DISHNET WIRELESS LIMITED (AIRTEL) vs Pulpally Grama Panchayat & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945** **CRL.MC NO. 1088 OF 2020** **AGAINST THE ORDER/JUDGMENT ST 488/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, SULTHANBATHERY** ## **PETITIONER/ACCUSED:** DISHNET WIRELESS LIMITED AIRCEL, REPRESENTED BY ITS CIRCLE HEAD, R.R.ARCADE, NEAR GEETHANJALI BUS STOP, VYTILLA, COCHIN-682035. BY ADV G.SANTHOSH KUMAR (P). ## **RESPONDENTS/COMPLAINANT & STATE:** 1 PULPALLY GRAMA PANCHAYAT REP. BY ITS SECRETARY, PULPALLY P.O., WAYANAD, PIN-673579. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.10.2023, ALONG WITH Crl.MC.5164/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.Nos.1088/2020 & 5164/2022 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 CRL.MC NO. 5164 OF 2022** **AGAINST THE ORDER/JUDGMENT ST 772/2022 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS ,TALIPARAMBA PETITIONER/ACCUSED:** MANAGER, DISHNET WIRELESS LTD., PRESENTLY GTL INFRASTRUCTURE LTD, 66/4514, PRABHU TOWER, 2ND FLOOR, VEEKSHANAM ROAD, M.G. ROAD NORTH END, ERNAKULAM - 682035 BY ADV G.SANTHOSH KUMAR (P). ## **RESPONDENTS/COMPLAINANT & STATE:** 1 PATTUVAM GRAMA PANCHAYAT, PATTUVAM P.O, KANNUR, REP. BY ITS SECRETARY, PIN - 670143 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADVS. ZUBAIR PULIKKOOL SANTHOSH A.K(K/000932/1994) M.P PRASANTH, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.10.2023, ALONG WITH Crl.MC.1088/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.Nos.1088/2020 & 5164/2022 3 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl.M.C.Nos.1088 of 2020 & 5164 of 2022 ---------------------------------------------Dated this the 06[th] day of October, 2023** ## **ORDER** These Criminal Miscellaneous Cases are filed under Section 482 of the Code of Criminal Procedure, 1973. In these cases, common point is raised and therefore I am disposing of these cases by a common order. 2. Crl.M.C.No.1088/2020 is filed to quash the proceedings in S.T.No.488/2019 on the file of the Judicial First Class Magistrate Court-II, Sulthan Bathery. Crl.M.C.No.5164/2022 is filed to quash the proceedings in S.T.No.772/2022 on the file of the Judicial First Class Magistrate Court, Thaliparamba. These Criminal Miscellaneous Cases Crl.M.C.Nos.1088/2020 & 5164/2022 4 are filed by the 1[st] respondent Panchayat in these cases for prosecuting the petitioners under Section 210 of the Kerala Panchayat Raj Act, 1994 (for short, the KP Act) read with Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996. The Panchayat initiated the prosecution alleging that there is amount due to the Panchayat from the petitioners in these cases. The common ground raised by the petitioners is that the preconditions to initiate prosecution under Section 210 of the K P Act is not followed by the respective Panchayat in these cases. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the Panchayat. I also heard the learned Public Prosecutor. 4. There is some force in the argument of the petitioners. This Court perused the complaint Crl.M.C.Nos.1088/2020 & 5164/2022 **==> picture [6 x 9] intentionally omitted <==** filed in these cases. A perusal of the complaint would show that apart from the mere statement that the recovery measures are not practical, there is absolutely nothing mentioned about the measures they have taken for realising the amount due and the reason for concluding that such recovery measures are impracticable. The complaints produced in these cases are printed format wherein no necessary averments for initiating prosecution as contemplated under Section 210 of the KP Act are mentioned. This point is considered by this Court in the judgment dated 02.03.2022 in Crl.M.C. No.1385/2020. Relevant portion is extracted hereunder: “6. From the aforesaid provision, it is evident that the prosecution is contemplated only as a last measure. Before commencing prosecution, the complainant has to initiate recovery proceedings by treating it as arrears Crl.M.C.Nos.1088/2020 & 5164/2022 6 of public revenue. As part of such recovery proceedings, the Secretary of Panchayat may directly recover by distraint under his warrant and sell movable properties of the defaulter, subject to such rules prescribed in this regard. As per the second proviso, if for any reason the distraint or sufficient distraint of a defaulter's property is impracticable, the Secretary may prosecute the defaulter before a Magistrate. 