Karnataka High Court
Asghar Ali vs State By Regional Transport Officer on 20 August, 2018
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
CRL.RP.NO.1220 OF 2012
BETWEEN :
ASGHAR ALI
S/O ABDUL JALEEL SAB
AGED ABOUT 50 YEARS
R/O T.H. ROAD, GOWRAPURA VILLAGE
AJJAMPURA POST, TARIKERE TALUK
CHIKMAGALUR DISTRICT-577 547.
...PEITTIONER
(BY SRI. K. MANJUNATHA, ADV., FOR
SRI. A. ANAND SHETTY, ADV.,)
AND :
STATE BY REGIONAL
TRANSPORT OFFICER
CHIKMAGALUR DISTRICT-577 101.
...RESPONDENT
(BY SRI. H.S. CHANDRAMOULI, SPP)
THIS CRL.RP. IS FILED UNDER SECTION 397 CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER
DATED:17.09.2012 PASSED BY THE PRL. S.J., CHIKMAGALUR
IN CRL.A.NO.179/11, IN EFFECT CONFIRMING THE ORDER
DATED:31.10.2011 PASSED BY THE I ADDITIONAL CIVIL JUDGE
AND JMFC, CHICKMAGALUR IN C.C.NO.1424/06.
THIS CRL.RP COMING ON FOR HEARING THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
This criminal revision petition is filed by the accused challenging the judgment and order passed by the learned Sessions Judge at Chickamagalur in Crl.A.No.179/2011 whereby, the judgment and sentence passed by the learned Magistrate, Chikmagalur in C.C.No.1424/2006 dated 31.10.2011 has been confirmed dismissing the appeal filed by the accused.
2. Briefly stated the facts are:
The accused-petitioner was the owner of the bus bearing registration No.CNS-6147 and registration of the certificate of the said bus was standing in his name during the relevant period.
The case of the prosecution was that the accused failed to pay the quarterly Motor Vehicle tax for the period 01.04.2001 to 30.06.2001 to the tune of Rs.19,950/- despite the notice of demand for the -3- payment of tax being issued and duly served on the accused. The non-payment of the said tax is an offence punishable under Section 12(1)(a) and (b) of the Karnataka Motor Vehicles Taxation Act, 1957 (for short 'the Act'). Accordingly, charge sheet came to be filed against the accused which culminated with the proceedings before the Trial Court. After securing the accused before the Trial Court, the accused not having pleaded guilty, trial was conducted. The Trial Court after considering and appreciating the evidence on record convicted the accused for the offence punishable under Section 12(1)(b) of the Act, passing the sentence of fine of Rs.20,000/-, in default of payment of said fine, to undergo simple imprisonment for a period of 6 months. Being aggrieved by the same, the accused preferred Criminal Appeal No.179/2011 before the learned Sessions Judge, Chikmagaluru, which came to be dismissed confirming the order passed by the learned Trial Judge. Hence, this revision petition.-4-
3. Sri Manjunath K., learned counsel appearing on behalf of Sri A. Anand Shetty, learned counsel for the accused would submit that the motor vehicle bearing registration No.CNS-6147 owned by the accused was manufactured in the year 1979. No motor vehicle can be plied on the road or is suitable for plying on the road after 15 years of the date of its manufacture. The vehicle in question was parked in the garage for repair purposes. As the accused had borrowed loan from M/s.Pooja Financier, Birur, the said vehicle was seized by the said financier and possession was taken by the financier. The vehicle was not in possession and control of the accused during the period in question as such no tax liability accrues on the petitioner.
4. Nextly, it is submitted that no criminal proceedings can be initiated against the petitioner for contravention of Section 12(1)(a) or (b) of the Act beyond the period of six months as provided under Section 468 -5- of the Code of Criminal Procedure (for short 'Code'). Thus, the learned counsel submits that these vital factors not being properly appreciated by the Courts below, the impugned judgment deserves to be set aside.
5. Learned State Public Prosecutor -
Sri.H.S.Chandramouli, appearing for the respondent justifying the impugned judgment and sentence passed by the Courts below submitted that no cogent evidence was placed on record by the accused to establish the factum of the vehicle being seized by the financier. Further, the provisions of the Act manifestly make it clear inasmuch as the liability to pay tax as long as the certificate of registration is current. Hence, the accused is precluded from taking the plea that the vehicle is not in his possession and not suitable for use on the road. Learned Counsel placing reliance on the judgment of the Co-ordinate Bench of this Court in the case of Ganapati Gopal Bhat vs. The State of Karnataka -6- reported in ILR 1999 KAR 2141 would submit that the period of limitation provided under Section 468 of the Code is not applicable to the proceedings initiated under Section 12(1)(a) and (b) of the Act. The concurrent findings of the Courts below do not warrant any interference by this Court as no perversity or irregularity in the impugned judgment and order is established by the accused.
6. I have given my thoughtful consideration to the arguments advanced at the hands of learned Counsel appearing for the parties and perused the material on record.
7. Before adverting to the arguments advanced by the learned counsel for the parties, it is necessary to refer the scheme of the Act, inasmuch as charging provisions and payment of tax. Section 3 is the charging provision, which reads thus:-
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"3. Levy of tax - (1) A tax at the rates specified in Part A of the Schedule shall be levied on all motor vehicles suitable for use on roads. [x x x x x]"
8. Explanation to Section 3 during the relevant period reads thus:
"A motor vehicle of which the certificate of registration is current shall, for the purposes of this Act, be deemed to be a vehicle suitable for use on roads."
[Note:- For the purpose of the above Explanation the certificate of registration shall, notwithstanding anything contained in Section 38 of the Motor Vehicles Act, 1939 (Central Act VI of 1939) (Central Act IV of 1939) be deemed to be current even if the certificate of fitness is not effective provided such certificate of fitness has not been cancelled]
9. Section 4 deals with payment of tax, which is excerpted hereunder for ready reference:
"4. Payment of tax: (1) The tax levied under Section 3 shall be paid in advance by the registered owner or person having possession or control of the motor vehicle, for -8- a quarter, half-year or year, at his choice, [within fifteen days] from the commencement of such quarter, half-year or year, as the case may be;]"
10. Section 7 deals with refund of tax. The same runs as hereunder:
"7. Refund of tax - (1) Where a tax on any motor vehicle has been paid for any period and it is proved to the satisfaction of the prescribed authority that the vehicle has not been used during the whole of that period, or a continuous part thereof, not being less than one calendar month, a refund shall be made of such portion of that tax and subject to such conditions as may be prescribed.
(2) xxxxxxxxxxxxxxxxxx (3) xxxxxxxxxxxxxxxxxx (4) xxxxxxxxxxxxxxxxxx (5) xxxxxxxxxxxxxxxxxx (6) xxxxxxxxxxxxxxxxxx"
11. A reading of these provisions makes it clear that the taxes shall be levied on all motor vehicles -9- suitable for use on roads. Payment of tax has to be paid as advance by the registered owner or person having possession or control of the motor vehicle for a quarter, half-year or year at his choice within 15 days from the commencement of such quarter, half-year or year, as the case may be.
12. In the case of tax paid on any motor vehicle for any period and it is established to the satisfaction of the prescribed authority that the vehicle has not been used during the whole of that period or continuous part thereof, refund shall be made for the portion of such tax paid by the registered owners subject to the condition as may be prescribed. The advance payment of tax is to be made by the registered owner. Otherwise, it is for the registered owner to claim exemption from the payment of tax as provided under the Act and Rules for not using vehicle for a particular period. In this context, it is beneficial to refer to the judgment of the Apex Court in the case of State of Karnataka vs. K.
