Lalit Chander Khullar v. Income Tax Officer And Another

CRR-1374-2014 IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH CRR-1374-2014Date of decision : 05.05.2014 Lalit Chander Khullar _.. Petitioner Versus Income Tax Officer and another ... Respondents CORAM:HONBLE MRS, JUSTICE REKHA MITTAL Present:Mr.Ashok Jindal, Advocate for the petitioner. REKHA MITTAL, J.(ORAL) The instant petition has been directed against the judgmentdated 19.02.2014 passed by the Additional Sessions Judge (Fast TrackCourt), Bathinda whereby the appeal preferred by the complainant againstjudgment dated 05.03.2011 passed by the Chief Judicial Magistrate,Bathinda vide which accused Lalit Chander Khullar (petitioner herein) wasacquitted of the offence charged against him was set aside and the matterhas been remitted to the trial Court for decision afresh after examination ofMr. S.K.Jain, the then Executive Engineer, Housing Board, Division-II,Chandigarh and the concerned Manager of the Central Bank of India,Branch Bathinda as witnesses under Section 311 of the Code of CriminalProcedure (in short ‘the Code’). Counsel for the petitioner has assailed the verdict of the CourtIn appeal primarily on two counts. The first submission made by counsel 1sthat the appeal against judgment of acquittal passed by the learned trial CRR-1374-2014 Court is not maintainable before the Court of Sessions, therefore, thejudgment passed by the Additional Sessions Judge, Bathinda 1s nullity andnon est in the eyes of law. The second submission made by counsel 1s thatthe prosecution filed an application under Section 311 of the Code forexamination of Mr.S.K.Jain, the then Executive Engineer, Housing Board,Division-I], Chandigarh and the Manager of the Central Bank of India,Branch Bathinda and the application was dismissed by the learned trialCourt and the order passed by the trial Court was not challenged before acompetent superior Court, therefore, the order in regard to examination ofthe aforesaid witnesses has attained finality. Further dilating, counsel wouldsubmit that the appellate Court was not competent to allow examination ofthese witnesses 1n exercise of power of appeal. I have heard counsel for the petitioner and gone through thecase file particularly the judgment impugned. The first contention raised by counsel for the petitioner ismisconcieved and merits outright rejection. It appears that this contentionhas been raised by learned counsel oblivious of the fact that in a criminalcase based on a police report, the judgment of acquittal passed by thelearned trial Court 1s amenable to challenge in appeal before the Court ofSessions both at the instance of the State as well as the complainant. Now coming to the second argument advanced by counsel, it isappropriate to extract a relevant part of Section 386 of the Code 1973 whichdeals with the powers of the appellate Court. 386. Powers of the Appellate Courtee (a) in an appealfrom an order of acquittal, reverse such CRR-1374-2014 order and direct thatfurther inquiry be made, or that theaccused be re-tried or committed for trial, as the casemay be, or find him guilty and pass sentence on himaccording to law; Now coming to the second argument advanced by counsel, it isappropriate to extract a relevant part of Section 386 of the Code 1973 whichdeals with the powers of the appellate Court. 386. Powers of the Appellate Courtee (a) in an appealfrom an order of acquittal, reverse such CRR-1374-2014 order and direct thatfurther inquiry be made, or that theaccused be re-tried or committed for trial, as the casemay be, or find him guilty and pass sentence on himaccording to law; The appellate Court while dealing with the an appeal from anorder of acquittal 1s empoweredto reverse such order and direct furtherinquiry or retrial. Counsel for the petitioner has not urged that examinationof Mr. S.K.Jain, an officer of the Housing Board and Manager from CentralBank are not relevant for the effective adjudication of the case. The powerunder Section 311 of the Code gives a wide judicial discretion to the Courtto summon material witness or examine person present. The power isavailable to the Court at any stage of any inquiry, trial or other proceeding|under the Code to summon any person as a witness or examine any personin attendancethough not summoned as a witness or recall or re-examine aperson already examined whose evidence appears to the Court to beessential to the just decision of the case. In the case at hand, there areallegations against the petitioner that he filed income tax returnsaccompanied by TDS certificates purported to be signed and stamped by theExecutive Engineer on the basis whereof he was held entitled to refundwhich was credited to his account 1n the Central Bank of India but the saidTDS certificates were found to be fake, bogus and forged. In thecircumstances of the present case, examination of Mr.S.K.Jain, the thenExecutive Engineer Housing Board, Chandigarh who purported to havesigned those TDS certificates and the witness from the bank is material andexpedient for the Just decision of the case. In this view of the matter, I do CRR-1374-2014 not find any error much less perversity 1n the impugned judgment as wouldcall for interference 1n exercise of revisional jurisdiction. Dismissed 1n limine. May 05, 2014.Davinder Kumar (REKHA MITTAL)JUDGE