JUDGMENT - D.J. MOHARIR, J.:---This appeal filed by the appellant i.e. Panvel Nagarpalika Parishad, Panvel challenges the acquittal of the respondent-accused, Mukund Laxman Phalke, for the commission of offence under section 139 of the Maharashtra Municipalities Act, 1965. 2. The respondent-accuses is the owner of a medical store at Panvel. On 29th April 1980, two officials of the Panvel Municipal Council were on patrolling duty to check cases of illegal imports of suitable goods within the Municipal limits of Panvel. At about 6-00 p.m. when they were close to the shop of the appellant, is the bazar area, they saw 3 parcels of boxes been unloaded from an auto-rickshaw, realising that goods had been thus imported by the accused shop-keeper, these two officials Bhagat and Mumbaikar proceeded to make enquiries with the accused as to whether the octroi duty has been paid on these imported goods. It was found on enquiry from the accused that duty had not in fact been paid; therefore Gadkari, Senior Octroi Officer and the complainant herein was called. Complainant came to the shop and he was then shown the accused shop-keeper and the 3 packages as also the bills. Accordingly an appropriate octroi of Rs. 18.70 ps. was recovered from the accused. Having regard to the liability of the accused to prosecution under section 139 of the Maharashtra Municipalities Act for contravention of Octroi Rules, the Municipal Council issued a notice to him dated 4-6-1980 calling upon him to show cause why legal action should not be taken against him for evading octori duty. The explanation as called for and put up by the appellant was not satisfactory. The Octroi Officer Gadkari, therefore, filed the present complaint against the accused. 3. The accused pleaded not guilty to the offence under section 139 of the Maharashtra Municipalities Act as charged against him. At the end of the prosecution evidence and while offering his own explanation thereto in regard to the same, the accused took the stand that there was no evasion of octroi duty by him. According to him, his servant employed by him in the shop had been sent to S.T. Bus Stand for collecting consignments that were to have arrived. The servant took the consignments to the octori naka for payment of octori duty as due. However, when the octori duty was calculated a mere Rs. According to him, his servant employed by him in the shop had been sent to S.T. Bus Stand for collecting consignments that were to have arrived. The servant took the consignments to the octori naka for payment of octori duty as due. However, when the octori duty was calculated a mere Rs. 18.70 the servant realized that he did not have enough money to pay even that small sum. Therefore, he requested the octori naka karkun to permit him to take three boxes to the shop. He kept bills pertaining to these boxes with naka-karkun promissing that he would immediately return with the necessary amount. However, it was before he could go back to the octroi naka and pay the octori duty that the officers Bhagat and Mumbaikar had come there. Naturally at that time the accused did not have any receipt to show for having paid the octori duty. It was thereafter that he had sent the servant back to the octori naka. It was from there the servant had brought the bill which he had left there earlier. On the basis of these bills showing the value of the medicines and drugs octori duty was calculated and recovered from him. Therefore, there was no offence whatsoever committed by him. 4. The learned Magistrate, after considering the evidence of the witness Mumbaikar and Senior Octroi Officer Gadkari P.W. 1 and also taking into consideration the reply given by the accused to the show cause notice as also his statement under section 313 of Criminal Procedure Code, came to the conclusion that it was not the accused who himself brought the bags within the octroi limits but it was his servant who had brought them. He observed that though at the time when Mumbaikar and Bhagat went to the shop, the octori duty had not came to be paid, yet no criminal liability could yet be fastened on the accused for evading payment of the octori duty inasmuch as it was not the case of the complainant and it was not the evidence of the Municipal Octori Inspector Mumbaikar P.W. 2 that the accused had personally brought the goods to his stop without payment of such duty. He could not be personally liable for penalty. He could not be personally liable for penalty. The learned Magistrate further observed that if the accused's employee had brought the said goods to the shop without payment of the octori duty the accused could not be considered vicariously held liable. The explanation as offered by the accused that it was the servant who brought the said goods was accepted and it was observed that only the servant could be held liable to prosecution. The learned Magistrate also apparently observed that accused had not had the time at the moment Bhagat and Mumbaikar had come to his shop to verify whether the servant had brought the boxes after paying octori duty. Therefore according to the learned Magistrate, the accused No. 1 had not committed any offence. He accordingly acquitted the accused. It is to the acquittal so recorded that explanation is taken by this appeal. 5. The first submission of learned Counsel Shri Dalvi appearing for the appellant is therefore quite naturally that the learned Magistrate fell in error in holding that contravention of the provisions of section 139(2) of the Maharashtra Municipalities Act could not be fastened on the respondent-accused when actually the goods in question were brought from the octori naka to the shop by the accused's servant. This was as erroneous approach. This was as erroneous approach. The provisions of section 139 reads as under :--- "Where any animal or goods passing into a Municipal area are liable to the payment of octroi, any person who, with the intention of defrauding the Council, causes or debts the introduction of or himself introduces or attempts to introduce within the octori limits of the Council any such animal or goods upon which payment of the octroi due on such introduction has neither been made nor tendered, shall, on conviction, be punished with fine which may extend to ten times the amount of such octroi or to two hundred rupees, whichever may be greater." It