IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 Crl.Rev.Pet.No. 516 of 2002() ----------------------------- ST.3761/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD CRA.343/1999 of Ist ADDL. SESSIONS COURT, THRISSUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------- C.D. SUNNY, S/O. DEVASSY, CHITTILAPILLUKUNNATH HOUSE, MANNUTHY P.O., THRISSUR DISTRICT. BY ADV. SRI.KKM.SHERIF SRI.K.K.JAYASOORIAN RESPONDENTS/ RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------------------- 1. THE SECRETARY, CHAVAKKAD MUNICIPALITY, CHAVAKKAD, THRISSUR DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.K.CHANDRAMOHAN DAS PUBLIC PROSECUTOR SRI. C.M. KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.516 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August 2008 ORDER Petitioner was prosecuted by the Secretary of Chavakkad Grama Panchayat, purportedly invoking the power under Section 545 of the Kerala Municipalities Act 1994. The trial court found the petitioner guilty of the offence alleged against him and accordingly he was convicted and sentenced to pay a fine of Rs.80,000/- and in default to undergo simple imprisonment for three months. It was directed that the fine amount, if recovered, shall be credited to the account of the Municipality. The above order of conviction and sentence was confirmed by the Sessions Court in appeal. Hence this revision petition. 2. The case of the complainant may be briefly noticed. 3. The Municipality had auctioned the right to collect fee from the buses entering or starting from the Chavakkad bus stand for the period from April 1, 1995 till March 31, 1996. Since the amount offered by the petitioner was the highest, the bid was confirmed in his favour for a total sum of Rs.1,71,017/-. Crl.R.P.No.516 OF 2002 :: 2 :: 4. Admittedly, the petitioner had paid 1/3rd of the bid amount after confirmation, in terms of the conditions stipulated in the auction notice. The balance amount was supposed to be paid by the petitioner in eight monthly instalments. 5. It is not in dispute that the petitioner had paid only four instalments. In other words, the amount payable towards the remaining four instalments fell due, which according to the Municipality came to Rs.77,957/- with penal interest, cost etc. The Municipality alleged that petitioner had committed willful default in making payment and that the distraint warrant issued by the Municipality as provided under the Act had become futile. It was in the above circumstances that the Secretary of the Municipality had filed the complaint before the Judicial Magistrate of First Class, Chavakkad under Section 545 of the Act. 6. Before the trial court, PWs1 to 4 were examined on the side of the complainant and Exts.P1 to P11 were also marked. Exts.D1 and D2 were marked on the side of the petitioner though no oral evidence was adduced. 7. The defence set up by the petitioner/accused was that the Municipality was not entitled to proceed against him for Crl.R.P.No.516 OF 2002 :: 3 :: recovery of the alleged dues by taking recourse to Section 545 of the Act. It was further contented that petitioner was prevented from collecting fee from 42 out of 72 buses which either started from or entered the Bus Stand, by the Municipality itself as revealed from Exts.D1 and D2. The other contention was that the prosecution initiated against the petitioner was by itself incompetent, since no attempt was made by the Municipality to collect the dues as provided under the Act in as much as no distraint warrant had been issued and no effort made to recover the alleged amount, even assuming such a liability did exist. 8. The trial court as well as the appellate court rejected the above contentions raised by the petitioner and concurrently found him guilty. 9. It is contended by Miss. Sheena, learned counsel for the petitioner, that the courts below have not properly appreciated the legal and factual aspects of the case in their proper perspective. She invites my attention to Exts.D1 and D2 in particular, and contends that petitioner was directed by the Municipality not to collect fees from 42 out of the 72 buses in view of the order issued by this court in some writ petitions. 10. Significantly, the above contention has not been Crl.R.P.No.516 OF 2002 :: 4 :: disputed or denied by the Municipality. Smt. Rasia, learned counsel for the Municipality, contends that petitioner was bound to remit the entire bid amount in terms of Ext.P2 agreement executed between him and the municipality. It is also asserted by the learned Standing Counsel that petitioner was prosecuted after complying with all statutory formalities and mandates. She contends that the distraint warrant was attempted to be executed through PW2, but to no avail. 11. It is pertinent to note that petitioner had admittedly paid 1/3rd of the total bid amount of Rs.1,71,017. He had also remitted four instalments out of the balance due. Petitioner does not dispute the fact that the remaining four instalments were not paid by him. But according to the petitioner, he could not collect the fee from 42 buses, since he was restrained from doing so as per the directions issued by the Municipality itself. The only contention of the petitioner is that the Municipality ought to have kept in view the above aspect and reckoned the actual balance due from the petitioner before prosecuting him. Miss. Sheena contends that if only such an exercise had been made by the Municipality, it could have been shown that the actual amount would undoubtedly be much less than what has been Crl.R.P.No.516 OF 2002 :: 5 :: claimed in the complaint. There is considerable force in the above contention. 12. As rightly pointed out by the learned counsel, the parties were governed by Ext.P2 agreement. Necessarily therefore the Municipality ought to have put the petitioner on notice in terms of the agreement and reckoned the actual liability after considering the question whether the petitioner was in fact prevented from collecting fee from 42 buses during the relevant period. Since the Municipality had admittedly ignored or flouted the terms of the contract to the detriment of the petitioner, I find considerable force in the contention raised by the counsel that the action of the Municipality in prosecuting the petitioner was totally unjustified. 13. There is also considerable force in the contention raised by the petitioner that no steps had been taken to execute the distraint warrant before launching the prosecution. As rightly pointed out by learned counsel, the distraint warrant was addressed to the petitioner in his address at Mannuthi which is admittedly beyond the territorial jurisdiction of the Municipality. Admittedly there was no attempt to execute the distraint warrant. Prosecution under Section 454 of the Act could have Crl.R.P.No.516 OF 2002 :: 6 :: been initiated only if the execution of the warrant failed. 14. There is yet another aspect of the matter. The learned Magistrate had proceeded to impose a fine of Rs.80,000/- which he could not have in view of Section29 of the Code of Criminal Procedure. 15. Having regard to the entire facts and circumstances of the case, I am satisfied that the order of conviction and sentence passed against the petitioner cannot be sustained. Therefore, the order of conviction and sentence passed against the petitioner by the trial court, and as confirmed in appeal by the Sessions Court is set aside. However, it is made clear that it will be open to the Municipality to recover the balance amount, if any, from the petitioner in accordance with law. The amount, if any, deposited by the petitioner towards fine shall be refunded to him. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.516 OF 2002 :: 7 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.516 OF 2002 - - - - - - - - - - - - - - - - - - - - ORDER 14th day of August 2008