A.P. Sen, J.
1. This is an appeal against acquittal, Under Section 417 (3) of the Code of Criminal Procedure, filed by the Municipal Council, Shivpuri, with the Leave of the Court, against an order of acquittal passed by the Additional District Magistrate, Shivpuri, dated 14th August 1968, acquitting the respondents of an offence Under Section 155 of the M. P. Municipalities Act, 1961.
2. The prosecution case, briefly stated, is as follows. The respondents carry on business of retail sale of cloth under the name and style, 'M/s. Vishnu Vaatra Bhandar' within the limits of the Municipality. On 11th December 1966, they imported 4 bales of cotton cloth worth -Rs. 7,666.34 by a truck belonging to M/s. Daily Transport Service, but they paid octroi on goods worth Rs. 3,185.68 only at the Kalar Bag Octori Out-post under octroi receipt, Ex. P. 2, as pei Bijaks, Exs. P. 4 to P. 8. They neither furnished any declaration in regard to the remaining goods worth Rs. 4,478,66 nor paid Rs. 44.79 due as octroi thereon. The Octori-Inspectors, Radhelal Sharma and Baboolal Sharma, checked the goods while they were being unloaded at M/s. Vishnu Vastra Bhandar as they suspected that full payment of octroi had not been made. During the checking, the Municipal Accountant, Shitalprasad (P.W. 1) was sent for. The Municipal servants found that the respondents had not paid octroi on goods worth Rupees 4.478.66 and, therefore, they drew up a Panchanama. Ex. P.I which was signed by the respondent No. 1, Purshottamdas.
3. On these facts the Municipal Council lodged a complaint against the respondents Under Section 155 of the Act for having defrauded the Municipality by evading payment of octroi-tax The respondents abjured their guilt and denied commission of the offence. The} disavowed all knowledge about the importation of the goods and pleaded that the business, M/s. Vishnu Vastra Bhandar, was owned by Mahavirprasad and Nandkishore. The respondent No. 1 however, admitted his signature on the Panchnama. The learned Additional District Magistrate has acquitted the respondents holding that since the prosecution has failed to prove that they were the owners of the shop styled as M/s Vishnu Vastra Bhandar, they could not he held liable for evasion of octroi duty
4. The short question for consideration is whether the respondents could be held liable for evasion of octroi tax. Section 155 of the Madhya Pradesh Municipal Act, 1961, reads as follows:
When any animal or goods passing into a Municipality are liable to the payment of octroi, then every person, who, with the intention to defraud the Council, causes or abets the introduction of, or himself introduces or attempts to introduce within the octroi limits of the said Municipality, any such animals or goods upon which payment of octroi due on such introduction has neither been made nor tendered, shall be punishable with fine which may extend to ten times the value of such octroi or Rs. 50/-whichever may be greater.
5. The octroi tax is a tax levied on the entry of goods. The charging provision in Section 127 (1) (v) of the Act authorised the Municipal Council to impose octroi on animals or goods brought within the limits of the Municipality for sale, consumption or use within those limits. The taxable event, therefore, is the bringing of the goods within the Municipal limits and that must be for purposes of sale, use or consumption within such limits. Though the liability for payment of such tax is on the person importing the goods, the penal consequences for evasion Under Section 155 are wider. Under that section, every person who. with intention to defraud the Council, causes or abets the introduction of, or himself introduces or attempts to introduce within the octroi limits of the said Municipality any goods upon which the payment of octroi due on such introduction has neither been made nor tendered, is liable. Such a stringent provision had to be made by the Legislature as the evasion of octroi by unscrupulous traders is rampant throughout the State.
6. On a construction of Section 155, it is clear that mens rea is a necessary ingredient of the offence. The introduction of goods without pre-payment of octroi must be with the intention to defraud the Council and, therefore, knowledge is a constituent part of the crime. The question for consideration is whether the prosecution has succeed- ed in establishing the necessary facts from which an inference can be drawn that the respondents had the requisite knowledge.
