IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 OP.No. 31279 of 2002(W) ----------------------- PETITIONER: ------------------- SAMJI DAVID, MUNICIPAL SECRETARY, KAYAMKULAM MUNICIPALITY, KAYAMKULAM P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.K.HARILAL RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.K.KRISHNAKUMAR, DEPUTY DIRECTOR, OF LOCAL FUNDS AUDIT, DISTRICT OFFICE, ALAPPUZHA. BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 31279 of 2002(W) ORDER ON CMP.NO.53315/2002 IN OP.NO.31279/2002-W. DISMISSED. 9/4/2008. Sd/- T.R.Ramachandran Nair, Judge. Petitioner's Exhibits:- P1: Copy of the complaint filed by the 2nd respondent against the petitioner before the Hon'ble First Class Magistrate Court, Kayamkulam as ST.53/2002 dated buk, P2: Copy of the summons to the petitioner issued by the Court of the Judicial Magistrate of the First Class, Kayamkulam. P3: Copy of order GO(Rt.).No.4132/2000/LSGL. Dtd.13.10.2000 issued by the Local Self Government (A) Department. P4: Copy of report of Transfer of charge issued by the Charing Officer to the Municipal Secretary dtd.30.10.2000. P5: Copy of order dtd.22.11.2000 in CMP.No.11693/2000 in OP.No.6979 of 2000-E of the Hon'ble High Court f Kerala. Respondents' Exhibits:- Nil. ( true copy ) PA to Judge. kvs/- T.R.RAMACHANDRAN NAIR, J. ========================= OP.No.31279 of 2002-W. ========================= Dated this the 9th day of April, 2008. J U D G M E N T The petitioner is challenging the vires of Kerala Local Fund Audit Act, 1994. He was working as the Secretary of the Kayamkulam Municipality. The 2nd respondent initiated prosecution against him on the ground that he was violated the provisions of Section 9 of the said Act. The substance of the allegation is that as on 31.7.2000 while the petitioner was the Secretary, he failed to submit accounts for audit for the year 1999- 2000 before 31.7.2000 and thereby committed offence punishable under Sec.9(2) of the Act. Ext.P1 is the complaint and Ext.P2 is the summons issued by the criminal court. According to the petitioner he was transferred from Attingal Municipality to Kayamkulam only by Ext.P3 order dated 13.10.2000 and he took charge in OP.No.31279 of 2002-W. -: 2 :- Kayamkulam Municipality only on 30.10.2000. This is evidenced by Ext.P4. He was also raised a contention that no notice under Sec.9(3) of the Act was served on him. 2) The constitutional validity of the said Act even though was challenged in various writ petitions, this Court by judgment in OP.No.29280/2000 and other connected cases has upheld the constitutional validity. I am in perfect agreement with the findings rendered by the learned Single Judge in the above judgment. The next aspect is whether the prosecution launched can be sustained. The learned Single Judge in the judgment in the batch of cases has further directed that reasoned orders are necessary in terms of Sec.9(3) of the Act. Therefore the competent authority shall consider the objection raised by the petitioner and hear him, as to whether he is satisfied whether a criminal prosecution should be launched. Till orders are passed in the said issue the criminal prosecution longed against the petitioner will be kept in abeyance. The Director or the Deputy Director, who is the competent OP.No.31279 of 2002-W. -: 3 :- authority, has to issue notice to the petitioner calling for his objections in the matter and he should pass a reasoned order after hearing the petitioner. The criminal prosecution will continue only if the concerned Deputy Director takes a decision to the effect that such prosecution is necessary in the facts of the case and after orders are passed as directed above. The writ petition is allowed as above. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-