PUBLIC PROSECUTOR Vs. PAVADASETTY MALKAJAPPA

JUDGEMENT

(1.) THIS is a criminal appeal filed by the State against the acquittal of the accused in C.C. No. 176 of 1950 on the file of the Sub-Divisional Magistrate (Judicial), Bellary. The facts are : Pavadasetty Malkajappa, a merchant of Bellary and running a Dalali shop there, was charged for failure to pay the arrears of sales tax Rs. 563-10-11 for 1948-49 and 1949-50. The accused is an assessee on the file of the Deputy Commercial Tax Office, Bellary, with G.I. No. 1016. The Department exhausted all civil measures of collecting the tax from him and as he failed to pay the tax and thus committed an offence punishable under section 15(b) of the Madras General Sales Tax Act, 1939, a charge-sheet was laid against him. The learned Magistrate acquitted the accused on two grounds, viz., that the accused was a commission agent and not a dealer following the decision in Provincial Government of Madras v. Veerabhadrappa and accordingly, that on his examining the assessment for the years 1948-49 and 1949-50 he, the Magistrate, came to the conclusion that the assessment should not have been levied.

(2.) IT is pointed out on behalf of the State that neither of these reasons given by the Magistrate can be made a ground for acquitting this accused. So far as the first point is concerned the conclusion of this Magistrate based on Provincial Government of Madras v. Veerabhadrappacannot be supported because this decision has been dissented from in the Full Bench decision of this Court in Radhakrishna Rao v. Province of Madras 1952 (1) MLJ 494 In regard to the second point, it is contended that the latest decision of this Court in Pasha Saheb v. King (1950 M.W.N. 57 (Crl.)clearly lays done that the criminal Court is precluded from going into the liability of the assessee for the assessment, if the assessment has been levied for a period after 1st January, 1948. But the Magistrate has rested his ground for going into the assessment after 1st january, 1948, not on any decision of this Court but upon certain ex cathedra observations as follows :-