CRIMINAL REVISION APPLN. NO. 151 of 1991 to 274 of 1991 CRIMINAL REVISION APPLN. NO. 276 of 1991 to 374 of 1991 CRIMINAL REVISION APPLN. NO. 490 of 1991 to 592 of 1991 CRIMINAL REVISION APPLN. NO. 394 of 1991 {Total 327 Matters} DATE OF DECISION : 30-12-1993 For Approval and Signature : THE HON'BLE MR. JUSTICE K.J VAIDYA CHHATRASINH V PARMAR OCTROI INSPECTOR VADODARA MU.. jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA V. ARTI TRANSPORT COMPANY VADODARA & Ors. 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? YES 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any other order made thereunder ? NO 5. Whether it is to be circulated to the Criminal Courts ? NO Mr. Giriraj N Desai, the learned Senior Counsel with Mr. Pranav Desai for the Petitioner. Mr. D.K Trivedi, learned PP for the Respondent-State Mr. B.T Rao, learned Advocate for Respondents in Criminal Revision Application No. 394 of 1980 only. In rest of the matters - respondents served. CORAM : K.J VAIDYA, J. 30-12-1993 ORAL JUDGEMENT This group of 327 Criminal Revision Applications under Section 397 and 401 of the Criminal Procedure Code, 1973, at the instance of the original Complainant - Mr. Chhatarsinh C Parmar, Octroi Inspector, Vadodara Municipal Corporation, Vadodara is directed against the impugned judgment and order dated 7-9-1990, dismissing the complaints under Section 468 (2) (a) of the Criminal Procedure Code, 1973 rendered seperately in as many criminal cases by the learned J.M.F.C (Muni.), Vadodara, wherein as a result the respondents transport owners who came to be prosecuted for the alleged contravention of the Clause-3 of Standing Orders and Octroi Rules (as stated in detail in the complaints framed under Section 466 (1) (A) (f) and (a)(b) respectively read with Section 398, 468 of the Bombay Municipal Corporations Act, 1949), were ordered to be released. 1.1 Now since the facts-situation and the law of limitation regarding taking cognizance of the offence under Section 468 (2) (a), 470 and 473 of the Code arising in group of these cases being common; except some variations in matters of particulars about the : (a) name and addresses of the concerned accused, (b) type of imported goods in question, (c) date of importing the said goods, (d) issuance of notice to pay octroi duty, etc., at the joint request and with the consent of the learned advocates appearing for the respective parties, it has been so decided to hear and dispose of all these Criminal Revision Applications together by this common judgment. 2. In substance, to briefly narrate the broad facts of all these cases, according to Mr. Chattarsinh Parmar, Octroi Inspector, the respondents herein are the transport owners, doing their respective businesses of transporting goods in Vadodara City. These respondents on given dates, as set-out in the respective complaints, had imported certain goods in their respective vehicles within the limits of the Vadodara Municipal Corporation, by making palpably false representation before the concerned Octroi Clerk that the same were to be immediately exported from the City limits, and on the basis of the same, they obtained "transit passes" under Clause 3 of the Standing Orders (made by Baroda Municipal Corporation confirmed by the Government vide its Resolution dated 12-3-1970) framed u/s.466 (1)(A)(f) of the Bombay Municipal Corporation Act, 1949 {for short "B.M.C. Act"}. This Clause 3 of the Orders reads as under :- "(3) Procedure to be followed for exporting the good intended for immediate exportation :- Any person in charge of the goods indended for immediate exportation that are being imported into the Octroi limits of the Municipl Corporation will be bound to convey the said goods from the Import Naka to the Export Naka under the Municipal Supervision in accordance with the conditions and in the manner prescribed below :- (i) The said goods will have to be exported within six hours from the time of import or such longer period as may be permitted in accordance with provisions contained herein after. (ii) The said goods will have to be conveyed from the Import Naka to the Export Naka without any change of hands (due to sale or otherwise) or form, condition or appearance by any process of manufacture or otherwise and without their being used Consumed or sold within the octroi limits of the Municipal Corporation. (iii) The person bringing the goods at the Import Naka shall give a declaration and an undertaking to the Import Naka Karkun in the form prescribed in Scheduled "A", pay the supervision fees prescribed in Schedule "B" and obtain from him a Transit Pass in the form prescribed in Schedule "C". (iv) After obtaining the Transit Pass he shall proceed to the Export Naka with the said goods in the company of the Municipal Escort provided for this purpose by the routes which are specified in Schedule "G". (v) After arriving at the concerned Export Naka, he shall after satisfying himself that the goods brought to the Export Naka are the same as those that are noticed in the Transit Pass and that they are brought in accordance with the Conditions prescribed, note the time of export and other necessary details and certify the export of goods on the Transit Pass. He shall thereafter be bound to remove the said goods outside the Octroi limits of the of the Municipal Corporation forthwith. The Transit Pass shall be retained by the Export Naka Karkun, and certificate of the export of material shall be given by the Export Naka Karkun to the Importer on the tripliciate Transit pass. " Further according to the petitioner, since the respondents herein in contravention of the aforesaid sub-clause (iii) of Clause-3 of the Orders did not transport the imported goods in question out of the Octroi limits, they were liable to pay the octroi duty by virtue of Clause-8 of the Orders which