IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 CRL.A.No. 2089 of 2006 (AGAINST THE JUDGEMENT IN ST.1844/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA) .................... APPELLANT/ PETITIONER: -------------------------------------- SECRETARY, KADAKKAL GRAMA PANCHAYATH, KADAKKAL. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM. 2. SIVAPRASANNAN, KARAMKUZHI, PUTHE VEEDU, KARYAM, KARYAM, EDATHARA P.O., KADAKKAL. BY ADV. SRI. K.SIJU FOR R2 SRI.A.MUHAMMED RAFFI FOR R2 BY PUBLIC PROSECUTOR SRI.AMJAD ALI FOR R1. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 2089 of 2006 --------------------------------------------- Dated this the 21st day of January, 2009 J U D G M E N T This is an appeal preferred by the appellant, viz., Secretary, Kadakkal Grama Panchayat who is the complainant in S.T.No.1844 of 2004 pending before the Court of Judicial First Class Magistrate-II, Kottarakkara. By the impugned order under Section 256(1) of the Cr.P.C., the learned Magistrate acquitted the accused in a prosecution lodged at the instance of the appellant/complainant. 2. The Grama Panchayath approached the court below by filing a complaint to prosecute the second respondent/accused under Section 210 of the Kerala Panchayat Raj Act,1994 read with Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 as the accused failed to remit an amount of Rs.1,85,380/- towards the arrears of rent and interest to the Panchayat for the period from 10/2001 to 7/2004 for the shop room which is occupied by the accused. After taking cognizance upon the complaint, S.T.No.1844 of 2004 was instituted in the court below. 3. From the impugned order, it appears that the accused was present on 3.10.2005 and the complainant was absent on that day and to condone the absence of the complainant, a petition was filed. It is CRL.A. NO.2089 of 2006 :-2-: also discernible from the order that the accused had appeared and the case stood posted for evidence and the complainant was continuously absent in spite of specific direction to be present in the court for giving evidence. According to the impugned order, on the date of order also the complainant was directed to be present, but the complainant was absent and no satisfactory reason was stated for the absence. It was, in the above circumstances, the court below passed the above order. On a reading of the impugned order, it is discernible that the complainant was absent on all requisite dates in spite of the specific direction issued by the court below. But, it is to be noted that the complaint is preferred by the Grama Panchayath through its Secretary represented by the person who was acting as the Secretary at that time. The amount involved in this case at that time will come to Rs.1,85,380/- and interest thereon. By the above order of acquittal, the actual beneficiary is the accused and the loser is the Grama Panchayath. The local self Government like the Grama Panchayath finds out its resources for its existence and proper administration, from the income from contract like the present one and taxes. Because of the negligence, if any, on the part of the officers concerned, the same shall not be shouldered on the Grama Panchayath. CRL.A. NO.2089 of 2006 :-3-: If the defaulters or the accused are capable to win over the officers of the Panchayath, they can easily escape from the penal and financial liability that may arise as final outcome of the prosecution like the present one. However, in the present case, there is no decision on merit regarding the allegation in the complaint. 4. In the above circumstances, I am of the view that though the complainant was absent, one more opportunity can be given to the Grama Panchayath to prosecute the complaint, but on terms. In the result, the impugned order is set aside on condition that the appellant /complainant deposits a sum of Rs.1500/- (Rupees One Thousand Five Hundred only) before the court below, out of which Rs.1000/- (Rupees One Thousand only) is to be paid as cost to the accused and Rs.500/- (Rupees Five Hundred only) is to be paid to the State Exchequer within one month from today. The parties are directed to appear before the court below on 21st February, 2009 on which date the court below is directed to take up the complaint on file if it is satisfied that the appellant/complainant has deposited the amount as directed by this Court. On remittance of the cost as ordered, the trial court is directed to consider the complaint in accordance with law and decide on merits, and dispose of the same as CRL.A. NO.2089 of 2006 :-4-: expeditiously as possible. The Criminal Appeal is disposed of as above. V.K.Mohanan, Judge. MBS/ CRL.A. NO.2089 of 2006 :-5-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------------- J U D G M E N T DATED: 10-2008 CRL.A. NO.2089 of 2006 :-6-: