Ganapati Gopal Bhat Vs. State of Karnataka - Court Judgment

Excerpt:
- code of civil procedure, 1908. order 38, rule 5: [a.n. venugopala gowda, j] attachment before judgment suit for specific performance of agreement i.as for grant of interim injunctions and attachment before judgment held, unless the plaintiff establishes that the defendant is attempting to remove or dispose of his assets, with an intention to defeat the decree that may be passed against him, the application under order 38, rule 5 cannot be allowed. on facts, held, trial court has not recorded in its order that the first defendant is likely to dispose of the schedule property with the intention of defeating the decree that may be passed in the suit. the trial court has ignored the mandatory requirements of order 38, rule 5 while passing the impugned order. hence, plaintiff has not made out any case to exercise power/jurisdiction under order 38, rule 5 by the trial court. impugned order was quashed. - he is the registered owner/rc holder in respect of the vehicle mys 1723. he came to be prosecuted in all these cases for failure to pay tax under the karnataka motor vehicles taxation act, 1957 ('act' for short) for severalquarters ranging from 1-5-1982 to 31-1-1986. in all the said cases, he has been convicted of an offence punishable under section 12(1)(a) of the act and has been sentenced to pay a fine equivalent to tax for one quarter, in default to undergo simple imprisonment for three months.order1. petitioner is common in all these revision petitions. he is the registered owner/rc holder in respect of the vehicle mys 1723. he came to be prosecuted in all these cases for failure to pay tax under the karnataka motor vehicles taxation act, 1957 ('act' for short) for severalquarters ranging from 1-5-1982 to 31-1-1986. in all the said cases, he has been convicted of an offence punishable under section 12(1)(a) of the act and has been sentenced to pay a fine equivalent to tax for one quarter, in default to undergo simple imprisonment for three months. his appeals have come to be dismissed. he has now approached this court under section 397 of the cr. p.c. 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 in cr. p.c. occurring in chapter 36 of the cr. p.c. in this regard, provisions of the karnataka economic offences (inapplicability of limitation) act, 1981 (act 10 of 1982) needs to be referred to. section 2 of the said act reads thus: '2. chapter 36 of the code of criminal procedure, 1973 not to apply to certain offences.-- nothing in chapter 36 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). plea of bar of limitation, thus, is not available. 3. sri ravi g. sabhahit, learned counsel for the petitioner, next contended that the vehicle was not in use during the relevant period, same having been left in the garage for repairs. on facts, it is found that not only that there was no proper intimation to the authorities concerned about non-use of the vehicle, but that, there was no satisfactory evidence with regard to the vehicle having been left in the garage, and that, on the contrary, there was evidence with regard to the vehicle having been found plying on roads and having been checked. in fact, it is pointedly referred to as to how, even the petitioner admitted his liability to pay tax and prayed for time. 4. section 3(1) of the act inter alia provides for levying of tax on motor vehicles suitable for use on roads as specified in part a of the schedule to the act. explanation to the said sub-section (1) of section 3 provides that a motor vehicle of which the certificate of registration is current shall, for the purposes of the act, be deemed to be a vehicle suitable for use on roads. section 4 of the act inter alia provides that the tax levied under section 3 shall be paid in advance by the registered owner or personhaving possession or control of the motor vehicle, for 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. section 7 of the act provides for claiming refund of tax in certain situations. section 12(1)(a) inter alia provides that whoever as a registered owner or otherwise has possession of or control over any motor vehicle liable to tax under this act without having paid the amount of the tax, then, he 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 the sum equal to the annual tax payable in respect of such vehicle. it also provides that the amount of any tax due shall be recoverable as if it were a fine. 5. there is no dispute that the tax for the concerned period had not been paid. there is also no dispute that the petitioner is the rc holder and that the certificate of registration is current. far from finding defence versions having stood probablised, namely that the vehicle had been left in the garage and was not in use and that the authorities had been duly notified in that regard and that even the rc had been handed over to the rto, it is found on facts that the vehicle was very much plying on the road and had been subjected to checks, and that there was no such notice to the authorities nor was the rc entrusted to the rto, but, that on the other hand, it had been in the custody of the bank. in the circumstances, two courts below have rightly found that the petitioner was in possession and control of the vehicle in respect of which tax had not been paid. 6. sri