-: 1 :- wp-3598/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 3598 OF 2011 Shenik Baldota & Anr. ..Petitioners. Versus State of Maharashtra & Others. ..Respondents. Mr. Ashok Mundargi, Senior Advocate with Mr. Manvendra Kane and Ms. Musharaf Bukhari i/b W. S. Kane & Co., for the petitioners. Mr. B. D. Joshi with Seema Rawande for BMC. Mr. D. R. More, APP for the State. Coram : RANJIT MORE, J. Date : December 22, 2011. P. C. : 1. Rule. Rule made returnable forthwith. By consent of parties, forthwith taken up for final hearing. 2. By the present writ petition, filed under Article 227 of Constitution of India read with section 482 of the Code of Criminal Procedure, 1982, the petitioners have prayed for quashing of criminal proceedings of Criminal Case No.420971/ SS/2008 pending on the file of Metropolitan Magistrate, 42nd Court, Shindewadi, Dadar, Mumbai. The petitioners have also srp -: 2 :- wp-3598/11 prayed for quashing and setting aside of order dated 15th September 2008 passed in the said proceedings by the said Magistrate issuing process against the petitioners for the offence punishable under sections 478, 478-1A and 478-1B of the Mumbai Municipal Corporation Act, 1888 [for short “the said Act”]. 3. Petitioner no.1 is the Executive Director of MSPL Limited [for short “the said Company”], having its principal office at Baldota Bhavan, 117, Maharshi Karve Road, Mumbai– 400 020. Petitioner No.2 is the Driver appointed by the said Company. On or about 30/5/2008, one new car – Maserati Granturismo MY08 RHD Chassis – ZAMGH 45 Italy [for short “said Car”] was imported into India on behalf of the said Company in the name of petitioner no.1. The 1st petitioner paid custom duty amounting to Rs.77,98,710/- on or about 2/6/2008, pursuant to which, the said car was cleared by the Customs Office, Delhi and transported to Mumbai. In the meanwhile, on 3/6/2008, the said Company applied, in advance, to the Regional Transport Office, Mumbai for obtaining registration number for the said car and paid fees of Rs.3 lacs for VIP number and Rs. 20,99,188/- as one time tax with respect to the said car on -: 3 :- wp-3598/11 11/6/2008. In anticipation of arrival of said car within the geographical limits of city of Mumbai, the said Company arranged for payment of octroi duty on the said car and accordingly on 11/6/2008 procured a pay order bearing No. 823000 for an amount of Rs.6,61,508/- from the State Bank of India in favour of MCGM. 4. On or about 11/6/2008, the said car arrived in the ware house located at Mankuli village near Mumbai. Petitioner no.2 driver of the said Company was handed over the Pay Order dated 11/6/2008 and he was specifically instructed by the Company to collect the said car from the warehouse, pay the Octroi duty at Octroi Check Post at Vashi and thereafter to bring the said car to the office of the Company at Wadala. However, petitioner no.2 driver, not being aware of requirement of payment of octroi duty before entering into the geographical limits of Mumbai, brought the said car to the office of the company situated at Wadala and parked the same there and he handed over keys of the car to the office staff of the Company. Then, said driver proceeded on leave. On realising that octroi duty on the said car was not paid, the company immediately instructed a staff member [Mr. Vinayak -: 4 :- wp-3598/11 Vichare] to go to Octroi Check Post at Vashi and to pay the octroi duty on the said car. Accordingly, said staff member [Mr. Vichare] approached the concerned officer at Octroi Check Post at Vashi. However, he was informed that unless car is brought at the check post, the octroi duty cannot be paid. On 16/6/2008, the Central Flying Squad, MCGM visited the principal office of the said Company and made enquiries regarding delivery of the said car. On the same day, a letter came to be issued by the office of Assistant Assessor and Collector, Central Flying Squad directing petitioner no.1 to produce the octroi receipt and other relevant documents in respect of the imported car. By another letter issued on the same day, the said officer directed the company not to move the said car without permission of the Joint Municipal Commissioner, MCGM. On 18/1/2008, the Company sent reply to the above-said notice and pointed out the complete chronological sequence of the events leading to visit of the officers of Central Flying Squad of the Corporation to Wadala office of the Company. Thereafter pursuant to the discussion held between the Company and MCGM, MCGM accepted octroi duty of Rs.6,61,508/- on the said car and receipt was issued. No objection certificate was also granted for registration of the -: 5 :- wp-3598/11 said car. Accordingly, the said car is registered in the name of petitioner no.1. 5. Respondent no.2 thereafter has initiated the aforesaid criminal proceedings against the petitioners under the provisions of MMC Act, 1888 for evasion of octroi, in which process is issued and therefore the present writ petition challenging the complaint as well as the order issuing process. 6. Mr. Mundargi, learned senior counsel appearing on behalf of the petitioners, submitted that the said car was brought within the geographical limits of city of Mumbai on 11/6/2008, at that time Pay Order of Rs.6,61,508/- was ready and it was handed over to the Driver [Petitioner No.2] for submitting the same at Octroi Check Post. The said driver [Petitioner no.2], however, inadvertently and in ignorance of law, failed to deposit the same with the officer at Octroi Check Post at Vashi. He submitted that it was not the intention of petitioners to evade the octroi. He further submitted that on the very same day, the officer of the said company had gone to octroi check post at Vashi for submitting the pay order, however, said pay order was not accepted. And ultimately after discussion, on -: 6 :- wp-3598/11 23/6/2008 the payment of octroi duty is accepted by respondent nos.2 & 3 and No-Objection Certificate for registration was granted. He submitted that in these circumstances, no offence is made out as stated in the complaint. Mr. Mundargi, learned senior counsel submitted that Petitioner is ready and willing to pay additional amount of fine/ penaly / cost of Rs.6,61,508/-. 7. Mr. Joshi, learned counsel for the Corporation could not dispute that pay order for an amount of Rs.6,61,508/- was ready on 11/6/2008 and on the very same day officer of the said company had approached the concerned Octroi official at Vashi Check Post, however, the pay order was not accepted. He submitted that however technically offence is made out and therefore there is no need to interfere. 8. Having considered rival submissions and having gone through compilation of writ petition alongwith annexures thereto, I am of the opinion that the petitioners have made out a case for quashing. The following admitted facts emerge form the record.: (i) On 11/6/2008, the said Company had procured Pay -: 7 :- wp-3598/11 Order bearing No.823000 for an amount of Rs. 6,61,508/- from the State Bank of India in favour of MCGM towards the payment of octroi duty on the said car. (ii) The said Pay Order was so procured only with the intention to pay the octroi duty on said car at the time of entering the geographical limits of city of Mumbai. (iii) On realising that due to inadvertence of driver, the pay order towards the payment of octroi duty on the said car was not submitted, the staff of the said Company was immediately sent to the Octroi Check Post at Vashi for payment of octroi duty. However, same was not accepted and staff of the said company was asked to bring the said car to the check post to comply with the formalities of payment of octroi duty. (iv) After discussion, on 23/7/2008 the MCGM accepted the octroi duty on the said car and issued receipt and no objection certificate for registration of the said car. 9. Section 478-1A of the said Act speaks about penalty for evasion of octroi. Under the said section it is provided that where any articles imported into Brihan Mumbai are liable to -: 8 :- wp-3598/11 payment of octroi, any person who with the intention of evading payment of the tax introduces or attempts to introduce or causes or abets the introduction of any such articles within the limits of Brihan Mumbai, upon which payment of octroi due on such introduction has neither been made nor tendered, shall, on conviction, be punished with fine which shall not be less than five times but which may extend to ten times the amount of the tax payable. This section, in my opinion, has no application in the facts and circumstances of the present case inasmuch as it was not the intention of petitioner no.1 to evade the octroi as the Pay Order for an amount of Rs.6,61,508/- drawn from State Bank of India was kept ready on 11/6/2008 when the said car was expected to enter the geographical limits of city of Mumbai 10. Section 478-1B of the said Act speaks about penalty for breach of octroi rules. Under this section, whoever contravenes any provisions of the rules made under section 195-1B or fails to comply with any requisition lawfully made under any such provision shall, on conviction, be punished, for each such offence, with fine which may extend to two hundred and fifty rupees. It is not the case of Corporation that petitioners have -: 9 :- wp-3598/11 contravened the provisions of any rules made under section 195-1B or failed to comply with any requisition made under the said provisions. Therefore, this section is also not applicable. 11. Section 478 of the said Act speaks about punishment for offence relating to octroi. In this section, it is provided that whoever brings within the limits of Brihan Mumai any articles liable to octroi without the payment of such tax shall, on conviction, be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; and the Court trying an offence under this section may, on such conviction, also confiscate the articles in respect of which the offence has been committed. If the wording of section 478 is considered in the light of the facts and circumstances of the present case, then, technically offence is made out. However, it is clear that it was not the intention of petitioners and it happened inadvertently. I have already observed that the Pay Order for an amount of Rs.6,61,508/- towards the payment of octroi duty was procured so as to tender it in the Octroi Check Post at Vashi when car enters geographical limits of city of Mumbai and when this mistake was realised the staff of the said -: 10 :- wp-3598/11 company was sent to the Octroi Check Post at Vashi for making payment of octroi duty. This fact is not denied by the learned counsel for the Corporation. Ultimately, octroi duty was accepted by the Corporation on 21/5/2008 and no objection certificate was issued. Mr. Mundargi, learned seniour counsel appearing on behalf of the petitioners has made a statement that the petitioner in addition to payment already made towards the octroi duty, is ready and willing to pay further sum of Rs.6,51,508/- by way of fine. 12. In the aforesaid peculiar facts and circumstances, though offence is not compoundable, I am inclined to exercise powers under section 482 of the Code of Criminal Procedure, 1973 to quash the proceedings by relying upon the judgment of Full Bench this Court in Appasaheb Yadav Honmane vs. State of Maharashtra 2008(1) Mh.L.J. (Cri.) 529. The petition is accordingly disposed of by passing following order. -: O R D E R :- (i) Rule is made absolute in terms of prayer clause (a) subject to petitioner paying fine of Rs.6,61,508/- to respondent no.2 within six weeks from today. (ii) The present order shall not be considered as -: 11 :- wp-3598/11 precedent since it was passed in the peculiar facts and circumstances of the present case. (RANJIT MORE, J.)