reads as under :- "(8) If the goods declared at the time of import to be the goods intended for immediate exportation are not conveyed out of the Octroi limits of the Municipal Corporation within the prescribed time of six hours from the time of import or within the time extended by the Export Naka Karkun or if the said goods are not exported in the manner prescribed in the foregoing provisions, the said goods shall for all intends and purposes be deemed as goods imported for use, consumption or sale within the Octroi limits of the Corporation and (i) Octroi due thereon shall be recovered from the person importing such goods and he shall pay the amount of octroi within 72 hours of the time and date of import. (ii) If the Octroi is not paid as mentioned in standing order 8 (i) the same shall be recovered as if it is a property tax and recovered in the manner laid down in Chapter (viii) of the Schedule "A" of the Bombay Provincial Municipal Corporations Act, 1949. (iii) The Deposit amount if paid as per foregoing provisions shall be treated as octroi and the additional octroi if any will be recovered as per standing order No. 8 (1) and (2) and the person from whom the deposit is received shall alone be deemed to be the importer." This procedure was also not complied with and accordingly the goods in question ultimately remained goods as having been imported within the municipal limits of Vadodara without paying any octroi duty thereupon. Now this unpaid octroi duty is payable on demand and the procedure prescribed for the same in Clause-11 of Vadodara Municipal Corporation Octroi Rules, 1985, framed under Section 457 (7) read with Section 149 (1) of the B.M.C Act (for short "Octroi Rules") which reads as under :- "11. Octroi payable on demand :- (a) Octroi shall be payable on demand. (b) Every person authorised by the Commissioner to demand octroi shall tender to every person on whom the demand is made a bill specifying the goods taxable, the amount claimed and the rate at which the tax is calculated. Provided that when any consignment is received in part of parts at different times, the tax shall be levied only in respect of such portion as is actually imported from time to time and not on the whole of the consignment entered in the invoice. Now, the penalty prescribed for breach of the Standing Orders, etc. etc. is provided in clause 11 of the said Standing Order which reads as under :- 11. Penalty :- Whoever commits a breach of any of the foregoing standing orders or whoever supplies any false information or produces false Transport Pass, Transit Pass or a Deposit Receipt shall be punishable with fine which may extend to Five Hundred Rupees and in the case of continuing breach the offender shall be punishable with fine which may extent to Twenty Rupees for every day during which the breach continues after Conviction for the first breach. The aforesaid provision regarding penalty appears to be primarily for the purposes of the departmental proceeedings for recovery of octroi dues from the concerned defaulters. Accordingly, mere recovery of octroi by officers of the Corporation will not absolve concerned defaulters from the criminal prosecution, where the penalty provided under section 398 of the BMC Act reads as under :- Section 398 - Penalty for evasion of Octroi or toll. Where any vehicle, animal, or goods imported into the limits of the City are liable to the payment of tool or octroi any person who, with the intention of defrauding the Corporation, causes or abets the introduction of or himself introduces or attempts to introduce within the limits of the City any such vehicle, animal or goods upon which payment of the toll or octroi due on such introduction has neither been made nor tendered, shall, on conviction, be punished with fine which may extend toten times the amount of such toll or octroi or to two hundred and fifty rupees, whichever may be greater. Similarly, Section 399 provides for the general penalty which reads as under :- Section 399 - General Penalty. Whoever contravenes any provision of this Act or rule, by-law, regulation, standing order, licence, permission or notice issued thereunder or fails to comply with any requisition lawfully made under any such provision shall, if no penalty is provided in any other provision of this Act for such contravention or failure, be punished, for each such offence, with fine which may extend to one hundred rupees and with further fine which may extend to twenty rupees for every day on which such contravention or failure continues after the first conviction. On the authorities coming to know about the aforesaid default committed by the respondents, notices were issued against them under Rule 16 of the Octroi Rules. The said Rule 16 reads as under :- (16) Issue of requisition notices :- If th Commissioner or any other officer authorised in this behalf is of opinion or has reason to believe that it is necessary in the interest of Municipal Revenue to issue a requisition notice as per Form 'B' or in such a form as may be prescribed by the Municipal Commissioner, from time to time may issue the same asking any owner or importer of goods or any person connected with import of goods to return it duly filled in and signed by him within 15 days from the date of receipt of the same. The person, who is required by a written notice so to do, shall fill in correct details and submit a true account of the goods imported by him. The Commissioner or the officer authorised may require of the said person to produce before him any accounts or documents and to furnish any information relating to the import of goods or any other information in connection therewith as may be required together with the copies of abstract from such documents, etc. as appear to him to be necessary. The Octroi duty found due on the information