State of Karnataka Vs Bhavakanna Jeevappa Anandache

A.N. Venugopala Gowda, J.@mdashRespondent is the registered owner of a motor vehicle maxi cab bearing registration No. KA-24-M-36. He failed to pay the tax of the said vehicle for the period from 1-3-1997 to 28-2-2004. The tax amount due is Rs. 88,620/- + cess of Rs. 4,531/- and penalty of Rs. 18,613/-. He was prosecuted by the appellant u/s 12(1)(a) of the Karnataka Motor Vehicles Taxation Act, 1957 ("the Act" for short). The charge was denied. Complainant deposed as P.W. 1. Exs. P. 1 to P. 5 were marked. Ex. P. 1 is registration particulars of the vehicle. Ex. P. 2 is memo of calculation of tax. Ex. P. 3 is copy of notice of demand. Ex. P. 4 is an acknowledgement receipt and Ex. P. 5 is the complaint. Defence of the accused is that, vehicle was registered with the financial assistance of Janardhan Auto finance and on his failure to pay instalments regularly, financier seized the vehicle in February 1997 and hence he was not liable to pay the tax. Noticing that, the fact of seizure of vehicle by the financier or non-plying of the vehicle since 1997 was not intimated to RTO and since the liability rests upon the owner to prove that the vehicle was in possession of the financier in pursuance of the seizure and it is not open to the accused to contend that financier is liable to pay the tax, by relying upon a decision in the case of Vijayakumar Mane Vs. Regional Transport Officer and Others, , learned Trial Judge held that, defence taken by the accused is untenable in the eye of law and hence the tax demanded, indisputably, not having been paid, accused was convicted for contravening Sections 3(1) and 4(1) punishable u/s 12(1) of the Act. Accused was ordered to pay the tax amount, in all amounting to Rs. 93,051/-, in default to undergo simple imprisonment for six months and he was also imposed fine of Rs. 3,165/-, in default to undergo simple imprisonment for two months.

2. Aggrieved, accused filed an appeal contending that, vehicle was seized by the financier on 12-2-1997 for non-payment of loan amount and since then, vehicle was not in his possession and did not ply on the road and without an investigation, complaint was filed to recover the tax, which he was not liable to pay and consequently, his conviction is illegal. The learned Appellate Judge, by placing reliance on a decision in the case of Muniswamy Vs. State, observing that, under the changed law, it is not enough if the accused is R.C. owner of the vehicle, but, it is also to be proved by the prosecution that he is in possession of the vehicle and finding that evidence to that effect is not available on record, has held that, it is for the prosecution to establish that the vehicle in question is in possession of the accused and then only the accused is liable to pay the tax. It was observed that, there was no investigation with regard to possession of the vehicle by the accused or it having plied on the road, which is bad. It was further held that, for recovery of tax of the vehicle (from 1-3-1997 to 28-2-2004) for 7 years, single complaint is not maintainable. Reserving liberty to properly investigate regarding possession of the vehicle and to file separate complaints for each quarter of tax, the appeal was allowed.

3. Aggrieved, State has filed this appeal u/s 378(1) and (3) of the Criminal Procedure Code, 1973 to grant leave to appeal and set aside the judgment of the Appellate Court and restore the judgment of conviction and order of sentence passed by the Trial Court.

4. Sri P.H. Gotkhindi, learned High Court Government Pleader appearing for the appellant contended that, the Court below has committed material error and illegality in setting aside the judgment of conviction and order of sentence, which was rightly passed by the Trial Court. He contended that, under law, registered owner or persons who are in possession/control of the vehicle, both are liable to pay the tax. Respondent being the registered owner, having not obtained exemption u/s 16 of the Act nor the registration of the vehicle not being cancelled, could not have committed default in payment of tax, which under the Act is required to be paid in advance. He further contended that, the impugned judgment is bad, both on facts and in law and the Court below by acting with material irregularity, adopting a wholly perverse approach, has illegally interfered with the judgment of conviction and order of sentence passed by the Trial Court.

