Samuel James Fredrick v. The Assistant Commissioner Of Income Taxcentral Circle-Iiincome Tax Departmentchennai - 34

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 28.10.2015 DELIVERED ON : 05.11.2015 CORAM THE HONOURABLE MR.JUSTICE P.N.PRAKASH Crl.O.P.Nos.Nos.22572 and 22582 of 2015and M.P.Nos.1 and 2 of 2015 Samuel James Fredrick .. Petitioner in both Crl.OPs/ 2[nd] Respondent /2[nd] Accused.. vs. The Assistant Commissioner of Income TaxCentral Circle-IIIncome Tax DepartmentChennai - 34. .. Respondent in both Crl.OPs./ Petitioner/Complainant Criminal Original Petitions filed under Section 482 Cr.P.C.praying to call for the records in Crl.M.P.Nos.1015 and 1016 of 2014and the memo in E.O.C.C.Nos.181 and 182 of 1991 on the file of theAdditional Chief Metropolitan Magistrate [E.O.I], Egmore, Chennai andset aside the common order dated 14th August 2014. For Petitioner : Mr.Pari Ramaiah For Respondent : Mr.K.Ramasamy Spl.Public Prosecutor [Income Tax] C O M M O N O R D E R These petitions have been filed to call for the records inCrl.M.P.Nos.1015 and 1016 of 2014 and the memo in E.O.C.C.Nos.181 and182 of 1991 on the file of the Additional Chief MetropolitanMagistrate [E.O.I], Egmore, Chennai and set aside the common orderdated 14th August 2014. 2. For the sake of convenience, the parties will be referredto as the complainant and accused. 3. The Income Tax Department [complainant herein], launchedtwo prosecutions against the accused in E.O.C.C.No.181 of 1991 andE.O.C.C.No.182 of 1991. The allegations in E.O.C.C.No.181 of 1991 isthat, for the assessment year 1983-84, for which the accounting yearending is 30.06.1982, the accused filed false Income Tax Returns byfabricating bogus accounts showing that they had incurred an expensehttps://hcservices.ecourts.gov.in/hcservices/of Rs.59,88,893/- for Research and Development work and therefore,they are liable to be punished for offences under Sections 120B r/w 193, 196, 420 r/w 511 IPC and 276 C(1), 277 and 278 B of the IncomeTax Act, 1961. In E.O.C.C.No.182 of 1991, the allegation is that,for the assessment year 1984-85, for which the accounting year endingis 30.06.1983, the accused filed false Income Tax Returns byfabricating bogus accounts showing that they had incurred an expenseof Rs.14,91,500/- for Research and Development work and therefore,they are liable to be punished for offences under Sections 120B r/w193, 196, 420 r/w 511 IPC and 276 C(1), 277 and 278 B of the IncomeTax Act, 1961. 4. The Court took cognizance of the offences in two privatecomplaints and issued process. These complaints were filed beforethe learned Additional Chief Metropolitan Magistrate, E.O.1, Egmore,Chennai and after taking cognizance of the offences set out in thetwo complaints, the Court issued process to the accused for theirappearance. Since it is a private complaint procedure, the accusedappeared and were furnished with the copies of the complaints. It isseen that the accused filed Crl.M.P.No.23 of 1993 under Section 218Cr.P.C. on 28.01.1993 for clubbing E.O.C.C.No.181 of 1991 andE.O.C.C.No.182 of 1991. Notice was ordered on the Special PublicProsecutor for Income Tax. The Special Public Prosecutor endorsed"No objection" in the petition. The learned Magistrate passed thefollowing order: "Notice given to Special Public Prosecutor.No objection endorsed. Heard, in the interest ofjustice, permitted to club and to record evidencein EOCC No.181 of 1991 for EOCC 182 of 1991 also." 5. Based on the endorsement, the Department examined itswitnesses and common evidence was recorded in both the cases. Afterrecording of pre-charge framing evidence under Section 244 of theCode, charges were framed on 02.09.2006. Seven heads of charges fortwo counts each were framed against the accused on 02.09.2006 and theaccused pleaded not guilty. Thereafter, post-charge evidence wasrecorded and the accused were questioned under Section 313 Cr.P.C. "Notice given to Special Public Prosecutor.No objection endorsed. Heard, in the interest ofjustice, permitted to club and to record evidencein EOCC No.181 of 1991 for EOCC 182 of 1991 also." 5. Based on the endorsement, the Department examined itswitnesses and common evidence was recorded in both the cases. Afterrecording of pre-charge framing evidence under Section 244 of theCode, charges were framed on 02.09.2006. Seven heads