Karnataka High Court
M/S Jatti Agro Proteins vs State Of Karnataka on 17 February, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.101433/2016 (482)
BETWEEN:
M/S. JATTI AGRO PROTIENS,
HANAGANDI, TAL: JAMAKHANDI, BY ITS
PARTNERS, SMT. RATNA GANGAHAR JATTI,
SMT. SUJATA SHIKANT JATTI, BOTH ARE
R/O NO.38, C/O R.G.JATTI, KUMBAR GALLI,
RABAKAVI, JAMAKHANDI TALUK,
BAGALKOT DISTRICT.
...PETITIONER
(BY SRI. S.G. KADADAKATTI, ADVOCATE)
AND:
STATE OF KARNATAKA
BY ASST. COMMISSIONER OF
COMMERCIAL TAXES(RECOVERY)
JAMAKHANDI, BAGALKOT DISTRICT.
REP. BY ITS SPP HIGH COURT,
DHARWAD.
...RESPONDENT
(BY SMT. VEENA HEGDE, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C., SEEKING TO QUASH/SET
ASIDE THE ORDER DATED 9.9.2016 PASSED IN CRIMINAL
MISCELLANEOUS NO.122/2009, PENDING ON THE FILE
OF THE CIVIL JUDGE(JR.DN.) AND JMFC, JAMAKHANDI,
SO FAR AS PETITIONER IS CONCERNED BY ALLOWING
THIS CRIMINAL PETITION UNDER SECTION 13(3)(b) OF
THE KARNATAKA SALES TAX ACT, 1957.
2
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and learned HCGP for the respondent-State. Perused the records.
2. The Assistant Commissioner of Commercial Taxes (Recovery), Jamakhandi, lodged a recovery petition in Crl.Misc. No.122/2009, before the learned JMFC, Banahatti, seeking indulgence of the Court for recovery of a sum of Rs.2,40,850/-. The learned Magistrate registered the said case under Section 13(3)(b) of the Karnataka Sales Tax Act, 1957 (for short, 'the Act') and at the initial stage, issued FLW against respondents. The order sheet discloses that on 17.09.2016, learned Advocate filed an application under Section 421(B) of Cr.P.C. with list of documents. The Court below has heard on the petition and posted the case for orders on 29.09.2016. On 29.9.2016 issued FLW to the respondents. On 14.10.2016, abruptly without mentioning anything, the Court has ordered to re-issue of NBW to the respondents. On 21.10.2016, again the Court ordered for re-issue of NBW. The order sheet does not disclose that the 3 Court, at any point of time, actually issued NBW, and on what reasons NBW is re-issued, is not made clear in the order sheet. However, the order sheet discloses that NBW has been issued and what was happened to the FLW is also not noted. Under the above said circumstances, it is incumbent upon the Court that the procedure has to be followed with respect to recovery of fine amount imposed by the Court.
3. Section 13(3)(b) of the Karnataka Sales Tax Act, 1957 says that any tax payable under the Act and any Tax assessed, or any other amount due under this Act from a dealer [or any other person] may without prejudice to any other mode of collection be recovered__
a) xxxxxxxxx [aa) xxxxxxxxx [(aaa) xxxxxxx
(b) [notwithstanding anything contained in [the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)], on application to any Magistrate,] by such Magistrate as if it were a fine imposed by him:
[Provided that where a dealer or other person who has appealed or applied for revision of any order made under this Act and has complied 4 with an order made by the appellate or the revising authority in regard to the payment of the tax or other amount, no proceedings for recovery under this sub-section shall be taken or continued until the disposal of such appeal or application for revision.]
4. Admittedly, the learned counsel for the petitioner has not brought to the notice of the Court that the petitioner has called in question any order of imposition of the tax upon him before any appellate Authority or revising Authority. Therefore, the learned Magistrate is well within his power to take application for recovery of the said fine amount. The Magistrate can recover the fine amount as if it is a fine imposed by the Court. Now what is the procedure that the Court has to follow for recovery of such fine amount is to be looked into.
5. Criminal Procedure Code, Chapter-32 refers to Execution, Suspension, Remission and Commutation of Sentences. Under this Chapter, Heading 'C' which refers to levy of fine, particularly Section 421 of Cr.P.C. has to be very meticulously followed by the Court in order to recover fine, that has been imposed by the Court or as if it were imposed by the Court. The said provision reads thus: 5
Section 421. Warrant for levy of fine.- (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
a) issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender;
b) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisnoned, and if such offender has undergone the whole of such imprinsment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357. (2) the State Government may make rules regulating the manner in which warrants under clause(a) of sub-
section(1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issue a warrant to the Collector under clause(b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating 6 to recovery of arrears of land revenue, as if such warrant were certificate issued under such law:
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
Section 422. Effect of such warrant.- A warrant issued under clause(a) of sub-section (1) of section 421 by any Court may be executed within the local jurisdiction of such Court, and it shall authorise the attachment and sale of any such property outside such jurisdiction, when it is endorsed by the District Magistrate within whose local jurisdiction such property is found.
6. In view of the above said provisions, there cannot be any issuance of NBW to the accused unless above said procedure is followed by the Court. Mere issuance of FLW is not sufficient. The Court has to specifically direct under Section 421(a) & (b) of the Cr.P.C. with a direction to the competent Authority to attach and sale, the movable and immovable property of the accused/respondent and then after exhausting the said remedy only, the Court can take appropriate remedy, contemplated under the Cr.P.C. As the records disclose, this procedure has not been followed by the learned Magistrate, therefore, issuing NBW against the petitioners is unwarranted and the same is liable to be 7 quashed. However, the learned Magistrate is at liberty to recover the said amount from the petitioners by strictly following the procedure as contemplated under Sections 421 and 422 of Cr.P.C.
7. Hence, the following order is passed:
a) The Petition is allowed.
b) The order dated 9.9.2016 passed in Criminal Misc. No.122/2009 pending on the file of the Civil Judge (Jr.Dn.) & JMFC, Jamakhandi in so far as the petitioners are concerned, is quashed.
c) The learned Magistrate is directed to proceed with the case in accordance with law by strictly following the procedure contemplated under Sections 421 and 422 of the Cr.P.C. for the purpose of recovery of fine amount.
Sd/-
JUDGE JTR