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2005 DIGILAW 75 (RAJ)

Shankar Lal v. State of Rajasthan

2005-01-10

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-These four miscellaneous petitions have been filed by the petitioners challenging the order dated 29.04.2002 passed by the learned Judicial Magistrate, First Class, Gharsana (for short, "the trial Court " hereinafter), by which the trial Court dismissed the application dated 06.09.2001 filed by the petitioners for reconsidering and recalling the order taking cognizance and discharging the petitioners from the offences punishable under Sections 22 and 27-B of the Krishi Upaj Mandi Samiti Act and the Rajasthan Agricultural Produce Market Act, 1961 (for short, "the Act" hereinafter). 2. The trial Court, vide order dated 09.03.1999 took cognizance for the offences noticed above against the petitioners, against which the petitioners filed S.B. Criminal Revision Petition No. 220/1999 before this Court, which stood dismissed vide order dated 06.05.1999 with the liberty to the petitioner to raise all those ground challenging the order taking cognizance before the trial Court in view of the decision of the Honble Supreme Court in K.M. Methew vs. State of Kerala & Ors., JT 1991 (4) SC 464 and the matter was remanded to the trial Court to decide the matter afresh in the light of the observations made therein. The order impugned has been passed by the trial Court in compliance of the remand order dated 06.05.1999 passed by this Court, though the view taken in K.M. Methews case (Supra) has been held to be not a good law by a recent Three Judge decision of the Honble Supreme Court in Adalat Prasad vs. Rooplal Jindal & Ors., JT 2004 (7) SC 243 as there is no provision for review in the Code and the remedy is by way of invoking Section 482, CrPC. However, by the instant criminal miscellaneous petitions, the petitioners have again challenged the order taking cognizance and sought the relief for setting aside that order. 3. The facts of the case, relevant and necessary for disposal of these miscellaneous petitions, in a nut shell, are that the Kirshi Upaj Mandi Samiti, Gharsana (for short, "the KUMS" hereinafter) filed a complaint against the petitioners before the trial Court alleging, inter alia, that the petitioners are doing the business of sale and purchase of fruits and vegetables. 3. The facts of the case, relevant and necessary for disposal of these miscellaneous petitions, in a nut shell, are that the Kirshi Upaj Mandi Samiti, Gharsana (for short, "the KUMS" hereinafter) filed a complaint against the petitioners before the trial Court alleging, inter alia, that the petitioners are doing the business of sale and purchase of fruits and vegetables. It was alleged in the complaint that the petitioners were allowed to recover trade allowance at the rate of 4% as decided by the State Government, however, they were charging the same at the rate of 4.75%. The case set up by the petitioners was that they were charging the trade allowance at the rate of 4% and the remaining 0.75% was being charged by them towards labour and weighment charges and as such they have not violated any of the provisions of Section 22 of the Act, as alleged in the complaint. The trial Court, vide impugned order, rejected this contention of the petitioners and took cognizance against the petitioners for the aforesaid offences. Hence these miscellaneous petitions. 4. The point involved in these petitions stands squarely covered by a decision of a Coordinate Bench of this Court in Kanhaiya Lal vs. Secretary, Krishi Upaj Mandi Samiti, Gharsana & Anr., S.B. Criminal Miscellaneous Petition No. 881/2002 etc. decided on 15.01.2004, wherein, placing reliance on a decision of the Honble Apex Court in Arunachala Nadar vs. State of Madras & Ors. AIR 1959 SC 300 , wherein the Apex Court held that it is a deduction out of the price or commodity agreed to be paid or transferred and further observed that if the payment is de hors the terms of transaction but made towards consideration for the use of premises or services rendered, it would not be a deduction from the price or in any transaction. Placing reliance of the aforesaid decision of the Apex Court, the Coordinate Bench held as under:- "The authority has full application to the facts of the case. Case of the petitioners is that they are charging 0.75% excess per hundred for labour and weighment charges, as such it is not a trade allowance. It is not in dispute that the Kirshi Upaj Mandi Samiti has not framed any bye-laws in this regard. It is for the Samiti to take a decision and to frame bye-laws, if they so wish. It is not in dispute that the Kirshi Upaj Mandi Samiti has not framed any bye-laws in this regard. It is for the Samiti to take a decision and to frame bye-laws, if they so wish. Thus, even accepting the allegations made in the complaint on its face value, no offence is made out against the petitioners under Sections 22 and 27-B of Krishi Upaj Mandi Samiti Act. Contentions have also been raised with respect to the authority of filing of complaint. It is not necessary to enter into the controversy as the petitions deserve to be allowed on the first ground." 5. The facts and the law point involved in the instant miscellaneous petitions are almost similar to the aforesaid petitions decided by the Coordinate Bench. 6. In view of the law laid down by the Honble Apex Court in Arunachala Nadars case (Supra), the miscellaneous petitions are allowed and the impugned order dated 29.04.2002 passed by the trial Court is set-aside.