STATE OF KERALA AND OTHERS. versus C. M. FRANCIS & CO.

Citation: [1961] 3 S.C.R. 181 · Decided: 12-12-1960 · Supreme Court of India · Bench: J.L. KAPUR · Disposal: Appeal(s) allowed

Judgment (excerpt)

3 S.C.R. SUPREME COURT REPORTS 
181 
STATE OF KERALA AND OTHERS. 
v. 
C. M. FRANCIS & CO. 
(J. L. KAPUR, M. HIDAYATULLAH and 
J. c. SHAH, JJ.) 
Sales Tax-Recovery of-Remedies open to the authorities-
Code of Criminal Procedure, 1898 (V of 1898, s. 386(r)(b)-Travan-
core Cochin General Sales Tax Act (XF of II25 Malayalam Era), 
SS. I] and 19. 
The respondents were assessed to sales tax under the 
Travancore Cochin General Sales Tax Act and proceedings were 
started against them under s. 13 of the Act for the recovery of 
the arrears of Sales Tax as if they were arrears of land revenue. 
The proceedings were not fruitful. Thereafter a prosecution under 
s. 19 of the Act was instituted against the partners who plead-
ed guilty and the magistrate issued warrants under s. 386(1)(h) 
of the Code of Criminal Procedure to the Collector of the District 
for the recovery of the arrears of sales tax as if they were a fine 
imposed by that court. The authorities again started proceedings 
under s. 13 of the Act read with Travancore Cochin Revenue 
Recovery Act, 195r, and certain properties were attached. The 
respondents urged that in as much as they were prosecuted 
under s. 19 of the Act and the magistrate had issued warrants, 
the procedure for recovery under s. 13 of the Act was not 
available. 
The question was whether s. 19 was to be taken to prevail 
over s. 13 of the Act. 
Held, that neither of the remedies for recovery of arrears of 
tax as laid down by ss. 13 and 19 of the Travancore Cochin 
General Sales Tax Act was destructive of each other and unless 
the statute laid down in express words or by necessary 
implica~ 
lion that one remedy was to the exclusion of the other, both the 
remedies were open to the authorities and they could resort to 
any one of them at their option. 
Shankar Sabai v. Din Dial, I.L.R., [1889] 12 All. 409 (F.B.}, 
418, approved. 
CIVIL APPELLATE JURISDICTION: 
Civil Appeal No. 
279 of 1959. 
Appeal by special leave from the judgment and 
order dated November 18, 1957, of the Kerala High 
Court in 0. P. No. 87 of 1956. 
A. V. Sayed Muhammad, for the appellants. 
The respondents did not appear. 
December 12. 
State of Kerala 
and Ors. 
182 
SUPREME COURT REPORTS 
[1961] 
1960. December 12. The Judgment of the Court 
was delivered by 
HIDAYATULLAH, J.-This is an appeal with the spe-
v. 
cial leave of this Court against the J
0udgment of the 
C. M. Ft'ancis High' Court of Kerala dated November 18, 1957, 
&Co. 
passed in a petition for writ of prohibition under Art. 
Hidayatullah J. 226 of the Constitution. ·The State of Kerala and the 
Tahsildars of Kottayam and Kanjirappally Taluks 
are the appellants, and C.M. Francis & Co., a partner-
ship firm, is the first respondent, and the partners of 
the firm are the remaining respondents. 
The respondents were doing business in hill produce 
like pepper, ginger, betelnuts etc., and were assessed 
to sales tax under the Travancore-Cochin General 
Sales Tax Act XI of 1125 (referred to as the Act), for 
the years 1950 to 1954. The respondents have to pay 
a sum of Rs. 1,01,716-4-3 as tax. In 1954, proceedings 
were started against them under s. 13 of the Act, 
which provides that if the taxis not paid as laid down 
in that section, the whole of the amount or such pai-t 
thereof as remains due, may be recovered as if it were 
an arrear of land revenue. It appears that the pro-
ceedings were not fruitful, and a prosMution under 
s. 19 of the Act was instituted against the partners in 
the Court of the First Class Magistrate, Ponkunnam. 
Respondents 2 to 5 pleaded guilty, and the Magistrate 
passed an order on October 18, 1955 as follows: 
"The sentence or other final order: A 1 to 4 sen-
tenced to pay a fine of Rs. 50/- each and in default to 
undergo S:' I. for one month each. A 1 to 4 admit 
that they failed to pay on demand by the compe-
tent authority, a sum of Rs. 1,01,716-4-3 due from 
them as sales tax for the years 1950 to 1954. This 
amount will be realised from A· 1 to 4, jointly or 
severally, individually or collectively under the 
provisions of the Cr.P.C. for realisation of criminal 
· fines, as if it were a fine imposed by this court on 
each, accused individually and all of them together. 
Takll steps for the realisation." 
Witrrants under s. 386 (1) (b) of the Code of Crimi-
nal Procedure were issued to the Collector of Kot-
tayam District for recovery of the arrears of sales tax. 
3 S.C.R. SUPREME COIJRT REPORTS 
183 
The authorities, how

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