Karnataka High Court

Sri. M.D. Basha vs The State Of Karnataka on 16 May, 2024

                              -1-
                                    CRL.RP No. 1040 of 2015


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
        DATED THIS THE 16TH DAY OF MAY, 2024
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 1040 OF 2015
BETWEEN:
   SRI. M D BASHA
   S/O K AZEEZ SAB
   AGED ABOUT 43 YEARS
   R/AT SRI DEVI NILAYA
   ISLAMPET, B T GALLI
   DAVANAGERE - 577 002.

                                               ...PETITIONER

(BY SRI. HAREESH BHANDARY T, ADVOCATE)

AND:
   THE STATE OF KARNATAKA
   REPRESENTED BY STATE PUBLIC PROSECUTOR
   HIGH COURT BUILDINGS
   BANGALORE - 560 001.

                                             ...RESPONDENT


(BY SRI. RAHUL RAI K, HCGP)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 09.07.2014 MADE IN C.C.NO.1623/2008
BY THE COURT OF J.M.F.C-II, DAVANAGERE AND THE
JUDGMENT AND ORDER DATED 26.06.2015 MADE IN
CRL.APPEAL NO.86/2014 BY THE COURT OF II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DAVANAGERE AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 01.03.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                               -2-
                                     CRL.RP No. 1040 of 2015


                           ORDER

1. This Criminal Revision Petition is filed by the petitioner,

being aggrieved by the judgment of conviction and order

of sentence dated 09.07.2014 in C.C.No.1623/2008 on

the file of the Judicial Magistrate, First Class (II Court),

Davangere and its confirmation judgment and order

dated 26.06.2015 in Crl.A.No.86/2014 on the file of II

Additional District and Sessions Judge at Davangere,

seeking to set aside the concurrent findings recorded by

the Courts below, wherein the petitioner / accused is

convicted for the offence punishable under Section 12(1)

of Karnataka Motor Vehicles Taxation Act, 1957 (for short

'Act').

2. The ranks of the parties in the Trial Court will be

considered henceforth for convenience.

Brief facts of the case:

3. It is the case of the prosecution that the accused being a

owner of the vehicle bearing its registration No.KA-17-A-

1008 has failed to make quarterly tax for the period of

01.10.2006 to 30.09.2008 for a sum of Rs.2,11,200/-.

Hence, a complaint came to be registered by P.W.1.

Based on the complaint, the jurisdictional Court issued

summons of taking cognizance and proceeded with the

case.

4. To prove the case of the complainant, the complainant

himself examined as P.W.1 and got marked three

documents as Exs.P1 to P3. On the other hand, the

accused got marked 11 documents as Exs.D1 to D11.

5. Heard Sri.Hareesh Bhandary.T, learned counsel for

petitioner and Sri.Rahul Rai.K, learned High Court

Government Pleader for the respondent - State.

6. It is the submission of the learned counsel for the

petitioner that the Courts below failed to consider the

defence of the accused that he was not in possession of

the vehicle and he was not liable to pay the tax. In fact,

though the accused produced several documents and got

those documents marked to substantiate his claim, both

the Courts have failed to consider those documents which

resulted in passing the impugned judgments.

7. It is further submitted that mere issuance of notice and

demanding the tax is not sufficient to say that, the owner

of the bus is liable to pay the tax, unless, the prosecution

proves that the accused was in possession of the vehicle

on which the tax was due. Both the Courts have

committed error in arriving at a conclusion that the

accused was in possession of the vehicle as on the date

of issuance of demand notice which is contrary to the

evidence on record. Therefore, the conviction is liable to

be set aside. Making such submission, the learned

counsel for petitioner prays to allow the petition.

8. Per contra, the learned High Court Government Pleader

justified the concurrent findings and submitted that the

documents which were produced by the accused clearly

indicate that he was in possession of the said vehicle

during the said period and he was liable to pay the tax.

9. It is further submitted that mere contending that he was

not in possession of the said vehicle cannot be absolved

of the liability of payment of tax. The Courts below after

appreciating the documentary and oral evidence on

record, recorded the conviction which is appropriate and

proper. Hence, it is not liable to be interfered with the

said findings. Making such submission, the learned High

Court Government Pleader prays to dismiss the petition.

10. After having heard the learned counsel for the respective

parties, it is appropriate to refer to Section 12(1)(a) of

the Karnataka Motor Vehicles Taxation Act, 1957 which

reads thus:

"12(1)(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;"

11. On careful reading of the above said provision, an

inference could be drawn that to register a case against

the owner of the vehicle for having not paid the tax, the

authority must establish that the registered owner has in

possession or control of the motor vehicle of which he is

liable to pay the tax.

12. In the present case, the accused got marked several

documents through P.W.1 and those documents have

been marked as Exs.D1 to D11. As per Ex.D1 and other

relevant documents marked through P.W.1 indicate that

the vehicle was not in possession of the accused from

20.07.2004.

13. The Trial Court recorded the conviction only on the

ground that the accused being the owner of the vehicle is

liable to pay the tax, the said finding is contrary to the

provision under Section 12(1)(a) of the Act. Therefore,

the said finding for recording the conviction is liable to be

set aside. As per the said Section 12(1)(a) of the Act,

the authority not only to prove that the accused is the

owner of the vehicle, but also, he is in possession and

control over the said vehicle of which the tax is liable to

paid.

14. On careful reading of the provision of the Act and also the

finding of the Courts below in recording the conviction, I

am of the considered opinion that both the Courts below

have committed error in arriving at a conclusion.

Therefore, the said findings are required to be set aside

and the accused is liable to be acquitted.

15. In the light of the observation made above, I proceed to

pass the following:

ORDER

i) The criminal revision petition is allowed.





     ii)    The judgment of conviction and order of

            sentence        dated    09.07.2014     passed     in

C.C.No.1623/2008 by the Judicial Magistrate,

First Class (II Court), Davangere and the

judgment and order dated 26.06.2015

passed in Crl.A.No.86/2014 by the II

Additional District and Sessions Judge at

Davangere, are set aside.