Dismissed

Secretary v. T.K.Unni Peravan

Kerala HC25 Nov 2020CRL.A/420/2006

Case brief

AI extract

What is this about?

The High Court of Kerala at Ernakulam dismissed an appeal against acquittal. While upholding the trial court's finding on the non-attraction of the offence due to lack of due diligence, the judge expunged directions ordering recovery of money from lower officials, stating criminal courts lack jurisdiction to act as disciplinary authorities.

What did the court decide?

Directions to recover the amount from the Secretary and concerned officials were expunged; Criminal Appeal dismissed.

Secretary Vs T.K.Unni Peravan — Constitutional and Fundamental Rights | Kerala HC (2020)

CRL.A.No.420 OF 2006

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942

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CRL.A.No.420 OF 2006

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AGAINST THE JUDGMENT IN STC NO. 1393/2002 DATED 31-10-2005 OF CHIEF JUDICIAL MAGISTRATE, KALEPETTA

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APPELLANT/COMPLAINANT:

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SECRETARY POZHUTHANA GRAMA PANCHAYATH, WAYANAD DISTRICT.

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BY ADV. SRI.P.NARAYANAN

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RESPONDENT/ACCUSED & STATE:

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1 T.K.UNNI PERAVAN S/O.P.K.RAMAN, KALIPURATH HOUSE, KARUDA PARAMBA VIA., FEROQUE VILLAGE, VAZHAYOOR, MALAPPURAM.

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2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY ADV. SRI.K.P.MUJEEB R2 BY SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.420 OF 2006

JUDGMENT

Dated this the 25th day of November 2020

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Can criminal court issue directions to recover an amount from a public servant for his alleged dereliction of official duties that caused loss to the Local Self Government Institutions or the government itself? This is one of the points to be decided in this case. This appeal is filed against the acquittal order passed by the Chief Judicial Magistrate Court, Kalpetta in S.T.C. No.1393/2002. It was a prosecution initiated by the Secretary, Pozhuthana Grama Panchayat, against the 1^st respondent for prosecuting him under Section 210 of the Kerala Panchayat Raj Act r/w 27 of the Kerala Panchayat Raj (Taxation and Appeal) Rules 1996.

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According to the complainant, the accused, who is the owner of building No.VII/117, 118 of Pozhuthana Grama Panchayat failed to remit the building tax for the period 2000-2001 and 20012002 despite repeated demand notice. The distraint warrant issued against him returned impracticable. The amount of Rs.15,428/- is due from the accused. Hence the complaint was filed.

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To substantiate the case, the complainant examined two

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CRL.A.No.420 OF 2006

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witnesses and marked Exts.P1 and P3.

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After going through the evidence and the documents, the trial court found that the accused is not guilty for the offences alleged, and he was acquitted. Aggrieved by the above, this Criminal Appeal is filed by the Panchayat.

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Heard the learned counsel for the Panchayat and the learned Public Prosecutor.

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The counsel for the Panchayat vehemently argued that there is sufficient evidence in this case to convict the accused. The counsel submitted that there is evidence to show that the accused defaulted in paying the building tax. The counsel submitted that there is evidence to show that the recovery through distraint or sufficient distraint of the defaulter's property is impracticable. Therefore, the prosecution initiated is sustainable. The counsel for the Panchayat also submitted that the trial court, after acquitting the accused, without any jurisdiction, further directed to recover the amount from PW1 and PW2, who are the Panchayat Secretary and the Lower Division Clerk. The counsel submitted that the criminal court has no jurisdiction to pass such an order.

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I perused the entire oral and documentary evidence in this case. I'm afraid I have to disagree with the learned counsel for the appellant that the offence under Section 210 of the Kerala State

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CRL.A.No.420 OF 2006

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Panchayat Raj Act is made out in the facts and circumstances of the case. The trial court found that there are movable properties to the accused, which can be attached. But it was not attached. On facts, in my opinion, the offence under Section 210 of the Kerala Panchayat Raj Act is not attracted in this case. The prosecution of a person for the offence under section 210 of the Panchayat Act by the Secretary of a panchayat is possible only if, for any reason, distraint or a sufficient distraint of a defaulter's property is impracticable. After scanning the entire evidence available, the trial court concluded that offence under section 210 of The Panchayat Act is not attracted. The relevant portion of the judgment of the trial court by which the trial court acquitted the accused is extracted hereunder:

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"(11) The evidence of PW1 would show that the accused failed to pay the building tax for the period 2000-01, 2001-02 inspite of receipt of Ext.P1 demand notice as per Ext.P1(a) and PW1 further stated that P2 Distraint warrant issued against the accused returned by PW2 as per Ext.P2(a) as impracticable.

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(12) On going through the evidence of PW1 and 2, the Secretary and L.D.C. who went for the execution of distraint warrant it can be seen that the business and the premises were taken over by KSFC. So when the KSFC has taken over the possession and business of the accused, he is not liable to pay the tax and he is not in possession of the concerned building. So it is not correct to say that the accused is liable to pay building tax for the building which was taken over by the KSFC. According to PW1 and 2, PW2 went to the tile factory for the execution of Ext.P2 distraint warrant. According to him he returned it since the KSFC had sealed the premises after attachment. So the evidence

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CRL.A.No.420 OF 2006

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of PW1 and 2 would say that they have made attempt only for attachment of the properties from the tiles factory. PW1 and 2 has no case that the defaulter accused has no other movable properties and they have not made any attempt to attach the other movable properties of the defaulter accused without making any effective steps to attach all the movable properties of the defaulter accused. The Panchayat has filed this complaint in a formal manner saying that distraint warrant become impracticable since KSFC had taken the possession of the building and business. Therefore I am of view that the complaint filed by the complainant is not maintainable u/s. 210 Panchayat Raj Act, r/w 27 of Kerala Pachayat Raj (Taxation and appeal Rules)."

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I see no reason to interfere with the above finding of fact by the trial court. This is an appeal against acquittal. Once the trial court acquits an accused, the presumption of innocence is strengthened. Therefore, in my opinion, there is nothing to interfere with the above finding of fact by the trial court.

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Then, the counsel for the appellant submitted that the learned Magistrate erred in issuing a direction in the impugned judgment directing the Panchayath to recover the amount defaulted by the accused from PW1 and PW2. The appellant's counsel submitted that the criminal court has no jurisdiction to issue such directions to recover the amount from PW1 and PW2. PW1 and PW2 have taken all steps to recover the amount from the accused. The initiation of prosecution itself will show the efforts taken by PW1 and PW2, the counsel submitted. Therefore, the counsel submitted that the learned Magistrate's direction to recover the

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CRL.A.No.420 OF 2006

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amount due from the accused to the Panchayat from PW1 and PW2 is not correct. I see some force in this argument. The criminal court need not issue such a direction. The criminal court only has to see whether an offence under Section 210 of the Kerala Panchayat Raj Act is attracted or not. If there is any dereliction of duty on the part of PW1 and PW2 in recovering any amount, there are methods to recover the amount from them. There are authorities to take departmental enquiry against the officer concerned if anything like that happened. The criminal court need not assume the role of disciplinary authorities while delivering judgments in criminal cases. Therefore, the directions in para 13 of the impugned judgment to the effect that "the amount being a public money, the panchayat can recover those amounts from the Secretary and the concerned officials as per rules" is expunged from the impugned judgment.

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With these observations, this Criminal Appeal is dismissed.

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Sd/-

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P.V.KUNHIKRISHNAN JUDGE

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Secretary v. T.K.Unni Peravan

Case brief

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Secretary v. T.K.Unni Peravan

Case brief

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