The State of Mysore Vs. H.C. Ramaswamy

The State of Mysore vs H.C. Ramaswamy

Type Court Judgment Court Karnataka Decided Feb 26, 1964

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Citation: sooperkanoon.com/373261
Court: Karnataka High Court
Judge: D.M. Chandrashekhar, J. and ;H. Hombe Gowda, C.J.
Decided On: Feb 26, 1964
Case Number: Criminal Appeals Nos. 224 to 227 of 1963 and the City Magistrate, Bangalore, in C.C. Nos. 10328 of 1
Subject: Sales Tax

Case Summary

AI-generated summary - not the official court judgment text.

- KARNATAKA SCHEDULED CASTES & SCHEDULED TRIBES (PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT, 1978, Sections 3(e) & 4: [Arali Nagaraj,J] Usufructuary mortgage of granted land Validity - Suit for permanent injunction against defendants restraining them from interfering with taking of the yield of fruits from mang...

Key legal issue: Sales Tax
Acts & sections: Mysore Sales Tax Act, 1948 - Sections 20(1); ;Mysore Sales Tax, 1957 - Sections 40(1)

Parties & Advocates

Appellant / Petitioner

The State of Mysore

Advocate B. Ashrit, High Court Government Pleader

Respondent

H.C. Ramaswamy

Advocate B.V. Katageri and ;K.J. Shetty, Advs.

Legal References

Acts: Mysore Sales Tax Act, 1948 - Sections 20(1); ;Mysore Sales Tax, 1957 - Sections 40(1)
Reported In: (1968)1MysLJ364; [1964]15STC410(Kar)

Excerpt

.....the date of the document and as such the said document could only be a mortgage deed in substance and not a sale deed. the transaction was transfer within the meaning of section 3(e) of the ptcl act. section 4 of ptcl act prohibits the transfer of granted lands. sub section (2) of section 4 further provides that no person shall, after the commencement of the said, act, transfer or acquire by transfer any granted land without the previous permission of the government. the mortgage of the said land by the defendant/grantee in favour of the plaintiff authorizing the plaintiff to enjoy usufructs was clearly in violation of the provisions of section 4 of the ptcl act. the burden is heavy on the plaintiff to prove that the said mortgage was not obtained by him in contravention of the provisions of section 4 of the ptcl act. on facts held, the transaction is in total violation of the provisions of section 4(1) of the ptcl act, the possession of the land in question along with the mango trees grown thereon by the plaintiff could not be held to be lawful possession. therefore, the appellate court was quite justified in passing the impugned judgment and decree dismissing the suit. - ' 8. it is, therefore, clear that the right of the state to investigate or the institute legal proceeding for an offence committed by a person when the mysore sales tax act of 1948 was in force is clearly saved......before the learned magistrate and made an application to the effect that the prosecution against him for the offence, purported to have been committed by him under section 20(1)(a) of the mysore sales tax act of 1948 was untenable, in view of the fact that the mysore sales tax, 1957 had come into force and it had repealed the mysore sales tax act of 1948. 4. the learned magistrate accepted this contention of the respondent and acquitted him in all these four cases. 5. the legality or the correctness of this acquittal is challenged in these four appeals. 6. it is urged by mr. ashrit, the learned high court government pleader, who argued these appeals on behalf of the state, that the learned magistrate was entirely wrong in his view that section 40(1) of the mysore sales tax act of 1957 had not saved the right of the appellant to institute proceedings against the respondent in respect of the offence committed by him when the mysore sales tax act of 1948 was in force. the learned magistrate has held that there was nothing in section 40(1) of the mysore sales tax act of 1957 which indicates that a person who committed an offence under section 20(1)(a) of the mysore sales tax act of 1948, could be prosecuted even though the said act was repeated. it is urged by mr. ashrit that the learned magistrate has not read section 40(1) of the mysore sales tax act, 1957, properly and that it is clear from a bare reading of the same that a right to prosecute the respondent for offences committed under act of 1948 has been specifically saved. 7. section 40(1) of the mysore sales tax act of 1957, after referring to the several enactments repeated consequent upon the new act coming into force, proceeds as follows :- 'provided that such repeal shall not affect, (a) the previous operation of the said enactments or anything duly done or suffered thereunder; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments; or (c) any penalty,.....

