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Rajaram Narayan Anturkar Vs. F.F. Wadia and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Commercial
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 62 of 1980
Judge
Reported in1983(2)BomCR765
ActsBombay Shops and Establishments Act, 1948 - Sections 2(4) and 7(1)
AppellantRajaram Narayan Anturkar
RespondentF.F. Wadia and anr.
Appellant AdvocateR.N. Dhorde, Adv.
Respondent AdvocateT.R. Andyarujina, ;Zia Sorabjee and ;J.R. Gagrat, Advs. i/b., Gagrat and Co., for Respondent No. 1;K.M. Chopda, P.P.
DispositionAppeal dismissed
Excerpt:
- - 5. the learned counsel for the appellant contends that the learned magistrate was wrong in observing that raising of live stock may well be part of agricultural operation......by the appellant of the establishment, there were 41 persons working there. he denied that the race horses were sold from the said farm.4. the learned judicial magistrate found that the evidence on record did not prove that the respondent no. 1 was a commercial establishment. according to him the mere fact that several persons were working at the farm was not sufficient to attract the provisions of section 7 of the said act. he, therefore, acquitted the first respondent of the offence under section 7(1) read with section 52(a) of the said act. feeling aggrieved with the said order, the complainant inspector of the pune municipal corporation has preferred this appeal.5. the learned counsel for the appellant contends that the learned magistrate was wrong in observing that raising of.....
Judgment:

A.D. Tated, J.

1. Shop Inspector, Pune Municipal Corporation, Pune filed this appeal against the judgment and order dated 6th October, 1979 passed by the learned J.M.F.C. Pune, acquitting the first respondent of the offence under section 7(1) read with section 52(a) of the Bombay Shops and Establishments Act (hereinafter for the sake of brevity called as 'the said Act').

2. The appellant is a Shop Inspector of the Pune Municipal Corporation. He filed a complaint against the respondent No. 1 for contravention of section 7(1) of the said Act, punishable under section 52(a) of the said Act. The appellant alleged that the first respondent is Yeravada Stud and Agricultural Farm a commercial establishment, within the area of Pune Municipal Corporation. The appellant visited the said establishment on 2nd August, 1978. The Secretary of the establishment Shri Sawale was present. It was noticed that the establishment was not registered under the said Act. Hence a notice was sent to the respondent No. 1 on 12-8-1978, but it was not replied to. On these facts the respondent No. 1 was prosecuted.

3. The appellant examined himself in support of the complaint. The respondent No. 1 in his examination under section 313 of the Criminal Procedure Code admitted that he was a partner of M/s Yeravada Stud and Agricultural Farm, but he denied that it was a commercial establishment. He admitted that the appellant visited the establishment on 2-8-1978 with Inspector Shri Joshi and at that time the Secretary of the establishment Shri Sawale was present. He also admitted that the establishment was not registered under the said Act although the establishment started functioning in or about the year 1959. He also admitted that on the date of visit by the appellant of the establishment, there were 41 persons working there. He denied that the race horses were sold from the said Farm.

4. The learned Judicial Magistrate found that the evidence on record did not prove that the respondent No. 1 was a commercial establishment. According to him the mere fact that several persons were working at the Farm was not sufficient to attract the provisions of section 7 of the said Act. He, therefore, acquitted the first respondent of the offence under section 7(1) read with section 52(a) of the said Act. Feeling aggrieved with the said order, the complainant Inspector of the Pune Municipal Corporation has preferred this appeal.

5. The learned Counsel for the appellant contends that the learned Magistrate was wrong in observing that raising of live stock may well be part of agricultural operation. He submitted that the first respondent was engaged in the business of training horses for races and selling them at Stud Farm and as such the establishment of the first respondent was commercial establishment within meaning of section 2(4) of the said Act. He submitted that the evidence of the complainant satisfactory proved that the first respondent had a commercial establishment within the area of Pune Municipal Corporation and as such the establishment was liable to be registered under section 7 of the said Act.

6. The learned Counsel for the respondent No. 1, on the other hand contends that there is no evidence that the respondent No. 1 had carried on any commercial activity at his establishment and therefore, the learned, Magistrate was right in acquitting the respondent No. 1. He submitted that as there was no evidence about the commercial activities alleged to have been carried on by the respondent No. 1 the learned Magistrate was perfectly right in acquitting the respondent No. 1.

7. The term 'commercial establishment' is defined in Clause (4) of section 2 of the said Act, which reads as follows :---

'Commercial establishment' means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession (and includes establishment of any legal practitioner, medical practitioner, architect, engineer, accountant, tax consultant or any other technical or professional consultant and also includes) a society registered under the Societies Registration Act, 1960, and a charitable or other trust, whether registered or not, which carries on (whether for purpose of gain or not) any business, trade or profession or work in connection with or incidental or ancillary thereto but does not include a factory, shop, residential hotel, restaurant eating house, theatre or other place of public amusement or entertainment.'

8. According to the appellant, the first respondent is breeding the race horses are training them for races and then the horses are sold from the establishment in question. Had the appellant proved these facts, it would have been certainly a commercial establishment within the meaning of section 2(4) of the said Act, but unfortunately the appellant who was posted in that area on 1-8-1978 visited the establishment of the first respondent on 2-8-1978 and made some inquiries there and on the basis of these inquiries he stated that the first respondent sold the horses for race from his establishment and that he was running the business of breeding and training the horses for race and then selling them. During the cross-examination the complainant frankly admitted that he did not personally see that the horses were being bred there. He had no knowledge about the sale of horses from that place. He had no personal knowledge about the activities carried on by the respondent No. 1 from the said Farm. The appellant had no other evidence to prove the commercial activities of respondent No. 1. Horse breeding, training, of horses for races and selling the horses for race would certainly be a commercial activity, but in the absence of evidence that such an activity was carried on by the respondent No. 1, the learned Magistrate had no alternative but to acquit the respondent No. 1.

9. Consequently I find that there is no substance in the appeal and hence it is dismissed.


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