5. Sri Sanjay S. Katageri appearing for respondents/accused by placing reliance on the decision in the case of Muniswamy, contended that, to proceed against a person u/s 12(1)(a) of the Act, it is not enough for the complainant to merely produce evidence that, the accused is registered owner of the vehicle, but should also establish that he had possession or control of the vehicle in respect of which there is non-payment of tax. According to him, vehicle having been seized by the financier, registered owner is not liable to pay the tax and the complainant ought to have taken action against the financier to recover the tax. In the case of Muniswamy, it has been held as follows:

It is for the prosecution to establish not only that the petitioner was the registered owner, but also that he was in possession or control of the vehicle before he could be held guilty under the provisions of Section 12(1) of the Motor Vehicles Taxation Act.

5.1 Reliance was also placed on a decision in the case of A.S. Vinayaka Bhat Vs. State, wherein, the petitioner was prosecuted for not paying the actual tax of the vehicle for different periods starting from 1-1-1974 to 31-12-1988. The defence taken up was that the vehicle in question was very old and it was scraped. Learned Magistrate convicted the petitioner for the offence punishable u/s 12(1) of the Act and sentenced him. The said order when questioned in this Court, it has been held as follows:

Therefore, the question whether the motor vehicle was scrapped and not in existence is a fact to be ascertained on enquiry and no such enquiry has been held by the respondent in this case. There is an obligation on the petitioner to intimate that the vehicle has been scrapped u/s 34(1) of the Motor Vehicles Act, 1988. The existence of a motor vehicle is a condition precedent for levy of tax under the Act. Therefore, the respondent has to enquire and determine as a question of fact, whether motor vehicle was in existence during the relevant period. There is no enquiry by the respondent in this regard and therefore, the Trial Court was wrong in convicting the petitioner for the offences with which he has been charged.

5.2 Learned Counsel appearing for the respondent, firstly, contended that, the complainant has not made any investigation with regard to the possession and control over the vehicle, which fact is admitted by P.W. 1 and there being no investigation, no prosecution could have been undertaken. Secondly, the cause of action to initiate prosecution having commenced with the commencement of each quarter for which tax was to be paid i.e., commencing from 1-3-1997, a single complaint filed for the period from 1-3-1997 to 28-2-2004 i.e., continuous period of 7 years, is not maintainable. Reliance was placed on a decision in the case of State of Karnataka Vs. Bhaskar Auto Financier, . Thirdly, Appellate Court has reassessed the evidence on record and has recorded its findings, both on facts and in law and hence, no interference is called for, Lastly, it was pointed out that, since liberty has been reserved to the complainant to make a proper investigation and then file fresh complaint, appellant/complainant has not suffered any prejudice and hence impugned judgment may not be interfered with.

6. Considering the records of the Courts below and the submissions made by the learned Counsel on both sides, this is a fit case to grant the leave to appeal. Leave stands granted.

7. In view of the rival contentions and record, the points that arise for consideration are:

(i) Whether a registered owner is liable to pay the M.V. tax of vehicle, even in respect of a period when it was in the possession and control of financier, in pursuance of an alleged seizure?

(ii) Whether, any investigation is required to be carried out by the complainant prior to filing of complaint for imposition of penalty u/s 12(1)(a) of the Act?

(iii) Whether, a single complaint is not maintainable for non-payment of Motor Vehicles Tax of more than one quarter?

8. Before taking up the said points for discussion, it is necessary to make a mention to the relevant provisions of the Act. Section 2(1)(f) contains the definition of the term Registered owner". Section 3 provides for levy of motor vehicles tax. Section 4 provides that, tax levied u/s 3 shall be paid in advance by the registered owner or person having possession or control of motor vehicle. Section 7 is regarding refund of tax. Section 16 is power of the State Government to exempt from or reduction of tax. Section 9 relates to liability to pay arrears of tax. Section 12 is regarding penalties.

8.1 After hearing the learned Counsel on both sides and on perusal of the orders passed by the Courts below, in my opinion, the learned Sessions Judge has misdirected himself and made a wrong approach to the facts of the case and the law relating to the penalty proceedings u/s 12(1)(a) of the Act.