received as per requisition notices or when such information is believed to be incorrect, or such other authentic information as may be obtained, shall immediately, be paid by the said person on demand. If the amount so demanded is not paid on demand, it shall be recovered as if it were tax by process of recovering as provided in Chaper VIII (rules of the Schedule appended to Bombay Provincial Municipal Corporation Act, LIX of 1949). Explanation Recovery of octroi by an octroi inspector or the oficer authorised by the Municipal Commissioner from a person who has evaded should not absolve the latter from criminal prosecution under section 398 of The Bombay Provincial Municipal Corporation Act, 1949. Thereafter even despite issuance of notices, since the respondents failed to bring their Bills/Invoices, etc, etc., in question of the goods imported by them and also having further failed to pay any octroi duty, the Octroi Inspector was constrained to file complaints against all the concerned respondents on 12-2-1988 before the learned J.M.F.C [Muni.] at Vadodara for the alleged contravention of the relevant Standing Orders 3, 8, 12 and Octroi Rule 12 punishable under Sections 468, 398 and 399 of the B.M.C Act etc., etc. 3. On the respondents appearing before the trial Court, they submitted an Application Exh. 5, taking-up the preliminary objection that since the alleged offences were punishable merely with fine only, the complaints regarding the same ought to have been filed within stipulated period of six months as prescribed under Section 468 (2) (a) of the Code, and since that was not done, there being an express bar to take cognizance of the offence, all these complaints deserve to be dismissed and accused be discharged accordingly. 3.1 The aforesaid preliminary objection was opposed by the Octroi Inspector by filing quite an exhaustive written reply at Exh. 6, 9, etc., etc., on the various grounds as stated therein : 3.2 The learned Magistrate thereafter after hearing both the sides while upholding the preliminary objection on the grounds briefly set-out as under, ruled "dismissal" of the complaints as time-barred and accordingly, ordered release of the respondent accused. (i) That having regard to the facts and circumstances of the relevant octroi rules, since punishment provided is only of fine, the complaints were required to filed within the stipulated period of six months and since the same has not been done, the said complaints in question cannot be entertained. (ii) That on going through the relevant provisions of the Act and the Standing Order No. 8 and the Octroi Rules, it is not necessary to obtain the sanction. Not only that but for filing the complaint it is not necessary to give notice under the aforesaid provisions. Under the circumstances, the time spent for issuing the notice and obtaining sanction cannot be excluded while computing the period of limitation and in that view of the matter, provision contained in Section 470 (3) is not applicable. (iii) That taking into consideration the cases which have been referred to in the said chapter, the period of limitation cannot be extended by applying Section 473 of the Code. (iv) That the complainant had not submitted any application giving explanation for condoning the delay and in that view of the matter also, the period of limitation cannot be extended, as asked for under Section 473 of the Code. (v) That the decision of this Court rendered in case of State of Gujarat v/s. Bhavani Industries, 24 (1983) 1, G.L.R p-664 was not applicable to the facts and circumstances of the present cases. (vi) That the decision of Supreme Court in case of State of Punjab v/s. Swaransingh, 1981 SC p-1054, the same was applicable and in that view of the matter also, complaints deserves to be dismissed. 4. Mr. G.N Desai, the learned Senior Counsel appearing for the petitioner-Octroi Inspector, while challenging all these orders dismissing the complaints, vehemently submitted that the same were ex-facie illegal and perverse and has resulted into a serious miscarriage of justice. Mr. Desai further submitted that none of the aforesaid grounds on which the complaints in question came to be dismissed has any reasonable base which can sustain the close scrutiny at the hands of this Court. Making good this submission, Mr. Desai has in the first instance, submitted that taking into consideration (i) the date of issuance of the demand notice for octroi under Rule-12 and the date on which the complaints actually came to be filed before the learned Magistrate, the same were within the prescribed time-limit of six months. Mr. Desai further urged that in case if this Court was not inclined to accept his above submission then in the alternative, in the second instance, the evasion of octroi duty must be held to be a 'continuing offence' and in that view of the matter, by virtue of Section 472 of the Code, fresh period of limitation begins to run at every moment of time during which the offence continues, and therefore, all the complaints were filed within the statutory time-bound !! and in the third instance, according to Mr. Desai, taking into consideration the fact that the octroi evasion is a white collar economic offence, which day-in and day-out is being committed, defrauding and robbing the Municipal Corporation of its precious public revenue, even if the complaints in question were filed beyond the prescribed period of limitation, then even in the overall interests of justice, the Court must extend the period of limitation and thereby take cognizance of the alleged offence. On the basis of these submissions, it was finally urged by Mr. Desai that since the impugned judgments and orders on face of it were illegal and perverse, the same at once deserve to be quashed and set-aside remanding all these cases to the trial