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IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2021
BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.989 OF 2021
BETWEEN:
THE STATE OF KARNATAKA
BY RTO
UDUPI
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001 ... APPELLANT
[BY SMT. K.P.YASHODHA, ADVOCATE]
AND:
MR.K.UMESH
AGED 70 YEARS
S/O SHEENA GANIGA
R/O CHIKKU HOUSE
WEST BLOCK ROAD
KUNDAPURA TALUK
UDUPI DISTRICT - 576 201 ... RESPONDENT
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)(3) OF
CR.P.C., PRAYING (A) TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 30.12.2019 PASSED BY
THE COURT OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
UDUPI DISTRICT, UDUPI IN CRL.A.NO.23/2016 ACQUITTING THE
RESPONDENT-ACCUSED FOR THE OFFENCES P/U/S 12(1) OF INDIA
MOTOR VEHICLE ACT AND CONFIRM THE ORDER PASSED BY THE
ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI IN C.C.NO.1515/2011.
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(B) SET ASIDE THE JUDGMENT AND ORDER DATED 30.12.2019
PASSED BY THE COURT OF PRINCIPAL DISTRICT AND SESSIONS
JUDGE, UDUPI DISTRICT, UDUPI IN CRL.A.NO.23/2016 ACQUITTING
THE RESPONDENT-ACCUSED OF THE OFFENCES P/U/S 12(1) OF
INDIAN MOTOR VEHICLE ACT, BY ALLOWING THIS APPEAL.
(C) CONVICT AND SENTENCE THE RESPONDENT ACCUSED FOR
THE OFFENCE P/U/S 12(1) OF INDIAN MOTOR VEHICL ACT.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the State against the judgment and order dated 30.12.2019 passed by the Court of the Principal District and Sessions Judge, Udupi District, Udupi in Criminal Appeal No.23/2016, whereby the learned Sessions Judge allowed the said appeal and set aside the judgment and order of conviction and sentence passed by the trial Court, convicting the accused/respondent for an offence punishable under Section 12(1)(a) of Karnataka Motor Vehicles (Taxation) Act, 1957 (hereinafter referred to KMVT Act for short).
2. There is a delay of 448 days in preferring the appeal. The office has raised an objection that application for condonation of delay is not forthcoming.
3. I have heard the learned High Court Government Pleader appearing for appellant/State on merits of the case. 3
4. The prosecution has alleged that the accused being the registered owner of the vehicle/maxi cab bearing No.KA-20- AB-8888 failed to pay the vehicle tax of the said vehicle for the period from 01.11.2009 to 30.04.2010 amounting to Rs.1,65,000/- within the time stipulated by law and thereby committed the offence punishable under Sections 3(1), (4) read with Section 12(1)(a) of KMVT Act.
5. Before the trail court, the prosecution got examined the concerned RTO as PW.1 and got marked three documents as Exs.P1 to P3. The trial Court vide judgment dated 06.02.2016 in Criminal Case No.1505/2011 convicted the accused and sentenced him to pay a fine of Rs.1,65,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months.
6. The learned Session judge vide impugned judgment dated 30.12.2019 passed in Criminal Appeal No.23/2016 set aside the judgment and order of conviction and sentence passed by the trial Court, which is under challenge by the State.
7. The specific contention taken by the defence is that merely because the vehicle was standing in the name of accused, 4 it cannot be said that he is liable to pay the tax. The vehicle was not under his care and control or possession and it was the bounden duty on the part of prosecution to establish that an enquiry has been conducted to show that during the relevant point of time the vehicle was in possession and control of the accused as required under Section 12(1)(a) of KMVT.
8. The learned High Court Government Pleader has contended that the accused being the registered owner of the vehicle in question has admittedly failed to pay the tax for the period from 01.11.2009 to 30.04.2010 amounting to Rs.1,65,000/- within the time stipulated by law and inspite of issuance of notice, no reply was given either stating that he was not the registered owner of the vehicle or he was not in possession or control of vehicle. She contends that the burden is on the owner of the vehicle to establish that he was not in possession or control of the vehicle or that the vehicle was not in a fit condition to ply on the road.
9. It is the specific case of prosecution that the accused being the registered owner of the vehicle and in possession and control of the vehicle failed to pay the vehicle tax during the relevant period of time. Section 12(1)(a) and (b) of the KMVT 5 envisages that whoever, as a registered owner or otherwise has possession or control of any motor vehicle liable to tax under the Act, without having paid the amount of tax or additional tax due in accordance with the provision of the Act, etc., is liable for conviction.
10. In the case on hand, as admitted by PW.1, he has not enquired as to whether the vehicle was in a working condition or not or whether the accused was in possession or control of the vehicle during the relevant period. The learned Sessions Judge has taken note of the law laid down in the case of Vinayak Bhat vs. State by Assistant Regional Transport Officer reported in ILR 1993 KAR. 176 and Muniswamy Vs. State by R.T.O reported in ILR 2006 KAR 3032, wherein, it is held that the R.T.O has to enquire and determine as a question of fact whether the motor vehicle was in existence during the relevant period and when there is no enquiry by the R.T.O, the trial Court was wrong in convicting the accused. Further, that it is not enough for the prosecution to merely state that the accused was the registered owner of the vehicle, but, it must further establish that either as registered owner or otherwise, he had possession or control over the vehicle in respect of which there was non-payment of tax. The trial Court has failed to take 6 into consideration these aspects and therefore the conviction and sentence passed by the trial Court is not sustainable in law. The judgment which is impugned in this appeal therefore cannot be said to be either illegal or perverse. There are no grounds to grant leave to appeal. Hence, the appeal is dismissed.
Sd/-
JUDGE HB/-