MRITYUNJOY BHATTA CHARJEE Vs. ASHUTOSH DE AND ANR.

JUDGEMENT

(1.) This is a petition by the complainant Mrityunjay Bhattacharjee for revising an order of acquittal of opposite parties Ashutosh De and Ranjit Kumar De. Mrityunjay is a clerk of the Bankura Municipality. The case for the prosecution briefly is that on the 3rd Jan. 1950. he went to the house of Ashutosh De and his wife Manada Dasi with a distress warrant, Ex. 1, for recovery of arrears of tax amounting to Rs. 18-13-9 and costs to the extent of. Rs. 2. These taxes were due for the first quarter of 1949 in respect of holding No. 79/75 of Hattola Mohalla. Ashutosh De was not at home and on certain information from Ranjit, the other opposite party. Mrityunjay went to a jewellery shop of Ashutosh at Barrabazar and found him there. Mrityunjay then read out the warrant to him and asked him to pay up the dues. Ashutosh refused to do so. The petitioner then seized an iron chair and; wooden bench from the shop and put them on the road. As he was next going to seize a wall clock from the shop Ranjit pushed him out and abused him in filthy words so as to prevent him from attaching the wall clock Ashutosh also abused the peon who had accompanied the petitioner and took back into the shop the chair and the bench which had been seized and put on the road. The case for the prosecution further is that prior to the issue of the distress warrant, a rate bill had been served and a demand notice also had been issued and served.

(2.) The defence was a plea of not guilty. The learned Magistrate on the evidence found that the prosecution evidence regarding the service of the rate bill 3rd of the demand notice could not be accepted and it was at best doubtful whether the rate bill or the demand notice was served. He further finds that because the copy of the bill which is to be served under the statute with the demand notice did not tally with the original bill in certain respects, the opposite parties were entitled to resist the execution of the distress warrant and they did not commit any offence under section 183 or 186. I.P.C. as they had not the necessary mens rea. As regards the offence under section 504. I.P.C, he makes the following observation : "the section reads 'whoever intentionally insults, etc' which means that the insult must be out of proportion to the provocation offered." Finally he says : "the prosecution cannot succeed as the service of the bill and demand notice on the accused in conformity with the law has not been proved," and he acquitted both the opposite parties of the charges framed against them.

