STATE OF KARNATAKA Vs. BHAVAKANNA JEEVAPPA ANANDACHE

JUDGEMENT

(1.) RESPONDENT is the registered owner of a motor vehicle Maxi cab bearing registration No.KA-24-M-36. He failed to pay the tax of the said vehicle for the period from 01.03.1997 to 28.02.2004. The tax amount due is Rs.88,620/- + cess of Rs.4,531/- and penalty of Rs.18,613/-. He was prosecuted by the appellant under S.12(l)(a) of Karnataka Motor Vehicles Taxation Act, 1957 (the 'Act' for short). The charge was denied. Complainant deposed as PW-1. Ex.P-1 to Ex.P- 5 were marked. Ex.P-1 is registration particulars of the vehicle. Ex.P-2 is memo of calculation of tax. Ex.P-3 is copy of notice of demand. Ex.P-4 is an acknowledgement receipt and Ex.P-5 is the complaint. Defence of the accused is that, vehicle was registered with the financial assistance of Janardhan Auto Finance and on his failure to pay instalments regularly, financier seized the vehicle in February 1997 and hence he was not liable to pay the tax. Noticing that, the fact of seizure, of vehicle by the financier or non-plying of the vehicle since 1997 was not intimated to R.T.O. and since the liability rests upon the owner to prove that the vehicle was in possession of the financier in pursuance of the seizure and it is not open to the accused to contend that financier is liable to pay the tax, by relying upon a decision in the case of Vijaykumar Mane v. R.T.O., Dharwad (AIR 2003 Kar 178): (2003 AIR Kant HCR 684), learned Trial Judge held that, defence taken by the accused is untenable in the eye of law and hence the tax demanded, indisputably, not having been paid, accused was convicted for contravening Ss.3(l), 4(1) punishable under S.12(l) of the Act. Accused was ordered to pay the tax amount, in all amounting to Rs.93,051/-, in default to undergo simple imprisonment for six months and he was also imposed fine of Rs. 3,165/-, in default to undergo simple imprisonment for two months.

(2.) AGGRIEVED, accused filed an appeal contending that, vehicle was seized by the financier on 12.02.1997 for non-payment of loan amount and since then, vehicle was not in his possession and did not ply on the road and without an investigation, complaint was filed to recover the tax, which he was not liable to pay and consequently, his Conviction is illegal. The Learned Appellate Judge, by placing reliance on a decision in the case of Muniswamy v. State by Regional Transport Officer (ILR 2006 Kar 3032): (2006 (2) AIR Kar R 156) observing that, under the changed law, it is not enough if the accused is R.C owner of the vehicle, but, it is also to be proved by the prosecution that he is in possession of the vehicle and finding that evidence to that effect is not available on record, has held that, it is for the prosecution to establish that the vehicle in question is in possession of the accused and then only the accused is liable to pay the tax. It was observed that, there was no investigation with regard to possession of the vehicle by the accused or it having plied on the road, which is bad. It was further held that, for recovery of tax of the vehicle (from 1/3/1997 to 28/2/2004) for 7 years, single complaint is not maintainable. Reserving liberty to properly investigate regarding possession of the vehicle and to file separate complaints for each quarter of tax, the appeal was allowed.

(3.) SRI Sanjay S. Katageri appearing for respondents/accused by placing reliance on the decision in the case of Muniswamy (supra), contended that, to proceed against a person under S.12(l)(a) of the Act, it is not enough for the complainant to merely produce evidence that, the accused is registered owner of the vehicle, but should also establish that he had possession or control of the vehicle in respect of which there is non-payment of tax. According to him, vehicle having been seized by the financier, registered owner is not liable to pay the tax and the complainant ought to have taken action against the financier to recover the tax. In the case of Muniswamy (2006 (2) AIR Kar R 156) (supra), it has been held as follows: