Dinesh Mishra V. Union Of India Through Assistant Commissioner, Central Tax And Central Excise

CRMP/1491/2018

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Dinesh Mishra, the proprietor of M/S Maa Banjari Transport, was accused of not paying service tax amounting to Rs. 5,33,67,123 during the financial years 2011-12 and 2012-13. The Central Excise and Service Tax department filed a complaint against him, which was treated as a charge sheet by the trial court without following the usual procedures for examining witnesses, as the complaint was filed by a public servant. Mishra challenged the trial court's decision in the revisional court, which upheld the trial court's decision. The High Court dismissed Mishra's petition, agreeing with the lower courts that the procedure followed was correct and that there was a prima facie case against him.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 820620 (HC-CHHATTISGARH)
• Appeal Type: Others
• Pronouncement Date: 22-01-2025
• Assessment Year: misc
• Other Referred Cases: State of Haryana v. Bhajan Lall
• Laws Referred To: Central Excise Act 1944, Service Tax, Financial Act 1944, Criminal Procedure Code 1973
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: A S KACHHWAHA
• Assessee Lawyers: RUPESH SHRIVASTAVA
• Keywords: Charge Sheet; Cognizance; Criminal Revision; Inherent jurisdiction; Judicial mind; Service tax
• Section: 205; 9; 244; 249; 200; 245; 83; 190; 247; 243; AA

