1. The revision petitioner, who is the appellant in Crl. A. 281 of 2001 on the file of the Additional Sessions Judge, Thodupuzha challenges the judgment of conviction under S.74 of the Kerala Panchayats Act, 1960 (hereinafter referred to as the 'Act') read with R. 26 of the Panchayat Taxation and Appeal Rules 1963 (hereinafter referred to as the 'Rules'). He was convicted by the Judicial First Class Magistrate-11, Thodupuzha in S.T. 623 of 1994 and sentenced to fine of Rs. 1000/- and in default simple imprisonment for one month and also directed to pay arrears of Rs. 41,065/- to the Panchayat within 30 days from the date of the order. The brief facts necessary for indictment were that on 30.3.1994 Executive Officer, Kodikulam Panchayat auctioned the river sand from Vandamattomthodu and Vallakkadavu and the revision petitioner was the bidder for Rs. 24,000/- and for Rs. 12,075/- but he failed to pay a sum of Rs. 41,065/- to the panchayat. On 17.12.1993, Executive Officer, Kodikulam Panchayat issued a demand notice and directed the revision petitioner to remit the amount within 15 days. When there was no payment, he issued revenue recovery notice for recovering the amount and issued distraint warrant. Since the revision petitioner has no movable or immovable properties within the limits of the Panchayat, the same could not be executed. In the circumstances, he prosecuted the revision petitioner under S. 74 of Kerala Panchayats Act, 1960.

2. In the Trial Court, complainant was examined as PW 1 and his documents were marked Ext. P1 to P8. Ext. B1 was marked from the side of the revision petitioner. Trial court after considering the evidence, convicted the accused against that conviction, he preferred Crl. A. 281 of 2001, where the revision petitioner was released under S. 3 of the Probation of Offenders Act and also directed to pay a compensation of Rs. 41,065/- to the Panchayat under S. 5 of the Probation of Offender's Act.

3. Learned counsel appearing for the revision petitioner contended that a prosecution under S. 74 of the Panchayats Act is not maintainable for realizing a liability created in a contract. The revision petitioner was a bidder for mining of sand from Vandamattomthodu. Therefore such amount can be realized only through a civil proceeding. Any arrears of case, rate, surcharge or tax imposed or fee levied under the Act alone shall be recoverable as arrears of public revenue for which a prosecution is maintainable but when a liability under a contract arises, a prosecution is not possible. The illegality committed by the courts below is to be rectified by invoking the revisional jurisdiction.

4. It is the duty of the revisional court to correct the failure of justice arising from the erroneous orders, such as misconception of law or facts, irregularity of procedure, misreading of evidence etc. While invoking revisional jurisdiction to rectify such patent defect or an error it is true that there is no vested right of revision in the sense, when there is vested right in appeal, and it is purely discretionary. In an appeal, the appellant is given a statutory right to demand adjudication upon a question of law or question of fact or of both. But in a revisional jurisdiction, the appellant has no such right, it is for the court to interfere in exceptional cases when it is seen that some real and substantial injustice has been done.

5. For ascertaining the illegality or irregularity, I have considered S. 74 of the Kerala Panchayats Act, 1960 which reads as follows.

"74. 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 executive authority may directly recover by distraint, under his warrant, and sale of movable properties of the defaulter subject to such rules as may be prescribed:

Provid