M/S Shree Vinayak Infratech Pvt. Ltd. Vs State of Karnataka

M/S.SHREE VINAYAK INFRATECH PVT. LTD. A PRIVATE LIMITED COMPANY REGISTERED UNDER THE COMPANIES ACT, 2013 REPRESENTED BY ITS MANAGING DIRECTOR SURAJ CHINDALIA OFFICE AT: GROUND FLOOR 2946/E, DIVYA DARSHANA, OPP. MARUTHI MANDIR, SERVICE ROAD, VIJAYANAGAR, BENGALURU-560040

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…PETITIONER

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(BY SRI. NIKHIL GUPTA, ADVOCATE FOR

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SRI. GAURAV C PATIL, ADVOCATE)

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AND:

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA THROUGH RTO JNANABHARATHI, REPRESENTED BY STATE PUBLIC PROSECUTOR, KARNATAKA HIGH COURT BUILDING, BENGALURU-560001.

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REGIONAL TRANSPORT OFFICER, OFFICE OF THE REGIONAL TRANSPORT OFFICER, JNANABHARATHI, VISHWESHWARAIAH LAYOUT, RAILWAY MEN'S EMPLOYEES LAYOUT 2^ND STAGE, SMV, RAILWAY LAYOUT, JNANA GANGA NAGAR, BENGALURU, KARNATAKA-560110

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…RESPONDENTS

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(BY SMT. SOWMYA R., HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NOS.1 AND 2)

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NC: 2025:KHC:26014 CRL.P No. 6626 of 2025

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HC-KAR

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THIS CRL.P IS FILED UNDER SECTION 482 CR.PC (FILED U/S 528 BNNS) PRAYING TO CALL FOR THE RECORDS IN C.C.NO.1742/2024 PENDING ON THE FILE OF THE HON'BLE METROPOLITAN MAGISTRATE COURT-VI, BENGALURU AND QUASH THE ENTIRE CHARGE SHEET (ANNEXURE-A) AND ORDER TAKING THE COGNIZANCE DATED 21.05.2024 FOR THE OFFENCES PUNISHABLE UNDER SECTION 3, 4 AND 12 OF THE KARNATAKA MOTOR VEHICLES TAXATION ACT, 1957 IN C.C.NO.1741/2024 ALL FURTHER PROCEEDINGS ARISING THEREFROM INITIATED AGAINST THE PETITIONER AND PENDING ON THE FILE OF THE LEARNED JMFC, (TRAFFIC COURT-VI), BENGALURU (ANNEXURE-B).

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In this petition, the petitioner seeks the following reliefs:-

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a) Call for records in C.C.No.1742/2024 pending on the file of the Hon'ble Metropolitan Magistrate Traffic Court-VI, Bengaluru;

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b) Quash the Entire Charge sheet (Annexure - A) and order taking Cognizance dated 21.05.2024 for the offences punishable under Sections 3, 4 and 12 of the Karnataka Motor Vehicles Taxation Act, 1957 in C.C.No.1742/2024 all further proceedings arising therefrom initiated against the petitioner and pending on the file of the learned JMFC (Traffic Court-VI), Bengaluru (Annexure - B);

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c) Grant such other relief/s as this Hon'ble Court deems fit in the facts and circumstances of the instant matter, in the interest of justice.

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A perusal of the material on record would indicate that

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the petitioner was earlier the owner of the subject vehicle being a Tipper vehicle bearing registration No.KA-41-4233. Due to long lapse of time, the petitioner was not in a position to use the vehicle any further and since the same was not roadworthy, the petitioner addressed a letter dated 06.12.2018 to the respondent-RTO intimating him that the vehicle was not in a good condition and was not in a state to be used and surrendered all the documents of the vehicle and requested for issuance of Non-use Certificate. In pursuance of the same, the respondent - RTO requested the RTO, Chikkodi to conduct inspection periodically, which culminated in a report dated 02.08.2019, wherein it was found that the subject vehicle was found in a non-use condition. In view of the vehicle being in a non-use condition, the petitioner proceeded to scrap the vehicle by selling the same to scrap dealer vide sale deed dated 21.08.2019.

