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State of Maharashtra Vs. P.A. Poonawalla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeals Nos. 608 and 609 of 1980
Judge
Reported in1984(1)BomCR558; 1984MhLJ847
Acts Bombay Motor Vehicles Tax Act, 1958 - Sections 4, 4(1), 16(1), 16(2) and 17
AppellantState of Maharashtra
RespondentP.A. Poonawalla
Excerpt:
.....as required by section 4 of the act. he paid the tax on 21st june, 1978, but he failed to pay the penalty as..........acquittal of the respondent accused for the offence under s. 16(1) read with s. 4(1) of the bombay motor vehicles tax act, 1958 (hereinafter for the sake of brevity referred to as 'the act').2. the following facts are not in dispute. the respondent p. a. poonawalla was the registered owner of motor-car bearing no. bmu 5668. he was in possession and was in use of the vehicle during the period from january, 1977 to december, 1977 and from january, 1978 to june, 1978, but he failed to pay the tax in respect of the said vehicle at the commencement of the said two quarters in advance as required by section 4 of the act. a notice for payment of tax was issued to him. he paid the tax on 21st june, 1978, but he failed to pay the penalty as demanded. he by his letter dated 12th june, 1978 (ex. a).....
Judgment:

1. The State of Maharashtra preferred these two appeals against the acquittal of the respondent accused for the offence under S. 16(1) read with S. 4(1) of the Bombay Motor Vehicles Tax Act, 1958 (hereinafter for the sake of brevity referred to as 'the Act').

2. The following facts are not in dispute. The respondent P. A. Poonawalla was the registered owner of motor-car bearing No. BMU 5668. He was in possession and was in use of the vehicle during the period from January, 1977 to December, 1977 and from January, 1978 to June, 1978, but he failed to pay the tax in respect of the said vehicle at the commencement of the said two quarters in advance as required by Section 4 of the Act. A notice for payment of tax was issued to him. He paid the tax on 21st June, 1978, but he failed to pay the penalty as demanded. He by his letter dated 12th June, 1978 (Ex. A) informed the R.T.O., Bombay, that he sold the vehicle as scrap on 8th June, 1978. As regards the demand for penalty, he informed the R.T.O. that he would pay the same at the rate that might be decided by a court of law, in case he was not inclined to condone the payment of penalty.

3. On 23rd March, 1979 the Inspector of Motor Vehicles, Regional Transport Office, filed two complaints against the respondent for the offence under Sec. 16(1)(a) and (b) read with S. 4(1) of the Act. It was alleged in the complaints that the accused, the registered owner of motor car No. BMU 5668, used or kept for use the vehicle without having paid the motor vehicles tax at Rs. 176/- plus Rs. 176/- equal to Rs. 352/- for the period from January, 1977 to December, 1977 in advance and in another case tax at Rupees 97/- plus Rs. 97/- equal to Rs. 194/- for the period from January, 1978 to June 1978 in advance as required by S. 4(1) of the Act. It was further stated in the said complaints that the accused paid taxes due on 21st June, 1978. It was alleged that the accused committed an offence under S. 16(1)(a) and (b) of the Act in both the cases.

4. The accused denied that he committed any offence. According to the accused, he was not in possession of the vehicle on the date the complaints were filed against him and as such he was not liable to be convicted of the offence under section 16(1)(a) and (b) of the Act.

5. The learned Metropolitan Magistrate, 17th Court, Mazgaon, Bombay, accepted the defence of the accused that as he was not in possession of the vehicle on the date the prosecution was launched against him, he was not liable to be punished under section 16(1)(a) of the Act, and as such he acquitted him in both the cases.