7. Thus, it is clear that the essential pre-requisite for launching the prosecution are (1) initiation of revenue recovery proceedings and (2) impracticability to realize the amount through the modes of revenue recovery. Since these are the basic requirements for initiating prosecution, unless the steps taken for invoking the revenue recovery and the reasons for impracticability are clearly mentioned in the complaint itself, no prosecution can be launched. In this case, on going through Annexure-A1, it can be seen that it is a printed format, wherein no necessary averments for initiating prosecution as contemplated under Section 210 are mentioned. In AnnexureA1, apart from the mere statement therein that the recovery Crl.M.C.Nos.1088/2020 & 5164/2022 7 measures are not practical, there is absolutely nothing mentioned about the measures they have taken for realizing the said amount and the reasons for concluding that such recovery measures are impractical. Since initiation and impracticality of recovering the amounts through the modes of revenue recovery proceedings are conditions precedent for prosecution and also the cause of action for the same, unless specific averments are made in the complaint concerning the same, no prosecution can be launched. 8. Even though the learned counsel for the 2nd respondent placed reliance upon Annexure-A2 Revenue Recovery notice, it would indicate that the same was issued only on 22.02.2019 and the complaint was submitted on 1.04.2019. The reason as to why further proceedings pursuant to AnnexureA2 were found to be impracticable, is not stated in Annexure-A1.In such circumstances, the prosecution initiated against the petitioner by virtue of AnnexureA1 is unsustainable and therefore, a clear abuse of the process of the court. ” ## 5. Similarly, another learned Single Judge of Crl.M.C.Nos.1088/2020 & 5164/2022 8 this Court considered the point regarding the maintainability of Section 210 of the KP Act in detail in the judgment dated 27.07.2023 in Crl.M.C. No.894/2020. The relevant portion is extracted hereunder: 5. The complaint has been filed under Section 210 of the Panchayat Raj Act. It would be apposite to have a look at Section 210 of the Panchayat Raj Act, 1994, which reads as under: "210. Recovery of arrears of tax, cess etc.- Any arrear of cess, rate, surcharge or tax imposed or fees levied under this 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: Provided that the Secretary of a Village Panchayat may directly recover by distraint, under his warrant, and sale of movable properties of the defaulter subject to such rules as may be prescribed: Provided further that, if for any reason the distraint or a sufficient distraint of a defaulter's property is impracticable, the Secretary may prosecute the defaulter before a Magistrate". (emphasis supplied) Crl.M.C.Nos.1088/2020 & 5164/2022 9 6. The above section speaks about a distraint warrant to be issued to recover the amount and sale of movable property of the defaulter. It goes on further to say that if, for any reason, the distraint or sufficient distraint of a defaulter's property is impracticable, the prosecution may be launched. Therefore, two conditions are essential for prosecution; i) distraint warrant should be issued against the accused and ii) it should be incapable of yielding the result. 7. It will not be out of place here to refer to Rules 14 and 15 of Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 which read as follows: "14. Notice to be served before enforcing provisions of distraint.- (1) The Secretary shall, where any tax due from any person has not been remitted on or before the due date, serve upon such person a demand notice requiring him to pay the tax together with notice fee of two rupees and the cost of service of the notice if sent by registered post, within fifteen days from the date of service of notice, before taking the proceedings Crl.M.C.Nos.1088/2020 & 5164/2022 10 under Section 210 of the Act. (2) Notice under sub-rule (1) shall be signed by the Secretary and shall contain the following matters,- (a) a statement regarding the period for which the tax is imposed, and description regarding the occupation, property or institution on which the tax is imposed; (b) the amount of tax, fee of demand notice and cost of notice is sent by registered post; (c) the date from which tax is due; and (d) statement of the liability incurred on account of the default in remitting money. ## 8. Rule 15 reads thus: "15. Recovery by distraint.- If the amount due on account of any tax together with the fee of demand notice and the cost of service of the notice is not paid within fifteen days from the date of service of the notice and if the person from whom the tax is due has not shown cause to the satisfaction of the Secretary as to why it should not be remitted, the Secretary may, by distraint under warrant and by sale of the movable property of the defaulter, recover the amount due on account of the tax together with demand notice fee, cost of service of notice, warrant fee including the distraint fee together with such further sum that is sufficient for a meeting the actual expenses for the safe custody and sale of the Crl.M.C.Nos.1088/2020 & 5164/2022 11 property so distrained: Provided that movable property described in the proviso to Section 60 of the Code of Civil Procedure, 1908, shall not be distrained. (2) The warrant under sub-rule (1) shall be in Form No.1 appended to these rules and for each such warrant a fee of five rupees shall be levied". 