ravi g. sabhahit, learned counsel for the petitioner, next urges that the authorities ought to have held the enquiry as to the existence of the vehicle and as to its possession by a particular person. in this regard, he also refers to a decision of this court in vinayaka bhat v state by assistant regional transport officer. the said decision dealt with a vehicle that had been scrapped and not in existence. the existence of a motor vehicle was thus found to be a condition precedent for levy of tax under the act. the said decision is inapplicable to the facts of these cases for the reason that it is nobody's case that the vehicle concerned herein is not in existence. on the other hand, the very defence taken is that the vehicle is very much in existence, but that it is left in garage. on the contrary, a decision of the supreme court in state of karnataka v k. gopalakrishna shenoy and another, may be usefully referred to in this context in respect of the very act i.e. the karnataka motor vehicles act, 1957. in paragraph 8, the supreme court observed thus: '. . . the scheme of the taxation act is such that the tax due on a motor vehicle has got to be paid in terms of section 3 at the prescribed rate and in advance and the liability to pay tax continues as long as the certificate of registration is current but if it so happens that in spite, of the certificate of registration being current, the vehicle had not actually been put to use for the whole of the period or a continuous part thereof, not being less than one calendar month, the person paying the tax should apply to the prescribed authority and obtain a refund of the tax for the appropriate period after satisfying the authorities about the truth and genuineness of his claim. sections 3 and 4 are absolute in their terms and the liability to pay the tax in advance is not dependant upon the vehicle being covered by a certificate of fitness or not. even if the vehicle was not in a road worthy condition and could not be put to use on the roads without the necessary repairs being carried out. 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'.in the same paragraph, the supreme court further observed thus: '. . . the principle underlying the taxation act is that every motor vehicle issued 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. if, however, the vehicle had not made use of the roads because it could not be put on the roads due to repairs, even though the certificate of registration was current, the owner or person concerned has to seek for and obtain refund of the tax paid in advance after satisfying the authorities about the truth of his claim. it is not for the transport authorities to justify the demand for tax by proving that the vehicle is in a fit condition and can be put to use on the roads or that it had plied on the roads without payment of tax. it would be absolutely impossible for the state to keep monitoring all the vehicles and prove that each and every registered vehicle is in a fit condition and would be making use of the roads and is therefore liable to pay the tax. for that reason, the state has made the payment of tax compulsory on every registered vehicle and that too in advance and has at the same time provided for the grant of refund of tax whenever the person paying the tax has not made use of the roads by plying the vehicle and substantiates his claim by proper proof. any view to the contrary would defeat the purpose and intent of the taxation act and would also afford scope and opportunity for some of the persons liable to pay the tax to ply the vehicle unlawfully without payment of tax and later on justify their non-payment by setting up a plea that the vehicle was in repair for a continuous period of over a month or the whole quarter, half-year or year as they choose to claim'.again in paragraph 12, the supreme court observed thus: '12. in the light of our 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. the combined effect of sections 3, 4 and 7 of the act is that the state is empowered to levy tax on all motor vehicles which are suitably designed and manufactured for use on the roads. the explanation provides that every motor vehicle of which a certificate of registration is current shall be deemed to be a vehicle suitable for use on roads and liable to pay tax as a potential user of the roads at the rates prescribed by the government. section 4 enjoins the tax levied under section 3 to be paid in advance. section 7 provides that in the event of a vehicle for which tax has been paid in advance under section 4 had not been made use of for the whole of the period for which tax has been paid or of a continuous part thereof, not being less than one calendar month the person paying the tax may apply to the prescribed authority and obtain appropriate refund as prescribed by the rules after producing proof in support of the claim for refund. in the light of this position the decision rendered in reddappa case, is not correct law'.7. on the facts and circumstances, as established beyond reasonable doubt, petitioner has been rightly convicted of an offence under section 12(1)(a) of the act. 8. there is no infirmity in the impugned orders. revision petitions are dismissed, at the same time, granting six months time to the petitioner to pay the fine amount concerned in each case.

