P. K. Thankappan v. Ganapathy Iyer — 1967 DIGILAW 34 (KER)

Judgment :- 1. This is a petition by the accused in C. C. No. 10 of 1965 on the file of the Sub Magistrate's Court, Vaikom. The petitioner was convicted by that court for the offence under S.74 of the Kerala Panchayats Act, 1960, read with R.26 of the Kerala Panchayats (Taxation and Appeal) Rules, 1963 and sentenced to pay a fine of Rs. 10/-, and in default to undergo simple imprisonment for 2 days. The learned Magistrate also directed that a sum of Rs. 87.45/-, being the arrear of tax for the non-payment of which the petitioner was prosecuted, and an amount of Rs. 15/-by way of expenses of the prosecution would be recovered from the petitioner by way of fine. The petitioner filed an appeal before the District Magistrate, Kottayam as Crl. Appeal No. 32 of 1965. The appeal was dismissed. The petitioner has, therefore, come is revision before this court. 2. This case arose out of a complaint filed by the Executive Officer of Chempu Panchayat against the petitioner, alleging that the petitioner willfully omitted to pay the tax due in respect of building No. C. V. 304 within the Panchayat for the years 1962-63 to 1964-65. This building is a cinema theatre, and is owned by a concern called Kairalee Corporation. The petitioner was examined in the case as DW.1, and according to his evidence, Kairalee Corporation is owned by eleven persons, and the petitioner is the President of this association of persons. It is not clear whether the Kairalee Corporation is a partnership concern. Ext. P-3 dated 2911965 is a demand notice issued by the Executive Officer of the Panchayat to the petitioner, calling upon him to pay the property tax in arrears in respect of the aforesaid building. It is Ext. P-4 dated 10 71965. Pursuant to this, the warrant officer went to the cinema theatre of the Kairalee Corporation to distrain the movables in it. But nothing could be distrained, as it was found that the theatre did not contain any movable property. Therefore, the Executive Officer filed the complaint on 4 9 1965. 3. Learned counsel for the petitioner raised two points before me against the conviction and the sentence passed against his client. The first contention is, that the prosecution is time-barred under S.119 of the Act. Therefore, the Executive Officer filed the complaint on 4 9 1965. 3. Learned counsel for the petitioner raised two points before me against the conviction and the sentence passed against his client. The first contention is, that the prosecution is time-barred under S.119 of the Act. The second contention is that the prosecution is not sustainable, in view of the provisions contained in S.74 of the Act, on the ground that no distraint of property belonging to the petitioner as such has been taken out before the prosecution was launched. 4. S.119 of the Kerala Panchayats Act reads as follows: "Persons empowered to prosecute: Save as otherwise expressly provided in this Act, no person shall be tried for any offence against this Act or any rule or bye-law made thereunder unless complaint is made by the police, executive authority or a person expressly authorised in his behalf by the Panchayat or executive authority within three months of the commission of the offence; but nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion: Provided that failure to take out a licence or obtain permission under this Act shall, for the purpose of this section, be deemed to be a continuing offence until the expiration of the period, if any, for which the licence or permission is required and if no period is specified, complaint may be made at any time within twelve months from the commencement of the offence." The contention of the petitioner's learned counsel is that this is a case of an offence against a Rule made under the Act and one instituted by the Executive Authority; and, therefore, it has to be filed within three months of the commission of the offence. According to him, the offence was committed when the notice of demand was served on the petitioner. The complaint in this case was filed admittedly after three months from the date on which notice of demand was served on the petitioner. According to him, the offence was committed when the notice of demand was served on the petitioner. The complaint in this case was filed admittedly after three months from the date on which notice of demand was served on the petitioner. The learned counsel for the respondent submits that this Section has no application to the case, and that a prosecution in respect of any tax or other sum due to a Panchayat is governed by S.117 of the Act which reads as follows: "Limitation for recovery of dues: No distraint shall be made, no suit shall be instituted, and no prosecution shall be commenced in respect of any tax or other sum due to a Panchayat under this Act or any rule, bye-law, regulation or order made under it after the expiration of a period of three years from the date on which distraint might first have been made, a suit might first have been instituted, or prosecution might first have been commenced, as the case may be, in respect of such tax or sum." There is no doubt that the above Section applies to a prosecution for non-payment of tax. But this section, though it was in the Act, was brought into force on 141966. This case was disposed of by the trial court on 13 91965; and hence this Section has no application to the case. The real. question for determination is whether S.119 applies to the case. In K. P. Paul v. Karthiyani (1967 KLT. 27) this question came up for consideration, though in a somewhat different manner, before a Division Bench of this court. Mr. Justice Govinda Menon, speaking for the Bench, stated as follows: "S. 119 is a general provision, which may apply to the prosecution of a person for an offence against this Act or any rule or bye-law. S.117 specifically lays down the limitation for taking any or all of the several modes for recovery of dues such as tax etc. It is this specific Section, if at all, which will apply to the prosecution of the accused, but that section came into effect only on 141966, and it cannot therefore be said that there is any bar of limitation." 5. It is this specific Section, if at all, which will apply to the prosecution of the accused, but that section came into effect only on 141966, and it cannot therefore be said that there is any bar of limitation." 