1 Appln 3482-2009 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3482 OF 2009 Pimpri Chinchwad Municipal .Applicant Corporation V/s. Vikers System International Ltd. .Respondents & anr. Mr.Deepak R. More, Advocate, for the Applicant Mr.A.S.Khandeparkar i/b. M/s.Khandeparkar & Associates, Advocate, for Respondent No.1 Mr.S.V.Gajare, APP, for Respondent No.2 - State CORAM : R.C.CHAVAN, J. DATE : 1ST JULY, 2011 P.C. . Heard the learned Counsel for the respective parties. 2. This is an application for leave to file an Appeal against acquittal of respondent No.1 M/s.Vikers International Limited, ordered by the learned Judicial Magistrate, F.C., (Pimpri- Chinchwad Municipal Corporation) Court, Akurdi on conclusion of Criminal Case No.49 of 2006 before him. 2 Appln 3482-2009 3. I have heard the learned Counsel for the applicant, the learned Counsel for respondent No. 1 as well as the learned APP for respondent No.2  State. Ordinarily, it would not be necessary and also may be inappropriate to give elaborate reasons while granting leave to file an appeal against acquittal. But the facts of this case are as such as they demand an elaborate order. Respondent No.1 Vikers System International Limited had imported some equipment from the United States. Their clearing agent Jai Industries had got those goods cleared and had despatched the same through transport contractor, possibly, M/s. Sahakar Transport Service at Navi Mumbai. On 19th April, 2006, Sujitkumar Gajanan Jadhav, the driver, drove the truck bearing No.MH-04/BU/4473 loaded with goods worth Rs. 61,80,649/- meant for being delivered to respondent No.1 Vikers System International Ltd.. He claimed that when he asked address of the Company to a person near the Octroi outpost of the Complainant - Pimpri Chinchwad Municipal Corporation, the person agreed to show the address, accompanied the driver in the truck and 3 Appln 3482-2009 then made the driver take the vehicle to the main building of the Complainant - Pimpri Chinchwad Municipal Corporation where the truck was detained for evasion of octroi duty. Surprisingly, the driver was very prompt & rather than waiting for his employer or anyone else to help him, he filed a suit before the Civil Court, Akurdi for an injunction for releasing the truck and a mandatory injunction was issued by the learned Civil Judge on 24th April, 2006 directing the Complainant  Corporation to release the seized goods with papers and vehicle after recovery of octroi duty and incidental charnges. Accordingly, the driver seems to have paid octroi and the truck was released. 4. Thereafter, the complaint was filed. The Complainant  Corporation had also sought to prosecute the driver as well as Jai Industries as co-accused, but did not press the complaint against them because they could not be served. The prosecution against M/s.Vikers System International Ltd. continued. The learned Magistrate recorded evidence of the Complainant's 4 Appln 3482-2009 officer. None was examined on behalf of the accused. After considering the evidence in the light of defence taken, the learned Magistrate by one page order held that the offence under Section 398 of the Bombay Provincial Municipal Corporations Act, 1949 was not made out and therefore, proceeded to acquit M/s. Vikers System International Ltd.. 5. Though the accused before the trial Court and the respondent before this Court may desire to distance themselves from the driver of the truck, the cross examination of Complainant's witness would show that it was suggested to the witness that the truck driver had, in fact, only sought to know the information (address) of the Company when the witness illegally seized the vehicle. Thus, the accused Company is not taking a stand different from that of driver. Now the driver of the truck wanted to know address of the Company obviously to take the truck to the Company, parked the truck besides octroi outpost and unintentionally fell in the hands of a municipal official. It is not that he just asked the 5 Appln 3482-2009 address. The official of the municipal corporation was taken aboard by the driver, not knowing that one who had guided him was a municipal employee and believing that he would show the way to the Company. Then the truck unintentionally came to land in the office of the Corporation. This cannot be consistent with the desire of the driver to pay octroi. The learned magistrate found that octroi had been paid and the truck was ordered to be released by the Civil Judge. Before the Civil Court, the respondent was not the defendant. The suit was between the driver and the municipal corporation. Ordinarily, when a person expresses readiness to pay octroi, the Civil Court may order release on payment of the amount due. 6. The learned Counsel for respondent No.1 submits that the respondent is nowhere connected with all this. It was Jai Industries , who were responsible clearing and forwarding the goods. They were supposed to send the consignment to respondent and so the complicity of the respondent to evade octroi cannot be inferred. 6 Appln 3482-2009 Now, this is something which would be required to be examined when appeal comes for hearing finally, because it would be difficult to believe that a driver assured of reimbursement from the Company, would still avoid payment of octroi & try to take the truck to consignee Company, because he was to gain nothing in the process. Real beneficiary would be the Company and therefore, the learned magistrate ought to have given a thought to these aspects. 7. The learned Counsel for respondent No.1 submits that this an application for leave to file an Appeal against acquittal of respondent No.1 and therefore, if the view taken by the trial Court is probable and not perverse, ordinarily, High Court shoud not interfere. There can be no doubt about the proposition. However, this is a matter which pertains to evasion of octroi. Facts re-counted indicate that the matter requires to be reconsidered at length and that there is something which is amiss. Therefore, leave granted. Admit. R & P has already been received. The learned Counsel for respondent No.1 states that the 7 Appln 3482-2009 respondent would appear and participate in the hearing of the appeal when it takes place & so action under Section 390 is not necessary. (R.C.CHAVAN, J.)