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Learned counsel for the petitioner submits that despite

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the vehicle being in a non-use condition and thereafter being

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scraped by selling the same to scrap dealer as long back as on 21.08.2019, the respondents have instituted the impugned proceedings without appreciating that the petitioner was not in a custody or possession of the vehicle, which has already been sold by way of scrap to scrap dealer. Consequently, the petitioner cannot be held to be guilty of the alleged offences punishable under Sections 3, 4 and 12 of the Karnataka Motor Vehicles Taxation Act, 1957 and as such, the impugned proceedings in C.C.No.1742/2024 and all further proceedings pursuant thereto initiated against the petitioner deserve to be quashed. In support of his contentions, reliance is placed on the following judgments and the same are extracted below:-

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i) Vinayaka Bhat vs. State by Assistant Regional Transport Officer [ILR 1993 KAR 176]

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"All these Criminal Revision Petitions are preferred by the petitioners against the order dated 24.2.1990 passed by the Munsiff and J.M.F.C., Sorab, in C.C.Nos.993/89 to 996/89, 998/89 to 1000/89, 1078/89 to 1084/89 and 887/89 respectively. Since all these petitions involve a common question of law, I have heard them together and I am passing a common order in them.

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HC-KAR

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2. I have heard the learned Counsel for the petitioner and the learned Government Pleader in all these petitions.

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3. The petitioner was prosecuted for not paying the annual tax of the vehicle for different period starting from 1.1.74 upto 31.12.1988. After the charges were framed against the petitioner, to which he pleaded not guilty, the prosecution examined R.W.1 and the statement of the petitioner was recorded under Section 313 Cr.P.C. The learned Magistrate convicted the petitioner for the offences punishable under Section 12(1) of the Karnataka Motor Vehicles Tax Act, 1957 (which will hereinafter be referred to as 'the Act', and sentenced him to pay a fine of Rs.100/- or in default to undergo S.I. for one month. It is against the order of conviction passed by the Magistrate in different criminal cases against the petitioner, that these Petitions are filed.

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4. The defence taken by the petitioner was that the vehicle in question was very old and it was scrapped. But the learned Judge has held that he should have been vigilant in reporting the condition of the vehicle to the concerned authority and should have got the registration cancelled. The question of law involved in this case is covered by a Judgment of a Division Bench of this High Court. This Court in W.P.No.1807/1966. Their Lordships have held as follows:

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"In order to levy tax on a motor vehicle under the Act, three conditions have to be satisfied, viz., (1) the possession of a Motor Vehicle (2) the Motor Vehicle must be suitable for

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use on roads, and (3) the Vehicle should be kept in the State of Mysore. By reason of the Explanation to Sub-section (1) of Section 3 of the Act, the Motor Vehicle of which the certificate of registration is current shall be deemed to be a vehicle suitable for use on roads. The presumption to be drawn by reason of the Explanation is only in respect of a vehicle being suitable for use on roads provided a Motor Vehicle is in existence. Where a Motor vehicle is in existence and its Certificate of Registration is current, the authorities under the Act are entitled to presume that the vehicle is suitable for use on roads. Such a presumption can be drawn from the existence of a vehicle provided the Certificate of Registration is current. There is no provision in the Act to presume that the Motor vehicle is in existence. If a Motor vehicle is not in existence which is a fact to be ascertained on enquiry, the levy of tax under the Act is not attracted. One of the circumstances relied on by the respondents for holding that the petitioner is liable to pay the tax is the fact that the intimation that the vehicle had been scrapped on 24.04.1963 was given under Section 34(1) of the Motor Vehicles Act only 30.07.1964. The obligation to intimate that a vehicle had been scrapped as provided under Section 34 (1) of the Motor Vehicles Act is only for the purposes of that Act and not for the purposes of the Motor Vehicles

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Taxation Act, 1957. The requirement as to giving intimation under Section 34 (1) of the Motor Vehicles Act is not relevant for the purpose of levy of tax under the Act. The existence of a Motor Vehicle is a condition precedent for the levy of tax under the Act. The Authorities under the Act have to enquire and determine as a question of fact whether the relevant period. If they come to the conclusion that a Motor vehicle was in existence during the vehicle was suitable for use on roads provided the Certificate of Registration was current. In our opinion, the respondents were not justified in holding that the petitioner is liable to pay the tax by reason of the fact that the petitioner did not intimate the fact of the vehicle having been scrapped and also by reason of the explanation to Sub-section (1) of Section 3."