9. Re. Point No. (i).-At the outset, let me notice the case-law which have application to the matter.

(i) In the case of State of Karnataka Vs. K. Gopalakrishna Shenoy and Another, ., the material facts were that, K. Gopalakrishna Shenoy sold his vehicle to second respondent on 2-1-1971, but, neither of them reported transfer of vehicle to Regional Transport Officer (for short, ''RTO'') in compliance with the terms of Sub-section (1)(a) and Sub-section (1)(b) of Section 31 of the Motor Vehicles Act, 1939. Subsequently, it came to the notice of the RTO that the tax payable for the vehicle u/s 3(1) of the Act for the period from 1-10-1972 to 31-3-1974 had not been paid. A demand notice to pay the arrears of tax together with penalty was issued. K. Gopalakrishna Shenoy refuted his liability to pay the arrears of tax on the ground that he had transferred the vehicle to the second respondent on 2-1-1971 itself. A demand notice was then issued to the transferee-second respondent and he too refuted his liability to pay the arrears of tax and also on the plea that the vehicle was not in a fit condition and it had been lying in a workshop during the relevant period without repairs being effected for want of spare parts. Since both the respondents failed to pay arrears of tax, the Transport Authorities filed a complaint against both of them u/s 3(1) read with Section 12(1)(a) of the Act. Learned Magistrate accepted the defence of the respondents and held that, since the first respondent had sold the vehicle, he was not liable to pay the arrears of tax and likewise, the transferee-second respondent too was not liable to pay the tax because the vehicle did not have a fitness certificate and had been left in a workshop for repairs being carried out. Learned Magistrate further held that, the currency of the registration certificate during the relevant period will not alter the situation in any manner because the Registration Certificate cannot have currency so as to attract tax liability when the vehicle was not covered by a valid certificate of fitness. Learned Magistrate acquitted the respondents. An appeal preferred, was dismissed by this Court and hence an appeal was filed by the State in the Apex Court. Noticing the said factual background and taking into consideration the relevant provisions of the Act, it was held as follows:

The resultant position that emerges is that Section 3(1) confers a right upon the State to levy a tax on all motor vehicles which are suitably designed for use on roads at prescribed rates without reference to the road worthy condition of the vehicle or otherwise. Section 4 enjoins every registered owner or person having possession or control of the motor vehicle to pay the tax in advance. The explanation to Section 3(1) contains a deeming provision and its effect is that as long as the certificate of registration of a motor vehicle is current, it must be deemed to be a vehicle suitable for use on the roads. The inevitable consequence of the Explanation would be that the owner or a person having control or possession of a motor vehicle is statutorily obliged to pay the tax in advance for the motor vehicle as long as the certificate of registration is current irrespective of the condition of the vehicle for use on the roads and irrespective of whether the vehicle had a certificate of fitness with concurrent validity or not.

...

The scheme of the Taxation Act is such that the tax due on a motor vehicle has got to be paid in terms of Section 3 at the prescribed rate and in advance and the liability to pay tax continues as long as the certificate of registration is current but if it so happens that inspite of the certificate of registration being current, the vehicle had not actually been put to use for the whole of the period or a continuous part thereof, not being less than one calendar month, the person paying the tax should apply to the prescribed authority and obtain a refund of the tax for the appropriate period after satisfying the authorities about the truth and genuineness of his claim. Sections 3 and 4 are absolute in their terms and the liability to pay the tax in advance is not dependent upon the vehicle being covered by a certificate of Fitness or not. Even if the vehicle was not in a road worthy condition and could not be put to use on the roads without the necessary repairs being carried out, the owner or person having possession or control of a vehicle is enjoined to pay the tax on the vehicle and then seek a refund.

...

The principle underlying the Taxation Act is that every motor vehicle issued a certificate of Registration is to be deemed a potential user of the roads all through the time the certificate of registration is current and therefore liable to pay tax u/s 3(1) read with Section 4. If, however, the vehicle had not made use of the roads because it could not be put on the roads due to repairs, even though the certificate of registration was current, the owner or person concerned has to seek for and obtain refund of the tax paid in advance after satisfying the authorities about the truth of his claim. It is not for the transport authorities to justify the demand for tax by proving that the vehicle is in a fit condition and can be put to use on the roads or that it had plied on the roads without payment of tax. It would be absolutely impossible for the State to keep monitoring all the vehicles and prove that each and every registered vehicle is in a fit condition and would be making use of the roads and is therefore liable to pay the tax. For that reason, the State has made the payment of tax compulsory on every registered vehicle and that too in advance and has at the same time provided for the grant of refund of tax whenever the person paying the tax has not made use of the roads by plying the vehicle and substantiates his claim by proper proof. Any view to the contrary would defeat the purpose and intent of the Taxation Act and would also afford scope and opportunity for some of the persons liable to pay the tax to ply the vehicle unlawfully without payment of tax and later on justify their non-payment by setting up a plea that the vehicle was in repair for a continuous period of over a month or the whole of a quarter, half year or year as they choose to claim.

