CR.A/67419/1996 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 674 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 AMBARAM JIVRAMBHAI & ORS. - Respondent(s) ====================================== Appearance : Ms. Jirga Jhaveri for Appellant(s). Mr. Y. S. Lakhani for Respondent(s) : 1 - 5. Mr. K. T. Dave, APP for Respondent(s) : 6. ====================================== 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/67419/1996 2/12 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 Joint Civil Judge (S. D.), Mehsana in Criminal Case No.1340 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. It is alleged that the Agricultural Produce Market Committee issues licenses to the traders and the traders, who are doing the business of trading of agricultural produces in the market yard/area, are required to comply with the terms and conditions of the license. It is alleged that as per the terms and conditions of the license, the trader is required to submit the books of accounts, including the bills for purchase and sales of the agricultural produces. Therefore, by the notice dated 20th February, 1992, the complainant had called upon the respondents to produce the books of accounts in the office of the Market Committee on 13th February, 1992, which the respondents- original accused have failed to produce. Therefore, the complainant, as an Inspector of the Agricultural Produce Market Committee, Mehsana has lodged the complaint against respondent Nos.1 to 5 for non- compliance of the terms and conditions of the license and thereby, CR.A/67419/1996 3/12 JUDGMENT committed the offence under Section 8 of the Gujarat Agricultural Produce Markets Act, 1963 (“the Act” for short) as well as Section 36(ii) of the Act, read with Rules 59(1) and 59(3) of the Gujarat Agricultural Produce Markets Rules, 1965 (“the Rules” for short). Therefore, the complainant lodged the aforesaid complaint 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 26th March, 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 appreciating that the books of accounts have not been produced. She CR.A/67419/1996 4/12 JUDGMENT referred to Rule 59 of the Agricultural Produce Market Committee Rules, 1965 (“the Rules” for short) and submitted that Rule 59 has been violated. Referring to Rule 59(1), she emphasised that all traders, general commission agents and brokers are required to submit for examination in the office of the market committee the books of accounts, ledger, etc. It was submitted that the notice was issued by the complainant, which the respondents-original accused have failed to comply with. She also referred to Rule 59(3) 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, therefore, submitted that as the traders and commission agents are required to keep the books of accounts and are required to submit them for examination/inspection in the office of the Market Committee as and when required and as it has not been done so in spite of the notice issued by the complainant, the general terms and conditions of the license have been violated, which has not been appreciated by the learned Court below. Further, it was submitted that Section 8 of the Act provides that no person shall operate in the market area or any part thereof except under and in accordance with the conditions of the license granted under the Act. She also referred to Section 36, which refers to the offences, penalties, investigation and CR.A/67419/1996 5/12 JUDGMENT procedure, and submitted that it provides for the punishment for violation of Section 8. She has submitted that the respondents-original accused, having failed to comply with the provisions of the Act and the Rules, and also the general terms and conditions of the license by not submitting the books of accounts, have committed the offence, which has not been appreciated and 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 and therefore, the impugned judgement and order recording acquittal is erroneous. 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 general terms and conditions of the license. For that purpose, he referred to the impugned judgement and order and referring to the discussion as regards the deposition of the complainant at Exh.35, he emphasised that it has been admitted by the complainant that he has not been authorised by the Committee to call for any such books of accounts and he could not submit any such resolution for the purpose. Moreover, he submitted that it is admitted that the notice was with regard to the books of accounts for the year 1991 and pending such inspection, the license for the year CR.A/67419/1996 6/12 JUDGMENT 1991-92 has been issued to respondent Nos.1 to 5 - original accused without any adverse report to the committee at the time of issuance of the license for the year 1991-92. He has also submitted that the bills for the year 1990-91 have been produced and no complaint with regard to the trading in the year 1990-91 has been lodged nor any offence has been committed. It is admitted that the notice has been issued only for calling upon the respondents to produce the books of accounts for inspection. It is also admitted that the appointment of the Secretary is made by the Committee and approval has not been granted to the appointment of the Secretary, who had been given the authority to inspect the books of accounts. He, therefore, 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 