Judgement Text

"1 2025:CGHC:4049 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1491 of 2018 Dinesh Mishra S/o Ramkripal Mishra Aged About 48 Years R/o Kalika Nagar, Police Station Tehsil Revenue And Civil District Kawardha (Kabirdham) Chhattisgarh ... Petitioner(s) versus Union Of India Through Assistant Commissioner, Central Tax And Central Excise, Near 32 Bunglow, Bhilai, Police Station Supela, District Durg Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Rupesh Shrivastava, Advocate For Respondent(s) : Mr. A.S. Kachhwaha, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 22.01.2025 1. Heard Mr. Rupesh Shrivastava, learned counsel for the petitioner. Also heard Mr. A.S. Kachhwaha, learned Panel Lawyer for respondent / Union of India. 2. The petitioner has filed this present petition praying for following relief:- 2 “I. This Hon’ble Court be pleased to call for the entire record pertaining to the case of the petitioner. 2. This Hon'ble Court may kindly be pleased to Set-aside the order dated 12/06/18 passed by the revision court in criminal revision no.66/18. 3. This Hon'ble court may kindly be pleased to hold that the order dated 12/12/17 passed by the Learned CJM, Durg in Criminal case No. 8/18 is unjust, illegal and invalid. 3A. That, this Hon'ble court may kindly be pleased to hold that, the complaint filed by the respondent before the trial court is not maintainable due to complaint filed against the proprietor without impleding the party to the firm and quashed the Criminal complaint case No.8/18, pending before Chief Judicial Magistrate, Durg. 4. Any other relief as deemed fit by this Hon'ble Court” 3. Brief facts necessary for disposal of the case are that the petitioner is the proprietor of the M/S Maa Banjari Transport, Kalika Nagar Kawardha, Chhattisgarh, during financial year 2011-12 and 2012- 13, he did not paid the amount of Rs. 5,33,67,123/- as Service Tax, thereafter the department has taken cognizance and after arresting the petitioner produced before Chief Judicial Magistrate, Durg and after order of the adjudication filed complaint case under section 9,AA of the Central Excise Act 1944 read with section 83 of the Service tax, Financial Act 1944, before the Chief Judicial Magistrate, Durg on date 12/12/2017. After filing of the complaint case, on same day, without following the procedure of section 243 to section 249 of the Criminal Procedure Code 1973, the Trial Court has directed for registration of the 3 case as a Criminal case, treated the complaint as a Final report/Charge sheet. Thereafter petitioner has filed revision petition before revisional court, which has dismissed by the order impugned. Hence, this present petition. 4. Learned counsel for the petitioner submits that the order passed by the trial court as well as revision court is contrary to the provision of Criminal Procedure Code 1973. Further, both the trial Court as well as revisional court ought to have seen that, the respondent Department has filed the complaint case, which cannot be treated as Police Case. The trial court has violated the provision of chapter XIX of the Criminal Procedure Code. Trial court has treated the case as police case and treated the complaint as charge sheet, which is against the provision of the Criminal Procedure Code. Also, the trial court has not examined any of the witnesses of the respondents and on the same day passed order for registration of the case in criminal register. The revision court ought to have seen that, as per the authorization letter, the assistant commissioner is only competent to file the complaint before trial court, but assistant commissioner has not appear before the court at the time of filing and the superintendent has filed the case before CJM. The revision court ought to have seen that, trial court has not examined the authorized person Assistant commissioner and in very negligent manner, passed order for registration of the case. Due to erroneous order passed by the learned trial court, the proceeding pending before the trial court is liable to be quashed. 4 5. Learned counsel for the respondent / Union of India opposes the submissions made by learned counsel for the petitioner and submits that in the present case there has been application of judicial minds twice wherein the petitioner was given ample opportunity to put forward his case and both the learned courts have observed that their prima facie exists a case against the petitioners, thus took cognizance of the offence. This is not a case wherein a complaint has been given to the police authorities and the police authorities have filed an FIR, in the present case, a complaint was filed before the Learned CJM and the Learned Judge after minutely scrutinizing the complaint with all the annexures has then decided to register a case against the petitioner which ultimately leads to the safe conclusion that the case of the petitioner is not one of a casual case of a chance FIR by the respondents but the prima facie grounds and evidence exist against him to be tried in a court of law which the learned courts below arrived after the apt and proper application of judicial mind. The attachment in the Complaint filed before the Learned CJM has not been filed with the petition. A person who is invoking inherent jurisdiction must come with clean hands and with equitable background. A party suppressing material facts and not coming with clean hands is not entitled to any relief under Section 482 of CrPC. It is noteworthy to mention here that the said attachments are inherent part of the said complaint and the very non filing of the same for the purpose of not letting this Hon'ble Court know about the evidences against the petitioner and then praying for relief from this Hon'ble Court amounts to gross misuse of the 5 statutory liberty of Section 482 of CrPC by the present petitioner. There is non- disclosure of material fact in a petition to quash the proceedings, the petition under Section 482 of CrPC is liable to be dismissed solely on that ground only. In the present case balance of convenience has to be looked into as it is not the case where the petitioner is languishing in jail; the petitioner is under no hardship and can very well afford to face the trial wherein the petitioner has failed to demonstrate why he should be given a special treatment of getting his complaint quashed under Section 482 of CrPC wherein all the criteria as upheld by the Apex Court in the landmark case of State of Haryana v. Bhajan Lall stands satisfied in favour of the respondent. He lastly submit that the learned trial Court as well as learned revisional court, after considering all the necessary aspects of the case, has rightly dismissed the revision filed by the petitioner, in which, no interference is sought for. 6. I have heard learned counsel for the parties and perused the documents appended with the petition. 7. From perusal of the records, it transpires that the impugned order dismissing the revision of the petitioner herein was passed by the revisional Court observing that the revision has been filed by the revisionist on the ground that the complaint was filed by the respondent under Section 9A, A Central Excise Act 1944 and Section 83 Service Tax Finance Act. The trial court registered a case against the revisionist without hearing the respondent and without any evidence, whereas Section 244 and 247 Cr.P.C. states about the procedure in respect of 6 cases instituted on the basis other than police report. Section 190 CrPC states about the process of cognizance of crime by Magistrates, according to which any First Class Magistrate or Second Class Magistrate takes cognizance of crime on receipt of a complaint of the facts which constitute the crime, on police report about such facts, on information received from any person other than a Police Officer or on his own knowledge that such crime has been committed. In this regard Section 200 CrPC tells the Magistrate taking cognizance of crime on complaint, It gives directions about the procedure according to which the Magistrate taking cognizance of an offence on a complaint, shall examine the complainant and if any witness is present, on oath and record the statement and take further action. The proviso to this section also states that when the complaint is made in writing, it shall not be necessary for the Magistrate to examine the complainant or the witnesses, if the complaint is made by a public servant acting or purporting to act in the discharge of his official duties or by the Court. Therefore, it is clear that Section 200 CrPC makes it necessary to examine the complainant and witnesses on presentation of the complaint, but the same section in its proviso states that it is not necessary to examine the complainant or witnesses on the complaint being made by a public servant or the court, since in this case also the Assistant Commissioner, Central Excise and Service Tax, Bhilai, being a government servant, has presented the complaint in the discharge of his official duties and as per the above details, in the event of a complaint being made by a government servant, there is no provision 7 for examination of the complainant and witnesses by the Magistrate, due to which the trial court registered the case on 12.12.17 on the presentation of the said complaint by the Assistant Commissioner, Central Excise and Service Tax, Bhilai against the revisionist, in which revision Court does not find any illegality or infirmity. 8. In compliance to the Court’s order dated 21.01.2025, a status report is filed before this Court by the Court of Chief Judicial Magistrate, Durg perusal of which transpires that Complaint Case No. 08/2018 was presented before the trial Court concerned on 12.12.2017 under the Income Tax Crime No. 02/2013. The accused appeared in the case on the said date itself and an application under Section 205 and 245 of the Cr.P.C. was presented on his behalf. His application under Section 205 of the Cr.P.C. was rejected by the trial Court concerned on 21.02.2018 and his application under Section 245 of the Cr.P.C. was rejected on 13.04.2018. Thereafter, due to the Corona pandemic, the case remained adjourned from 16.12.2020 to 03.03.2022.The case is currently scheduled for arguments on framing of charges 17.02.2025. 9. Considering the submissions advanced by the learned counsel for the parties and also considering the finding recorded by the revisional Court while affirming the order of the learned trial Court, I do not find any illegality or infirmity in the impugned order passed by the revisional Court. Further, as the case is currently scheduled for arguments on framing of charges 17.02.2025, hence, this Court does not find any good ground to interference in the matter at this stage. 8 10. Accordingly, this petition being devoid of merit is liable to be and is hereby dismissed. Sd/- Sd/- (Ramesh Sinha) Chief Justice Manpreet "