(emphasis supplied)

Noticing the admitted position that the tax had not been paid in compliance with Sections 3 and 4 and the respondents had failed to inform the Transport Authorities that the vehicle was not fit for use on the roads and had been left in a workshop and they had also failed to surrender the certificate of fitness which was in force till 28-11-1972, it was held that, the Trial Court was in error in acquitting them and the High Court too was not justified in dismissing the appeal against acquittal and since the transfer of the vehicle had not been reported to the authorities K Gopalakrishna Shenoy was as much liable as the transferee-second respondent to pay the tax that was demanded, the appeal was allowed.

(ii) In the case of Natwar Parikh and Co. Ltd. Vs. State of Karnataka and Others, , the appellants were the transporters of heavy equipments using mechanised carriage. They were engaged to transport transformers from Madras Port to Bangalore. The goods were to be lifted from Madras Port and transported to Bangalore by vehicular transport mode through the States of Tamil Nadu, Andhra Pradesh and Karnataka. The appellant made use of a drawing vehicle called by the appellant as a ''tractor'' to push/pull the trailers loaded with the said equipments. Tractor-trailer carrying transformers entered State of Karnataka via Tamil Nadu and Andhra Pradesh. On account of such entry, taxation authority issued demand notices calling upon the appellant to pay the tax u/s 3(2) read with item 10 of Part B of the Schedule to the Karnataka Motor Vehicles Taxation Act, 1957 on the ground that they are transport vehicles which require permits u/s 66 of the Motor Vehicles Act, 1988 and the appellant was liable to pay the said tax. The demand was questioned in appeal and the Appellate Authority held that the tractor-trailer were separate independent motor vehicles, separately registerable requiring permit u/s 66 of the M.V. Act, 1988 which was not obtained and therefore, appellant was not entitled to the benefit of exemption u/s 16 of the Act. Writ petition and writ appeal filed in this Court were dismissed and hence, the Apex Court was approached for relief. While dismissing the appeal, it was inter alia held as follows:

Taxation is governed by a separate code which in the present case happens to be the Karnataka Motor Vehicles Taxation Act, 1957 and as held by this Court in the case of K. Gopalakrishna Shenoy the provisions of Sections 3 and 4 of the Taxation Act have to be construed on their own force and not with reference to the provisions of registration or fitness certificate under the MV Act, 1988.

(iii) In the case of Deputy Transport Commissioner, Belgaum and Anr. v. Ramdas Govind Kantu and Anr., 1992 Supp. (2) SCC 441 , the respondents owned vehicles fit for passenger transport or goods transport. The respective certificates of registration were deposited by the respondents before the RTO claiming exemption from tax payable u/s 3 of the Act. The certificates of fitness related to those vehicles were non-existent, either by efflux of time or otherwise. On the factum of certificates of fitness being non-existent, the respondents claimed that the certificates of registration has lost currency and, therefore, the Explanation to Section 3(1) of the Act ceased to apply leaving it open to RTO to devise other methods to fix liability on the respondents for payment of tax under the Act. The tax demanded was not paid, but was questioned by the owners. Noticing the decision in the case of K. Gopalakrishna Shenoy, it was held as follows:

In other words, if the certificate of fitness, for whatever reason, becomes inoperative or non-existent it may have the effect of putting to dormancy the certificate of registration granted u/s 22 of the Motor Vehicles Act. Still the dormancy so occurring can in no event have the currency of the registration certificate affected or the operability of Section 3(1) and the Explanation added thereto of the Taxation.

(iv) In the case of AIR 2005 1431 (SC) , the High Court had held that, vehicle owned by respondent was not liable to pay road tax because it did not have permit during the relevant period. The High Court had held that, u/s 66 of the Motor Vehicles Act, 1988 no owner of a motor vehicle can use or permit the use of the vehicle as a transport vehicle in any public place unless it has the necessary permit. It was held that in the absence of any permit, it was not permissible to calculate the tax payable. The Apex Court by noticing the provisions of Section 3 of the Orissa Motor Vehicles Taxation Act which is analogous to the provisions of the Act and following the decision in the case of K. Gopalakrishna Shenoy, set aside the impugned decision of the High Court and dismissed the petition.

