OSK 217-APEAL-715-1998.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 715 OF 1998

Shri Shashikant Namdeo Barathe

… Appellant.

Versus

Shri Indrajit Bansaridas Agarwal & Anr.

... Respondents.

Mr.Manoj Badgujal h/f. Mr.Abhijeet P. Kulkarni for the Appellant.

None for Respondent No.1.

Mrs.G.P.Mulekar, A.P.P. for Respondent No.2-State.

CORAM

:

S.B. SHUKRE, J.

DATED

:

17^TH JUNE, 2016.

P.C. :

1]

This is an appeal preferred against the judgment and

order dated 11^th February, 1994 delivered in Summary Criminal Case

No.116 of 1991 by Judicial Magistrate First Class (P.M.C.), Pune,

thereby acquitting the respondent No.1 of the offence punishable

under Section 398 of the Bombay Provincial Municipal Corporation

Act, 1949.

2]

The respondent No.1 was prosecuted on the basis of the

complaint lodged by the appellant that on 8^th March, 1991, the

1/4

OSK 217-APEAL-715-1998.odt

respondent No.1 by transporting the goods by vehicle i.e. One Tempo

within the city limits of Pune corporation without paying the Octroi

committed an offence punishable under Section 398 of the Bombay

Provincial Municipal Corporation Act, 1949. On merits of the case

the learned Magistrate found that there were several admissions given

by the complainant's witnesses which indicate that the Octroi

amount of Rs.1827/- was indeed offered to be paid by the respondent

No.1 by cheque, but it was not encashed by the complainant.

Therefore, the learned Magistrate found that there was no intention on

the part of the respondent No.1 to commit any offence in this case.

3]

Therefore, I have heard learned Counsel for the appellant

and learned Asst. Public Prosecutor for respondent No.2-State. None

for the respondent No.1. I have gone through the record including the

impugned judgment and order.

4]

It has been contended on behalf of the appellant-

Corporation that the impugned judgment and order is illegal and

perverse and therefore, the finding of acquittal recorded therein be

2/4

OSK 217-APEAL-715-1998.odt

refrained. The learned Asst. Public Prosecutor for respondent No.2

submits that a proper order be passed in this matter.

5]

I would have accepted the contention raised on behalf of

the appellant had there been some evidence going against the

respondent No.1. The appellant's own witnesses, it is seen, have given

several admissions which show that there was no intention on behalf

of the respondent No.1 to evade the Octroi which was of Rs.1827/-.

These witnesses have admitted that the respondent No.1 had sent a

cheque of Rs.1827/- towards payment of the Octroi, and that this

cheque was received by the complainant but it was not en-cashed by

the complainant. It is also an admitted fact that the Commissioner

was never informed about offer of payment of Octroi so made by the

respondent No.1 at the time of seeking of permission for prosecution

of the respondent No.1. It is also an admitted fact that the respondent

No.1 had offered payment of Octroi amount of Rs.1827/- at

Vishrantwadi Octroi Post but it was not accepted. All these

admissions only indicate that the respondent No.1 had no intention

what so ever to evade the Octroi. The conclusion therefore, recorded

3/4

OSK 217-APEAL-715-1998.odt

by the learned Magistrate cannot be faulted with. No sufficient

grounds have been made out to enable me to interfere with this

impugned judgment and order. The appeal deserves to be dismissed.

The appeal stands dismissed.

(S.B. SHUKRE, J.)

4/4