The limitation for prosecution under section 210 of the Kerala Panchayat Raj Act commences from the date of impracticability of distraint, not the date of default.

O R D E R

The Secretary of Vilakkudy Grama Panchayat filed a complaint under section 210 of the Kerala Panchayat Raj Act against the petitioner herein, which was numbered as S.T.No. 2321/04 on the file of the court of the Judicial Magistrate of the First Class-III, Punalur. The petitioner/accused had taken the right for conducting a meat stall in the public market during the year 2003-04. The right was auctioned by the Panchayat and the petitioner was the successful bidder. The petitioner did not pay the instalments in full. The balance outstanding was Rs. 91,109/-. All the efforts made by the Panchayat to realise the amount were futile. Since the Panchayat could not realise the amount from the petitioner, as a last resort, the complaint was filed.

2. It has come out in evidence that the bid amount, for which the auction was confirmed in favour of the petitioner, was Rs. 3,40,500/- and it was to be remitted in three instalments. It is proved that the petitioner committed default in payment of instalments. It is also proved that a sum of Rs.91,109/- is due to the Panchayat from the petitioner. The trial court considered the evidence of P.Ws.1 and 2 and Exts. P2, P3, P5, P5 (a) and P7 and came to the conclusion that the petitioner/ accused committed default in paying the bid amount and that the effort made by the Panchayat to attach the property of the petitioner was impracticable. A contention was put forward on behalf of the petitioner that the complaint is barred by limitation. It was contended before the trial court that the transaction involved was of the year 2003-04 and the agreement was entered into on 26.04.2003. The last instalment was payable on 30.09.2003. It was contended that section 210 of the Panchayat Raj Act contemplates prosecution against the defaulter and the quantum of sentence is provided in Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal)Rules 1996, which provides for imposing a sentence of fine not exceeding twice the defaulted amount. The petitioner raised a contention that the sentence being only fine, the period of limitation applicable is six months under section 468 of the Code of Criminal Procedure. The trial court negatived the contention that the complaint is barred by limitation on the ground that the limitation starts not from the date of default but from the date when it was found that the attachment was impracticable. The attempt to attach the property having been made on 02.11.2004 and the complaint having been filed on 28.12.2004, it was held by the trial court that the complaint is not barred by limitation. The trial court found the petitioner guilty and sentenced him to pay fine of Rs.91,609 under rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal )Rules 1996 and in default of payment of fine to undergo simple imprisonment for a period of two months. The fine amount, on its realisation, was directed to be paid to the Secretary of the Panchayat under section 357(1) of the Code of Criminal Procedure.

3. On appeal by the petitioner, the appellate court confirmed the conviction and sentence imposed by the trial court . As regards the plea of limitation, the appellate court held that under section 243 of the Kerala Panchayat Raj Act , the period of limitation is three years and the complaint having been filed within two years' from the date of execution of Ext.P3 agreement, it is not barred by limitation. Section 243 of the Kerala Panchayat Raj Act reads thus:

“Limitation for recovery of dues: (1) No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any tax or other sum due to a Panchayat under this Act or any rule or bye- law, or order made under it after the expiration of a period of three years from the date on which the distraint might first have been made, a suit might first have been instituted or the prosecution might first have been commenced, as the case may be, in respect of such tax or sum;

Provided that i