SUNIL KUMAR GARG, J. - (1.) THIS revision petition has been filed by the accused petitioner against the judgment dated 15.11.1996 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur in' appeal No. 37/96 by which he partly allowed the appeal filed by the accused petitioner in the manner that he maintained the conviction of the accused petitioner for the offence under Section F28(2) of the Rajasthan Agricultural Produce Markets Act, 1961 (hereinafter referred to as 'the Act of 1961') recorded by the learned Addl. Chief Judicial Magistrate No. 3, Jodhpur through his judgment dated 9.8.1994 in Criminal Case No. 98/91, but instead of sentencing him, he granted the benefit of probation to the accused petitioner and set aside the order of sentence dated 9.8.1994 passed by the learned Addl. Chief Judicial Magistrate No. 3, Jodhpur sentencing accused petitioner to three months S.I. and a fine of Rs. 1000/ - in default of payment of fine to further, under go one month S.I.
(2.) IT arises in the following circumstances: PW -2 B.C. Mathur filed a complaint in the Court of Additional Chief Judicial Magistrate No. 3, Jodhpur on 12.3.1991 in capacity as Secretary, Krishi Upaj Mandi Samiti, Jodhpur stating inter -alia that on 12.1.1991 he inspected the firm M/s. Kirit Traders, Jodhpur and during inspection, it was found that M/s. Kirti Traders violated provisions of the Act of 1961 and the Rajasthan Agricultural Produce Market Rules, 1963 (hereinafter referred to as 'the Rules of 1963'). It was further stated in the complaint that Bill Book No. 401 to 500 of the said firm, which started from 2.7.1990, was checked and at that time, proprietor of the firm, namely, accused petitioner Ashwini Kumar informed that the business of Ghee was started from July, 1990 and on checking of the Bill Book, it was bound that Ghee was sold by them to purchasers, but Mandi fee was not charged and there was a seal on the Bill that the Mandi fee would be paid by the Bill that the Mandi fee would be paid by the purchasers. But, according to the complainant, that fee was to be paid by the firm, of which accused petitioner was proprietor and, therefore, fee to the tune of Rs. 32,750/ - was found due against the firm and by not paying that amount of fee, the accused petitioner and his firm have contravened Section 17 punishable under Section 28(2) of the Act of 1961. On this complaint, contents of the offence under Section 28(2) of the Act of 1961 were read over and explained to the accused petitioner by the learned Addl. Chief Judicial Magistrate No. 3, Jodhpur on 10.3.1992. The accused petitioner denied the contents of the offence and claimed trial. During trial, two witnesses were produced on behalf of the prosecution. Thereafter statement of the accused petitioner under Section 313 Cr.P.C. was recorded. The accused petitioner himself appeared in the witness box as DW -1 and some documents were also got exhibited by the accused petitioner. After conclusion of trial, the learned Addl. Chief Judicial Magistrate No. 3, Jodhpur through his judgment and order dated 9.8.1994 convicted the accused petitioner for the offence under Section 28(2) of the Act of 1961 and sentenced in the manner as indicated above holding inter -alia: - (1) That from the bill book, it is apparent that Ghee was sold to so many buyers by the accused petitioner but the Mandi fee was not charged and, therefore, the said recovery was found justified. (2) That the prosecution has proved its case beyond all reasonable doubts against the accused petitioner for the offence under Section 28(2) of the Act of 1961. Aggrieved from the said judgment and order dated 9.8.1994 passed by the learned Addl. Chief Judicial Magistrate No. 3, Jodhpur the accused petitioner preferred an appeal before the learned Sessions Judge, Jodhpur and the same was transferred to the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Jodhpur who vide judgment dated 15.11.1996 partly allowed the appeal in the manner that he maintained the conviction of the accused petitioner for the offence under Section 28(2) of the Act of 1961 but instead of sentencing him for the said offence, he granted him the benefit of probation, while setting aside the order of sentence dated 9.8.1994 passed by the learned Addl. Chief Judicial Magistrate No. 3, Jodhpur. The learned Special Judge further ordered that accused petitioner shall deposit Mandi fee of Rs. 32,750/ - in the concerned Krishi Upaj Mandi within a period of one month. Aggrieved from the said judgment dated 15.11.1996 passed by the learned Special Judge, SC/ST (Prevention of Atrocities), Jodhpur, this revision petition has been filed by the accused petitioner. In this revision petition, the learned Counsel appearing for the accused petitioner submitted that according to Section 17 of the Act of 1961, the market committee shall collect fees from the licensees in the prescribed manner on agricultural produce brought or sold by them in the market area at such rate as may be specified by the State Government. He has further submitted that it were the purchasers whose liability is to pay the market fee and not of the seller. Therefore, according to him, the demand of market fee raised against the accused petitioner was not correct and, thus, the conviction as well as the order to realise the fee were illegal. The learned Counsel for the accused petitioner further submitted that the recovery of cess and fees can be made only as per Rule 59 of the Rules of 1963 frame under the principal Act of 1961 and it is provided under Sub -Rule (2) of Rule 59 of the Rules of 1963 that the market fee shall be paid by the purchaser. He relied on the judgment of the Hon'ble Supreme Court rendered in Krishi Upaj Mandi Samiti, Haldwani v. Indian Wood Products Ltd. and Anr. 1996 (2) Supreme 716 and which has been followed by this Court in Moolchand and Anr. v. State of Rajasthan (S.B. Cr. Revision Petition No. 387/1995 decided on 13.1.1998).
(3.) ON the other hand, the learned Public Prosecutor submitted that the demand was rightly raised.;