Judgment

DUA, J.: - The appellant, Basudev Hazra, was a leaseholder in respect of tolls of the public ferry at Sadar Ghat on the outskirts of Burdwan town for crossing the river Damodar This lease was for a period of three years (August 14, 1963 to August 13, 1966) Ex. 2. On November 30, 1964 Matiar Rahman Mandal filed a complaint against the appellant in the court of the Sadar Sub-Divisional Officer (Judicial) Burdwan alleging that the appellant used to realise illegally 20np. per cart from the cultivators who used to drive their carts across the dry bed of the river. The matter was reported to the S. D. O. who directed an enquiry. This infuriated the appellant. On November 29, 1964 the appellant realised double the amount of toll and on protest and refusal by the complainant he was threatened with violence by the appellant.

2. The Magistrate trying the appellant for offences under Ss. 23 and 24 of the Bengal Ferries Act, 1 of 1885 convicted him of both the offences. The appellant was sentenced to a fine of Rs. 10 under Sec. 23 and to a fine of Rs. 20/ under Section 24: in default of payment of fine in the former case he was to undergo simple imprisonment for ten days and in the latter for 20 days.

3. On the appellant challenging his conviction on revision in the Court of the Sessions Judge, the Additional Sessions Judge, Burdwan made a reference to the High Court recommending the appellant s acquittal. It was observed by the Additional Sessions Judge in his reference that according to the appellant s defence the complainant s party were in fact using the landing stage and the path constructed and repaired by him and, therefore, they were liable to pay the usual toll tax. After reproducing Section 24 he added:

"......... the complainant s case as it appears from the petition of complaint and also from the evidence of the three witnesses examined on the Point, is that they do not take advantage of any of the facilities provided by the lessee and that the lessee demanded toll from them even though they were using their own path. The defence as I have already, stated, was that the pathway and the landing stage belonged to the lessee and that, there fore, he was entitled to collect toll. Forgetting the defence for the moment it seems to me that no conviction u/s 24 can be sustained on the case of the complainant as it is".

According to him the collection of money from the people using their own pathway might amount to extortion but it would not attract Section 24. We need not refer to the recommendation with respect to the appellant s conviction under S. 23 as this was accepted by the High Court and there is no appeal against acquittal under that section.

4. The High Court accepted the recommendation with respect to the conviction under S. 23 and acquitted the appellant of that offence. In regard to the conviction under S. 24 the High Court observed that the trial Magistrate had found (i) that the appellant had been realising toll charges in excess of the scheduled rate of 20 Ps. per cart and also realising such charges from persons who did not use the ferry and (ii) that though the complainant had not availed of the ferry and had taken the cart over the sandy bed of the river 40 Ps. per cart were realised from him. These findings of fact were held not open to re-examination on revision. The High Court added that realisation of 40 Ps. fell within the mischief of S. 24 which forbids every lessee from realising more than lawful toll even in cases in which he is entitled to demand ferry charges. Repelling the argument that the present was a case of extortion and it did not fall within the purview of S. 24 the High Court, after referring to the complainant s case, observed that it was a case of illegal realisation of toll in excess, when the appellant was not entitled to realise it at all and not a case of extortion under the Indian Penal Code. The amount had been illegally demanded as a toll and that also in excess of permissible rate. Th