Decided on March 14,1972

State Of Maharashtra, Complainant Appellant
Jamunadevi W/O Shrikrishna Mohta, Original Respondents


CHANDURKAR, J. - (1.) THE only question which is involved in these two appeals is whether having regard to the provisions of Sections 22 and 38 of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) the learned Additional Sessions Judge was right in holding that the certificate of registration of the transport vehicle in question was current so as to give rise to the presumption contemplated by Section 3(2) of the Bombay Motor Vehicles Tax Act, 1958 (hereinafter referred to as the Tax Act). Admittedly, the respondent is the owner of a truck bearing registration No. BYY 1822. It is not disputed that this truck would be a transport vehicle as defined in Section 2(33) of the Act. She was prosecuted for non -payment of tax under the Tax Act. The offence alleged to have been committed by her under Section 16 of the Tax Act was in respect of two periods, namely. (1) 1.4.1966 to 30.3.1966 and (2) 1.1.1967 to 31.3.1967. We are not concerned with the other periods in these two appeals. In respect of the first period, the Magistrate registered Criminal Case No. 1271 of 1968 and in respect of the second period he registered Criminal Case No. 4320 of 1968. According to the prosecution, the quarterly rate of the tax is Rs. 302.50 P. the annual rate being Rs. 1100.00 and the respondent was also liable to pay penalty as provided by Section 16(1) of the Tax Act. Under Section 16(1) it is provided that whoever, as a registered owner or otherwise, 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, or additional tax, due in accordance with the provisions of that Act in respect of such vehicle, he shall on conviction be punished with fine which shall not be less than a sum equal to the quarterly tax payable in respect of such vehicle, and which may extend to a sum equal to the annual tax payable in respect of such vehicle. Enhanced penalty is provided in the case of a person who has been previously convicted of an offence under that section. Under Sub -Section (2) the amount of any tax due is made recoverable as if it were a fine.
(2.) THE defence of the respondent was that the certificate of fitness issued under Section 38 of the Act had expired on 8.4.1966 and that the vehicle had met with a serious accident and had ceased to be in roadworthy condition with effect from 4.4.1966 and that thereafter the vehicle was never used as such.
(3.) BEFORE the trying Magistrate some documents were filed to show that the vehicle could not have been used and was not in a serviceable condition. The trying Magistrate however found in both the cases that though the certificate of fitness had expired, the registration certificate was not automatically suspended, and the presumption under Section 3 of the Tax Act would arise. He also held that the respondent had failed to prove that the vehicle was not serviceable during the period for which the tax was being demanded. Thus he convicted the accused of the offence under Section 16(1)(a) of the Tax Act in both the cases and he was made liable to pay the outstanding tax and an equal amount of fine. Against both these judgments of the trying Magistrate the respondent -accused filed appeals. The learned Additional Sessions Judge, on a consideration of the provisions of Section 38 of the Act, came to the conclusion that the certificate of registration of the transport vehicle in question could not be said to have been current after the expiry of the certificate of fitness and consequently no presumption under Section 3(2) of the Tax Act could be drawn against the respondent. These were the only questions agitated before him, and In view of the findings arrived at Criminal Appeal No. 300 of 1968 which was in respect of the period 1.1.1967 to 31.3.1967 was fully allowed and the other appeal, i.e. Criminal Appeal No. 301 of 1968, was partly allowed because he took the view that the respondent was liable to nay tax having regard to the provisions of Section 4(1)(iii) of the Tax Act and penalty for the period 1.4.1966 to 8.4.1966. These two appeals are now filed by the State challenging the view taken by the learned Additional Sessions Judge. The respondent has not challenged the order in the appeal against her.;

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