of charges fortwo counts each were framed against the accused on 02.09.2006 and theaccused pleaded not guilty. Thereafter, post-charge evidence wasrecorded and the accused were questioned under Section 313 Cr.P.C. 6. The complainant filed Crl.M.P.No.1015 of 2014 in EOCCNo.181 of 1991 and Crl.M.P.No.1016 of 2014 in EOCC No.182 of 1991contending that, the two cases ought not to have been clubbed,as thatwould cause serious prejudice to the case of the complainant andtherefore, the charges should be altered under Section 216 Cr.P.C.This was strongly resisted by the accused, but eventually the trialCourt allowed the petitions by order dated 14.08.2014 challengingwhich the accused is before this Court. 7. Heard the learned counsel for the accused and the learnedSpecial Public Prosecutor for the complainant. 8. It is contended by the learned counsel for the accusedthat, the prosecution was filed in the year 1991 and the firstaccused is a septuagenarian and that when the petition for clubbingwas filed by the prosecution reporting no objection and after thehttps://hcservices.ecourts.gov.in/hcservices/entire evidence was over, the present petition to once again alterthe charge should not be permitted, as that is a ruse to furtherprolong the trial. 9. In response to this contention, learned Special PublicProsecutor submitted that, the clubbing of two cases is impermissibleand there is a possibility of the accused claiming prejudice onaccount of such clubbing and therefore, the complainant felt that thecharges require to be altered. Learned Special Public Prosecutorrelied upon the provisions of Section 212 Cr.P.C. in order to supporthis plea. 10. On the contrary, learned counsel for accused submittedthat even before Magistrate, the accused have categorically statedthat they will never raise the issue of prejudice in relation to theframing of charges and in any event, by virtue of Section 465Cr.P.C., unless prejudice is shown to have been caused, an error inframing of charge can in no way vitiate the prosecution. In thisregard, the learned counsel for accused brought to the notice of thisCourt the undertaking given by the accused, which finds place in theimpugned order, which is as follows: "Whereas the learned defence counsel filesa memo stating that he has not having any objectionfor clubbing the cases and also would not raise orchallenge the same in future." There appears to be some force in the submission of the learnedcounsel for the accused. However, this Court is aware that, unlikecivil cases, there cannot be clubbing of criminal cases, as there isno provision for that in the Code. 11. This Court carefully perused the charges that were framedby the trial Court on 02.09.2006 and found that the trial Court hasactually not clubbed both the cases, but has put both the accusationsin both the complaints under one heading. For example, I amextracting the second charge for better appreciation of the case. "Whereas the learned defence counsel filesa memo stating that he has not having any objectionfor clubbing the cases and also would not raise orchallenge the same in future." There appears to be some force in the submission of the learnedcounsel for the accused. However, this Court is aware that, unlikecivil cases, there cannot be clubbing of criminal cases, as there isno provision for that in the Code. 11. This Court carefully perused the charges that were framedby the trial Court on 02.09.2006 and found that the trial Court hasactually not clubbed both the cases, but has put both the accusationsin both the complaints under one heading. For example, I amextracting the second charge for better appreciation of the case. "Secondly, that you A1, 2 & 4 along with theother accused (A3 & 5 dead) during the above periodand during the course of same transaction for thepurpose of using as genuine evidence in the Income-Tax Assessment proceedings of the first accusedbefore the Income Tax Officer for the assessmentyear 1984-85 and 1983-84 and intentionallyfabricated false books of account of the firstaccused containing false particulars of claim ofRs.59,88,893/- and Rs.14,91,500/- under Section 35(1)(iv) towards the expenses incurred for Researchand Development work respectively and therebycommitted an offence punishable u/s 193 of IPC r/w136 of the Income Tax Act, 1961 (2 counts)." 