Deputy Comissioner Of Incometax, Special Range 2 v. The State Of Maharashtra And Ors

1/8 (901)APPLN 1163 TO 1179 OF 2012 Tilak IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1163 of 2012 WITHCRIMINAL APPLICATION NO.1164 OF 2012WITHCRIMINAL APPLICATION NO.1165 OF 2012WITHCRIMINAL APPLICATION NO.1166 OF 2012WITHCRIMINAL APPLICATION NO.1167 of 2012WITHCRIMINAL APPLICATION NO.1168 OF 2012WITHCRIMINAL APPLICATION NO.1169 OF 2012WITHCRIMINAL APPLICATION NO.1170 OF 2012WITHCRIMINAL APPLICATION NO.1171 of 2012WITHCRIMINAL APPLICATION NO.1172 OF 2012WITHCRIMINAL APPLICATION NO.1173 OF 2012 WITH CRIMINAL APPLICATION NO.1174 OF 2012WITH CRIMINAL APPLICATION NO.1175 of 2012WITHCRIMINAL APPLICATION NO.1176 OF 2012WITH CRIMINAL APPLICATION NO.1177 OF 2012 WITHCRIMINAL APPLICATION NO.1178 OF 2012WITHCRIMINAL APPLICATION NO.1179 OF 2012 2/8 (901)APPLN 1163 TO 1179 OF 2012 Deputy Comissioner of IncomeTax, Special Range 2 versus The State of Maharashtra and ors ...Applicant...Respondents ... Mr.Rajesh Desai, Advocate for the applicant in all the applications.Mrs.M.R.Tidke, APP for the State. Ms.Beerta Bajwa with Mr.Sharad Mulik i/b M/s.Lalla and Lalla, Advocate for respondent nos.2 and 3. CORAM : ABHAY M. THIPSAY, J. DATED : September 13, 2012 ORAL ORDER:- 1All these applications can be conveniently disposed of by this common order, as the facts in all these cases and the questions involved, are the same. 2The applicant is the original complainant. He was the Deputy Commissioner of Income Tax, at the material time. Claiming to be acting on behalf of the Income Tax Department, he had prosecuted the respondent nos.2 and 3 herein, by filing 17 separate complaints, in respect of offences punishable under section 138 of the Negotiable Instruments Act. 3The Learned Magistrate, on 29 December 2010, dismissed all the said complaint cases by separate orders, and acquitted the 3/8 (901)APPLN 1163 TO 1179 OF 2012 respondent nos.2 and 3, who were the accused in the said complaint cases, by invoking the provisions of section 256 of the Code of Criminal Procedure(hereinafter “the Code” for the sake of brevity). 4The applicant/appellant, being aggrieved by the said order of acquittal, is seeking leave to file an appeal, challenging the said orders of acquittal. 5For the sake of convenience, the applicant shall be referred to as ‘the complainant’ and respondent nos.2 and 3 as ‘the accused”. 6Though there is difference in respect of the amounts of cheques, and the details such as date, etc., in these cases, it is not necessary to make a reference to the facts of any particular case. The common aspects which need to be noted are as follows:- All the complaints had been filed in the year 1998. They were in respect of dishonour of the cheques, which had been given by the accused persons for discharging their liability towards the payment of Income tax. Since after a demand notice, the amounts of the cheques were not paid, separate complaints alleging commission of an offence punishable under section 138 of the Negotiable Instruments Act, came to be filed. 7The plea of the accused persons was recorded on different dates but, it is not in dispute that the same was recorded in the year1998,and in some cases in the year 1999. It is also not in dispute, 4/8 (901)APPLN 1163 TO 1179 OF 2012 that the cases had been, thereafter, adjourned for filing of the affidavit of the complainant, in lieu of examination-in-chief. It is also not in dispute that, from time to time, the cases were being adjourned for the purpose of filing the affidavit of evidence, in lieu of examination-in-chief of the complainant. 8The impugned order is similar in all the cases. For the sake of convenience, the order passed by the Magistrate in C.C.No. 3582/SS/2005 (Old C.C.No. 1407/S/1998), is being reproduced here: 7The plea of the accused persons was recorded on different dates but, it is not in dispute that the same was recorded in the year1998,and in some cases in the year 1999. It is also not in dispute, 4/8 (901)APPLN 1163 TO 1179 OF 2012 that the cases had been, thereafter, adjourned for filing of the affidavit of the complainant, in lieu of examination-in-chief. It is also not in dispute that, from time to time, the cases were being adjourned for the purpose of filing the affidavit of evidence, in lieu of examination-in-chief of the complainant. 8The impugned order is similar in all the cases. For the sake of convenience, the order passed by the Magistrate in C.C.No. 3582/SS/2005 (Old C.C.No. 1407/S/1998), is being reproduced here: The complainant and his learned advocate are absent. The matter is of 1998. The plea of the accused has been recorded on 23 July 1999 and thereafter, from time to time, the matter was adjourned for filing evidence. However, the complainant did not take any effective steps for further progress of this matter. In the circumstances, I think that it will be futile to drag on this matter unattended by the complainant for further more years and hence, the complaint is dismissed under section 256 of Cr.P.C for want of effective steps by the complainant and the accused are acquitted of the offence punishable under section 138 of Negotiable Instruments Act. Their P.R. Bonds, if any, stand cancelled. The case is disposed of .accordingly 5/8 (901)APPLN 1163 TO 1179 OF 2012 9A reading of the above order makes the view of the Magistrate clear. He observed that the case was pending since the year 1998, and the plea of the accused had been recorded in the year 1999. He also observed that, from time to time, the matter was adjourned for filing the affidavit of evidence on behalf of the complainant. The Magistrate was of the view that it was futile to drag on the matter which were unattended by the complainant forseveral years. After making these observations, the Magistrate recorded that the complaint was being dismissed under the provisions of section 256 of the Code of Criminal Procedure (hereinafter referred as ‘the Code’ for the sake of brevity) for want of effective steps by the complainant. 10I do not see anything improper or illegal in the order passed by the Magistrate. 11As already observed, the orders passed in the other matters are similar, with variations as regards the dates etc, in some cases, which variations are not material at all. Therefore, the above order, was taken as a representative order and the other impugned orders are not separately discussed. 12I have heard Mr.Rajesh Desai, learned counsel for the original complainant. In the course of arguments, he placed emphasis only on the loss which would be caused to the exchequer. He did not attempt to dispute the correctness of the facts observed by the Magistrate in his orders which are even otherwise clear from the 6/8 (901)APPLN 1163 TO 1179 OF 2012roznamas of the cases that have been annexed to each of the applications itself. 13Thus, it is a fact that for atleast 10 years, the complainant didnot file an affidavit of evidence, in lieu of examination-in-chief,though the cases had been continuously appearing on board, forthat purpose. Neither in the application for leave to appeal, any justification for the same has been given, nor one could be suggested by the learned counsel during the oral arguments. 6/8 (901)APPLN 1163 TO 1179 OF 2012roznamas of the cases that have been annexed to each of the applications itself. 13Thus, it is a fact that for atleast 10 years, the complainant didnot file an affidavit of evidence, in lieu of examination-in-chief,though the cases had been continuously appearing on board, forthat purpose. Neither in the application for leave to appeal, any justification for the same has been given, nor one could be suggested by the learned counsel during the oral arguments. 14A feeble attempt to put forth some case was made by the learned counsel for the complainant by contending that the last three years before the dismissal i.e. since the year 2007, even the accused and his advocate had been remaining absent. This does not seem to be entirely correct factually, as on some occasions, even during this period, the advocate for the accused had remained present before the Magistrate. However, that is not the crucial aspect of the matter. The learned Magistrate had not called uponthe accused to remain present; and the record of the case showsthat it was being adjourned for the purpose of filing the affidavit ofevidence. In fact, the Magistrate had repeatedly observed that nosteps were taken by the complainant, and the matters wereadjourned for enabling the complainant to take necessary steps. Onsome dates, the matters was specifically kept for dismissal, for wantof the affidavit of evidence, but the Magistrate was rather lenientwith the complainant, and even thereafter, had adjourned thematters. Under these circumstances, it does not lie in the mouth of the complainant that the complaint should not have been dismissed 7/8 (901)APPLN 1163 TO 1179 OF 2012 because the accused were also remaining absent for a period of about three years, out of the period of about 12 years, during which they were facing the prosecution. 15There is also another aspect of the matter. Though the learned Magistrate was entitled to acquit the accused under the provisions of section 256 of the Code, because of the absence of the complainant, he could have also acquitted the accused under the provisions of section 255 of the Code itself. The provisions of Chapter XX of the Code which deals with summons cases, make it clear that if the plea of the accused would be of ‘not guilty’ or where he is not convicted on his plea of guilty, the Magistrate has to adjourn the case for enabling prosecution to produce evidence. The Magistrate would be bound to take all the evidence as may be produced in support of the prosecution. 16Section 255 of the Code speaks of acquittal or conviction, after such evidence has been taken. 17It is however, obvious that if no evidence at all is produced by the complainant, the Magistrate would not be bound to adjourn the hearing from time to time and keep the matter pending indefinitely. The case must, at some point end by treating the prosecution evidence as closed. If no evidence would be produced, there would be no question of examining the accused, or calling upon him to lead defence evidence. The Magistrate on the repeated failure of the prosecution to produce evidence, in spite of giving repeated opportunities and also warnings on some occasion, would be 8/8 (901)APPLN 1163 TO 1179 OF 2012 entitled to acquit the accused for want of evidence. Thus, in these cases, when the complainant had failed to adduce evidence for a period of about 10 years, the Magistrate was certainly entitled to treat the prosecution evidence as closed, and acquit the accused under the provisions of section 255 of the Code itself. 18There is no merit in the applications. 8/8 (901)APPLN 1163 TO 1179 OF 2012 entitled to acquit the accused for want of evidence. Thus, in these cases, when the complainant had failed to adduce evidence for a period of about 10 years, the Magistrate was certainly entitled to treat the prosecution evidence as closed, and acquit the accused under the provisions of section 255 of the Code itself. 18There is no merit in the applications. 19As regards the loss that would be caused to the ex-chequer, first of all, it should be made clear that this cannot be a valid and legal reason for granting leave to appeal. Secondly, the Income Tax Act contains provisions which enable the Department/State to recover the amount of tax from an assessee. In fact, if the tax has not been paid by the accused persons, as is the case of the complainant, there are not only ways and means of recovering the same from the accused, under the provisions of Income Tax Act itself, but the accused can also be prosecuted for non-payment of the tax. Thus, there is no substance in this contention also. 20Leave refused. 21Applications are rejected (ABHAY M.THIPSAY,J)