Hema Mohnot v. State By The Chief Commissioner(Administration) And Commissionerof Income Tax, Chennai.34

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:21.01.2013 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRANCrl.R.C.No.1599 of 2007 Hema Mohnot ...Petitioner/Accused 12 Versus State by the Chief Commissioner(administration) and Commissionerof Income Tax, Chennai.34. ...Respondent/Complainant PRAYER: Criminal Revision Petition filed under Section 397 and 401 ofthe Criminal Procedure Code against the order passed by the learnedAddl. Chief Metropolitan Magistrate, E.O.I, Egmore, Chennai-8 inM.P.No.1914 of 2007 in E.O.C.C.No.179 of 1985 dt. 7.8.2007. For Petitioner :Mr.V.V.Sairam for M/s.R.Anhamuthu For Respondent :Mr.K.Ramasamy Special Public Prosecutor (Taxes) ORDER This revision is filed against the order of dismissal of thedischarge petition, passed by the learned Additional ChiefMetropolitan Magistrate, E.O.I, Egmore, Chennai in M.P.No.1914 of2007 in E.O.C.C.No.179 of 1985 dated 07.08.2007. 2.The learned counsel appearing for the revision petitionerwould contend that the petitioner has been falsely and unnecessarilyimplicated in the case and that she has no nexus, but, for the factthat she is the wife of the first accused. He would further contendthat in this case, even according to the complaint itself barring oneallegation of encashment of a cheque for a sum of Rs.3,690/- from afictitious person, there is no other allegation as against thepetitioner. 3.The learned counsel appearing for the revision petitionerwould further contend that, earlier the petitioner filed a petitionto discharge, but it was dismissed and against that, a revision waspreferred before this Court and that was also dismissed, butsubsequently, the petitioner brought to the notice of this Court thatthere is an assessment order pertaining to the year 1984-85 which isthe relevant year for the complaint made by the Income Tax Authorityand because of the subsequent development, a second application fordischarge was filed. But even that was dismissed at a thresholdwithout giving any opinion on the order, namely, the subsequentassessment order. Therefore, the lower court has committed graveerror in coming to the conclusion without looking into the order andno finding is given but dismissed the discharge petition only on theground that the earlier application for discharge was dismissed andit was upheld by this Court. Aggrieved against the same, the presentrevision is filed. 4.The learned Special Public Prosecutor (Taxes), brought to thenotice of this Court that it is a classic example of a case beingdragged on for years together. In this connection, he also referredto the revision filed by the very same parties, which has beendismissed by this Court and which is reported in [2006] 285 ITR 402(Mad) (Hema Mohnot versus State by Chief Commissioner of Income-Tax(Administration)), in which also this Court has held that this is aclassic example as to how the criminal case could be protracted forseveral decades. Inspite of such an finding given by this Court,even, as early as in the year 2006, the petitioner had the audacityto file yet another discharge petition citing the very same reasonsand only adding that the assessment order for the year 1984-85 isfiled which is nothing but to drag on the matter. 5.In this connection, the learned Special Public Prosecutor(Taxes), would also vehemently point out referring to the variouspages in the complaint, namely, paragraph 2.15 in page no.5,paragraph 5.1 in page no.9, paragraph 5.1 in page no.10, paragraph5.2 in page no.10, paragraph 5.3 in page no.12, paragraph 14.2 inpage no.24, paragraph 17.3 in page no.28 and paragraph 19 in pageno.31 which says about A12 the present petitioner and that thepetitioner is not only the wife of the first accused but she is alsoa party to the crime. The house was raided and many documents wereseized. Therefore, at the time of framing of the charge what allrequired is only to have a prima facie evidence to record. There isa charge in this case, the offence has been clearly made out. 6.The learned Special Public Prosecutor (Taxes), would furthercontend that even by the decision of this Court, which is reported in[2006] 285 ITR 402 (Mad) (Hema Mohnot versus State by ChiefCommissioner of Income-Tax (Administration)), this Court has come tothe conclusion that there is a prima facie evidence and also brought https://hcservices.ecourts.gov.in/hcservices/ to the notice of this Court that merely by production of a document,the Court need not consider those extra-ordinary documents for thepurpose of arriving to frame a charge. In this connection, he alsorelied upon a decision of the Hon'ble Supreme Court reported in(2012) 9 SCC 460 (Amit Kapoor Vs. Ramesh Chander), wherein, theHon'ble Supreme Court has categorically held the guideline in respectof discharge petitions and for quash petitions. One such guidelineis for discharge, the court cannot take into consideration externalmaterials given by an accused for reaching the conclusion that nooffence was disclosed or that there was possibility of acquittal.The court has to consider the record and documents annexed therewithby the prosecution. 