PUBLIC PROSECUTOR Vs. KALIA PERUMAL NAYAKAR

JUDGEMENT

(1.) THIS is an appeal by the Government against the acquittal by the Bench Magistrate, Shevapet of the counter-petitioner against whom a charge had been brought of failure to take out a license for selling grain wholesale. Under Section 249 of the District Municipalities Act (V of 1920) read with Schedule V, Clause (0) of the same act any person who sells grain wholesale has to obtain license. If he fails to do so, he is liable to be punished under Section 338. The Bench Magistrate acquitted the accused on the ground that he was only getting commission for auctioning the grain. The question for decision is whether he is not even as a commission agent a person who sells grain. What he actually did was to sell by auction bandy-loads of grain wholesale. The grain belonged to his customers who sent it to him for sale and he effected the sale by auction and obtained a remuneration by way of commission. He is nevertheless the person who actually sold the grain. It is clear therefore that he is a person who comes within Clause (0) of Schedule V and must take out a license. It is not a case of a mere crier or auctioneer who auctions the goods of another person in the latter's presence and acts as a mere agent for the purpose. The accused is, as I understand from the records, a commission agent who sells other people's goods and receives remuneration by a commission, he being treated as the actual seller of the goods.

(2.) IN these circumstances the acquittal must be set aside and the accused convicted under Section 338 of the District Municipalities Act. He is lined Rs. 5 and will undergo simple imprisonment for two days in default of payment of the fine.