The prosecution under the Old Act and Rule 26 of the Old Taxation and Appeal Rules is justified. The arrears of bid amount due from the accused is recoverable under Sec.74 of the Old Act.

The Secretary, Pudunagaram Grama Panchayat who was the complainant is S.T. Case No.2305/96 on the file of the Court of the Judicial Magistrate of First Class. Chittur, is the appellant in this appeal. The first respondent herein who was the accused in the said case was prosecuted by the appellant under Sec. 74 of the Kerala Panchayats Act, 1960 read with Rule 26 of the Keral Panchayats (taxation and Appeal) Rules, 1963.

THE PROSECUTION CASE

2. The case of the prosecution can be briefly stated as follows:

The accused was the highest bidder in the auction held by the complainant/Panchayath to conduct the fish market in the said Panchayath for the one year period commencing from 1-4-1995 and ending on 31-3-1996. The total bid amount was Rs.30,100/-. On 20-3-1995 he deposited Rs.10,040/-. He ought to have paid the balance amount on or before 30-9-1995. But he committed default in the payment of the balance amount. As on 30-9-1995 a sum of Rs.20,068.75 including notice charges was due from him. Eventhough distraint proceedings were attempted by the Panchayath, the same were in vain since he had no properties to be proceeded against. It was thereafter that the present a prosecution was launched under Sec.74 of the Kerala Panchayaths Act, 1960 read with Rule 26 of the Kerala Panchayaths (Taxation and Appeal) Rules, 1963.

THE TRIAL

3. on the accused pleading not guilty to the particulars of the offence read over and explained to him, the prosecution was permitted to adduce evidence in support of its case. The prosecution examined 4 witnesses as P.Ws 1 to 4 and got marked seven documents as Exts.P1 to P7.

4. After the conclusion of the prosecution evidence the accused was questioned under Sec.313 Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence.

5. The learned Magistrate, after trial, as per judgment dated 4-11-1998 held that the accused was defaulter as alleged by the complainant but found that the complaint filed under the provisions of the Kerala Panchayats Act, 1963 (hereinafter referred to as “the Old Act” for short) after the coming into force of Kerala Panchayat Raj Act, 1994 (hereinafter referred to as “the New Act” for short) was not maintainable and accordingly acquitted the accused under Sec.255 (1) Cr.P.C. It is the said judgment which is assailed in this appeal by the complainant Panchayath.

THIS APPEAL

6. when this appeal came up for hearing before a learned Single Judge (Sri.J.M.James, J.) the respondent/accused made an attempt to sustain the order of acquittal by placing reliance on the decisions reported in Peravoor Grama Panchayath v. Rafi – 2004 (2) KLT 1115 and Thalavoor Grama Panchayath v. Salim 2004 (3) KLT 835. But the learned Single Judge was of the view that if the ratio decided in these two decisions were to be followed it would bring about heavy loss to the Panchayats in the State and felt that those decisions require re-consideration by a Bench. Accordingly, this appeal was referred for consideration by a Bench as per the order of reference dated 12-1-2005. That is how the matter has come up before us.

7. We heard Adv. Sri. Prasoon, representing Adv. Sri.P. Vijayabhanu, the learned counsel appearing for the Pachayath and Adv. Sri. Mohanakannan, the learned counsel appearing for the first respondent/accused.

ARGUMENTS OF THE ACCUSED

8. Adv. Sri. Mohanakannan, the learned counsel appearing for the first respondent/accused made the following submission before us to sustain the order of acquittal:-

Ext.P4 demand notice issued under the provisions of the Kerala Revenue Recovery Act is dated 9-2-1996 which is after the date of coming into force of the New Act. The New Act came into force with effect from 23-11-1995. The complaint before the court below was thereafter filed on 30-4-1996. Admittedly, the complaint was filed under Sec. 74 of the Old Act read with Rules 26 of the Kerala Panchayath