Full Judgment

Hombe Gowda, C.J.

1. A common question of law is raised in all these for appeals, in which the respondent is the same person. These four appeals are, therefore, heard together and disposed of by this common judgment.

2. Four separate charge-sheets each for an offence punishable under section 20(1)(a) of the Mysore Sales Tax Act, 1948, on the allegation that the respondent had wilfully submitted an untrue return of his turnover of the business and had thereby made himself liable for prosecution, were filed against the respondent, in the Court of the City Magistrate Bangalore. They were numbered as Criminal Cases Nos. 10328 of 1961, 110 of 1962, III of 1962 and 112 of 1962.

3. The respondent who was served with a summons in all these cases, appeared before the learned Magistrate and made an application to the effect that the prosecution against him for the offence, purported to have been committed by him under section 20(1)(a) of the Mysore Sales Tax Act of 1948 was untenable, in view of the fact that the Mysore Sales Tax, 1957 had come into force and it had repealed the Mysore Sales Tax Act of 1948.

4. The learned Magistrate accepted this contention of the respondent and acquitted him in all these four cases.

5. The legality or the correctness of this acquittal is challenged in these four appeals.

6. It is urged by Mr. Ashrit, the learned High Court Government Pleader, who argued these appeals on behalf of the State, that the learned Magistrate was entirely wrong in his view that section 40(1) of the Mysore Sales Tax Act of 1957 had not saved the right of the appellant to institute proceedings against the respondent in respect of the offence committed by him when the Mysore Sales Tax Act of 1948 was in force. The learned Magistrate has held that there was nothing in section 40(1) of the Mysore Sales Tax Act of 1957 which indicates that a person who committed an offence under section 20(1)(a) of the Mysore Sales Tax Act of 1948, could be prosecuted even though the said Act was repeated. It is urged by Mr. Ashrit that the learned Magistrate has not read section 40(1) of the Mysore Sales Tax Act, 1957, properly and that it is clear from a bare reading of the same that a right to prosecute the respondent for offences committed under Act of 1948 has been specifically saved.

7. Section 40(1) of the Mysore Sales Tax Act of 1957, after referring to the several enactments repeated consequent upon the new Act coming into force, proceeds as follows :-

'Provided that such repeal shall not affect,

(a) the previous operation of the said enactments or anything duly done or suffered thereunder; or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments; or

(d) any investigation, legal proceeding (including assessment proceeding) or remedy in respect of any such right, privilege, obligation, liability, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed.'

8. It is, therefore, clear that the right of the State to investigate or the institute legal proceeding for an offence committed by a person when the Mysore Sales Tax Act of 1948 was in force is clearly saved. The learned Magistrate, in our opinion, was entirely wrong when he observed that section 40(1) of the Mysore Sales Tax Act of 1957 does not indicate that such a right in favour of the State has been saved. A plain reading of the proviso, particularly sub-section (d) of section 40(1) quoted above, makes its abundantly clear that such a right has been saved. We are, therefore, of the opinion that the appellant is entitled to succeed in all these appeals.

9. In the result, all these four appeals are allowed and the order of the learned Magistrate in all the four cases is set aside. The cases are remanded to the learned City Magistrate, Bangalore, with a direction that he should proceed with the trial of these four cases, in accordance with law.

10. Appeals allowed.

Same Parties The State of Mysore vs H.C. Ramaswamy Same Subject Sales Tax Same Judge D.M. Chandrashekhar, J. and ;H. Hombe Gowda, C.J. Acts & Sections Mysore Sales Tax Act, 1948 - Sections 20(1); ;Mysore Sales Ta...

Sales Tax