State Of Gujarat & 1 ­

[1.0] Present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner herein – original complainant – Agricultural Produce Market Committee, Keshod to quash and set aside the impugned judgment and order dated 26.07.2006 passed by the learned Additional Sessions Judge, Junagadh in Criminal Revision Application No.124/2005 as well as the order dated 17.11.2005 passed by the learned Judicial Magistrate, First Class, Keshod below Exh.6 in Criminal Case No.87/2005 by which the learned Magistrate has dismissed the complaint filed by the petitioner filed against respondent No.2 herein for the offences under Section 36 of the Gujarat Agriculture Produce Market Act, 1963 (hereinafter referred to as “APMC Act”). [2.0] Petitioner herein – original complainant filed Criminal Case No.87/2005 against private respondent herein – original accused in the Court of learned Chief Judicial Magistrate, Keshod for the offence under Section 36 of the APMC Act alleging inter­alia that a sum of Rs.4,40,535/­ towards market fee was due and payable by respondent No.2 herein and the same has not been paid. Therefore, it was alleged that respondent No.2 has committed the offence under Section 36 of the APMC Act.

[3.0] Having served with the summons of the aforesaid complaint, respondent No.2 herein – original accused submitted the application Exh.6 before the learned Magistrate submitting that the complaint was barred by limitation. Learned Magistrate accepted the same and allowed the said application Exh.6 and quashed and set aside the criminal complaint on the ground that the same was barred by limitation. Being aggrieved and dissatisfied with the order dated 17.11.2005 passed below application Exh.6 by the learned JMFC, Keshod in Criminal Case No.87/2005 dismissing the said complaint, the petitioner – original complainant preferred Criminal Revision Application No.124/2005 which came to be dismissed by the learned Additional Sessions Judge, Junagadh by the impugned judgment and order dated 26.07.2006. Being aggrieved and dissatisfied with the impugned orders passed by both the Courts below, the petitioner – original complainant has preferred the present Special Criminal Application under Article 227 of the Constitution of India.

[4.0] Shri Shirish Joshi, learned advocate appearing on behalf of respondent No.2 – original accused has raised a preliminary contention that as such the complaint against respondent No.2 for offence under Section 36 of the APMC Act itself was not maintainable inasmuch as non­ payment of the market cess/fees cannot be said to be an offence under Section 36 of the APMC Act. Therefore, it is submitted that without even considering the fact whether both the Courts below were justified in dismissing the complaint on the ground of limitation, it is requested to dismiss the present petition by submitting that as such respondent No.2 has not committed any offence as alleged under Section 36 of the APMC Act.

[5.0] Shri Dipen Desai, learned advocate appearing on behalf of the petitioner – original complainant is not in a position to dispute the above and is not in a position to dispute that as such non­payment of the market fee cannot be said to be an offence under Section 36 of the APMC Act. He is also not in a position to dispute that only in a case where a person has carried on the business without license in the Market Yard/Area then and then only it can be said that the said person has committed the offence under Section 36 of the APMC Act. He is also not in a position to show any other provision by which it can be said that non­payment of market fees can be said to be an offence.

[6.0] Considering the aforesaid facts and circumstances of the case, when non­payment of the market fees by respondent No.2 cannot be said to be an offence under Section 36 of the APMC Act, to continue the criminal proceedings against respondent No.2 would be unnecessary harassment to him and same shall be abuse of process of law and the Court. Under the circumstances, without expressing any opinion on merits whether the learned Magistrate was justified in dismissing the complaint on the ground of limitation or not, when the complaint against respondent No.2 itself is not maintainable for the offence under Section 36 of the APMC Act on non­payment of the market fees, this Court is of the opinion that the order passed by the learned Magistrate dismissing the complaint and confirmed by the Revisional Court is not required to be interfered with, may be on other ground. The ultimate conclusion by the learned Magistrate dismissing the complaint confirmed by the learned Revisional Court is just and proper.

[7.0] Under the circumstances, in view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is, accordingly, dismissed. It goes without saying that this Court has not expressed anything on merits with respect to the liability of respondent No.2 – original accused to pay the market fees and as and when any demand is raised against respondent No.2 for the same, the same be considered in accordance with law and on merits. Rule discharged.

(M.R. Shah, J.) menon