RAJESH KUMAR V. UNION OF INDIA

WP(C)/15025/2019

AI Insights

The case involves a writ petition filed by Rajesh Kumar, who sought the return of \\u20b910,00,000/- seized by Excise officials from his employee, Selvaraj, during transit. The petitioner had withdrawn and borrowed this amount to start a tile manufacturing unit but was unable to purchase a machine and sent the money back with his employee. The Excise officials seized the money, leading to criminal proceedings. The petitioner initially sought the return of the money through a magistrate's court, which was dismissed due to the non-appearance of his employee and pending proceedings with the Income Tax Department. The High Court of Kerala intervened after the petitioner appealed, directing the magistrate to reconsider the application. The court found that the Income Tax Department had not initiated any proceedings against the petitioner and that the employee had no objection to the release of the money, leading to the current decision.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 676736 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 14-08-2020
• Assessment Year: misc
• Laws Referred To: Code of Criminal Procedure, 1973
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: H SUBHALEKSHMI; JOSE JOSEPH
• Assessee Lawyers: SURAJ S
• Keywords: Income Tax; Interim Custody; Seizure; Writ petition
• Section: 102; 451

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 14TH DAY OF AUGUST 2020/23RD SRAVANA, 1942 WP(C).No.15025 OF 2019(C) PETITIONER: RAJESH KUMAR,AGED 39 YEARS, S/O.DORAISWAMY,SANTHI NIVAS, PADINJHARETHARA, VALLANGHI, PALAKKAD 678 752. BY ADV. SRI.SURAJ.S RESPONDENTS: 1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX,KERALA REGION, CENTRAL REVENUE BUILDING, I S PRESS ROAD, COCHIN 682 018. 3 THE DIRECTOR GENERAL OF INCOME TAX(INV.) CENTRAL REVENUE BUILDING, I S PRESS ROAD, COCHIN 682 018. ADDL4 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, MUNICIPAL OFFICE ROAD, THRISSUR-680 001. IS IMPLEADED AS ADDITIONAL 4TH RESPONDENT AS PER ORDER DATED 07-08-2020 IN IA NO.1/2020 IN WP(C)15025/2019. R1 BY SMT.H.SUBHALEKSHMI, CGC R2-R4 SRI.JOSE JOSEPH, SC, IT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.15025/2019 : 2 : J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 14th day of August, 2020 The petitioner seeks to direct the 2nd and 3rd respondents, who are the Principal Chief Commissioner of Income Tax and the Director General of Income Tax respectively, to return the amount in their custody which amount originally belongs to the petitioner, within a time limit to be stipulated by this court. 2. The petitioner states that he is a resident of Nemmara. To start a tile manufacturing unit, the petitioner withdrew a sum of ₹7,85,000/- from his account with State Bank of India. The petitioner also borrowed a sum of ₹1,75,000/- from one Mr. Krishnakumar. On 09.04.2018, the petitioner along with his employee Selvaraj proceeded to Coimbatore to purchase a machine for the manufacturing unit. The petitioner could not purchase the machine. Therefore, the petitioner proceeded to WPC.15025/2019 : 3 : Salem from Coimbatore for some other business purpose and sent his employee Selvaraj along with the amount of ₹10,00,000/- to Palakkad. While Mr. Selvaraj was travelling with the said amount, Excise officials seized the amount in his possession. The Excise officials handed over the amount to the local police. Crime No.384/2018 under Section 102 of the Code of Criminal Procedure, 1973 was registered. 3. The petitioner submitted an application under Section 451 Cr.P.C. before the Judicial First Class Magistrate's Court-I, Palakkad for return of the amount. The employee Selvaraj also filed a statement in the court stating that he has no objection in the amount being released to the petitioner. However, the learned Magistrate dismissed the application on the ground that in spite of the summons issued, Selvaraj had not turned up. Thereupon, the petitioner approached this Court with Crl.M.C. No.4581/2018. This Court directed the Magistrate to consider the application of the petitioner for return of money. 4. The petitioner submits that his employee is a resident of Tamil Nadu and is illiterate. He is not responding to the WPC.15025/2019 : 4 : summons issued by the Magistrate's Court. The petitioner has produced sufficient proof of the source of the amounts. The Income Tax Department has not issued any notice to the petitioner and no proceedings have been initiated against the petitioner by the Income Tax Department. Stating all the above facts the petitioner submitted Ext.P1 representation to the 2nd respondent. However, The respondents have not released the money to him. In the circumstances, the petitioner seeks to direct respondents 2 and 3 to return the amount in their custody which originally belongs to the petitioner. 5. Heard . 6. From the pleadings in the writ petition, it is seen that the Excise officials have seized ₹10,00,000/- from Selvaraj on the basis of which a crime has been registered. The said Selvaraj has filed a statement to the effect that he has no objection in releasing the amount to the petitioner. The learned Magistrate noted that the Income Tax Department has stated that the petitioner did not turn up and explain the source of the income. On that basis, the learned Magistrate did not find any WPC.15025/2019 : 5 : bona fides in the application submitted by the petitioner. The learned Magistrate directed the Deputy Director of Income Tax that he shall file an affidavit to the effect that if it is found in the criminal proceedings that the department has no right to hold the seized cash, the same will be returned to the court. 7. The learned Magistrate has declined the application of the petitioner for interim custody of the money due to the pendency of proceedings in the Income Tax Department. However, the Income Tax Department has not initiated any proceedings against the petitioner. Though Mr. Selvaraj has not responded to the summons issued, he has filed a statement to the effect that he has no objection in releasing money to the petitioner. The said Selvaraj is illiterate and a resident of Tamil Nadu. If the money does not belong to him, naturally he may not respond to the summons. In the circumstances, to meet the ends of justice, it is necessary that this Court pass appropriate orders on interim custody of the amount. Accordingly, the writ petition is disposed of directing the petitioner to file an undertaking before the Judicial First WPC.15025/2019 : 6 : Class Magistrate's Court-I, Palakkad to the effect that if the amount of ₹10,00,000/- is released by the Income Tax Department, the petitioner shall produce the said amount before the Judicial First Class Magistrate's Court-I, Palakkad as and when required by the court. If the petitioner approaches the additional 4th respondent-Deputy Commissioner of Income Tax, Central Circle, Thrissur, along with a copy of the said affidavit and executes a bond with the Deputy Commissioner to the effect that the petitioner shall make available the said amount of ₹10,00,000/- as and when the Department of Income Tax initiates any proceedings on the issue and requires the petitioner to deposit the said amount. The additional 4th respondent shall release the amount within a period of one month from the date of production of copy of the affidavit as stated above and the petitioner executing a bond in favour of the Department of Income Tax. Sd/- N. NAGARESH, JUDGE aks/17.08.2020 WPC.15025/2019 : 7 : APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE REPRESENTATION DATED 27.3.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P2 A TRUE COPY SUMMONS DATED 04.09.2019 ISSUED TO THE PETITIONER BY THE RESPONDENT. EXHIBIT P3 A TRUE COPY OF SUMMONS DATED 04.09.2019 ISSUED TO MR.SELVARAJ BY THE RESPONDENTS. ncd "