CHENGANNUR MUNICIPALITY Vs. SAMUEL

JUDGEMENT

(1.) The challenge in the appeal is with regard to the judgment of acquittal passed by the Judicial First Class Magistrates Court - II, Chengannur, in favour of the present respondent. In the complaint filed by the Revenue Inspector of the appellant Municipality, offences under R.32(2) and 39(1) of the Taxation and Finance Rules under the Kerala Municipalities Act, 1960 were alleged. The accused was acquitted in the case mainly on two grounds. They are: that the Municipality had not exhausted its remedy of distraint of the properties of the accused and secondly that the accused had filed a civil suit and obtained a decree to the effect that he had sustained a loss of Rs. 27,900/- in the matter of collection of fees with regard to vegetables / fish farm and cattle market of the Chengannur Municipality based on bid made by him in an auction held by the Municipality for the year 1988-89. The accused had a plea that the Municipality had agreed to adjust the aforesaid amount out of the total dues of Rs.68,601/- of which Rs. 50,000/- is the alleged arrears and the remaining amount interest.

(2.) On the arguments advanced in this case the points that arise for decision are:

(3.) Point No. 1 : - Sri. E.R.Venkiteswaran, who appeared for the appellant, submitted that Exts. P1 to P4 documents proved by PW 1 would show that there was distraint of movables attempted by the Municipality and such attempt having failed, the prosecution initiated was fully justified. The defence contention is that the attempt was not complete in so far as the accused had a depot dealing with sale of chemical manure run with the agency allowed by the FACT; that the stock in trade available in the godown and in the business place were worth more than the amount allegedly due to the Municipality and that no attempt was made to attach and sell the stock in trade and other movables available in the business place. He would therefore contend that the prosecution initiated was premature.