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Judgment
Rathnakala, J.—Heard the learned counsel for the petitioner and the learned Addl. SPP appearing for the respondent - State.
The petitioner herein is arraigned as accused in a private complaint filed by the respondent - RTO under Section 3 and 4 r/w Sec. 12(1)(a) of KMV Act, 1957, on the allegation that the accused being the owner of the vehicle bearing Registration No. CTM 9963 failed to pay taxes of Rs. 1,18,056/- for the period from 01.04.1988 to 30.09.2006. On presentation of the complaint summons was issued to the accused and the accused on appearance filed application under Section 249 of Cr.P.C. to drop the proceedings against him. The learned Magistrate rejected the said application on the ground that since it is a summons case, there is no provision to discharge the accused.
The learned counsel Mr. Bipin Hegde appearing for the petitioner submits that without application of mind as to whether or not petitioner is in possession or control of the vehicle, the summons is issued to the petitioners. He places his reliance on the Division Bench of this Court in the case of Vijayakumar Mane Vs. Regional Transport Officer and Others, , at para-8 which read thus:
"8. We do not find any flaw or error either in the reasoning or conclusions recorded by learned single Judge. The findings recorded by the learned single Judge are in consonance with the provisions of Sections 4 and 5 of the Act. We are of the considered opinion that the appellant-petitioner should be non-suited only on the basis of provisions of sub-section (2) of Section 9 of the Taxation Act. Sub-section (1) of Section 9 of the Taxation Act does not relieve the owner from payment of M.V. tax when such owner ceased to be in possession or control of the vehicle in question. The provisions of sub-section (1) as well as that of sub-section (2) are quite clear, unambiguous and precise and they do not admit more than one meaning. A careful reading of provisions of sub-section (1) of Section 9 makes it very clear that by enacting sub-section (1), the legislature has fastened the liability to pay tax not only on the owner of the vehicle, but also on those who come in possession or to have control of the vehicle. IN other words, sub-section (1) extends the liability to pay M.V. Tax to others also, who come to be in possession or to have control of the motor vehicle. This position is further made clear by the provisions of sub-section (2) of Section 9 . Sub-section (2) in unmistakable term, states that the liability of the person who has transferred the ownership or has ceased to be in possession or control of the vehicle to pay the motor vehicle tax is not affected by the provisions of sub-section (1) of Section 9 of the Taxation Act. That means the liability fastened to the owner of the vehicle to pay the M.V. Tax continues to exist even after such owner loses possession and control of the vehicle and the possession and control of vehicle comes into the hands of another person. That is the only reasonable way of construing the provisions of Section 9 of the Taxation Act, particularly keeping in mind the liability in regard to payment of tax charged under Section 4 of the Taxation Act. However, Sri C.B. Srinivasan would contend that the provisions of sub-section (2) of Section 9 would be attracted only in a case where the owner of the Motor Vehicle before transferring the ownership of such vehicle or before ceasing to be in possession or to have control of such vehicle did not pay the tax, and in the instant case, admittedly the petitioner had paid tax up to 31-3-1996 and therefore, the liability to pay tax in respect of the period with effect from 1-4-1996 has been passed on to KSFC by virtue of the seizure of the vehicle and taking over possession and control of the vehicle with effect from 16-3-1996. The above submission of the learned counsel for the appellant is not acceptable to the Court. If the owner himself pays the motor vehicle tax due in respect of a vehicle till the date on which he transfers or loses possession or control of such vehicle, recovery of tax for the period prior to the date of transfer or the date of losing possession and control of the vehicle, would never arise. It is trite that the successor in interest would be liable to pay the motor vehicle tax as mandated in terms of Section 4 read with Section 3 of the Taxation Act. As already stated supra, the liability to pay the tax cast on the owner of the vehicle is in no way diluted or minimized or taken away by the provisions of sub-section (1) of Section 9 . An additional liability is created and fastened on any person who acquires ownership of such vehicle by way of transfer or any person who comes in possession or to have control of such vehicle. This position is made clear by unambiguous provisions of sub-section (2) of Section 9 of the Taxation Act."
The learned counsel for petitioner further submits that the vehicle in question met with an accident on 02.02.1988. On 07.02.1989, the petitioner wrote a letter to the RTO bringing to his notice about the accident. The owner of the vehicle in question expired on the date of accident itself, i.e., on 26.03.1988. The father of the deceased/owner of the vehicle filed an application to the jurisdictional Court for release the said vehicle. Accordingly, on 26.02.1989 the vehicle in question was released in favour of the father of the deceased. The petitioner herein in the above circumstances, having no control or physical possession of the property could not have been arrayed as accused to answer the charges.
The learned Addl. SPP appearing for respondent - RTO submits that the petitioner being the financial institution which had lent the loan on mortgage of the vehicle in question, is deemed to be in its control and possession, since they had issued Form No. 30 to the RTO. Therefore, the petitioner alone is responsible for payment of tax and for subsequent correspondence, and the petition is liable to be rejected.
The fact is the respondent - RTO had initiated proceedings for recovery of road tax payable for different periods in respect of the vehicle hypothecated to Petitioner - KSFC. Having found the name of the petitioner in the B register extract has lodged the private complaint in respect of the said vehicle. In view of the judgment of the Division Bench of this Court supra, and in the light of the fact that the nature of interest possessed by the accused, the initiation of the proceedings against the accused is bad in law. The learned Magistrate before taking cognizance ought to have taken into consideration, the extent of liability of the financial Corporation with reference to Section 9 of the Act. When the order of the learned Magistrate in taking cognizance of the offence is bad in law the impugned action in issuance of summons is liable to be quashed. Hence, I proceed to pass the following order:
Order dt. 28.05.2014 in regard to issue of summons to the petitioner is quashed.
Liberty is reserved to the Complainant to produce additional documents in support of the complaint to establish the possession of the vehicle in question with the petitioner-accused.
The learned Magistrate is directed to consider the case afresh in the light of the judgment of the Division Bench referred to above and the documents to be produced by both the parties, thereafter decide the matter in accordance with law.
With the above observations and directions, the petition is disposed of.