(v) In the case of State of Gujarat and Others Vs. Akhil Gujarat Pravasi V.S. Mahamandal and Others, , considering analogous provisions contained in the Bombay Motor Vehicles Taxation Act, 1958 (65 of 1958) (as amended by Gujarat Act 9 of 2002), it was held as follows:

The entry does not indicate in any manner that tax would be leviable only for the period when the vehicle is actually using the road and not otherwise and, therefore, it has no correlation with the actual period of use. Naturally the State has to maintain the roads and to keep them in proper condition for all those who own vehicles suitable for use on roads. This is irrespective of the fact whether they use it or not or use it occasionally or for short duration only. It being a tax and not a fee (as understood in the conservative sense), the actual use of the public roads of the State cannot be insisted upon for incurring the liability.

(vi) In the case of Vijayakumar Mane Vs. The Regional Transport Officer, Dharwad and Others, , the petitioner was registered owner of a vehicle. The vehicle was hypothecated to the third respondent-KSFC. As the petitioner committed default in paying the amount due to KSFC, the vehicle was seized by KSFC from the possession of petitioner on 16-3-1996. Petitioner had paid M.V. Tax in regard to the vehicle upto 31-3-1996. The M.V. tax for the period commencing from 1-4-1996 was not paid either by the petitioner or by the KSFC. The seizure of the vehicle and non-use of the vehicle as a consequence of such seizure, was not intimated to the RTO either by petitioner or by the KSFC. It was only by a letter dated 21-5-1997, the KSFC informed RTO that the vehicle had been seized on 16-3-1996 and that the vehicle was still in its custody. Along with the said communication, KSFC sent an intimation of non-use in Form 30 under Rule 34-A of the Karnataka Motor Vehicles Taxation Rules, 1957. RTO sent a notice dated 8-7-1996 to KSFC in regard to the MV tax due for the period 1-4-1996 to 30-6-1996. This was followed by another notice dated 29-5-1997 to KSFC demanding motor vehicles tax due from 1-4-1996 to 30-6-1997. In the meanwhile the petitioner took back possession of the vehicle from KSFC and was using it. As the tax for the period from 1-4-1996 to 30-6-1997 remained unpaid, RTO sent a notice dated 9-12-1997 to the petitioner claiming M.V. tax for the period 1-4-1996 to 30-6-1997. Writ petition was filed and it was contended that, the registered owner is not liable to pay the M.V. tax during the period when the vehicle is seized and kept by the financier and only the financier is liable to pay the M.V. tax for such period and therefore, the RTO cannot demand M.V. tax for the period 14-1996 to 30-6-1997, when the vehicle was under the control and possession of the KSFC. The question considered was whether the registered owner is liable to pay the M.V. tax of the vehicle for the period when it was in the possession of the financier in pursuance of a seizure? Number of unreported decisions were cited in support of the aforesaid contention. Noticing that, the un-reporting decisions had not referred to Sections 4 and 9 of the Act which specify the persons who are liable to pay the current M.V. tax as also the arrears of M.V. tax, holding that they have been rendered per incuriam and are therefore of no assistance to decide the matter, the writ petition was rejected.

(vii) In the case of B.S. Praveen Singh v. Deputy Commissioner for Transports and Ors. W.P. No. 19037 of 2006, DD: 21-3-2007, the petitioner who had continued to be the registered owner of a bus, had challenged the demand for payment of tax of the vehicle, a copy of which was marked to him, though the demand had been addressed to the financier. According to the petitioner, the financier took possession of the vehicle in a highhanded manner and had even made an attempt to have the registration of the vehicle transferred to its name, but the transport department had failed to effect the transfer. The vehicle was not in his possession and the contention urged was that, the demand for payment of tax, on and after the date, the vehicle was removed from his custody, is not justified and the demand should be made from the bank/financier, which had seized the vehicle. Rejecting the writ petition, it was held as follows:

4. Even assuming for the argument''s sake that the petitioner is not in custody of the vehicle on and after 22-4-2004, the fact that he continued to be the registered owner of the vehicle thereafter also is not in dispute and if so in terms of the provisions of the Karnataka Motor Vehicles Taxation Act, the liability of the registered owner for payment of tax continues so long as the petitioner is the registered owner and even the person who gets possession of the vehicle also jointly becomes liable for the payment of such tax during the period when he is in possession of the vehicle.

