Judgment

KAILASAM, J.:- This appeal is preferred by the five partners of Lido Restaurant, Connaught Circus, New Delhi, by special leave against the judgment and order of the High Court of Delhi in Criminal Appeal No. 141 of 1971.

2. A complaint was filed by the Entertainment Tax Inspector on behalf of the State in the court of the Judicial Magistrate, First Class, against the appellants on the ground that they had contravened the provisions of Sec. 4 (1) read with Section 3 (1) and Sec. 3 (3) of the U.P. Entertainment and Betting Tax Act, 1977, as extended to Delhi land punishable under Sec. 5 (3) of the Act. The trial Court acquitted the accused on the aground that no offence against them had been etablished. On appeal by Entertainment Tax Inspector, the High Court found that the appellants are guilty of the offences with which they were charged, allowed the appeal, set aside the order of acquittal and imposed a fine of Rs. 40 each on the five partners of the Lido Restaurant and directed that the fines will be paid in addition to the tax leviable under Section 3 of the Act.

3. P. W. 3, Bodh Raj, was the Entertainment Tax Inspector at the material time. On 15th November, 1968, under the instruction of his superior officer, he went along with Bajaj, P.W.5, Inspector and visited Lido Restaurant, Connaught Circus, at 10 P.M. and remained in the Restaurant till 11.15 P.M. Cabaret programme was given in the restaurant and a band was in attendance. P. W. 3 contacted the manager and recorded a statement which is Ex.B-1, in which the manager, V. N. Sood, stated that they were holding cabaret programme from 5th November 1968 daily and that the service is effected on an a la carte basis. The minimum charges for eatables at the time of cabaret are Rs. 5 at evening tea, and Rs. 10 at dinner time from 10 P.M. onwards. According to his statement, there was no admission charge or fee of any kind. P. W. 3 also examined cash memos and found at that time 72 persons were present in the restaurant for taking dinner. The evidence of the inspector is that no charges for entry to the restaurant was collected except a minimum charge of Rs. 5 for the evening and Rs. 10 for the night which was adjustable towards the food. The Accountant of the restaurant, who was examined as P. W. 4, explained that they were collecting the charges for the food consumed by the customer in the restaurant and no money was being charged for cabaret or any other type of entertainment. The evidence of P. W. 5, the Inspector, Entertainment Tax, is that a sum of Rs. 10 were the minimum charges for the food including band performance. A sum of Rs. 10 were charged on per head basis, in the nightly dinner-cum-cabaret programme.

4. On the evidence adduced, the trial court found that the cabaret performance in a restaurant is essentially an item of entertainment. It also found that Rs. 5 and Rs. 10 were minimum charges for the afternoon tea and dinner. It is also clear that these amounts were adjusted towards the eatables that were consumed. It is not the case for prosecution that the price of eatables were raised for the purpose of covering the entertainment, but it is seen from the admission of the manager as well as the evidence on record that whether a person consumed anything or not, he had to pay Rs. 5 for the evening and Rs. 10 for the night. If he consumes eatables for more than Rs. 5 in the evening and for more than Rs. 10 in the night, the amount of Rs. 5 and Rs. 10 paid by him would be adjusted. On these facts, the question arose whether any charges were collected for the cabaret entertainment. The trial court came to the conclusion that nothing was charged for cabaret performance and the minimum charges had only been fixed so that no undesirable element can get into the restaurant. The High Court came to a different conclusion and found that the idea behind the requirement of payment of minimum charge was to cover the cabaret programme and therefore would attract entertainm