Dismissed

Shashikant Namdeo Barathe v. Mahadeo Anant Gogate and 2 Ors.

Bombay HC22 Aug 2007APEAL/76/1996

Case brief

AI extract

What is this about?

In an appeal against acquittal under Section 398 of the BPMC Act, the Bombay High Court held that the appellate court should not interfere with the acquittal of a driver where there is no evidence indicating his knowledge of non-payment of octroi or intention to defraud the corporation, distinguishing prior precedents where such intent was evident.

What did the court decide?

Criminal appeal dismissed; order of acquittal of the second respondent maintained.

Shashikant Namdeo Barathe Vs Mahadeo Anant Gogate and 2 Ors. — Cheque Dishonour | Bombay HC (2007)

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MSS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 76 OF 1996

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 SHRI SHASHIKANT NAMDEO BARATHE )

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 Checking Inspector, Pune )

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 Mahanagarpalika, Pune ) APPELLANT
 (Orig. Complainant)

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 VERSUS

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 1. SHRI MAHADEO ANANT GOGATE )
 R/o, 977, Aai Peth, Sangli )

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 2. SHRI ANANT JANARDAN PHADTARE)

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 R/o 765, Sadashiv Peth )

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 PUNE 411 030. ) .. (Orig.Accused)

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 3. THE STATE OF MAHARASHTRA ) .. RESPONDENTS

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 Mr. R. S. Khadapkar h/f R. G. Ketkar for appellant

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 Mr. A. G. Damle for R-2

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 Mrs. M. M. Deshmukh, APP

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CORAM:SMT. RANJANA DESAI, J.

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DATE: 22/8/2007.

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 ORAL JUDGMENT:

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 . The original complainant has challenged in this
 criminal appeal judgment and order dated 21/4/94
 passed by the Judicial Magistrate First Class (PMC)

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 Pune, in Summary Case No. 28 of 1986. Respondent
 1 and 2 are original accused 1 and 2 respectively.
 Respondent 1 is dead. Hence the present appeal has
 abated as against him. Needless to say that so far
 as respondent 2 is concerned it survives. For
 convenience I shall refer to the accused as per
 their description in the trial.

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 2. The case of the complainant who was at the
 relevant time working as Checking Naka Inspector in
 the Octroi Department of Corporation Pune, is that
 on 6/8/88 the Flying Checking Squad of the Octroi
 Department found the accused carrying some boxes in
 an autorickshaw. Hence the said authorickshaw was
 followed by a jeep by the Flying Squad. At Aniket
 Society Bibwewadi the boxes were being unloaded.
 The Flying Qquad asked for the receipt of octroi.
 It was not produced by the owner of the watches.
 Therefore, the autorickshaw was brought to Nava Pul
 Naka. There the owner was directed to produce the
 documents and to pay the octroi. He did not
 produce any documents, therefore, Hadap Pavati was
 issued.

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 3. It appears that a suit was filed by accused 1
 seeking release of the goods. As per court’s

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 direction octroi amount of Rs.3,607.80 was paid by
 accused 1 and the goods were released. Thereafter
 the complainant was directed by the Octroi
 Department to file prosecution against the accused.
 Pursuant thereto complaint came to be filed in the
 court of Judicial Magistrate First Class, Pune,
 alleging offence under Section 398 of the Bombay
 Provincial Municipal Corporation Act 1949 ("The
 BPMC Act" for convenience) against the accused.

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 4. In support of its case the Octroi Department
 examined the complainant Sashikant Barathe and
 Shankar Bankar, who was also attached to the Octroi
 Department. The defence of the accused was one of
 denial. After perusing the evidence on record, the
 learned Magistrate was of the view that the
 prosecution has failed to prove its case beyond
 reasonable doubt. He, therefore, acquitted the
 accused. This order of acquittal is challenged in
 this appeal.

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 5. I have heard at some length Mr. Khadapkar,
 learned advocate for the appellant/complainant, Mr.
 Damle, learned advocate for the 2nd
 respondent/original accused 2 and Mrs. Deshmukh,
 the learned APP.

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 6. Mr. Khadapkar, learned advocate for the

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 appellant has strenuously contended that the
 impugned judgment and order is perverse and
 deserves to be set aside. He submitted that

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 accused 2 was driving autorickshaw which was loaded
 with watches. The learned advocate urged that it

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 is clear from the evidence on record that accused 2

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 had the knowledge that the autorickshaw was
 carrying watches and that octroi was not paid. Mr.
 Khadapkar drew my attention to Section 147 of the

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 BPMC Act which contains presumption. He submitted
 that, as per this provision, if any goods are
 imported into the city unless the contrary is

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 proved they shall be presumed to have been imported
 for the purposes of consumption, use or sale
 therein unless such goods are conveyed from the

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 place of import to the place of export by such

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 routes, within such time, under such supervision

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 and on payment of such fees, therefor as shall be
 determined by the standing orders. The learned
 advocate urged that this presumption is squarely
 attracted to the facts of the present case. He

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 submitted that there is no evidence to indicate
 that the goods were taken from the place of import
 to the place of export Via Pune. No export pass is

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 brought on record by the accused and, therefore, no
 other inference is possible except that the goods
 were brought in Pune City for the purposes of
 consumption, use or sale without paying octroi.

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 7. Mr. Khadapkar drew my attention to the
 relevant standing orders of the Pune Municipal
 Corporation. He particularly relied on Standing
 Orders 4,5,8 and 11. He pointed out that as per
 Standing Order 4, every person bringing goods into
 Octroi Limits of the Corporation has to stop at the
 Import Naka to enable the Import Naka Officer to
 ascertain whether the goods in the possession of
 the said person are liable to octroi. Relying on
 Standing Order 5 he urged that every driver of the
 vehicle or conveyance of any nature whatsoever
 shall stop his vehicle or conveyance at the Import
 Naka to enable the Import Naka Officer to ascertain
 whether the said vehicle or conveyance contains any
 goods liable to octroi. He submitted that,
 therefore, accused 2 cannot avoid his liability by
 saying that he is merely a driver. He further
 pointed out that under Standing Order 8, every
 person in charge of the goods that are being
 imported into the Octroi Limits for consumption,
 use or sale has to at the time of import duly fill

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 in and deliver to the Import Naka Officer, a
 declaration under his signature in the form
 prescribed in Schedule ’A’. He pointed out that as
 per Standing Order 11, every person bringing goods
 into the Octroi Limits has to produce the original
 invoice relating to the goods.

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 8. Drawing my attention to Rule 8 of the Octroi
 Rules, Mr. Khadapkar contended that octroi is
 payable on demand by the person in charge of the
 goods on which octroi is leviable. He also relied
 on Rule 13 under which, in case of non-payment of
 any octroi on demand by any person authorised in
 this behalf by the Commissioner such person may
 seize the goods on which the octroi is chargeable
 which are in his opinion of sufficient value to
 satisfy the demand together with the expenses
 incidental to the seizure, detention and eventual
 sale, if necessary, of such goods or part thereof
 and may detain the same and give a list of the
 property together with a written notice to the said
 person.

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 9. The learned advocate contended that it was,
 therefore, obligatory on the accused to stop at the
 check naka, disclose the goods which they were

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 carrying and pay the octroi. The formalities
 prescribed under the rules had to be complied with.
 Admittedly the accused have failed to do so and,
 therefore, Section 398 of the BPMC Act is clearly
 attracted and the learned Magistrate erred in
 acquitting the accused.

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 10. The learned advocate heavily relied on the
 judgment of this court in Hari Pandurang Bhave v.

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Sonba Kondiba Bankar & Ors., 2000(2) M.L.J. 613,

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 where this court has held that since the
 respondents had evaded payment of octroi duty on
 the goods imported within the Municipal limits with
 the intention of defrauding the Corporation penalty
 under Section 398 of the BPMC Act is attracted and
 when any person 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, 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.

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 11. Mr. Khadapkar also relied on the judgment of
 this court in Dnyanoba Vithoba Thigle v. Ashok

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Eknath Saste & Ors., 1993 MLJ 1304. He pointed out
 that in that case tempo belonging to accused 2 was
 driven by accused 1. The tempo sped past the check
 naka without paying octroi. This court set aside
 the order of acquittal and held that the accused
 were liable for offence punishable under Section
 398 of the BPMC Act. Mr. Khadapkar submitted
 that, therefore, driver is also liable for offence
 under Section 398. Mr. Khadapkar submitted that
 in the circumstances, the trial court erred in
 acquitting accused 2.

