(1.) BY way of the present appeal under Section 378 of the Code of Criminal Procedure, 1973 ('the Code' for short), the appellant has questioned the legality and validity of the impugned judgement and order of acquittal dated 30th December, 1995 passed by the learned Judicial Magistrate (First Class), Mehsana in Criminal Case No.969 of 1992.
(2.) THE facts of the case briefly summarised are that the complainant -Pravinchandra Vadilal is the inspector of the Agricultural Produce Market Committee, Mehsana which is engaged in the trading business of agricultural produces. The complainant as an Inspector of the Agricultural Produce Market Committee, Mehsana has lodged the complaint against respondent Nos.1 to 4 with regard to violation of rules, regulations and by -laws of the Market Committee. The Agricultural Produce Market Committee in exercise of the powers under the Gujarat Agricultural Produce Markets Act, 1963 ('the Act' for short) has framed the regulations for regulating business of sale of the agricultural produces and it regulates the business or trading in the agricultural produce market committee. The trader and the commission agent are required to take license for the purpose of doing business in the market yard and they are required to fulfill the rules and regulations of the Agricultural Produce Market Committee and also have to comply with the general conditions of the licence granted to the traders. It is alleged that the accused persons, who are doing the business in the market yard, have charged Rs.2/ - and Rs.3.50 excessively in their bill in violation f the rules, regulations and the bye -laws. It is, therefore, alleged that Regulation 42 has been violated and the offence under Regulation 42 has been committed by the accused persons. Therefore, Resolution No.7 dated 24th October, 1983 was passed authorising the complainant to initiate necessary proceedings, on the basis of which the complaint has been lodged for the alleged offences before the learned Chief Judicial Magistrate, Mehsana, who passed the order to register the offence against the accused persons by the order dated 29th February, 1992. The learned Magistrate recorded the plea of the accused persons, who claimed to be tried for the offence. Thereafter, the learned Magistrate proceeded with the trial and on conclusion of the trial, passed the impugned judgement and order recording acquittal of the accused persons, which has been assailed by the present appellant in this appeal on the grounds set out in the memo of the appeal.
(3.) MS . Jirga Jhaveri, learned Advocate for the appellant, submitted that the learned Court below has erred in not appreciating that the complainant was authorised by the Agricultural Produce Market Committee to issue notice for breach of the provisions of the Act and the Rules. She also submitted that the learned Magistrate has erred in appreciating that the books of accounts have not been produced. Further, she submitted that Rule 59(3) of the Agricultural Produce Market Committee Rules, 1965 ('the Rules' for short) has been violated and it has not been appreciated. For that purpose, she referred to Rule 59(3) of the Rules, which reads as under:
'Any licensee who commits a breach of provisions of sub -rule (1) shall be deemed to have violated the conditions of the license.'
She submitted that the traders and the commission agents are required to keep the books of accounts and they are required to be submitted for examination in the Office of the Agricultural Produce Market Committee as and when required. She, therefore, submitted that as it has not been done in the present case, not only Rule 59(3) has been violated, but, the terms and conditions of the license have also been violated, which the learned Court below has failed to appreciate. She also submitted that there is a clear violation of Section 8 of the Act, which provides for the requirement of the license for operation in the market. Section 8 provides that no person shall operate in the market area or any part thereof except under and in accordance with the conditions of a license granted under this Act. She, therefore, submitted that the accused herein have collected excessive charges, which were not authorised, and as it was found by the complainant during inspection, the complaint came to be filed, on the basis of which after recording the evidence, the learned Magistrate has recorded the order of acquittal, which is erroneous. It was submitted that the learned Court below has failed to appreciate the material and evidence on record with regard to illegal collection of the so called hamal charges and other pala (to spread the agricultural produce for inspection by the buyer) and again fill it back in the grain bags.
Mr. Y. S. Lakhani, learned Advocate for the accused, referred to the judgement and also material and evidence on record and submitted that there is no violation of any rules, regulations or terms and conditions of the license. It was submitted that the complainant himself has admitted in the cross examination that he has not recorded the statements of hamals or traders or farmers from whom the additional charges is said to have been collected by the accused persons. He, submitted that though it is alleged that the amount has been illegally deducted by way of charges in violation of the rules and regulations, there is no evidence collected or statement recorded by the prosecution. He also referred to the deposition of the witness examined on behalf of the accused persons, which include the traders/farmers, who used to sell the agricultural produce to the accused persons, and referring to this evidence, he emphasised that it has been specifically stated that the charges were in accordance with the norms and rules and it has also been paid to the hamals for the work done by them. Thus, all the persons from whom the amount has been collected have admitted that these charges were paid to the hamals for doing their job of bringing the agricultural produce from the market yard to the place/area in the Market Committee where the buyer would examine. 'Pala' charges are the charges paid to the hamals for spreading the agricultural produce for the purpose of inspection by the buyer and again refilling it in the grain bags, for which the additional charges are to be paid by way of labour charges. Therefore, there is no breach of any rules and regulations or conditions of the license, much less no offence can be said to have been committed. He submitted that the judgement and order of the learned Court below recording acquittal is just and proper and it does not call for any interference. He also submitted that the complainant has failed to establish any charges for the offence under the Act and the Rules, as alleged, and therefore, this Court may not interfere with the impugned judgement and order. He also submitted that it is well settled that even if there are two views, normally, the Court should not interfere with the order of the acquittal unless it is perverse.;