5. Whether the petitioner was in possession or otherwise, so long as the vehicle is in the name of the petitioner indicating that he is the registered owner, the liability on the petitioner does not cease.

6. If the banker of the petitioner had acted in a highhanded manner or had invited trouble, it is a manner between the petitioner and his financier and in that event the petitioner has to made good such tax liability and he can take action for reimbursement of the amount.

(emphasis supplied)

(viii) In the case of Smt. G.R. Vinodhkrishna Vs. The Regional Transport Officer, Bangalore (South) and Another, , petitioner had purchased a vehicle in the public auction held by an Insurance Company and the vehicle was taken over on 15-12-1988 although its ownership was transferred to her name only on 8-5-1990 pursuant to an order of Court. The controversy was with regard to the liability to pay the tax due against the vehicle under the provisions of Act for the period from 1-11-1988 to 31-10-1989 for which demand was raised against the petitioner. The petitioner had only paid tax from 1-12-1989 onwards and disputed the liability to pay the tax amount demanded for the aforesaid period on the ground that the vehicle was during the said period not actually in use. In that connection it was held as follows:

Explanation to Section 3 of the Act provides that if the certificate of Registration of the vehicle is current, it must be deemed to be a vehicle suitable for use on roads. It is not disputed that the registration certificate of the vehicle in question was valid during the relevant period. The liability of the Insurance Company or its transferee could therefore be avoided only if it was established that the owner had intimated the non-use of the vehicle and satisfied the conditions subjects to which the same was accepted.

(ix) In the case of Ganapati Gopal Bhat Vs. State of Karnataka, , the petitioner was the registered owner/RC holder of the vehicle. He was prosecuted for failure to pay the tax under the Act for several quarters ranging from 1-5-1982 to 31-1-1986 He was convicted for an offence punishable u/s 12(1)(a) of the Act and sentenced. He filed the appeal. One of the contentions urged was that, the vehicle was not in use during the relevant period, same being left in the garage for repairs. On facts, it was found that not only that there was no proper intimation to the concerned authorities about the non-use of the vehicle, but that, there was no satisfactory evidence with regard to the vehicle having been left in the garage. Noticing the provisions in Sections 3(1), 4, 7 and 12(1)(a) of the Act and the decision in the case of K. Gopalakrishna Shenoy, it was held that, the prosecution has established beyond reasonable doubt its case and the conviction and sentence were upheld.

(x) In the case of J.A. Ahamed Haji Vs. State of Karnataka and Another, , petitioner was the owner of a vehicle and he had entered into an agreement with accused 2 on 28-11-1994 for exchanging the vehicles. Criminal cases were filed against him for offences punishable under Sections 3, 4 and 12(1)(a) of the Act for non-payment of tax. It was contended that, in view of the exchange agreement for exchange of vehicles belonging to the petitioner, earlier to the alleged arrears of quarterly tax for the period from 1-1-1995 to 30-6-1995, he is not liable to pay any tax and the order of conviction passed by the Trial Court and confirmed by the Sessions Judge, is illegal. It was further contended that, in view of Section 9 of the Act, the registered owner or the person who is in possession of the vehicle is liable for conviction for non-payment of quarterly tax and the conviction of the petitioner is illegal and contrary to the settled principles of law. It was held that the petitioner who is the registered owner of the vehicle, has a primary obligation to pay the arrears of motor vehicles tax and therefore, he cannot contend that accused 2 who was in possession of the vehicle alone is liable to pay the M.V. tax.

