IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 Crl.Rev.Pet.No. 104 of 2001() ----------------------------- CRA.261/1996 of SESSIONS COURT, KOZHIKOE ST.961/1994 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER/RESPONDENT/COMPLAINANT: --------------------- THE EXCUTIVE OFFICER, KAILUMPARA PANCHAYAT, CALICUT DISTRICT. BY ADV. SRI.P.V.JYOTHI PRASAD SRI.Y.M.BALAGOPAL RESPONDENTS/APPELLANT & 2ND RESPONDENT/ACCUSED: --------------- 1. K.V.NANU KURUP, VALIYA PARAMBATH, POST MOKERI, VADAKARA, KOZHIKODE. 2. STATE OF KERALA AREPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 BY PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 12/08/2009 PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No.104 of 2001 ----------------------------------------- Dated this the 12th August, 2009 O R D E R The revision petitioner filed a complaint against first respondent before the Magistrate Court alleging offence under Section 74 of the Kerala Panchayat Act. The accused was found guilty and he was convicted and sentenced to pay a fine of Rs.20,714/- as building tax and also a fine of Rs.10,000/-. Challenging the conviction and sentence, an appeal was filed before the Sessions Court. In appeal, learned Sessions Judge acquitted the accused finding him not guilty. Hence, this revision is filed against the order of acquittal. 2. According to prosecution, the accused was having several buildings and there was arrears of building tax, which was due from him at Rs.20,713.60. A notice was issued imposing tax at the above rate and stating that it is recoverable. But, the notice sent was returned, as not claimed. Thereafter, distraint warrant was issued as Exhibit P4. It was reported that distraint of the defaulter's property is impracticable. Therefore, a complaint was filed under Section Crl.RP.104/01 2 74 of the Kerala Panchayat Act, 1960. 3. PW1 and PW2 were examined and Exhibits P1 to P4 series were marked on the side of the prosecution. The accused did not adduce any evidence, but marked Exhibits D1 to D9 on his side. On consideration of evidence on record, trial court found that accused is guilty, since prosecution established all the relevant facts to constitute offence. But appellate court found that prosecution is not maintainable, since the pre-condition for launching of prosecution is not established. According to trial court, no attempt was made by the Panchayat to attach any movable property belonging to accused. Therefore, there is no evidence available on record to show that distraint of property of appellant is impracticable. Hence, the conviction and sentence were set aside and the accused was acquitted. 4. Learned counsel for the revision petitioner argued that the order of acquittal is not sustainable, since there is clear evidence to show that the distraint of the property of the accused is impracticable as revealed from Exhibit P4(a), as the accused was residing outside the jurisdiction of the Panchayat and the movable property is only a car and it is Crl.RP.104/01 3 not possible to be attached under a distraint warrant. According to him, learned Sessions Judge failed to consider this aspect and hence, the order of acquittal is not sustainable, it is argued. 5. The learned defence counsel argued that as per the evidence, no attempt was made to attach the movable property, which is a car belonging to the accused. Prosecution witnesses themselves admitted that no attempt was made to attach the movable property and in the absence of any attempt, it is not proper to say that the distraint was impracticable. The Panchayat authorities did not even make any attempt to find out whether the accused has movable or immovable property. Without doing so, the prosecution could not have been launched, it is submitted. 6. In the light of the above contentions, I have gone through the records and the evidence in this case. The appellate court acquitted the accused for the reason that the pre-condition for launching prosecution under Section 74 of the Panchayat Act is not established. On going through the evidence, I do not find any illegality, perversity or impropriety in the above finding. It is in evidence, PW1 has categorically Crl.RP.104/01 4 deposed in the chief examination that the accused does not have any movables as per the endorsement on Exhibit P4. He deposed in cross-examination that he made an enquiry through the Village Assistant whether the accused had any properties. He also admitted that no attempt was made to attach the car belonging to the accused. 7. PW2 is the L.D Clerk, who was entrusted with the distraint warrant, Exhibit P4 for executing the same. He deposed that he had endorsed on Exhibit P4 that the accused has no movable properties. According to him, except the movable properties, pertaining to which the prosecution is launched, the accused has no other properties. He also stated in cross-examination that an enquiry was made through the Village Officer before making the endorsement and that accused did not have any movable or immovable properties. 8. But the accused was able to establish that he has both movable and immovable properties in his possession. It is brought out in cross-examination of PW1 that he has movable properties within the Panchayat. He has also established that he has a car and the R.C. Book is produced as Exhibit D8. Therefore, the evidence given by PW1 and PW2 Crl.RP.104/01 5 is disproved and the accused established that he has immovable and movable properties in his possession. Since Panchayat authorities have proceeded as though accused has no property, the contention that distraint was impracticable, cannot be accepted. The appellate court has rightly concluded that the pre-condition for launching the prosecution is not established. Hence this revision petition can only be dismissed and I do so. The Criminal Revision Petition is dismissed. (Sd/- K.HEMA, JUDGE) vgs. /True copy/ P.S to Judge Crl.RP.104/01 6 K.HEMA, J. ------------------------------ Crl.R.P.NO.104 of 2001 ------------------------------ O R D E R 12.8.2009