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 12. Mr. Khandeparkar contended that the trial
 court’s judgment runs counter to the view taken by
 this court in the aforementioned judgments. He
 pointed out that the trial court erred in taking a
 view that there was no proper notice given to the
 accused calling upon them to pay the octroi. The
 learned Magistrate erred in observing that there
 was breach of rules. He submitted that on such
 flimsy ground the accused could not have been
 acquitted without noticing the presumption under
 Section 147 of the BPMC Act. He, therefore,
 submitted that the order of acquittal be quashed
 and set aside and accused 2 may be convicted in
 accordance with law.

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 13. Mr. Damle, learned advocate appearing for the

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 2nd respondent/accused 2 on the other hand
 submitted that the impugned order of acquittal
 cannot be characterised as perverse warranting any
 interference by this court. In support of this
 submission he relied on the judgment of the Supreme

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 Court in Jimmy Homi Bharucha v. State of

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Maharashtra, AIR 1977 SC 1213. The learned

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 advocate contended that accused 2 is merely a
 driver. There is nothing on record to indicate

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 that he was a party to the alleged attempt to evade
 octroi duty. He submitted that intention is a very
 vital ingredient of Section 398 of the BPMC Act.
 If the intention is found absent the accused cannot

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 be convicted for the said offence. He submitted

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 that the judgments on which reliance is placed by
 the appellant are not applicable to the facts of
 this case. He submitted that judgment of this
 court in Hari Pandurang Bhave’s case (supra) in
 fact strengthens his submission that intention is a
 vital ingredient of Section 398 of the BPMC Act.
 In the circumstances the learned advocate prayed
 that the appeal be dismissed.

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 14. It is well settled that unless the order of

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 acquittal is perverse it is not to be interfered
 with by this court. If the view taken by the trial
 court is a reasonably possible view this court
 cannot set it aside and substitute its own view in
 place thereof even if it is possible to take the
 said other view on the facts of the case. Reliance
 placed by Mr. Damle on the judgment of the Supreme
 Court in Jimmy Bharucha’s case (supra)is apt. In
 that case while dealing with the High Court’s power
 to interfere with order of acquittal, the Supreme
 Court has held that if two views of the evidence
 are possible and the trial court has taken a view
 favourable to the accused and acquitted him, the
 appellate court should not disturb the acquittal
 merely because it is inclined to take another view.

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 15. Reference may also be made to the judgment of
 the Supreme Court in State of Rajasthan v. Raja

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Ram, (2003) 8 SCC 180where the Supreme Court has
 held that generally, the order of acquittal shall
 not be interfered with because the presumption of
 innocence of the accused is further strengthened by
 acquittal. The Supreme Court has further observed
 that the golden thread which runs through the web
 of administration of justice in criminal cases is
 that if two views are possible on the evidence

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 adduced in the case, one pointing to the guilt of
 the accused and the other to his innocence, the
 view which is favourable to the accused should be
 adopted. The paramount consideration of the court
 is to ensure that miscarriage of justice is
 prevented. It is further observed that a
 miscarriage of justice which may arise from
 acquittal of the guilty is no less than from the
 conviction of an innocent. The Supreme Court has
 further observed that the principle to be followed
 by the appellate court considering the appeal
 against the judgment of acquittal is to interfere
 only when there are compelling and substantial
 reasons for doing so. If the impugned judgment is
 clearly unreasonable, it is a compelling reason for
 interference. Keeping this principle in mind, I
 shall approach this case.

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 16. There is no dispute about the fact that
 original accused 1 Mahadeo Anant Gogate was the
 owner of the watches in respect of which octroi was
 not paid. It is also important to note that
 accused 2 is the driver of the autorickshaw which
 was hired by accused 1 for the purpose of
 transporting the watches. Accused 1 is dead.
 Appeal filed against him has abated. Therefore,

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 today before me is the case of the driver whose
 autorickshaw was hired by the main accused.

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 17. Section 398 of the BPMC Act reads as under:

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 "398. Where any vehicle, animal or goods
 imported into the limits of the City are
 liable to the payment of the toll or
 octroi any person who, with the intention
 of defrauding the corporation, causes or
 abets the introduction of or himself
 introduce 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 to ten times the
 amount of such toll or octroi or to two
 hundred and fifty rupees, whichever may
 be greater."

