Raju Verma V. Union of India and others

C482/430/2017

AI Insights

Raju Verma filed an application under Section 482 of the Cr.P.C. seeking to quash the criminal proceedings against him, which were initiated by the Income Tax authorities for alleged violations under the Income Tax Act. The proceedings were at the stage of final arguments in the Chief Judicial Magistrate's court in Dehradun. The applicant argued that the Income Tax authorities were not competent to initiate the prosecution, citing various judgments to support his claim. The Revenue opposed the application, highlighting that a similar application had been previously withdrawn by the applicant without seeking liberty to file a second application. The court, after considering the submissions and the legal precedents, decided not to quash the proceedings but directed the trial court to ensure a fair hearing and a reasoned judgment.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 800533 (HC-UTTARAKHAND)
• Appeal Type: Others
• Pronouncement Date: 29-03-2017
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax vs Bhupen Champak Lal Dalal & another, S. Harnam Singh Suri vs Central Board of Direct Taxes, P.V. Pai, B.R. Shetty, Biyar vs R.L. Raniwma, Deputy, Shree Singhvi Brothers & others vs Union of India & others, Shoraj Singh Ahlawat & others vs State of U.P. & another, Preeti Gupta & another vs. State of Jharkhand & another, Union of India vs. Prafulla Kumar Samal & another, Sajjan Kumar vs. Central Bureau of Investigation, State of Orissa vs. Debendra Nath Pandhi, Onkar Nath Mishra & others vs. State (NCT of Delhi) & another, Shakson Belthissor vs. State of Kerala & another, Rumi Dhar (Smt.) vs. State of West Bengal & another, Amit Kapoor vs Ramesh Chander and another, Rajiv Thapar and others vs. Madan Lal Kapoor
• Laws Referred To: Cr.P.C., Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: HARI BHATIA; R C ARYA
• Assessee Lawyers: PULAK MULLICK
• Keywords: Charge Sheet; Criminal complaint; Income Tax; Quash Proceedings; Summoning notice; Final arguments
• Section: 276C(1); 279(1); 482; 277

Judgement Text

"IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application (C-482) No. 430 of 2017 Raju Verma …………. Applicant versus Union of India & others …………. Respondents Mr. Pulak Raj Mullick, Advocate for the applicant. Mr. Hari Mohan Bhatia, Advocate for respondent no. 2 Mr. R.C. Arya, Standing Counsel for the State / respondent no. 3. U.C. Dhyani, J.(Oral) By means of present application / petition under Section 482 Cr.P.C., the applicant seeks to quash the entire proceedings of criminal complaint case no. 1513 of 2015 under Section 279(1), Union of India (through Deputy Commissioner of Income Tax) vs Raju Verma, pending in the court of Chief Judicial Magistrate, Dehradun under Section 276C(1) r/w Section 277 of Income Tax Act. A further prayer has also been sought to quash the notice of summoning dated 17.09.2016, charge sheet dated 30.11.2016 and dismissal of an application dated 20.03.2017, filed by the applicant, vide order dated 22.03.2017, by learned Chief Judicial Magistrate, Dehradun and all proceedings thereafter (copies Annexure 11 and 16 to the petition). 2) The applicant, therefore, not only seeks quashing of prosecution launched against him, but also charge sheet submitted against him. It has been informed to the Court that the criminal proceedings pending before learned Chief Judicial Magistrate, Dehradun are at the stage of final arguments. Learned counsel for the applicant is at pains to place judgments 2 rendered by Hon’ble Apex Court in Commissioner of Income Tax vs Bhupen Champak Lal Dalal & another, (2001) 248 ITR 830; judgment rendered by Delhi High Court in S. Harnam Singh Suri vs Central Board of Direct Taxes, ILR 1984 Delhi 45; judgment rendered by Karnataka High Court in P.V. Pai, B.R. Shetty, Biyar… vs R.L. Raniwma, Deputy…, ILR 1993 KAR 709 and judgment rendered by Rajasthan High Court in Shree Singhvi Brothers & others vs Union of India & others, 1991 187 ITR 219 Raj, to argue that Income Tax authorities were not within their competence to launch present prosecution against the applicant, which is going on in the court of Chief Judicial Magistrate, Dehradun. This Court need not discuss those decisions rendered by Hon’ble Apex Court and various High Courts, in view of the innocuous prayer, which has been advanced on behalf of the applicant and which will be taken up in a short while from now. 3) Learned counsel for the Revenue vehemently opposed present application under Section 482 Cr.P.C. and submitted that the petition thus filed is not maintainable. Learned counsel for the Revenue submitted that similar application under Section 482 Cr.P.C. was filed on behalf of the applicant and when the same was heard by learned co-ordinate Bench of this Court, learned counsel for the applicant sought permission to withdraw the same, which permission was granted to him. No liberty was sought for filing second application under Section 482 Cr.P.C. It is also the submission of learned counsel for the Revenue that in the relief clause identical prayer has been sought in present application under Section 482 Cr.P.C. and, therefore, present petition is not maintainable. 3 4) Learned counsel for the applicant replied that the earlier petition was filed against the summoning order of the applicant whereas present application under Section 482 Cr.P.C. has been filed against framing of charge and rejection of application of the applicant which was moved for deciding the preliminary objections in the light of judgments of Hon’ble Apex Court and various High Courts, quoted above. 5) The scope of discharge has been highlighted by the Hon’ble Apex Court in a catena of decisions, including the one in Shoraj Singh Ahlawat & others vs State of U.P. & another, AIR 2013 SC 52. 6) First of all, the Court has to see what is the scope of interference in framing of charge? The Hon’ble Supreme Court in Shoraj Singh Ahlawat (supra) while relying upon various decisions rendered in Preeti Gupta & another vs. State of Jharkhand & another (2010) 7 SCC 667, Union of India vs. Prafulla Kumar Samal & another, (1979) 3 SCC 4; Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368; State of Orissa vs. Debendra Nath Pandhi, (2005) 1 SCC 568; Onkar Nath Mishra & others vs. State (NCT of Delhi) & another, (2008) 2 SCC 561; Shakson Belthissor vs. State of Kerala & another, (2009) 14 SCC 466 and Rumi Dhar (Smt.) vs. State of West Bengal & another, (2009) 6 SCC 364, has observed as follows: “8. On behalf of the appellant it was argued on the authority of the decisions of this Court in Preeti Gupta and Anr. v. State of Jharkhand & Anr. (2010) 7 SCC 667, Union of India v. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4, Sajjan Kumar v. Central ureau of Investigation (2010) 9 SCC 368, State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath 4 Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561, Shakson Belthissor v. State of Kerala and Anr. (2009) 14 SCC 466, and Rumi Dhar (Smt.) v. State of West Bengal and Anr. (2009) 6 SCC 364, that while considering an application for discharge the Court can examine the evidence on record and discharge the accused persons if there is no possibility of the accused being found guilty on the basis of such evidence specially in cases where the accused produces unimpeachable evidence in support of his defence. It was also contended that while examining whether the Court should or should not discharge the accused, it must be remembered, that Section 498-A of the IPC is a much abused provision and that exaggerated versions of small incidents are often resented to falsely implicate, harass and humiliate the husband and his relatives. Applying the principles set out in the above decisions the appellants were, according to Ms. Geeta Luthra, learned counsel appearing for them, entitled to a discharge not only because there was an inordinate delay in the filing of the complaint by respondent No.1 but also because the statements made under Section 161 Cr.P.C. by the witnesses who were either planted or merely chance witnesses were contradictory in nature. It was argued that two Investigating Officers having investigated the matter and found the allegations to be false, there was no reason for the Court to believe the story set up by the wife who had suffered a decree for divorce in regard to which she had written to the Army Authorities a letter dated 2nd October, 2006 stating that she was not pursuing the matter in any Court. Appellant No.3-Naveen Ahlawat having got re- married on 30th October, 2006 the incident referred in the complaint was a fabrication which aspect the Courts below had failed to consider thus failing to 5 protect the appellants against harassment and the ignominy of a criminal trial. 