Important points:
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 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

JUDGMENT :

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 1st 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.

2. 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.

3. To substantiate the case, the complainant examined two witnesses and marked Exts.P1 and P3.

4. 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.

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

6. 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.

7. 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 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:

"(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.

(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 P