The State Of Karnataka vs Venkataraman S/O Vasudev Hegde
2022 Latest Caselaw 337 Kant

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      IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

           DATED THIS THE 10TH DAY OF JANUARY, 2022

                           BEFORE

             THE HON'BLE MR.JUSTICE S. RACHAIAH

                     CRL.A. No.2770/2012
BETWEEN:

1.    THE STATE OF KARNATAKA
      REPRESENTED BY ADDITIONAL STATE
      PUBLIC PROSECUTOR
      HIGH COURT CIRCUIT BENCH,
      DHARWAD.

2.    THE ASSISTANT REGIONAL TRANSPORT
      OFFICER, HONAVAR,
      TAL : HONVAR (U.K).
                                                  ...APPELLANTS
(BY SRI.PRASHANT MOGALI, HCGP)

AND

VENKATARAMAN
S/O VASUDEV HEGDE
AGE : MAJOR
OCC : BUSINESS
SHREE KUMAR TRANSPORT,
BANK ROAD, HONAVAR,
TAL : HONAVAR (U.K).
                                                  ...RESPONDENT
(BY SRI.RAMESH I. ZIRALI, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(3) OF
CR.P.C. SEEKING TO GRANT THE LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 09.02.2012 PASSED BY
THE COURT OF SESSIONS JUDGE, FAST TRACK COURT-II, UTTARA
KANNADA, KARWAR IN CRL.APPEAL NO.44/2009 AND SET ASIDE THE
ORDER OF ACQUITTAL AND ORDER DATED 09.02.2012 PASSED BY
THE COURT OF SESSIONS JUDGE, FAST TRACK COURT-II, UTTARA
KANNADA, KARWAR IN CRL.APPEAL NO.44/2009 AND CONFIRM THE
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ORDER PASSED BY THE PRL. JMFC, HONNAVAR IN C.C NO.1299/2005
BY THE ORDER DATED 04.03.2009 IN THE INTEREST OF JUSTICE AND
EQUITY.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, THIS DAY, S.RACHAIAH J., DELIVERED THE
FOLLOWING:

                               JUDGMENT

The State being aggrieved by the judgment and order

dated 09.02.2012 passed in Criminal Appeal No.44/2009 by the

learned Sessions Judge, Fast Track Court -II Uttara Kannada,

Karwar has preferred this appeal seeking to set aside the order

of acquittal.

2. Brief facts of the case.

The accused is the registered owner of the vehicle (open

truck) bearing its registration No. KA-30/A-5887 and he has not

paid the tax for the period from 01.10.1998 to 30.09.2005. The

total amount of tax was due Rs.48,900/-. Hence, he has

contravened the provision of Sections 3(1) & 4(1) of The

Karnataka Motor Vehicles Taxation Act, 1957 (for short 'the

Act'). The authority i.e. A.R.T.O has registered the case for

having violated of the above said provisions and the matter is

referred to the jurisdictional Magistrate for adjudication. The

learned Magistrate after considering the evidence and documents

available on record opined that the accused has committed an

offence under the above said provision and convicted him to

undergo sentence to pay a fine of Rs.5,000/- and in default to

undergo simple imprisonment for three months and further

directed the accused to pay the entire arrears of tax. Being

aggrieved by the above judgment dated 04.03.2009 passed in

C.C. No.1299/2005, The Respondent/Appellant has preferred an

appeal before the learned Sessions Judge, Fast Tract Court-II,

Uttara Kannada, Karwar in Crl.Appeal. No.44/2009 wherein the

First Appellate Court acquitted the accused for the offences.

Against the said acquittal, the State-Appellant has preferred this

Appeal.

3. Sri.Prashant Mogali, learned High Court Government

Pleader appearing for the State submits that the First Appellate

Court has committed an error in coming to the conclusion that

the respondent herein was not the owner of the vehicle and the

vehicle was not in his possession.

4. Further, learned High Court Government Pleader

submits that, the view taken by the First Appellate Court is

contrary to the evidence on record and the First Appellate Court

ought to have considered the Ex.P7 which is Registration

Certificate and could have upheld the judgment of the Trial

Court.

5. Per contra, Sri. Ramesh I.Zirali, learned counsel for

the respondent submits that, the First Appellate Court has rightly

acquitted the Respondent/accused by considering the fact that

the Respondent was not in possession and control of the vehicle

and the Respondent had already sold the vehicle to another

person. Such being the fact, levying the tax based on the

Registration Certificate is bad in Law and liable to be rejected.

6. Further, the learned Counsel for the Respondent

submits that, the State has not proved the case beyond all

reasonable doubt regarding the possession of the vehicle by the

respondent. Hence, interference by this court is uncalled for and

unsustainable in law.

