M. Padmanabhan v. Appukuttan Nair — 1973 DIGILAW 248 (KER)

Judgment :- 1. The revision petitioner in all these three criminal revision petitions is one and (be same person, and so also the first respondent. The second respondent, the State of Kerala, has been impleaded in these revisions presumably as a pro forma party. 2. The revision petitioner was the accused in the cases, and be was prosecuted for an offence, which, according to the prosecution, would fall within S.138 of the Kerala Municipal Corporations Act, 1961 (Act 30 of 1961), hereinafter referred to as the Act, read with R.30 (2) of the Taxation Rules in Part VI of Schedule H of the said Act, hereinafter referred to as the Taxation Rules. He (the revision petitioner) had entered into contracts with the Corporation of Trivandrum, the complainant before the trial court (the first respondent in these revisions) whereby be had agreed to run certain public comfort stations within the limits of Trivandrum Corporation for the respective periods. 3. It is alleged that the revision petitioner had agreed to reimburse the water charges paid by the Corporation in respect of the water that was used by him as contractor for the purpose of running these stations. Criminal R.P. No. 196 of 1973 relates to the water charges due for the period from 141968 to 31-3 69, while Crl. R.P. Nos. 198 and 199 of 1973 relate to the period 1967-68. Though the revision petitioner does not admit the correctness of the amount claimed from him by the Corporation, that need not be gone into in these revisions, and in fact that point has not also been seriously urged before me. The trial court found the accused guilty under S.421 of the Act and convicted and sentenced him in each case to ten days' simple imprisonment. In appeal the learned Sessions Judge held that the accused was guilty under R.39 of the Taxation Rules, not under S.421 of the Act, and modified the sentence passed by the trial court into a fine of Rs. 25/-, in default to undergo simple imprisonment for seven days. The appellate court further held that the amounts due to the Corporation shall be recovered from the accused as if it were a fine imposed under the Criminal Procedure Code and in the event of default to pay the amount, the accused will undergo simple imprisonment for 30 days. 25/-, in default to undergo simple imprisonment for seven days. The appellate court further held that the amounts due to the Corporation shall be recovered from the accused as if it were a fine imposed under the Criminal Procedure Code and in the event of default to pay the amount, the accused will undergo simple imprisonment for 30 days. It is the correctness of these decisions of the courts below that is being challenged in these revisions. 4. In the discussions that follow, the facts are stated as in Crl.R.P. No. 196 of 1973. The facts are almost identical in all cases except that in the case which has given rise to Crl. R.P. No. 196 of 1973 the notice required under S.413 of the Act has been returned unserved, whereas in the other two cases the notices have been duly served; yet another distinction is that while there is evidence in the cases which have given rise to Crl. R.P. Nos. 196 and 199 of 1973 that the Commissioner had ordered to "prosecute" the revision petitioner, there is no evidence of such order having been passed by the Commissioner in the case which has given rise to Crl. R.P. No. 198 of 1973. 5. Various contentions have been raised by Sri. P. Sukumaran Nair, the learned counsel for the petitioner. According to him, the parties are governed by the contract entered into by the revision petitioner on the one hand and the first respondent on the other. Ext. P-1 (in Crl, R.P. No. 199/73) is the agreement so entered into between the parties. Para.3 of the agreement provides as follows: It is contended for the revision petitioner that even assuming that the Corporation has the right to realise the amount due by resorting! to the provisions of the Act, what could be sought to be applied is S.413, not S.138. S.413 reads as follows: "413. Para.3 of the agreement provides as follows: It is contended for the revision petitioner that even assuming that the Corporation has the right to realise the amount due by resorting! to the provisions of the Act, what could be sought to be applied is S.413, not S.138. S.413 reads as follows: "413. Recovery of sum due as taxes All costs, damages, penalties, compensation, charges, fees, rents, expenses, contributions and other sums which under this Act or any rule, bye-law or regulation made thereunder or any other law or under any contract including a contract in respect of water supply or drainage made in accordance with this Act, and the rules, bye laws and regulations are due by any person to the Corporation shall, if there is no special provision in this Act for their recovery, be demanded by bill containing particulars of the demand and notice of the liability incurred in default of payment and may be recovered in the manner provided by R.30 and 36 of the rules contained in Part VI of Schedule II unless within fifteen days from the date of service of the bill such person shall have applied to the District Court having jurisdiction over the City." From the wording of S.413 it is fairly clear that the amounts due from any person under a contract also could be realised by the Corporation in the manner