(xi) In the case of G.V. Appanna v. Regional Transport Officer, Belgaum and Ors. 1980(2) Kar. L.J. 121, the petitioner purchased the vehicle in question on 1-5-1974 from the 3rd respondent and sold it back to the 3rd respondent on 21-9-1974. In accordance with the provisions of the Act, the petitioner was owner of the vehicle for the first and second quarters of 1974. A notice demanding the tax was issued by the Transport Department to the petitioner which was questioned on the ground that the petitioner was not the owner of the vehicle on the date the tax was demanded and he was not liable to pay the same and the 3rd respondent was liable to pay the tax. The said argument was not accepted by holding as follows:

This argument must fail because Sub-sections (1) and (2) of Section 9 of the Act provide for collection of arrears of tax either from a person to whom the vehicle has been transferred or proposed to be transferred or from the previous owner. The choice is left to the tax officer to choose one or the other but the liability is on both the present and the past owner.

10. Section 3(1) of the Act confers a right upon the State to levy a tax on all the motor vehicles which are suitably designed for use on the roads at prescribed rates. Explanation to Section 3(1) contains a deeming provision and its effect is that as long as the certificate of registration of motor vehicle is current, it must be deemed to be vehicle suitable for use on the roads. Hence, the owner or a person having control or possession of a motor vehicle has the statutory obligation to pay the tax in advance for the motor vehicle as long as its R.C. is current. If the vehicle had not been actually put to use, the person paying the tax should apply to the prescribed authority and obtain the refund of the tax for such period by producing the proof with regard to the claim for refund.

10.1 From a combined reading of Sections 4 and 9 of the Act, the position is clear that, a registered owner of the motor vehicle or a person having possession and control of the motor vehicle, are liable to pay the motor vehicle tax, be it current or arrears. The primary obligation to pay M.V. tax is on the registered owner of the vehicle. Even when he parts with possession and control of the vehicle either voluntarily or otherwise, his liability to pay M.V. tax does not cease, so long as he continues to be the registered owner. The person who takes possession and control of the vehicle becomes liable to pay M.V. tax as a co-obligant. The liability of registered owner and person in possession and control of the vehicle is joint and several. In short, whether a registered owner was in possession of the motor vehicle or not, so long as the registration of the vehicle remained in his name, his liability to pay M.V. tax does not cease, even if the financier had taken possession and control of the vehicle.

10.2 In the instant case, indisputably M.V. tax due from 1-3-1997 to 28-2-2004 was not paid by the respondent or the financier. According to the respondent, the vehicle was allegedly seized by the financier on 12-2-1997. However, respondent continued to be the registered owner of the vehicle. Respondent did not intimate the RTO of the fact of seizure of the vehicle by the financier on 12-2-1997 and he ceasing to be in possession and control of the vehicle. Respondent did not seek exemption from payment of tax of the vehicle on account of the vehicle being not put to use on roads on and after 12-2-1997. Since the statute puts the obligation on the registered owner of the vehicle to pay M.V. Tax in advance and also provides for refund u/s 7 of the Act, it is unnecessary for the RTO/ complainant to conduct any investigation with regard to the possession or control of the vehicle and its user or otherwise on the roads and then only initiate and penalty proceedings. Law does not contemplate that, the RTO should establish that the registered owner was in possession or control of the vehicle, in the proceedings u/s 12(1) of the Act. What is required to be shown and proved in the penalty proceedings is that, the accused was a registered owner of the vehicle or was the person in possession and control of the vehicle, the MV tax of which was not been paid. The possession of law has been clearly enunciated by the Apex Court in the case of K. Gopalakrishna Shenoy and this Court, in the decisions noted to supra, more particularly in the case of Vijayakumar Mane. Keeping in view the effect of Sections 3, 4 and 9 of the Act and the ratio of the said decisions, it has to be held that, registered owner is primarily liable to pay M.V. tax of the vehicle, even in respect of the period when the vehicle was in the possession and control of the financier.

11. Re. Point (ii): In view of Section 3(1) read with Section 4 of the Act, the registration of the vehicle being current, and the M.V. tax being payable in advance, it is not for the transport authorities to justify the demand for tax. As held by the Apex Court in the case of K. Gopalakrishna Shenoy, it would be absolutely impossible for the State to keep monitoring all the vehicles and prove that each and every registered vehicle is in a fit condition and would be making use of the roads and therefore, is liable to pay the tax. The payment of tax being compulsory on every registered vehicle and that too, in advance and since the Act also provides for grant of refund of tax, on proof of non-user, it is unnecessary for the complainant to hold any investigation prior to the filing of the complaint for imposition of penalty u/s 12(1)(a) of the Act.