7.The learned Special Public Prosecutor (Taxes), would furthercontend that, the petitioner has been dragging on the case and onearlier occasions, the other accused have dragged on. Thispetitioner lost her battle in the first time and has come with asecond one. Above all, the petitioner is a fugitive and Non-BailableWarrant is pending atleast for the past six months and the petitionerdid not even appear for question under Section 313 Cr.P.C. Inspiteof all these things, a classic case of inordinate delay in defendingthe case has been made by the petitioner and hence, it was rightlydismissed by the lower court and hence, prayed for dismissal of therevision. 8.Heard both sides. By consent of both the parties, the mainrevision itself is taken up for final disposal. 9.This is an unfortunate case which has been kept pending inthis Court for the past several years. Inspite of the earlierstringent order of this Court as reported in [2006] 285 ITR 402 (Mad)(Hema Mohnot versus State by Chief Commissioner of Income-Tax(Administration)), the petitioner had filed the application onceagain before the lower court for the very same relief of discharge.Since the main case is pending, this Court does not want to divulgeor go into all the details, suffice to state that while consideringthe discharge petition, the lower court is well within the limits tofind out whether prima facie case is made out. They need not dwellinto the documents produced or otherwise produced by the prosecution.In this case, the accused participated in the crime by getting refundcertificate of the Income Tax under fictitious name. 10.It is suffice to state that this court in the revision filedby the very same parties which is reported in [2006] 285 ITR 402(Mad) (Hema Mohnot versus State by Chief Commissioner of Income-Tax(Administration)), has held as follows: 10.It is suffice to state that this court in the revision filedby the very same parties which is reported in [2006] 285 ITR 402(Mad) (Hema Mohnot versus State by Chief Commissioner of Income-Tax(Administration)), has held as follows: "From the judgments of the Hon'ble Supreme Court,cited above, it is clear that the question whether a chargeshould be framed or not when the court is considering undersection 245 (1), Cr.P.C., the court has to take intoaccount whether any case has been made out against theaccused which if unrebutted would warrant his conviction.The Hon'ble Supreme Court has gone to the extent of sayingthat the trial court has to consider the question as toframing of charge on a general consideration of thematerials placed before him by the investigating policeofficer. Even a very strong suspicion founded uponmaterials before the magistrate, which leads him to form apresumptive opinion as to the existence of the factualingredients constituting the offence alleged, may justifythe framing of charge against the accused in respect of thecommission of that offence. In this case there is a strong circumstance to presumethat a prima facie case exists against the petitioner (i)as she is the wife of A1; (ii) several documents wereseized from the residential house occupied by her alongwith her husband; (iii) a cheque for Rs.3,690 issued in thename of her company has been encashed by her, the saidcheque was issued by a fictitious person; (iv) theallegation is that she conspired along with her husband andother accused, of which some of them are employees of theRace Club to dupe the Income-tax Department for the purposeof making unlawful gain by producing bogus tax deducted atsource certificates or original tax deducted at sourcecertificates in the name of fictitious persons by openingbank accounts in the name of fictitious persons indifferent banks and therefore, it cannot be easily heldthat there is no prima facie case as against the petitionerat this stage. As rightly held by the learned Special PublicProsecutor, revisions of this nature are filed only toprotract the proceedings. Crl.M.P.Nos.3409, 3412, 3679, 3695, 3711 and 3879 of1985 filed by various accused persons have been dismissedby this court and the same is reported in Kumudini Subhanv. Chief Commissioner (Admn.)[1992] 198 ITR 390. Therevision petitioner herein also filed Crl.M.P.Nos.4181 of1988,. Her mother-in-law, A-11 also filed Crl.M.P.No.6457of 1988. Both the Crl.M.P.s were also dismissed by thiscourt, which is also reported in [1992] 198 ITR 410.Similarly, the petition filed by A-1 was also dismissed bythis court, as reported in [1992] 195 ITR 72. The main crl. Original petitions in Crl.O.P.Nos.9363 of 1989, 7683of 1991 and 8990 of 1993, filed by A-6, A-13 and A-19respectively were also dismissed by this court with adirection to the trial court to dispose of the caseexpeditiously. Though this direction was issued in thesaid order as on January 12, 1994, the stalemate continuesand one after another petitions are filed to protract theproceedings. It is now by A-12. The contentions raised byA-12 now had been dismissed by this court (see [1992] 198ITR 410). Again and again such kind of petitions are filedby the accused at different forums on the same grounds andthe purpose could be only to protract the