7. We are unable to agree with the learned Additional District Magistrate that proof of ownership is the crucial test. The provision contained in Section 155 casts a wide net to rope in different categories of persons. Thus the owner of the goods who imports with the requisite intent to defraud the Council, or persons abetting such introduction are equally liable. Within the latter clause may fall not only the seller of the goods who effects actual delivery, within the Municipal limits as a direct result of the sale but also the carrier of the goods who transports the same. Bu1 persons falling in both the clauses, mus1 have the requisite knowledge before they can be found guilty of the offence-.
8. The question for consideration, therefore, is whether the respondents had, with the intention to defraud the Council, caused or abetted the introduction of. or themselves introduced or attempted to introduce within the octroi limits of the Municipality, goods worth Rs. 4,478,66 upon which payment of octroi due on such introduction was neither made nor tendered. The prosecution has succeeded in bringing out the following two circumstances:
(1) The payment of deficit octroi tax in the name of the respondent No. 1 Purshottamdas under octroi receipt. Ex P. 2; and
(2) his presence at the time of unloading of the goods and the signature upon the Panchnama, Ex. P. 1. learned Counsel for the appellant frankly conceded that there are no incriminating circumstances established against the respondent No. 2 Ghanshyamdas. The mere fact that some of the Bijaks are in the name of M/s. Purshottamdas Ghanshyam Das does not, ipso facto, prove that the respondents were the importers of the goods. The defence plea was that that was the other name in which the business of M/s. Vishnu Vastra Bhandar was carried on by Mahavir Prasad and Nand Kishore, the other two members of the joint Hindu family. Apart from this, the respondent No. 2 Ghanshyamdas is a minor aged 17 years and unless there are strong circumstances against him, he cannot be held guilty.
9. Having given the matter out careful consideration, we are of the opinion that the above two circumstances may create considerable suspicion against the respondent No. 1 Purshottamdas but they, by themselves, are insufficient to bring home the guilt to him.
10. There can be no doubt that the importer, whoever he may be, intentionally defrauded the Municipal Council of . payment of octroi tax on goods worth Rs. 4,478.66. Nevertheless, the prosecution had the burden of establishing the necessary facts against the respondent No. 1 Purshottamdas.- Admittedly, there is nothing to show that he was the importer of the goods. As already stated, the mere circumstance that a part of the business was carried on in his name does not necessarily prove that he was carrying on that business. There is also nothing to show that he was in the truck which brought the goods within the Municipal limits or was the person who actually made the deficit payment. The payment of octroi tax under octroi receipt, Ex. P. 2 was by Gayasuddin, the Driver of M/s. Daily Transport Service. There is evidence that while the checking was going on at the shop, the Munim of M/s. Hukum-chand Transport Service approached Jandeosingh Nakedar (P.W. 5) at about 9.30 a. m. and tendered 3 Bijaks, Exs. P. 9 to P. 11 for payment of octroi. The Nakedar refused to accept payment without checking the goods covered by the Bijaks. The Munim then left the Bijaks at the Naka. After Shital Prasad (P.W. 1) returned from the raid at the shop, Jandeo Singh handed over the 3 Bijaks to him in addition to the 5 Bijaks, Exs. P. 4 to P. 8 which were already there. There is, however, nothing to show that the Munim of M/s. Hukum Chand Transport Service was sent with these 3 Bijaks by the respondent No. 1 Purshottamdas. We cannot exclude the possibility that Gayasuddin driver of M/s. Daily Transport Service might have deliberately withheld these 3 Bijaks at the time of payment of octroi-tax for his own wrongful gain. The circumstance that the respondent No. 1 Purshottamdas was present at the time of unloading does not necessarily raise an inference that he had abetted the fraudulent introduction of the goods There are a number of missing links in the prosecution case and the respondent No. 1 Purshottamdas must, therefore, get a benefit of doubt.
11. In the result, the appeal fails and is dismissed