CR.A/67319/1996 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 673 OF 1996 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the Civil Judge ? ====================================== PATEL PRAVINCHNADRA VADILAL - Appellant(s) Versus PATEL BHAGWANDAS PRAHLADJI AND CO. & ORS. - Respondent(s) ====================================== Appearance : Ms. Jirga Jhaveri for Appellant(s). Mr. Y. S. Lakhani for Respondent(s) : 1 - 4. Mr. K. T. Dave, APP for Respondent(s) : 5. ====================================== CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 07/10/2008 ORAL JUDGMENT 1. By way of the present appeal under Section 378 of the Code CR.A/67319/1996 2/10 JUDGMENT of Criminal Procedure, 1973 (“the Code” for short), the appellant has questioned the legality and validity of the impugned judgement and order of acquittal dated 30th December, 1995 passed by the learned Judicial Magistrate (First Class), Mehsana in Criminal Case No.969 of 1992. 2. The facts of the case briefly summarised are that the complainant-Pravinchandra Vadilal is the inspector of the Agricultural Produce Market Committee, Mehsana which is engaged in the trading business of agricultural produces. The complainant as an Inspector of the Agricultural Produce Market Committee, Mehsana has lodged the complaint against respondent Nos.1 to 4 with regard to violation of rules, regulations and by-laws of the Market Committee. The Agricultural Produce Market Committee in exercise of the powers under the Gujarat Agricultural Produce Markets Act, 1963 (“the Act” for short) has framed the regulations for regulating business of sale of the agricultural produces and it regulates the business or trading in the agricultural produce market committee. The trader and the commission agent are required to take license for the purpose of doing business in the market yard and they are required to fulfill the rules and regulations of the Agricultural Produce Market Committee and also have to comply with the general conditions of the licence granted to the traders. It is alleged CR.A/67319/1996 3/10 JUDGMENT that the accused persons, who are doing the business in the market yard, have charged Rs.2/- and Rs.3.50 excessively in their bill in violation f the rules, regulations and the bye-laws. It is, therefore, alleged that Regulation 42 has been violated and the offence under Regulation 42 has been committed by the accused persons. Therefore, Resolution No.7 dated 24th October, 1983 was passed authorising the complainant to initiate necessary proceedings, on the basis of which the complaint has been lodged for the alleged offences before the learned Chief Judicial Magistrate, Mehsana, who passed the order to register the offence against the accused persons by the order dated 29th February, 1992. The learned Magistrate recorded the plea of the accused persons, who claimed to be tried for the offence. Thereafter, the learned Magistrate proceeded with the trial and on conclusion of the trial, passed the impugned judgement and order recording acquittal of the accused persons, which has been assailed by the present appellant in this appeal on the grounds set out in the memo of the appeal. 3. Ms. Jirga Jhaveri, learned Advocate for the appellant, submitted that the learned Court below has erred in not appreciating that the complainant was authorised by the Agricultural Produce Market Committee to issue notice for breach of the provisions of the Act and the Rules. She also submitted that the learned Magistrate has erred in CR.A/67319/1996 4/10 JUDGMENT appreciating that the books of accounts have not been produced. Further, she submitted that Rule 59(3) of the Agricultural Produce Market Committee Rules, 1965 (“the Rules” for short) has been violated and it has not been appreciated. For that purpose, she referred to Rule 59(3) of the Rules, which reads as under: “Any licensee who commits a breach of provisions of sub-rule (1) shall be deemed to have violated the conditions of the license.” She submitted that the traders and the commission agents are required to keep the books of accounts and they are required to be submitted for examination in the Office of the Agricultural Produce Market Committee as and when required. She, therefore, submitted that as it has not been done in the present case, not only Rule 59(3) has been violated, but, the terms and conditions of the license have also been violated, which the learned Court below has failed to appreciate. She also submitted that there is a clear violation of Section 8 of the Act, which provides for the requirement of the license for operation in the market. Section 8 provides that no person shall operate in the market area or any part thereof except under and in accordance with the conditions of a license granted under this Act. She, therefore, submitted that the accused herein have collected excessive charges, which were not authorised, and as it was found by the complainant during inspection, the complaint came to be filed, on the basis of which after recording the CR.A/67319/1996 5/10 JUDGMENT evidence, the learned Magistrate has recorded the order of acquittal, which is erroneous. It was submitted that the learned Court below has failed to appreciate the material and evidence on record with regard to illegal collection of the so called hamal charges and other pala (to spread the agricultural produce for inspection by the buyer) and again fill it back in the grain bags. 4. Mr. Y. S. Lakhani, learned Advocate for the accused, referred to the judgement and also material and evidence on record and submitted that there is no violation of any rules, regulations or terms and conditions of the license. It was submitted that the complainant himself has admitted in the cross examination that he has not recorded the statements of hamals or traders or farmers from whom the additional charges is said to have been collected by the accused persons. He, submitted that though it is alleged that the amount has been illegally deducted by way of charges in violation of the rules and regulations, there is no evidence collected or statement recorded by the prosecution. He also referred to the deposition of the witness examined on behalf of the accused persons, which include the traders/farmers, who used to sell the agricultural produce to the accused persons, and referring to this evidence, he emphasised that it has been specifically stated that the charges were in accordance with the norms and rules and it has also CR.A/67319/1996 6/10 JUDGMENT been paid to the hamals for the work done by them. Thus, all the persons from whom the amount has been collected have admitted that these charges