Karnataka High Court
State Of Karnataka vs Smt Danamma Kom Sunkanna on 17 July, 2013
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 17TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRL. A. No.161/2008
BETWEEN:
STATE OF KARNATAKA,
BY R T O,
HAVERI. ... APPELLANT
(By Sri.A.A. PATHAN, AGA)
AND
SMT DANAMMA KOM. SUNKANNA,
R/O MANJUNATH NAGAR,
IJARILAKMAPUR,
HAVERI. ... RESPONDENT
(By Sri AJAY V. PATIL, FOR
SRI.ASHOK HARANAHALLI, ADVS.)
THIS CRL.A. IS FILED U/S.378(1) & (3) CR.P.C
PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST
THE JUDGMENT DATED 14.6.2007 PASSED BY THE
PRL.CIVIL JUDGE (JR.DN.) & JMFC., HAVERI, IN
C.C.NO.33/07 - ACQUITING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 12(1)(A)
OF KARNATAKA M.V TAXATION ACT, AND ETC.
2
THIS CRIMINAL APPEAL COMING ON FOR ORDERS
THIS DAY, THE COURT., DELIVERED THE FOLLOWING:
JUDGMENT
The respondent was tried for an offence punishable under Section 12(1)(A) of the Karnataka Motor Vehicles Taxation Act. The learned Judge acquitted the respondent (accused). Therefore, State has filed this appeal.
2. Heard the learned Government Advocate for the State and Sri Ajay V. Patil, learned Counsel for accused.
3. As per challan filed by the State represented by appellant/RTO, respondent being registered owner of maxi cab bearing registration No.KA.35/2094 had not paid road tax and cess for the period from 1.9.2005 to 30.11.2006. The learned trial Judge has acquitted accused on the ground that State should have filed separate charge-sheets for defaults committed by accused in 3 payment of road tax during each quarter and the State should not have demanded cess on the road tax.
4. The learned trial Judge following the judgment reported in ILR 2005 KAR.80 (Sharma Transports, Bangalore vs. State of Karnataka), has held that production of 'B' extract is not sufficient to hold that vehicle was in possession of the respondent-owner. In my considered opinion, reasons assigned by trial Court, except the reason that State should not have demanded road cess for the aforesaid quarters, are not tenable. In the decision reported in ILR 2006 KAR.80, this Court has held that State cannot levy cess on road tax. This Court has held:
levy and collection of 5% cess tax in terms of Section 3 of the Karnataka Motor Vehicles Taxation Act and Section 3-A of the Karnataka Act 4 of 1998 is illegal and unconstitutional.
5. The State has produced 'B' extract as per Ex.P.3 to prove that, respondent was the registered owner of maxi cab bearing Reg.No.KA-35/2094. In a decision 4 reported in 1987 SCC (Cri) 653, (State of Karnataka vs. K.Gopalkrishna Snenoy and another), the Supreme Court has held :
"Motor Vehicles-Mysore Motor Vehicles Taxation Act, 1957-Sections 3(1), 4 and 7 - Owner or person having possession or control of a motor vehicle, which is suitably designed and manufactured for use on roads and in respect of which a Certificate of Registration is current, held, bound to pay the tax in advance even if the vehicle is incapable of being put to use without repairs - In case the vehicle remained unused for certain period the owner or the concerned person is entitled to seek refund under Section 7 for that period."
In a decision reported in 2010(4) Kar.L.J. 378 (State of Karnataka Vs. Bhavakanna Jeevappa Anandache) this Court has held that: primary liability to pay tax lies on the registered owner of vehicle, whether registered owner is in possession and control of vehicle or not. It is not necessary to file a separate challen (complaint) for default in payment of tax for each quarter. This Court has held that separate sentence for default in payment of tax for each quarter has to be imposed. This Court exercising jurisdiction as an Appellant Court can 5 convict and sentence the accused. However, challan filed against accused includes an offence of default in payment of cess, the collection of which has been held unconstitutional. Therefore, matter needs reconsideration by the Trial Court.
6. Therefore, I pass the following:
ORDER The Appeal is accepted. The impugned judgment is set aside. The matter is remanded to learned Magistrate to hear the accused and pass appropriate judgment by excluding demand of cess shown in the challan (complaint) in accordance with law.
The accused shall appear before Trial Court on 5.8.2013, failing which trial Court shall take coercive steps to secure accused.
SD/-
JUDGE Sub/