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Secretary, Malabar Market Committee Vs. Baputty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1962CriLJ546
AppellantSecretary, Malabar Market Committee
RespondentBaputty
Cases ReferredRamanujachariar v. Kailasam Ayyar A.I.R.
Excerpt:
.....ground on which the learned magistrate had based his acquittal is that the prosecution has failed to prove that the secretary had been duly authorised in writing by the market committee to launch the prosecution.p. govinda menon, j.1. the secretary of the malabar market committee had filed a complaint c.c. no. 8 of i960 before the munsiff-magistrate of ponnani against the respondent under section 19(2) of the madras commercial crops markets act. 1933 read with bye-law no. 25 (6) and (18) of the bye-laws framed by the committee. the accused in the case is a licensee carrying on his trade in arecanuts within a radius of 5 miles of the regulated market at vattamkulam. under bye-law 25(6), the licensee shall maintain regular accounts of all his transactions in commercial crops in prescribed form and shall send to the secretary such reports and returns as may from time to time be required by him.2. that pw. 1 the secretary of the market committee had issued notices calling for the returns, that the.....
Judgment:

P. Govinda Menon, J.

1. The Secretary of the Malabar Market Committee had filed a complaint C.C. No. 8 of I960 before the Munsiff-Magistrate of Ponnani against the respondent Under Section 19(2) of the Madras Commercial Crops Markets Act. 1933 read with Bye-law No. 25 (6) and (18) of the bye-laws framed by the Committee. The accused in the case is a licensee carrying on his trade in arecanuts within a radius of 5 miles of the regulated market at vattamkulam. Under Bye-law 25(6), the licensee shall maintain regular accounts of all his transactions in commercial crops in prescribed form and shall send to the Secretary such reports and returns as may from time to time be required by him.

2. That Pw. 1 the Secretary of the Market Committee had issued notices calling for the returns, that the notices, were received and acknowledged and that they were not submitted is admitted. The case of the accused was that on a prior occasion a criminal complaint had been filed against him in C.C. No. 15 of 1959 for failure to send the returns, that the case was withdrawn and he was acquitted and therefore that acquittal will be a bar for a trial for the same offence. The learned Magistrate accepted the contention and acquitted the accused. This appeal has been filed challenging the correctness of the order of acquittal.

3. If Section 403, Cr.PC is applicable the respondent could not have been put on his trial at all in this case. Section 403 does not say that a person' who has been the and convicted or acquitted shall be acquitted if an attempt is made to prosecute him again for the same offence. It gays that he shall not be tried at all. That however is a1 .minor matter.

4. The important question for decision is whether the previous acquittal in C.C. No. 15 of 1959 would be a bar to the prosecution of the accused in this case. The learned Magistrate has proceeded on the basis that the offence on which he was tried in the first case was for (failure to send the returns for 1958 and that it is for the, same offence that he is again charged in the instant case. That is not so. Under Bye-law No. 25 (6) the Secretary Is empowered to call for the returns at any time he thinks necessary and failure to obey the notice is an offence1 punishable under Bye-law 25(18).

5. C.C. No. 15 of 1959 referred to by the learned Magistrate was based on a requisition made by the Supervisor of the Market Committee for the production of the1 returns. Under the Bye law the Secretary alone is competent to call for the returns and on this legal defect the case was withdrawn. This prosecution is not in respect of that offence, but for totally a different offence, viz., failure to obey the notice issued under Ext. P-12 by Pw. 1. me 'offences are not the same and Section 403, Cr.PC Has not application-.. Section 403 says that a person who was once tried for an offence and convicted or acquitted shall not be liable to be tried again for the same offence, The offence in both the cases consists of disobeying a particular order. The order disobeyed in the present case was not the order that the accused disobeyed which was made the subject of the charge in C.C. No. 15 of 1959. So the offence was not the same and he was not therefore acquitted I of the same offence.

