Karnataka High Court
State Of Karnataka vs Mr Abdul Hameed on 6 November, 2023
Bench: G Basavaraja
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NC: 2023:KHC:39508
CRL.A No. 189 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.189 OF 2013 (A)
BETWEEN:
1. STATE OF KARNATAKA
BY THE REGIONAL TRANSPORT OFFICERPUTTUR,
D.K.
...APPELLANT
(BY SRI M.R. PATIL, HCGP)
AND:
1. MR ABDUL HAMEED
S/O D.M. CHAYABBA46 YEARS, R/O. KAIKAMBA,
KATIPALLA,MANGALORE,DAKSHINA KANNADA
...RESPONDENT
(BY SRI K CHANDRANATH ARIGA, ADVOCATE)
Digitally signed THIS CRL.A. FILED U/S. 378(1) & (3) OF CR.P.C PRAYING
by SANDHYA S
Location: High
TO SET ASIDE THE ORDER DATED:7.1.12 PASSED BY THE
Court of ADDL. S.J., FTC, PUTTUR, D.K., IN CRL.A.NO.152/2010 -
Karnataka
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 12(1)(a) AND (b) OF KARNATAKA MOTOR VEHICLES
TAXATION ACT, 1957 AND RESTORE THE JUDGMENT IN
C.C.NO.1020/2005 DATED:30.09.10 PASSED BY THE ADDL.
C.J., AND JMFC, PUTTUR; AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 189 of 2013
JUDGMENT
The State has preferred this appeal against the order of
acquittal dated 07th January, 2012 passed in Criminal Appeal
No.152 of 2010 by the Additional Sessions Judge, Fast-track
Court, Puttur, Dakshina Kannada.
2. For the sake of convenience, the parties in this
appeal are referred to with their status and rank before the trial
Court.
3. Brief facts of the prosecution case are:
The accused is a registered owner of the tourist bus
bearing registration No.KA-21-4487 and has not taken proper
steps to pay tax for the period 01st September, 2002 to 30th
November, 2002. It is contended that as per the provisions of
the Karnataka Motor Vehicles Taxation Act, 1957 the accused
was required to pay tax before 15th September, 2002. In spite
of issuing demand notice, the accused has not come forward to
pay the tax and also not sought for any exemption for paying
the tax nor has he put forth any document in respect of non-
use of the vehicle. Accordingly, the accused has committed an
offence punishable under Sections 3 and 4 read with Section
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CRL.A No. 189 of 2013
12(1)(a) and (b) of the Karnataka Motor Vehicles Taxation Act,
1957. After receipt of notice, the sworn statement was
dispensed with as the complaint was filed by the public servant
and the case was registered in CC No.1020 of 2005.
4. In response to the summons, accused appeared
before the Court and pleaded not guilty and claimed to be tried.
To prove the guilt of the accused, prosecution examined the
complaint as PW1 and got marked 12 documents as Exhibits P1
to P12. After closure of prosecution evidence, the accused has
been examined and his statement under Section 313 of the
Code of Criminal Procedure is recorded and the accused has
totally denied the evidence appearing against him. Accused
has adduced defence evidence of DW1 and DW2 and four
documents are marked as per Exhibits D1 to D4.
5. Having heard both sides, the trial Court has
convicted the accused for commission of offence punishable
under Sections 3 and 4 read with Section 12(1)(a) and (b) of
the Karnataka Motor Vehicle Taxation Act, 1957 and sentenced
the accused to pay fine of Rs.80,325/- for the period between
01st September, 2002 and 30th November, 2002 and in default
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to pay the tax amount, accused shall undergo simple
imprisonment for two months. Being aggrieved by the said
judgment of conviction and order of sentence passed by the
trial Court, the accused preferred appeal in Criminal Appeal
No.152 of 2010 on the file of the Additional Sessions Judge,
Fast-Track Court, Puttur, Dakshina Kannada.
6. Upon hearing arguments on both sides, the
Appellate Court has passed the impugned judgment of acquittal
on 07th January, 2012. Being aggrieved by this judgment of
acquittal dated 07th January, 2012 passed in Criminal Appeal
No.152 of 2010 by the Additional Sessions Judge, Fast-track
Court, Puttur, the State has preferred this Appeal.
7. Sri M.R. Patil, learned High Court Government
Pleader appearing for the appellant-State submits that the
impugned judgment of acquittal passed by the Appellate Court
is illegal, invalid and contrary to law and facts and material
available on record. The Appellate Court, without considering
the nature of proceedings, as it is an economic offence, has
erroneously allowed the criminal appeal in its entirety. He
further submits that the Appellate Court has not properly
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appreciated the evidence on record in accordance with law and
facts. On all these grounds, sought for allowing the appeal.
8. As against this, the learned counsel for the
respondent submitted that the Appellate Court has properly re-
appreciated the evidence on record and acquitted the accused
in accordance with law and facts and that there are no grounds
to interfere with the impugned judgment of acquittal and
accordingly, sought for dismissal of the appeal. To substantiate
his arguments, the learned counsel relied upon the judgment of
this Court in Criminal Appeal No.810 of 2012 decided on 24th
November, 2014; and in Criminal Appeal No.814 of 2012
decided on 28th April, 2014, both rendered in the case of STATE
OF KARNATAKA v. ABDUL HAMEED.
9. Upon hearing the learned counsel on both sides and
on perusal of records, the following points would arise for my
consideration in this appeal:
1. Whether the appellant-State has made out a
ground to interfere with the impugned
judgment of acquittal passed by the Appellate
Court in Criminal Appeal No.152 of 2010?