6. Feeling aggrieved, the appellant State has come up in appeal in both the cases.

7. The learned Public Prosecutor Mrs. Ranjana Samant-Desai contends that the learned trial Magistrate was wrong to interpreting the provisions of Section 16(1)(a) of the Act. According to her, it is that the requirement of Section 16(1)(a) that the accused should be in possession of the vehicle on the day the prosecution is launched against him. The only requirement of Section 16(1)(a), according to her, is that the registered owner has the possession or control of any motor vehicle used or kept for use in the State without having paid the amount of the tax due in accordance with the provisions of the Act in respect of such vehicle. She submitted that the accused was admittedly in possession or control of motor car No, BMU 5668 during the period from January 1977 to December 1977 and January 1978 to June 1978 and he had not paid the tax payable in respect of the said vehicle in advance as required by Sec. 4 of the Act and, therefore, he was liable to be convicted and sentenced as per the provisions of Section 16(1)(a) of the Act. The accused, on the other hand, contends that he had already paid the arrears of tax on 8th June 1978 and had not paid only the penalty demanded by the R.T.O. He submitted that the tax and the interest, so also the penalty, could be recovered by the R.T.O. under other provisions of the Act. He pointed out that as per sub-sec, (2) of Section 16 of the Act the amount of any tax and interest due could be recovered as if it were a fine. According to him, as he was not in possession of the vehicle on the date the prosecution was launched against him, the provisions of Section 16(1)(a) of the Act could not be invoked and at the most the prosecution could resort to the provisions of residuary Section 17. The learned trial Magistrate has accepted the contention of the accused for the reasons set out by him in paragraph 6 of his judgment. According to the learned Magistrate, the prosecution was launched in the year 1979 and at that time the accused was not in possession of the vehicle nor was he having the control of the vehicle, and, therefore, in view of the present tense used in Section 16(1)(a) of the Act, he could not be convicted under that section.

8. I am unable to agree with the learned trial Magistrate. The relevant provisions of Section 16(1) read as follows :-

'(1) Whoever -

(a) as a registered owner or otherwise, has the possession or control of motor vehicle used or kept for use in the State without having paid the amount of the tax, or interest, due in accordance with the provisions of this Act in respect, of such vehicle ..........Shall, on conviction, be punished -(i) 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 the annual tax payable in respect of such vehicle : .........'

The provisions of Section 16(1)(a) of the Act reproduced above do not require that the registered owner must be in possession of the motor vehicle on the date of the prosecution. The requirements of the section are that the registered owner must have the possession or control of the motor vehicle during the period for which he has not paid the tax. In the present case admittedly the accused as registered owner was in possession or control of the motor vehicle during the period from January 1977 to December 1977 and January 1978 to June 1978 without having paid the amount of tax due in accordance with the provisions of Section 4 of the Act. It is true that accused has subsequently paid the tax on 8th June 1978, but that cannot exonerate him from the offence that he has committed under section 16(1)(a) of the Act by remaining in possession or control of the vehicle during the aforesaid period. The interpretation of the learned trial Magistrate of the provisions of Section 16(1)(a) that the accused should be in possession of the vehicle on the date of prosecution cannot be accepted. The words which are not there cannot be imported while interpreting the section. From the use of the present tense, which refers to the period during which the accused remained in possession of the vehicle without payment of tax, it cannot be said that the accused should also be in possession of the vehicle on the date the complaints under section 16(1)(a) of the Act are filed against him.

9. Consequently, I find that the learned trial Magistrate was wrong in acquitting the accused. The offence under section 16(1)(a) of the Act is duly proved in both the cases, and as such the accused is liable to be convicted and sentenced for the said offence in both the cases.

10. Regarding the sentence to be awarded, as per the provisions of S. 16(1)(i) of the Act reproduced above, the fine to be levied cannot 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 the annual tax payable in respect of such vehicle. In the present case I think the imposition of prescribed minimum fine will meet the ends of justice.

11. Consequently, both the appeals are allowed, the acquittal of the respondent in both the cases is set aside and he is convicted of the offence under S. 16(1)(a) of the Bombay Motor Vehicles Tax Act, 1958, and is sentenced to pay a fine of Rs. 97/- in each of the two cases, in default S.I. for seven days in each case. The respondent in each case is granted fifteen days time to pay the fine.

12. Appeals allowed.


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