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Judgment
Amar Saran and Vijay Kumar Verma, JJ.—Heard Shri Satish Trivedi, learned Senior Advocate, for the petitioner and learned Additional Government Advocate representing the State.
By means of this writ petition the petitioner has prayed for quashing of the FIR dated 13.9.2007 lodged by Shri R.P. Shukla, Sub-Inspector, Economic Offences Wing at case crime No. 1634 of 2007, under Sections 406/420/424/467/468/471/477/120-B/218 IPC and 13(1) of Prevention of Corruption Act, police station Nazjbabad, district Bijnor.
The allegations in the FIR were that the petitioner and others were engaged in unloading sponge iron ingots and other related commodities in U.P, which were dispatched from West Bengal, Jharkhand and Orissa to Uttranchal, by tampering with the passes without paying trade tax in U.P. during the period 2005-2006, in which the petitioner and others were assisted by government officials at the check post etc. The report was lodged after preliminary enquiry was conducted by the Economic Offences Wing. An index in the FIR shows that in about 8 or 9 cases the relevant entries were erased in the relevant forms and other irregularities committed so that payment of trade tax in the State of U.P. could be avoided.
Learned Counsel for the petitioner submitted that as the petitioner''s business had already been closed in the month of September, 2005, about which he informed the officials of the trade tax department on 29.9.2005, hence he could not have been engaged in the said illegal trade.
We are not in agreement with this submission that simply because if a person closes his business, he will not engage in any illegal activity as on occasions businesses are closed as a facade for carrying out an illegal activity. All these matters will be clarified during investigation or trial. Moreover the allegation in the FIR was that forgeries were committed in the documents.
It is next argued by the learned Counsel that no Form 31 has been produced, which is the only relevant document for deciding whether trade tax has been evaded and the goods have been transported?
Again this is a question of fact, which would be investigated during investigation and trial. Also as the allegations in the FIR were that the petitioner was engaged in the illegal activity in collusion with the trade tax and check post officials, in such a circumstances the non-production of the Form 31 does not imply that the goods were not transported or unloaded in U.P.
Thirdly, it was argued by Shri Satish Trivedi that it was quite possible that some other traders of Uttar Pradesh were engaged in the Trade name of the petitioner''s firm Bhagwati Traders and the petitioner had no hand in the business. As it has been pointed out that at least 8 or 9 forged Parchas (Panjis 3 and 4) in which the relevant entries had been erased or changed by whiteners, it is difficult to accept the submission that the petitioner was not at all involved and other traders whose names have not surfaced were doing the business wrongly using the name of the petitioner''s firm. At any rate it is a matter of defence, which would only be appreciated at the appropriate stage during trial.
Likewise, the other submission of the petitioner''s counsel that it was not shown that the truck carrying the goods belonged to the petitioner or any other co-accused have nominated the petitioner, hence the petitioner could not be implicated for this offence.
As there were number of documents where forgery had been committed for the purpose of evading trade tax in U.P., it is not of much significance that the prosecution has not shown that the truck belonged to the petitioner or any other accused have spoken of the complicity of the petitioner in the offence.
Learned Counsel further submits that the names of some other persons were present in the correct "Panji" 3 and 4, but the name of the petitioner was substituted therein, is not borne out from the chart included in the FIR, which described the passes which had been wrongly cancelled for engaging in the forgery by making erasures therein. The name of the petitioner''s firm Bhagwati Traders does not appear to have been added by making any erasure in the name of earlier importers.
Finally, it was submitted by the learned Counsel for the petitioner that this Court should summon the original record of this case for deciding whether any offence has been committed or not.
The writ Court is not meant for trying the petitioner and prima facie on the FIR allegations, which are based on an enquiry conducted by the Economic Offences Wing, it cannot be said that no prima facie case was disclosed against the petitioner. Hence, no useful purpose would be served in summoning the original documents or records of case diary of this case.
We therefore, find no ground to interfere with the FIR specially as the offence under the Prevention of Corruption Act is also disclosed as the petitioner is said to have been involved with some public servants for committing systematic misappropriation in denuding the State of its due tax revenues. The contention of the learned Counsel that no offence of cheating is made out, is also, therefore, not sustainable. By evasion of trade tax on the basis of forgeries in the relevant documents, does prima facie amount to cheating and if a forged document is used, then an offence of using genuine or forged documents u/s 471 IPC is disclosed even if it has not be established at this stage as to who actually had forged this document because prima facie on the documents the petitioner is shown to be an importer and beneficiary. In this view of the matter, we find no force in this writ petition. It is accordingly dismissed. The investigating officer is also directed to conclude the investigation within three months.