M PADMANABHAN Vs. APPUKUTTAN NAIR

JUDGEMENT

(1.) THE revision petitioner in all these three criminal revision petitions is one and (be same person, and so also the first respondent. THE second respondent, the State of Kerala , has been impleaded in these revisions presumably as a pro forma party.

(2.) THE revision petitioner was the accused in the cases, and be was prosecuted for an offence, which, according to the prosecution, would fall within S. 138 of the Kerala Municipal Corporations Act, 1961 (Act 30 of 1961), hereinafter referred to as the Act, read with R. 30 (2) of the taxation Rules in Part VI of Schedule H of the said Act, hereinafter referred to as the Taxation Rules. He (the revision petitioner) had entered into contracts with the Corporation of Trivandrum, the complainant before the trial court (the first respondent in these revisions) whereby be had agreed to run certain public comfort stations within the limits of Trivandrum Corporation for the respective periods.

(3.) VARIOUS contentions have been raised by Sri. P. Sukumaran Nair, the learned counsel for the petitioner. According to him, the parties are governed by the contract entered into by the revision petitioner on the one hand and the first respondent on the other. Ext. P-1 (in Crl, R. P. No. 199/73) is the agreement so entered into between the parties. Para. 3 of the agreement provides as follows: It is contended for the revision petitioner that even assuming that the Corporation has the right to realise the amount due by resorting! to the provisions of the Act, what could be sought to be applied is s. 413, not S. 138. S. 413 reads as follows: "413. Recovery of sum due as taxes All costs, damages, penalties, compensation, charges, fees, rents, expenses, contributions and other sums which under this Act or any rule, bye-law or regulation made thereunder or any other law or under any contract including a contract in respect of water supply or drainage made in accordance with this Act, and the rules, bye laws and regulations are due by any person to the Corporation shall, if there is no special provision in this Act for their recovery, be demanded by bill containing particulars of the demand and notice of the liability incurred in default of payment and may be recovered in the manner provided by R. 30 and 36 of the rules contained in Part VI of Schedule II unless within fifteen days from the date of service of the bill such person shall have applied to the district Court having jurisdiction over the City. " From the wording of S. 413 it is fairly clear that the amounts due from any person under a contract also could be realised by the corporation in the manner prescribed in R. 30 and 36 of the Taxation Rules. The relevant provisions in the Act read together would indicate that the corporation has the option either to proceed with action in a civil court, or effect recovery by the process of distraint, or to resort to prosecution in a criminal court. The learned counsel for the revision petitioner contends that even assuming, without conceding, that the liability falls under S. 413 of the act, inasmuch as a notice as contemplated under S. 413 of the Act and R. 29 of the Taxation Rules has not been served on the revision petitioner, the prosecution was not maintainable and the conviction and sentence by the courts below are invalid and bound to be set aside. As has already been stated, it may be noted that in the case which has given rise to Crl. R. P. No. 196 of 1973 the notice has not been served on the revision petitioner, as it was returned without being served. In the other two cases the notices served did not actually specify the consequences that would follow if the amount in default was not paid within the stipulated period. The material portion of Ext. P2 notice (in crl. R. P. 196/72) reads as follows: In this connection we have to note that in terms of S. 413 of the Act a demand by bill containing the particulars of the demand, and notice of the liability incurred in default of payment is a pre-requisite to resorting to recovery in the manner prescribed by R. 30 and 36 of the Taxation rules. R. 29 (2) requires that the notice to be served before proceeding to enforce the provision of R. 30, shall contain the liability which will have to be incurred in default of payment. In Ext. P-2 it has not been stated in so many words that criminal prosecution would follow in the event of the revision petitioner defaulting payment of the amount due to the first respondent in terms of Ext. P-1 contract. The learned counsel for the first respondent contends that Para. 3 of Ext. P-1 agreement also provides that the Corporation had the right to proceed not only against the property over which it bad a charge, but also against the revision petitioner personally, and when in Ext. P-2 notice it has been stated that he would be liable to be proceeded against in the manner provided in the agreement, it includes the possibility of hisbeing prosecuted in a criminal court, and therefore the revision petitioner cannot raise the contention that he had no notice of the prosecution. The argument is rather ingenuous; but, I think, the provisions contained in S. 413 of the Act and R. 29 of the Taxation Rules are intended to alert the person in default, so that if he so chooses he may avert the risk of his getting himself involved in a criminal prosecution. No doubt, if S. 413 applied to the case, as we have assumed, the Corporation had the right to proceed in a criminal court also for enforcement of its right. But it had other options also like instituting a suit in a civil court or proceeding by distraint. As long as the person in default had not been precisely and specifically told that a liability of criminal prosecution would entail in case he did not clear the amount in default it could not be said that the person in default had sufficient notice of the prosecution in compliance with the provisions contained in S. 413 of the act and R. 29 of the Taxation Rules which are mandatory in character.