PRASANNAKANT NILKANTH DAVE v. P. BACHU NARSI — 1980 DIGILAW 161 (GUJ)

V. V. BEDARKAR, J. ( 1 ) BOTH these appeals are filed by Prasannakant Nilkanth Dave Octroi Inspector of Limdi Municipality against the same type of order passed by the learned Judicial Magistrate First Class Limdi on 24-8-1978 in Criminal Cases nos. 504 of 1977 and 595 of 1977 respectively by which on three preliminary points raised on behalf of the respondent no. 1- accused in both the cases he dismissed the complaint filed by the present appellant and acquitted the accused for the offences punishable under secs. 123 228 and 125 of the Gujarat Municipalities Act 1963 (hereinafter referred to as the Act) and Rule 18/2 of the Bye-laws of the Limbdi Municipality (hereinafter referred to as the Municipality ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 2 ) AFTER the evidence of the appellant-Octroi Inspector was over on behalf of the accused applications were given in both the cases contending inter alia that the complaints are prima facie time barred and therefore they should be dismissed. The second ground common in both the cases was that complainant (present appellant) had no legal right to file the complaints and therefore also the complaints should be dismissed. So far as the case against respondent no. 1-Company was concerned an additional point was raised that a complaint should be filed against a living person and no complaint can be filed against a Company and therefore also the complaint should be dismissed. ( 3 ) WHEN these applications were given the learned Advocate on behalf of the Municipality in both the cases submitted that evidence was not completely led by the Municipality and the points cannot be decided so hurriedly but should be decided after the evidence is over. The learned Magistrate however thought that they are preliminary points which can be decided on the evidence adduced as they are points of law and there- fore proceeded to consider the objections raised and ultimately came to the conclusion that the Octroi Inspector was not authorised to file the com- plaints and therefore the complaints filed against the accused were bad. The learned Magistrate also came to the conclusion that the complaints were filed beyond the period of six months as provided under proviso to sub-sec. (1) of sec. The learned Magistrate also came to the conclusion that the complaints were filed beyond the period of six months as provided under proviso to sub-sec. (1) of sec. 246 of the Act and thirdly so far as the complain; against respondent no. 1-Company was concerned he came to the conclusion that such a complaint cannot be filed against a Company who is not a living person. ( 4 ) BEING aggrieved by these two orders the Octroi Inspector (original complaint) has come in appeal before this Court. Permission was granted to appeal and the appeals were admitted. Thereafter the matters are heard. As the points involved in both the matters are common points concerning the facts and law I proceed to decide both these appeals by this common judgment. ( 5 ) MR. P. M. Raval learned Advocate for the appellant in both the appeals submitted before me that the learned Magistrate has misconstrued the provisions of sec. 246 of the Act and also sec. 125 of the Act by holding that the Octroi Inspector should be authorised to file the complaint and as he was not so authorised the complaint is not maintainable. It is also the submission of Mr. Raval that the learned Magistrate pro- ceeded to consider the date of actual bringing of the vehicles into the octroi limits of the Municipality and therefore he came to the conclusion that those dates were more than six months before the filing of the complaint and hence the complaints were time-barred. On these two points the submission of Mr. Raval is that the learned Magistrate misled himself in considering the provisions of sec. 246 (1) of the Act so far as the first point is concerned. ( 6 ) SEC. 246 (1) of the Act reads as under:246 Subject to the provisions of sub-sec. (3) the Chief Officer may and where the executive committee so requires shall direct any prosecution for any public nuisance whatever and order proceedings to be taken for the recovery of any penalties and for the punishment of any person offending against the provisions of this Act or of any rule or by-law thereunder and shall order the expenses of such prosecutions or other proceedings to be paid out of the municipal fund. IN view of this sub-sec. (1) of sec. 246 of the Act i is the submission of Mr. IN view of this sub-sec. (1) of sec. 246 of the Act i is the submission of Mr. Raval that subject to the provisions of sub-sec. (3) the Chief Officer may and where the Executive Committee so requires shall direct any prosecution for any public nuisance whatever and order proceedings to be taken for the punishment of any persons offending against the provisions of the Act etc. It is therefore the submission of Mr. Raval that this provision does not require that the Chief Officer himself or the Executive Committee itself should file the complaint nor does it require that the person who files the complaint should be authorised by the Executive Committee itself but there is sufficient compliance if the Chief Officer directs any person in the Municipality to file a complaint or any prosecution or to take any proceeding. It is the submission that in fact it is in the evidence of Octroi Inspector that a resolution of the Executive Committee was