SECRETARY Vs. MANIRAJAN

JUDGEMENT

(1.) This is an appeal by the Secretary of the Kadakkal Grama Panchayat against the acquittal of the accused in a prosecution brought by the Panchayat against him under Section 210 of the Kerala Panchayat Raj Act read with Rule 27 of the Kerala Panchayat Raj Act (Taxation and Appeal Rules, 1996) as S.T.No.32/2002 before the Judicial First Class Magistrate Court-II, Kottarakkara. The right to collect toll from the taxi stand and bus stand at Kadakkal was bid by the accused in an auction conducted by the Panchayat for the period from 1.4.2000 to 31.3.2001. The total bid amount is Rs.60,250/-, against which, the accused deposited Rs.36,100/-. The accused also executed an agreement to pay the balance amount periodically. When the accused committed default, the Panchayat initiated proceedings against him, and when attempts for recovery by notice failed, the Panchayat issued distress warrant to realise the amount of Rs.29,414/- from him. When realisation by distraint also failed, the Panchayat brought the prosecution.

(2.) The accused appeared before the learned Magistrate and pleaded not guilty, when the substance of the accusation was read over and explained to him. Three witnesses were examined on the side of the Panchayat, and Exts.P1 to P5 documents were proved. The accused raised a legal objection that when the amount allegedly due from him is not recoverable under the Panchayat Raj Act, a prosecution cannot be brought under Section 210 of the Kerala Panchayat Raj Act. He did not adduce any oral evidence in defence, but, Ext.D1 was marked on his side. On one of the objections raised by the accused, the trial court found, that the Panchayat brought prosecution when attempts for realisation of money by distress warrant failed, and that there is no non-compliance of the proviso to Section 210 of the Kerala Panchayat Raj Act. Despite such a finding, the trial court found the accused not guilty on the basis of the decision of this Court in Thalavoor Grama Panchayat v. Salim and another [2004 (2) KLJ 804]. Accordingly, the accused was acquitted by judgment dated 29.8.2005.

(3.) Despite notice, the respondent (accused) remained ex parte in this proceeding. I heard the learned counsel for the appellant, and perused the trial court records. The trial court has already found on one of the objections raised by the accused that there is no non-compliance of the proviso to Section 210 of the Kerala Panchayat Raj Act, and that the Panchayat brought prosecution only after exhausting the remedies possible, including attempts for realisation of the amount by distress warrant. PW1 to PW3 have given evidence proving the prosecution case that an amount of Rs.29,414/- is due from the accused as per an agreement executed by him with the Panchayat. He has no case that he had made payment of the amount due from him.