HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2178 of 2004 Date:04.02.2011 Between: The Agricultural Market Committee, Kurnool ….Appellant And: Pruthvi Agro Tech Private Limited, rep.by its L. Durgaprasad and another .…. Respondents. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2178 of 2004 JUDGMENT: This appeal arises out of the order of acquittal passed by the Judicial Magistrate of the First Class, Kurnool in Summary Trial Case No.1 of 2002 on 31.8.2004. The appellant herein was prosecuted for the offence under Section 12(1) read with Section 23 of A.P. (Agricultural Produce & Live Stock) Market Act, 1966 and amended Act, 1987(for short, the Act) alleging that the 1st respondent is transacting business of notified commodities of the Agricultural Market Committee, Kurnool like cotton seed etc., for the year 1996-97 to 2000-2001. Under Section 12(1) of the Act, the accused has to pay market fee of Rs.13,,21,461/- on the purchase value of cotton seed, for the period from 1996-97 to 2000- 2001, as per information collected by the Regional Vigilance and Enforcement Officer, Kurnool. Accordingly, the Secretary has issued notice to the accused requesting him to pay market fee for Rs.13,21,461/- to the market committee. The said notice was served on 5.7.2002, but the accused did not pay the market fee. Again the Secretary has issued show-cause notice dated 2.2.2002 to the accused. He received show cause notice on 14.2.2002, but he has not paid market fee. Thus, the accused has violated the provisions of Section 12(1) of the Act and committed offence. Hence, the accused is liable for punishment under Section 23 of the Act. When the accused was examined under Section 251 Cr.P.C., he pleaded not guilty for the said offence. The complainant in order to establish the offence, examined P.W.1 and got marked Exs.P.1 to P.8 on their behalf and even though no defence witnesses were examined, they got marked Exs.D-1 to D-4 through P.W.1. After taking into consideration of both oral and documentary evidence, the lower court has found the accused not guilty for the offence under Section 12(1) and read with Rule 23 of the Act and thereby acquitted him under Section 251 Cr.P.C. Aggrieved by the said acquittal, the present appeal is filed. Now the point that arises for consideration is whether the accused has committed the offence under Section 12(1) of the Act and liable for punishment under Section 23 of the Act? The learned counsel for the appellant contends that the respondent has to pay the market fee for the transacting business conducted by him in the market basing on the turnover and he has due an amount of Rs.13,21,461/- for the period 1996-97 to 2000-01 and inspite of demand, he has not paid the said amount and as such he is liable for punishment under Section 23 of the Act. The P.W.1 Supervisor of the appellant Market Committee has stated that Vigilance Enforcement Officials have sent a letter to the Market Committee, Kurnool for fixation of the market fee turnover of the accused on 20.12.2001 and the said letter is Ex.P.1. Basing on Ex.P.1, they have issued notice Ex.P.2 for payment of the market fee from 1996-97 to 2000-01 amounting to Rs.13,21,461/- and the accused has given a reply Ex.P.2 denying the said notice and the said notice is Ex.P.3. Thereafter again the complainant issued a notice on 2.2.2002 demanding for payment of market fees and the same was issued by him under Ex.P.4, but he has not paid the market fee. In the cross-examination he admitted that they do not know the basis for the assessment made by the Vigilance People under Ex.P.1. According to their records, the licence of the accused was renewed from 1999 to 2003. He also admitted that as per the Act, the defaulter like the accused who failed to pay the arrears of market fee licence will not be renewed. They have not verified the records of the accused as he has not produced them. Admittedly they have got right to enter into the premises of the accused and seize the records if the accused failed to produce the records, but they have not done it. As per the Act, they can enter into the premises and seize the records of the business and impose penalty. In the further chief-examination, he has stated that Market Committed has authorised him to file a complaint under Ex.P.8. He has also stated that the Market Secretary is the competent authority to assess the market fees. The accused has paid the amount as demanded by the Secretary of the Market Committee up to 2001. They have given assessment notice demanding the accused to pay Rs.32,652/- mentioned in Ex.D-1. The accused license was renewed for the years 2002-3003 as per Ex.D.4. The Vigilance people have no right to assess the market fee and demand to pay the market fee from anybody. Therefore, as rightly admitted by P.W.1, the Secretary is competent to assess the market fee payable by the accused and the Vigilance Authorities have no right to assess the market fee and demand for payment of the same. Section 12 of the Act deals with levy of fees by the Market Committee and as per Section12(a) of the Act, the trader has to submit a return relating to his turnover to the Marketing Committee and as per Section12(a) of the Act, the Secretary of the Market Committee has to assess the market fee payable by the trader. Section 12(c ) of the Act deals with payment of market fee and other dues payable under the Act. Therefore, as per the said provisions, the trader has to submit his return as prescribed under the bye-laws and the Market Committee has to assess the market fee payable by the trader and then only they can demand for payment of the same. In the present case as admitted by P.W.1, the Secretary of the Market Committee has demanded the accused for payment of an amount of Rs.32,652/- under Ex.P.1. As per Ex.D.1, the Selection Grade Secretary by issuing notice on 30.10.2001 basing on the information furnished with regard to sales and purchase by them demanded for payment of Rs.32,652/- to the Market Committee and they have paid Rs.16,772/- and asked for payment of the balance amount of Rs.15,880/-. Therefore, the assessment made by the complainant committee for payment of the market fee for the year 2000-01 and made a demand as per Ex.D.1 and the respondent accused has paid the said amount as per the said demand. Therefore, the accused has paid the market fee up to the year 2000-01. But, the complainant has issued a notice under Ex.P.2 basing on the letter of the Vigilance and Enforcement who advised for demanding for payment of Rs.13,21,461/- from 1996-97 to 1999-2000 and 2000- 2001 and Ex.P.1 is the letter addressed by the Vigilance and Enforcement Officer to the Secretary of the Complainant Committee. Therefore, Ex.P.2 was issued basing on the letter of the Vigilance and Enforcement Officer. As admitted by P.W.1, the Vigilance and Enforcement Authority has no right to assess the market fee. Admittedly the complainant committee has not made any assessment with regard to the market fee payable by the accused basing on the records. He also further admitted that when there are arrears of market fee, the licence of the trader will not be renewed as per the Act, but as admitted the licence of the accused was renewed from 1999 to 2003. Basing on the same, the lower court has rightly presumed that as the licence was renewed there is no dues of market fee. Even as per D.1 to D.3, the complainant committee has demanded for payment of the market fee and the same was paid. If there is any excess amount payable by the accused, the market committee has to make the demand by giving an opportunity to the accused but the same was not done in the present case. Section 23 deals with penalties for failure to pay the fee levied as per Section 12(i) of the Act. In the present case, as already observed above, the accused has paid the market fee as assessed by the complainant before issuing of the Ex.P.1 notice and there is no basis for issuing of Ex.P.2 notice by the complainant for payment of the market fee. More over the accused has given a reply to the said notice under Ex.P.3 but the same was not taken into consideration by the complainant for re- assessing the market fee if any payable. Therefore, the complainant has failed to establish that the accused has failed to pay the market fee as assessed under Section 12(1) of the Act. Hence, he is not liable for punishment under Section23 of the Act. Thus, the lower court has rightly found the accused not guilty for the said offence. Hence, the appeal is dismissed. _____________________ P.DURGA PRASADJ. Date:04.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2178 of 2004 Date:04.02.2011 Gk.