Smt. Pushpa Devi Dhoot vs Income Tax Officer

N.L. Tibrewal, J.—Petitioners Shyam Sundar and Smt. Pushpa Devi are husband and wife. One Narendra Dev is their son. Both the petitioners are facing trial in Criminal Case Nos. 43 and 44 of 1983 respectively in the Court of the learned Chief Judicial Magistrate, Economic Offences, Jaipur for the offences punishable under sections 276C and 277 of the income tax Act 1961 (''the Act''). The charge against the petitioners is that they submitted false statement in their income tax returns for the assessment year 1978- 79 and wilfully concealed the income of their minor son Narendra Dev and, as such, wilfully attempted to evade the tax imposable under the Act. The complaints were filed against the petitioners on or about 31-3-1983. After recording evidence at the pre-charge stage, charges were framed on 21-10-1986. During the pendency of the trial, the petitioners moved an application on 24-7-1991 u/s 245(2) of the Code of Criminal Procedure, 1973, with a prayer to drop the proceedings. The said application was rejected by the learned Magistrate vide order dated 4-3-1992. Feeling aggrieved against the said order, petitioner Smt. Pushpa Devi has filed Criminal Petition No. 605 of 1992 u/s 482 of the Code of Criminal Procedure to quash the impugned order of the learned trial Magistrate and also to quash the criminal proceedings pending against her. Petitioner Shyam Sundar had also filed similar petition, bearing No. 603 of 1992, u/s 482. The petition of Shyam Sundar was listed before this Court on 11-11-1992 and the same was dismissed by this Court with the following order :

I have seen the impugned order of the learned Special Judicial Magistrate (Economic Offences) dated March 4, 1992. In my view, the order of the learned Magistrate does not suffer from any infirmity. From the order of the learned Magistrate it appears that the cognizance against the petitioner was taken under sections 376C and 377 of the income tax Act on 21-3-1984. Then, after recording pre-charge evidence charge was framed on 6-3-1987. Thereafter, the prosecution evidence is complete and the case was posted for recording the statement of the accused u/s 313 Cr. P.C. At this stage, an application was moved by the accused to discharge him. In my view the learned trial Court rightly observed that after the evidence of the prosecution is recorded, if the accused relies on any order, he can file the same in his defence and the effect of the order can be considered by the trial Court at the time of the final judgment. The petitioner u/s 482 Cr. P.C. is mis-conceived and is hereby rejected. The file of the trial Court be sent back immediately with a direction to proceed with the trial.

Thereafter, Shyam Sundar has filed Misc. Application No. 31 of 1993 to recall this order. Criminal Misc. Petition No. 605 of 1992 filed by Smt. Pushpa Devi was, thereafter, listed before Hon''ble Mr. Justice V.S. Dave and he directed that the petition filed by Smt. Pushpa Devi and Misc. Application No. 31 of 1993 filed by the petitioner Shyam Sundar be listed before me. In these circumstances both these petitions have been listed before me.

The main contention of the learned counsel appearing for the petition ers is that in partnership firm Gulab Dass Jagannath & Associates, Narendra Dev was initially admitted as a partner to the benefit of the said firm as he was a minor at that time, but on his attaining majority on 10-12-1976 he has been admitted as a full-fledged partner and a fresh partnership deed was executed on 3-2-1977. Mr. Bhandari then contended that the ITO had rejected the prayer for registration of the firm on the basis of new partnership deed holding that Narendra Dev was a minor on the date when new partnership deed was executed; but the Tribunal, Jaipur Bench, vide its judgment dated 31-5-1991 held the partnership deed dated 3-2-1977 to be genuine as Narendra Dev was major on the date of the execution of this second partnership. Thus, on the basis of this judgment, it was contended that prosecution of the petitioners for the charge of making a false statement and wilfully evading payment of tax payable under the Act automatically falls on the ground and continuation of criminal proceedings against the petitioner would be an abuse of process of the Court. Reliance in this connection has been placed on the judgment of the Supreme Court in Uttam Chand v. ITO [1982] 113 ITR 909 and the judgment of a Single Judge of the Madras High Court in Mohamed I. Unjawala and others Vs. Assistant Commissioner of Income Tax,

On the other hand, the learned counsel, appearing for the department, seriously contended that trial against the petitioners is at the fag-end inasmuch as, prosecution evidence has been recorded and now the statements of the accused u/s 313 of the Code of Criminal Procedure have to be recorded and the learned trial Magistrate has rightly taken the view that the question raised by the petitioners shall be considered at an appropriate stage. It was also contended that at this stage it would not be just and proper to entertain the petitions for quashing criminal proceedings and that the application u/s 245(2) filed by the petitioners were rightly rejected by the learned Magistrate. Lastly, it was contended that the petition filed by Shyam Sundar has been decided on merits and the judgment rendered in that case cannot be altered in view of section 362 of the Code of Criminal Procedure.

It is no doubt true that the judgment dated 31-5-1991 rendered by Tribunal, Jaipur Bench, has a vital bearing in criminal proceedings pending against the petitioners and the argument raised in these petitions is no doubt important one and there may be substance in the contention of Mr. Bhandari that finding of fact arrived at by the Tribunal has to be respected by the criminal Court in the peculiar circumstances of the case; but the question is whether the matter should be decided at this stage by this Court in exercise of powers u/s 482? There is one more hurdle, the petition filed by Shyam Sundar has been decided on merits and in view of section 362, it cannot be altered. Then, the concerned Magistrate is competent to decide the question which has been raised in these petitions and he had a discretion to reject applications u/s 245(2) when the same were filed at the stage when trial is at the fag-end. Thus, taking into consideration the totality of the circumstances, even though, the question raised by the petitioners is of vital importance, I am not inclined to interfere in exercise of power u/s 482.. Consequently, both the petitions are dismissed. However, on the facts and circumstances and taking into consideration that criminal prosecution is pending since 1983 and that petitioner Smt. Pushpa Devi is a woman, I think it proper to dispense with the personal attendance of the petitioners and they shall be allowed to appear through their counsel before the concerned trial Court.