Secretary of a Panchayat, when the prosecution initiated by him failed, has approached this court with this appeal. The prosecution initiated by the appellant was because of the default made by the first respondent is not remitting a portion of the bid amount to occupay a meat stall owned by the panchayat for a particular year. The learned Magistrate found that the Panchayat has not substantiated that the first respondent has committed any offence punishable under Section 210 of the Panchayat Raj Act 1994, as the Panchayat had not provided the slaughter house facilities and did not even produce the agreement from which the liability to pay the bid amount arises.

2. Assailing the acquittal, it is submitted that, existence of the agreement was admitted by the accused in his statement under Section 313 Cr.P.C. It is submitted that, the notification issued in terms of erstwhile Panchayat Act and the Rules framed there under have been served in terms of Section 284(2)(i) of the Kerala Panchayat Raj Act, 1994. Therefore the prosecution was permissible. When the agreement is admitted and no evidence has been produced for payment of the entire amount in terms of the agreement and as the appellant/complainant had substantiated that the distraint could not be successfully taken, the prosecution was maintainable. There is evidence that the accused had committed the offence punishable under Section 210. Section 210 of the Panchayat Raj Act 1994 provides that;

“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.”

It is invoking the power under second proviso of Section 210, the prosecution had been initiated. Necessarily, it can be for recovery of any of the items specifically made mention of under Section 210.

3. The counsel for the appellant submits that the bid amount will come under the rates, made mention of in Section 210. It is impossible to accept this contention because the specific case put forward before the court below was the default in payment of auction amount. Necessarily, the auction amount will not come under the rates. So in terms of Section 210 no prosecution can be launched against an incumbent for default of the auction amount. It is submitted that Government of Kerala had issued a notification SRO. No.319/62 in Kerala Gazette dated 13.11.1962 to the following effect.

All costs, damages, compensation, penalties, charges, fees (other than school fees) expenses, rents, contributions and other sums which under the Kerala Panchayats Act, 1960 (Act 32 of 1960) or any other law or rules or bylaws made there under are due by any person to the Panchayat, may, if there is no special provision in the Act or in the other law or in the rules or bylaws made thereunder for their recovery be demanded by bill which shall be served on the person concerned and recovered in the manner provided in the rules for the collection of taxes under the said Act.”

This enables the Panchayat to initiate prosecution.

4. I am unable to accept this contention as well because the auction amount is not specifically made mention of in the said notification. It will not come even under other sums due “under the Kerala Panchayat Act 1960 or any other law or rules or bylaws made there under”. Admittedly by the appellant, the amount is due in terms of an agreement entered into with the accused. It is not a statutory due leviable under the Panchayat Act. Even going by the complaint itself, the amount due