The High Court (HC) of Calcutta dismissed the petition as no evidence to prove the voluntary participation of assessee company to have advertised its product without permission.
The Kolkata Municipal Corporation, the petitioner challenged the order dated passed by the Additional Sessions Judge, allowing the Criminal Appeal by setting aside the order of Municipal and Metropolitan Magistrate, Calcutta under Section 202(1)/204 of the Calcutta Municipal Act was granted on 25.11.2004 which was in favour of Larsen & Toubro Ltd.
A complaint was lodged before the Court of Learned Municipal & Metropolitan Magistrate on 13.09.1996 against the respondent company for advertising wall painting to the public view over the northern wall of 112 B, Cossipore Road, Without obtaining permission under Section 202(1) of the Kolkata Municipal Corporation Act, 1980 from the Kolkata Municipal Corporation and for non-payment of the advertisement tax under Section 204(1) of the said Act.
Municipal & Metropolitan Magistrate Court held that the accused company was responsible for the alleged advertisement displayed by its bona fide agent viz. M/s Joy Enterprises for public views increasing the business interest of the accused company, though the alleged advertisement was displayed by its agent and accordingly was held guilty for not selecting prior permissions from the Kolkata Municipal Corporation.
It was submitted by the respondent company that the conviction could not be sustained under Section 202(1) of the Kolkata Municipal Corporation Act since the same is not penal in nature and no presumption under Section 207 of the said Act can be taken which is attributable to Section 202(4) read with Section 202(5) of the said Act.
It was further contended that the charge under Section 204 read with Section 209 of the said Act cannot be sustained. The adverse presumption cannot be drawn on the ground of voluntary participation of the respondent company in a settlement proceeding without prejudice to its rights and contentions.
Justice Ananya Bandyopadhyay observed that the appellant corporation failed to establish the respondent company to have advertised its product directly or to have directed M/s. Joy Enterprise to advertise its product on its behalf.
It was held that the specific role of the respondent company is indistinct and incomprehensible as to whether it has been directly instrumental in advertising its product or legally entrusted any other agency to advertise its product on its behalf and cannot be held responsible under Section 202(1)/204 of the Calcutta Municipal Act. The appeal was dismissed.
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