7. Heard learned counsel for the appellant and also the

learned counsel for respondent and perused the documents

available on record.

8. After having gone through the judgment and

arguments advanced and perusal the evidence on record the

points which arises for consideration are:

a) Whether the appellant/State made out a ground to interfere in the order and judgment of acquittal passed by the First Appellate court in Crl.A.44/2009?

      b)        What order?



      Answer:

      Point No.1: Negative

      Point No.2: As per the final order.

9. It is the case of the Appellant that, the respondent

has not paid the tax to his vehicle bearing its No. KA-30 - A-

5887 and PW.1 had issued demand notice as per Exs.P1, P3, P5

and P9 through RPAD. The same has been served on the

accused and acknowledgment of the same is also received and

marked as Exs.P2, P4, P6 and 10. The Registration Certificate of

the said vehicle discloses that the Respondent was the owner of

the said vehicle. The said Registration Certificate was marked as

Ex.P7.

10. Be that as it may, the defence of the respondent is

that, he had sold the vehicle in question to one Smt. Lalitha

Hegde resident of Karki Honavar Taluk in the year 1998 and the

Respondent contended that, he was not in possession of the

vehicle as such, he has denied the possession of the said vehicle

and submitted that, the imposition of tax would be impermissible

under law in such circumstances.

11. Now, the question would arises for consideration is

as to whether mere proof of ownership of alleged vehicle would

be sufficient to levy the vehicle tax without proof of possession

and control of the said vehicle?

12. Before discussing the respective contentions in detail

it is necessary to understand the provision. Section 12(1) of the

Act which reads as under:

12. Penalties. - (1) Whoever,-

(a) as a registered owner or otherwise has possession or control of any motor vehicle liable to tax under this Act without having paid the amount of the tax or additional tax due in accordance with the provisions of this Act in respect of such vehicle; or

(b) delivers a declaration or additional declaration wherein the particulars required by or under this Act to be therein set forth are not fully and truly stated; 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 a sum equal to the annual tax payable in respect of such vehicle; and in the event of such person having been previously convicted of an offence under this section with fine which shall not be less than a sum equal to the tax payable in respect of such vehicle for two quarters and which may extend to a sum equal to twice the annual tax payable in respect of such vehicle; and the amount

of any tax due shall be recoverable as if it were a fine.

13. From the reading of the above said provision, it clear

that, the prosecution must prove not only the ownership of the

vehicle but, also the possession and control thereof.

14. To impose the tax, no doubt, the prosecution has to

prove the possession and control over the vehicle by the

respondent. Once, the same is proved, the burden of proof

would be shifted to the Respondent/accused to rebut the same.

In this case, the prosecution has produced Registration

Certificate which is standing in the name of the respondent and

claiming that, the Respondent is the owner of the alleged vehicle

and demanded the Respondent to pay the arrears of Vehicle tax.

15. Now, for better understanding of the said provision,

it is also relevant to place reliance of the unreported judgment of

this Court in the case of STATE OF KARNATAKA v. RAMAIAH in

Crl.A.243/1964 dated 30.06.1965. It is held that to attract

Section 12(1)(a) of the Act it is for the prosecution to prove the

possession and control of the vehicle, mere production of the

evidence that accused was the registered owner of the vehicle is

not sufficient to establish that he was the registered owner or he

has possession, or control of the vehicle of which there was non

payment of tax.

16. In an another decision of this Court, in the case of

A.S.VINAYAK BHAT STATE OF KARNATKA reported in 1992 (4)

KLJ 478 wherein Co-ordinate Bench of this Court held that the

existence of motor vehicle is condition precedent for levy of tax

under the Act.

17. It is very clear from the above two decisions of this

Court is that, the possession and in control over the vehicle is

sine-quo-non to levy the tax as per Section 12(1)(a) of the Act.

Since, the prosecution has failed to produce any supporting

witnesses or documents to show that the Respondent was in

control and possession of the said vehicle. Therefore, the tax

which was levied by the Authority is bad in law. So, the same is

liable to be rejected.

18. In the present case, as could be seen from the

record, the prosecution has proved the case with respect to

ownership of the vehicle. However, failed to prove the

possession and control thereof. Mere proof of ownership without

proving the possession and control over the vehicle is not

sufficient to levy the tax. Hence, the contention of the

Appellant - State holds no water and deserves to rejected.

Accordingly, I proceed to pass the following:

ORDER

The appeal filed by the State stands dismissed as devoid of merits. The judgment and order of First Appellant Court stands Confirmed.

Sd/-

JUDGE

UN