proceedings.This is a classic example as to how the criminal case couldbe protracted for several decades. crl. Original petitions in Crl.O.P.Nos.9363 of 1989, 7683of 1991 and 8990 of 1993, filed by A-6, A-13 and A-19respectively were also dismissed by this court with adirection to the trial court to dispose of the caseexpeditiously. Though this direction was issued in thesaid order as on January 12, 1994, the stalemate continuesand one after another petitions are filed to protract theproceedings. It is now by A-12. The contentions raised byA-12 now had been dismissed by this court (see [1992] 198ITR 410). Again and again such kind of petitions are filedby the accused at different forums on the same grounds andthe purpose could be only to protract the proceedings.This is a classic example as to how the criminal case couldbe protracted for several decades. In the judgment in Om Wati v. State [2001] 4 SCC 333,at page 341, the hon'ble Supreme Court held as follows: "12.We would again remind the High Courts oftheir statutory obligation to not to interfere atthe initial stage of framing the charges merely onhypothesis, imagination and far-fetched reasonswhich in law amount to interdicting the trialagainst the accused persons. Unscrupulouslitigants should be discouraged from protractingthe trial and preventing culmination of thecriminal cases by having resort to uncalled forand unjustified litigation under the cloak oftechnicalities of law." As far as this case is concerned, the petitioner'searlier petition was dismissed by this court as mentionedearlier and this court has become functus officio and isdisentitled to entertain a fresh prayer for the same reliefunless the former order of final disposal is set aside by acourt of competent jurisdiction in a manner prescribed bylaw. The court becomes functus officio the moment theofficial order disposing of a case is signed. Such anorder cannot be altered except to the extent of correctinga clerical or arithmetical error as observed by the hon'bleSupreme Court in Hari Singh Mann v. Harbhajan Singh Bajwareported in AIR 2001 SC 43." 11.The only argument put forth by the petitioner is that insofaras the cheque of Rs.3,690/-, it was covered in the earlier order.Therefore, that does not need any revision at this stage. Further hewould only state that he had produced the income tax assessment orderfor the particular year 1984-85, in which there is no adverse remarkregarding the cheque of Rs.3,690/-, no finding has been given by theCourt below. https://hcservices.ecourts.gov.in/hcservices/ 12.An argument was raised by the learned Special PublicProsecutor (Taxes), that insofar as the documents producedexternally, there is no need to consider the same as per the decisionof the Hon'ble Supreme Court reported in 2004 AIR SCW 6813 (State ofOrissa Vs. Debendra Nath Padhi). 13.In this connection, this Court would like to quote thedecision of the Hon'ble Supreme Court reported in (2000) 2 SCC 57(State of Madhya Pradesh Vs.S.B.Johari and others), wherein inparagraph no.4, it was held as follows:- "4........ The Court is not required toappreciate the evidence and arrive at theconclusion that the materials produced aresufficient or not for convicting the accused. Ifthe court is satisfied that a prima facie case ismade out for proceeding further then a charge hasto be framed. The charge can be quashed if theevidence which the prosecutor proposes to adduceto prove the guilt of the accused, even if fullyaccepted before it is challenged by cross-examination or rebutted by defence evidence, ifany, cannot show that the accused committed theparticular offence." 14.Similarly, in the decision reported in (2001) 4 SCC 333 (OmWati (Smt) and another vs. State, through Delhi Admn., and others),it was held as follows:- "4........ The Court is not required toappreciate the evidence and arrive at theconclusion that the materials produced aresufficient or not for convicting the accused. Ifthe court is satisfied that a prima facie case ismade out for proceeding further then a charge hasto be framed. The charge can be quashed if theevidence which the prosecutor proposes to adduceto prove the guilt of the accused, even if fullyaccepted before it is challenged by cross-examination or rebutted by defence evidence, ifany, cannot show that the accused committed theparticular offence." 14.Similarly, in the decision reported in (2001) 4 SCC 333 (OmWati (Smt) and another vs. State, through Delhi Admn., and others),it was held as follows:- "7. Section 227 of the Code provides that ifupon consideration of record of the case and thedocuments submitted herewith, the Judge considersthat there is no sufficient ground for proceedingagainst the accused, he shall discharge theaccused for which he is required to record hisreasons for so doing. No reasons are required tobe recorded when the charges are framed againstthe accused persons.... 