Judgment :- Executive Officer, Kaduthuruthy Panchayat is the appellant. He filed the complaint against the accused under Section 74 of the Kerala Panchayats Act read with Rule 26 of the Kerala Panchayats (Taxation and Appeal) Rules, 1963. The trial Court found the accused not guilty and acquitted him. 2. The short question that has to be considered in this appeal is as to whether the accused had committed wilful default in paying the building tax to the Panchayat. Panchayat made demand for the building tax for the period 1985-86. Ext. P1 is the demand notice. The demand was made on 17-12-1985. Contention of the accused is that Rule 26 of the Kerala Panchayats (Taxation and Appeal) Rules, 1963 cannot be straightway applied and only if steps were taken under Section 74 of the Kerala Panchayats Act prosecution could be launched. 3. Section 74 of the Act provides that any arrear of cess, rate, surcharge or tax imposed or fees levied under the Act shall be recoverable as an arrear of public revenue under the law relating to the recovery of arrears of public revenue for the time being in force. The first proviso enables the executive authority to recover the amount by distraint under his warrant and sale of movable properties of the defaulter. Second proviso states that if for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable, the executive authority may prosecute the defaulter before a Magistrate. Thus, a reading of this section will clearly show that the executive authority can launch the prosecution only on the failure of the mode prescribed under Section 74 of the Act. 4. P.W. 2 has no case that he took distraint steps before initiating criminal action. P.W. 2 stated in chief examination that he went to the police quarters to attach movable properties and he could not effect the attachment as the movables belonged to the inmates of the police quarters. In cross-examination he stated that, he went to the Executive Engineer's Officer for attaching movable properties. He has no case that the attachment could not be effected from the office of the accused. As there is no evidence that the distraint of the defaulter's property was impracticable, the executive' authority could not have launched the prosecution before the Magistrate. In cross-examination he stated that, he went to the Executive Engineer's Officer for attaching movable properties. He has no case that the attachment could not be effected from the office of the accused. As there is no evidence that the distraint of the defaulter's property was impracticable, the executive' authority could not have launched the prosecution before the Magistrate. As the second proviso to Section 74 postulates criminal prosecution only when distraint of the defaulter's property is found impracticable, the appellant has necessarily to establish that distraint of the property of the accused was found impracticable. As there is no such evidence in the case, the appellant cannot straightway prosecute the accused. 5. Moreover there must be evidence of willful default of payment of the amount due to the Panchayat to attract Rule 26 of the Kerala Panchayats (Taxation and Appeal) Rules, 1963. Mere default will not be sufficient. In a case where willful default is not established criminal prosecution will not be sustainable. 6. Ext. D1 shows that the Chief Engineer wrote to the accused that the property tax in respect of the building of the P.W.D. need alone be plaid and he was instructed not to pay property tax of other building. Accused informed the appellant as per Ext. D2 letter that property tax for the buildings other than P.W.D. buildings has to be paid by the concerned administrative department and his office is not liable to pay it. Apparently Ext. D2 was sent pursuant to Ext. D1 communication from the Chief Engineer. Ext. D3 shows that there was controversy between P.W.D. and other departments with regard to the payment of property tax of the buildings to the local authorities. As the accused was bound to comply with Ext. D1 circular and as the accused informed the appellant as per Ext. P6 that the tax will be paid as soon as the letter of credit is received in his office, it is not possible to hold that there was any willful default by him in the matter of payment of property tax to the Panchayat. There is no merit in the appeal and hence the same is dismissed. Appeal dismissed.