Dismissed

Yeshwant Dattatraya Desai v. Smt.Jayashri Prabhudas Chhabriya and Ors.

Bombay HC2 Dec 2004APEAL/658/1995

Case brief

AI extract

What is this about?

In these criminal appeals, the High Court of Bombay considered challenges to acquittals on charges of evading octroi duty under the Bombay Provincial Municipal Corporation Act. The single-judge bench examined whether the accused had a wilful intention to defraud the Corporation, concluding that the lower court's view of acquittal was reasonable and logical.

What did the court decide?

Both Criminal Appeal No. 658 of 1995 and Criminal Appeal No. 677 of 1995 are dismissed.

Yeshwant Dattatraya Desai Vs… — Constitutional and Fundamental Rights | Bombay HC (2004)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO.658 OF 1995
 WITH
 CRIMINAL APPEAL NO. 677 OF 1995

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(1) CRIMINAL APPEAL NO. 658 OF 1995

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 Shri.Yeshwant Dattatatraya]
 Desai, Adult, Occ: Service]
 Octroi Naka Officer, ]
 Pune Municipal Corporation]
 Shivaji Nagar, Pune. ]..Appellant
 (Ori.Complainant)

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 Versus
 1. Smt.Jayashri Prabhudas ]
 Chhabriya, aged about ]
 46 years Occ:Business ]
 ]
 2. Shri.Deepak Prabhudas ]
 Chhabriya, aged about 27 ]
 years Occ: Business ]
 ]
 3. Shri.Vinod Prabhudas ]
 Chhabriya, aged about 23 ]
 years, Occ: Business ]
 all residents of 890 ]
 Ravivar Peth, Pune-02 ]
 ]
 4. State of Maharashtra ]..Respondents
 (Respdts.1 to 3
 Ori.Accused nos.
 1 to 3 and No.4
 Respondent)

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 ....
 Mr.R.M.Pethe i/b R.G.Ketkar Advocate for Appellant
 None for Respondent nos.1 to 3 though served.
 Mr.A.S.Shitole, A.P.P. for State.
 ....

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WITH

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(2) CRIMINAL APPEAL NO. 677 OF 1995

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 Shri.Yeshwant Dattatatraya]
 Desai, Adult, Occ: Service]
 Octroi Naka Officer, ]
 Pune Municipal Corporation]
 Shivaji Nagar, Pune. ]..Appellant
 (Ori.Complainant)

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 [- 2 -]

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 Versus

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 1. Smt.Jayashri Prabhudas ]
 Chhabriya, aged about ]
 46 years Occ:Business ]
 ]
 2. Shri.Deepak Prabhudas ]
 Chhabriya, aged about 27 ]
 years Occ: Business ]
 ]
 3. Shri.Vinod Prabhudas ]
 Chhabriya, aged about 23 ]
 years, Occ: Business ]
 all residents of 890 ]
 Ravivar Peth, Pune-02 ]
 ]
 4. State of Maharashtra ]..Respondents
 (Respdts.1 to 3
 Ori.Accused nos.
 1 to 3 and No.4
 Respondent)

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 Mr.R.M.Pethe i/b R.G.Ketkar Advocate for Appellant
 None for Respondent nos.1 to 3 though served.
 Mr.A.S.Shitole, A.P.P. for State.

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 CORAM: SMT.V.K.TAHILRAMANI,J.

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 DATE : DECEMBER 2,2004

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ORAL JUDGMENT:

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 1. Through the present appeals, the appellant i.e.
 Pune Municipal Corporation has challenged the
 judgments and orders dated 29th April, 1994 passed
 by the learned Additional Sessions Judge, Pune in
 Criminal Appeal No. 69 of 1985 and Criminal Appeal
 No. 70 of 1985. By the said judgments and orders,
 the learned Addl. Sessions Judge, Pune acquitted
 the appellants therein i.e. original accused nos.1

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 to 3 and the respondent nos. 1 to 3 in the present
 appeals of the offence under Section 398 of Bombay
 Provincial Municipal Corporation Act, 1949 read with
 Standing Order 28 and Rule 29 of the Octroi Rules,
 framed under the Act.

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 2. Briefly stated the prosecution case is as under:

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 . That the respondents-accused nos.1 to 3 are the
 partners of partnership firm "National Electronics"
 situated at Ravivar Peth, Pune.

