EXECUTIVE OFFICER Vs. VELAYUDHAN NADAR

JUDGEMENT

(1.) Athiyannoor Panchayat represented by its Executive Officer filed a complaint before the Judicial Second Class Magistrate, Neyyattinkara against the respondent under the second proviso to S.74 of the Kerala Panchayat Act read with R.26 of the Taxation and Appeal Rules for non payment of licence fee for a private market for the years 1971-72 to 1979-80. It was taken to file as S.T. No. 328 of 1983. The Magistrate accepted the pleas of the respondent that (i) the prosecution is barred by limitation; (ii) quid pro quo has not been established; and (iii) the provisions of the Panchayat Act and Rules were not complied with before launching prosecution, and acquitted him. Complainant has come up in appeal.

(2.) In accepting the plea of limitation, the Magistrate made certain wrong assumptions. Ext. 17 was considered to be demand notice under R.13 of the Taxation and Appeal Rules whereas it is only a bill under R.8 thereof. For no valid reason it was held to be not a genuine document. In fact it was issued only in continuation of Ext. P12 bill for Rs. 8,476.66 from 1971-72 to 1978-79 which is an admitted document. Ext. P17 covers only an additional amount of Rs. 1,095/- as licence fee due for the year 1979-80. Ext. P17 is a genuine bill and the finding to the contrary is patently wrong.

(3.) I do hot think that the Magistrate is justified in finding that the prosecution is barred by limitation for the entire claim. In spite of the penalty the provision for prosecution is more intended as a means of realisation of the tax due to the Panchayat. That is also the effect of the prosecution since, on conviction, the Magistrate is empowered by sub-rule (2) of R.26 of the Taxation and Appeal Rules to recover summarily, arid pay to the Panchayat the amount due. If the finding of the Magistrate on the question of limitation is not correct regarding any portion of the claim, the Panchayat is irreparably prejudiced to that extent because the effect will be that the claim is finally written off.