Devkinandan vs Krishi Upaj Mandi Samiti and Another

Munishwar Nath Bhandari, J.—It is a case where petitioner was convicted and sentenced to undergo one month''s simple imprisonment and with fine of Rs. 1000/- for offence u/s 17 read with section 28(2) of the Rajasthan Agricultural Produce Markets Act, 1961. In addition to it, he was directed to pay an amount of Rs. 6578/-from 19.1.1997 with interest at the rate of 3% per month with late fee of Rs. 23,437.46 paise, by the trial court. Petitioner preferred an appeal against the said order, wherein, he has been granted benefit of probation by the appellate court, however, direction for payment of Mandi Fee of Rs. 6578/- and late fee @ 3% per month, thus order for payment of a sum of Rs. 23437.46 was passed against late fee. Learned counsel for petitioner submits that there is no provision for imposition of interest u/s 28(2) of the Act of 1961 thus impugned order passed by the appellate court deserves to be set aside so far as imposition of interest at the rate of 3% per month.

Learned counsel for respondent No. 1, on the other hand, submits that the appellate court has modified the order and extended benefit of probation to the petitioner but order for payment of Mandi Fee along with late fee has been maintained. The court below has not awarded interest on the amount of Mandi Fee thus argument of learned counsel for petitioner is not made out from the order in reference.

I have considered rival submissions of learned counsel for the parties.

The only argument raised before me is regarding imposition of late fee at the rate of 3% on Mandi fee. I find that interest has not been imposed on the Mandi fee, rather it is late fee at the rate of 3%. The question is as to whether late fee could have been granted by the appellate court in reference to section 28(2) of the Act of 1961. Section 28(2) is relevant thus quoted hereunder for ready reference-

Penalty for contravention of certain provisions.-

(1) ....

(2) Any person who intentionally evades the payment of any market fee payable u/s 17 shall, on conviction, be punished with simple imprisonment for a term which may extend to three months and with fine which may extend to one thousand rupees. The Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay to the market committee, the amount of market fees due and may, in his discretion, also recover summarily and pay to the market committee such amount, if any, as he may fix as the cost of prosecution.

Perusal of sub-section (2) of section 28 of the Act of 1961 reveals that the court can punish an accused with simple imprisonment which may extend to three months and with fine to the extent of Rs. 1000/-. The Magistrate is further given authority to order for recovery of the amount summarily and to pay to the market committee the amount of market fee due. Apart from the aforesaid, the Magistrate, in his discretion, direct to recover summarily and pay to the market committee such amount as he may fix as cost of prosecution.

The provision aforesaid does not provide imposition of late fee thus order imposing late fee of Rs. 23437.46 paise cannot be maintained. Accordingly, the aforesaid amount needs to be substituted by an order in consonance to section 28(2) of the Act of 1961. Accordingly, while maintaining the order for payment of Mandi fee of sum of Rs. 6578/-, petitioner is directed to pay a sum of Rs. 15,000/- towards cost of prosecution. The direction for payment of Rs. 23437.46 paise is set aside. The order aforesaid has been passed in consonance to section 28(2) of the Act of 1961. The payment aforesaid may be made within a period of two months from today. If amount is not paid, then prosecution would be at liberty to make an application before this court for passing necessary order to serve imprisonment of one month for default.