Leave to add the State Government as party respondent No.2. Necessary amendment be carried out in the cause title of the Memo of Appeal, today. 1. The appellant – Tax Officer, Jamnagar Municipal Corporation has filed this Appeal under Section 378 of the Code of Criminal Procedure, against the Judgment and order of acquittal dated 31.12.2001 passed by the learned 2nd Joint Judicial Magistrate, First Class, Jamnagar, in Criminal Case No.2385 of 1996, whereby the learned Magistrate has acquitted the respondent – original accused of the charges alleged against him. However, the learned Magistrate has ordered that the octroi amount of Rs.9140/- which has been deposited by the accused for 104 parcels, shall stand confirmed.
2. The short facts of the prosecution case are that on 14.4.1996, the appellant – Tax Officer inspected the truck belonged to respondent and found some goods in the truck, without the octroi being paid. It is, therefore, alleged that the respondent – accused has committed an offence under Section 398 of the Bombay Provincial Municipal Corporation Act. The Tax Officer, therefore, filed complaint against the respondent – accused before the learned Chief Judicial Magistrate, Jamnagar. The said complaint was registered as Criminal Case No.2385 of 1996, and the case was transferred to the Court of 2nd Joint Judicial Magistrate, First Class, Jamnagar.
3. Thereafter, the trial was conducted before the learned Magistrate. The prosecution has examined the witnesses and also relied upon the documentary evidence. After considering the oral as well as documentary evidence, the learned Magistrate, vide Judgment and order dated 31.12.2001, acquitted the respondent – accused from the charges alleged against him.
4. Being aggrieved and dissatisfied with the said Judgment and order dated 31.12.2001, passed by the learned 2nd Joint J.M.F.C., Jamnagar, in Criminal Case No. 2385 of 1996, the appellant – Tax Officer, Jamnagar Municipal Corporation, has preferred the above mentioned Criminal Appeal.
5. Heard learned Advocate Mr. A.R.Thakkar for Mr. J.R.Nanavati, appearing on behalf of the appellant and the learned A.P.P. Mr. Raval, appearing on behalf of the newly added respondent – State of Gujarat.
6. Learned Advocate for the appellant has contended that the learned Magistrate has committed grave error in not properly considering the provisions of law and the Rules. He has contended that it is the duty of the respondent to deposit the octroi at the time of entry of the goods. He has contended that the respondent has not paid the octroi and entered the goods into the city limit without payment of octroi. He has contended that when the inspection was made by the complainant and at that time he found that the respondent had not paid the octroi for 104 articles and, therefore, the intention of the respondent is clear that he was not willing to pay the octroi. He has contended that it was the primary duty of the transporter to deposit the octroi amount before bringing the goods in the octroi limits even though the goods belong to other person or he should have declared at the Naka that the articles belong to other person, but, without declaring the same before the Octroi Naka authorities, the respondent brought the goods within the limits of the Octroi. He contended that looking to the over all evidence, the prosecution has proved its case beyond reasonable doubt and the learned Magistrate has committed grave error in not believing the case of the prosecution and, therefore, the judgment of the trial Court may be quashed and set aside.
7. I have also heard learned APP, appearing on behalf of the newly added respondent – State of Gujarat. I have also perused the papers produced before me and the Judgment of the trial Court.
8. From the letter (Exh.33) and the statement of respondent (Exh.34), it clearly appears that the respondent was ready and willing to deposit the octroi amount. It also appears that the respondent had already deposited the octroi amount of Rs.9140/- as per the order passed by the learned Magistrate. The learned Magistrate has categorically observed that the respondent is a transporter and the owner of the goods is responsible to pay the octroi amount, but, the Corporation has not examined the owner of the goods or the driver, as witness. It has also come in evidence that the respondent was ready and willing to pay the amount of octroi and has paid the amount as per the order of the trial Court. It also appears that the amount was demanded with penalty by the appellant – Corporation. It is also not the case of the appellant that the octroi amount was demanded at the Octroi Naka and the accused went away without paying the octroi amount. As per the document (Exh.36) it is not clear as to against whom the complaint was ordered to be filed.
9. In view of the above, I am of the considered opinion that the trial Court has not committed any error in not believing the case of the appellant and the trial Court was completely justified in acquitting the respondent of the charges levelled against him. I find that the findings recorded by the trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
10. It is also settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasoning when the reasons assigned by the Court below are found to be just and proper. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Court below and hence find no reason to interfere with the same. Hence, the Appeal is hereby dismissed.
11. In view of above, the Appeal is dismissed. The Judgment and order dated 31.12.2001 passed by the learned J.M.F.C., Jamnagar in Criminal Case No. 2385 of 1996 in acquitting the respondent – accused is hereby confirmed. Bail Bond, if any, shall stands discharged. R & P to be sent back to the trial Court forthwith.
(Z.K.SAIYED, J.) sas