BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/11/2009 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI CRL.A.(MD)No.189 of 2007 The Commissioner, Rajapalayam Municipality Rajapalayam ... Appellant/Complainant Vs. The Proprietor Janakiram Mills (P) Ltd., 8 to 47, Thenkasi Road, Rajapalayma, Virudunagar District. ... Respondent/Accused PRAYER Appeal filed under Section 378(4) of the Criminal Procedure Code, against the judgment made in S.T.C. No.3083 of 2000, dated 24.05.2006 on the file of the learned Judicial Magistrate, Rajapalayam. !For Appellant ... Mr.P.Srinivas ^For Respondent ... Mr.K.Vinayagam :ORDER
This Criminal Appeal has been directed against the judgment made in S.T.C.
No.3083 of 2000, dated 24.05.2006 on the file of the learned Judicial
Magistrate, Rajapalayam.
2.The Door Nos.49 to 52-A at Rajapalayam belong to one Jankiram Mill (P)
Lt., which was assessed for Tax for the year 1998-99 and 2000. There was a tax
arrears for Rs.5,50,313/-. The tax arrears was demanded by the Commissioner,
Rajapalayam Municipality, and the same was not paid. Therefore, a demand notice
was given under Ex.P1, and the same was received under Ex.P2 and thereafter, a
prosecution was launched by filing a complaint under Ex.P.3.
3.The complaint was taken on file in S.T.C.No.3083 of 2000 by the learned
Judicial Magistrate, Rajapalayam, and on appearance of the accused on
24.08.2000, the copy of the complaint was furnished to him and on his subsequent
appearance on 28.08.2000, the accused was questioned about the charges and the
accused denied the same.
4.To prove the charges, an officer of the Municipality was examined as
P.W.1.
5.The accused was questioned under Section 313 of Cr.P.C., and he denied
the charges and a defence was taken that the complaint was not filed in time and
taking cognizance is barred under Section 347 of the Tamil Nadu District
Municipalities Act. An another defence was also taken that under Rule 30(2),
distraint proceedings is a condition precedent for launching a criminal
prosecution.
6. The learned Judicial Magistrate, Rajapalayam, found that Section 347 of
the Tamil Nadu District Municipalities Act, which provides a limitation of three
months is not applicable and the limitation prescribed under Section 345 of the
Act, which is for three years, is applicable and the complaint is in time.
While considering an alternative remedy of distraint procedures, the learned
Judicial Magistrate found that steps were not taken for distraint proceedings
and therefore, the complaint is vitiated and dismissed the same and thereby the
accused was acquitted under Section 255(i) of the Code of Criminal Procedures.
Hence, this Criminal Appeal by the Municipality.
7.Aggrieved by the judgment, the appellant/complainant has preferred the
present appeal on the following grounds:-
(1) The learned Magistrate has erred in holding that only after the
initiation of distraint proceedings under Rule 30(1) of the Schedule IV of the
Tamil Nadu District Municipalities Act, 1920, the complaint, if any, against the
defaulter in payment of property tax would be maintainable and the learned
Magistrate failed to note that under the proviso to Rule 30(1), 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. Therefore, the dismissal of the complaint preferred by the
petitioner/complainant is irregular and liable to be set aside.
(2) The learned Magistrate has failed to consider that the appellant /
complainant has demanded the property tax from the accused and the accused has
failed to pay the demand made by the complainant and it was shown that the
accused has willfully omitted to pay the demand amount.
(3) The learned Magistrate has failed to consider the wordings contained
in Rule 30 of the schedule IV of Act 1920, if in opinion of the executive
authority, the initiation of distraint proceedings will not give any result or
it is impracticable that without resorting to distraint proceedings, the
executive authority can take criminal prosecution against the defaulter of the
property tax of the Municipality. Therefore, the question of initiation of
Criminal proceedings before the initiation of distraint proceedings will not
arise at all and is not mandatory. The Municipality has got every right and
authority to institute Criminal proceedings even before initiation of distraint
proceedings. Hence, the complaint prepared before the learned Judicial
Magistrate is maintainable in law and the learned Magistrate ought to have
proceeded on the complaint of the appellant.
(4) The learned Magistrate ought to have considered that no document was
marked by the accused/respondent to establish that he had not willfully omitted
to pay the arrears, when P.W-1 has categorically stated in his evidence that the
demand was made and the accused has not paid the amount in spite of the demand.
8.The point for consideration arises in this appeal is whether the
complaint had exhausted the remedy available under Rule 30(2) of the Tamil Nadu
District Municipalities Act, which provides for a distraint proceedings before
launching a criminal proceedings.
9.The learned counsel for the appellant/complainant would submit that
there was a demand for payment of huge tax arrears of Rs.5,50,313/- due to the
Municipality and the prosecution notice was issued under Ex.P1. The learned
counsel pointed out that it is categorically submitted in the complaint as well
as through evidence that a sufficient distraint of the defaulter’s property is
impracticable and therefore, the prosecution was launched. The learned counsel
pointed out that the learned Judicial Magistrate is wrong in holding that the
complainant has not exhausted that remedy.
10.The learned counsel relied on the decision of this Court in Kothuval
Amirunnissa Vs. Commissioner, Vaniambadi Municipality, Vellore District reported
in (2007 (2) MLJ 149 Mad), wherein it has been held as follows:-
“The proceedings for distraint of the defaulter’s property is a precedent
for launching criminal prosecution against the defaulter of tax. The trial
Court has to go into the question whether any steps were taken actually for
distraint of property or not. The prosecution must be given opportunity to
explain as to how the complaint is within time.”
11.The learned counsel for the respondent/accused would submit that
distraint proceedings is a condition precedent for launching the prosecution and
the complainant has not exhusted that procedure which warrants the dismissal of
the complaint and the acquittal of the accused. The learned counsel pointed out
that the complainant ought to have established that the distraint has become
impracticable under Rule 30(2) of the District Municipalities Act.
12. The learned counsel relied on the decision of this Court in
P.R.V.R.Veerappa Chettiar Vs. State of madras and another reported in (1969 L.W.
(Crl.) 58) wherein it has been held that
“It is clear from Rule 30(2) that prosecution cannot be instituted against
the defaulter unless it was found that the distraint of the defaulter’s property
is impracticable. So, the condition precedent for instituting prosecution after
the amount has become due is the commencement of distraint proceedings and
consequent finding that such distraint is impracticable.”
13.The learned counsel also relied on the decision of this Court in
Kalimuthu Vs. Municipal Heal Officer reported in (1969 L.W. (Crl.) 111) for the
same proposition.
14.Rule 30 (2) Reads as follows:-
“If for any reason distraint or a sufficient distraint of the defaulter’s
property is impracticable the (Executive Authority) may prosecute the defaulter
before a Magistrate.”
15. Now it is well settled that the distraint proceedings is a condition
precedent for a criminal prosecution. To commence a distraint proceedings, it
is necessary that a bill under Rule 29 shall be served on the person from whom
the amount is due and such bill shall contain a statement of the period and the
description of the property for which such tax is charged and a notice of the
liability incurred in default of payment of such due. If the amount due is not
paid within 15 days from the service of such notice, the amount can be recovered
from distraint proceedings under the warrant of the distraint. The movable
properties of the defaulters can be brought for sale and the tax arrears has to
be appropriated. And for any reason, such distraint or a sufficient distraint is
impracticable, the reasons has to be recorded and then only a criminal
prosecution can be launched. Merely stating that distraint proceedings are
impracticable is not sufficient. The distraint proceedings is a condition
precedent for such criminal prosecution and there must be some evidence to show
that action has been taken to that effect.
16. In the present case the complainant has not taken any steps for such
distraint proceedings and therefore, the complaint is liable to be dismissed and
the learned Judicial Magistrate has rightly dismissed the complaint and
acquitted the accused. I have no reason to interfere with the order of the Court
below.
17.In the result, the criminal appeal is dismissed. However, the appellant
is at liberty to take distraint proceedings subject to limitation.
MPK
To
1.The Judicial Magistrate, Rajapalayam.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court,
Madurai.