SREENIVASAN NAIR v. PRIYASENAN — 1988 DIGILAW 531 (KER)

Judgment :- 1. Complainant is the appellant. Appeal is against the acquittal of the respondent by the judicial 2nd Class Magistrate, Shertallai in C.C. No.13 of 1984. 2. Prosecution is under R.31 (1) and 32 (2) of Schedule II of the Kerala Municipalities Act, 1960 read with S.386 of the Kerala Municipalities Act. The Sherthallai Municipality auctioned the right to collect fees from the buses coming to the Municipal Bus Stand, Sherthallai for the year 1982-83. The respondent was the successful bidder for an amount of Rs. 14,100/-. The auction was confirmed in his name and be executed Ext. P2 agreement 1-4-1982 in favour of the Commissioner. On the basis of that agreement, be paid the one-fourth amount of Rs. 3,525/-. Balance three-fourth amounting to Rs. 10,575/-bad to be paid under the terms of Ext. P2 in eight monthly instalments of Rs. 1,322/-. The respondent paid five instalments alone. Thereafter, be defaulted. Balance due from him is Rs. 3,965/-. A registered notice was issued on 11-7-1983. Thereafter, a demand notice was issued on 5-8-1983, since the amount was not paid. In the demand notice, be was asked to pay the amount within fifteen days. He did not pay. Therefore, distraint warrant was issued on 3-10-1983. Distraint could not be effected because he had no property within the limits of the Municipality. It was on these allegations that the complaint was filed by the Revenue Inspector stating that he was authorised by the Municipal Commissioner to prosecute the respondent. 3. Appellant was examined as Pw.1 and the present Municipal Commissioner was examined as pw. 2. Exts. P1, P1 (a), P1 (b) and P2 are the documents proved. No defence witness was examined and no defence document was also produced and proved. 4. The learned Magistrate framed five points for consideration. On the first point, whether Ext. P2 is a genuine document or not, he entered the finding that it is genuine. On the second point whether the appellant was authorised to launch the prosecution, the finding of the Magistrate was against the prosecution. The third point related to the question whether all the formaltics to be observed before launching the prosecution were actually observed. That was also found against the prosecution. The fourth point is whether the prosecution evidence is sufficient to establish the offence. That was also found in favour of the defence. The third point related to the question whether all the formaltics to be observed before launching the prosecution were actually observed. That was also found against the prosecution. The fourth point is whether the prosecution evidence is sufficient to establish the offence. That was also found in favour of the defence. Ultimately, on Point No. 5 the Magistrate found that no offence is established. The respondent was, therefore, acquitted. 5. After having heard both sides and perused the oral and documentary evidence, I am satisfied that the Magistrate was not justified in any of his findings. He has misunderstood the provisions of law as well as the evidence on record. These wrong understandings have seriously affected bis decision of the case. 6. Ext. P1 is the distraint warrant issued against the respondent. On the back of the distraint warrant, the Municipal Commissioner under his signature, authorised the appellant to launch and conduct the prosecution against the respondent. It was under the authority of that authorisation that the appellant filed the complaint. The authorisation is marked as Exhibit Pl(b). Ext. P1 (b) was rejected by the Magistrate for the sole reason that the previous Municipal Commissioner, who issued the authorisation, was not examined as a witness to prove the same. The appellant, as pw.1, has spoken to the fact that the authorisation was issued by the Commissioner himself. When the respondent raised a contention before Court that the evidence of pw.1 is not sufficient to prove the authorisation, be filed a petition for summoning and examining the Commissioner to prove the authorisation and his signature, That prayer was opposed by the respondent and the Magistrate has rejected that application. It was after having done so that the Magistrate rejected Ext. P1 (b) and blamed the appellant for not proving the same by examination of the Commissioner. 7. Courts are existing for dispensation of justice and not for its denial on technical grounds. If the examination of the Commissioner was necessary for ascertaining the correctness of Ext. P1 (b) authorisation, which is essential for a fair and fall disposal of the prosecution, the Magistrate ought to have issued summons for his examination. S.311 of the Code authorises him in resorting to such a course. If the examination of the Commissioner was necessary for ascertaining the correctness of Ext. P1 (b) authorisation, which is essential for a fair and fall disposal of the prosecution, the Magistrate ought to have issued summons for his examination. S.311 of the Code authorises him in resorting to such a course. Without doing so and even rejecting the application of the complainant to examine the Commissioner, I do not think that it was proper on the part of the Magistrate to have discarded Ext. P1 (b). 8. On the merits also, the finding of the Magistrate cannot be supported. In order to prove Ext. P1 (b) authorisation, it is not at all necessary to insist on the examination of the Commissioner. The evidence of pw.1 could have been very well accepted for that matter. The Commissioner was only discharging an official function while issuing the order of authorisation. When that order itself is produced before court in original and proved by Pw.1, the regularity of official action could have been presumed by the Magistrate. There was not even a suggestion that Ext. P1 (b) is fabricated or that the signature is forgery. Ext. P1 (b) has been properly proved in the case and the prosecution is therefore authorised also. The finding of the Magistrate to the contrary is incorrect. 9. The Magistrate went wrong in his finding that the necessary formalities prior to the launching of the prosecution were not observed, S 386 of the Municipalities Act authorises amounts covered by this case also to be recovered in the manner provided in the rules in Schedule II. For the purpose of realisation of the amounts due under the said provision, the first formality to be observed is the one under R.31 (1) of Schedule H. What is required therein is the issue of a demand notice requiring the defaulter to pay the amount together with the demand notice fee and the cost of service of the notice within 15 days from the service thereof. In this case, a registered notice was issued on 11-7-1983 and thereafter, a demand notice was issued on 5-8-1983. These facts are not disputed. Therefore, there cannot be any complaint that the provisions of R.31 of Schedule II are not complied with. 10. In this case, a registered notice was issued on 11-7-1983 and thereafter, a demand notice was issued on 5-8-1983. These facts are not disputed. Therefore, there cannot be any complaint that the provisions of R.31 of Schedule II are not complied with. 10. What R.32 of Schedule II provides is that if the amount is not paid as per the demand notice, the Commissioner may recover the amount by distraint. The evidence of pw.1 shows that a distraint was attempted on 3-10-1983. Ext. P1 is the distraint warrant. Distraint became impossible because the respondent had no property within the Municipal limits. It is not known how the learned Magistrate came to the conclusion that the formalities were not observed. 11. In this connection, the learned Magistrate has referred to the provisions of R.5 in Schedule II, which deals with the formalities to be observed before realising tax other than property tax due from any person. That provision is not applicable so far as this case is concerned. The required provisions were complied with and therefore Ext. P 1 distraint warrant was in order. The finding of the magistrate to the contrary cannot be accepted. 12. Likewise, there is no merit in the finding of the Magistrate that the accused did not make any default and he owed nothing to the Municipality. pw.1 has spoken to the fact that the respondent paid only five instalments and the remaining instalments were defaulted. If actually the respondent bad a case that be paid off the entire instalments and nothing is due from him, he could have produced the receipt for having made such payments. So also, he could have sent a reply when the registered notice, demand notice and the distraint warrant were issued against him. Without any of these things, the Magistrate has entered the finding that nothing is due from the respondent to the Municipality. I do not know bow the Magistrate was able to arrive at such a conclusion without any material on record. 13. In this respect, the learned Magistrate seems to have adopted some faulty reasonings. Ext. P2 agreement authorises the Municipality to resort to various other methods of realisation of the amount. The Municipality can file a civil suit as soon as the respondent defaulted payment of instalments The auction could have been cancelled and the right to collect the amount re-auctioned. In this respect, the learned Magistrate seems to have adopted some faulty reasonings. Ext. P2 agreement authorises the Municipality to resort to various other methods of realisation of the amount. The Municipality can file a civil suit as soon as the respondent defaulted payment of instalments The auction could have been cancelled and the right to collect the amount re-auctioned. Damages in re-auctioning could have been claimed from the respondent. Failure on the part of the Municipality in resorting to any of these courses, prompted the Magistrate to think that it is only on account of the fact that no amount was due from the respondent. It is not possible to accept that reasoning as correct. 14. The fact that the Municipality is having the right to resort to various courses of action does not necessarily mean that all such courses will have to be adopted. It is well within the option of the Municipality to resort to any of the available methods. Prosecution is one such method. There is no bar in resorting to prosecution without resorting to the other courses available under Ext. P1. The only formalities required for launching prosecution are compliance of the provisions of R.31 and 32 of Schedule IT. They have been resorted and the prosecution is well within the competence of the Municipality. 15. The learned Magistrate has stated that the appellant did not produce necessary documents to show that the amount claimed is due. The prosecution is not relying on any document other than those produced in court. The question is only whether the last three instalments were paid or not. If the respondent had a case that those instalments were paid, he could have produced the receipts. So also, if he wanted production of any other record, be could have called upon the appellant to produce the same. In case of non-compliance, he could have put forward an argument that necessary adverse presumption will have to be drawn against the prosecution. That also was not done. Therefore, the finding of the Magistrate that no amount is due cannot be justified to any extent. 16. Lastly, the learned counsel for the respondent put forward an argument that the prosecution is not maintainable for the further reason that it is barred by limitation. This is a contention which does not appear to have been raised before the Magistrate or considered by him. 16. Lastly, the learned counsel for the respondent put forward an argument that the prosecution is not maintainable for the further reason that it is barred by limitation. This is a contention which does not appear to have been raised before the Magistrate or considered by him. 'Even then, the respondent may be entitled to raise such a contention and justify the acquittal if such a contention is available to him. Acquittal could be supported for reasons not included in the judgment also. Therefore, I shall proceed to consider the question whether prosecution is barred by limitation. 