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Gopalakrishna Shenoy and another reported in (1987) 3 Supreme Court Cases 655, wherein the Hon'ble Apex Court has categorically observed that the principle underlying the Taxation Act is that every motor vehicle having a Certificate of Registration is to be deemed a potential user of the roads all through the time the Certificate of Registration is current and therefore, liable to pay tax under Section 3(1) read with Section 4. Sections 3 and 4 are absolute in their terms and the liability to pay the tax in advance is not dependent upon the vehicle being covered by a certificate of fitness or not. The words "suitable for use on roads" has been interpreted by the Hon'ble Apex Court with reference to Entry 57 in List II of the Seventh Schedule to the Constitution viz-a-viz Sections 3 and 4 of the Act. It is observed that even if the vehicle was not in a roadworthy condition and could not be put to use on the roads without the necessary repairs being carried out, even though Certificate of Registration was current
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the owner or person having possession or control of a vehicle is enjoined to pay the tax on the vehicle and then seek a refund under Section 7 read with relevant rules. The impact of Section 38 of the Motor Vehicles Act, 1988 on Section 22 of the said Act, 1988 qua Section 3(1) and the explanation of the taxation Act, 1957 has been considered and it has been held that Section 38 has been provided so as to effectively prevent an owner or person having possession or control of a motor vehicle from carrying passengers or goods in it inspite of the vehicle not being in a fit condition and not carrying a certificate of fitness and thereby endangering the safety of the public. The deeming effect on the certificate of registration of a vehicle when it is not carrying a certificate of fitness is to ensure that the safety of the public is not jeopardised by anyone driving or using a vehicle without a certificate of fitness for carrying passengers or goods and trying to take umbrage for the violation by contending that he was
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entitled to make such use because of the certificate of registration issued to the vehicle being current. It has also to be noticed that Section 38 contains a safety measure while Section 3 of the Taxation Act pertains to a compensatory measure. The former cannot therefore limit the operation of the latter i.e. Section 3(1) of the Taxation Act and the explanation thereto. In the light of said discussion it follows that Section 3(1) of the Taxation Act and its Explanation have to be construed on their own force and not with reference to Section 38 of the Motor Vehicles Act.
13. In the present set of facts, the prosecution has established that the registration certificate of the vehicle is current and stands in the name of the accused/petitioner. No concrete evidence is placed on record by the accused to discard the same. The evidence of the witnesses DW1 and DW2 is very vague and cryptic, the same is extracted for ready reference:-
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DW1 - "£À£Àß ªÁºÀ£ÀªÀÅ ZÀ°¸À®Ä DUÀzÃÉ EzÁÝUÀ CzÀ£ÀÄß j¥ÉÃjUÉ ¤°è¹gÀÄvÉÛãÉ. £À£Àß ªÁºÀ£ª À ÀÅ 1979£Éà ¸Á°UÉ ¸ÉÃjgÀÄvÀÛz.É j¥ÉÃjUÉ ¤°è¹zÁUÀ ¥sÉÊ£Á£ïìgÀªg À ÀÄ £À£Àß ªÁºÀ£ª À À£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃVgÀÄvÁÛg.É UÁågÉÃeï£ÀªÀg£ À ÀÄß «ZÁj¹zÁUÀ ¥sÉÊ£Á£ï죪 À g À ÀÄ 15-20 ¢£ÀU¼ À À »AzÉ ªÁºÀ£ª À À£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃVgÀÄvÁÛgÉ JAzÀÄ w½¹gÀÄvÁÛg.É 1999ªÀgÉUÉ £Á£ÀÄ vÉjUÉAiÀÄ£ÀÄß ¥ÁªÀw ªÀiÁrgÀÄvÉÛãÉ. D £ÀAvÀgÀ £Á£ÀÄ gÀ¸ÉÛAiÀÄ°è ªÁºÀ£ª À £À ÀÄß ZÁ®£É ªÀiÁrgÀĪÀÅ¢®è ºÁUÀÆ vÉgÉUAÉ iÀÄ£ÀÄß ¥ÁªÀw ªÀiÁrgÀĪÀÅ¢®è.
¥Ánà ¸ÀªÁ®Ä - ¸À¸C À B gÀªÀjAzÀB-
¥sÉÊ£Á£ï죪
À g
À ÀÄ £À£Àß ªÁºÀ£ª
À À£ÀÄß vÉUz
É ÀÄPÉÆAqÀÄ
ºÉÆÃVgÀĪÀÅzÀ£ÀÄß DgïnN PÀbÃÉ jAiÀĪÀjUÉ w½¹gÀĪÀÅ¢®è. vÉjUÉ
¥ÁªÀw ªÀiÁqÀĪÀÅzÀ£ÀÄß vÀ¦à¹PÉƼÀî®Ä £Á£ÀÄ ¸ÀļÀÄî ¸ÁQë
ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è.
