Shri.pradeep Dayanand Kothari v. The Deputy Commissioner Of Income Tax,Corporate Circle 4(2),Chennai – 600 034

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM: THE HON'BLE Mr. JUSTICE P.VELMURUGAN Criminal Revision Case Nos.1194 and 1195 of 2019and Crl.M.P.Nos.15879 & 15881 of 2019 Shri.Pradeep Dayanand Kothari,No.114, Mahatma Gandhi Road,4[th] Floor, Kothari Building,Chennai -600 034. ... Petitioner in both Crl.R.Cs/Accused..vs.. The Deputy Commissioner of Income Tax,Corporate Circle 4(2),Chennai – 600 034. ... Respondentsin both Crl.R.Cs/Complainant Criminal Revision Cases filed under Section 397 read with401 Cr.P.C, to call for the records relating to theproceedings made in Crl.M.P.Nos.2917 and 2915 of 2019 inE.O.C.C.Nos.113 and 112 of 2015 dated 19.08.2019 on the fileof the Additional Chief Metropolitan Magistrate (E.O.II) Courtat Egmore, Chennai – 600 008 and set aside the same. These Criminal Revision Cases have been filed against theorder dated 19.08.2019 passed in Crl.M.P.Nos.2917 and 2915 of2019 in E.O.C.C.Nos.113 and 112 of 2015 on the file of theAdditional Chief Metropolitan Magistrate (E.O.II) Court atEgmore, Chennai – 600 008. 2.The petitioner is an assessee. The respondent filedcomplaints against the petitioner under Section 276 (C)(1) and277 of the Income Tax Act, 1961 r/w Section 200 Cr.P.C., forthe assessment year 2006-2007 and 2007-2008 before the learnedhttps://hcservices.ecourts.gov.in/hcservices/Additional Chief Metropolitan Magistrate (E.O.I), Egmore, Chennai in E.O.W.C.C.Nos.112 of 2015 and 113 of 2015.During the pendency of the said cases, the petitioner/assesseefiled a petition under Section 245 Cr.P.C., to discharge himfrom the said cases. The learned Magistrate, after consideringthe entire materials dismissed the petition. Challenging thesaid order, the present Criminal Revision Cases. 3. The learned counsel for the petitioner would submitthat the petitioner is not aware of the amount deposited inhis account, therefore, he has not disclosed the incomeduring the relevant periods i.e.,2006-2007 and 2007-2008.Subsequently, the respondent passed the assessment order.Aggrieved over the same, the petitioner has preferred anappeal before the Tribunal, and the same is pending.Therefore, once the assessment proceedings are setting aside,the entire case against the petitioner goes out and therefore,he filed the discharge petition. However, the learnedMagistrate failed to consider the same, dismissed thepetition, which warrants interference of this Court. 4. The learned Standing Counsel appearing for therespondent would submit the petitioner had operated undeclaredaccount with HSBC located in Switzerland. Further, the amount,which was deposited in that account, is well within theknowledge of the petitioner. The knowledge of the petitionerabout the same can be decided after trial and not at thisstage. Further, the petitioner all along participated in theassessment proceedings. Therefore, the ground taken by thepetitioner is not a correct ground to discharge the petitionerat this stage. Therefore, both these revisions may bedismissed. 5.Heard the learned counsel on either side and perusedthe materials available on record. 4. The learned Standing Counsel appearing for therespondent would submit the petitioner had operated undeclaredaccount with HSBC located in Switzerland. Further, the amount,which was deposited in that account, is well within theknowledge of the petitioner. The knowledge of the petitionerabout the same can be decided after trial and not at thisstage. Further, the petitioner all along participated in theassessment proceedings. Therefore, the ground taken by thepetitioner is not a correct ground to discharge the petitionerat this stage. Therefore, both these revisions may bedismissed. 5.Heard the learned counsel on either side and perusedthe materials available on record. 6.Admittedly, the petitioner is an assessee and therespondent filed complaints against the petitioner underSection under Section 276 (C)(1) and 277 of the Income TaxAct, 1961 r/w Section 200 Cr.P.C for the assessment year2006-2007 and 2007-2008 before the learned Additional ChiefMetropolitan Magistrate (E.O.I), Egmore, Chennai inE.O.W.C.C.Nos.112 of 2015 and 113 of 2015. The petitionerfiled his returns, in which, he has not disclosed certainamounts deposited in his account. Therefore, the respondentfiled complaints against the petitioner. Though the learnedcounsel for the petitioner would submit that he has admittedthe said deposit, however, he denied the knowledge. The groundtaken by the petitioner about the knowledge can be decidedonly after trial and not at this stage. Therefore, whiledeciding the petition under Section 245 Cr.P.C, the Court hasto consider the allegations made in the complaint against thepetitioner. If any allegation is found with supportingdocuments, the Court cannot conduct roving enquiry on thehttps://hcservices.ecourts.gov.in/hcservices/same. This Court finds prima facie material against him. Further, in any private complaint made under Section 200Cr.P.C., the Court has to see the allegations levelled in thecomplaint and documents annexed therein, but, not the defencetaken by the accused and documents produced by them at thetime of framing charges. 7.Therefore, under these circumstances, this Court on acareful reading of the complaints and documents filed by therespondent,prima facie case is made out against thepetitioner. Further, the knowledge of petitioner cannot bedecided at this stage and the same can be decided after trial.Hence, this Court does not find any perversity or infirmity inthe order passed by the Court below. 8.Accordingly, these Criminal Revision Cases aredismissed. Consequently, connected miscellaneous petitions areclosed. Sd/-Assistant Registrar //True Copy// msTo Sub Assistant Registrar 1.The Additional Chief Metropolitan Magistrate (E.O.II) Egmore, Chennai – 600 008. 2.The Deputy Commissioner of Income Tax, Corporate Circle 4(2), Chennai – 600 034. +1cc to Mr.S.Senthilnathan, Advocate, S.R.No. 21841 +2cc to Mr.N.Baskaran,Special Public Prosecutor, Income Tax, Chennai, Advocate, S.R.No. 2202, 2201 Crl.R.C.Nos.1194 and 1195 of 2019andCrl.M.P.Nos.15879 & 15881 of 2019 SR(CO)GN(09/02/2021) https://hcservices.ecourts.gov.in/hcservices/