8. At the stage of passing the orders interms of Section 227 of the Code, the Court hasmerely to peruse the evidence in order to find outwhether or not there is sufficient ground forproceeding against the accused. If uponconsideration the Court is satisfied that a primafacie case is made out against the accused, theJudge must proceed to frame charge in terms ofSection 228 of the Code. Only in a case where it is shown that the evidence which the prosecutionproposes to adduce to prove the guilt of theaccused, even if fully accepted before it ischallenged in the cross-examination or rebutted bydefence evidence cannot show that the accusedcommitted the crime, then and then alone the courtcan discharge the accused. The court is notrequired to enter into meticulous consideration ofevidence and material placed before it at thisstage..... 10. A three Judge bench of this Court inSupdt. & Remembrancer of Legal Affairs, W.B. Vs.Anil Kumar Bhunjai reminded the Courts that at theinitial stage of framing of charges, theprosecution evidence does not commence. The courthas, therefore, to consider the question offraming the charges on general considerations ofthe material placed before it by the investigatingagency. At this stage, the truth, veracity andeffect of the judgment which the prosecutionproposes to adduce are not to be meticulouslyjudged. The standard of test, proof and judgmentwhich is to be applied finally before finding anaccused guilty or otherwise is not exactly to beapplied at the stage of framing the charge. Evenon the basis of a strong suspicion founded onmaterials before it, the court can forma apresumptive opinion regarding the existence offactual ingredients constituting the offencealleged and in that event be justified in framingthe charges against the accused in respect of thecommission of the offence alleged to have beencommitted by them...." 15.As per the decision cited supra, it is known that the ThreeJudge Bench of the Hon'ble Supreme Court, in a case has held that,even on the basis of a strong suspicion founded on materials beforeit, the court can forma a presumptive opinion regarding the existenceof factual ingredients constituting the offence alleged and in thatevent be justified in framing the charges against the accused inrespect of the commission of the offence alleged to have beencommitted by them. 16.As per the latest decision of the Hon'ble Supreme Courtreported in (2012) 9 SCC 460 (Amit Kapoor Vs. Ramesh Chander),wherein, the Hon'ble Supreme Court has culled out various principles,which is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ 15.As per the decision cited supra, it is known that the ThreeJudge Bench of the Hon'ble Supreme Court, in a case has held that,even on the basis of a strong suspicion founded on materials beforeit, the court can forma a presumptive opinion regarding the existenceof factual ingredients constituting the offence alleged and in thatevent be justified in framing the charges against the accused inrespect of the commission of the offence alleged to have beencommitted by them. 16.As per the latest decision of the Hon'ble Supreme Courtreported in (2012) 9 SCC 460 (Amit Kapoor Vs. Ramesh Chander),wherein, the Hon'ble Supreme Court has culled out various principles,which is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "27............... At best and upon objectiveanalysis of various judgments of this Court, weare able to cull out some of the principles to beconsidered for proper exercise of jurisdiction,particularly, with regard to quashing of chargeeither in exercise of jurisdiction under Section397 or Section 482 of the Code or together, as thecase may be: 27.1.Though there are no limits of the powersof the Court under Section 482 of the Code but themore the power, the more due care and caution isto be exercised in invoking these powers. Thepowerofquashingcriminalproceedings,particularly, the charge framed in terms ofSection 228 of the Code should be exercised verysparingly and with circumspection and that too inthe rarest of rare cases. 27.2.The Court should apply the test as towhether the uncontroverted allegations as madefrom the record of the case and the documentssubmitted therewith prima facie establish theoffence or not. If the allegations are sopatently absurd and inherently improbable that noprudent person can ever reach such a conclusionand where the basic ingredients of a criminaloffence are not satisfied then the Court mayinterfere. 27.3.The High Court should not undulyinterefere. No meticulous examination of theevidence is needed for considering whether thecase would end in conviction or not at the stageof framing of charge or quashing of charge. 27.4Where the exercise of such power isabsolutely essential to prevent patent miscarriageof justice and for correcting some grave errorthat might be committed by the subordinate courtseven in such cases, the High Court should be loathto interfere, at the threshold, to throttle theprosecution in exercise of its inherent powers. 27.5.Where ther is an express legal barenacted in any of the provisions of the Code orany specific law in force to the very initiationor institution and continuance of such criminalproceedings, such a bar is intended to providespecific protection to an accused. 27.6.The Court has a duty to balance thefreedom of a person and the right of thecomplainant or prosecution to investigate andprosecute the offender. 