HARIVADAN KANAIYALAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Petitioner Harivadan Kanaiyalal has been convicted by the learned City Magistrate 11 Court Ahmedabad for having committed an offence under sec. 16(1)(a)(i) of the Bombay Motor Vehicles Tax Act 1958 and has been sentenced to pay a fine of Rs. 50/in default to suffer simple imprisonment for seven days

(2.) Few relevant facts may be noticed. The petitioner is a registered owner of motor vehicle viz. scooter No. GJA 9418 and the vehicle came to be registered in his name somewhere on 27th February 1958. Tax payable in respect of the said vehicle by the person liable to pay the same commencing from 1st April 1967 was not paid and a complaint was filed by one Mr. H. B. Rami Motor Vehicle Inspector and taxation authority on 13th July 1970 alleging that the petitioner who is the registered owner of the said vehicle has not paid the tax due and payable in respect of the said vehicle for the period 1st April 1967 to 30th September 1967. The allegation that the petitioner was the registered owner of the vehicle was not disputed but the defence put forth was that the petitioner had sold the motor vehicle in question in November 1965 to one Prafulla R. Dave and therefore the petitioner was not liable to pay tax and no offence is committed by him. Prafulla R. Dave was examined as a defence witness and he admitted having purchased the motor vehicle in question in November 1965. The learned Magistrate was of the opinion that even though the petitioner has sold the motor vehicle bearing No. GJA 9418 to Prafulla R. Dave on 1 1965 yet as the transfer of the vehicle was not registered with the Regional Transport Officer the petitioner continued to be the registered owner of the vehicle in question on the date on which tax became due namely on 1st April 1967. The learned Magistrate was further of the opinion that looking to the provision contained in subsec. (2) of sec. 8 liability of the petitioner to pay tax even after he had sold the vehicle in question remains unimpaired and accordingly convicted him for having committed an offence under sec. 16(1)(a)(i) of the Bombay Motor Vehicle Tax Act and sentenced him as above. The petitioner challenged this order of conviction and sentence in the present Criminal Revision Application.

(3.) When this revision application came up for hearing before our learned brother D. P. Desai J. it was contended on behalf of the petitioner that before any one can be convicted for having committed an offence under sec. 16(1)(a)(i) of the Bombay Motor Vehicles Tax Act 1958 prosecution must prove that the person sought to be punished was in possession or had control over the motor vehicle either as a registered owner or otherwise and that there is no evidence in this case to show that either on 1st April 1967 or at any time thereafter the petitioner was in possession of or had control over the motor vehicle in question and therefore charge is not brought home to him. This contention was sought to be repelled by the learned Assistant Government Pleader appearing for the State by relying upon two decisions one being of M. P. Thakkar J. in Criminal Appeal No. 480 of 1970 decided on 3rd September 1970 (Khusalbhai Becharbhai v. State) and another of A. D. Desai J. in Criminal Revision Application No. 392 of 1970 decided on 16th November 1971 (Gordhanbhai Manjibhai v. State). Relying on the aforementioned two decisions it was contended on behalf of the State that once the petitioner is shown to be the registered owner of the vehicle in question during the period the tax became due and payable his liability to pay arises in view of the provision contained in sec. 4 and it continued unimpaired in view of the provision contained in sub-sec. (2) of sec. 8 and mere failure to pay the tax due would be sufficient to convict him for having committed an offence under sec. 16(1)(a)(i). D. P. Desai J. was of the opinion that the person who can be convicted under sec. 16(1)(a)(i) is the one who is in possession of or has control over whether as a registered owner or otherwise of any motor vehicle used or kept for use in the State and who fails to pay the tax or the additional tax due in accordance with the provisions of the Act in respect of such vehicle and that there was no evidence in the case that on the relevant day that is on 1st April 1967 the petitioner had possession or control of the motor vehicle that is the scooter in question and therefore the charge was not brought home to him. As D. P. Desai J. was of this opinion which would to some extent run counter to the view in the aforesaid two judgments he has referred the matter to a Division Bench and that is how this matter has come up before us.