NARASINGAMUTHU CHETTIAR Vs. STATE

JUDGEMENT

(1.) THE petitioner in these revision petitions, who is the same, was prosecuted in the Court of the joint Magistrate of Tuticorin for failure to submit the "a" return, as required by R. 11 (1), Madras General Sales Tax (Turnover and Assessment) Rules 1939, an offence punishable under Section 15 (a) and (c), Madras General Bales Tax Act. The proceedings before the joint Magistrate were summary in nature and except for a tabulated statement no judgment or a reasoned order was pronounced. The petitioner was convicted of the offence complained of and sentenced to pay a fine of es. 200, or in default to suffer simple imprisonment for a period of six months. Against this conviction and sentence, Cri App, NO. 65 of 1946 was filed by him before the Sessions Judge of Tinnevelly and the learned Judge holding that under Section 414, Criminal P. C, no appeal lay from the conviction and sentence of a First Class Magistrate exercising summary powers, rejected the appeal. Against that order of rejection, the petitioner filed Cri, E. c. NO. 1215 of 1946 which came before me on 22nd September 1947. As the petitioner sought to revise the order of rejection of the appeal by the learned Sessions Judge, which order was perfectly correct, he had perforce to file criminal provision case no. 1021 of 1947, to revise the order of the joint Magistrate itself under Sections 435 and 439, Criminal P. C. On both these revisions I passed an order on 22nd September 1947 directing the Sub-Divisional Magistrate of Tuticorin to record evidence and submit the same to this Court on the various points referred to in that order in extenso which was in the following terms: The question for decision has narrowed down after hearing the arguments to the simple point as to whether the accused is a person who brings together the seller and the purchaser acting as a broker without having any dominion or right "over the goods sold. According to the petitioner all that he does is to bring together the owners of the goods and the intending purchasers and receive percentage of the price of the goods as commission; he does not handle the goods himself, nor can he direct the delivery of possession to the purchasers. It is conceded by the learned Special Public; Prosecutor that if these are the only facts, then the accused may not be a dealer as defined in the Madras General Sales Tax Act. But, on the other hand according to him, the accused is a person who effects a sale of the goods as the. word 'gale' is defined in Section 2, el, (h ). Unfortunately during the progress of the trial which wag summary in the Court of First Instance the parties did not seem to have concentrated their attention on the real facts which ought to have been proved; and, therefore, I think that the provisions of Section 428, Criminal P, C, should be availed of in this revision. It is necessary in the interests of justice That fresh evidence should be taken as to - Firstly: the nature of the transactions entered into by the petitioner and the way in which he earns has commission, viz. , is he only a person who brings the seller and the purchaser together without in any way concerning himself with the details of the transaction, the delivery of the goods, the prices and the various other things? Secondly: Has he got any dominion over the goods or is has direction or order necessary for the purchaser to get possession of the goods purchased by him ? and Thirdly: What exactly is the role played by the owners of the goods; do they hand over possession to the accused so that he might find out purchasers, fix the prices with such purchasers, negotiate with them, and finally sell the goods, receive the payment and after deducting his commission pay only the balance amount to the owners. These are questions which have to be clarified. The Sub-Divisional Magistrate of Tuticorin will record evidence let in by the prosecution as well as by the defence and submit the evidence to this Court before 31st October 1947. The Criminal Revision Cases will be posted after the fresh evidence is received. All the other questions raised by Mr. Bamamurthi Aiyar and the Special Public Prosecutor will be reserved.

(2.) ACCORDINGLY on the side of the prosecution five witnesses were examined and the re. corded evidence taken before the Sub-Divisional Magistrate, Tirunelveli, has been submitted to this Court. Lengthy arguments have been ad. dressed to me both by Mr. Eamamurthi Aiyar for the petitioner and by Mr. V. E. T. Chari, the learned Special Public Prosecutor on behalf of the Crown.

(3.) ON these materials, the point for decision is whether the petitioner is a "dealer" as defined in Section 2 (b), Madras General Sales Tax Act, 1989, his contention being that he is a person who brings together the seller and the purchaser acting as a broker without any dominion or right over the goods sold. The role played by him is only to bring together the vendor and the vendee and receive a percentage of the price of the goods sold as commission for his labours; there is no handling of the goods by him nor does he deliver possession of the same to the purchaser. On the other hand, the contention on behalf of the Crown is that it is the petitioner who effects the sales and thereby carries on the business of selling the goods. The exact position has not been very much clarified even after the examination of the witnesses as a result of the order of this Court.