9. On behalf of respondent No.2, it was per contra argued that her husband had filed a divorce petition against her in the Family Court, Meerut showing respondent No.2 to be residing with her parents at 327, Prabhat Nagar, Meerut, whereas she was actually residing with the appellants along with her daughter at No. 9, Tigris Road, Delhi Cantt, Delhi. It was further argued that appellant No.3 had obtained an ex parte decree order of divorce by fraudulent means and by forging signatures of respondent No.2, acknowledging receipt of the notice which she had never received from the concerned Court. This was conclusively established by the fact that the ex parte decree dated 31st May, 2006 had been eventually set aside by the Court in terms of order dated 28th July, 2007. Allegations regarding physical torture of respondent No.2 and her being abandoned on the road on the date of incident in question as also the allegation about dowry harassment were factually correct and made out a clear case for prosecuting the appellants. Appellant No.3 had, according to the counsel for the respondent, married one Aditi on 30th October, 2006. It was also argued that letter referred to by appellant No.3 as also letter dated 2nd November, 2006 allegedly written by respondent No.2 were forgeries committed by the appellants. The trial Court was, in the light of the available material, justified in refusing to discharge the accused persons and that the grounds for discharge set up by the appellants could be examined only after the case had gone through full-fledged trial. Reliance was placed upon a decision of this Court in Union of India v. Prafulla Kumar Samala and Anr. (1979) 3 SCC 5. 6 10. The case at hand being a warrant case is governed by Section 239 of the Cr.P.C. for purposes of determining whether the accused or any one of them deserved to be discharged. Section 239 is as under: “239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” 11. A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561. That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents in-law of the complainant-wife. The Magistrate had in that case discharged the accused 7 under Section 239 of the Cr.P.C, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words: “11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence .” (emphasis supplied) 12. Support for the above view was drawn by this Court from earlier decisions rendered in State of Karnataka v. L. Muniswamy 1977 Cri.LJ 1125, State of Maharashtra & Ors. v. Som Nath Thapa and Ors. 1996 Cri.LJ 2448 and State of M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In 8 Som Nath’s case (supra) the legal position was summed up as under: “if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. ” (emphasis supplied) 13. So also in Mohanlal’s case (supra) this Court referred to several previous decisions and held that the judicial opinion regarding the approach to be adopted for framing of charge is that such charges should be framed if the Court prima facie finds that there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence as if to determine whether the material produced was sufficient to convict the accused. The following passage from the decision in Mohanlal’s case (supra) is in this regard apposite: “8. The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.” 14. In State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568, this Court was considering 9 whether the trial Court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words: “18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced…... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby 10 changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police......... xx xx xx xx 23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material...” (emphasis supplied) 15. Even in Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364, reliance whereupon was placed by counsel for the appellants the tests to be applied at the stage of discharge of the accused person under Section 239 of the Cr.P.C., were found to be no different. Far from readily encouraging discharge, the Court held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The Court observed: “...While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law... 16. To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal and Anr. v. (1979) 3 SCC 4, where this Court was examining a similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under: “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge : 11 (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 7) Judging by the same yardstick, the Court does not find any merit in the grounds which have been taken on behalf of the applicant in present application under Section 482 Cr.P.C. The Court need not reproduce those grounds which 12 have been taken by the applicant, as the same are part of the record. 8) Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists. 9) No interference is called for in the orders under challenge at this stage, as would also be evident from the law laid down by Hon’ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330. Para 28 of the said ruling is reproduced here-in-below for convenience: “28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is 13 not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.” 10) The Court was taken through the contents of FIR. From a bare perusal of FIR, it is apparent that foundation of criminal offence is preliminary laid against the present applicant in the instant case. Criminal proceedings pending against him, therefore, should not be quashed. The jurisdiction under Section 482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate prosecution. 11) It is also the settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicant, in the instant case, is unable to pass those tests. 14 12) At this stage of dictation, learned counsel for the applicant made an innocuous prayer that learned Chief Judicial Magistrate, Dehradun should consider the arguments advanced or to be advanced at the time of final arguments, deal with the law placed before him by the applicant and should also pass a reasoned and speaking order. 13) Such innocuous prayer made by learned counsel for the applicant is worth accepting. 14) Learned Chief Judicial Magistrate, Dehradun is hereby directed to consider the arguments advanced or to be advanced at the time of final arguments, deal with the law placed before him by the applicant and should also pass a reasoned and speaking order. 15) With the direction as above, application under Section 482 Cr.P.C. stands disposed of. Liberty is, however, granted to the applicant to place all the factual pleas before the trial court for securing his acquittal, at an appropriate stage. 16) Let copy of this judgment be supplied to learned counsel for the applicant today itself on payment of usual charges. (U.C. Dhyani, J.) Dt. March 29, 2017. Negi "