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2. What Order?
10. My answer to the above points are as under:
Point No.1: in the negative;
Point No.2: as per final Order.
Regarding Point No.1:
11. I have carefully examined the material on record.
It is the case of the prosecution that accused, who is the
registered owner of the tourist bus, has not taken proper steps
to pay tax for the period between 01st September 2002 and
30th November, 2002. As per the provisions of the Karnataka
Motor Vehicles Taxation Act, 1957, though the accused was to
pay the tax before 15th September, 2002, has not paid and in
spite of issuance of demand notice, the accused has not come
forward to pay the tax and also not sought for any exemption
nor he has put fourth any document in respect of non-use of
the vehicle. Accordingly, the accused has committed offence
punishable under Sections 3 and 4 read with Section 12(1)(a)
and (b) of the Karnataka Motor Vehicles Taxation Act, 1957 and
the case was registered in CC No.1020 of 2005. To
substantiate its case, one witness was examined as PW1 and
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CRL.A No. 189 of 2013
twelve documents were marked as Exhibits P1 to P12. The trial
Court convicted the accused for commission of offence
punishable under Sections 3 and 4 read with Section 12(1)(a)
and (b) of the Karnataka Motor Vehicles Taxation Act, 1957 and
also sentenced to pay a fine of Rs.80,325/- and in default to
pay fine, accused shall undergo single imprisonment for a
period of two months. Accused has preferred appeal against
the said judgment of conviction and order of sentence in
Criminal Appeal No.152 of 2010. The Appellate Court, in
paragraphs 11 and 12 of its judgment, has observed as under:
"11. It has been canvassed by the learned counsel
for the accused that the Court below did not appreciate
the evidence, as the documents marked on behalf of the
prosecution were subject to proof and there is no proof of
the said documents. The documents relied upon by the
prosecution are all public documents maintained in the
ordinary course of business of the complainant. The
correctness of the registration, liability of the accused to
pay tax has not been disputed. The contention of the
accused that there was no prior enquiry by the Taxation
Authority regarding the user of the vehicle and its
possession and control has been diluted in the light of the
case law referred above and it will answer all the queries
and grounds urged by the accused in this appeal. The
evidence of PW-1 is sufficient to hold that the liability of
the accused to pay the tax, irrespective of the contention
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of the accused that the vehicle has been seized by the
financier. There is some evidence from Dw.1 Mr.Vital
Narayana Puranik, the staff of the RTO, Mangalore as to
the application filed by the accused seeking exemption of
payment of advance tax by paying prescribed fee for the
period of 1-6-2002 till 30-11-2002. Herein is the dispute
as to the right of the taxing authority to demand the tax
when the vehicle has been surrendered to the taxing
authority. In this regard it is relevant to read the rule
34(a) of KMVT Rules, wherein it contemplates intimation
of surrender is sufficient in form no.30 on pay payment of
prescribed fee of Rs.100/-, This has been admitted by
Dw.1 the RTO staff. This takes support from Ex.b5 the
endorsement issued to the accused by the taxing
authority. When there is no rule which mandates the
concurrence or acceptance of the taxing authority
regarding surrender is required the application so filed by
the accused certainly exempt him from paying advance
tax to the vehicle in question. This aspect has not been
appreciated by the Court below, hence finding recorded in
the impugned judgment has no support of law. When the
accused has no liability to pay advance tax unless and
until the prosecution able to demonstrate that in spite of
such application the accused did used the bus in question.
Therefore the defence so raised is more probable, which
needs to be supported with in holding that the accused
has no legal liability to pay the tax so demanded.
Therefore the order of the Court below in holding that the
accused is guilty of the alleged offence is not based on
the legal evidence, hence it is held illegal. In the result,
point No.2 is answered in the affirmative.
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CRL.A No. 189 of 2013
12. On perusal of the order of the Court below it is
pertinent to note that the Court below sentenced the
accused to pay a fine equal to that of the quarterly tax
due. Apart from it, the accused was also directed to pay
the tax arrears too. In this regard it is very relevant to
read Section 12(1)(a) and (b) of K.M.V.T. Act which
contemplates and authorizes the Court only to impose the
fine not less than quarterly tax. In order to recover the
tax the complainant has to take its own initiation.
Prosecution of the accused is for the reason of the
Taxation Authority has no legal right to impose fine and it
is for the Judicial Courts having jurisdiction to impose fine
on holding trial of the accused. Therefore the Court has to
impose the fine not less than the quarterly tax and
accordingly the Court below imposed the fine. But what
has not been provided under the Statute cannot be
exercised by the Court and it is for the complainant to
take proper initiation to recover the tax which in fact has
been authorised under the law. In view of the point no.2
being answered in the negative, the accused has no
liability to pay the advance tax for the period he did
surrendered his vehicle to the taxing authority the
impugned order holding that the accused is guilty of the
offence and imposing sentencing needs to be interfered.
In the result Point No.3 is answered in the affirmative."
12. On re-examination/reconsideration and re-
appreciation of evidence on record and also the observation
made by the Appellate Court, I do not find any legal
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infirmities/illegalities in the impugned judgment of acquittal
passed by the appellate Court. Hence, I answer point No.1 in
the negative.
Regarding Point No.2:
13. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
1. Appeal dismissed;
2. Order dated 07th January, 2012 passed in
Criminal Appeal No.152 of 2010 by the
Additional Sessions Judge, Fast-track Court,
Puttur, Dakshina Kannada is confirmed;
3. Registry to send the copy of this judgment
along with TCR to the court below.
Sd/-
JUDGE
LNN