will be immediately appreciated that the person who is liable to make the payment of octroi duty is the person who introduces or to be introduced within the Municipal area any animal, goods upon which payment of octori, it is to such a person who is liable to pay octori, in respect of animal or goods, if he so introduces or attempts to introduce such animal or goods within the octroi limits without payment of such duty is the one who is liable to be prosecuted and convicted. The goods in question, (the three boxes of medicine) it is not at all disputed by the learned Counsel) for the respondent-accused Shri Rajiv Patil that the goods had been purchases and brought by the accused shop keeper himself and not by his servant. The good were meant for consumption i.e. sale within the Municipal limits at Panvel, by the accused as owner thereof, in the course of his business and not by his servant. Therefore the reasoning adopted by the learned Magistrate that prosecution has failed to prove that the accused had himself actually and physically brought the said goods within the Municipal limits is entirely unsustainable. The construction put by the trial Court, if accepted, would lead to very disastrous consequences of a very easy way for total evasion of octroi duty a very substantial source of revenue for local authorities. It would alternatively compel shop keepers to be their own coolies. 6. The second submission requires further consideration of the facts. The construction put by the trial Court, if accepted, would lead to very disastrous consequences of a very easy way for total evasion of octroi duty a very substantial source of revenue for local authorities. It would alternatively compel shop keepers to be their own coolies. 6. The second submission requires further consideration of the facts. Mumbaikar P.W. 2 has stated that while on the patrolling duty, when he passed by the accused's medical store, called Sanjivani Medical Stores, at Line Ali, he saw the three big boxes which were being just unloaded from an auto-rickshaw in front of the shop. Therefore, Bhagat and Mumbaikar went there. The accused was the proprietor of the shop. He was present there. Enquiry was made with him about whether octroi duty had been paid and if so, to show the receipts. Accused was unable to produce any receipts. It was thereafter that he inspected the bills pertaining to those goods and called for a receipt book from the octroi naka and then and there at the spot the octori duty amounting to Rs. 18-70 was recovered. This was after the Senior Octori Inspector Gadkari P.W. 1 had been called there. It is necessary to appreciate that while the learned Magistrate proceeded on the premises that it was the servant of the accused who had actually and physically brought the goods from S.T. Bus Stand to the shop, the suggestion was actually made to Mumbaikar during his cross examination that it was the accused who represented Mumbaikar that he (accused) had kept the bills at the octori naka and that he (accused) had just at that time reached his shop for collecting money from there. He wanted and was to go back to the octroi naka and pay octori duty. Thus will be appreciated that no servant was actually involved at all; it was the accused himself who had-personally and himself collected the consignments of three boxes and had himself brought it to his own shop. It will also be appreciated that it was not suggested to Mumbaikar that at the time when Mumbaikar and Bhagat saw the three boxes being unloaded from an auto-rickshaw, he had also seen any servant of the accused getting down from the auto-rickshaw and placing the three boxes-somewhere in front of the shop. It will also be appreciated that it was not suggested to Mumbaikar that at the time when Mumbaikar and Bhagat saw the three boxes being unloaded from an auto-rickshaw, he had also seen any servant of the accused getting down from the auto-rickshaw and placing the three boxes-somewhere in front of the shop. In fact no suggestion had come to be made to Mumbaikar regarding even the presence of any servant at the spot. 7. Therefore, in the first instance the theory that the consignments having arrived at the S.T. Bus Stand, it had been collected by the servant of the accused does not appeal to be true. It does not appear further to be true that any servant had himself thereafter taken the consignments to the octori naka. It does not also appear to be true that any servant who had been sent to collect the consignments had and could have so gone without money sufficient to pay the octori duty. It also does not appear to be true that the servant having not paid the octori duty was year permitted by the octori naka clerk to take the goods to the shop, accepting the receipts by way of security. It is a rather far fetched plea to accept that any such servant who had arrived with the goods was about to return to octroi naka for payment of duty just Bhagat and Mumbaikar came there. 8. Such a possibility of the servant going to S.T. Bus Stand for collecting the goods and bringing them to the octori naka and from octori naka to the shop to pay the octori duty later is, according to the learned Counsel for the respondent accused Shri Patil, is a very distinct one. For this, he relies upon the undisputed position that distance between the octori naka and the accused's shop is only 200 feet. Therefore, according to him it would be quite possible that by reason of mutual confidence and the frequent visits of the accused or his servant to the octori naka, the naka-in-charge reposed faith in the servant and allowed him to carry the goods into shop while keeping the bills and then returning to the octori naka to pay the duty. Therefore, according to him it would be quite possible that by reason of mutual confidence and the frequent visits of the accused or his servant to the octori naka, the naka-in-charge reposed faith in the servant and allowed him to carry the goods into shop while keeping the bills and then returning to the octori naka to pay the duty. Shri Patil admits that no doubt goods would not be permitted to leave the octori naka unless the duty was paid but does not concede that the servant had succeeded fraudulently, in bringing the goods to the shop without actual payment of octori. According to Shri Patil it is because of goods faith that the servant could and might have been allowed by the naka karkun to take away the packages. 