1. The petitioner, the United Motor Finance Co., represented by Miss A. Thear, was prosecuted under Section 7, of the Madras Motor Vehicles Taxation Act for failing to pay the tax due for three quarters in respect of a motor omnibus, and has been fined Rs. 5 and ordered to pay the amount of c the tax due.
2. The motor omnibus was registered in the joint names of the company and of one T.A. Sadasiva Pillai of Tanjore. Actually the motor-omnibus was hired by the company to this man. But it appears from the endorsements on the registration certificate (Ex. A) that there were subsequent transfers of the vehicle. An attempt was made by the authorities to levy the tax on Sadasiva Pillai; but it was reported that he was insolvent. Thereupon payment of the tax due on the vehicle was demanded of the petitioner, and the demand not having been complied with proceedings were taken under Section 7 of the Act.
3. The petitioner resists liability for the tax on the ground that there has been no legal proof that the vehicle was kept or used in the Madras Presidency for the period in question.
4. The basis of liability for the tax is that the motor vehicle is kept or used in the Presidency of Madras. Section 4(1) says that the Local Government may, by notification in the Fort Saint George Gazette, from time to time direct that a tax shall be levied on every motor vehicle kept or used in the Presidency of Madras. Section 5(1) says that upon the issue of a notification tinder Sub-section 1 of Section 4 every registered owner or person having possession or control of any taxable motor vehicle shall pay to the licensing officer the tax due in respect of such vehicle. Section 7 prescribes the penalty for failure to pay the tax. It is therefore essential to the liability to pay the tax and to the imposition of the penalty for failure to pay that there should be proof that the vehicle was kept or used within the Presidency of Madras for the period during which the tax is claimed to be due. The learned Magistrate has alluded in his order to the circumstance that the endorsements on the registration certificate describe the transferees as belonging to places within the Presidency. And he has concluded that this fact, 'viewed in the light of the rules', sufficiently proves that the venicle was kept or used in the Presidency during the period in question. We think that this does riot afford an adequate ground for the presumption. Rule 6 leaves it optional to a transferee to report a transfer to the registering authority within whose jurisdiction the transferee ordinarily resides or to-the registering authority within whose jurisdiction the motor vehicle is. From all that appears from the endorsements the transferees might be ordinarily residing in the places named, but the motor-omnibus might be plying in Mysore or elsewhere outside the Presidency. We are unable to agree with the learned Magistrate that the endorsements furnish presumptive proof that the motor-omnibus was kept or used within the Presidency. It need hardly be said that liability to a penal provision in an Act must be strictly proved. In our opinion the requisite proof is wanting here.
5. It has been suggested by the learned Advocate-General that we should have recourse to Sections 428 and 439, Criminal Procedure Code and direct that additional evidence be taken. But we think that this power should not be exercised for the purposes of filling a gap in the prosecution case when the necessary evidence was easily available to the prosecutor at the hearing and ought to have been then produced; See Jeremiah v. Vas (1912) 22 M.L.J. and Emperor v. Bansilal Gangaram : (1928)30BOMLR646 .
6. After the close of the arguments, on a subsequent date, we allowed the case to be spoken to. An affidavit was then put before us averring that the prosecuting inspector had made an application in writing to the Magistrate for the examination of the police officer in charge of taxation in Tanjore and for the production of records relating to the prosecution of the hirers of the vehicle for non-payment of tax. The affidavit states that thereupon the defendant conceded that the hirers had been prosecuted and that no payment of tax was recovered from them, and that the examination of the Tanjore officer was not necessary. The application was returned to the prosecutor, and no order made on it. The affidavit does not say that the defendant conceded that the vehicle was kept or used in the Presidency. The suggestion made to us was that the prosecutor was misled into thinking that this fact was not contested by the defendant. But there is no affidavit from the prosecutor that he was misled; and we cannot suppose that he was when he has not alleged it.
7. We accordingly allow the petition, set aside the Magistrate's order, and direct that the fine, if paid, shall be refunded.