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. 380 of 2007 (AGAINST THE JUDGEMENT IN ST.652/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA) .................... APPELLANT/PETITIONER: ------------------------------------- SECRETARY, KADAKKAL GRAMA PANCHAYAT, KADAKKAL. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. G. UDAYAN, UMESH BHAVAN, KARYAM, EDATHARA P.O., KADAKKAL. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.V.ANIL KUMAR FOR R1. BY PUBLIC PROSECUTOR SRI.AMJAD ALI FOR R2. 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. 380 of 2007 --------------------------------------------- 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.652 of 2003 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, since the complainant was absent without satisfactory reason. 2. As per the allegation in the complaint, the first respondent/accused was given the right to collect bus stand fees and also fees for use of the comfort station for the year 2000-2002. On this account, an amount of Rs.1,18,040/- was due from the accused. According to the appellant, in spite of repeated demands, revenue recovery demand notice, distress warrant etc, the accused failed to pay the amount due and therefore, the Panchayat approached the court below by filing a complaint for prosecuting the 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. On CRL.A. NO.380 of 2007 :-2-: the basis of the said allegation, a complaint was received on file and instituted as S.T.No.652 of 2003. 3. It appears from the order under challenge that the accused is acquitted under Section 256(1) of the Cr.P.C. as the complainant was absent on 7.11.2005. It is stated in the order that the complainant absent and applies. The case is posted for evidence, but the complainant is continuously absent. It is also discernible from the order that there was a specific direction to the complainant to be present before the court below for evidence on the date of the order also. But, in spite of the specific direction, the complainant was absent and the reason stated in the petition for condonation of delay as absence is not satisfactory, according to the court below. Therefore, the application of the complainant to excuse his absence was rejected and accordingly, the accused is acquitted under Section 256(1) of Cr.P.C. 4. As stated earlier, the Panchayat took steps for prosecution against the accused for the realisation of Rs.1,18,040/- at the time of launching this complaint. Thus, by the order of acquittal passed by the court below, the actual beneficiary is the accused and the loser is the complainant who is the Grama Panchayath. The local self Government CRL.A. NO.380 of 2007 :-3-: 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. 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 present one. However, in the present case, even though the order of the court below is not illegal, there is no decision on merit regarding the allegation in the complaint. 5. 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 by adducing evidence and to substantiate its allegation against the accused. 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 CRL.A. NO.380 of 2007 :-4-: 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, decide on merits and dispose of the same, as expeditiously as possible. The Criminal Appeal is disposed of as above. V.K.Mohanan, Judge. MBS/ CRL.A. NO.380 of 2007 :-5-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------------- J U D G M E N T CRL.A. NO.380 of 2007 :-6-: DATED: 10-2008 CRL.A. NO.380 of 2007 :-7-: