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1998 DIGILAW 615 (MP)

Pran Kishen v. Municipal Council, Dabra

1998-08-24

TEJ SHANKAR

body1998
JUDGMENT This petition under section 182 CrPC has been preferred by the petitioner for quashing the complaint filed by the respondent. The point raised in the petition is short one. Facts briefly narrated are that a complaint was filed by the Municipal Council, Dabra, against the petitioner on 31.1.1997 under Municipalities Act, 1961, with the allegation that he was liable to pay terminal tax as per Terminal Tax (Assessment and Collection) on the Goods Exported under M.P. Municipal Limits Rules, 1987. The petitioner was directed to pay the terminal tax but neither it furnished the return nor deposited the amount of terminal tax. It was further prayed that the petitioner be punished for the offence. The petitioner raised an objection regarding the maintainability of the complaint on the ground that it did not commit any offence. It was also contended that the complaint was barred by limitation under section 468(2) of the CrPC. The learned trial Court after hearing arguments took cognizance condoning the delay, hence this petition. The solitary contention of the learned counsel for the petitioner is that the learned Magistrate committed an error in taking cognizance and condoning the delay because according to the claim of the respondent itself, the default in payment of terminal tax was shown to be of September, 1994 and the complaint was filed on 31.1.97. He urged that in view of provisions of section 468 CrPC, the Court had no jurisdiction to take cognizance on the expiry of period of limitation i.e. six months from the date of commission of crime in view of the bar contained in section 468(2) (a) of CrPC. In support of his contention, he has relied upon 1990 (II) MPWN 78 = 1990 MPLJ 379 [Municipal Council, Shivpuri v. Radha Bai]. The learned counsel for the respondent on the other hand argued that the demand was actually made on 6.6.96 when the information was received from the office of Central Excise and as such the complaint filed on 31.1.1997 was within limitation in view of provision of section 313 of the M.P. Municipalities Act. The learned counsel has relied upon 1993(2) Vidhi Bhasvar 12 [Municipal Council, Guna v. Ghasi Lal], the decision of the Division Bench, in which the authority relied upon by the learned counsel for the petitioner has been over-ruled. As said above, the only point raised relates to the entertainment of the complaint. The learned counsel has relied upon 1993(2) Vidhi Bhasvar 12 [Municipal Council, Guna v. Ghasi Lal], the decision of the Division Bench, in which the authority relied upon by the learned counsel for the petitioner has been over-ruled. As said above, the only point raised relates to the entertainment of the complaint. According to the petitioner, no cognizance could be taken as the complaint was filed beyond limitation. According to the learned counsel, the cause of action, if any, had arisen in the year 1994 and as such the Court had no jurisdiction to entertain the complaint in the year 1997, A copy of the complaint has been filed by the petitioner and it is Annexure P/1. It shows that it was presented under section 127 of Nagarpalika Adhiniyam, 1961. It was filed with the allegation that the Gwalior Sugar Company Limited, Dabra did not give the information inspite of several letters sent from time to time from 26.10.95 to 9.4.96. The information was given on 6.6.96 by the Kendriya Utpadan Shulka Centre, Dabra. It was further alleged that the information of the fact that the Gwalior Sugar Company Limited, Dabra, send the sheera and sugar outside the Nagar Palika was given by Kendriya Utpadan Shulka Dabra on 6.6.1996, hence the complaint was within time. In this view of the matter, according to the averments made in the complaint irrespective of the fact that the dues related to prior period, the intimation that the goods were sent outside the limit of Nagarpalika was given on 6.6.1996. Hence it has to be taken that the limitation will run from that date. The contention of the learned counsel for the petitioner is that as the complaint was not presented within six months, cognizance could not be taken in view of section 468(2) (a) of CrPC as the case falls within this provision. The learned counsel supported this contention as per decision of the learned Single Judge reported in 1990(II) MPWN 78 = 1990 MPLJ 379 [Mullicipal Council, Shivpuri v. Radha Bai]. This case has been specifically overruled by the Division Bench's case of this Court reported in 1993(2) Vidhi Bhasvar 12 [Municipal Council, Guna v. Ghasi Lal]. In this case, the Court surveyed all the authorities cited at the Bar and concluded that Radha Bai's case was not correctly decided. This case has been specifically overruled by the Division Bench's case of this Court reported in 1993(2) Vidhi Bhasvar 12 [Municipal Council, Guna v. Ghasi Lal]. In this case, the Court surveyed all the authorities cited at the Bar and concluded that Radha Bai's case was not correctly decided. It was specifically held that in case of any prosecution launched by the Municipal Council in respect of any offence committed under the Act by any person, the trial Court was not required to look at section 468 CrPC to scuttle the prosecution and it was required rather to adjudge the validity of institution of the prosecution in term of section 313 of the Act. In view of the law laid down in this case, the contention of the learned counsel for the petitioner based upon Radha Bai 's case cannot be accepted. It has also been argued by the learned counsel for the petitioner that the benefit of filing prosecution within 12 months in view of provision of Municipalities Act is not available in view of the fact that law made by the Central Govt. which is subject-matter of schedule will prevail as laid down in 1994 (4) SCC 391 . This contention to my mind has no legs to stand. The authorities of the Apex Court cited by the learned counsel is distinguishable on fact and has no bearing. The Municipalities Act is a Special Act and in view of section 4 of the CrPC itself, all offences under the IPC have to be investigated, inquired into, tried and otherwise dealt with according to the provisions made in the said law. Section 5 of the CrPC is a saving provision and under this provision, the provisions contained in the Code will not affect any special or local law for the time being in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by the said law. In this view of the matter, I do not agree with the learned counsel for the petitioner. In the present case as the complaint was filed within 12 months of the said date as provided under section 313 of the Municipalities Act, it cannot be said that the cognizance could not be taken. In this view of the matter, I do not agree with the learned counsel for the petitioner. In the present case as the complaint was filed within 12 months of the said date as provided under section 313 of the Municipalities Act, it cannot be said that the cognizance could not be taken. Of course, the 1earned Court below has taken shelter of the provision related to the condonation of delay and applied section 468 CrPC, but it will not matter. As said earlier, in view of the law laid down by the Division Bench of this Court, the provision of section 313 has to be taken into consideration and the trial Court is not required to look to the provision of section 468 CrPC. I, therefore, find no merit in the petition. It is accordingly dismissed. The trial Court shall proceed in accordance with law.