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Mytheen Kunju Vs. State - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberCriminal M.P. No. 62 of 1959 and Criminal R.P. No. 65 of 1957
Judge
Reported inAIR1960Ker86; 1960CriLJ349
ActsTravancore-Cochin General Sales Tax Act, 1125 - Sections 19; Code of Criminal Procedure (CrPC) , 1898 - Sections 386(1); Indian Penal Code (IPC) - Sections 64
AppellantMytheen Kunju
RespondentState
Appellant Advocate Kalathil Velayudhan Nair, Adv.
Respondent AdvocatePublic Prosecutor
DispositionPetition allowed
Excerpt:
.....that the said amount is not really a fine imposed by way of penalty. sub-section (3) states that where the court issues a warrant to the collector under sub-section (1) clause (b), such warrant shall be deemed to be a decree and the collector to be the decree-holder within the meaning of the code of civil procedure, and the nearest civil court by which any decree for a like amount could be executed shall, for the purpose of the said code, be deemed to be the court which passed the decree, and all the provisions of that code as to execution of decrees shall apply accordingly:.....both, of the defaulter; provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant unless for special reasons to be recorded in- writing it considers it necessary to do so.' sub-section (2) of section 386 empowers the state government to make rules regulating the manner in which warrants under clause (a) of sub-section (j) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. sub-section (3) states that where the court issues a warrant to the collector under sub-section (1) clause (b), such warrant.....
Judgment:

Sankaean, C.J.

1. The petitioner was prosecuted tinder Section 19 of the Travancore-Cochin General Sales Tax Act (Act XI of 1125). He was convicted under Clause (b) of that section, for his failure to pay within the time allowed, the tax assessed on him and the fine due from him under the provisions of the Sales Tax Act. The learned First Class Magistrate who convicted the petitioner under Section 19(b), sentenced him to pay a fine of Rs. 415/- and also directed him to pay the tax of Rs. 921-14 annas, The petitioner preferred an appeal against that conviction and sentence and the learned Sessions Judge modified the order of the trial court by reducing the fine to Rs. 50/-. It was also directed that the petitioner has to pay a sum of Rs. 921-14 annas by way of tax assessed on him and a further sum of Rs. 12 by way of license fee.

A general direction was also made that in default the petitioner will undergo simple imprisonment for 3 weeks. The revision petition filed by the petitioner against the order of the Sessions Court proved unsuccessful. Subsequently the petitioner appears to have paid the fine that had been imposed on him by the learned Sessions Judge. In View of his default to pay the other amounts due from him as per the order of the Sessions Court and which was confirmed by the High Court, a warrant of arrest was issued against the petitioner. He has filed the present petition questioning the legality of the order for his arrest and imprisonment as a mode of enforcement of the direction to pay the arrears of tax and license fee due from him.

2. The point raised by the petitioner has to be decided in the light of the provisions contained in Section 19 of the General Sales Tax Act. That section runs as follows:

'19. Offences and penalties--Any person who,

(a) wilfully submits an untrue return or fails to submit a return as required by the provisions of this Act or the rules made thereunder, or

(aa) wilfully submits an untrue statement or fails to submit a statement as required by Sub-section (2) of Section 5A, or

(b) fails to pay within the time allowed, any tax assessed on him or any fee due from him, under this Act, or

(c) prevents or obstructs inspection or entry by any officer authorised under Section 17, in contravention of the terms thereof, or

(d) fraudulently evades the payment of any tax assessed on him, or any fee due from him under this Act, or

(e) fails to submit an application for registration as required by Section 10, Sub-section (1), or

(f) collects any amount by way of tax under this Act in contravention of the provisions of Section 11, Sub-section (1), or

(g) fails to pay the amounts specified in Section 11, Sub-section (2) within the prescribed time, or

(h) wilfully acts in contravention of any of the provisions of this Act, shall on conviction by a Magistrate of the First Class, be liable to a fine which may extend to one thousand rupees and in the case of a conviction under Clause (b), (d), (f) or (g), the Magistrate shall specify in the order the tax, fee or other amount, which the person convicted has failed or evaded to pay or has wrongfully collected, and the tax, fee or amount so specified shall be recoverable as if it were & fine under the Code of Criminal Procedure for the time being in force.'

The operative portion of that section makes a clear distinction between the sentence of fine that may be imposed on the defaulter and the arrears of tax and other amounts that may be found due from him. The section states that whoever wilfully acts in contravention of any of the provisions of the Act, shall, on conviction by a Magistrate of the First Class, be liable to a fine which may extend to one thousand rupees. Then there is the further provision that in the case of a conviction under Clause (b), (d), (f) or (g), the Magistrate shall specify in the order, the tax, fee or other amount which the person convicted has failed or evaded to pay or has wrongfully collected, and the tax, fee or amount so specified shall be recoverable as if it were a fine under the Code of Criminal Procedure for the time being in force.

The amount thus specified in the Magistrate's order is obviously distinct and different from the penalty imposed on him by way of fine for his default. Rs. 1,000/- has been specified as the upper limit of the fine that can be imposed on a defaulter. No such restriction could be imposed in respect of the other amount that may be specified in the Magistrate's order as recoverable from the defaulter. It may be more or less than the maximum amount of the fine of Rs. 1,000/- and it will necessarily depend upon the tax or the other amount that may be actually found due from the defaulter. The direction contained in Section 19 that the amount thus specified in the Magistrate's order, shall be recoverable as if it were a fine under the Code of Criminal Procedure, clearly indicates that the said amount is not really a fine imposed by way of penalty.

The legislative sanction for the recovery of such amount as if it were a fine, cannot have the effect of placing it in the category of fine imposed as a penal liability. The expression 'as if it were a fine' necessarily means that it is not a fine, as understood in law. In respect of the amount specified in the Magistrate's order as recoverable from the defaulter under the provisions of the General Sales Tax Act the direction in Section 19 goes only to the extent of adopting the procedure prescribed by the Code of Criminal Procedure for the recovery of a fine. The procedure governing that matter is the procedure prescribed by Section 386 of the Code of Criminal Procedure, That section states:

'(1) Whenever an offender has been sentenced to pay a fine, the court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter;

Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in- writing it considers it necessary to do so.'

Sub-section (2) of Section 386 empowers the State Government to make rules regulating the manner in which warrants under Clause (a) of Sub-section (j) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. Sub-section (3) states that where the Court issues a warrant to the Collector under Sub-section (1) Clause (b), such warrant shall be deemed to be a decree and the Collector to be the decree-holder within the meaning of the Code of Civil Procedure, and the nearest civil court by which any decree for a like amount could be executed shall, for the purpose of the said Code, be deemed to be the court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

The procedure thus prescribed by Section 386 of the Code of Criminal Procedure can be followed mutatis mutandis for the recovery of the amount specified in the order of the Magistrate under Section 19 of the General Sales Tax Act as due from the defaulter. It is obvious that the proviso to Sub-section (1) of Section 386 of the Code of Criminal Procedure can only apply to a sentence of fine which provides for 'imprisonment in default of payment of such fine. This proviso cannot apply to an amount specified in the order passed by the Magistrate under Section 19 of the General Sales Tax Act as the amount due from the defaulter under the provisions of that Act, It is also significant to note that the proviso to Sub-section (3) of Section 386 of the Code of Criminal Procedure expressly states that a warrant issued under Sub-section (1), Clause (b) shall not be executed by the arrest or detention in prison of the offender. Subject to these safeguards, the procedure prescribed by Section 386 can be followed for the recovery of the amount due from a defaulter under the provisions of the General Sales Tax Act, as may be specified in the order passed by the Magistrate under Section 19 of that Act.

This section does not sanction the arrest and detention of the defaulter in prison as a means of recovery of the amount due from him as specified in the Magistrate's order. Section 64 of the Indian Penal Code cannot also be invoked for the enforcement of the direction made by the Magistrate in an order passed under Section 19 of the General Sales Tax Act regarding the amount to be recovered by way of arrears of tax, license fees etc., from a defaulter. Section 64 of the Indian Penal Code on the face of it applies only to a sentence of fine with or without imprisonment passed on an offender tried by a competent court. Even if the offence for which he is tried is made punishable with a sentence of fine only Section 64 empowers the court to direct that in default of payment of the fine imposed on the offender, he shall suffer imprisonment for a specified term.

A direction to that effect can also be made in respect of a sentence of fine coupled with a sentence of imprisonment. In such a case, the imprisonment directed to be undergone in default of payment of fine, will be independent of arid in addition to, any other term of imprisonment for which the offender is liable'. It is obvious that Section 64 of the Indian Penal Code cannot be made applicable to an amount other than an amount of fine, which is directed to be recovered from the offender otherwise than as a fine imposed on him as a sentence. It follows, therefore, that the amount specified as due from a defaulter by way of fine, license fees, etc., in an order passed against him under Section 19 of the General Sales Tax Act, is outside the scope of Section 64 of the Indian Penal Code. It will be illegal to provide for a term of imprisonment in default of payment of such an amount. The imprisonment provided for in the present case could be sustained only in respect of the amount specified as a sentence of fine.

3. The result is that this petition is allowedand the warrant issued for the arrest of the petitioner for his default in the payment of the amountspecified as due from him by way of tax and licensefees in the order passed against him under Section 19of the General Sales Tax Act is recalled and cancelled. He can be proceeded against only in accordance with the procedure prescribed by Section 386of the Code of Criminal Procedure and subject tothe limitations already explained.


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