passed and then a copy of that resolution was prepared on which the Chief Officer made an endorsement directing the Octroi Inspector to take necessary action urgently. On the copies of such documents when produced the learned Magistrate failed to peruse them and consider as to what would be the effect of those documents visa-vis the provisions of sec. 246 (1) of the Act. Argument was advanced before the learned Magistrate on behalf of the accused on the strength of sec. 246 of the Act that according to that section the Chief Officer can file a complaint subject to sub-sec. (3) on the strength of the resolution of the Executive Committee. Thereafter the attention of the learned Magistrate was drawn to resolution no. 148 dated 5-2-1977 passed by the Executive Committee and on reading that resolution the learned Magistrate clearly felt that the Executive Committee had not authorised the Octroi Inspector to file the complaint. The learned Magistrate considered that the report sent by the Octroi Inspector did not clearly show as to whom he sent it but he rightly concluded that it can be assumed that it was sent to the Chief Officer and the Executive Committee read that report and after considering it passed the resolution. The learned Magistrate considered that that resolution merely sanctioned the prosecution but from that it cannot be inferred that the Octroi Inspector was authorised to file the complaint. The learned Magistrate considered that that resolution merely sanctioned the prosecution but from that it cannot be inferred that the Octroi Inspector was authorised to file the complaint. Even though the words in sec. 246 (1) are the Chief Officer may direct. It is therefore very clear that the learned Magistrate did not properly interpret the meaning of the word direct Sec. 246 (1) does not say that the Executive Committee should definitely authorise a person to file a complaint. So it was not necessary for the Executive Committee to specify the person who should file the complaint. Sec. 246 (1) of the Act also does not say that it is only the Chief Officer who can file a comp- laint. On the contrary it authorises the Chief Officer to direct any pro section meaning thereby that he can authorise any person to file the prosecution. ( 7 ) THE meaning of the word direct as given in The Oxford English Dictionary Volume III page 389 so far as the interpretation of that word in a particular aspect is concerned would be covered by item no 4 (b) which says direct means to inform instruct or guide (a person as to the way; to show (any one) the way and the real meaning would be found in item 6 which says direct means to give authoritative instructions to; to ordain order or appoint (a person) to do a thing (a thing) to be done and item 6 (b) says to give directions; to order appoint ordain. Therefore the word direct does not mean that action of the filing of the complaint shall be taken by the Chief Officer himself. It is true that in sec. 246 (i) of the Act it has not been specifically made clear that the Chief Officer may direct any person or officer nor a category of persons to whom direction can be given. But merely because in sec. 246 (1) alongwith the word direct there is no provision showing that it should be directed to some person or none it cannot be said that it should ultimately mean that the Chief Officer should himself file a complaint. But merely because in sec. 246 (1) alongwith the word direct there is no provision showing that it should be directed to some person or none it cannot be said that it should ultimately mean that the Chief Officer should himself file a complaint. It should normally be considered that he has merely to direct the prosecution to be launched and proceedings to be taken and filing of the prosecution and taking of the proceedings may be by somebody else to whom directions are given by the Chief Officer. ( 8 ) FOR the time being therefore from the record of the case it seems that the Octroi Inspector submitted report to the Chief Officer mentioning that these particular persons have not paid octroi duty and complaints should be filed. In fact in Criminal Case no. 504 of 1977 which is the subject-matter of Criminal Appeal no. 225 of 1979 at Ex. 17 there is report of the Octroi Inspector which the learned Magistrate considered it to be to the Chief Officer. On that there is an endorsement probably of the Chief Officer that it should be placed before the Execu- tive Committee. Ex. 16 is the resolution of the Executive Committee. In this case there is no paper produced which would go to show that any direction was issued by the Chief Officer but alongwith the complaint a typed copy is produced which is Mark 1/1 and on the first portion there is a resolution of the Committee. Then below that there is an endorsement that the Octroi Inspector should be apprised of the above order and that he should act according to it. There is also an endorsement that action should be taken immediately and no delay should be caused and the date is 1-6-1977. Below that there is report dated 21-1-1977 which is a copy of Ex. 17 to which I have already referred. It was the submission of Mr. Raval that as the application was given abruptly and the order was passed abruptly by the Court necessary documents to convince the Court on this particular point could not be produced. ( 9 ) LIKEWISE in Criminal Case no. 505 of 1977 which is the subject- matter of Criminal Appeal no. 226 of 1979 a copy of the resolution is