K.V. AJITHKUMAR v. STATE OF KERALA and THE SECRETARY, KUNNATHOOR GRAMA PANCHAYAT

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945 ``` ``` CRL.MC NO. 5628 OF 2021 ``` ``` ST 126/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ``` ## **`SASTHAMCOTTA`** ## **`PETITIONER/ACCUSED:`** ``` K.V. AJITHKUMAR AGED 58 YEARS S/O KOCHAPPAN PILLAI, VALIYAVILA VEEDU, KIZHAKKE MURI, KUNNATHOOR EAST.P.O, KOLLAM DISTRICT, PIN-690540. BY ADVS. K.SIJU S.ABHILASH ANJANA KANNATH ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ,ERNAKULAM-682031. 2THE SECRETARY, KUNNATHOOR GRAMA PANCHAYAT, KUNNATHOOR EAST.P.O, KOLLAM DISTRICT, PIN-690540. BY ADVS. K.P.SATHEESAN (SR.) GOKUL D. SUDHAKARAN SABU PULLAN S.K.ADHITHYAN K.SUDHINKUMAR P.MOHANDAS (ERNAKULAM) ``` ## **`OTHER PRESENT:`** ``` SRI PRASANTH, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.10.2023, ALONG WITH Crl.MC.5683/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CrlM.C..Nos.5628 & 5683 of 2021 **2** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945 ``` ``` CRL.MC NO. 5683 OF 2021 ``` ``` ST 183/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ``` ## **`SASTHAMCOTTA`** ## **`PETITIONER/ACCUSED:`** ``` K.V. AJITHKUMAR AGED 58 YEARS S/O KOCHAPPAN PILLAI, VALIYAVILA VEEDU, KIZHAKKE MURI, KUNNATHOOR EAST P.O. KOLLAM DISTRICT, PIN-690 540 BY ADVS. K.SIJU S.ABHILASH ANJANA KANNATH ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2THE SECRETARY KUNNATHOOR GRAMA PANCHAYAT, KUNNATHOOR, EAST PO, KOLLAM DISTRICT, PIN-690 540 BY ADVS.K.P.SATHEESAN (SR.) GOKUL D. SUDHAKARAN SABU PULLAN S.K.ADHITHYAN K.SUDHINKUMAR P.MOHANDAS (ERNAKULAM) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSIONON27.10.2023,ALONGWITH Crl.MC.5628/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CrlM.C..Nos.5628 & 5683 of 2021 **3** **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. Nos.5628 & 5683 of 2021 ---------------------------------------------Dated this the 27[th] day of October, 2023** ## **ORDER** Petitioner in these cases is the accused in S.T.No.126/2019 and S.T.No.183/2017 on the file of the Judicial First Class Magistrate Court, Sasthamcotta. 2. These cases are filed to quash the proceedings pending against the petitioner invoking the powers under Section 482 of the Code of Criminal Procedure (for short, the Code). The petitioner is prosecuted alleging offences punishable 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 main contention of the petitioner in these cases is that the prosecution under Section 210 of the KP Act is not maintainable for the simple reason that the Panchayat has not taken any steps to recover the amount by way of distraint of the defaulters’ property. It is submitted that, only if for any CrlM.C..Nos.5628 & 5683 of 2021 **4** reason the distraint or a sufficient distraint of the defaulter’s property is impracticable, the prosecution is possible against the defaulter before a Magistrate. In these cases there is no effective steps taken by the petitioner and there is no averment in the complaint to that effect is the contention. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel for the Panchayat. I also heard the learned Public Prosecutor. 4. There is some force in the argument of the petitioner. This Court perused the complaint 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 there is no necessary averments for initiating prosecution as contemplated under Section 210 of the KP Act are mentioned. If that is the case, prosecution is unsustainable. This point is considered by this Court in the order dated 02.03.2022 in Crl.M.C. CrlM.C..Nos.5628 & 5683 of 2021 **5** ## No.1385/2020. Relevant portion of the above order 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 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 prerequisite 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 CrlM.C..Nos.5628 & 5683 of 2021 **6** initiating prosecution as contemplated under Section 210 are mentioned. In AnnexureA1, apart from the mere statement therein that the recovery 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 Annexure-A1 is unsustainable and therefore, a clear abuse of the process of the court. ” 5. Similarly, another learned Single Judge of this Court considered the point regarding the maintainability of CrlM.C..Nos.5628 & 5683 of 2021 **7** Section 210 of the KP Act in detail in the order 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) 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 CrlM.C..Nos.5628 & 5683 of 2021 **8** 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 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 CrlM.C..Nos.5628 & 5683 of 2021 **9** 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 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 CrlM.C..Nos.5628 & 5683 of 2021 **10** ## Panchayat. 10. In view of the above, the 1st respondent ought to have scrupulously 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 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.” CrlM.C..Nos.5628 & 5683 of 2021 **11** 6. In the light of the above principle laid down by this Court, I think the prosecution against the petitioner based on the complaint filed against him in these cases also will not stand. Necessary averments regarding the compliance of formalities before initiating the prosecution are not there in the complaint. 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 from the petitioner by taking appropriate steps in accordance with law. Therefore, these criminal miscellaneous cases are allowed in the following manner. 1. In Crl.M.C.No.5628/2021, all further proceedings in S.T.No.126/2019 on the file of the Judicial First Class Magistrate Court, Sasthamcotta, are quashed. 2. In Crl.M.C.No.5683/2021, all further proceedings in S.T.No.183/2017 on the file of the Judicial First Class Magistrate Court, Sasthamcotta, are quashed. 3. But I make it clear that the respondent CrlM.C..Nos.5628 & 5683 of 2021 **12** Panchayat is free to take appropriate steps to recover the amount due to them from the petitioner in accordance with law. Sd/- JV **P.V.KUNHIKRISHNAN JUDGE** CrlM.C..Nos.5628 & 5683 of 2021 **13** ## **`APPENDIX OF CRL.MC 5683/2021`** |`PETITIONER`|`ANNEXURES`| |---|---| |`Annexure 1`|`THE COPY OF COMPLAINT IN S.T NO`| ||`183/2017 DATED 3.7.2017 FILED BY THE`| ||`2ND RESPONDENT BEFORE THE JFCM,`| ||`SASTHAMCOTTA ALONG WITH ANNEXURES`| |`Annexure 2`|`TRUE COPY OF CONSENT/LEASE DEED`| ||`EXECUTED BETWEEN THE PETITIONER AND`| ||`THE RELIANCE TELECOM INFRASTRUCTURE`| ||`LTD DATED 18.7.2007`| |`Annexure 3`|`TRUE COPY OF INTERIM ORDER DATED`| ||`15.10.2021 IN CRL.MC NO 5510/2021`| ||`PASSED BY THIS HON'BLE COURT`| |`Annexure 4`|`TRUE COPY OF PETITION HAVING CMP NO`| ||`327/2020 FOR DISCHARGE/TERMINATION OF`| ||`PROCEEDINGS FILED BY THE PETITIONER IN`| ||`ST NO 183/2017 DATED 4.12.2020`| CrlM.C..Nos.5628 & 5683 of 2021 **14** ## **`APPENDIX OF CRL.MC 5628/2021`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`Annexure 1`|`TRUE COPY OF COMPLAINT DATED`| ||`08.07.2019 AS CMP NO.349/2019 FILED BY`| ||`THE 2ND RESPONDENT BEFORE THE JFMC,`| ||`SASTHAMCOTTA.`| |`Annexure 2`|`TRUE COPY OF CONSENT/LEASE DATED`| ||`EXECUTED BETWEEN THE PETITIONER AND`| ||`THE RELIANCE TELECOM INFRASTRUCTURE`| ||`LTD, DATED 18.07.2007.`| |`Annexure 3`|`TRUE COPY OF INTERIM ORDER DATED`| ||`15.10.2021 IN CRL.M.C.NO.5510/2021`| ||`PASSED BY THIS HON'BLE COURT.`| |`Annexure A4`|`TRUE COPY OF PETITION HAVING CMP`| ||`NO.342/2020 FOR DISCHARGE/TERMINATION`| ||`OF PROCEEDINGS FILED BY THE PETITIONER`| ||`IN ST NO.126/2019 DATED 04.12.2020.`|