(3.) It is argued on behalf of the petitioner that the learned Magistrate came to a finding as regards the non-service of the rate bill and the demand notice on certain suppositions about which the prosecution was given no notice. The first of the grounds which the learned Magistrate took on this point is that as many as 94 bills were served by Jagabandhu, witness No. 5 for the prosecution on the same day including the bill, Ex. 4(1), which is said to have been served on Ashutosh De and his wife on the 12th May, 1949. The second ground is that all the rate-payers on whom these 94 'wills were served on the same date refused to acknowledge receipt and Jagal andhu made endorsements to that effect on the back of all the counterfoils. The third reason is that the endorsement which is made on this particular bill, viz., Ex. 4(1), is evidently written with much more care and in greater detail than on any of the other bills served on the same day. It is certainly true that when Jagabandhu was in the box his attention was not drawn to any of these things and in all fairness to the witness and to the prosecution the learned Magistrate should have given the witness a chance to explain these things. The question now is whether the mere fact that the learned Magistrate omitted to do this entitles us to interfere with the finding on a pure question of fact. It is undoubtedly true that on the same day this Jagabandhu served as many as 94 bills and that all the ratepayers who were so served on that day refused to endorse the bills and Jagabandhu made endorsements to that effect. By themselves these facts may be explicable out then it is certainly difficult to explain the difference between the endorsements made on Ex. 4 and the endorsements on the other bills. From this difference in the nature of the endorsement on this bill of the endorsements in the other bills the learned Magistrate infers that in all probability this endorsement came into existence after the occurrence and this leads to the further inference that in all probability this rate bill was not at all served. As already pointed out, before coming to this conclusion the learned Magistrate should have in all fairness given the witness an opportunity of explaining these things but the mere fact that he did not do so would not entitle us to interfere with this finding of "act arrived at by him because On the face of it, at least one of these things is highly suspicious. This finding of fact appears to us to go to the very root of the matter.. The question now is whether the distress warrant with which the petitioner was armed when he entered the shop of the opposite parties would be a legal warrant if it had been issued without the rate bill for the first quarter of the year 1949 having been first presented to the opposite parties and without the demand notice having been served on them thereafter. Under section 153(2) of the Bengal Municipal Act quarterly taxes fall due on the first day of the quarter in respect of which it is payable. Admittedly the tax in question is for the first quarter of 1949. It was therefore due on the 1st of April, 1949. Sec. 155(1) provides that within 3 months after any sum has become due on account of any tax, etc. the Commissioner shall cause to be presented to the person liable to the payment thereof a bill for the said sum. Then sub-section (2) of this section lays down that if the amount of the bill is not paid on presentation thereof, a notice of demand in the prescribed form with a copy of the bill appended thereto shall be served; on the person liable to pay the same and that such a notice of demand may be served any time after the presentation of the bill. Sec. 156 which provides for the levy by distress on; failure to pay the tax, lays down that "if any person, after service upon him of such bill and notice, does not, within fifteen days of the service of such notice, pay the sum due, cither to the Commissioners at their office or to some person authorised by them to receive the money or show to the Commissioners sufficient cause for not paying the same, the amount of the arrear due, with costs according to the prescribed scale of fees, may, at any time within one year after the date of service of the said notice, be levied by distress and sale of any movable property belonging to the defaulter, except ploughs, plough-cattle, tools or implements of agriculture or trade, wherever found, or of any movable property belonging to any other person, subject to the same exceptions, which may be found within the holding in respect of which such defaulter is liable to such tax, etc. It is therefore clear that a distress warrant can be issued only after a rate I/ill has been presented to the ratepayer in question to start with, and he has been further served with a demand notice which is to be accompanied by copy of the rate bill already served and when he has failed to pay up the arrears within 15 days of the service of the demand notice if therefore no rate bill has at all been presented to the rate-payer and if further no demand notice has been served, a distress warrant cannot legally be issued because the very basis of a distress warrant is the failure of the rate-payer to pay up the due: within 15 days of the service of a demand notice after he has been served with a rate bill and a demand notice in accordance with the provisions of the Act, and when the basis itself is not there, the distress warrant evidently would run the risk of being illegal or invalid if the defects are not cured by the provisions of section 537 or 538. The terms of sections 537 and 538 indicate that these sections are meant to cure only formal defects in the bills, notices or the proceedings relating thereto and not a complete non-observance of some provisions of the statute. As therefore no rate bill nor a demand notice has;been served, the requirements of the statute have not been complied with and in our opinion this non-compliance would be not merely an irregularity but something far more serious. In this connection our attention was drawn to Bepin Chandra Biswas Vs. The Corporation of Calcutta, (I.L.R. 31 Cal. 452) , decided by a single Judge on the Original Side of this Court and reported in 31 Gal, 452. That was a suit against the Corporation of Calcutta for recovery of damages for alleged illegal distress and there the question was raised whether a distress warrant issued without the presentation of a rate bill or a notice of demand is legal. His Lordship in the first part of the decision started with the observation (hat as a matter of fact it was not of any real importance for the decision of the case before him whether in fact a bill was presented or a notice of demand served prior to the particular seizure, and in view of this observation his subsequent observation that it might be that the bill for the rate was not presented and the notice of demand was not served upon the plaintiff, but this under section 225 was mere irregularity and the distress which was levied for the rate cannot on that account be deemed unlawful, is not really a decision of the question whether when a distress warrant is issued without the rate bill and the notice of demand being served it is invalid altogether or not.