The facts which are not in dispute in this case are that the 1st respondent herein was the former Sarpanch of Muthyalapudu Gram Panchayat. In the Panchayat elections held on 27-5-1982 the complainant-appellant and the accused 1st respondent herein contested for the post of Sarpanch of Muthyalapudu village Gram Panchayat and in the election the complainant-appellant was declared elected as Sarpanch of the said Gram Panchayat defeating the accused, the 1st respondent herein. By virtue of his election to the office of the Panchayat, the accused was duty bound to hand over all the registers, records, books and furniture pertaining to the Panchayat to the successor-in-office. Hence, after issuing a registered notice, the complainant preferred a petition against the accused under S. 221(3) of A.P. Gram Panchayats Act. Originally that case was taken on file as S.T.C. 506 of 1981 on the file of the Judicial Magistrate of First Class, Gudur. But later it was transferred to the Court of IV Addl. Judicial Magistrate of First Class, Nellore. That case ended in conviction of the first respondent herein under S. 221(3)(a) of the A.P. Gram Panchayat Act for not handling over the records, registers and other items of furniture and sentenced under S. 255(2) Cr.P.C. to pay a fine of Rs. 50/- and in default to undergo Simple Imprisonment for 15 days.

2. Thereafter, the appellant herein laid S.T.C. No. 569 of 1982 in the Court of the Judicial Magistrate of First Class, Gudur under S. 221(3) of A.P. Gram Panchayat Act with the allegation that in spite of conviction by the Court of the IV Addl. Magistrate of First Class, Nellore in S.T.C. No. 10 of 1982 on 30-6-1982, the first respondent herein has filed to hand over the records till now. Hence, the fresh complaint.

3. The first respondent herein pleaded not guilty. No oral or documentary evidence was adduced in this case and only legal arguments were advanced by both the parties.

4. The learned Magistrate considered the questions firstly whether the complaint was within time and the Court has got jurisdiction to entertain the complaint and secondly whether the accused is entitled to the benefits of S. 300 Cr.P.C. The Learned Magistrate answered both the questions in favour of the accused and held that the complaint was barred by limitation and that it would be hit by the provisions of S. 300 Cr.P.C. and accordingly acquitted the accused under S. 255(1) Cr.P.C.

5. In this appeal Sri M. V. Ramana Reddy, the learned counsel for the appellant vehemently argued and contended that the lower Magistrate has failed to take into consideration the fact that the nature of the offence committed by the first respondent herein is continuing offence and as such the question of the complaint being barred by limitation did not rise. His further contention was that when the offence alleged is a continuing offence, the question of the complaint being hit by S. 300 Cr.P.C. did not arise.

6. Before I deal with these two contentions, I find that the impugned order passed by the lower Magistrate acquitting the first respondent herein is justifiable for other reasons though the findings recorded by the lower Magistrate on the two questions raised by him are not sustainable in law.

7. The appellant herein has not led any evidence in support of his case and established that the first respondent herein even after his conviction by the IV Addl. Judicial Magistrate of First Class, Nellore in S.T.C. No. 10 of 1982 on 30-6-1982 has not delivered the record books, registers and furniture of the Gram Panchayat by the date of the complaint. The appellant has not even chosen to file a certified copy of the previous judgment rendered in S.T.C. No. 10/1982. The allegation made by the appellant in the fresh complaint under S. 221(3) of A.P. Gram Panchayat Act has to be established as a question of fact. Merely because there is an earlier order dt. 30-6-1982 passed by the learned Magistrate against the first respondent herein holding him guilty of the offence under S. 221(3) of A.P. Gram Panchayat Act, it cannot be said that the first respondent herein did not deliver the record books, registers and the furniture of the Gram Panchayat even by the date of the fresh complaint. A certified copy of the previous conviction has necessarily to be filed in the fresh case and it should be marked as a document to established that there was a previous conviction. Further, oral evidence has to be adduced at least by examining the complainant to establish that the first respondent herein has not delivered the record books, registers and furniture of the Gram Panchayat by the date of the fresh complaint. It is well-settled that the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecutions duty to somehow hook and crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however, for the accused even at the initial stage to prove something which has to be elicited by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. (Vide Dr. S. P. Goswami v. State of Madhya Pradesh, AIR 1972 SC 716 [LQ/SC/1972/3] : (1972 Cri LJ 511).

8. The onus in a criminal trial is upon the prosecution to prove the guilt of the accused. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution would be entitled to get the benefit of that. (Vide State of Punjab v. Bhajan Singh, (1974) 2 SCWR 563 : (1975 Cri LJ 282).

9. In State of U.P. v. Ram Swarup, AIR 1974 SC 1570 [LQ/SC/1974/180] : (1974 Cri LJ 1035) it was held that :

"the burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralised not shifted because the accused pleads the right of private defence. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and not until it does so can the question arise whether the accused has acted in self-defence. This position, though often overlooked, would be easy to understand if it is appreciated that the Civil Law rule of pleadings does not govern the rights of an accused in a criminal trial. Unlike in a civil case, it is open to a Criminal Court to find in favour of an accused on a plea not taken up by him and by so doing the Court does not invite the charge that it has made out a new case for the accused. The accused may not plead that he acted in self-defence and yet the Court may find from the evidence of the witnesses examined by the prosecution and the circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private defence or that the offence is mitigated because the right of private defence has been exceeded."

10. In the present case, the gap or lacuna is in the case of the prosecution on account of the complainant not examining himself and also not filing certified copy of the judgment of previous conviction of the first respondent. When the accused pleaded not guilty to the charge, it was for the appellant to establish as question of fact that the first respondent herein even after the order of conviction in the previous case has failed to deliver the records, books and furniture of the Gram Panchayat to the complainant and as such he was guilty of a continuing offence under S. 221(3) of the A.P. Gram Panchayat Act.

11. As regards the contention of the learned counsel for the appellant that the learned Magistrate erred in law in holding that the fresh complaint was barred by limitation and that it was also hit by the provisions of S. 300, Cr.P.C., I find, that there is substance in the contentions raised by the learned counsel for the appellant.

12. Section 221(3)(b) of the A.P. Gram Panchayat Act reads thus :-

"Any person who is convicted under Cl. (a) fails to hand over any documents of, or any moneys or other properties vested in or belonging to the Gram Panchayat which are in or have come into his possession or control to his successor in office shall be punishable for each day after conviction during which he continues to persist in his offence, with a fine not exceeding twenty rupees."

13. Section 140 of the A.P. Gram Panchayat Act reads thus :-

"Persons empowered to prosecute : Save as otherwise expressly provided in this Act, no person shall be tried for any offence against this Act or any Rule or Bye Law made thereunder unless complaint is made within twelve months of the commission of the offence, by the police, the executive authority or person expressly authorised in this behalf by the Gram Panchayat or executive authority;

Provided that failure to take out a licence obtain permission or secure registration under this Act shall for the purposes of this section, be deemed a continuing offence until the expiration of the period, if any, for which the licence, permission or registration is required and if no period is specified, complaint may be made at any time within twelve months from the commencement of the offence."

14. On a plain reading of S. 221(3)(b) of the A.P. Gram Panchayat, it is clear that any person, who is already convicted under Cl. (a) fails to hand over documents, records or property of the Gram Panchayat to the successor-in-office is liable for prosecution and also punishable for each day from the date of conviction till he delivers the property.

15. Section 140 of the said Act has no application to the facts of the present case.

16. Section 221(3)(b) of the said Act contemplates of a continuing offence. "Continuing offence" means that where an act or omission constituting the offence is continued from day to day a fresh offence is committed by the accused on every day on which the act or omission continues. (vide State v. A. H. Bhiwandiwala), AIR 1955 Bom 161 [LQ/BomHC/1954/124] : (1955 Cri LJ 666). The lower court relied upon S. 300, Cr.P.C. That section enacts the rule of Autrefois acquit and autrefois convict applicable to criminal trials. The rule is that so long as an order of acquittal or conviction at a trial held by a Court of competent jurisdiction of a person charged with committing an offence stands, that person cannot again be tried on the same facts for the offence for which he was tried or for any other offence arising therefrom. (Vide State of A.P. v. K. Meeraiah, 1969 (1) SCC 161 [LQ/SC/1968/377] : (1970 Cri LJ 759). The basic principle is embodied in the maxim Nemo debet bis puniri pro uno delict that is to say, that no one ought to be twice punished for one offence, or as it is sometimes written proeadem cause, that is, for the same cause. (Vide R. v. Barron, (1914) 2 KB 570, Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 [LQ/SC/1953/50] : (1953 Cri LJ 1432), Satyanarayana Gangadharabhatla v. Mudi Narainaswami, AIR 1961 Andh Pra 18 : (1961 (1) Cri LJ 37) Suraj Narain Singh v. Nirpat Singh AIR 1961 Pat 406 [LQ/PatHC/1960/215] : (1961 (2) Cri LJ 537) and State v. Mansha Singh AIR 1958 Punj 233 : (1958 Cri LJ 938 (FB)). Where a person has been convicted for an offence by a Court of competent jurisdiction, the conviction is a bar to all further criminal proceedings for the same offence. (Vide R. v. Miles, (1890) 24 QBD 423). The plea of autrefois arises when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made or for which he might have been convicted under S. 221(2), Cr.P.C. Thus, only that trial is barred under S. 300, Cr.P.C. which is for the same offence or based on the same facts. If it is a case of a continuing offence, the provisions of S. 300, Cr.P.C. cannot be pressed into service. (Vide D. C. Chhowala v. Gujarat Paper Mills, (1968) 9 Guj LR 890 : (1969) Cri LJ 322). In Municipal Board, Saharanpur v. Kripa Ram, AIR 1965 All 160 [LQ/AllHC/1964/99] : (1965 (1) Cri LJ 412), it was held that :-

