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M.K. Chacko Vs. Kottayam Municipality - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1954CriLJ1138
AppellantM.K. Chacko
RespondentKottayam Municipality
Cases ReferredEmperor v. Piari Lal
Excerpt:
.....of these conditions was admittedly not satisfied in the present case. in the absence of a proper service of notice, the party cannot be said to have failed to comply with the requirements of the notice, i. rule 38 of schedule ii insists that the magistrate before whom the defaulter is prosecuted must be satisfied that there was wilful omission on the part of the defaulter to pay up the amount in question. naokhali municipality' air 1916 cal 455 (b), where it was ruled that the failure to observe the essential preliminary steps leading up to a prosecution under the provisions of bengal municipal act had the effect of making the prosecution one without jurisdiction. assensole municipality',6 cal wn 167 (c) and there also it was ruled that the service of the requisition on the accused who..........a notice to be served on such company or person to pay it within fifteen days of the date of such service.rule 30 of the schedule ii states that:where any tax not being a tax in respect of which a notice has to be served under sections 94 or 102 or in respect of which a direction has to be given under rule 13, is due from any person, the executive authority shall serve upon such person a bill for the sum due before he proceeds to enforce the provisions of rule 31.sub-rule 1 of rule 31 states that:if the amount due on account of any tax is not paid within fifteen days from the date of service of the notice, or bill or the giving of the direction referred to in sections 94 and 102 and rules 13 and 30 and if the person from whom the tax is due has not shown cause to the satisfaction of the.....
Judgment:
ORDER

Sankaran, J.

1. The legality of the proceedings in Summary Trial No. 88 of 1125 on the file of the Bench Magistrate's Court at Kottayam is the question raised in this Revision Petition. The accused in that case is the revision petitioner. For the non-payment of the professional tax due from him for the year 1121 to the Kottayam Municipality, the said prosecution was launched against him by the Municipality under Clause 2 of Rule 3 of Schedule II of the Travancore District Municipalities Act (Act XXIII of 1118). The majority of the Magistrates who took part in the proceedings held that the prosecution had succeeded in establishing a case against the accused and accordingly he was convicted of the offence charged against him and sentenced to pay a fine of Rs. 90/- inclusive of the professional tax of Rs. 77 Chs. 4 found to be due from him to the Municipality. In default of payment of the fine, the accused was directed to undergo simple imprisonment for a period of 15 days. On behalf of the revision petitioner, the legality of this conviction and sentence is challenged on two grounds viz. (1) that the prosecution itself was launched after the expiry of the period prescribed for the same and (2) that the conditions necessary to sustain a prosecution of this kind have not been satisfied in the present case.

2. The question of limitation may be considered first. Sections 366 and 368 of the District Municipalities Act are the two sections having a bearing on this question. Section 366 states that:

No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the Municipal Council under this Act after the expiration of a period of three years from the date on which distraint might first have been made, a suit might first have been instituted or prosecution might first have been commenced, as the case may be, in respect of such sum.

Section 368 states that:

No person shall be tried for any offence against the provisions of this Act, or of any rule, or bye-law made under it unless complaint is made by the police, or the executive authority or by a person expressly authorised in this behalf by the Council or the executive authority within three months of the commission of the offence.

This section further states that:

But nothing herein shall affect the provisions of the Code of Criminal Procedure, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge of suspicion.

There is also a Proviso to this section which runs as follows:

Provided that failure to take out a licence, obtain permission or secure registration under this Act shall, for the purpose of this section be deemed a continuing offence until the expiration of the period, if any, for which the licence, permission or registration is required and if no period is specified, complaint may be made at any time within twelve months from the commencement of the offence.

This Proviso or the latter part of the section has obviously no application to the present case. But it is argued on behalf of the revision petitioner that the first part of the section has to govern the prosecution in this case. The respondents on the other hand contended that Section 366 is the appropriate section applicable to this case.

3. The argument advanced on behalf of the respondents is that Section 368 applies only to offences pure and simple committed against the provisions of the District Municipalities Act or of any rule or bye-law made under it, while Section 366 does not relate to any such offence but applies only to the non-payment of a sum due to the Municipality. Even though there is considerable force in this argument it is difficult to accept the position that S 366 does not contemplate any offence at all. That section prescribes three remedies for recovery of the amount due from an individual to the Municipality. One such remedy is the distraint and sale, in a summary manner, of the movable properties of the defaulter. The second remedy is to institute a regular suit for recovery of the defaulted amount. The third remedy is to prosecute the defaulter in a criminal court. A maximum period of three years is prescribed by the section for the commencement of proceedings in furtherance of the relief under all these three different categories, such period being computed from the date on which the proceedings could have been commenced. The provision made in the section to launch a prosecution in a criminal court against the defaulter, necessarily implies that for the purpose of such a prosecution this particular statute has made the default in the payment of the amount due to the Municipality as an offence punishable under law. This is made clear by Clause 2 of B. 31 of Sch. II and also by. Rule 38 of the same Schedule in the Act. Clause 3 of Rule 31 states that:

If for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable, the executive authority may prosecute the defaulter before a Magistrate.

Sub-rule 1 of Rule 38 states that:

Every person who is prosecuted under Sub-rule 2 of Rule 31 shall be liable, on proof to the satisfaction of the Magistrate that he wilfully omitted to pay the amount due by him or that he wilfully prevented distraint or a sufficient distraint, to pay a fine not exceeding twice the amount which may be due by him on account! of (a) the tax and the warrant fee, if any, and (b) if distraint has taken place, the distraint! fee and the expenses incidental to the determination and sale, if any, of the property distrained.

Sub-rule 2 of Rule 38 states that:

Whenever any person is convicted of an offence under Sub-rule 1, the Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the Municipal Council the amounts, if any, due under the heads specified in Clauses (a) and (b) of Sub-rule 1;...

These provisions make it clear beyond doubt that wilful default in the payment of the amount due to the Municipality is treated as an offence and the defaulter is prosecuted for such offence. Without constituting such default as an offence, the idea of prosecuting the defaulter before a criminal court cannot even be conceived of. Even though the word 'offence' is not specially defined in the District Municipalities Act, the definition of that word as given in the Penal Code and also in the General Clauses Act is comprehensive enough to take within its ambit any act or omission which is punishable under any general or special or local law.

In the Penal Code, the definition given is as follows:

The word 'offence' denotes a thing made punishable by this Code or by any special or local law.

The definition given in the General Clauses Act) is equally if not more, comprehensive and it is as follows:

'Offence' shall mean any act or omission made punishable by any law for the time being in force.

Thus there can be no doubt that the prosecution referred to in Section 366, District Municipalities Act, is also a prosecution for the offence of default committed by the accused. All the same it is clear that the legislature intended to treat the prosecution for such an offence as distinct and separate from prosecution for other offences against the provisions of the Act or of any rule or bye-law made under the Act, and that appears to be the reason why Section 368 has been enacted as a general section to cover the latter class of offences, while Section 366 has been specially enacted to govern prosecutions in respect of wilful default in the payment of the Municipal dues. Section 334 of the Act provides for the penalty to be imposed on persons contravening any of the provisions of the Act or the rules framed under it. The sections or rules, the contravening of which would amount to an offence within the meaning of Section 334, have been enumerated in Schedule V and it is significant to note that the section or rules dealing with default in the payment of any sum due to the Municipalities does not find a place in this Schedule. This fact also indicates that the offences in general against the provisions of the District Municipalities Act which would come within the ambit of Section 368 are only those enumerated in Schedule V. Default in the payment of Municipal dues which also is constituted an offence for which the defaulter is liable to be prosecuted in a criminal court, is given a special treatment by its being provided for under Section 366. Viewed in all these aspects, it is clear that the appropriate section to govern the prosecution in this case is Section 366 and not Section 368.

Provisions similar to those contained in Sections 366 and 368 of the District Municipalities Act are contained in Sections 413 and 415 respectively of the Trivandrum City Municipal Act (Act IV of 1116). The scope of these two sections of the City Municipal Act had come up for consideration in - 'Noohukannu v. Corporation of Trivandrum', 1945 Trav LR 277 (A), where also there was prosecution against the accused for default in the payment of the tax due to the Corporation in respect of a motor vehicle maintained by the accused. It was ruled in that case that Section 413 is the appropriate section governing the period of limitation for such a prosecution. The same position holds good in the present case also and it has to be held that the question of limitation raised by the revision petitioner has to be determined with reference to Section 366 of the District Municipalities Act.