DW2 - DgÉÆæ £À£U
À É UÉÆvÀÄÛ. DgÉÆæAiÀÄ
ªÁºÀ£ª
À À£ÀÄß ©ÃgÀÆj£À ¥ÀÆeÁ ¥sÉÊ£Á£ï죪 À g À ÀÄ vÉUz É ÀÄPÉÆAqÀÄ ºÉÆÃVgÀÄvÁÛg.É d£À DgÉÆæAiÀÄ ªÁºÀ£Àª£ À ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃVgÀĪÀÅzÀ£ÀÄß £À£U À É ºÉýgÀÄvÁÛg.É ¥Ánà ¸ÀªÁ®Ä - ¸À¸C À B gÀªÀjAzÀB-
DgÉÆæAiÀÄ ªÁºÀ£ª À À£ÀÄß ¥sÉÊ£Á£ï죪 À g À ÀÄ vÉUz É ÀÄPÉÆAqÀÄ ºÉÆÃVgÀĪÀ §UÉÎ £Á£ÀÄ zÁR¯ÁwAiÀÄ£ÀÄß £ÉÆÃrgÀĪÀÅ¢®è.
DgÉÆæAiÀÄ ªÁºÀ£ª
À À£ÀÄß ¥sÉÊ£Á£ï죪
À g
À ÀÄ vÉUÉzÀÄPÉÆAqÀÄ
ºÉÆÃUÀzÃÉ EzÀÝgÀÆ ¸ÀºÀ DvÀ¤UÉ ¸ÀºÁAiÀÄ ªÀiÁqÀ®Ä £Á£ÀÄ ¸ÀļÀÄî ¸ÁQë ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."
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14. DW1 except stating that he had paid the tax upto the year 1999 and thereafter, he has not used vehicle since financier has seized the vehicle in question from the garage about 15 to 20 days back, no positive reference is made to the date when the vehicle was parked for repair in the garage and seized by the financier. No details of the garage as well as financier is forthcoming to believe the testimony of DW1. Moreover, it is admitted that he has not informed the RTO about the seizure of the vehicle by the financier. Similarly, DW2 has deposed that vehicle was seized by M/s Pooja Financer, this information was made known to him through people. This hearsay evidence is not trustworthy. Neither the financier nor any person related to the garage are examined. Over all, the evidence is not suffice to accept the defence of the accused that he was not liable to discharge the tax liability demanded by the authorities, whereas the prosecution has proved beyond reasonable doubt that
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the vehicle was in his possession as per the entries in the registration certificate. In the light of the legal position enunciated by the Hon'ble Apex Court in the case of K.Gopalakrishna Shenoy and another (supra), the arguments of the learned counsel appearing for the accused do not inspire any credence and the same requires to be negated.
15. As regards the applicability of the period of limitation in terms of Section 468 of the Code, this Court in the case of Ganapathi Gopal Bhat (supra) has held as under:-
"2. The first ground urged by Sri Ravi G. Sabhahit, learned Counsel for the petitioner, is that all complaints were barred by time and the learned Magistrate could not have taken cognizance of the offence concerned in view of Section 468 Cr.P.C. occurring in Chapter XXXVI Cr.P.C. In this regard, provisions of the Karnataka Economic Offences (Inapplicability of Limitation) Act,
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1981 (Act 10 of 1982) needs to be referred to. Section 2 of the said Act reads thus:
"2. Chapter XXXVI of the Code of Criminal Procedure, 1973 not to apply to certain offences.--
Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) shall apply to.--
(i) any offence punishable under any of the enactments specified in the Schedule; or
(ii) any other offences which under the provisions of that Code, may be tried along with such offences, and every offence referred to in clause
(i) or clause (ii) may be taken cognizance of by the Court having jurisdiction as if the provisions of that Chapter were not enacted".
Schedule to the said Act specified at Item 5, the Karnataka Motor Vehicles Taxation Act, 1957 (Karnataka Act 35 of 1957).
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Plea of bar of limitation, thus, is not available."
16. There is no reason to differ from the said finding. Thus, it can be held that the period of limitation of six months provided under Section 468 of the Code of Criminal Procedure is not applicable to the facts of the present case.
17. No perversity or irregularity is found in the judgment/order impugned.
The revision petition is devoid of merits and accordingly stands dismissed.
Sd/-
JUDGE SA/PMR