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N.V. Thomas and anr. Vs. Kerala State - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Criminal
CourtKerala High Court
Decided On
Case NumberCriminal Revision Petition No. 26 of 1958
Judge
Reported in[1959]10STC238(Ker)
AppellantN.V. Thomas and anr.
RespondentKerala State
Appellant Advocate N. Venkitarama Iyer, Adv.
Respondent AdvocateThe Public Prosecutor
DispositionPetition allowed
Excerpt:
.....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 3. under this section the magistrate is bound to specify in the order the tax which, the person convicted has failed to pay and when it is so specified, it can be recovered as if it were a fine under the criminal procedure code. all that section 19 provides is that the tax which the person convicted has failed to pay should be specified in the order so that it may be recovered as fine. the fact that it is made 'recoverable as fine' shows that the court is not really imposing a sentence..........(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.3. under this section the magistrate is bound to specify in the order the tax which, the person convicted has failed to pay and when it is so specified, it can be recovered as if it were a fine under the criminal procedure code. section 386 of the criminal procedure code provides that the court passing a sentence of fine may take action for recovery of the same in either or both of the following ways; it may issue a warrant for the levy of the amount by attachment and sale.....
Judgment:

T.K. Josseph, J.

1. The petitioners who had defaulted payment of a sum of Rs. 2,302-1-6 due from them as sales tax were prosecuted before the Sub-Divisional Magistrate, Alleppey, under Sections 13 and 19(b) of the Travancore-Cochin General Sales Tax Act (XI of 1125). They were convicted and sentenced to pay a fine of Rs. 25 each and in default of payment to undergo simple imprisonment for 10 days. They were. also directed by the judgment to pay the arrears of tax and in default to undergo simple imprisonment for a further term of three months. This criminal revision petition is directed against the latter part of the sentence.

2. The point urged in revision is that the Magistrate had no jurisdiction to direct payment of the arrears and to impose a sentence of imprisonment in default of such payment. Section 19 reads as follows:

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

(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 a fine under the Code of Criminal Procedure for the time being in force.

3. Under this section the Magistrate is bound to specify in the order the tax which, the person convicted has failed to pay and when it is so specified, it can be recovered as if it were a fine under the Criminal Procedure Code. Section 386 of the Criminal Procedure Code provides that the court passing a sentence of fine may take action for recovery of the same in either or both of the following ways; it may issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender and also 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. All that Section 19 provides is that the tax which the person convicted has failed to pay should be specified in the order so that it may be recovered as fine. The fact that it is made 'recoverable as fine' shows that the court is not really imposing a sentence of fine when it specifies the amount of tax which the person convicted has failed to pay. Section 19 thus only enables the court to set in motion the machinery for realisation of fines for collecting the arrears of tax by specifying the amount. On behalf of the State the order was sought to be supported on the ground that Section 64 of the Indian Penal Code enabled the court to impose such a sentence. This contention is not sound because Section 64 only enables the court to direct that the offender sentenced to pay the fine shall suffer imprisonment for a certain term in default of payment of the same. It is by virtue of this section that the court awards a sentence of imprisonment if the fine is not paid, even though the penalty provided by Section 19 of the Sales Tax Act is only a fine and not imprisonment. The privision in Section 19 that the court should specify the amount of arrears of tax does not mean that such amount automatically becomes transformed into a fine so as to attract the provisions of Section 64 of the Penal Code. Under Section 19, the maximum punishment that can be imposed is only a fine of Rs. 1,000. If by specifying the amount of arrears the court is deemed to impose a fine, it means that besides the fine of Rs. 25, an additional fine of Rs. 2,302-1-6 which is beyond the maximum punishment for the offence is also imposed. As pointed out earlier, the mere fact that the machinery for realisation of fine is made applicable for collecting arrears due from a person convicted under Section 19 (b), (d), (f) or (g) does not mean that the court can impose a further fine and direct a term of imprisonment for non-payment of the same. The court had no jurisdiction to award the latter part of the sentence and the same must therefore be quashed.

4. The criminal revision petition is accordingly allowed and the direction that the petitioner should undergo imprisonment for three months if the sum of Rs. 2,302-1-6 is not paid is set aside. As the amount of arrears is specified in the order, the Magistrate is directed to recover the same in the manner indicated above. The bail bonds are cancelled.


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