C.P. Radhakrishnan vs Dy. Commercial Tax Officer, Ferambuy II Asst. Circle, Madras

M.N. Moorthy, J.—This is a revision petition to revise the orders of the learned Second Metropolitan Magistrate, Egmore, Madras, in C.C. No. 16745 of 1978. The facts leading to the filing of the present revision are: The Deputy Commercial tax Officer, Perambur II, Asst. Circle, Madras, filed a complaint against the petitioner before the Magistrate for offences under S. 14(1)(b) of the Tamil Nadu Entertainments Tax Act, covering in all 29 instance of the year 1973-74. The petitioner filed an application raising a preliminary objection under S. 468(2), Crl. P.C. and praying for dismissal of the complaint. According to the petitioner, the offence is punishable with a sentence of fine only and six months is the period of limitation for taking cognizance. For the instance in 1973-74 the complaint was filed in July, 1978. Hence the case is clearly barred by limitation.

The complainant filed a counter making the following averments. For the notices issued on 10th January, 1974 and thereafter periodically for payment of arrears of entertainment tax, by his letters, dated 20th February, 1975 and 23rd April, 1976, and by his repeated oral representations, the petitioner requested the Government to give him time to clear the entire arrears of tax in instalments. Accordingly, the time was extended. In 1978 the present complaint was filed, as 29 cheques issued by the petitioner were dishonored. He prayed that the delay in filing the complaint may be condoned by filing a separate petition under S. 473, Crl. P.C. The main ground urged for condonation is that, since the petitioner himself was taking time for making payments, the complainant did not take action immediately.

The learned Magistrate thought fit to condone the delay in filing the complaint accepting the contention of the complainant.

S. 467 to 473, Crl. P.C. are new provisions prescribing periods of limitation for launching a criminal prosecution in certain cases. The main purpose of the provisions is that the. offenders cannot be kept under continuous apprehension that they will be prosecuted at any time. Persons will have no peace of mind if there is no period of limitation even for petty offences. It is well to launch a prosecution as early as possible and inflict the punishment before the offence becomes stale and the punishment loses its sting.

The Learned Counsel for the petitioner urged that the offences alleged to; have been committed by the petitioner related to the year 1973-74, that the offences are punishable only with fine and as such; the prosecutions should have been launched ''within six months according to S. 468(2), Crl. P.C., whereas the complaint in the instant case was filed only in April, 1978 nearly four years after the date of the offence, the Learned Counsel cited two decisions in support of his contention. In State of Punjab v. Sarwan Singh 1981 M.L.J. Cri. 394 their Lordships of the Supreme Court held-

The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was cleanly to prevent the parties from filing cases after a long time as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecution long after the date of the offence.... It is, therefore, of the utmost importance that any prosecution whether by the state or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.

The next decision cited before me was Pankaja Mills Ltd, v. J.V. Sivaramakrishnaryer 1977 L.W Cri 119, wherein it was observed that S. 473 Crl P.C. enabling the condonation of delay has to be read and interpreted harmoniously with S. 468. The learned Judge further observed-

An indiscriminate and unrestricted exercise of the discretion granted to courts under S. 473 would virtually amount to defeating the wish of Parliament that the filing of complaints in respect of offences which are not of a serious nature should be controlled by the law of limitation.

S. 473, Crl. P.C. extends the period of limitation in certain cases, but it is always a matter of discretion for the court, considering the facts and circumstances of each case. In the present case, the delay sought to be explained by the prosecution is on the ground that the petitioner himself was taking time for payment of arrears of tax. The offence covered the period 1973-74. but the complaint was filed only in April, 1978. Under these circumstances, it is not in the interests of justice to warrant the exercise of powers of discretion under S. 473 , Crl. P.C. in favour of the prosecution. The prosecution agency, because of negligence or inaction or lack of bona fides, cannot invoke justifiable discretion in their favour and get the delay condoned by the laches being excused. It has been brought to my notice that the petitioner has paid all the taxes due to the department, though belatedly. However reprehensible the conduct of the petitioner may be in persuading the Commercial tax Department to delay action against him by false pretences and promises of making good the tax amount and in issuing as many as 29 worthless cheques which were duly dishonoured, still he is entitled to whatever protection the law affords him. In my view, it is not in the interests of justice to condone the delay in filing the complaint against the petitioner. I set aside the order of the lower court in this regard.

I hope the Commercial tax Department in future will be on guard without showing any misplaced sympathy to persons unworthy of deserving it and proceed to set the law in motion, bearing in mind the provisions relating to the limitation prescribed under the Code.

In the result, the criminal revision case is allowed. The preliminary objection raised before the Magistrate is upheld and the complaint pending before him is ordered to be dismissed.