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 . The facts relating to Criminal Appeal No. 658 of
 1995 are that:

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 . On 27th September, 1983 the accused persons
 imported electronic goods weighing 183 kgs. from
 Delhi. The said goods were carried and brought to
 Pune under Railway Receipt No.972468. The accused
 persons took the delivery of the said parcel without
 making payment of octroi duty. The value of the
 goods was Rs.3,90,000/- and the octroi duty was
 assessed and calculated at Rs.11,700/-. As the
 amount of octroi duty of Rs.11,700/- was not paid,
 it is the prosecution case that the accused evaded
 the payment of octroi duty intentionally and
 infurtherence of their common intention. Hence, the

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 complaint came to be filed against the accused
 persons.

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 . The facts relating to Criminal Appeal No. 677 of
 1995 are that:

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 . On 7th September, 1983 the accused persons
 imported electronic goods weighing 36 kgs. from
 Delhi. The said electronics goods were carried and
 brought to Pune Railway Station under Railway
 Receipt No. 154094. The accused took the delivery
 of the goods from the Railway Parcel Office.
 However, no payment of octroi duty was made. It is
 the case of the complainant P.W.1 Yeshwant Desai,
 Octroi Officer that the electronic goods were worth
 Rs.80,000/- and the octroi duty assessed as per the
 Rules on the said goods, was Rs.2400/-. The accused
 did not pay the octroi duty of Rs.2400/- and the
 accused evaded the octroi duty intentionally thereby
 committed breach of the Octroi Rules. Hence,
 complaint came to be filed.

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 3. The particulars of the offences were read over
 and explained to the accused in both the cases. The
 accused pleaded not guilty and claimed to be tried.

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 4. The defence of the accused persons is that they

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 never intended to evade the payment of octroi duty.

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 The assessment made by the complainant P.W.1
 Yeshwant Desai is based on wrong assumption that the
 goods imported were electronic goods. It is their
 defence that there is no description of the
 electronic goods in the Railway Receipt No.154094
 dated 7th September, 1983 and Railway Receipt
 No.972468 dated 27th September, 1983. According to
 the accused, similar goods were imported by them
 from Delhi and brought to Pune under the Railway
 Receipt No.931229 under which the Radios were
 imported by the accused persons. The goods were
 weighing 60 kgs. and the assessment for the purpose
 of octroi on the said goods was made at Rs.1869/-.
 Accordingly, the accused paid the octroi duty of
 Rs.56.10 ps. to Pune Municipal Corporation. It is
 the case of the respondents that Transistors were
 imported by them under Railway Receipt No.4303592 on
 7th February, 1978 and octroi duty of Rs.173/- was
 paid by them to P.M.C. All these documents were
 produced in the lower Court.

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 . It is the specific defence of the respondents
 nos.1 to 3 that they were ready and willing to pay
 the octroi duty as per the Rules. According to
 them, they have received the Transistor sets and
 table models in the consignments whose cabinets are

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 big in size, but the price is very cheap. Their
 defence is that the salesman went to pay the octroi
 duty but the octroi could not be paid at that time
 as the dispute in relation to nature of property was
 not settled.

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 5. The crucial question in the present case is
 whether the accused persons evaded the payment of
 octroi duty with intention of defrauding the Pune
 Municipal Corporation. The complainant P.W.1
 Yeshwant Desai has admitted in his cross-examination
 that accused no.2 Deepak Chhabriya met him and
 thereafter he was directed to see the Octroi
 Superintendent. The complainant has further
 admitted that bill in question was shown to him by
 accused no.2 Deepak. It is the case of the
 respondents from the beginning that as the goods
 were similar to the goods earlier imported by them,
 assessment ought to be made on the same lines as the
 goods which were covered by Railway Receipt Nos.
 931229 and 4303592. On the basis of the evidence on
 record, the learned Judge has come to the conclusion
 that there was no willful or dishonest intention on
 the part of the accused for evading payment of
 octroi duty.