11.1 Learned Single Judges who have decided the cases in Muniswamy and AS. Vinayaka Bhat, have not referred to the provisions of Sections 3, 4, 7, 9 and 16 of the Act. There is also no reference to any of the decisions rendered with regard to the scope and ambit of the said provisions, by the Hon''ble Supreme Court and this Court. The said two decisions are not relevant, since they do not lay down any proposition that a registered owner is not liable to pay M.V. tax and that, it is only the person in possession or control of the vehicle is liable to pay the tax. Hence, said decisions have to be held as having been rendered per incuriam and is of no assistance to decide, whether a registered owner is liable to pay the M.V. tax and on account of default, is to be penalised u/s 12 of the Act.

12. Re. Point (iii).-To support the finding that, a single complaint is not maintainable in respect of the non-payment of tax for more than one quarter, reliance was placed on the decision in the case of Bhaskar Auto Financier. The respondent therein, was the owner of a lorry, the quarterly tax of which was not paid on the due dates, from 1-8-1984 to 31-12-1984 and also for the period from 1-11-1984 to 3-1-1985. He paid the tax for the said quarters on 17-1-1986. He was prosecuted for having committed an offence punishable u/s 12(1)(a) of the Act and he pleaded guilty. Trial Court accepted the plea and convicted him. He was sentenced to pay a fine which is equal to tax payable for one quarter and directed that the same be set off in the tax amount already paid by him. The State filed an appeal and prayed for enhancement of sentence and also for setting aside the direction for setting off the amount of fine in the tax already paid. It was noticed the respondent has committed the offence on two quarters i.e., in respect of two counts and he had to be convicted on each one of the counts. While allowing the appeal and in substitution of the sentence passed by the learned Magistrate and directing him to pay the fine amount on each of two counts, it was held as follows:

When a person is convicted for having committed an offence on more than one counts sentence on all the counts has to be imposed on him. The sentence prescribed u/s 12 is a fine which shall not be less than the sum equal to the quarterly tax payable in respect of such vehicle, which may extend to a sum equal to the annually payable in respect of such vehicle. Therefore, on each count a minimum sentence at least has to be imposed. When the respondent has been found guilty on two counts sentence on those two counts, each one being equal to a fine amounting to quarterly tax of Rs. 1,785/- has to be imposed. Therefore, we are clearly of the view that the learned Chief Judicial Magistrate has committed an error.

12.1 There is no requirement under law that separate complaints have to be filed for each default/quarter. Learned Sessions Judge, by misreading the said decision has held that, the complainant cannot include all the years (1-3-1997 to 28-2-2004) in one case and file one complaint. What has been held in the said decision is that, the imposition of sentence on one count by the learned Magistrate in respect of the two quarters was incorrect and since each quarter/default constitutes an offence, the sentence should have been on two counts. Hence, a single complaint can be filed for payment of MV tax of more than one quarter and while imposing the sentence, the Magistrate has to find out the number of quarters to which the tax was not paid and impose separate sentences in respect of the each quarter/offence.

12.2 Thus, I think the whole approach of the learned Sessions Judge to the matter was wrong in the light of the relevant provisions of the Act and the decisions of the Apex Court and this Court. Every one of the reasons assigned by the learned Sessions Judge to reverse the judgment passed by the learned Trial Judge are illegal. Without even noticing the decision in the case of Vijayakumar Mane, on which the learned Trial Judge had rightly relied upon, which squarely applies to the case on hand, the learned Sessions Judge by completely misdirecting himself, has passed the impugned judgment, which on any view of the matter is unsustainable.

12.3 I find it difficult to accept the line of reasoning adopted by the learned Sessions Judge in the impugned judgment. In my opinion, the learned Sessions Judge, without any justifiable reason either on facts or in law for interfering with the judgment of conviction and order of sentence passed by the Trial Court, has allowed the appeal, which if allowed to stand, would result in miscarriage of justice.

As a result of the above discussion, I allow this appeal, set aside the impugned judgment of the Appellate Court and restore that of the Trial Court. I, therefore, over turn the acquittal order passed by the Appellate Court and restore the order of conviction and sentence awarded by the Trial Court and direct the accused to pay the penalty, in default, serve out the sentence.