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 A bare reading of this Section makes it clear that
 evasion of octroi duty with intention of defrauding
 the Corporation is the basic ingredient of this
 Section. Intention has to be proved and in a given

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 case it may be very much evident from the record of
 the case.

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 18. It is, therefore, necessary to scrutinise the
 evidence adduced by the prosecution in this case to
 find out whether accused 2 had the knowledge that
 watches which were kept in his autorickshaw were
 meant for consumption in the city of Pune and that
 octroi on the said watches was not paid and payment
 thereof was to be evaded.

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 19. In this connection it is necessary to first
 have a look at the complaint. In paragraph 8 of
 the complaint it is stated that accused 1 is a
 businessman and carries on business of sell of
 watches. It is further stated that accused 2 is a
 driver and on the relevant date the goods were
 brought in the rickshaw driven by accused 2. It is
 further stated that the accused had knowledge about
 the provisions of the BPMC Act and the rules and
 the standing orders and they have intentionally
 defrauded the Corporation by not paying octroi.

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 20. So far as this later part as regards knowledge
 and intention are concerned, no further particulars
 thereof are given in the complaint. It is

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 necessary to see whether the evidence on record
 bears out this case of the complainant. It is

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 pertinent to note that the complainant has in his
 evidence stated that autorickshaw was followed by
 the Flying Squad and when the goods were being
 unloaded at Aniket Society and when the Flying
 Squad asked for the receipt it was not produced by
 the owner of watches. After that the complainant
 has stated that he failed to produce the documents
 and he failed to pay the octroi. Obviously the
 statement refers to accused 1. It is further
 stated that the suit was filed by accused Gogate
 for seeking order of release of the goods. The
 entire examination-in-chief contains reference to
 only accused 1, who was the owner of the watches.
 Neither Sashikant the complainant nor Shankar
 Bankar, the second witness who was also member of
 the Flying Squad has stated that accused 2 was in
 any way concerned with the import of the goods;
 that he took part in evading the octroi or that he
 was to get any benefit out of such evasion. In
 fact there is absolutely no evidence on record from
 which it can be inferred that accused 2 had the
 knowledge or the requisite intention which is the
 important ingredient of Section 398 of the BPMC
 Act. There is no evidence to establish that

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 accused 2 sped past the check-naka. Therefore, the
 trial court committed no irregularity or
 impropriety in acquitting accused 2.

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 21. I have carefully perused the octroi rules and
 the standing orders to which my attention is drawn
 by the learned advocate for the appellant.
 Undoubtedly a person who brings the goods within
 the limits of Pune Municipal Corporation for the
 purpose of consumption or sale has to stop at the
 octroi naka and declare the goods. He has to
 follow the required procedure. Being the importer
 it can be said that it was accused 1’s duty to
 follow the procedure, declare the goods and pay
 octroi. But in the facts of this case without
 there being any evidence on record, in my opinion,
 it is not possible to say that the alleged breach
 of all these rules and standing orders can be taken
 against accused 2. About his intention there is no
 evidence on record. Heavy reliance is placed by
 Mr. Khadapkar on Rule 12 of the octroi rules where
 importer is defined, which reads thus;

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 . "(12) ’Importer’ shall mean the person who is
 shown as an Importer in the Import Bill and shall
 also include a person who is to be deemed to be an

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 Importer according to the provisions contained in
 the Standing Orders."

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 22. The learned advocate wants to contend that
 having regard to the other provisions particularly
 Standing Order 5 to which my attention is drawn by
 him, Rule 12 should be construed to mean that the
 driver is a deemed importer. I am afraid that in
 the facts of this case it is not possible to
 include accused 2 in the category of deemed
 importer. As I have already stated there is
 nothing on record to indicate that he was a party
 to the octroi evasion. Both the witnesses whom the
 complainant has examined have not said a word about
 accused 2 in their evidence. In such circumstances
 I am unable to characterise accused 2 as a deemed
 importer and hold him guilty for offence under
 Section 398 of the BPMC Act, where intention is an
 important ingredient. This submission of the
 learned counsel must, therefore, fail.