5. Learned counsel for the petitioner contended that, in so far as S.117 was not in force at the relevant time and does not apply to this case, there is no scope for consideration whether a special provision excludes the operation of a general provision. This contention does not hold good in this case. When the question is one of interpretation of what S.119 truly means, whether it applies to a case of the kind that we are concerned with, this Section has to be examined in the light of the other provisions contained in the Act, Therefore, even though S.117 had not come into force when the complaint was instituted, and it does not apply to the case, it has to be taken into consideration in ascertaining the true scope of S.119 of the Act. S.117 and 119 of the Kerala Panchayats Act are similar in terms to S.366 and 368 respectively of the Travancore District Municipalities Act, 1116. A contention, which is very similar to the one advanced in this case, was raised in Narayani Sudakshina v. Prabhakaran Nair (1963 KLT.114) with regard to the application of S.366 and 368 of the Travancore District Municipalities Act. His Lordship held, following a decision of Mr. Justice Rajan annar in Sevugan Chettiar v. Karaikudi Municipality (AIR. 1948 Madras 290), that S.368 of the District Municipalities Act has no application to the institution of a prosecution for wilful omission to pay a tax, and that such a case was governed by S.366. On a parity of reasoning, it follows from the above decision that S.119 of the Kerala Panchayats Act has no application to the filing of a complaint for non-payment. 6. As I read S.119 of the Kerala Panchayats Act, I find considerable difficulty to understand its true scope. The Section has got the heading "persons empowered to prosecute"; and it mentions three persons. The expression "within three months of the commission of the offences" occurring in the Section goes with the words "a person expressly authorised in this behalf by the Panchayat or executive authority". The Section has got the heading "persons empowered to prosecute"; and it mentions three persons. The expression "within three months of the commission of the offences" occurring in the Section goes with the words "a person expressly authorised in this behalf by the Panchayat or executive authority". It would, therefore, appear that this limitation of three months applies to the authorisation mentioned in the Section, and not to the filing of a complaint. But the Section has got a proviso; and the proviso states that, in the cases coming within the ambit of the proviso, the period of limitation for filing a complaint will be 12 months from the commencement of the offence. Therefore, from the proviso it appears that the period of three months mentioned in the main part of the Section is a period of limitation for the institution of the complaint, and not a period within which the authorisation for the institution of the complaint has to be made. Again, the second part of S.119 states that nothing contained in the first part thereof shall affect the provisions of the Criminal Procedure Code, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion. The reference is obviously to S.190 of the Criminal Procedure Code, under which a Magistrate can take cognizance of any offence also upon information received from any person other than a police-officer. Every complaint to a Magistrate is an information that an offence has been committed; but every such information may not amount to a complaint. So under S.190 of the Code of Criminal Procedure, a Magistrate can treat a complaint as an information and take cognizance of the offence. It means that under the latter part of S, 119 of the Kerala Panchayats Act, a competent Magistrate can take cognizance of an offence on complaint or information received from any person other a police-officer, even it be from the Executive Authority or a person authorised under this Section to file complaint thereunder. If that be so, the provision contained in the latter part of this Section is in direct conflict with its former part, according to which an offence cannot be tried unless the complaint is made by one of the three persons mentioned therein and within the time of three months from the date of commission of the offence. If that be so, the provision contained in the latter part of this Section is in direct conflict with its former part, according to which an offence cannot be tried unless the complaint is made by one of the three persons mentioned therein and within the time of three months from the date of commission of the offence. Apart from the above difficulty, the offence we are concerned with in this case, is wilful omission to pay an amount due from a person to the Panchayat. Every omission is not a wilful omission. It is difficult to say when an omission to pay a tax becomes wilful. It is a matter to be inferred from the facts and circumstances of the case. It also appears to me that a wilful omission to pay a tax is a continuing offence; and it cannot be subject to a period of limitation. Bearing these considerations in mind and in the light of the decision reported in Narayani Sudakshina v. Prabhakaran Nair (1963 KLT.114), which directly applies to the case, I hold that S.119 of the Kerala Panchayats Act has no application to the filing of a complaint for an offence under R.2 of the Taxation and Appeal Rules. 7. There has been some controversy in this case whether the demand for payment of tax as well as the distraint warrant issued was in a representative capacity or in the individual capacity of the petitioner. I am not able to appreciate the contention in this regard. As I pointed out earlier, Kairalee Corporation is an association of persons; it is not a juristic entity. Therefore the liability to pay the tax in respect of a building, which is owned by this association, will be that of its members. The petitioner is not only one of its members but also its President. Therefore, there can only be an individual capacity in this case. A representative capacity assumes the existence of a person to be represented. There is no such person in this case; and hence there is no question of the petitioner representing any other person. The demand notice and the distraint warrant were issued in the name of the petitioner as President of the Kairalee Corporation. The complaint is also against him. A representative capacity assumes the existence of a person to be represented. There is no such person in this case; and hence there is no question of the petitioner representing any other person. The demand notice and the distraint warrant were issued in the name of the petitioner as President of the Kairalee Corporation. The complaint is also against him. I cannot, therefore, accept the contention of the petitioner's learned counsel that the prosecution is not sustainable against him, as no distraint of any property belonging to the petitioner in his individual capacity had been taken out, before instituting the complaint as contemplated by S.74 of the Kerala Panchayats Act. The cinema theatre standing in the name of the Kairalee Corporation, and the movables therein are properties belonging to the petitioner, though he is not the full owner of the same. He has a definite share in the said properties; and a distraint taken out against the movables is the theatre is a distraint against the properties of the petitioner. 8. The tax demanded from the petitioner relates to the years 1952-63 onwards. He has not paid in spite of the demand notice and distraint warrant. It follows that the Panchayat has not been able to recover the amount by distraint and the omission to pay the amount continues. It is not the petitioner's case that he is not in a position to pay the tax. The omission to pay the tax is, therefore, wilful; and it is an offence under R.26 of the Taxation and Appeal Rules. 9. This revision petition has, therefore, no merit; and it is hereby dismissed. Dismissed.