STATE Vs. P K ACHUTHAN

JUDGEMENT

(1.) This appeal by the State is directed against the acquittal of the accused who was prosecuted for offences under S.7 (1) and 8 of the Travancore - Cochin Vehicles Taxation Act, XIV of 1950. A lorry bearing registration number TCC 1542 was detected plying for hire without payment of tax for the quarter ending 30th June 1953 and the accused was prosecuted for the offences stated above. The learned Magistrate acquitted the accused on the ground that arrears should have been calculated not at Rs. 360/- per quarter, but at Rs. 293/- and that in view of that the proceeding initiated for the recovery of arrears calculated at the rate of Rs. 360/- per quarter cannot be supported. The correctness of this view is challenged in this appeal.

(2.) The learned Magistrate found that tax for the quarter ending 30th June 1953 had not been paid by the accused and the correctness of this finding was not disputed by the accused. It was also not disputed that putting the lorry on the road without payment of tax and without displaying the tax license constituted offences under S.7 (1) and 8 of the Act. The real offence was that tax was being wrongly collected from the accused in the past at the rate of Rs. 360/- per quarter whereas the tax actually due was only Rs. 293/- per quarter and that an amount considerably higher than the tax due for the relevant quarter was due to the accused from the Government. The decision in O. P. No. 239 of 1955 shows that the tax actually due was only Rs. 293/-. This will not be an effective defence to the prosecution. The accused must establish that non payment of tax was justified and the fact that he has a vital claim for recovery of a sum equal to or more than the tax due does not mean that he can violate the provisions of the Act for payment of tax and display of the tax license. On the date of the default in question he could not assert such a claim as his claim had been established only much later. The position would have been different if he had obtained an order exempting him from payment of tax on this ground. So long as there is no valid reason for non payment of tax, he must be held guilty of the offences with which he is charged. The learned Magistrate erred in assuming that the case was a proceeding for recovery of tax. The mere fact that in the event of conviction the court can direct recovery of the arrears of tax as though it were fine cannot convert the prosecution into a proceeding for recovery of tax.

(3.) Though the accused is guilty of the offences, a deterrent punishment is not called for in the circumstances. On the date of default the Government had to refund to him a much higher amount, although the claim in respect of the same was established much later. In the circumstances, I hold that a sentence of a nominal fine would meet the ends of justice. I therefore reverse the acquittal of the accused, convict him of offences under S.7 (1) and 8 of Act XIV of 1950 (T.C.) and sentence him to pay of fine of Rs. 5/- for each of the offences. In default of payment of fine he will undergo simple imprisonment for one week for each of the offences. The accused is also directed to pay a sum of Rs. 293/-, as tax for the quarter ending 30th June 1953.