27.7.The process of the court cannot bepermitted to be used for an oblique orultimate/ulterior purpose. 27.8.Where the allegations made and as theyappeared from the record and documents annexedtherewith to predominantly give rise andconstitute a "civil wrong" with no "element ofcriminality" and does not satisfy the basicingredients of a criminal offence, the court maybe justified in quashing the charge. Even in suchcases, the court would not embark upon thecritical analysis of the evidence. 27.9.Another very significant caution thatthe courts have to observe is that it cannotexamine the facts, evidence and materials onrecord to determine whether there is sufficientmaterial on the basis of which the case would endin a conviction; the court is concerned primarilywith the allegations taken as a whole whether theywill constitute an offence and, if so, is it anabuse of the process of court leading toinjustice. 27.9.Another very significant caution thatthe courts have to observe is that it cannotexamine the facts, evidence and materials onrecord to determine whether there is sufficientmaterial on the basis of which the case would endin a conviction; the court is concerned primarilywith the allegations taken as a whole whether theywill constitute an offence and, if so, is it anabuse of the process of court leading toinjustice. 27.10.It is neither necessary nor is thecourt called upon to hold a full-fledged enquiryor to appreciate evidence collected by theinvestigating agencies to find out whether it is acase of acquittal or conviction. 27.11.Where allegations give rise to a civilclaim and also amount to an offence, merelybecause a civil claim is maintainable, does notmean that a criminal complaint cannot bemaintained. 27.12.In exercise of its jurisdiction underSection 228 and/or under Section 482, the Courtcannot take into consideration external materialsgiven by an accused for reaching the conclusionthat no offence was disclosed or that there waspossibility of his acquittal. The Court has toconsider the record and documents annexedtherewith by the prosecution. 27.13.Quashing of a charge is an exception tothe rule of continuous prosecution. Where theoffence is even broadly satisfied, the Courtshould be more inclined to permit continuation ofprosecution rather than its quashing at thatinitial stage. The Court is not expected tomarshal the records with a view to decideadmissibility and reliability of the documents orrecords but is an opinion formed prima facie. 27.14.Where the charge-sheet, report underSection 173(2) of the Code, suffers fromfundamental legal defects, the Court may be wellwithin its jurisdiction to frame a charge. 27.15.Coupled with any or all of the above,where the Court finds that it would amount toabuse of process of the Code or that the interestof justice favours, otherwise it may quash thecharge. The power is to be exercised ex debitojustitiae i.e., to do real and substantial justicefor administration of which alone, the courtsexist. 27.16.These are the principles whichindividually and preferably cumulatively (one ormore) be taken into consideration as precepts toexercise of extraordinary and wide plenitude andjurisdiction under Section 482 of the Code by theHigh Court. Where the factual foundation for anoffence has been laid down, the courts should bereluctant and should not hasten to quash theproceedings even on the premise that one or twoingredients have not been stated or do not appearto be satisfied if there is substantial compliancewith the requirements of the offence." 17.In paragraph no.27.12. of the decision cited supra, thecontention of the revision petitioner that she has filed theassessment order and it has not been taken into consideration by thelower court has been set at naught by the Hon'ble Supreme Court.Therefore, I do not find any reason to interfere with the reasonedorder of the court below. Unfortunately, the revision has been keptpending for such a long time. 18.The learned Special Public Prosecutor (Taxes) also statesthat some accused are still absconding, charges have been framed andother accused are facing trial. Hence, the learned Additional ChiefMetropolitan Magistrate, E.O.I, Egmore, Chennai is directed toexpedite the trial and dispose of the case as expeditiously aspossible as the case is pending from the year 1985. 18.The learned Special Public Prosecutor (Taxes) also statesthat some accused are still absconding, charges have been framed andother accused are facing trial. Hence, the learned Additional ChiefMetropolitan Magistrate, E.O.I, Egmore, Chennai is directed toexpedite the trial and dispose of the case as expeditiously aspossible as the case is pending from the year 1985. 19.In the result, the revision is dismissed. The order passedby the learned Additional Chief Metropolitan Magistrate, E.O.I,Egmore, Chennai in M.P.No.1914 of 2007 in E.O.C.C.No.179 of 1985dated 07.08.2007 is confirmed.Sd/-Assistant Registrar/TRUE COPY/Sub Assistant RegistrarpriTo1.The Additional Chief Metropolitan Magistrate, E.O.I, Egmore, Chennai-600 008.2.The Chief Commissioner (Administration) and Commissioner of Income Tax, Chennai-600 034.+1CC to Mr.R.Angamuthu, Advocate SR.4078Crl.R.C.No.1599 of 2007MSM(CO)KSA(19/03/2013)