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Judgment
S.R. Brahmbhatt, J.—Heard learned advocate for the parties. The Petitioner, who has been named as accused in FIR being CR No. II - 22 of 2005 registered with Sanand Police Station on 08.02.2005 for the offences punishable u/s 75(1)(h) of the Gujarat Sales Tax Act, 1969 (for the sake of brevity, it is called ''the Act'') said to have been committed between the year 1998-1999 to 2001-2002.
Facts in brief leading to filing of this petition, deserves to be set out as under:
The Petitioner, who happened to be a Managing Director of Raviraj Foils Limited has filed this petition, containing averments that the Company was in the business of Aluminum Foils and was thus enabling to the provision of the Act being registered dealer operating in Gujarat.
On account of untold difficulties, there was some problem in the business and the Petitioner was visited with the notice dated 02.05.2003, which said to have been dispatched on 03.05.2003 u/s 59(1) of the Act, calling upon him to produce the material mentioned in the notice for the year 1999-2000, on 08.05.2003 at 11''o clock. The Petitioner has averred in the memo on oath in Para - 4 that in due compliance with the notice, he produced all the relevant documents and after appropriate presentation, the Commissioner of Sales Tax issued communication dated 27.07.2003 to the Sales Tax Officer (1) Division - 11, Ahmedabad indicating therein that the post-dated cheques might have received, which includes the interest on levied amount and it was ordered that in view of that the attachment be lifted. The communication, which is produced at Page No. 16 is illegible, but, admittedly of the year 2003, indicates that the Petitioner has paid the amount plus interest, after the said notice and nothing remained to be paid by him.
The complaint is filed in the year 2005 for the alleged breach, occurred on 08.05.2003 and it is filed before the concerned Police Station, which came to be registered as FIR being CR No. II - 22 of 2005 registered with Sanand Police Station on 08.02.2005.
The Petitioner therefore, filed present petition seeking quashment of the said complaint stating that the complainant has no cause to file any complaint. This Court (Coram: Mr. A.S. Dave, J.) issued Rule on 21.03.2006 and recorded that recovery of amount of sales-tax, penalty and interest etc. is stayed by order passed in Second Appeal No. 752 and 753 of 2005, passed by Gujarat Sales Tax Tribunal, Ahmedabad below Exh.7 and 6 and this Court granted interim-relief in terms of Para- 11(D) of the petition. The said relief is inuring till the date.
Learned advocate for the Petitioner contended that filing of police complainant after a period of 2 years for alleged occurrence of offence is nothing, but abuse of process of law in as much as the subsequent documentary evidence coming on the record and which remained uncontroverted, would go to show that the Respondents are exerting undue pressure upon the Petitioner for outstanding dues, which are not permissible to be recovered by way of present complaint.
Learned APP Mr. K.P. Raval appearing for Respondents submitted that the no compliance with Section 75(h) read with Section 79 would be said to be clearly averred in the memo of the complaint and therefore, the documents, which have been produced on record shall be of no avail to the Petitioner for quashing of the complaint. The Petitioner has not paid sales tax dues and even as on 31.03.2010, the amount of levied tax was outstanding and to be paid by the Petitioners and such a defaulter cannot be permitted to maintain the application for quashment and the Court, therefore, may not quash the complaint and permit the complaint to be investigate properly.
Learned APP Mr. K.P. Raval further submitted that the relief of making payment in installment originally granted by the Commissioner cannot be held responsible for seeking the quashment of the complaint. The two aspects are different and therefore, reliance cannot be placed upon the documents i.e. the communication to the Sales-tax Office by the Petitioner and the communication the the Petitioner by the Sales-tax Office, would be of no avail.
Heard learned advocate for the parties and perused the complaint. It is required to be noted that the complaint impugned in this petition is the complaint qua allegation of the non-compliance with the notice for production u/s 59 of the Act. Section 75(1)(h) reads as under:
Offences and penalties.
Whoever -
(h) fails to comply with any requirement made of
him u/s 59, 59A or 59B
The said notice, which is produced, indicate that the Petitioner was called upon to produced the copy of Challan for the payment of the year 1999 to 2000, within a period of 5 days or else to make the payment and to produce the copy of Challan, failing which appropriate proceedings will be filed against them. This Challan was pertinent to the year 1999-2000. The subsequent communication, which have been relied upon and referred by the Petitioner, indicate that the Petitioner was said to be not liable to pay anything more than what was said in the statement by Sales-tax Commissioner. It has not been in any manner an essential ingredient for making refusal of the notice. Liable for prosecution is non-production of those documents, which were demanded of. Therefore, the complaint placed on record, which was filed admittedly after a period of 2 years is required to be read as it is without referring to the documents, produced by the Petitioner in the form of communication to the Commissioner.
Grievance of the complainant indicates that the complainant is alleging that the offence is occurred from the year 1998-99 to 2001-02. In short, the complaint is filed as if there was a offence committed u/s 75(1)(h) for the year 1998-99 to 2001-02, whereas, in the body of the complaint the averment in regard to only one notice is made i.e. 03.05.2003, where under, the Petitioner was called upon to produce challans on 08.05.2003. The complainant has not specifically mentioned as to whether the Petitioner remained present and did not bring documents as demanded or whether documents demanded were not adequate enough to record compliance. On the contrary, the complainant has thereafter made further averments with regard to the differed payment of the documents and amount payable there from. Based thereupon the Section mentioned is Section 75(1) and (2) of the Act, but the accompanying notice, which is accompanying the complaint, as it is stated, refers to one notice for the year 1999-2000. In my view, the complaint does not disclose specific averments so as to constitute ingredients for inviting Section 75(1)(h) of the Act against the Petitioner, and therefore, the complaint is nothing, but, the process for exerting undue pressure upon the Petitioner for outstanding dues. It is required to be noted that the remedy for realising outstanding is not the filing of the complaint in the form it is filed. The Respondents are absolutely not entitled to prosecute the complainant for default in payment, so far as Section 75(1)(2) and (h) is concerned. On account of alleged non-production, the said complaint would not be competent. Therefore, the Court is of the view that the complaint as filed, with a view to seek recovery of the amount for which the complaint could not have been filed.
The Court hasten to add that Respondents may take appropriate action for realising their dues, if any, in accordance with law. The complaint is quashed only on the ground that it did not disclose any offence as the complaint is filed for non-production, which in my view would not be capable of disclosing any ingredients. Hence, the complaint is quashed as no substantive justice would be served.
Rule is made absolute.