IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 516 of 2002()
1. C.D. SUNNY, S/O. DEVASSY,
... Petitioner
Vs
1. THE SECRETARY, CHAVAKKAD MUNICIPALITY,
... Respondent
2. STATE OF KERALA, REP. BY
For Petitioner :SRI.KKM.SHERIF
For Respondent :SRI.M.K.CHANDRAMOHAN DAS
The Hon'ble MR. Justice A.K.BASHEER
Dated :14/08/2008
O R D E R
A.K.BASHEER, J.
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Crl.R.P.No.516 OF 2002
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Dated this the 14th day of August 2008
ORDER
Petitioner was prosecuted by the Secretary of Chavakkad
Grama Panchayat, purportedly invoking the power under Section
545 of the Kerala Municipalities Act 1994. The trial court found
the petitioner guilty of the offence alleged against him and
accordingly he was convicted and sentenced to pay a fine of
Rs.80,000/- and in default to undergo simple imprisonment for
three months. It was directed that the fine amount, if recovered,
shall be credited to the account of the Municipality. The above
order of conviction and sentence was confirmed by the Sessions
Court in appeal. Hence this revision petition.
2. The case of the complainant may be briefly noticed.
3. The Municipality had auctioned the right to collect fee
from the buses entering or starting from the Chavakkad bus
stand for the period from April 1, 1995 till March 31, 1996.
Since the amount offered by the petitioner was the highest,
the bid was confirmed in his favour for a total sum of
Rs.1,71,017/-.
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4. Admittedly, the petitioner had paid 1/3rd of the bid
amount after confirmation, in terms of the conditions stipulated
in the auction notice. The balance amount was supposed to be
paid by the petitioner in eight monthly instalments.
5. It is not in dispute that the petitioner had paid only four
instalments. In other words, the amount payable towards the
remaining four instalments fell due, which according to the
Municipality came to Rs.77,957/- with penal interest, cost etc.
The Municipality alleged that petitioner had committed willful
default in making payment and that the distraint warrant issued
by the Municipality as provided under the Act had become futile.
It was in the above circumstances that the Secretary of the
Municipality had filed the complaint before the Judicial
Magistrate of First Class, Chavakkad under Section 545 of the
Act.
6. Before the trial court, PWs1 to 4 were examined on the
side of the complainant and Exts.P1 to P11 were also marked.
Exts.D1 and D2 were marked on the side of the petitioner
though no oral evidence was adduced.
7. The defence set up by the petitioner/accused was that
the Municipality was not entitled to proceed against him for
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recovery of the alleged dues by taking recourse to Section 545 of
the Act. It was further contented that petitioner was prevented
from collecting fee from 42 out of 72 buses which either started
from or entered the Bus Stand, by the Municipality itself as
revealed from Exts.D1 and D2. The other contention was that
the prosecution initiated against the petitioner was by itself
incompetent, since no attempt was made by the Municipality to
collect the dues as provided under the Act in as much as no
distraint warrant had been issued and no effort made to recover
the alleged amount, even assuming such a liability did exist.
8. The trial court as well as the appellate court rejected the
above contentions raised by the petitioner and concurrently
found him guilty.
9. It is contended by Miss. Sheena, learned counsel for the
petitioner, that the courts below have not properly appreciated
the legal and factual aspects of the case in their proper
perspective. She invites my attention to Exts.D1 and D2 in
particular, and contends that petitioner was directed by the
Municipality not to collect fees from 42 out of the 72 buses in
view of the order issued by this court in some writ petitions.
10. Significantly, the above contention has not been
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disputed or denied by the Municipality. Smt. Rasia, learned
counsel for the Municipality, contends that petitioner was bound
to remit the entire bid amount in terms of Ext.P2 agreement
executed between him and the municipality. It is also asserted
by the learned Standing Counsel that petitioner was prosecuted
after complying with all statutory formalities and mandates. She
contends that the distraint warrant was attempted to be
executed through PW2, but to no avail.
11. It is pertinent to note that petitioner had admittedly
paid 1/3rd of the total bid amount of Rs.1,71,017. He had also
remitted four instalments out of the balance due. Petitioner does
not dispute the fact that the remaining four instalments were not
paid by him. But according to the petitioner, he could not collect
the fee from 42 buses, since he was restrained from doing so as
per the directions issued by the Municipality itself. The only
contention of the petitioner is that the Municipality ought to
have kept in view the above aspect and reckoned the actual
balance due from the petitioner before prosecuting him. Miss.
Sheena contends that if only such an exercise had been made by
the Municipality, it could have been shown that the actual
amount would undoubtedly be much less than what has been
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claimed in the complaint. There is considerable force in the
above contention.
12. As rightly pointed out by the learned counsel, the
parties were governed by Ext.P2 agreement. Necessarily
therefore the Municipality ought to have put the petitioner on
notice in terms of the agreement and reckoned the actual
liability after considering the question whether the petitioner
was in fact prevented from collecting fee from 42 buses during
the relevant period. Since the Municipality had admittedly
ignored or flouted the terms of the contract to the detriment of
the petitioner, I find considerable force in the contention raised
by the counsel that the action of the Municipality in prosecuting
the petitioner was totally unjustified.
13. There is also considerable force in the contention
raised by the petitioner that no steps had been taken to execute
the distraint warrant before launching the prosecution. As
rightly pointed out by learned counsel, the distraint warrant was
addressed to the petitioner in his address at Mannuthi which is
admittedly beyond the territorial jurisdiction of the Municipality.
Admittedly there was no attempt to execute the distraint
warrant. Prosecution under Section 454 of the Act could have
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been initiated only if the execution of the warrant failed.
14. There is yet another aspect of the matter. The learned
Magistrate had proceeded to impose a fine of Rs.80,000/- which
he could not have in view of Section29 of the Code of Criminal
Procedure.
15. Having regard to the entire facts and circumstances of
the case, I am satisfied that the order of conviction and sentence
passed against the petitioner cannot be sustained. Therefore,
the order of conviction and sentence passed against the
petitioner by the trial court, and as confirmed in appeal by the
Sessions Court is set aside.
However, it is made clear that it will be open to the
Municipality to recover the balance amount, if any, from the
petitioner in accordance with law. The amount, if any, deposited
by the petitioner towards fine shall be refunded to him.
(A.K.BASHEER, JUDGE)
jes
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A.K.BASHEER, J.
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Crl.R.P.No.516 OF 2002
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ORDER
14th day of August 2008