prescribed in R.30 and 36 of the Taxation Rules. The relevant provisions in the Act read together would indicate that the Corporation has the option either to proceed with action in a civil court, or effect recovery by the process of distraint, or to resort to prosecution in a criminal court. The learned counsel for the revision petitioner contends that even assuming, without conceding, that the liability falls under S.413 of the Act, inasmuch as a notice as contemplated under S.413 of the Act and R.29 of the Taxation Rules has not been served on the revision petitioner, the prosecution was not maintainable and the conviction and sentence by the courts below are invalid and bound to be set aside. As has already been stated, it may be noted that in the case which has given rise to Crl. R.P. No. 196 of 1973 the notice has not been served on the revision petitioner, as it was returned without being served. As has already been stated, it may be noted that in the case which has given rise to Crl. R.P. No. 196 of 1973 the notice has not been served on the revision petitioner, as it was returned without being served. In the other two cases the notices served did not actually specify the consequences that would follow if the amount in default was not paid within the stipulated period. The material portion of Ext. P2 notice (in Crl. R.P. 196/72) reads as follows: In this connection we have to note that in terms of S.413 of the Act a demand by bill containing the particulars of the demand, and notice of the liability incurred in default of payment is a pre-requisite to resorting to recovery in the manner prescribed by R.30 and 36 of the Taxation Rules. R.29 (2) requires that the notice to be served before proceeding to enforce the provision of R.30, shall contain the liability which will have to be incurred in default of payment. In Ext. P-2 it has not been stated in so many words that criminal prosecution would follow in the event of the revision petitioner defaulting payment of the amount due to the first respondent in terms of Ext. P-1 contract. The learned counsel for the first respondent contends that Para.3 of Ext. P-1 agreement also provides that the Corporation had the right to proceed not only against the property over which it bad a charge, but also against the revision petitioner personally, and when in Ext. P-2 notice it has been stated that he would be liable to be proceeded against in the manner provided in the agreement, it includes the possibility of hisbeing prosecuted in a criminal court, and therefore the revision petitioner cannot raise the contention that he had no notice of the prosecution. The argument is rather ingenuous; but, I think, the provisions contained in S.413 of the Act and R.29 of the Taxation Rules are intended to alert the person in default, so that if he so chooses he may avert the risk of his getting himself involved in a criminal prosecution. No doubt, if S.413 applied to the case, as we have assumed, the Corporation had the right to proceed in a criminal court also for enforcement of its right. No doubt, if S.413 applied to the case, as we have assumed, the Corporation had the right to proceed in a criminal court also for enforcement of its right. But it had other options also like instituting a suit in a civil court or proceeding by distraint. As long as the person in default had not been precisely and specifically told that a liability of criminal prosecution would entail in case he did not clear the amount in default it could not be said that the person in default had sufficient notice of the prosecution in compliance with the provisions contained in S.413 of the Act and R.29 of the Taxation Rules which are mandatory in character. 6. M. K. Chacko v. Kottayam Municipality (1954 KLT. 266) was a case relating to the prosecution of the accused under R.31 (2) of Schedule II of the Travancore District Municipalities Act (Act XXIII of 1116) for non-payment of profession tax due from him to the complainant Municipality. Dealing with the question of failure to serve notice of prosecution properly on the accused, Sankaran J., as he then was, observed: "The liability to pay the tax due to the Municipality is in essence a civil liability and it is only by virtue of the special provisions contained in the District Municipalities Act that the omission to pay up the amount is made an offence for which the defaulter could be prosecuted. Such being the nature and scope of the prosecution, it is of the utmost importance thai every one of the preliminary steps prescribed by the Act as leading up to such a prosecution is proved to have been strictly complied with and observed. Non-observance of these preliminary steps would be fatal to the sustainability of a prosecution under Clause.2 of R.31 of Schedule.11. The service of the notice Ex. A in the present case having been false and illegal on the face of it, is in itself a fatal defect rendering the prosecution unsustainable" Considering the importance of proper notice as a pre-requisite for launching criminal prosecution in this case, I hold that inasmuch as no notice as contemplated in S.413 of the Act and R.29 of the rules has been served on the revision petitioner in Crl. R. P. No. 196 of 1973, and the notices served on him in the other two cases fall short of the legal requirements of the notice contemplated, the prosecution cannot sustain. 