Curt with a direction to restore the same on record and decide the same on merits according to law. 5. As against the above, Mr. B.T Rao, the learned advocate appearing for the respondent vehemently submitted that the reasons given by the learned Magistrate in his impugned judgments and orders while dismissing the complaints are just, legal and proper and therefore the same do not call for any intereference at the hands of this Court. Mr. Rao further submitted that the condonation of delay is a matter and the circumstance which needs seperate special application to be made to the trial Court and that only on making out the 'sufficient grounds' for the same that the delay in question can be condoned. In the instant cases, according to Mr. Rao since the complainant was himself utterly careless and indolent in making the delay condonation application, there was no question of condoning the delay in question arises ! Mr. Rao further submitted that the evasion of octroi duty cannot be said to be 'a continuing offence' by any stretch of imagination. In support of this contention, Mr. Rao has relied upon the decision of this Court rendred in case of M.S Upadhyay Upadhyay v. Mistri Jayantilal Hargovinddas, reported in 1985 G.L.H 860. Further, according to Mr. Rao non-payment of octroi duty cannot be labelled as such a serious economic offence which can constrain any Court to call in aid Section 473 of the Code, to extend the period of limitation, in order to take cognizance of the alleged offence even if it is beyond the prescribed period of limitation. Mr. Rao further submitted that to condone delays in such type of cases would indirectly encourage the remissness, indolence on the part of the public servants in discharge of their duties and accordingly therefore, to avoid bad precedent and even to set them right and make them efficient - by way of an object lesson the delay should not be condoned. Mr. Rao further submitted that if this Court was not inclined to accept the decision rendered in case of M.S Upadhyay v. Mistry Jayantilal Hargovinddas {Supra} then in that case, these matters be referred to the larger bench to settle once and for all the controversy raging around this point of 'continuing offence' ! Mr. Rao further submtited that if such matters are taken lightly, it may unnecessarily give an unjust handle to the public bodies like Vadodara Municipal Corporation, to file complaints leizurely at any point of time which may unnecessarily result into unjust harrassment to the honest citizen !! In this view of the matter, merely because it has been alleged that the offence of evading the octroi duty is an economic offence that by itself is not sufficient ground to take a stern and stringent view of the matter to enhance the period of limitation by resorting to Section 473 of the Code. Mr. Rao further submitted that qua each respondents, Civil Suits infact have been filed for recovery of the Octroi duty and in that view of the matter also, these criminal prosecutions, more particularly when they are belated one, should not be entertained. Mr. Rao on the basis of these submissions finally urged that since no case was made out to interfere with the impugned judgments and orders, all these revision applications deserve to be dismissed. 6. Now having heard the learned advocates appearing for the respective parties quite at length, at the very outset, it must be stated that the submissions made by Mr. Desai have indeed considerable force, and accordingly therefore, the same merits to be accepted straighway. In fact on taking a close look at the chart (submitted by Mr. Desai) of 327 complaints filed against the respondents wherein case-wise details with regard to (i) date of offence, (ii) date of issuance of transit pass/es, (iii) issuance of notice under Rule-12 of the Octroi Rules, (iv) date of complaints, etc., wherein things have been specifically particularized there is indeed no difficulty in holding that all the complaints were filed within the prescribed period of limitation. From the said chart, taking into consideration the date on which the demand notices under Rule-12 were issued and thereafter when despite the said notices since neither the certificate of export of the goods nor the octroi duty came to be deposited with authorities during the stipulated notice period that it can be said with certainty that the offences of not depositing the transit passes and the non-payment of octroi in question, obtained on the basis of the false representation had taken place ! To understand this, if we look at Sr. No. 1 of the Chart which pertains to Criminal Case No. 916 of 1988 out of which the present Criminal Revision Application No. 151 of 1991 arises, the transit pass was issued on 1-5-1987 and ultimately pursuant to this, since the said Transit Pass were not deposited, on coming to know about this fact of the case, the demand notice was issued against the respondent on 11-11-1987. It was only when accused did not comply with the said notice and accordingly failed to pay the octroi duty due in question that the offence in respect of the same came into light without any doubt whatsoever. Similarly, in other cases also, the date of offence would be not the date on which goods were imported on making false representation but it would be the date on which actually the octroi was demanded by issuing the notices, and yet not deposited with !! Had indeed these goods would have been brought within the Municipal Corporation limits, without false representation of exporting it only, than perhaps the alleged offence of non-payment of octroi duty could certainly be said to have been committed on the date of its import. But then precisely that is not the case here !! In this view of the matter, the learned Magistrate was not right when he took a view that since neither the