6. A similar question whether the acquittal in a previous case of a failure to obey the notice issued Under Section 159 (1) of the Madras Local Boards Act. would be a bar to the prosecution of the accused for failure to obey the 2nd notice had come up for consideration in a Division Bench of the Madras High Court in Public Prosecutor v. Abernathy Chetty A.I.R. 1938 Mad 847 and it was held -.

The offence is failure to comply with any direction lawfully given or any requisition lawfully made; it is not strictly speaking correct to say that the offence consists in failure to remove the encroachment. Nobody commits an offence under the Local Boards Act by mere failure to remove an encroachment. He only commits an offence Under Section 207(1) when he fails to comply with a direction lawfully given. As Waller, J. observed in Ramachandra Chetty v. Chairman, Municipal Council, Salem ILR 49 Mad 880 : A.I.R. 1926 Mad 763:

If a particular direction or requisition is not enforced, there is nothing in the Act that prevents the President from issuing another, and if a prosecution is then launched, it is for failure to comply with the second requisition and not for failure to comply with the first. ...

The disobedience of the later notice is not the same offence as the disobedience of the earlier notice, but a different and distinct offence. If the encroachment is really an encroachment the encroacher is liable any time to receive a notice to remove it, and an acquittal or conviction on a charge of disobedience of any one of such notices cannot be a bar to his being tried for disobedience of any other.

7. The same view was taken in an earlier Division Bench decision in A.I.R. 1926 Mad 763 where the learned Judge dealing with precisely similar provisions of the District Municipalities Act pointed out that the offence consists in the failure to obey the requisition issued by the competent authority. Their Lordships dissented from the decision of Srinlvasa Aiyangar, J. in Ramanujachariar v. Kailasam Ayyar A.I.R. 1925 Mad 1067 which took a contrary view. The learned Magistrate has therefore erred in thinking that Section 403 Cr.PC will apply.

8. Another ground on which the learned Magistrate had based his acquittal is that the prosecution has failed to prove that the Secretary had been duly authorised in writing by the Market Committee to launch the prosecution. Pw. 1 the Secretary has produced the original minutes book of the Committee. That book is marked as Ex. P6 and the relevant resolution is marked as Ex. P6(a). The objection of the defence was that it was not proved by a competent person, Pw. 1 not being the Secretary at the time the resolution was passed. According to the defence the resolution ought to be formally proved by the scribe or one of the persons who is a signatory to the resolution. The learned Magistrate accepted the contention and held that the authority to file the complaint has not been properly proved. This vague is erroneous. Section 74 of the Evidence Act says that the following documents are public documents.

(1) Documents forming the acts or records of the acts.

(i) xx xx xx xx(ii) of the official bodies and tribunals.(iii) xx xx xx xx xx

The Market Committee has been constituted under the provisions of Section 4A of the Act which says that the State Government shall establish a Market Committee for every notified area. The relevant notifications have been produced and marked in the case. So the Malabar Market Committee is an official body within the definition of Section 74 of the Evidence Act and the documents forming the acts or records of the acts of such an official body will be public documents.

9. Section 65 of the Evidence Act says that secondary evidence may be given when the' original is a public document within the meaning of Section 74 and therefore even a certified copy of the relevant resolution contained in the minutes book would have been admissible. Here the original itself had been produced. Under Section 81 of the Evidence Act the Court shall presume the genuineness of every document purporting to be a document directed by any law to be kept by any person, if such-document is kept substantially in the form required by law and is produced from proper custody. Under R. IS of the Madras Commercial Crops Markets Rules 1948, a minute book shall be kept by every Market Committee nor permanent record and a record of the proceeding at every meeting of the Market Committee shall be entered therein by or under the supervision of the Chairman, Vice Chair' man or other presiding member, and shall be signed by him. According to By-law 16, the minutes book shall be in the personal custody of the Secretary. Therefore Ex. P. 6 proves itself and there Is no need for any further proof. The acquittal is therefore unsustainable in law and is set aside. On the evidence adduced in the case, 1 find the accused guilty of the offence charged against him and sentence him to pay a fine of Rs. 25/- or in default to suffer simple imprisonment for one week. Time for payment one month from this date.


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