7. The prosecution should fail for another reason also. This prosecution has been launched, as is seen from the complaints filed in the respective cases, by the Revenue Inspector of the Corporation. No authority is seen specifically conferred by the provisions of the Act on the Revenue Inspector to prosecute a person placed in the position of the revision petitioner. In Ext. P-7 in the cases which have given rise to Crl. R.P.Nos.196 and 199 of 1973, all that is purported to have been written by the Commissioner in the relevant proceedings is the word "prosecute". As far as the case which has given rise to Crl. R. P. No. 198 of 1973 is concerned, it should fail for the simple reason that the complainant was not competent to prosecute the accused, as no document under which the Commissioner delegated hispower or conferred authority on the complainant Revenue Inspector is seen to have been produced or proved in this case. As for the other two cases, the submission of the learned counsel for the first respondent is that in terms of S.15 of the Act it is open to the Commissioner to delegate his functions to any other person. As for the other two cases, the submission of the learned counsel for the first respondent is that in terms of S.15 of the Act it is open to the Commissioner to delegate his functions to any other person. While there could be no doubt that the Commissioner has the right to delegate hispower, the question would be whether in these two cases there has been a delegation of the power of prosecution as required under S.15 of the Act, The provisos to S.15 read as follows: "Provided that (a) such delegation shall be in writing and shall specify the name or official designation of the person to whom the delegation is made; (b) such delegation is reported to the council; (c) the commissioner shall not delegate his power under S.79 to make on behalf of the corporation any contract involving an expenditure exceeding one thousand rupees; (d) when the commissioner delegates under this section any power or duty which is exercisable or is required to be performed subject to the approval of any other municipal authority, the commissioner shall send a copy of the order of delegation to such authority." It makes clear that the delegation of his power by the Commissioner should be in writing, also specifying the name or official designation of the person to whom the delegation is made. Clause (b), as we read it, makes it also obligatory that such delegation is to be reported to the council. In this case, as has already been adverted to, the order of the Commissioner is in one word, "prosecute". It does not specify either the name of the person who was to prosecute the case, or his official designation. The prosecution cannot expect the Court to stretch itself too much so that it may go through the proceedings of the Revenue Officer and see whether it could be possible, in the context, to construe the one-word order "prosecute", passed by the Commissioner, as a proper order of delegation authorising the Revenue Inspector to prosecute the case, though be had not mentioned the name or the official designation of the person who was to prosecute the case. 8. The Supreme Court had occasion to consider the manner in which the delegation has to be effected. 8. The Supreme Court had occasion to consider the manner in which the delegation has to be effected. Construing S.537 of the Calcutta Municipal Act (3 of 1923) Das J., speaking for himself and Sarkar J., in Ballabadas Agarwala v. J. C. Chakravarty (AIR. 1960 SC. 576) has held that the conviction of the accused on the basis of a complaint filed by the Health Officer of the Howrah Municipality who was not duly empowered as the delegated authority to institute criminal proceedings under the Act on the date on which he made the complaint could not be sustained. The absence of a proper complaint was not a mere defect or irregularity curable under S.537 of the Code of Criminal Procedure; it affected jurisdiction and initiation of proceedings. 9. In Mangulal Chunilal v. Manilal Maganlal (AIR. 1968 SC. 822) it has been observed as follows: "We are not impressed by this argument. II is true that the word "take" has various meanings but no dictionary or authority has been placed before us to show that the word can mean "cause to be taken". It seems to us that the word "take" was used because if the word "institute" had been used it may not have been appropriate to cover all proceedings that can be taken under S.481 (I) (a)". It has also been observed in the same judgment "It is true that if the language suggested by him had been used no dispute would have arisen. But we are not free to interpret the words "take proceedings" to mean "order proceedings to be taken" because the word "take" is an English word and we can only ascribe to it a meaning which h bears in the English language". The defects in the prosecution, noted already, not being in the nature of those which could be cured by invoking S.537 Crl. P. C., I think, the courts below were in error in convicting and sentencing the accused. These revisions, therefore, have to be allowed. I therefore set aside the conviction entered and sentence passed by the courts below against the revision petitioner. The revision petitions are allowed accordingly and the accused is acquitted. Fine, if already paid, will be refunded to the revision petitioners.