12. On a reading of the above, the Magistrate has clearlystated that the accused have made a false claim of Rs.59,88,893/-for the assessment year 1983-84 and a false claim of Rs.14,91,500/-https://hcservices.ecourts.gov.in/hcservices/has been made for the year 1984-85 and that is why the learnedMagistrate has put two counts in brackets at the end of the charge.Had the Magistrate referred to the period as 1983-85 and the alleged false claim had been shown as Rs.74,80,393 [Rs.59,88,893 +Rs.14,91,500 = Rs.74,80,393], then there is sufficient force in thelearned Special public Prosecutor's argument that he has clubbed thecharges, which is not legally correct. In the considered opinion ofthis Court, the Magistrate has not clubbed the charges, but hadcombined the accusations in respect of 1983-84 and 1984-85. Theaccused also has understood the allegations and has participated inthe trial. 13. The prayer made by the complainant for alteration ofcharges under Section 216 Cr.P.C. appear to be misnomer. What thecomplainant now wants is, not alteration of charges, but separationof charges, which is not impermissible. 14. It was brought to the notice of this Court that, afterthe passing of the final order on 14.08.2014, the Magistrate has re-framed the charges and therefore, this Court called for the chargesof the trial Court and carefully perused the same. What theMagistrate has now done is, he has separated the charges which wereearlier combined under each head as two counts and has now made themdistinct and separate. For example, the second charge which has beenextracted above, at present reads thus: Secondly, that you A1, A2 & A4 along withthe other accused (A3 & A5 dead) during the aboveperiod and during the course of same transactionfor the purpose of using as genuine evidence inthe Income-Tax Assessment proceedings of the firstaccused before the Income Tax Officer for theassessment year 1983-84 and intentionallyfabricated false books of account of the firstaccused containing false particulars of claim ofRs.59,88,893/- under Section 35(1)(iv) towards theexpenses incurred for Research and Developmentwork respectively and thereby committed an offencepunishable u/s 193 of IPC r/w 136 of the IncomeTax Act, 1961). Secondly, that you A1, A2 & A4 along withthe other accused (A3 & A5 dead) during the aboveperiod and during the course of same transactionfor the purpose of using as genuine evidence inthe Income-Tax Assessment proceedings of the firstaccused before the Income Tax Officer for theassessment year 1983-84 and intentionallyfabricated false books of account of the firstaccused containing false particulars of claim ofRs.59,88,893/- under Section 35(1)(iv) towards theexpenses incurred for Research and Developmentwork respectively and thereby committed an offencepunishable u/s 193 of IPC r/w 136 of the IncomeTax Act, 1961). "Secondly, that you A1, A2 & A4 along withthe other accused (A3 & A5 dead) during the aboveperiod and during the course of same transactionfor the purpose of using as genuine evidence inthe Income-Tax Assessment proceedings of the firstaccused before the Income Tax Officer for theassessment year 1984-85 and intentionallyfabricated false books of account of the firstaccused containing false particulars of claim ofRs.14,91,500/- under Section 35(1)(iv) towards theexpenses incurred for Research and Developmenthttps://hcservices.ecourts.gov.in/hcservices/work respectively and thereby committed an offencepunishable u/s 193 of IPC r/w 136 of the IncomeTax Act, 1961." 15. The accused were questioned by the Magistrate separatelyin EOCC No.181/91 and EOCC No.182/91 on 11.12.2014 and their plea of"not guilty" has been recorded. Therefore, this Court does not findany infirmity in the charges framed by the trial Court on11.12.2014. In the result these petitions are devoid of merits and the same are dismissed. Consequently, connectedmiscellaneous petitions are closed. -sd/- ASSISTANT REGISTRAR/ TRUE COPY / Sub-Assistant Registrar gmsTo1.The Assistant Commissioner of Income TaxCentral Circle-IIIncome Tax DepartmentChennai - 34.2. Additional Chief Metropolitan Magistrate [E.O.I], Egmore, Chennai .3. MR.K.RAMASAMY, SPECIAL PUBLIC PROSECUTOR]INCOME TAX]High Court,Madras.+2 TO MR.PARIRAMAIASH, ADVOCATE SR.NO. 612567,61257 BVR SD 14/12/2015Pre-delivery order in Crl.O.P.Nos.Nos.22572 and 22582 of 2015