17. I think that the learned counsel raised the plea of limitation on a wrong understanding of the provisions of law in that respect. The default was committed in the year 1982-83. Distraint was on 3-10-1983. Prosecution was on 19-1-1984. According to the learned counsel, the prosecution is more than three months after the commission of offence viz. the refusal to pay the amount. He relied on S.389 of the Municipalities Act, which says that no person shall be tried for any offence against the provisions of the Act, or of any rule, or bye-law made under it, unless complaint is made by the police or the commissioner or by a person expressly authorised in this behalf within three months of the commission of the offence. Since the prosecution was beyond three months, the counsel is of opinion that it is barred by limitation. 18. S.389 deals with offences committed by persons against the provisions of the Act, Rules or Bye-laws. What we are concerned with is non-payment of amount due to the Municipality which is also made penal. The provision for prosecution in that respect is more in the nature of an enforcing provision than a penalising provision even though the defaulter is provided to be met with penal consequences also. A distinction has to be drawn between the period of three months provided under S.389 and the period of three years provided under S.387. 19. The provision for prosecution in that respect is more in the nature of an enforcing provision than a penalising provision even though the defaulter is provided to be met with penal consequences also. A distinction has to be drawn between the period of three months provided under S.389 and the period of three years provided under S.387. 19. S.387 says that no distraint shall be made no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the municipal council under this Act after the expiry 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 sum. Prosecution "for any offence against the provisions of the Act. or of Rules, or of Bye-laws made under it" made mention of in S.489 and "prosecution in respect of any gum due to the municipal council" made mention of in S.387 will have to be understood as dealing with entirely different situations. If the argument of the learned counsel is accepted in relation to a prosecution for nonpayment of amounts due to the municipal council, then we will have to ignore the provisions of S.387 as meaningless and redundant. S.387 specifically says that if a suit is to be filed for realisation of the amount, it can be had within three years from the date on which a suit might first have been instituted. That means, a civil suit for realisation of the amount will not be barred by limitation unless after the expiry of three years from the date on which the municipal council obtained the right to realise the same. The period of limitation of three years provided for a prosecution is from the date on which the municipality was entitled to effect distraint If under the provisions of S.387 the Municipality is entitled to launch a prosecution within a period of three years from the date on which distraint could have been effected. I do not understand how the counsel was able to argue that as soon as three months expired from the date on which the amount has become due the prosecution is barred by limitation. I do not find any merit or force in that argument and therefore it is rejected. I do not understand how the counsel was able to argue that as soon as three months expired from the date on which the amount has become due the prosecution is barred by limitation. I do not find any merit or force in that argument and therefore it is rejected. 20. In this connection, the learned counsel brought my attention to the decision in Health Inspector, Badagara Municipality v. Kelappan (1965 KLT. 409). But that decision deals with the period of limitation for launching a prosecution for having committed an offence against the Municipality by refusing to comply with the direction to demolish a building which was in a dangerous condition. Such an offence cannot have any analogy with the offence involved in the refusal to pay amounts in time. So far as the prosecution on account of refusal to pay amounts is concerned, distraint of the defaulter's property and its impracticability are essential conditions precedent. So far as a prosecution under S.389 is concerned such a question will not arise. Therefore, the prosecution is well within time. 21. On the question of wilful omission to pay the amount, there is absolutely no reason to reject the evidence of pw.1. The amount fell due in 1982 and we are now in 1988. A registered notice was issued on 11-7-1983. There was a demand notice on 5-8-1983 and distraint was attempted on 3-10-1983. Evidently there was wilful default after having collected and pocketed the entire amount from the Municipal Bus Stand. 22. The penal provision is R.39 of Schedule II. It says that when a person is convicted of an offence under Sub-rule (I), the Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the municipal council the amounts, if any, due under the heads specified in the appropriate provisions. That is why I said that this is more of a realising provision than of a penalising provision. The penalty provided is a fine not exceeding twice the amount which is due. The criminal appeal is allowed and the acquittal is set aside. The respondent is convicted for the contravention mentioned above and he is sentenced to pay a fine of Rs. 2,500/- in addition to the amount of Rs. 3,966/-due from him to the Municipality. The penalty provided is a fine not exceeding twice the amount which is due. The criminal appeal is allowed and the acquittal is set aside. The respondent is convicted for the contravention mentioned above and he is sentenced to pay a fine of Rs. 2,500/- in addition to the amount of Rs. 3,966/-due from him to the Municipality. The above said amounts, inclusive of fine, will be summarily recovered from him and paid over to the appellant Municipality. The respondent is granted sixty days time to pay off the amount. In case of default in payment of fine, the appellant shall be liable to simple imprisonment for a period of four months.