PUBLIC PROSECUTOR Vs. KUNCHAM VENKATESWARULU
LAWS(MAD)-1952-4-9
HIGH COURT OF MADRAS
Decided on April 01,1952

PUBLIC PROSECUTOR Appellant
VERSUS
KUNCHAM VENKATESWARULU Respondents

JUDGEMENT

- (1.) THIS is an appeal by the State against the acquittal of the respondent by the Additional First Class Magistrate of Kakinada. The respondent was charged for an offence under Section 13 read with Section 15 (h)of the Madras General Sales Tax Act.
(2.) THE accused is having a rice shop and a visit was made by the Assistant Commercial Tax Officer on 17th May, 1949. THEre he found one badam Anjaneyalu sitting in the shop and he saw something underneath the gunny bag on which the said Anjaneyalu was sitting. When he was asked about it, anjaneyalu picked up the book and tried to run away with it. But he was soon caught hold of and one B. Venkatachalam took the book from Anjaneyalu and gave it to the witness. This is Ex. P. 3. It appears to be an account book, and according to the evidence, it is in the handwriting of D. W. 1 the clerk of the accused. This was compared with the regular accounts maintained by the accused and submitted to the Commercial Tax Officer for purpose of assessment. All the entries found in the regular account books were found in this and there were some more entries in this book Ex. P. 3 for which there was no corresponding entry in the original accounts which are filed as Exs. P. 6 and P. 13. P. W. 2 who is the Commercial Tax Officer speaks to the fact that the person who wrote exs. P. 6 and P. 13, the accounts submitted to the Commercial Tax Office, is the person who has written Ex. P. 3. This evidence has not been challenged in cross-examination. But it is only in defence that the clerk comes forward and says that Ex. P. 3 is not in his handwriting. His evidence is not of such value inasmuch as evidence is interested and the evidence given by P. W. 2 was not challenged in cross-examination. I am satisfied on the evidence that Ex. P. 3 is another account maintained by the accused apart from Exs. P. 6 and P. 13 which he has submitted to the authorities for purposes of assessment. THE Magistrate below acquitted the accused on the ground that the entries in Ex. P. 3 which are not to be found in Exs. P. 6 and P. 13 have not been proved because none of the purchasers or sellers relating to the entries have been examined. He also stated that the account book Ex. P. 3 was seized from the possession of anjaneyalu and not from the possession of the accused or his clerk. He therefore acquitted the accused. If the case is to be decided merely on this point I would certainly have reversed the decision of the lower Court as in my opinion it has been satisfactory proved that the books of account not only belong to the accused but that they were in the possession of the accused. But a certain point which has been overlooked in the conduct of the prosecution in the lower Court has been brought to my notice by the learned advocate Mr. Rama rao, who appears for the accused. THE prosecution, as already stated, is for an offence under Section 13 read with Section 15 (h ). Section 13 casts an obligation on every registered dealer and every person licensed under the Act to keep and maintain a true and correct account. A "registered dealer" has been defined as a dealer registered under the Act. A "dealer" has been defined as any person who carries on the business of buying or selling goods. This complaint can therefore be laid against the accused only if he is a registered dealer within the within the meaning of the term in clause (g-1) of Section 2 of the General Sales Tax Act. It is pointed out by Mr. Rama Rao that the complaint laid in this case refers to the accused as a dealer. In two places he is referred to only as a dealer. In the evidence also of P. W. 1, he simply states that the accused is a dealer under the Madras general Sales Tax Act. If an expression such as a "dealer" is used by the officer concerned, he must be deemed to have used it in the sense in which it is used in the Act. THE Act undoubtedly makes a distinction between a dealer and a registered dealer. Under Section 8a which is an amended section, every dealer whose turnover in any case is not less than Rs. 7, 500 shall and any other dealer may get himself registered under the Act. An obligation is therefore cast upon every dealer whose turnover is more than Rs. 7, 500 to get himself registered under the Act. It is only then that he can collect any amount by way of sales tax under this Act and a dealer who has not registered himself shall not collect any such amount. Under Section 13 it is a registered dealer who should keep and maintain true accounts. It is therefore clear from the reading of the sections that for an offence under Section 13 the prosecution must prove that the accused is a registered dealer within the meaning of the Act. Such proof in my opinion is lacking in this case. It is pointed out by the learned Public Prosecutor that this accused is an assessee and that an assessee is one whose turnover is Rs. 10, 000 or more and therefore he must be deemed to be a registered dealer. It is true that under Section 9 (1)every dealers whose turnover is ten thousand or more in a year shall submit such return or returns relating to his turnover in the manner prescribed by the act and then if his accounts are accepted he is assessed. Although an obligation is cast under Section 8a on every dealer whose turnover is more than rs. 7, 500 to get himself registered, still the expression that is used in section 9 is not a "registered dealer" but a "dealer" which will be construed in the sense in which it is used in Section 2 (b ). It appears to me that when the amendment was introduced, the legislature overlooked this. Every assessee has to be a registered dealer and the expression in Section 9 should be a registered dealer and not dealer. If an assessee has not registered himself he may be punishable for that, but not for not maintaining correct accounts, which is an obligation cast on registered dealers only. On the facts of the case, as stated already, no proof has been let in that this accused is a registered dealer within the meaning of the term of Section 2 (g-1) of the Act. In the absence of such proof he cannot be prosecuted under Section 13 read with section 15 (h) of the Act. I must say that the credit of taking this point entirely goes to Mr. Rama Rao who appears for the accused. In the result the appeal is dismissed. Appeal dismissed.;


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