produced at Ex. ( 9 ) LIKEWISE in Criminal Case no. 505 of 1977 which is the subject- matter of Criminal Appeal no. 226 of 1979 a copy of the resolution is produced at Ex. 23 and below that same endorsement is passed by the Chief Officer except that the words it should be done urgently are absent. But both these endorsements if at all are made by the Chief Officer would clearly go to show that be had directed the Octroi Inspector to take action i. e. to take proceedings and if that aspect is proved then it can well be said that requirement of sec 246 (1) of the Act is complied with. ( 10 ) BUT for the time being it can safely be observed that the impression of the learned Magistrate that the Executive Committee should specifically authorise the Octroi Inspector to file the complaint in the resolution itself does not seem to be justified. If there is evidence to show that the Chief Officer directed the Octroi Inspector to file the complaint or to take proceedings then it would be a sufficient compliance with the provisions of sec. 246 (1) of the Act and therefore it would be necessary for the trial Court to direct the parties to lead evidence on this point and consider that point afresh in view of sec. 246 (1) of the Act in the light of the observations made by me above. It may be open in the pr- oceedings that will be started for the accused to show that these were not the endorsements passed by the Chief Officer of that the Chief Officer was not conscious that he was issuing any direction as required under sec. 246 (1) of the Act even though clearly the endorsements made by him would show that there was direction hut it would all depend on the evidence led. So the judgment of the learned Magistrate on that point requires to be set aside. ( 11 ) SO far as the second point is concerned the learned Magistrate considering that the vehicles in question were brought within the octroi limits of the Municipality earlier than the case was made out by the Octroi Inspector. In the judgment while appreciating the cross-examination of Octroi Inspector (complainant) in Criminal Case no. 504 of 19/7 (Criminal Appeal no. In the judgment while appreciating the cross-examination of Octroi Inspector (complainant) in Criminal Case no. 504 of 19/7 (Criminal Appeal no. 225 of 1979) the learned Magistrate considered that the Octroi Inspector knew that the truck was brought within the limits of the Municipality on 20-12-1976 and therefore the period of limitation would start from that date and as the complaint was filed on 22-6-1977 it would be time-barred. Now reading the evidence of the Octroi Inspector in Criminal Case no. 504 of 1977 it transpires that the Octroi Inspector knew that this particular truck was brought on 20-12-1976. This answer is considered by the learned Magistrate from the cross-examination. In examination-in-chief witness has specifically deposed that on 23-12-1976 he knew that the accused had brought truck bearing no. G. T. E. 8682 in Limbdi without paying octroi and without giving any deposit at the Octroi Naka. In cross-examination in para 5 he has specifically stated that on 23 he knew that Bachubhai (accused in Cr. Case no. 504 of 1977) had brought a vehicle and so he gave notice on 24-12-1976. He has specifically deposed that even though he knew that the truck was brought before 23-12-1976 he did not know as to who had brought it. Then he has admitted that he knew that the truck was brought within the octroi limits of the Municipality on 20-12-1976 and therefore he made inquiries. It therefore does not mean that he knew that the offence was committed on 20-12-1976. ( 12 ) TO appreciate the second poi 3 about the limitation proviso to sec. 246 (1) shall have to be considered. It reads:provided that no prosecution for an offence under this Act or bye-laws framed thereunder shall be instituted except within six months next after the date of the commission of the offence or if such date is not known or the offence is a continuing one within six months next after the commission or discovery of such offence. NOW according to this proviso the prosecution shall be instituted within six months next after the date of the commission of the offence or if such date is not known then within six months next after the commission or discovery of such offence. NOW according to this proviso the prosecution shall be instituted within six months next after the date of the commission of the offence or if such date is not known then within six months next after the commission or discovery of such offence. So it requires to be considered whether import by itself into the octroi limits would be an offence as such even if it is considered that on 20-12-1976 the Octroi Inspector knew- that this particular truck was brought within the octroi limits of the Municipality. ( 13 ) SEC. 125 of the Act relates to penalty for evasion of octroi. It reads:125 Where any animal or goods passing into a municipal borough are liable to the payment of octroi any person who with the intention of defrauding the municipality causes or abtes the introduction of or himself introduces or attempt to introduce within the octroi limits of the said borough any such animal or goods upon which payment Of the octroi duty on such introduction h3s neither teen made nor tendered or who fails to comply with any direction given by the officer referred to in sec. 124 with reference to the introduction of animal or goods within the Octroi limits shall be punishable. . . So