having the power under Section 66 of the APMC Act. There was an inordinate delay in issuing the notice and the same was issued in the year 2010 that 8 too through an Advocate and their claim is that the license is not obtained and the same is not renewed and the market fee is not paid from 1993 onwards.
10. Learned Counsel also would submit that under Section 114 of the APMC Act, the complainant has to quantify the amount to be paid and the same has not been quantified and no ingredients of Section 114 of the APMC Act is complied by the complainant. It is also contended that under Section 83-A, the officer can make zone assessment in the absence of Books of Accounts and also there is no such order and the offence under Section 117 of the APMC Act also not been committed.
11. Learned Counsel also would submit that the witness, who has been examined as P.W.1, he gave the categorical admission that he does not know who are all the partners and also does not know the earlier complaint filed by them. He also admits that after giving the notice, cheque was sent to the complainant and the same was returned without encashing the same. The answers elicited from the mouth of P.W.1 are fatal to the case of the prosecution. Hence, prays for dismissal of appeal. 9
12. Having heard the arguments of learned counsel for the appellant and also the learned counsel for the respondent in all the appeals, the points that would arise for consideration of this Court are:
(1) Whether the Trial Judge has committed an error in acquitting the accused for the offences punishable under Sections 114 and 117 of the APMC Act?
(2) What order?
Point Nos.1 and 2:
13. Before discussing the merits, this Court would like to consider the evidence of P.W.1 and answers elicited in the cross examination. P.W.1 categorically admits that he does not know when the respondent started his business. He cannot again tell on what date they gave the representation for renewal of the license. But, he claims the Secretary will examine the Books of Accounts furnished by the accused. He admits that no space is provided to the accused by the APMC and also he cannot tell how much market fee is due from the respondent and also he cannot 10 tell how much license fee is due from the respondent but claims the contents of the complaint are correct. It is also elicited that the Office Accountant has given the information to prepare the complaint. It is suggested that from 1994 onwards market fee and license fee are paid to the committee and witness replies that without looking into the accounts he cannot tell.
14. The prosecution mainly relies upon the evidence of P.W.1 and he admits that the contents of the complaint instructions admittedly given by the Office Accountant to prepare the complaint. The witness, who has been examined before the Court is not having any acquaintance with the complaint averments. But the answers elicited from the mouth of P.W.1 are clear that he is not aware of anything about, who are all the partners and also he does not know how much amount is due when the documents are confronted to the witness. He categorically says that the documents which are confronted to him are acknowledged by the Marketing Committee and those documents are also includes the receipts for having received the amount for renewal of license. P.W.1 categorically admits that he 11 does not know when the respondent-firm was started its business and also categorically admits that the Books of Accounts was submitted to the Committee. He also admits a request was made to renew the license and they have not given any reply to the request made by the respondents. The respondents have made their efforts to renew the license. P.W.1 categorically admits that he was not having any knowledge about how much market fee is payable by the respondents and also cannot tell how much license fee is due from them. Though P.W.1 admits that the Office Accountant has given the instructions to prepare the complaint and the complainant has not examined the Office Accountant. Having taken note of the admissions elicited from the mouth of P.W.1, the trial Judge come to the conclusion that the prosecution failed to prove its case. Whatever the answer elicited from the mouth of P.W.1, it is clear that he is not having any knowledge about either the due from the respondent with regard to the market fee and also with regard to the license fee. He categorically admits that the license fee is collected by the committee, but, license was not renewed. When such being the case, invoking of Sections 114 and 117 12 against the accused to come to a conclusion that the respondents have committed the offences cannot be accepted. While convicting the accused in a criminal case there must be a cogent evidence before the Court and though the complainant examined as P.W.1 and his evidence is not fruitful to come to a conclusion that the respondent/accused committed the offences. The answers given by P.W.1 are clear that he is not sure about what is the due with regard to the market fee and also he is not sure about what is the license fee payable by the respondents and only he says that the instructions was given by the Office Accountant. P.W.1 also says the respondent issued the documents and committee verifies the same.
15. I have already pointed out that the Office Accountant has not been examined. The evidence placed before the Trial Court is insufficient to come to a conclusion that the respondents have committed the offences as alleged in the complaints. The Trial Judge while considering the material on record taken note of the admission elicited from the mouth of P.W.1 and also taken note of the documents placed before the Trial Court and those 13 documents are also admitted by P.W.1 in the cross-examination that the Committee acknowledged the said document. When such being the case, this Court cannot find fault with the Trial Court in acquitting the accused for the offences punishable under Sections 114 and 117 of the APMC Act.
16. In view of the discussions made above, I proceed to pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE cp*