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Judgment
By this application under Article 227 of the Constitution of
India, the applicants-original accused Nos. 1 to 4 call in question the legality and validity of the order passed by the 4th (Ad-hoc) Additional Sessions Judge, Dahod dated 19th December, 2015 in the Criminal Revision Application No.40 of 2011, by which, the Revisional Court rejected the revision application filed by the applicants herein, thereby affirming the order dated 2nd July, 2010 passed below Exh.5 by the 2nd Additional Chief Judicial Magistrate in the Criminal Case No.185 of 2007.
It appears from the materials on record that one Shri Jalubhai Parghi, serving as a Sales-tax Inspector at Dahod, lodged a first information report dated 6th October, 2006 against the applicants herein for the offence punishable under section 420 read with section 114 of the Indian Penal Code. Later on, it appears that sections 406, 465, 468 and 471 of the Indian Penal Code came to be added.
The sum and substance of the allegations in the first information report are with regard to the evasion of value added tax for the period between 1995-96 and 2000-2001. It appears from the materials on record that the applicants herein availed of the loan facility from a Co-operative Bank. Such loan facility was sanctioned and a charge was created over the assets of the applicants.
The Bank initiated the proceedings for recovery of the loan amount before the Board of Nominees. The Board of Nominees passed an award and directed that the assets be put to auction. Accordingly, the assets were put to auction and were sold in favour of the third party. So far as the evasion of tax is concerned, it appears that the Collector initiated the
proceedings under sections 154 and 155 of the Bombay Land Revenue Code. On 17th August, 2005, an order was passed, prohibiting the applicants herein from transferring their immovable assets.
The charge-sheet came to be filed, which culminated in the Criminal Case No.1857 of 2007 in the court of the learned 2nd Additional Chief Judicial Magistrate, Dahod. The applicants herein preferred a discharge application before the Trial Court, which came to be rejected. Being dissatisfied, the applicants preferred a revision application before the Sessions Court, which also came to be rejected.
Being dissatisfied with the two orders, they have come up with this application, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
On 22nd November, 2016, the following order was passed;
"Let notice be issued to the respondents, returnable on 19th January 2017. Ms.Thakore, the learned APP waives service of notice for and on behalf of the respondents.
The further proceedings of the Criminal Case No.1857 of 2007 pending in the Court of the learned Additional Chief Judicial Magistrate, Dahod, shall remain stayed.
By the next returnable date, Ms.Thakore, the learned APP shall take instructions from the respondent no.2 as regards the following :
Whether the dues have been paid up or not ?
In what manner the forgery could be said to have been committed ?
Assuming for the moment that the property has been sold away by way of a registered sale deed dated 19 th November 2005 despite there being an order of prohibition, whether the same would amount to an
offence of cheating within the meaning of Section 415 of the Indian Penal Code ?
Notify the matter on top of the board."
Ms. Thakore, the learned APP, after obtaining the instructions from the officer concerned, submits that all the dues as regards the tax have been paid by the applicants. Nothing is due and payable as on date. So far as the second question posed by this Court is concerned, it has been very fairly submits by the learned APP that the case is not one where any forgery could be said to have been committed.
So far as the third question is concerned, I take notice of the fact that the immovable assets, which the Collector is talking about, were put to auction pursuant to the order passed by the Board of Nominees in the proceedings initiated by the bank for recovery of the loan amount. In the overall view of the matter, I have reached to the conclusion that no case is made out to put the applicants to trial.
As a result, this application is allowed. Both the impugned orders are here by quashed. The applications Exh.5 and Exh.23 filed by the applicants herein before the Trial Court under section 239 of the Code stand allowed. The applicants are discharged from the Criminal Case No.1857 of 2007 pending in the court of the learned Additional Chief Judicial Magistrate, Dahod. Rule is made absolute to the aforesaid extent.
Direct service is permitted.