ORDER
B.S. Patil, J.
1. In all these revision petitions as common questions of facts and law are raised, they are clubbed together, heard and disposed of by this common judgment.
2. The facts in brief leading to these revision petitions are that, a complaint came to be registered against the revision petitioners under Section 12(1) as per the provisions of the Karnataka Motor Vehicles Taxation Act, 1957 (Act for short) by the jurisdictional RTO alleging that the accused/ the owner of the lorry bearing No. MYY 6891 being liable to pay the tax as per the provisions contained under Section 3(4)(a) of the Act, had not paid the same and had fallen in arrears for the period 1.5.1999 to 1.5.2002. Demand notices were sent to the accused calling upon him to pay the tax. Though served with notice by registered post, the accused did not comply with the demand made. Therefore, the RTO filed charge sheet against the accused in respect of offences allegedly committed for different periods which came to he numbered as CC No. 1339/02, 1340/02, 1341/01, 1342/01 and 1343/02 on the file of the JMFC, Hospet. The accused appeared before the court and pleaded not guilty. The prosecution examined PWs 1 and 2 in support of its case. However, no evidence was adduced on behalf of the accused. The Trial Court upon consideration of the evidence both the oral and documentary held that the accused was guilty of the offences and imposed penalty of Rs. 2,500/- in each of the cases and in default to undergo simple imprisonment for one month.
3. The defence set-up by the accused was that the person in whose, favour the vehicle was hypothecated had seized the vehicle and taken custody of the same and eventually got transferred the vehicle in his name even in the RC book and therefore, the accused was not liable to pay the tax. This is discernible from the cross examination of the prosecution witnesses. The Trial Court refused to take note of this defence stating that in the statement given by him under Section 313 of the Code of Criminal Procedure the accused did not come forward with any such defence and therefore he could not be permitted to take-up the said defence. The Magistrate held that since the accused failed to show that he was not in possession of the vehicle, it was to be inferred that he continued to be in possession. The Sessions Judge, on appeal, has affirmed the findings recorded by the Magistrate holding that nothing prevented the accused to implicate the person Sri Venugopal in whose favour the vehicle was allegedly hypothecated and who had taken over the possession of the vehicle, by filing an application under Section 319 of the Code of Criminal Procedure. The Sessions Judge further opines that though it was suggested in the cross-examination of the RTO that the accused was not in a possession, no suggestion was made at any time that the accused was no longer the owner of the vehicle.
4. The learned Counsel appearing for the petitioner contends that the approach adopted by both the courts below is illegal and impermissible in law as the status of the accused has to be positively established by the prosecution placing material on record to show that the accused was in possession or control of the motor vehicle which was liable to pay tax as provided under Section 12(1)(a).
5. In the light of the contentions urged, the point that arises for consideration is-
Whether the Judgments under challenge suffer from any illegality requiring interference in this Revision Petition?
6. Both the courts below have proceeded on the basis that the accused being the registered owner of the vehicle was liable to be proceeded against under Section 12(1) of the Act. As regards the actual possession of the vehicle they have proceeded only on the basis of inference drawn from the non-production of any material by the accused substantiating the seizure of the vehicle by the owner. A perusal of the evidence of PW1 Hanumanthappa Thambada - the complainant shows that he was not aware as to who was in possession and custody of the vehicle. He further admits that from 2002 onwards he has not verified the records to know whose name is entered in the RC book. It is thus clear that even as per the complainant, he was not aware as to who was in possession of the vehicle. It is for the prosecution to establish not only that the petitioner was the registered owner but also that he was in possession or control of the vehicle before he could be held guilty under the provisions of Section 12(1) of the Motor Vehicle Taxation Act.
7. A perusal of the provisions contained in Sub-section (1)(a) of Section 12 show that, on a charge under Section 12(1)(a) it is not enough for the prosecution to merely produce evidence that the accused was the registered owner of the vehicle. It must further establish that either as registered owner or otherwise, he had possession or control of the vehicle in respect of which there was nonpayment of tax. The said provision is usefully extracted hereunder:
12. Penalties,- (1) Whoever -
(a) as a registered owner or otherwise has possession or control of any motor vehicle liable to tax under this Act without having paid the amount of the tax or additional tax due in accordance with the provisions of this Act in respect of such vehicle, or
(b) delivers a declaration or additional declaration wherein the particulars required by or under this Act to be therein set forth are not fully and truly stated, shall, on conviction, be punishable with fine which shall not be less than a sum equal to the quarterly tax payable in respect of such vehicle and which may extend to a sum equal to the annual tax payable in respect of such vehicle....
A perusal of the provisions, as extracted above, would reveal that as per Section 12(1)(a), it is clear that no offence is committed Under Secion 12(1)(a) unless a person who has not paid the tax has possession or control of the motor vehicle either as registered owner or otherwise. It is not enough for the prosecution to merely produce the evidence that the accused was the registered owner of the vehicle. The prosecution had to further establish that either as registered owner or otherwise, the accused had possession or control of the motor vehicle in respect of which there was non-payment of tax. In fact, this question fell for consideration in the case of State of Mysore v. M.S. Ramaiah (CRL.A. No. 243/1964 disposed off on 30.06.1965) wherein a Division Bench of this Court has, after referring to Section 6 of the repealed Mysore Motor Vehicles Taxation and Tolls Act, 1951, which corresponded to Section 12(1) of the Mysore Motor Vehicles Taxation Act, 1957 which repealed the earlier enactment, after noticing the contrast between the language of Section 6 of the repealed Act and Section 12(1)(a) of the repealing Act, has held that 'whereas Under Section 6 of the Act, a registered owner committed an offence if he did not pay the tax due by him, no offence is committed Under Section 12(1)(a) unless a person who has not paid the tax has possession or control of the motor vehicle either as registered owner or otherwise'.
8. In the present case the Courts below have proceeded on an erroneous interpretation of the provision. They have also erred in holding that it was for the accused to establish that he lost possession of the vehicle and was no longer in the custody of the same. The approach adopted by the courts below being illegal, the matter requires reconsideration. Hence, I pass the following: