THE MANAGER v. Panchayat is at liberty to proceed

THE SECRETARY, CHENNEERKKARA GRAMA PANCHAYATH, CHENNEERKKARA VILLAGE, KOZHENCHERRY TALUK PATHANAMTHITTA DISTRICT, PIN - 689503 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

02.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C No.2989 of 2024 2 K.BABU, J. -------------------------------------- Crl.M.C No.2989 of 2024 --------------------------------------- Dated this the 2nd day of April, 2024

O R D E R The prayer in this Criminal M.C is as follows: “.........to quash Annexure III complaint and all further proceedings pursuant to the same pending on the files of Judicial First Class Magistrate Court-II, Pathanamthitta in the interest of justice.”

The petitioner is a finance company arrayed as accused in ST No.2565/2021 on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta. The offence alleged against the petitioner is punishable under Section 210 of the Kerala Panchayat Raj Act, 1994 read with Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996.

The allegation in the complaint is that the petitioner is indebted to the Panchayat for an amount of Rs.20,735/- as the dues of Institutional Professional Tax. It is further alleged that in spite of the completion of all the formalities for realisation of the amount the petitioner failed to remit the tax. It is further stated in the complaint that it is impossible to realise the amount from the Crl.M.C No.2989 of 2024 3 movable properties belonging to the petitioner.

Admittedly, demand notice was issued to the petitioner which is also evident from Anx.I reply. The learned counsel for the petitioner contended that the respondent Panchayat has not resorted to realise the dues by recourse to the provisions contained in the first proviso to Section 210 of the Act. The learned counsel submitted that without recourse to the provisions contained in the first proviso to Section 210 of the Act, the secretary cannot prosecute the defaulter before the Magistrate.

Section 210 of the Kerala Panchayat Raj Act, 1994 reads thus:

210. Recovery of arrears of tax, cess, etc.- Any arrear of cess, rate, surcharge or tax imposed or fees levied under this Act shall be recoverable as an arrear of public revenue under the law relating to the recovery of arrears of public revenue for the time being in force: Provided that the Secretary of a Village Panchayat may directly recover by distraint, under his warrant, and sale of movable properties of the defaulter subject to such rules as may be prescribed: Provided further that, if for any reason the distraint or a sufficient distraint of a defaulter's property is impracticable, the Secretary may prosecute the defaulter before a Magistrate.

The pleadings in the complaint make it clear that the Crl.M.C No.2989 of 2024 4 secretary to the Panchayat has completed the statutory formalities for realising the amount. The secretary further pleaded that distraint or a sufficient distraint of the petitioner's property is impracticable. Therefore, the prosecution cannot be held to be illegal in the eye of law.

The learned counsel for the petitioner submitted that the prosecution initiated against the petitioner, a reputed finance company, was unnecessary. However, the learned counsel submitted that the petitioner is prepared to pay the amount under protest as the challenge of the petitioner that it is not liable to pay the professional tax as well as the institutional tax is under consideration in another proceeding before this Court. Having considered the entire circumstances, the Criminal M.C is disposed of as follows: (i) The prosecution initiated against the petitioner would stand quashed on the petitioner remitting the amount claimed in the complaint within two months under protest. (ii) The question whether the petitioner is liable to Crl.M.C No.2989 of 2024 5 pay the professional tax as well as the institutional tax is left open as the matter is pending in another proceeding before this Court. (iii) If the petitioner fails to remit the amount claimed in the complaint within the stipulated time, the respondent-Panchayat is at liberty to proceed with the complaint. KAS Sd/- K.BABU, JUDGE Crl.M.C No.2989 of 2024 6 APPENDIX OF CRL.MC 2989/2024 PETITIONER ANNEXURES Annexure I Annexure II Annexure III A TRUE COPY OF LETTER DATED 29.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT A TRUE COPY OF NOTICE BEARING NO : C7- 3462/19 DATED 02.12.2019 ISSUED BY THE 1ST RESPONDENT A TRUE COPY OF THE COMPLAINT IN ST NO : 2565/2021 FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, PATHANAMTHITTA DATED 08.07.2021