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 23. Reliance placed on the judgment of this court

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 in Hari Pandurang Bhave’s case (supra) is
 misplaced. In that case this court was basically
 concerned with the question of demand. The
 question was whether the trial court was right in

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 observing that when there was no demand under Rule
 23 of the Octroi Rules for payment of octroi duty,
 the respondents were not liable to pay octroi. It
 is in this context that after considering the
 relevant rules this court observed that if goods
 are imported within the Municipal limits
 clandestinely and without disclosing about the same
 to the authorities by making a declaration in the
 prescribed form as per Schedule "A" under Standing
 Order 8, there is no question of making any demand
 for the payment of octroi duty. This judgment does
 not deal with the question of intention.

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 24. So far as the judgment of this court in
Dnyanoba Thigle’s case (supra)is concerned, that
 judgment, in my opinion, strengthens the submission
 that conviction under Section 398 cannot be
 fastened on a person unless it is shown that
 evasion of duty was done with intention of
 defrauding the Corporation. In that case the tempo
 belonging to accused 2 was driven by accused 1 into
 the Pune City. The tempo sped past octroi naka
 without stopping or paying octroi. A group of
 activists then brought the tempo to the Corporation
 building and thereafter the goods were seized under
 a hadap notice. The facts of this case indicate

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 that both the accused had the intention to defraud
 the Corporation. The driver by speeding past
 octroi naka made this intention very clear. Unless
 the owner had told the driver that there were
 certain goods in the tempo in respect of which
 octroi was not to be paid and, therefore, the truck
 should not stop at octroi naka, the driver would
 not have done so. This itself indicates that both
 driver and the owner were party to an attempt to
 defraud the Corporation. It is pertinent to note
 that while dealing with the submission which was
 advanced on behalf of the accused that to sustain a
 conviction under Section 398 of the BPMC Act,
 intention to defraud has to be established, this
 court observed that vehicle did not stop at the
 octroi check post and when the law casts a specific
 obligation on the importer to file a declaration in
 respect of the goods and to offer the goods for
 inspection or assessment at the check post, if the
 requisite formalities are not complied with there
 can be no intention inferred other than the desire
 to evade the octroi. Non filing of declaration and
 speeding past the check post persuaded this court
 to infer intention to evade octroi. Therefore,
 this court accepted that intention to defraud must
 be present before a person can be convicted under

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 Section 398 of the BPMC Act.

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 25. Facts of the present case are different. At

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 the cost of repetition it must be stated that there
 is no evidence that accused 2 had intention to
 defraud the Corporation. There is no averment in
 the complaint or a statement in the evidence that
 accused 2 sped past the check post. Judgment in
Dnyanoba Thigle’s case has, therefore, no

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 application to the present case.

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 26. In the circumstances, in my opinion, no
 interference is necessary with the impugned
 judgment and order. In my opinion the view taken

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 by the trial court is a reasonably possible view.
 It is the only view possible on the facts before
 the trial court and hence it does not deserve to be
 disturbed in this appeal against order of

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 acquittal. There is, therefore, no merit in the

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 appeal, and hence it is dismissed.

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 JUDGE.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL WRIT PETITION NO. 1988 OF 2006

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 DATE ON WHICH THE JUDGMENT IS

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 RESERVED : 14TH JUNE, 2007

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 DATE ON WHICH THE JUDGMENT IS

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 PRONOUNCED:______TH JULY,2007

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 Transcription of
 Judgment / Order.

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 Submitted for
 approval.

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THE HON’BLE (SMT.) JUSTICE RANJANA DESAI:

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THE HON’BLE SHRI JUSTICE : D. B. BHOSALE:

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 1. Whether Reporters of Local Papers )

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 be allowed to see the Judgment? )

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 2. To be referred to the Reporters or )

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 not? )
 3. Whether Their Lordships wish to )
 see the fair copy of the Judgment? )
 4. Whether this case involves a )
 substantial question of law as to )
 the interpretation of the )
 Constitution of India, 1950 or any )
 Order made thereunder? )
 5. Whether it is to be circulated to )
 the Civil Judges? )
 6. Whether the case involves an impor- )
 tant question of law and whether )
 a copy of the judgment should be )
 sent to Nagpur, Aurangabad and Goa )
 Offices? )

Shashikant Namdeo Barathe v. Mahadeo Anant Gogate and 2 Ors.

Case brief

What is this about?

What did the court decide?

Shashikant Namdeo Barathe v. Mahadeo Anant Gogate and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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