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 6. The learned advocate for the appellants has

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 relied upon a decision of this Court in the case of

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Hari Pandurang Bhave Vs. Sonba Kondiba Bankar and
others reported in 2000(2) Mh.L.J.613. Reliance was
 placed on the observations of this Court in the said
 case that "if any party imports the goods within the
 municipal limits clandestinely and without
 disclosing about the same to the authorities by
 making a declaration in a prescribed form as per
 Schedule "A" under Standing Order 8, there is no
 question of making any demand for the payment of
 octroi duty. In case no such declaration is made,
 there is no question of making any demand under Rule
 23. When respondents had evaded payment of octroi
 duty on the goods imported within the Municipal
 limits and had evaded the payment of octroi duty
 with the intention of defrauding the Corporation
 penalty under Section 398 of the Act is attracted
 and the accused were liable to be convicted."
 Further in the said case, it is observed that
 neither any of the respondents had paid any octroi
 duty nor the same were offered to be paid by the
 respondents. In the present case, it cannot be said
 that the accused persons were not willing to pay the
 octroi duty. Thus, the above decision would be of
 no help to the appellant. From the admission of the
 complainant, it is seen that accused no.2 Deepak had
 met the complainant in respect of imports in

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 question. From the evidence on record it does
 appear that the accused had the intention of paying
 the octroi in question and had thus met the octroi
 officers. It was the case of the accused persons
 that the goods when imported by rail which are
 subject to octroi on weight basis, shall be charged
 octroi at the rates prescribed for the goods on the
 weight and description mentioned in the Railway
 Receipts. However, in the present case the
 description of the goods in question was not given
 on the receipts. 931229 and 4303592. Looking to
 the evidence and looking to the facts and
 circumstances of this case, it cannot be said that
 there was any wilful or dishonest intention on the
 part of the appellants for evading the payment of
 octroi duty. The learned Sessions Judge directed
 that the goods be reassessed and the accused should
 pay the octroi at the reassessed rate. It is not
 the case of the appellant that the accused persons
 have not paid octroi duty as per the reassessment.
 Thus, looking to the evidence on record, the view
 taken by the learned Addl. Sessions Judge is a
 reasonable and possible view.

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 7. The learned Judge has given plausible reasons
 for acquittal in the impugned judgment. It is well
 settled that if the view of acquittal could have

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 been reasonably arrived at, then the mere

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 circumstance that the appellate Court could have
 taken a different view, would be no ground to
 interfere. In this connection, there is no dearth
 of authorities. To eschew prolixity, I am only
 referring to two of them i.e. A.I.R. 1971 S.C. 66
(Khedu Mohton Vs. State of Bihar) and (2003) 1

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S.C.C. 1 (C.Anthony Vs. K.G.Raghavan Nair). In
 the case of C.Anthony, the Supreme Court has
 observed that unless findings of the trial Court are
 perverse or contrary to the material on record, the
 High Court cannot in appeal, substitute its findings
 merely because other contrary opinion was possible
 on the basis of the material on record. In my view,
 the view of acquittal was a reasonable and possible
 view.

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 8. In the circumstances, I find no merit in these
 appeals and the same are dismissed.

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 [SMT.V.K.TAHILRAMANI,J.]

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 FARAD CONTINUATION SHEET
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE SIDE
 CRIMINAL APPEAL NO. 658 OF 1995
 WITH
 CRIMINAL APPEAL NO. 677 OF 1995

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 -----------------------------------------------------------------
 Office Notes, office Court’s or Judge’s orders
 Memoranda of Coram,
 appearances, Court’s
 orders or directions
 and Registrar’s orders
 -----------------------------------------------------------------
 Mr.R.M.Pethe i/b Mr.R.G.Ketkar
 Advocates for Appellant
 None for Respondent nos.1 to 3.
 Mr.A.S.Shitole, A.P.P. for State.
CORAM: SMT.V.K.TAHILRAMANI,J.

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DATE : DECEMBER 2, 2004

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 . For the reasons mentioned
 separately in the judgment, the
 following order is passed:
 . Both the appeals are dismissed.

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 (V.K.TAHILRAMANI,J.)

Yeshwant Dattatraya Desai v. Smt.Jayashri Prabhudas Chhabriya and Ors.

Case brief

What is this about?

What did the court decide?

Yeshwant Dattatraya Desai v. Smt.Jayashri Prabhudas Chhabriya and Ors.

Case brief

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What did the court decide?

What the court decided

A compact analysis

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