OMKAR SHRAWAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This revision application was originally filed against the order of conviction and sentence passed by the learned Judicial Magistrate, Pachora against the present petitioner, who was accused No. 1 in the proceedings before the learned Magistrate, and other accused of an offence under section 139 of the Maharashtra Municipalities Act for having attempted to evade the payment of octroi duty. The amount of fine imposed was Rs. 2,659.70 ps. being equivalent to 10 times of the amount of octroi duty attempted to be evaded. Accused Nos. 2 to 4 are only the partners of the firm-accused No. 1. By some strange logic, the learned Magistrate passed a separate order of conviction and sentence against each of the partners of the firm, namely, accused Nos. 2 to 4 in addition to the firm-accused No. 1 and sentenced them similarly to pay the fine of Rs. 2,659.70 ps. each.

(2.) In the revision application, the learned Sessions Judge rightly rectified the mistake committed by the learned Magistrate in fastening the criminal liability separately upon each of the partners of the firm. However, the learned Sessions Judge who confirmed the order of conviction proceeded to impose the maximum amount of the fine permissible under section 139 of the Maharashtra Municipalities Act. Thus, the present petitioner-accused No. 1 was ordered to pay a fine of Rs. 2,659.70 ps. being the equivalent of 10 times of the amount of octroi duty attempted to be evaded. As mentioned at the outset, this revision application was originally filed against the entire order of conviction and sentence. However, Mr. Patankar, the learned Advocate for the petitioner who argued the petition at length even on the question of conviction when the petition came up for admission before me, realised the fact that it was not possible for him to urge contentions so far as the order of conviction was concerned. He, therefore, made a statement before the Court that he was restricting his objection to the question of sentence only. Having regard to the totality of the circumstance which will be presently referred to, this Court found it reasonable to issue rule in the petition, but to restrict the same only to the question of sentence. The rule was made returnable today. Mr. Mohite, the learned Advocate appeared for the Municipal Council & Mr. Suryawanshi appeared for the State as Public Prosecutor. Mr. Patankar who appeared for the petitioner invited my attention to the following dates. The date of alleged offence of evading the payment of octroi duty is 23-6-1978. It appears that this factum of evasion was noticed by the officers of the Council some time before 11-7-1978. A reply dated 14-7-1978 was given by the petitioner-firm to the Council. In the reply the petitioner stated the circumstances in which the octroi duty remained unpaid inadvertently. It was pointed out that the amount for the payment of the octroi duty had been, in fact, given to the driver of the vehicle, but, presumably, he committed the mischief, of non-payment of the octroi duty thus defrauding not only the Council but also the petitioner. In the reply, it was stated that the firm was prepared to pay the octroi duty immediately. The petitioner-firm did not stop there. As a matter of fact, the requisite amount of the octroi duty of Rs. 265.97 ps. was sent by the petitioner-firm to the Council by a money-order. However, the said money-order was not accepted by the Council and it was sent back to the petitioner-firm. It is somewhat intriguing as to why the amount was returned by the Council, because it was not as if that the Council had already taken the decision to institute prosecution against the petitioner-firm or against any of its partners. The complaint in question came to be filed by the Municipal Council against the petitioner-firm and its partners as late as on 18th November, 1978, that is to say, about 4 months after the date of the notice given by the them to the petitioner-firm and 5 months after the date of the actual offence. Whatever that may be, the fact remains that the Municipal Council chose not to accept the money-order and chose to file the prosecution against the petitioner-firm. But the prosecution itself was slightly delayed by the Council, explanation for which delay is not forthcoming at all.

(3.) It is unnecessary to set out the various reasons why both the courts were satisfied about the commission of the offence by the partnership firm because so far as the question of conviction is concerned, the conviction stands confirmed and the present revision application does not relate to the same at this stage at all. What is required to be considered is as to whether the Sessions Court were justified in imposing the maximum sentence against the petitioner-firm.