1. The appellant – Octroi Officer, Surat Municipal Corporation has filed this Appeal under Section 378 of the Code of Criminal Procedure, against the Judgment and order of acquittal dated 29.12.1992 passed by the learned Judicial Magistrate, First Class (Municipal Court), Surat, in Municipal Case No. 2994 of 1987, whereby the learned Magistrate has acquitted the respondents – original accused of the charges alleged against them.
2. The short facts of the prosecution case are that the respondent Nos.2 & 3 (original accused Nos.2 & 3) are the trustees of respondent No.1 – Hospital. It is alleged that the respondents No.2 & 3 have imported dental machine, with all the equipments of electronic treatment for respondent No.1. It is alleged that on the Octroi Naka, the duty was not paid and the vehicle was not stopped with an intention to evade the duty and commit theft of duty and entered the Surat city. The same was came to the knowledge of the Tax Officer on 24.11.1986 and, therefore, the letter was written to the respondent No.1 asking for bill of the machine with chair and also to produce receipt, if any, for payment of duty. In reply to the said letter, the respondent No.2, vide letter dated 1.12.1986, had wrongly informed that the matter is pending before the Court and, therefore, it is sub-judice. Thereafter, under Rule – 21 the Corporation issued requisition calling for full details of dental machine with chair. It is alleged that the said form was filled up by the respondent No.1 on 17.3.1987 and though, as per the requisition form, the price of the machine with chair was more than Rs.1 lac, the respondents have wrongly shown the price of said machine with chair as Rs.48,600/-. The number of the Ambulance was also not shown and not supplied full information. Therefore, the respondents – accused have violated the Rule 5 & 6 of the Standing Order and also Rules 13(1)(d), 13(1)(e) and 13(2) of the Octroi Rules and thereby the respondents have committed offence under Rules 28(1), 28(2)(a), 28(2)b, 28(2)c of the Octroi Rules. It is also alleged that on the value of dental machine with chair worth Rs.1,60,000/-, the octroi duty of Rs.1600/- has to be paid by the respondents. However, the same was not paid by the respondents and thereby the respondents have committed theft of octroi duty worth Rs.1600/- and committed an offence punishable under Section 398 of the B.P.M.C. Act. Therefore, the complaint against the respondents – accused has been filed by the concerned officer of the Corporation before the learned Judicial Magistrate, First Class, (Municipal Court), Surat. The said complaint was registered as Criminal Case No.2994 of 1987.
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 29.12.1992, acquitted the respondents – accused from the charges alleged against them.
4. Being aggrieved and dissatisfied with the said Judgment and order dated 29.12.1992, passed by the learned J.M.F.C. (Municipal Court), Surat, in Municipal Case No.
2994 of 1987, the appellant – Octroi Officer, Surat Municipal Corporation, has preferred the above mentioned Criminal Appeal.
5. Heard learned Senior Advocate Mr. Prashant G. Desai, appearing on behalf of the appellant, learned A.P.P. Ms. Hansha Punani, appearing on behalf of the respondent No.1 – State and learned Advocate Mr. Mirza for Mr. Marshal, appearing on behalf of the respondents No.2 to 4. I have also gone through the papers produced before me and also the Judgment and orderof the trial Court.
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 respondents to pay the amount of octroi at the time of entry of the goods. He has contended that the respondents have not paid the octroi and entered the goods into the city limit without payment of octroi. He has contended that during the inspection made by the complainant, it was came to his knowledge that the respondents have not paid the octroi for the goods and, therefore, the intention of the respondents is clear that the respondents were not willing to pay the octroi. He has contended that it was the primary duty of the respondents to pay the octroi amount before entering the goods in the city limits. 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 respondent – State of Gujarat. I have also heard learned Advocate, appearing on behalf of the respondents No.2 to 4. I have also perused the papers produced before me and the Judgment of the trial Court.
8. From the Judgment of the trial Court, it clearly appears that the respondents – accused were not afforded an opportunity of personal hearing by the appellant – Corporation. The driver of the Ambulance, in which the machine with chair was kept, was not shown as accused in the proceeding. The learned Magistrate has also observed that the requisition form was filled in as per Standing Order No.19 by the respondents, however, there was no demand with regard to octroi and the respondents were not informed to deposit the said octroi amount. It has also been observed by the learned Magistrate that after sending the requisition form by the respondents to the appellant, no other information was sought for from the respondents. It is also observed that the appellant has not gathered any information with regard to the price of the machine with chair. From the observation made in the Judgment, in my opinion, the learned Magistrate has rightly held that the complainant has failed to prove that the accused have committed offence of not filling up the requisition form of dental machine with chair and with an intent to evade octroi had not stationed the ambulance van at the octroi Naka, by violating Standing Order No.5 and of not filling up the tender form and thereby violated the Standing Order No.6 and committed offence punishable under Rules 13(1)(d), 13(1)(e) and 13(2) of the Octroi Rules and Rules 28(1), 28(2)(a), 28(2)(b), 28(2)(c) of the Rules and under Section 398 of the BPMC Act.
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 acquitting the respondents – accused from the charges alleged against them. 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 29.12.1992 passed by the learned Judicial Magistrate, First Class (Municipal Court), Surat, in Municipal Case No. 2994 of 1987 in acquitting the respondents – 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