an offence cannot be said to have been known by mere knowledge of import of a particular vehicle within the octroi limits For that the person who imported that vehicle also must be known and further it should also be known that the vehicle was brought within the octroi limits without tendering or paying the octroi as required under sec. 125 of the Act. If all these three ingredients are satisfied then it can be said that there was knowledge of the offence having been committed. Though the octroi Inspector knew that the vehicle was brought into the municipal limits on 20 he bad still to know as to know as to who had brought it and also whether it was brought by paying octroi or without paying octroi and this information was obtained by him on 23-12-1976 as stated by him in his cross-examination. ( 14 ) IT must be mentioned that the claim of both the accused was that they have not imported these vehicles and therefore they had not to pay octroi duty. ( 14 ) IT must be mentioned that the claim of both the accused was that they have not imported these vehicles and therefore they had not to pay octroi duty. That is a matter of evidence and when the matters are remanded the trial Court shall appreciate this contention also and come to the conclusion on the appreciation of the evidence led before him. But from the evidence so far led and the points considered by the learned Magistrate it can well be said that in both the cases actual offence was not known by the Octroi Inspector upto 23-12-1976 and therefore that would by the starting point of limitation. ( 15 ) SO far as the case against M. T. Patel and Company (respondent no. 1 of Criminal Appeal no. 2. c6 of 1979) is concerned the complainant-Octroi Inspector in examination-in-chief has admitted that in December 1976 he knew that the respondent-company has imported a truck and therefore he gave notice on 24-12-1976. During cross-examination he has stated that he saw the truck for the first time on 23-12-1976 and did not see it earlier. So the general statement made by him in examination-in chief that he knew that the truck was imported by the respondent no. 1- company in December 1976 is circumscribed by him in cross- examination by saying that he saw the truck for the first time on 23-12-1976. Therefore in this case as the evidence stands on record information about the truck having been imported by respondent no. 1-company without paying octroi was received by the Octroi Inspector on 23-12-1976 and therefore even if those facts remain as they are on the further evidence led the complaint cannot be said to be barred by limitation. ( 16 ) I would again emphasise that the approach of the learned Ma- gistrate to consider that the limitation started from the moment the trucks were imported is not justified. ( 16 ) I would again emphasise that the approach of the learned Ma- gistrate to consider that the limitation started from the moment the trucks were imported is not justified. Cases may happen that some resourceful person may import and run the truck in the octroi limits without the knowledge of the officer of the Municipality for years together and if the municipal officer comes to know that that truck was imported on a parti- cular date on which no octroi was paid and that was known after some years can it be said that such import was to the knowledge of the concerned office from that date and can it be said that such complaint is time-barred ? If the meaning is stretched to that much extent the scheming and resourceful persons would always go scotfree. That is not the intention of the proviso to section 246 (1) of the Act. ( 17 ) THE third point which weighed with the learned Magistrate was that the complaint can be filed only against a living person and not a company. But he forgot that a company can also be a person but he wanted to say that a person means a human being and not a corporate body. This interpretation does not stand to reason and Mr. Yagnik learned Advocate for respondent no. 1 in both the appeals did not very much support the judgment of the learned Magistrate on this point. ( 18 ) ON over all consideration I come to the conclusion that the observations of the learned Magistrate that the Octroi Inspector should have been specifically authorised by the Executive Committee in its resolution to file a complaint has no basis in law. Likewise the date of mere import or even the date of mere import of truck within the octroi limits of the Municipality would not start the period of limitation but it would start only when the offence is known to have been committed meaning thereby that the person who brought the truck is known and also that he has brought it without paying octroi duty. So on this point also the order of the learned Magistrate deserves to be set aside. Thirdly the finding of the learned Magistrate that a case cannot be filed against a Company for the offence under section 125 of the Act is not proper. So on this point also the order of the learned Magistrate deserves to be set aside. Thirdly the finding of the learned Magistrate that a case cannot be filed against a Company for the offence under section 125 of the Act is not proper. ( 19 ) IN view of the above discussion the appeals are allowed and both the cases are remanded to the trial Court and the learned Magistrate is directed to start the trial de novo permitting the parties to lead proper evidence on all the points and then come to the conclusion according to law and facts. .