9. This is not conceivable, in that the Maharashtra Municipalities (Octori) Rules, 1968 would not permit for taking of the dutiable goods within the municipal limits without payment of the necessary duty. Rule 15, so much of it as is relevant here may therefore be reproduced as under :--- "15(2)(a) : If any person while importing goods within the octori limits has no money with him to pay octori on demand by the Octori Officer, h shall deposit with the Octori Officer any article or part of the goods imported which in the opinion of the Octori Officer is of sufficient value to satisfy the demand. The Octori Officer concerned shall supply him with a receipt containing description and approximate value of the article or part of the goods so deposited and specifying the period within which the said article or the said part of goods so deposited shall be redeemed. The depositor at the time of paying the octori shall return to the Octori Officer the receipt with an endorsement that the article or the part of the goods deposited has been received by him." (emphasis provided) 10. What is therefore material is that rules would not permit of taking within the municipal limits, any suitable articles or goods, unless the octori duty is first paid. If there is not sufficient money for payment of the octori duty then the alternative provided is not merely to deposit the bills as accused states in his defence, but to keep so much of the entire consignments. If there is not sufficient money for payment of the octori duty then the alternative provided is not merely to deposit the bills as accused states in his defence, but to keep so much of the entire consignments. Clear as the provisions of Rule 15(1)(a) of the said Octori Rules are, it cannot be assumed that the octori naka clerk would Act in or moreover which is contrary what his duty in that behalf is. 11. Shri Patil submitted that even if it is accepted that it was not the servant, but the accused shop-keeper himself as the owner of the packages who had brought the dutiable goods, within the municipal limits and also without payment of the octori duty, he could not be still be charged with having done so with an intention to defraud to the Municipal Council. That intention, he argues, had not been established by any evidence. In the first place let me observe that the fact that the defence that it was not the accused but his servant who had brought the good within the municipal limits-was raised only at the time of examination under section 313 of the Criminal Procedure Code. Earlier at the time of cross-examination of P.W. Mumbaikar, what had come to be suggested to him was that it was the accused himself who had gone to collect the goods, that it was the accused himself who had kept the bills at octori naka, that the accused came back to the shop to collect money and was then to go back to make payment at the octori naka. Therefore, this defence which was attempted to be raised in examination under section 313 was clearly an after though inasmuch as the line of the cross-examination under section 313 was clear different-only a few minutes earlier. Therefore, it must be conclusively held that it was the accused who had himself brought the suitable goods without having paid the octori duty. If the liability to pay the octori duty be a matter of knowledge and awareness to the importer and which the accused here has, then it is not necessary for the prosecution to establish something more to prove the intention to avoid payment of octori. Therefore, it is very clearly established that accused brought the goods and that was he failed to make the payment of octori duty. Therefore, it is very clearly established that accused brought the goods and that was he failed to make the payment of octori duty. In that view it is also a reasonable inference that the goods must not have been brought to the shop from the octori naka but directly from the S.T. Bus Stand where the packages had been received by him. I have already observed that at the stage of the cross-examination of witness, in particular, P.W. 2 Mumbaikar it was even suggested that he had himself come to the shop for collecting money only for going back to the octori naka to pay octori duty. The very suggestion hits the root of the statement made under section 313 of the Criminal Procedure Code. 12. The learned Magistrate of the trial Court was in these circumstances, in error in holding that the accused as a shop keeper and the owner of the consignments though, could not be proceeded against him because it was not he who had physically and actually received the consignments or had taken the same directly to the shop where he conducts his business. The order of acquittal as recorded by the learned Magistrate cannot therefore be sustained. 13. The appeal would have therefore to be allowed, to hold that the accused has committed the offence complained of. As far as the sentence, section 139 of the Maharashtra Municipalities Act provides that he shall be punishable with fine which may extend to 10 times the amount of such octori for to 200/- whichever is greater. In the case the amount of octori duty recoverable from the accused was Rs. 18.70. Ten times of this amount is Rs. 187/-. The accused can therefore be sentenced to fine of a maximum of Rs. 200/-. However, having regard to the fact that considerable period has now been since the trial ended a too rigorous view of the sentence to be imposed need not be taken. In my opinion a sentence of fine of Rs. 100/- would meet the requirement of the justice and hence the order. The appeal is hereby allowed. The order of the learned Magistrate of the trial Court acquitting the respondent-accused of the offence under section 139 of the Maharashtra Municipalities Act, is hereby set aside, The respondents is convicted of the said offence and sentenced to pay a fine of Rs. The appeal is hereby allowed. The order of the learned Magistrate of the trial Court acquitting the respondent-accused of the offence under section 139 of the Maharashtra Municipalities Act, is hereby set aside, The respondents is convicted of the said offence and sentenced to pay a fine of Rs. 100/-, in default of which he shall under-go simple imprisonment for 15 days. Appeal allowed. -----