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Therefore, the question whether the motor vehicle was scrapped and not in existence is a fact to be ascertained on enquiry and no such enquiry has been held by the respondent in this case. There is an obligation on the petitioner to intimate that the vehicle has been scrapped under Section 34 (1) of Motor Vehicles Act. But that requirement is not relevant for the purpose of levy of tax under the Act. The existence of a motor vehicle is a condition precedent for levy of tax under the Act. Therefore, the respondent has to enquire and determine as a question of fact, whether the motor vehicle was in existence during the relevant period. There is no enquiry by the respondent in this

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regard and therefore, the trial Court was wrong in convicting the petitioner for the offences with which he has been charged. Hence, I proceed to pass the following order:

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ORDER

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The Criminal Revision Petitions are allowed and the orders passed by the trial Court in these Revision Petitions are set aside and the petitioner is discharged of the offences with which he has been charged in this case. Respondent is at liberty to enquire and determine the question whether the motor vehicle in question was in existence during the period and thereafter, take action against the petitioner, in accordance with law."

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ii) Muniswamy vs. State by Regional Transport Officer [ILR 2006 KAR 3032]

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"In all these revision petitions as common questions of facts and law are raised, they are clubbed together, heard and disposed of by this common judgment.

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2. The facts in brief leading to these revision petitions are that, a complaint came to be registered against the revision petitioners under Section 12(1) as per the provisions of the Karnataka Motor Vehicles Taxation Act, 1957 (Act for short) by the jurisdictional RTO alleging that the accused/ the owner of the lorry bearing No. MYY 6891 being liable to pay the tax as per the provisions contained under Section 3(4)(a) of the Act, had not paid the same and had fallen in arrears for the period 1.5.1999 to 1.5.2002. Demand notices were

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sent to the accused calling upon him to pay the tax. Though served with notice by registered post, the accused did not comply with the demand made. Therefore, the RTO filed charge sheet against the accused in respect of offences allegedly committed for different periods which came to be numbered as CC No.1339/02, 1340/02, 1341/01, 1342/01 and 1343/02 on the file of the JMFC, Hospet. The accused appeared before the court and pleaded not guilty. The prosecution examined PWs 1 and 2 in support of its case. However, no evidence was adduced on behalf of the accused. The Trial Court upon consideration of the evidence both the oral and documentary held that the accused was guilty of the offences and imposed penalty of Rs.2,500/- in each of the cases and in default to undergo simple imprisonment for one month.

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3. The defence set-up by the accused was that the person in whose, favour the vehicle was hypothecated had seized the vehicle and taken custody of the same and eventually got transferred the vehicle in his name even in the RC book and therefore, the accused was not liable to pay the tax. This is discernible from the cross examination of the prosecution witnesses. The Trial Court refused to take note of this defence stating that in the statement given by him under Section 313 of the Code of Criminal Procedure the accused did not come forward with any such defence and therefore he could not be permitted to take-up the said defence. The Magistrate held that since the accused failed to show that he was not in possession of the vehicle, it was to be inferred that he continued to be in possession. The

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Sessions Judge, on appeal, has affirmed the findings recorded by the Magistrate holding that nothing prevented the accused to implicate the person Sri Venugopal in whose favour the vehicle was allegedly hypothecated and who had taken over the possession of the vehicle, by filing an application under Section 319 of the Code of Criminal Procedure. The Sessions Judge further opines that though it was suggested in the cross-examination of the RTO that the accused was not in a possession, no suggestion was made at any time that the accused was no longer the owner of the vehicle.

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4. The learned Counsel appearing for the petitioner contends that the approach adopted by both the courts below is illegal and impermissible in law as the status of the accused has to be positively established by the prosecution placing material on record to show that the accused was in possession or control of the motor vehicle which was liable to pay tax as provided under Section 12(1)(a).

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5. In the light of the contentions urged, the point that arises for consideration is-

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"Whether the Judgments under challenge suffer from any illegality requiring interference in this Revision Petition?"

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6. Both the courts below have proceeded on the basis that the accused being the registered owner of the vehicle was liable to be proceeded against under Section 12(1) of the Act. As regards the actual possession of the vehicle they

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have proceeded only on the basis of inference drawn from the non-production of any material by the accused substantiating the seizure of the vehicle by the owner. A perusal of the evidence of PW1 Hanumanthappa Thambada - the complainant shows that he was not aware as to who was in possession and custody of the vehicle. He further admits that from 2002 onwards he has not verified the records to know whose name is entered in the RC book. It is thus clear that even as per the complainant, he was not aware as to who was in possession of the vehicle. It is for the prosecution to establish not only that the petitioner was the registered owner but also that he was in possession or control of the vehicle before he could be held guilty under the provisions of Section 12(1) of the Motor Vehicle Taxation Act.

