IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 Crl.Rev.Pet.No. 747 of 2002() ---------------------------------------- CRA.238/1996 of ADDL.SESSIONS COURT (SPL.CAURT), KOTTAYAM ST.899/1994 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... REVN. PETITIONER: REVN.PETITIONER/APPELLANT/ACCUSED: ----------------------------- K.A. NOUSHAD, JAFNA MANZIL, S.H.M.P.O., NATTASSERRY, KOTTAYAM. BY ADV. SRI.T.P.VARGHESE SRI.PHILIP T.VARGHESE RESPONDENTS: RESPONDENTS/COMPLAINANT: ------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SOSAMMA ABRAHAM, REVENUE INSPECTOR, KOTTYAM MUNICIPALITY. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR BY ADV. SRI.CIBI MATHEW - R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.RP.NO.747/2002 ORDER ON CRL.MP. NO.4373/2002 IN CRL.RP. NO.747/2002 DISMISSED 11.04.2008 SD/- A.K.BASHEER , JUDGE /TRUE COPY/ P.S. TO JUDGE tss A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 747 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of April, 2008. ORDER Petitioner was prosecuted by the Kottayam Municipality (respondent No.2 herein) under Sections 386 and 389 of the Kerala Municipalities Act and Rule 32(2) and 39 of Schedule II of the Kerala Municipality Rules 1960. The trial court found the petitioner guilty of the offences alleged against him and convicted and sentenced him to pay a fine of Rs.80,000/- and in default to suffer simple imprisonment for 6 months. The sessions Court in appeal, while confirming the order of conviction modified the sentence by deleting the default sentence. 2. The case of the complainant was that the accused had successfully bid for the right to collect fees from vehicles at the Municipal lorry stand at Nagampadam, Kottayam for an amount of Rs.1,77,786/- during the financial year 1993-94. According to the complainant, the accused had executed Ext.P1 agreement after remitting 1/4th of the bid amount agreeing to pay the balance amount in 6 equal instalments ending by October 1993. The complainant alleged that the accused had remitted one of the 6 instalments in addition to the 1/4thof the total bid amount. Thus the accused had remitted a total sum of R.66,669/-. He had also remitted Rs.5,000/- as Earnest Money Deposit. On failure of the accused to remit the balance instalments, the Municipality had initially collected the fee from the lorry stand on its own, but later the right to collect the fee Crl.RP.747/02. 2 was sold in auction to another person. The Municipality could collect a total sum of Rs.30,025/- during the remainder of the said financial year. According to the Municipality it had sustained a loss of Rs.76091/- because of the failure of the accused to remit the balance bid amount. The said amount was attempted to be recovered through restraint. But all attempts had failed. It was therefore that the Municipality had prosecuted the petitioner under the relevant provisions of the Act mentioned above. 3. The Revenue Inspector of the Municipality who was authorised to file the complaint was examined as Pw.1. Another witness was examined as Pw.2. Exts.P1 to P9 were marked on the side of the complainant. Exts.D1 to D6 were marked on the side of the defence. 4. It was contended by the accused that he could collect the fee from the vehicles at the lorry stand only for about a month, since the Municipality had failed to check unauthorised parking. Though the accused had addressed the municipality in this regard on several occasions, no action was taken. In the process the accused had sustained heavy loss, it was contended. It was also contended by the petitioner that the contents of Ext.P1 agreement had been filled up by the Municipality at a later stage. He had no occasion to see what were written in the agreement. 5. The learned Magistrate did not accept the above contention and held that the complainant had successfully proved its case. The leaned Sessions Judge while confirming the order of conviction took Crl.RP.747/02. 3 the view that the default sentence of imprisonment imposed on the petitioner was not warranted. Therefor it was set aside. 6. It is contended by the learned counsel for the petitioner that the courts below had not appreciated the oral and documentary evidence in the case in their proper perspective. Though it was asserted by Pw.1 in her evidence that a show cause notice had been issued to the accused on his failure to remit the balance instalments, the copy of the show cause notice was not produced. Similarly the notice which was allegedly issued by the Municipality informing the accused about the decision to re-auction the right to collect the fee was also not produced. Though it had come out in evidence that re-auction was held in December 1993, the re-auction notice was also not produced. More importantly, the complainant had not produced any document to show how the quantum of the alleged loss was computed. No supporting or contemporaneous documents were produced by the Municipality. There was no explanation for the delay in conducting the re-auction also. 7. Having heard learned counsel for the petitioner and the learned Standing Counsel I am satisfied that there is considerable force in the contentions raised by the petitioner. There is yet another crucial aspect which, in my view, will cut at the root of the prosecution case. Ext.P1agreement is seen to have been drawn up on July 28, 1993. But the date under the signature of the accused is July 5, 1993. Ext.P8 is the note prepared by the Officer concerned in the Municipality for presentation before the Council for consideration. In the said note dated August 20, 1993 it is seen mentioned that the accused had not so Crl.RP.747/02. 4 far executed the agreement and therefore the issue was being placed before the Municipality to consider the question of revocation of the license and to re-auction the right to collect the fee. This document undoubtedly casts a shadow of doubt on the entire prosecution case. 8. In this context it may be remembered that the accused had raised a specific contention that his signature was obtained in the agreement much later. It is further contended by the learned counsel for the petitioner that the Municipality was not justified in prosecuting the petitioner without exhausting the remedies available under section 386 and Rule 32(2) . The Municipality ought to have proceeded against the movable and immovable properties under Ext. D1, D3, D4 and D6 which belonged to the petitioner. Exts.D1, D3, D4 and D6 were pressed into service by the petitioner in relation to his contention that he was in possession of some properties within the limits of the Municipality. 9. Having perused the entire materials available on record, I am satisfied that the contention raised by the petitioner is liable to be accepted. Therefore the order of conviction and sentence passed against the petitioner is set aside. However it is made clear that it will be open to the Municipality to proceed against the petitioner in accordance with law, for recovery of the amounts due from him as provided under the Act and the Rules, particularly in view of the admission made by the petitioner that he has got properties within the limits of the Municipality covered by Exts.D1, D3, D4 and D6. Learned counsel submits that petitioner will co-operate with the Municipality if an Crl.RP.747/02. 5 enquiry is held in the matter in order to assess the exact liability payable by the petitioner. In my view the stand taken by the petitioner is reasonable. Therefore the Municipality shall ensure that the petitioner is afforded sufficient opportunity before assessing the liability and effecting recovery in accordance with law. Criminal Revision Petition is allowed. an. A.K. Basheer Judge. Crl.RP.747/02. 6 A.K. Basheer, J. Crl.R.P.478 of 2000-C Order 11/04/2008