M. K. SHAH, V. V. BEDARKAR, J. ( 1 ) THE Rajkot Nagarpalika i. e. the Municipality being aggrieved by the order passed in Criminal Appeal No. 22 of 1976 by the learned Sessions Judge Rajkot setting aside the order of Conviction and sentence passed against respondents No. 2 and 3 that is the original accused for the offence punishable under sec 125 or the Gujarat Municipalities Act. 1963 and Bye Law 18 of the Rajkot Borough Municipality Bye laws has preferred this appeal. . . . . . . . . . . . . . . . ( 2 ) WHAT is material and relevant for the purpose of bringing home the charge under sec. 125 of the Act as also the relevant part of Bye law 18 of the Octroi Bye laws for which the accused were tried is to show that the goods brought within the municipal limits were liable to payment of octroi duty and that the accused with the intention of defrauding the Municipality caused or abated the introduction of or attempted to introduce within the octroi limits of the Municipality such goods upon which payment if octroi were due on such introduction which payment had either been made nor tendered It may be noted here that we are not concerned in the instant case which the latter part of sec. 125 read with sec. 124 of the Act as also the earlier part of Bye Law 18 of the Octroi Bye Laws. Intention therefore of defrauding the Municipality is the main ingredient and the prosecution has to establish it. In the instant case from the evidence on record it is manifest that the said engine was brutality within the municipal limits on the night of 18th September 1972 without payment of the octroi at Octroi Naka and that this article was found lying in the showroom of the accused company on the next day when the Octroi Inspector visited the premises. As the evidence shows the very first statement which was made by the accused when the article was found lying at the premises of the accused company was that the said article was brought by the customer himself from Ahmedabad and placed in the showroom of the accused company. As the evidence shows the very first statement which was made by the accused when the article was found lying at the premises of the accused company was that the said article was brought by the customer himself from Ahmedabad and placed in the showroom of the accused company. But in further correspondence with Ashvin Automobiles Ahmedabad it emerged that the engine had been lying unsold for and on behalf of the accused company with Ashwin Automobiles and that they had sent it back to the Company through the driver of the Company. ( 3 ) A shift thereafter seen in the defence case at the trial. The defence of the accused was that the engine was given back by Ashvin Automobiles to the accused companys driver without their consent and behind their back and that the driver had brought the said engine and placed it in the showroom without giving any information to the accusedcompany in this behalf. The conduct of the accused as it emerges from the evidence on record leaves no doubt in our mind that the engine was brought within the municipal limits by the accused without drawing the attention of the authorities concerned at the Octroi Naka and without payment of octroi duties with the intention of defrauding the municipality. ( 4 ) THIS is not a case of an article being brought and introduced within the municipal limits by mistake or inadvertence omitting to pay the octroi duty. This is a case in which deliberately with the intention of defrauding the Municipality the article was brought without payment of octroi duty When the article was discovered at the instance of the Octroi Inspector a stand was taken that the article did not belong to the Company at all and it belonged to the customer who himself had carried it back from Ashvin Automobiles and kept it in the showroom of the accused company. When Ashvin Automobiles of Ahmedabad made a statement that the engine was never sold to them but was lying with them for the purpose of effecting a sale for and on behalf of the Company and that as the sale could not be effected it was sent back through the driver of the Company a stand was taken that the driver had brought it without the knowledge of the Company and that the customer himself sent it through the driver without the consent or knowledge of the Company. In this state of the evidence on records in our opinion a conclusion is inescapable that the article was brought within the municipal limits without payment of octroi duty in circumstances which would attract the provisions of the Flus Part of sec. 125 of the Act and the Second part of Bye Law 18 of the concerned Octroi Bye Laws. ( 5 ) MR. Shah the learned advocate Appearing for the accused rather faintly contended that in the instant case no bill or notice was issued under sec. 124 of the Act and this case therefore would not be covered by sec. 125 of the Oct. We are turtle to accept the contention of Mr. Shah Sec. 124 comes into play in a case when an Octroi Officer demanding octroi by the authority of the Municipality has to tender to every person introducing or receiving anything on which the tax is claimed a bill specifying the animal or goods taxable the amount claimed and the rate at which the tax is calculated. Such an occasion never arose in the instant case because here the goods had been brought at night without showing them at the Octroi Naka or without giving any information to the authorities concerned. No bill therefore was issued under sec. 124 of the Act nor was it necessary to issue a bill under sec. 124. It is true that if a bill is issued under sec. 124 then failure to comply with any direction given by the officer concerned acting under sec. 124 with reference to the introduction of the article within the octroi limits would amount to an offence falling within the Second Part of sec. 125. ( 6 ) SECTION 125 has two distinct parts. The offence may fall within the first pert or it may fall within the second part. 124 with reference to the introduction of the article within the octroi limits would amount to an offence falling within the Second Part of sec. 125. ( 6 ) SECTION 125 has two distinct parts. The offence may fall within the first pert or it may fall within the second part. It is true that if it falls within the second part then it has to precede by the issuance of a bill or a notice as contemplated under sec. 124. Bat that does not mean that if this is not done no offence as contemplated under the first part of sec. 125 would be committed. The First Part of sec. 125 refers to a different category of offence namely the offence of introducing within the octroi limits animal or goods without payment of octroi duty or tendering of the required octroi duty accompanied with an intention of defrauding the Municipality. All the ingredients of sec. 125 Part I are fulfilled in the present case and the offence therefore is punishable under sec. 125 Part I. The necessity of following the procedure under sec. 124 would arise only if the offence is covered by Part II of sec. 125. There is therefore no substance in Mr. Shahs submission in this behalf. ( 7 ) WE will now deal with the main reasons assigned by the learned Sessions Judge in his judgment in recording the finding of not guilty and acquitting the accused after setting aside the order of conviction passed by the Trial Court. The learned Sessions Judge relied on the statement of accused no. 1 in coming to the conclusion that he had no knowledge of the bringing of the jeep engine from Ahmedabad to Rajkot and that the driver had brought without the instruction or knowledge either of the accused or of any of the servants of the accusedthe learned Sessions Judge in this connection completely missed the effect and consequences of the very first statement made on behalf of the accused immediately on the article being discovered by the Octroi Inspector at the showroom of the accused company by which a case was put up that the engine had been brought by the customer fit itself and kept in the showroom. In view of this statement made immediately on the goods being discovered and which was also put into writing aspire the accused companys letter Exhibit 52 of the very date it would not be open to the learned Sessions Judge to place reliance on a statement later made by the accused putting up an entirely different and new case about the engine having been brought by the Companys driver without instructions or knowledge of the accused. ( 8 ) THE learned sessions Judge also erred in mechanically readingthe provisions of sec. 124 read with sec. 125 (Part II) of the Act and laying undue stress on an irrelevant and immaterial aspect about failure to give bill or notice under sec. 124 The question of failure to comply with any such direction under sec. 124 does not arise because it has not been the case of the complainant that the offence under sec. 125 was committed on the ground of non compliance with such directions issued under sec. 124. Sec. 124 read with second part of sec. 125 does not coma into play at all in the instant case. The instant case is covered by the First Part of sec. 125 and there is ample cogent and reliable evidence on record to bring home the charge under Part I of sec. 125. Appeal allowed:- sentenced to pay fine of Rs. 250. 00. .