A.C. Saha and Co. vs The State and Another

Debabrata Mookerjee, J.—This is a petition for revision of an order of the Municipal Magistrate, Calcutta, dated the 10th of April, 1956, convicting the firm A.C. Saha described as A. C. Saha and Co. u/s 218 read with section 541 of the Calcutta Municipal Act, 1951 and sentencing it to pay a fine of Rs. 200/-. The case for the prosection is that the firm which carries on the business of advertising agency at 48C, Durga Charan Dr. Road had been assessed by the Corporation of Calcutta to pay a license fee of Rs. 72|- for the year 1952-53 and had failed to pay the sum in spite of repeated demands. Evidence was led by the Corporation to show that the firm carried on the business without payment of license fee for the year in question and several letters were produced and proved at the trial which purported to show that the firm did carry on the business of advertising agency.

The petitioner''s case was that it did not carry on the business of advertising agency, but it was merely an order supplier and as such liable to he assessed to Rs. 6|- only under item No. 140 of schedule IV of the Act. The learned Magistrate negatived the defence plea and held that the petitioner was a firm carrying on the business of advertising agency and as such liable to pay a fee of Rs. 72/-under item No. 68 of schedule IV of the Act, The petitioner thereafter applied to this Court and obtained the present Rule.

On behalf of the petitioner several, points have been made. It is said that there was a bona fide dispute as respects the liability to pay the enhanced license fee of Rs. 72]- and that a representation had been made under the provisions of the Act which was pending before the Corporation when the presecution was started; that although the petitioner had been prosecuted for non-payment of increased licensed fee for two previous years the firm was acquitted and yet the present prosecution was started on similar facts; that the circumstances proved in the case do net establish that the petitioner carried on the business of advertising agency properly so-called and could not, therefore, be assessed to pay a license fee of Rs. 72|-under item 68 of Schedule IV; that the evidence in the proceedings was heard by one Magistrate and the petitioner firm was convicted by another and lastly, the present proceedings were barred by reason of the provisions of sec,582 of the Calcutta Municipal Act, 1951.

The last ground relating to limitation of time for prosecution appears to be of fundamental importance. If the petition succeeds on this ground it would not be necessary to express any opinion on the others.

Sec. 218 which occurs in Chapter XIII of the Act requires every person who exercises or carries on in Calcutta any of the professions, trades or callings indicated in schedule IV to take out annually, a license before the first day of July each year. Item 68 of schedule IV prescribes a license fee of Rs, 72|- for an advertising agent. Sec. 541 provides that person who exercises on or after the first day of July in any year, any profession, trade or calling referred to in Chapter XIII. without having the prescribed license, shall be liable to be punished in a certain manner indicated in the section. Sec. 5(73) of the Act defines ''year'' as meaning a financial year.

It is thus clear that there is a statutory obligation to take out a license before the first day of July every year and exercise of a trade or calling without payment of the requisite license on or after the first day of July gives rise to the liability to prosecution. But the Calcutta Municipal Act prescribes by its sec. 582 a limitation of time for prosecution. That section is in these words:

"582(1), No person shall be liable to punishment for any offence against this Act or against any rule or by-law made thereunder, unless complaint of such offence is made before a Magistrate within three months, or, if the offence be against the provisions of sec.177, within six months, next after-(a) the date of the commission of such offence, or

(b) the date on which the commission or existence of such offence was first brought to the notice of the Corporation or the Commissioner.

(2) Failure to take out a license under this Act shall be deemed, for the purpose of sub-section (1), to be a continuing offence until the expiration of the period for which the license is required to be taken out"

The liability of a person to prosecution for non-payment of license fee arises on the first day of July and but for the provision contained in subsection (2) of section 582, prosecution for failure to pay the license fee would "have to be commenced within three months of the date of the commission of the offence, namely, the first day of July. Sub-section (2) has, therefore, the effect of enlarging time for prosecution by. making the failure to pay the fee a continuing offence until the expiration of the period for which the license is required to be taken out.

The result, therefore, is that for a given year for which the license fee remains unpaid, time would begin to run on the expiry of the last day of the financial year. Thus, although the liability to prosecution for nonpayment of license fee arises on the first day of July in any year, it is open to the prosecuting authorities to postpone action against the defaulter and the prosecution will be well within time if it is commenced within three months of the expiration of the period for which license was required to be taken out.

Turning to the facts of the present case, it appears that the petitioner was prosecuted for non-payment of the license fee for the year 1953-53. Although the petitioner''s liability to prosecution for non-payment arose on the first of July 1952, his prosecution could be deferred by reason of the provisions of sub-section (2) of section 582 and the Corporation could validly commence prosecution at any time within three months after the expiration of the 31st of March 1953. in the present case, it appears, however, that the prosecution was not started before the first of July 1958. that. is to say, it was commenced beyond the period of three months after the expiration of the period for which license was required to be taken one. The rule of limitation prescribed in section582 has, in my view, to be strictly followed and the prosecution in the present case must be held to he barred by time.

In view of what 1 have held on the ground of limitation, the petition succeeds and it is not necessary to express any opinion on the merits of the other grounds raised on behalf of the petitioner. In the result, the Rule is made absolute and the conviction and sentence are set aside.