Crl.rev.pet/1019/2014 Of Babu C George v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 31ST DAY OF OCTOBER 2014/9TH KARTHIKA, 1936 Crl.Rev.Pet.No.1019 of 2014 --------------------------------------- Crl.MP No.1001/2014 in CC NO.466/2007 of ADDITIONAL CHIEF JUDICIALMAGISTRATE (ECONOMIC OFFCENCES),ERNAKULAM. REVISION PETITIONER/PETITIONER/ACCUSED: --------------------------------------------------------------------- BABU C. GEORGE,AGED 66 YEARS,S/O.P.G.GEORGE,CHANDRATHIL HOUSE, PALARIVATTOM. BY ADVS.SRI.JOHNSON ABRAHAM SRI.NELSON ABRAHAM RESPONDENTS/COMPLAINANT: ----------------------------------------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX,CENTRAL CIRCLE-1,ERNAKULAM. 2. STATE OF KERALA,PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX R2 BY PUBLIC PROSECUTOR SMT.LILLY LESLEY THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: pk K. Ramakrishnan, J. ============================== Crl.R.P.No.1019 of 2014==============================Dated this, the 31[st] day of October, 2014. O R D E R Petitioner in Crl.M.P.No.1001/14 in C.C.No.466/07 on the file of the Additional Chief Judicial Magistrate, (EconomicOffences), Ernakulam is the revision petitioner herein. 2.The case was taken on file on the basis of acomplaint filed by the first respondent herein against thepetitioner alleging commission of offences under Section 277of Income Tax Act and Section 181 of Indian Penal Code. 3.The petitioner filed Crl.M.C.No.1833/08 before this court for quashing the proceedings. But, this court disposed ofthat petition leaving open the right of the petitioner to applybefore the court below for discharge. It is on that basis, thepetitioner filed Crl.M.P.No.1001/14 before the court belowseeking discharge under Section 245 of Code of CriminalProcedure and that petition was dismissed by the court belowby the impugned order which is being challenged by thepetitioner by filing this revision petition. 4.Heard both sides. 5.The Counsel for the petitioner submitted that the Crl.R.P.No.1019 of 2014 : 2: order passed by the court below is not legal and even on thebasis of the documents produced, the offences are notattracted. So, the court below should have allowed theapplication. Further, the Counsel also submitted, if the courtfelt that without taking evidence under Section 244 of Code ofCriminal Procedure, the petition should not have beenconsidered at that stage, then, the learned magistrate shouldhave mentioned that without going in to the merit anddisposed of that application. 6.On the other hand, the Counsel for the respondentsubmitted that there is no illegality committed. Further, theright of the petitioner to argue for discharge even after precharge evidence is not shut out by this order. 7.It is an admitted fact that on the basis of theprivate complaint filed by the Income Tax Department throughthe first respondent against the revision petitioner, the abovecase was taken on file as C.C.No.466/07 by the AdditionalChief Judicial Magistrate, (Economic Offences), Ernakulamalleging offence under Section 277 of the Income Tax Act andSection 181 of Indian Penal Code. It is also an admitted factthat the petitioner filed a petition before this court as Crl.R.P.No.1019 of 2014: 3: 6.On the other hand, the Counsel for the respondentsubmitted that there is no illegality committed. Further, theright of the petitioner to argue for discharge even after precharge evidence is not shut out by this order. 7.It is an admitted fact that on the basis of theprivate complaint filed by the Income Tax Department throughthe first respondent against the revision petitioner, the abovecase was taken on file as C.C.No.466/07 by the AdditionalChief Judicial Magistrate, (Economic Offences), Ernakulamalleging offence under Section 277 of the Income Tax Act andSection 181 of Indian Penal Code. It is also an admitted factthat the petitioner filed a petition before this court as Crl.R.P.No.1019 of 2014: 3: Crl.M.C.No.1833/08 to quash the proceedings and this courtdisposed of the petition leaving open the right of the petitionerto file an application under Section 245 of the Code of CriminalProcedure for discharge and it is on that basis, the petition hasbeen filed. It may be mentioned here that it is seen from theorder of the court below itself that no pre charge evidence hasbeen taken in this case. So, only after taking evidence underSection 244 of Code of Criminal Procedure of the complainantand their witnesses and after considering the documents andevidence, court need consider whether charge has to beframed in this case or not and the revision petitioner has to bedischarged or not and only thereafter, the question of framingcharge or discharging the accused under Section 245 of Codeof Criminal Procedure will arise. So, under the circumstances,the court below ought not have disposed of that application fordischarge, especially, when it was observed in the order itselfthat without taking evidence under Section 244 of Code ofCriminal Procedure and without giving an opportunity to thecomplainant to produce all documents and witness, thequestion of discharge as claimed by the petitioner cannot beconsidered at that stage. The right of the revision petitioner to Crl.R.P.No.1019 of 2014: 4: argue for discharge after pre charge evidence adduced by thecomplainant, it not shut out by this order as well. So, underthe circumstances, this court feels that the petition can bedisposed of as follows: Considering the fact that, the case is of the year 2007,the lower court is directed to expedite the enquiry inC.C.No.466/07 regarding the pre charge evidence to beadduced by the complainant under Section 244 of Code ofCriminal Procedure and then, consider the question ofdischarge as pleaded by the petitioner untrammeled by theobservation made by the learned magistrate in the impugnedorder. The court below is directed to complete the enquiryunder Section 244 of the Code of Criminal Procedure andconsider the question of discharge or framing charge underSection 245 of Code of Criminal Procedure as expeditiously aspossible at any rate within three months from today. It is alsosubmitted by the Counsel for the revision petitioner that, asdirected by this court in Crl.M.C.No.1833/08, the revisionpetitioner has filed an application for personal exemptionunder Section 205 of Code of Criminal Procedure and noorders have been passed and the learned magistrate is Crl.R.P.No.1019 of 2014 : 5: insisting for the presence of the petitioner. On interactionwith the Counsel for the revision petitioner, it is revealed thatthe accused had not appeared and taken bail. So, he will haveto appear and take bail and after taking bail, the application for personal exemption already filed is directed to be disposedof by the learned magistrate in accordance with law on thedate of granting bail to the petitioner itself. With the above observation and direction, the petition isdisposed of. Parties are directed to appear before the courtbelow on 25.11.2014. Office is directed to communicate this order to the courtbelow at the earliest. Sd/-K.Ramakrishnan, Judge. Bb [True copy] P.A to Judge