Judgment:
ORDER

1. Petitioner is common in all these revision petitions. He is the registered owner/RC holder in respect of the vehicle MYS 1723. He came to be prosecuted in all these cases for failure to pay tax under the Karnataka Motor Vehicles Taxation Act, 1957 ('Act' for short) for severalquarters ranging from 1-5-1982 to 31-1-1986. In all the said cases, he has been convicted of an offence punishable under Section 12(1)(a) of the Act and has been sentenced to pay a fine equivalent to tax for one quarter, in default to undergo simple imprisonment for three months. His appeals have come to be dismissed. He has now approached this Court under Section 397 of the Cr. P.C.

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 in Cr. P.C. occurring in Chapter 36 of the Cr. P.C. In this regard, provisions of the Karnataka Economic Offences (Inapplicability of Limitation) Act, 1981 (Act 10 of 1982) needs to be referred to. Section 2 of the said Act reads thus:

'2. Chapter 36 of the Code of Criminal Procedure, 1973 not to apply to certain offences.--

Nothing in Chapter 36 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).

Plea of bar of limitation, thus, is not available.

3. Sri Ravi G. Sabhahit, learned Counsel for the petitioner, next contended that the vehicle was not in use during the relevant period, same having been left in the garage for repairs. On facts, it is found that not only that there was no proper intimation to the authorities concerned about non-use of the vehicle, but that, there was no satisfactory evidence with regard to the vehicle having been left in the garage, and that, on the contrary, there was evidence with regard to the vehicle having been found plying on roads and having been checked. In fact, it is pointedly referred to as to how, even the petitioner admitted his liability to pay tax and prayed for time.

4. Section 3(1) of the Act inter alia provides for levying of tax on motor vehicles suitable for use on roads as specified in Part A of the Schedule to the Act. Explanation to the said sub-section (1) of Section 3 provides that a motor vehicle of which the certificate of registration is current shall, for the purposes of the Act, be deemed to be a vehicle suitable for use on roads.

Section 4 of the Act inter alia provides that the tax levied under Section 3 shall be paid in advance by the registered owner or personhaving possession or control of the motor vehicle, for 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.

Section 7 of the Act provides for claiming refund of tax in certain situations.

Section 12(1)(a) inter alia provides that whoever as a registered owner or otherwise has possession of or control over any motor vehicle liable to tax under this Act without having paid the amount of the tax, then, he 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 the sum equal to the annual tax payable in respect of such vehicle. It also provides that the amount of any tax due shall be recoverable as if it were a fine.

5. There is no dispute that the tax for the concerned period had not been paid. There is also no dispute that the petitioner is the RC Holder and that the certificate of registration is current. Far from finding defence versions having stood probablised, namely that the vehicle had been left in the garage and was not in use and that the authorities had been duly notified in that regard and that even the RC had been handed over to the RTO, it is found on facts that the vehicle was very much plying on the road and had been subjected to checks, and that there was no such notice to the authorities nor was the RC entrusted to the RTO, but, that on the other hand, it had been in the custody of the Bank. In the circumstances, two Courts below have rightly found that the petitioner was in possession and control of the vehicle in respect of which tax had not been paid.