were paid to the hamals for doing their job of bringing the agricultural produce from the market yard to the place/area in the Market Committee where the buyer would examine. “Pala” charges are the charges paid to the hamals for spreading the agricultural produce for the purpose of inspection by the buyer and again refilling it in the grain bags, for which the additional charges are to be paid by way of labour charges. Therefore, there is no breach of any rules and regulations or conditions of the license, much less no offence can be said to have been committed. He submitted that the judgement and order of the learned Court below recording acquittal is just and proper and it does not call for any interference. He also submitted that the complainant has failed to establish any charges for the offence under the Act and the Rules, as alleged, and therefore, this Court may not interfere with the impugned judgement and order. He also submitted that it is well settled that even if there are two views, normally, the Court should not interfere with the order of the acquittal unless it is perverse. 5. In view of the rival submissions and also on appreciation and scrutiny of the evidence, which has been referred to by both the sides, it is required to be considered that whether it would call for any CR.A/67319/1996 7/10 JUDGMENT interference in the impugned judgement and order recording acquittal. From the scrutiny of the evidence, it transpires that the charges levelled against the accused are with regard to illegal collection of excessive charges in violation of the rules, regulation and conditions of the licence. It is evident from the deposition of the complainant at Exh.33 that he has not recorded the statement of any farmer or any other person, though the charge about illegal collection of hamal charges (labour charges) has been levelled. Moreover, in the cross examination, it has been further admitted that no opportunity has been given to explain as to why such charges are claimed and without giving any such opportunity, the complaint has been filed for the alleged offences. It transpires from the record that in support of their defence, the accused persons have examined Somabhai Ishwarbhai Patel and Dhulabhai Patel, who were selling their agricultural produces to the accused persons. These witnesses have clearly stated in their deposition that the amount has been paid towards the labour charges. Bhulabhai Patel has initially stated in his deposition about different charges being levied for the agricultural produces and thereafter, has stated that though the normal charges are either Re.1/- or Rs.0.50, the accused had collected Re.1/- per bag, but, has explained that this includes the amount for spreading the agricultural produces which is known as “pala” charges. “Pala” charges is the additional charge levied for spreading the agricultural CR.A/67319/1996 8/10 JUDGMENT produces for the purpose of inspection by the buyer in the market area and thereafter, it is again required to be refilled in the grain bags. Therefore, on the basis of this material and evidence on record, the learned Court below has recorded the order of acquittal. 6. Though the learned Advocate, Ms. Jhaveri, for the appellant, has referred to the grounds set out in the memo of the appeal and as regards Section 8 of the Act, which provides for operation in the market area under the license, there is no quarrel that no person shall operate in the market area without any license and also except in accordance with the terms and conditions of the license. There is no evidence, however, as to any breach or violation of any of the terms or conditions of the license. Though reliance is placed on Rule 59(3), which refers to the fact that anyone who commits a breach of provisions of sub-rule (1) of Rule 59 shall be deemed to have violated the conditions of the license, it cannot be said on perusal of the material and evidence on record that there is any such violation or breach of either rule or regulation or any terms and conditions of the license. 7. Therefore, on appreciation and scrutiny of the evidence on record, it is evident that the view taken by the learned Court below recording acquittal cannot be said to be perverse, but, possible and this CR.A/67319/1996 9/10 JUDGMENT Court is in agreement with the ultimate conclusions arrived at and recorded by the learned Court below. Therefore, it may not be further necessary to elaborate on this aspect and scrutinise the evidence threadbare, as observed by the Honourable Apex Court in its judgement in the case of State of Karnataka vs. Hemareddy & Anr., reported in AIR 1981 SC 1417. 8. Moreover, it is well settled that if two views are possible or even if a different view is possible is not by itself sufficient to interfere with the order of acquittal. If two views are possible on the basis of the evidence and the view taken by the trial Court is reasonable and possible, then, normally, the High Court would not interfere with the order of acquittal. This principle has been laid down by the Honourable Apex Court in its judgement in the case of Shingara Singh vs. State of Haryana & Anr., reported in AIR 2004 SC 124. The same view has been consistently followed in the subsequent judgement in the case of State of Goa vs. Sanjay Thakran & Anr., reported in (2007) 3 SCC 755, wherein it has been observed referring to the scope of interference by the appellate court that the appellate court can review the evidence and interfere with the order of acquittal only if the approach of the lower court is vitiated by some manifest illegality or decision is perverse or the Court has committed a manifest error of law and ignored the material CR.A/67319/1996 10/10 JUDGMENT evidence on record. The same view has also been reiterated in the subsequent judgement of the Honourable Apex Court in the case of K. Prakashan vs. P.K. Surenderan, reported in (2008) 1 SCC 258. 9. Therefore, in view of the discussion made herein above and the settled legal position, the impugned judgement and order dated 30th December, 1995 passed by the learned Judicial Magistrate (First Class), Mehsana below in Criminal Case No.969 of 1992, is possible, reasonable and on appreciation of evidence, broadly the conclusion arrived at is just and proper and therefore, this Court is not inclined to interfere with the acquittal recorded by the learned Court below. Therefore, the impugned judgement and order passed by the learned Court below recording acquittal is hereby confirmed and the present appeal deserves to be dismissed. 10. In the result, the present appeal hereby stands dismissed. [R. H. Shukla, J.] kamlesh*