"Where a person is convicted for an offence which is a continuing one, such as under Bye-Law No. 2 of the Municipal Board of Saharanpur, his conviction for commission of the offence during a particular period would not bar his conviction for the commission of the same offence during a subsequent period."

..... "A continuing wrong or a continuing offence is, after all, a continuing breach of a duty which itself is continuing. If a duty continues from day to day the non-performance of that duty from day to i day is continuing wrong." ..... Where the offences continue DE DIE IN DIEM so long as the duty cast upon the owner is left undischarged, the previous acquittal cannot be a bar to the present prosecutions because the present prosecutions are really for offences different from the offences of which some of the petitioners were acquitted on the previous occasion although the offences were of a similar nature." (Vide G. D. Bhattar v. State, AIR 1957 Cal 483 [LQ/CalHC/1957/87] : (1957 Cri LJ 834).

A statute may provide that continuance of the offence will itself be another species of offence for which a different penalty is imposed so that not only the act of prime failure is an offence, but also its continued failure another offence. (vide Subala Devi v. Corpn. of Calcutta, AIR 1953 Cal 357 [LQ/CalHC/1952/172] : (1953 Cri LJ 775) & 1959 Cri LJ 322 : (AIR 1959 J&K 19 [LQ/JKHC/1958/42] ).

17. In the Present case under S. 221(3)(b) A.P. Gram Panchayats Act it is specifically laid down that any person, who is convicted under Cl. (a) fails to hand over any documents or any moneys or other properties vested in or belonging to the Gram Panchayat which are in or have come into his possession or control to his successor in office shall be punishable for each day after conviction during which he continues to persist in his offence, with a fine not exceeding twenty rupees. Thus, for the failure to hand over the records, books or furniture of Gram Panchayat - to his successor everyday has to be treated as separate offence and it continues to be an offence everyday till he delivers documents, record books and furniture of the Gram Panchayat to his successor. The first respondent herein was convicted on 30-6-1982 in S.T.C. No. 10/82 by the IV Addl. Judicial Magistrate of First Class, Nellore under S. 221(3) of A.P. Gram Panchayat Act and hence he is liable for conviction for failure to comply everyday subsequent to the date of the conviction. If the first respondent has not delivered all the records, books and furniture to the appellant till the date of the fresh complaint leading to this case, the complaint filed by the appellant was perfectly justified in law and if the complainant has to examine himself and testify that the 1st respondent has not delivered records, books and furniture of the Gram Panchayat by the date of complaint, the 1st respondent herein would have been liable for conviction. But unfortunately no evidence was adduced on behalf of the complainant before the lower Court and in the absence of proof of non-compliance by the 1st respondent herein, the 1st respondent is entitled to be acquitted and was rightly acquitted by the lower Court. Though the result arrived at by the lower Court is correct for the reasons advanced by the learned Magistrate are not sustainable in law.

18. As already observed above, the offence contemplated by S. 221(3)(b) of the A.P. Gram Panchayat Act is a continuing offence for which S. 300, Cr.P.C. and S. 140 of A.P. Gram Panchayat Act have no application.

19. In the result, the appeal is dismissed confirming the acquittal of the 1st respondent herein not on the ground mentioned in the impugned order but on the ground that no evidence was adduced by the appellant in the case in support of his allegation. In view of my finding that the offence contemplated under S. 221(3) of A.P. Gram Panchayat Act is a continuing offence, it will be open to the appellant to lodge a fresh complaint against the first respondent if he has not complied with the statuary provisions of law and delivered records, books and furnitures of the Gram Panchayat to his successor even by this day.

20. Subject to the above observations, this appeal is dismissed.

Appeal dismissed.