4. The next aspect to be considered is about the starting point of the period of limitation prescribed under Section 366. 'The relevant provisions to be considered in this connection are those contained in Section 94 and in Rr. 30 and 31 of Sch. II. Section 94 states:

if the profession tax due from any company or person is not paid, the executive authority shall cause a notice to be served on such company or person to pay it within fifteen days of the date of such service.

Rule 30 of the Schedule II states that:

where any tax not being a tax in respect of which a notice has to be served under Sections 94 or 102 or in respect of which a direction has to be given under Rule 13, is due from any person, the executive authority shall serve upon such person a bill for the sum due before he proceeds to enforce the provisions of Rule 31.

Sub-Rule 1 of Rule 31 states that:

If the amount due on account of any tax is not paid within fifteen days from the date of service of the notice, or bill or the giving of the direction referred to in Sections 94 and 102 and Rules 13 and 30 and if the person from whom the tax is due has not shown cause to the satisfaction of the executive authority why it should not be paid, the executive authority may recover by distraint under his warrant and sale of the movable property of the defaulter, the amount due on account of the tax together with the warrant fee and the distraint fee...

Sub-rule 2 of the same rule states that:

If for any reason the distraint or sufficient distraint of the defaulter's property is impracticable, the executive authority may prosecute the defaulter before a Magistrate.

This provision does not mean that the period of limitation for the launching of such a prosecution would be suspended for any length of time that may be required to ascertain the possibility or otherwise of realising the amount from the defaulter by means of distraint and sale of his movable properties. Where notice as contemplated by Section 94 and Rule 31 of Sch. II has been properly issued and duly served and the party concerned has not shown cause to the satisfaction of the executive authorty why the amount demanded of him should not be recovered and has not chosen to pay up the amount within the period of 15 days from the date of service of the notice, the executive authority gets on the expiry of the said period of fifteen days, the right to proceed against him in any of the three different modes prescribed by Section 366. It follows, therefore, that the three year period of limitation prescribed under that section has to be computed from the next date after the expiry of the aforesaid 15 days.

Ex. A is the counterfoil of the notice ' issued under Section 94 to the accused in this case. It was issued on 30-12-1121 and the endorsement on the back of it shows that it was served on 31-12-1121. The legality of the service has been questioned by the accused and it will be considered separately. Assuming for the present that the notice was properly served, it is clear that the period of limitation began to run only from the sixteenth day after the date of service of the notice. The prosecution launched on 29-12-1124 was therefore clearly within the period of limitation of three years prescribed under Section 366. The point raised on behalf of the revision petitioner on the score of limitation must therefore fail.

5. Then there is the question whether there has been a proper service of the notice Ex. A as contemplated by Section 94 of the District Municipalities Act. The manner in which such notices are to be served has been specified in Section 352 of the Act. That section says that the service of the notice may be effected by giving or tendering the notice to such person or, if such person is not found, by leaving such document at his last known place of abode or place of business or by giving or tendering the same to some adult member or servant of his family. These are the alternative modes of service prescribed in Clauses (a) and (b) of Sub-section 1 of Section 332. The other modes prescribed under Clauses O and (d) of Sub-section 1 of Section 352 do not arise for consideration in this case.

The endorsement on Ex. A is to the effect that the party was seen and the notice served, obviously meaning that the service was effected directly on the party himself. But the signature on the back of Ex. A is not of the party, but of a different person known by the name of Kuriakkose. The evidence adduced by the prosecution is also to the effect that the service of the notice Ex. A was not on the party himself, but was only on Kuriakkose, who is stated to be the son of the defaulter. Pw. 3 is the peon who effected service of the notice and he has clearly admitted that he did not meet the party to whom the notice was addressed and that he did not make any attempt to meet the party and to serve the notice on him. It was without making any such attempt that Pw. 3 effected service of the notice on kuriakkose, the son of the defaulter. The admission thus made by Pw. 3 is sufficient in itself to show that the endorsement on the back of Ex, A that the party was met and the notice served on him is false.

6. The service of the notice on the son of the defaulter could be accented as proper service only if the requirements of Clause (b) of Sub-section 1 of Section 352 of the District Municipalities Act had been satisfied, viz., that the party could not be found in spite of a due attempt in that direction and that the person on whom the notice was served was an adult member or servant in the family of the defaulter. The first of these conditions was admittedly not satisfied in the present case. As for the next condition, there is no evidence to show that Kuriakkose, on whom the notice was served, was an adult member on the date of such service. Kuriakkose, himself has not been examined in this case. Under these circumstances, it is clear that the service of the notice Ex. A cannot be accepted as a proper and legal service.

Such a service is an essential preliminary step Which has to be directly complied with so as to enable the Municipality to sustain a prosecution against the alleged defaulter. In the absence of a proper service of notice, the party cannot be said to have failed to comply with the requirements of the notice, i.e., to pay up the amount mentioned in the notice within 15 days from the date of service of the notice. Rule 38 of Schedule II insists that the Magistrate before whom the defaulter is prosecuted must be satisfied that there was wilful omission on the part of the defaulter to pay up the amount in question. Any question of such wilful omission can arise only after a proper demand has been made of him.

7. The liability to pay the tax due to the Municipality is in essence a civil liability and it is only by virtue of the special provisions contained in the District Municipalities Act that the omission to pay up the amount is made an offence for which the defaulter could be prosecuted. Such being the nature and scope of the prosecution, it is of the utmost importance that every one of the preliminary steps prescribed by the Act as leading up to such a prosecution is proved to have been strictly complied with and observed. Non-observance of these preliminary steps would be fatal to the sustainability of a prosecution under Clause 2 of Rule 31 of Schedule II. The service of the notice Ex. A in the present case having been false and illegal on the face of it, is in itself a fatal defect rendering the prosecution unsustainable.

A similar question arose for consideration in - 'Nobinchandra v. Naokhali Municipality' AIR 1916 Cal 455 (B), where it was ruled that the failure to observe the essential preliminary steps leading up to a prosecution under the provisions of Bengal Municipal Act had the effect of making the prosecution one without jurisdiction.

The validity of a prosecution under the provisions of the same Act had been considered in - 'Bidhu Bhushan Mullick v. Assensole Municipality', 6 Cal WN 167 (C) and there also it was ruled that the service of the requisition on the

accused who was charged with disobedience thereof as well as the requisition itself should be proved and found to have been proper before the accused could be convicted for an offence of non-compliance with the requisition.

The decision in - 'In the matter of Chairman of the Puri Municipality v. Kissori Lal Sen' (1896-97) 1 Cal WN ccxliv (D), is also in support of the same principle. There it was held that no prosecution could be started for failure to comply with the requisition of a notice issued by the Municipality to a party where it is seen that the notice did not strictly comply with the requirements as laid down in the provision regulating the issue of such a notice.

The question of the validity of a notice issued under the United Provinces Municipalities Act came up for consideration in - 'Emperor v. Piari Lal' AIR 1914 All 41 (E). There it was ruled that before any one could be convicted of the offence of disobedience of a notice issued under the provisions of the Act the court must be satisfied that what the accused had disobeyed was a notice lawfully issued under the powers conferred by that Act. The principles underlying all these decisions is that a prosecution for an act or omission which constitutes an offence punishable under law as per the provisions of a special statute like the District Municipalities Act can be sustained only if all the essential pre-requisites are shown to have been strictly complied with. So far the present case is concerned, the basic requirement itself, that is, the proper and legal service of a notice of demand on the defaulter, has not been satisfied. Necessarily the prosecution must fail on the ground.

8. The result is that this revision petition is accepted and the conviction entered against the petitioner accused and the sentence awarded to him in Summary Trial No. 88 of 1125 on the file of the Bench Magistrate's Court at Kottayam, are set aside and he is acquitted of the offence charged against him. The fine, if already realised, will be refunded to him.


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