IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 Crl.Rev.Pet.No. 2613 of 2003(C) ------------------------------- CRA.372/2000 of ADDL.SESSIONS COURT (SPL.CAURT), KOTTAYAM ST.779/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- P.C.ANTONY, POOVATHUMAKAL HOUSE, MANIMALA P.O, KOTTAYAM DISTRICT. BY ADV. SRI.K.GOPALAKRISHNA KURUP SRI.S.MANU RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. VELLAVOOR GRAMA PANCHAYTH REPRESENTED BY ITS SECRETARY, VELLAVOOR, KOTTAYAM DT. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR , HIGH COURT OF KERALA , ERNAKULAM R1 BY ADV. SRI.M.K.CHANDRA MOHANDAS PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. --------------------------------------- Crl. R.P. No.2613 of 2003 --------------------------------------- Dated this the 20th day of June, 2011 JUDGMENT P.Q. Barkath Ali , J . Revision petitioner is the accused in S.T.No.779/99 on the file of Judicial First Class Magistrate Court-II, Kanjirappilly and appellant in Crl.Appeal No.372/2000 on the file of Additional Sessions Court (Special), Kottayam. In this appeal the appellant challenges his conviction under Section 210 of Kerala Panchayath Raj Act read with Rule 27 of Kerala Panchayath Raj Act (Taxation and Appeal) Rules 1996 and sentence to pay fine of Rs.37,000/-, in default to under go simple imprisonment for 3 months with direction to credit Rs.34,509/- out of the fine amount to the account of complainant Panchayath, by the learned Magistrate by judgment dated November 30, 2000 which is confirmed in appeal by learned Sessions Judge by judgment dated June 7, 2003. 2. The complainant/first respondent is the Vellavoor Grama Panchayath represented by its Secretary. The case of the complainant, as testified by PW1, the present Secretary of the Grama Panchayath, and as detailed in complaint in brief is thus: 3. The accused bid the right of collecting the entry fees for the period 1998-99 from the buses entering in the bus stand of Manimala Crl. R.P. No.2613 of 2003 2 Grama Panchayath owned by the complainant. The accused executed an agreement (Exhibit P1) on March 31, 1998. The petitioner has remitted first installment of Rs.17,000/- and the agreement was to remit the balance amount of Rs.30,000/- in three equal instalments, ie on 31.5.98, 31.8.98 and 30.11.98. The accused did not remit the amount under Exhibit P1 agreement. Inspite of Exhibit P2 notice on November 17, 1998 and Exhibit P3 demand notice dated December 15, 1998, accused did not pay the amount. The attachment warrant (Exhibit P5) issued on March 5, 1999, Exhibit P5, was also cannot be executed. Therefore, the complainant Panchayath has filed the complaint before the trial court under Section 210 of the Panchayath Raj Act read with Rule 27 of Kerala Panchayath Raj (Taxation and Appeal Rules) 4. Revision petitioner/accused on appearance before the trial court pleaded not guilty to the charge under Section 210 read with Rule 27 of Kerala Panchayath Raj (Taxation and Appeal Rules). PW1, the Secretary of the complainant Panchayath was examined and Exhibits P1 to P5 were remarked on the side of the complainant. When questioned under Section 313 of CrPC, the accused submitted that the bus stand was closed for maintenance from 5.5.98 to 20.6.98 and therefore during that period the accused was not bound to pay the license fee. DWs 1 to 3 were examined by the accused and he produced Exhibits D1 to D3(a). Crl. R.P. No.2613 of 2003 3 5. On an appreciation of evidence learned Magistrate found the accused guilty of the offence punishable under Section 210 of Kerala Panchayath Raj Act read with Rule 27 of Kerala Panchayath Raj (Taxation and Appeal) Rules 1996 convicted him thereunder and sentenced him to pay fine of Rs.37,000/- in default to under go simple imprisonment for three months. In appeal by the accused the lower appellate Court confirmed his conviction and sentence. Now the accused has come up in revision challenging his conviction and sentence. 6. Heard learned counsel for the revision petitioner/accused and revision 2nd respondent Panchayath. The following points arises for consideration : 1. Whether the revision petitioner/accused has defaulted payment of license fee due under Exhibit P1 agreement ? 2. Whether the conviction of the revision petitioner by the Trial Court under Section 210 read with Rule 27 of Kerala Panchayath Raj (Taxation and Appeal) Rules 1996 which is confirmed in appeal can be sustained ? 