6. Sri Ravi G. Sabhahit, learned Counsel for the petitioner, next urges that the authorities ought to have held the enquiry as to the existence of the vehicle and as to its possession by a particular person. In this regard, he also refers to a decision of this Court in Vinayaka Bhat v State by Assistant Regional Transport Officer. The said decision dealt with a vehicle that had been scrapped and not in existence. The existence of a motor vehicle was thus found to be a condition precedent for levy of tax under the Act. The said decision is inapplicable to the facts of these cases for the reason that it is nobody's case that the vehicle concerned herein is not in existence. On the other hand, the very defence taken is that the vehicle is very much in existence, but that it is left in garage. On the contrary, a decision of the Supreme Court in State of Karnataka v K. Gopalakrishna Shenoy and Another, may be usefully referred to in this context in respect of the very Act i.e. the Karnataka Motor Vehicles Act, 1957. In Paragraph 8, the Supreme Court observed thus:

'. . . The scheme of the Taxation Act is such that the tax due on a motor vehicle has got to be paid in terms of Section 3 at the prescribed rate and in advance and the liability to pay tax continues as long as the certificate of registration is current but if it so happens that in spite, of the certificate of registration being current, the vehicle had not actually been put to use for the whole of the period or a continuous part thereof, not being less than one calendar month, the person paying the tax should apply to the prescribed authority and obtain a refund of the tax for the appropriate period after satisfying the authorities about the truth and genuineness of his claim. Sections 3 and 4 are absolute in their terms and the liability to pay the tax in advance is not dependant upon the vehicle being covered by a certificate of fitness or not. Even if the vehicle was not in a road worthy condition and could not be put to use on the roads without the necessary repairs being carried out. 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'.

In the same paragraph, the Supreme Court further observed thus:

'. . . The principle underlying the Taxation Act is that every motor vehicle issued 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. If, however, the vehicle had not made use of the roads because it could not be put on the roads due to repairs, even though the certificate of registration was current, the owner or person concerned has to seek for and obtain refund of the tax paid in advance after satisfying the authorities about the truth of his claim. It is not for the Transport Authorities to justify the demand for tax by proving that the vehicle is in a fit condition and can be put to use on the roads or that it had plied on the roads without payment of tax. It would be absolutely impossible for the State to keep monitoring all the vehicles and prove that each and every registered vehicle is in a fit condition and would be making use of the roads and is therefore liable to pay the tax. For that reason, the State has made the payment of tax compulsory on every registered vehicle and that too in advance and has at the same time provided for the grant of refund of tax whenever the person paying the tax has not made use of the roads by plying the vehicle and substantiates his claim by proper proof. Any view to the contrary would defeat the purpose and intent of the Taxation Act and would also afford scope and opportunity for some of the persons liable to pay the tax to ply the vehicle unlawfully without payment of tax and later on justify their non-payment by setting up a plea that the vehicle was in repair for a continuous period of over a month or the whole quarter, half-year or year as they choose to claim'.

Again in paragraph 12, the Supreme Court observed thus:

'12. In the light of our 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. The combined effect of Sections 3, 4 and 7 of the Act is that the State is empowered to levy tax on all motor vehicles which are suitably designed and manufactured for use on the roads. The explanation provides that every motor vehicle of which a certificate of registration is current shall be deemed to be a vehicle suitable for use on roads and liable to pay tax as a potential user of the roads at the rates prescribed by the Government. Section 4 enjoins the tax levied under Section 3 to be paid in advance. Section 7 provides that in the event of a vehicle for which tax has been paid in advance under Section 4 had not been made use of for the whole of the period for which tax has been paid or of a continuous part thereof, not being less than one calendar month the person paying the tax may apply to the prescribed authority and obtain appropriate refund as prescribed by the rules after producing proof in support of the claim for refund. In the light of this position the decision rendered in Reddappa case, is not correct law'.

7. On the facts and circumstances, as established beyond reasonable doubt, petitioner has been rightly convicted of an offence under Section 12(1)(a) of the Act.

8. There is no infirmity in the impugned orders. Revision Petitions are dismissed, at the same time, granting six months time to the petitioner to pay the fine amount concerned in each case.