CR.A/67419/1996 7/12 JUDGMENT sides, it is required to be considered that whether it would call for any interference in the impugned judgement and order recording acquittal. From the scrutiny of the evidence, it transpires that the charge is levelled against the accused that they have failed to comply with the notice, issued calling upon them to produce the books of accounts for the purpose of inspection, and thereby, committed breach of the general terms and conditions of the license and also violated the provisions of Section 8 of the Act and Rule 59 of the Rules. However, it is admitted position that respondent Nos.1 to 5 - original accused are doing the business of trading agricultural produces in the market area as per the license issued to them and in fact, the license for the subsequent year, i.e. 1991-92, has been issued without any adverse report or complaint. It is not in dispute that there is no complaint or offence with regard to any breach of any provisions of the Act, Rules, regulations or general terms and conditions of the license. Further, as reflected in the impugned judgement and order, it is admitted position that the Secretary, who has been appointed, is required to be appointed by the Committee and no approval has been given to his appointment. The Secretary is authorised to call for such record and he has admitted that he does not have any such authority and he has failed to produce on record. Even assuming that the Secretary is authorised to call for any such records for the purpose of inspection, he has admitted that the notice was issued was CR.A/67419/1996 8/12 JUDGMENT only for the purpose of inspection and there was no adverse report or complaint and therefore, even the license for the subsequent year, i.e. 1991-92, has been issued to the respondents - original accused persons. There is no quarrel with the submission that the provisions of Section 8 of the Act require that no person shall operate in the market area or any part thereof except under and in accordance with the conditions of the license granted under the Act. It is not even the case that there was no license with the respondents - original accused. The complaint is with regard to non-compliance of the notice calling upon the respondents - original accused to produce the books of account for inspection. Therefore, it is not the case that they have operated without any license. The terms and conditions of the license, read with the Rules, require that the trader or commission agent has to produce the books of account for inspection. In the facts of the present case, the authority of the Secretary itself is questioned, as, admittedly stated by him, he has not been authorised and no resolution has been produced on record. Further, Section 36, which refers to the offence, penalties and procedure, emphasised that whoever without holding any license uses any place in the market area for the purchase or sale of the agricultural produces or operates in the market, contravenes the provisions of Section 6 or 8 shall be punished. This itself would suggest that again, it has a reference to operating in the market area without license and it is not the case herein. CR.A/67419/1996 9/12 JUDGMENT Further, non-supply or non-production of the books of account itself would not attract the penal provisions, particularly, when the authority of the Secretary is questioned and it has not been brought on record that in spite of repeated insistence, they have deliberately not produced. Therefore, as discussed hereinabove, the provisions of Section 36 of the Act would not be attracted as the respondents-original accused were admittedly having the license and in fact, the license for the next year has also been issued as there were no complaints for any breach or violation of any terms and conditions of the license or the provisions of the Act and the Rules. 6. Further, Rule 59 of the Rules provides for inspection of accounts of traders or general commission agents and brokers and Sub- rule (3) of Rule 59 clearly provides that the trader or the commission agent is required to submit for examination in the office of the market committee the books of accounts on demand by the Chairman, Vice- Chairman or Secretary of the market committee or any other officer or servant of the market committee when so authorised by the Chairman or Secretary. In the present case, this itself is not clear as it has been admitted. Further, Sub-rule (3) of Rule 59 provides that any person who commits a breach of this rule shall be deemed to have violated the conditions of the license, meaning thereby, the licensee has to comply with sub-rule (1), provided it has been called upon to produce by any CR.A/67419/1996 10/12 JUDGMENT authorised person, as provided in Rule 59(1). Therefore, it cannot be said on the basis of the material and evidence on record that there is any violation or breach of either the Act or the Rules and regulations, and also general 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 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 CR.A/67419/1996 11/12 JUDGMENT 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 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 Joint Civil Judge (S. D.), Mehsana in Criminal Case No.1340 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. CR.A/67419/1996 12/12 JUDGMENT 10. In the result, the present appeal hereby stands dismissed. [R. H. Shukla, J.] kamlesh*