3. Whether the sentence imposed by the trial court which is confirmed in appeal is excessive or unduly harsh ? 7. It is the admitted case which is also proved by the evidence of PW1, Secretary of the Panchayath and Exhibits P1 to P5 that accused/appellant bid the right to collect license fee for the period from 1998-99 from the buses entering Manimala Panchayath bus stand owned by the complainant Panchayath. It is also not disputed Crl. R.P. No.2613 of 2003 4 that accused has remitted the first instalment of Rs.17,000/- on March 31, 1998 and the agreement was to remit the balance amount in three equal instalments of Rs.10,000/- each on May 31, 1998, August 31, 1998 and on November 30, 1998. It is admitted that the accused did not remit the balance amount. That being so, Rs.34,509/-is due to the Panchayath from the accused as seen from Exhibit P3 demand notice. 8. The case of the accused is that the said bus stand was closed for the period from 5.5.98 to 20.6.98, therefore he is not liable to pay the license fee during that period. In an attempt to prove the same DWs 1 to 3 were examined and Exhibits D1 to D3(a) were produced. DW 1 is the then Secretary of the Vellavoor Grama Panchayat who filed the complaint . DW2 was the Secretary of the Panchayth from 28.12.97 to 31.3.99. During cross examination he was confronted with Exhibit D3 (a) resolution taken by the Panchayth on April 9, 1998 stating that the bus stand was closed for maintenance from 5.5.98 to 20.6.98. But he has clarified that though such a resolution was taken the bus stand was not actually closed. Therefore, the evidence of DW2 does not in any way help the accused to prove his case. DW 3 is only an attester to Exhibit P1 agreement. The evidence of DWs 1 to 3 and Exhibits D1 to D3a did not in any way help the accused to show that the Panchayath bus stand was actually closed during the period from 5.5.98 to 20.6.98. That being so the accused is bound to pay the amount due under the demand notice, Crl. R.P. No.2613 of 2003 5 Exhibit P3, of Rs.34,509/-. 9. The counsel for the revision petitioner argued that the amount due under Exhibit P1 agreement cannot be recovered as amount due under Section 210 of Panchayath Raj Act read with Rule 27 of Kerala Panchayath Raj (Taxation and Appeal) Rules 1996 by resorting to Section 74 of the Act. There is no merit in the above contention. In the light of the principles laid down in Pudunagaram Grama Panchayath V. Saleem (2005 (4) KLT 415) wherein the Division Bench of this Court has held that even in the case of arrears of rent payable by a successful bidder can be recovered under Section 74 treating the same as arrears of taxes etc. Therefore the complainant Panchayath is perfectly entitled to proceed under Rule 27 of Taxation and Appeal Rules. 10. Inspite of Exhibit P2 notice and Exhibit P3 demand notice, Exhibit P5 attachment warrant issued by the Panchayth was not liable to realize the amount from the accused. Therefore, the Panchayth is perfectly justified in initiating prosecution against the accused. That being so, finding of the learned Magistrate that the accused has committed offence punishable under Section 210 of Panchayath Raj Act 1994 read with Rule 27 of Kerala Panchayath Raj (Taxation and Appeal) Rules 1996 which is confirmed in appeal has to be upheld. 11. As regards sentence the learned Magistrate imposed a fine Crl. R.P. No.2613 of 2003 6 of Rs.37,000/- in default of payment of fine to undergo simple imprisonment for three months which is confirmed in appeal by lower appellate court. The amount due under the demand notice (Exhibit P3) is Rs.34,509/-. The said amount is due from 1999 onwards. Therefore I feel that fine of Rs.34,600/- with default sentence would met ends of justice. In the result, revision petition is allowed in part. Conviction of the revision petitioner under Section 210 of Kerala Panchayath Raj Act read with rule 27 of Kerala Panchayath Raj (Taxation and Appeal) Rules 1996 is confirmed. The sentence is modified to the effect that he is sentenced to pay fine of Rs.34,600/- in default to under go simple imprisonment for two months. His bail bonds are canceled. Two months time is granted for payment of fine. Fine amount if realised shall be paid to the complainant Panchayath towards the amount due to the Panchayath from the accused. P.Q.BARKATH ALI, JUDGE. rkc