@JUDGMENTTAG-ORDER
Walsh, J.@mdashThe petitioner was convicted for failure to pay a certain sum due by him as lessee of a slaughter-house and temporary market.
The agreement itself was subsequent to the new Madras Local Boards Act 11 of 1930. The proceedings appear to have been taken u/s 221(2) of
the old Act. There is no such subsection in the new Act. Section 221(2) of the old Act relates to procedure. Briefly the argument for the petitioner
is this: if the conviction was under the old Act, it cannot be sustained in the light of the ruling in Punya Syamolo, In re AIR 1924 Mad. 669. If it
was under the new Act, it cannot be sustained because the proceedings have been irregular. I think this contention must prevail. The scheme of the
old Act u/s 221 was that on a default, apparently whether wilful or not, reference could be made to a Magistrate who could summon the parties to
appear before him and on their appearance hear and determine the question, if necessary placing either party under oath. I do not think it is
necessary to determine the point raised that these were not criminal proceedings because if they were, the defaulter could not have been put on
oath, while in the present Act it is regular criminal proceedings that are contemplated. What has to be noticed is the form in which the proceedings
were taken. As I said, if this prosecution was under the old Act, the lease amount cannot be recovered under the ruling quoted by an action u/s
221. If the proceedings are said to have been taken under the new Act, then they are not in accordance with what is laid down in Schedule 4.
Under that schedule the first thing that has to be done in such a case as this is to proceed Under Rule 33 and distrain the defaulter''s property. Rule
33(2) states:
If for any reason the distraint, or a sufficient distraint, of the defaulter''s property is impracticable the President may prosecute the defaulter before a
Magistrate.
2. Rule 39 says that every person who is prosecuted Under Sub-Rule 2, Rule 33 shall be liable, on proof to the satisfaction of the Magistrate that
he wilfully omitted to pay the amount due by him or that he wilfully prevented distraint or a sufficient distraint, to certain penalties. What has been
done in this case is to issue a distraint warrant and to charge the defaulter at the same time. This is clearly quite irregular as a charge can only be
framed after an attempt has been made to collect the amount by distraint and after the distraint is proved to be impracticable. It has been argued
for the counter petitioner that, because the accused in this case refused to reply to the registered notices demanding the amount due from him,
distraint was therefore impracticable and that it was for the President of the Union Panchayat to determine whether distraint was practicable or not.
I cannot agree with this view. Mere refusal to answer notices is no sort of proof that distraint is impracticable. A person may have enough of
property and yet refuse to reply. There is no evidence in this case that distraint was impracticable. Hence the procedure adopted was quite
incorrect as the preliminary condition required to charge the defaulter criminally was absent. Under the circumstances the conviction must be set
aside, and the fine, if paid, refunded.