9. As per Rule 14, when an amount is due from a person, and he has not remitted the same on or before the due date, a demand notice calling upon him to pay the amount within 15 days from the date of service of notice, shall be issued to him. Sub Rule (2) stipulates the contents of the notice. Rule 15 says that even after service of notice under Rule 14, the amount is not paid within 15 days thereof, the Secretary of the Panchayat may issue a distraint warrant. The statutory provisions have to be complied with before prosecution proceedings are launched. These provisions are included in the Act and Rules to prevent unnecessary harassment of the alleged defaulter by the institution of prosecution proceedings and cannot be bypassed by the Panchayat. 10. In view of the above, the 1[st] respondent ought to have scrupulously Crl.M.C.Nos.1088/2020 & 5164/2022 12 complied with Rule 14 and ought to have given details regarding the period for which the tax is imposed, a description regarding the occupation, property, or institution on which the tax is imposed, the amount of tax, the fee of demand notice and cost of notice, the date from which tax is due, and also a statement of the liability incurred on account of the default in remitting money. Furthermore, the 1st respondent ought to have alleged that prosecution proceedings were initiated as distraint proceedings were impractical and inefficacious for realising the amount. 11. In the instant case, I find that there are blatant violations of provisions of Rule 14. An identical view was taken by this Court in Secretary, Pozhuthana Grama Panchayat v. T.K. Unni Peravan & Anr. [2021(1)KLT 72]. 12. For the aforementioned reasons, I am of the view that the continuance of proceedings as against the petitioner is an abuse of process, and the same cannot be sustained. This petition will stand allowed, and all further proceedings against the petitioner in S.T. No. 228/2016 on the files of Crl.M.C.Nos.1088/2020 & 5164/2022 13 the Judicial Magistrate of First Class-I, Permbra, are quashed. Right of the petitioner to initiate appropriate proceedings to realize the amount in accordance with law will stand reserved.” 6. In the light of the above principle laid down by this Court, I think the prosecution against the petitioners based on the complaint filed against them will not stand. Resultantly the prosecution is to be quashed. But I make it clear that this will not stand in the way of the Panchayat recovering the amount due by taking appropriate steps in accordance with law. Therefore, these criminal miscellaneous cases are allowed in the following manner. i) Crl.M.C.No.1088/2020 is allowed quashing the proceedings in S.T.No.488/2019 on the file of the Judicial First Class Magistrate Court- Crl.M.C.Nos.1088/2020 & 5164/2022 14 ## II, Sulthan Bathery. ii) Crl.M.C.No.5164/2022 is allowed quashing the proceedings in S.T.No.772/2022 on the file of the Judicial First Class Magistrate Court, Thaliparamba. iii) But I make it clear that the respondent Panchayats are free to take appropriate steps to recover the amount due to them from the respective petitioners in accordance with law. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.Nos.1088/2020 & 5164/2022 15 ## **APPENDIX OF CRL.MC 5164/2022** PETITIONER ANNEXURES ANNEXURE-A1 TRUE COPY OF THE IP-I REGISTRATION CERTIFICATE ISSUED BY MINISTRY OF TELECOMMUNICATIONS, GOVERNMENT OF INDIA IN FAVOUR OF THE PETITIONER. ANNEXURE-A2 TRUE COPY OF THE BUILDING PERMIT DATED 23/03/2009 ISSUED BY THE 1ST RESPONDENT PANCHAYAT. ANNEXURE-A3 TRUE COPY OF THE COMPLAINT PREFERRED BY THE 1ST RESPONDENT NUMBERED AS S.T.NO:772/2022 ALONG WITH SUMMONS PENDING ON THE FILES OF J.F.C.M., TALIPARAMBA. ANNEXURE-A4 TRUE COPY OF THE JUDGMENT DATED 02/03/2022 IN CRL.M.C.NO.1385/2020 OF THIS HON'BLE COURT. ANNEXURE-A5 TRUE COPY OF THE INTERIM ORDER DATED 07/10/2021 IN CRL.M.A. NO.1/2021 IN CRL.M.C.NO:4659/2021 OF THIS HON'BLE COURT. ANNEXURE-A6 TRUE COPY OF THE JUDGMENT DATED 25/11/2020 RENDERED BY THIS HON'BLE COURT IN CRL.A.NO.420/2006 OF THIS HON'BLE COURT. Crl.M.C.Nos.1088/2020 & 5164/2022 16 ## **APPENDIX OF CRL.MC 1088/2020** PETITIONER ANNEXURES |ANNEXURE A1|TRUE COPY OF THE IP-I REGISTRATION| |---|---| ||CERTIFICATE ISSUED BY MINISTRY OF| ||TELECOMMUNICATIONS, GOVERNMENT OF| ||INDIA IN FAVOUR OF THE PETITIONER.| |ANNEXURE A2|TRUE COPY OF THE BUILDING PERMIT| ||DATED 30.10.2008 ISSUED BY THE 1ST| ||RESPONDENT PANCHAYAT.| |ANNEXURE A3|TRUE CERTIFIED COPY OF THE| ||COMPLAINT PREFERRED BY THE 1ST| ||RESPONDENT<br>NUMBERED<br>AS| ||S.T.NO.488/2019 ON THE FILES OF| ||JUDICIAL FIRST CLASS MAGISTRATE| ||COURT -II, SULTHAN BATHERY ALONG| ||WITH SUMMONS.| |ANNEXURE A4|TRUE COPY OF THE INTERIM ORDER| ||DATED 31.01.2020 ISSUED BY THIS| ||HON'BLE<br>COURT<br>IN<br>CRL.MC| ||NO.894/2020.| RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE