This Criminal Appeal has been directed against the judgment made in S.T.C. No.3083 of 2000, dated 24.05.2006 on the file of the learned Judicial Magistrate, Rajapalayam.
2.The Door Nos.49 to 52-A at Rajapalayam belong to one Jankiram Mill (P) Lt., which was assessed for Tax for the year 1998-99 and 2000. There was a tax arrears for Rs.5,50,313/-. The tax arrears was demanded by the Commissioner, Rajapalayam Municipality, and the same was not paid. Therefore, a demand notice was given under Ex.P1, and the same was received under Ex.P2 and thereafter, a prosecution was launched by filing a complaint under Ex.P.3.
3.The complaint was taken on file in S.T.C.No.3083 of 2000 by the learned Judicial Magistrate, Rajapalayam, and on appearance of the accused on 24.08.2000, the copy of the complaint was furnished to him and on his subsequent appearance on 28.08.2000, the accused was questioned about the charges and the accused denied the same.
4.To prove the charges, an officer of the Municipality was examined as P.W.1.
5.The accused was questioned under
Section 313 of Cr.P.C., and he denied the charges and a defence was taken that the complaint was not filed in time and taking cognizance is barred under Section 347 of the Tamil Nadu District Municipalities Act. An another defence was also taken that under Rule 30(2), distraint proceedings is a condition precedent for launching a criminal prosecution.
6. The learned Judicial Magistrate, Rajapalayam, found that Section 347 of the Tamil Nadu District Municipalities Act, which provides a limitation of three months is not applicable and the limitation prescribed under Section 345 of the Act, which is for three years, is applicable and the complaint is in time. While considering an alternative remedy of distraint procedures, the learned Judicial Magistrate found that steps were not taken for distraint proceedings and therefore, the complaint is vitiated and dismissed the same and thereby the accused was acquitted under Section 255(i) of the Code of Criminal Procedures. Hence, this Criminal Appeal by the Municipality.
7.Aggrieved by the judgment, the appellant/complainant has preferred the present appeal on the following grounds:-
(1) The learned Magistrate has erred in holding that only after the initiation of distraint proceedings under Rule 30(1) of the Schedule IV of the Tamil Nadu District Municipalities Act, 1920, the complaint, if any, against the defaulter in payment of property tax would be maintainable and the learned Magistrate failed to note that under the proviso to Rule 30(1), 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. Therefore, the dismissal of the complaint preferred by the petitioner/complainant is irregular and liable to be set aside.
(2) The learned Magistrate has failed to consider that the appellant / complainant has demanded the property tax from the accused and the accused has failed to pay the demand made by the complainant and it was shown that the accused has willfully omitted to pay the demand amount.
(3) The learned Magistrate has failed to consider the wordings contained in Rule 30 of the schedule IV of Act 1920, if in opinion of the executive authority, the initiation of distraint proceedings will not give any result or it is impracticable that without resorting to distraint proceedings, the executive authority can take criminal prosecution against the defaulter of the property tax of the Municipality. Therefore, the question of initiation of Criminal proceedings before the initiation of distraint proceedings will not arise at all and is not mandatory. The Municipality has got every right and authority to institute Criminal proceedings even before initiation of distraint proceedings. Hence, the complaint prepared before the learned Judicial Magistrate is maintainable in law and the learned Magistrate ought to have proceeded on the complaint of the appellant.
(4) The learned Magistrate ought to have considered that no document was marked by the accused/respondent to establish that he had not willfully omitted to pay the arrears, when P.W-1 has categorically stated in his evidence that the demand was made and the accused has not paid the amount in spite of the demand.
8.The point for consideration arises in this appeal is whether the complaint had exhausted the remedy available under Rule 30(2) of the Tamil Nadu District Municipalities Act, which provides for a distraint proceedings before launching a criminal proceedings.
9.The learned counsel for the appellant/complainant would submit that there was a demand for payment of huge tax arrears of Rs.5,50,313/- due to the Municipality and the prosecution notice was issued under Ex.P1. The learned counsel pointed out that it is categorically submitted in the complaint as well as through evidence that a sufficient distraint of the defaulter's property is impracticable and therefore, the prosecution was launched. The learned counsel pointed out that the learned Judicial Magistrate is wrong in holding that the complainant has not exhausted that remedy.
10.The learned counsel relied on the decision of this Court in Kothuval Amirunnissa Vs. Commissioner, Vaniambadi Municipality, Vellore District reported in (2007 (2) MLJ 149 Mad), wherein it has been held as follows:- "The proceedings for distraint of the defaulter's property is a precedent for launching criminal prosecution against the defaulter of tax. The trial Court has to go into the question whether any steps were taken actually for distraint of property or not. The prosecution must be given opportunity to explain as to how the complaint is within time."
11.The learned counsel for the respondent/accused would submit that distraint proceedings is a condition precedent for launching the prosecution and the complainant has not exhusted that procedure which warrants the dismissal of the complaint and the acquittal of the accused. The learned counsel pointed out that the complainant ought to have established that the distraint has become impracticable under Rule 30(2) of the District Municipalities Act.
12. The learned counsel relied on the decision of this Court in P.R.V.R.Veerappa Chettiar Vs. State of madras and another reported in (1969 L.W. (Crl.) 58) wherein it has been held that "It is clear from Rule 30(2) that prosecution cannot be instituted against the defaulter unless it was found that the distraint of the defaulter's property is impracticable. So, the condition precedent for instituting prosecution after the amount has become due is the commencement of distraint proceedings and consequent finding that such distraint is impracticable."
13.The learned counsel also relied on the decision of this Court in Kalimuthu Vs. Municipal Heal Officer reported in (1969 L.W. (Crl.) 111) for the same proposition.
14.Rule 30 (2) Reads as follows:-
"If for any reason distraint or a sufficient distraint of the defaulter's property is impracticable the (Executive Authority) may prosecute the defaulter before a Magistrate."
15. Now it is well settled that the distraint proceedings is a condition precedent for a criminal prosecution. To commence a distraint proceedings, it is necessary that a bill under Rule 29 shall be served on the person from whom the amount is due and such bill shall contain a statement of the period and the description of the property for which such tax is charged and a notice of the liability incurred in default of payment of such due. If the amount due is not paid within 15 days from the service of such notice, the amount can be recovered from distraint proceedings under the warrant of the distraint. The movable properties of the defaulters can be brought for sale and the tax arrears has to be appropriated. And for any reason, such distraint or a sufficient distraint is impracticable, the reasons has to be recorded and then only a criminal prosecution can be launched. Merely stating that distraint proceedings are impracticable is not sufficient. The distraint proceedings is a condition precedent for such criminal prosecution and there must be some evidence to show that action has been taken to that effect.
16. In the present case the complainant has not taken any steps for such distraint proceedings and therefore, the complaint is liable to be dismissed and the learned Judicial Magistrate has rightly dismissed the complaint and acquitted the accused. I have no reason to interfere with the order of the Court below.
17.In the result, the criminal appeal is dismissed. However, the appellant is at liberty to take distraint proceedings subject to limitation.
MPK To
1.The Judicial Magistrate, Rajapalayam.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.