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7. A perusal of the provisions contained in Subsection (1)(a) of Section 12 show that, on a charge under Section 12(1)(a) it is not enough for the prosecution to merely produce evidence that the accused was the registered owner of the vehicle. It must further establish that either as registered owner or otherwise, he had possession or control of the vehicle in respect of which there was nonpayment of tax. The said provision is usefully extracted hereunder:

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"12. Penalties.- (1) Whoever -

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(a) as a registered owner or otherwise has possession or control of any motor vehicle

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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

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(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........"

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A perusal of the provisions, as extracted above, would reveal that as per Section 12(1)(a), it is clear that no offence is committed u/s 12(1)(a) unless a person who has not paid the tax has possession or control of the motor vehicle either as registered owner or otherwise. It is not enough for the prosecution to merely produce the evidence that the accused was the registered owner of the vehicle. The prosecution had to further establish that either as registered owner or otherwise, the accused had possession or control of the motor vehicle in respect of which there was non-payment of tax. In fact, this question fell for consideration in the case of STATE OF MYSORE vs. M.S. RAMAIAH wherein a Division Bench of this Court has, after referring to Section 6 of the repealed Mysore Motor Vehicles Taxation and Tolls Act,

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1951, which corresponded to Section 12(1) of the Mysore Motor Vehicles Taxation Act, 1957 which repealed the earlier enactment, after noticing the contrast between the language of Section 6 of the repealed Act and Section 12(1)(a) of the repealing Act, has held that "whereas u/s 6 of the Act, a registered owner committed an offence if he did not pay the tax due by him, no offence is committed u/s 12(1)(a) unless a person who has not paid the tax has possession or control of the motor vehicle either as registered owner or otherwise".

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8. In the present case the Courts below have proceeded on an erroneous interpretation of the provision. They have also erred in holding that it was for the accused to establish that he lost possession of the vehicle and was no longer in the custody of the same.

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The approach adopted by the Courts below being illegal, the matter requires reconsideration. Hence, I pass the following:

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ORDER

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Criminal revision petitions are allowed. The judgments under challenge are set-aside. The cases are remanded back to the Magistrate for reconsideration. It is open to the parties to lead evidence afresh."

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Per contra, learned High Court Government Pleader

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for the respondents submits that there is no merit in this petition and the same is liable to be dismissed.

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A perusal of the material on record would indicate that due to long non-use of the vehicle due to lapse of time, the petitioner submitted an application before the RTO seeking inspection and issuance of a Non-use Certificate, which was issued by the respondent-RTO in favour of the petitioner based on the inspection report vide Annexure - E dated 02.08.2019. In view of the aforesaid inspection report, which confirms that the subject vehicle was in a non-use condition and the communication intimating the petitioner that the vehicle was in a non-use condition, the petitioner went ahead and sold the subject vehicle in favour of scrap dealer vide sale deed dated 21.08.2019.

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The aforesaid facts and circumstances and material on record and the judgments of this Court referred to supra, would clearly indicate that so long as subject vehicle was in a non-use condition and was not in custody or possession of the petitioner, who had sold the same in favour of scrap dealer much prior to the impugned proceedings, the petitioner cannot be incriminated for

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the alleged offences punishable under Sections 3, 4 and 12 of the Karnataka Motor Vehicles Taxation Act, 1957 and consequently, the impugned proceedings deserves to be quashed.

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In the result, I pass the following:

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ORDER

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(i) The petition is hereby allowed.

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(ii) The charge-sheet at Annexure - A and the order taking cognizance dated 21.05.2024 for the

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offences punishable under Sections 3, 4 and 12 of the Karnataka Motor Vehicles Taxation Act, 1957 in C.C.No.1742/2024 pending on the file of the learned JMFC, (Traffic Court-VI), Bengaluru and all further proceedings arising therefrom initiated against the petitioner are hereby quashed.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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PMR

M/S Shree Vinayak Infratech Pvt. Ltd. v. State of Karnataka

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M/S Shree Vinayak Infratech Pvt. Ltd. v. State of Karnataka

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