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Judgment
Honourable Mr. Justice R. Sudhakar
This writ petition has been filed praying to issue a Writ of Mandamus directing the respondents to return the cheque bearing No. 441037 dated
08.11.2012 for Rs. 2,90,206/-drawn on Indian Bank, Wallajapet, Vellore, to the petitioner which was collected pursuant to the statement dated
08.11.2012 and also direct the respondents not to present the above cheque for encashment to the Bank. The petitioner is a registered dealer
under TNVAT Act and CST Act. Based on inspection and recording of statement on 8.11.2012, petitioner was called upon to deposit a cheque
dated 8.11.2012 for Rs. 1,90,206/-. In the statement petitioner has not accepted his liability. That is also a protest against the tendering of the
cheque by letter dated 17.11.2012 seeking return of the same. Since the same has not been considered, the mandamus has been filed.
Heard Mr. A.R. Jayaprathap, learned Government Advocate (Tax) appearing for the respondents.
In similar issue considered by this Court in W.P.No. 28901 of 2012, this court passed the following order on 15.11.2012:
Mandamus sought for by the petitioner deserves to be allowed considering the contentions raised by the learned counsel for the petitioner, who
states that the cheque, which is the subject matter of the writ petition was collected without authority of law and without there being a valid
proceedings. According to the petitioner, in the course of inspection on 28.8.2012, a statement was recorded and a cheque was obtained allegedly
stating that the cheque was voluntarily given. It is stated that the cheque was taken by coercion. On this premise, the writ petition is filed to direct
the respondents to return the cheque dated 28.8.2012 referred to above and not to encash the same.
The learned counsel for respondents, on instructions, states that similar instances had happened earlier and suitable directions have been issued
to the authorities not to indulge in collection of cheques without following the due process of law.
In the present case, there is no adjudication or a demand, which calls for payment of tax or penalty whatsoever. In such view of the matter, the
respondents are not entitled to collect the cheque in such a manner in the absence of a legal claim and without following the due process of law.
The exercise of executive power should be within the limits of law. It cannot be exercised in an arbitrary and capricious manner as has been done
in this case.
It is brought to notice that this Court on an earlier occasion in an almost similar plea made in W.P.No. 4034 of 2009 on 9.4.2009 an order was
passed directing the respondents to return the cheques within a time frame. It only goes to show that the authorities are acting in a defiance of law.
Such acts of the authority are deprecated.
The petitioner should have made a complaint to the higher authorities about the conduct of the respondents, and if no action is taken then he can
move this Court by filing a writ petition under Article 226 of the Constitution of India. Petitioner should have made a demand to the authority to
return the cheque said to have been collected unauthorisedly and on refusal, the Mandamus could be filed.
In the result, considering the stand taken by the learned counsel for the respondents and the fact that the cheque is not issued in respect of any legal
demand, the second respondent is directed to return the cheque mentioned above forthwith on receipt of this order. This writ petition is ordered
accordingly. Consequently, M.P. No. 1 of 2012 is closed. No costs.
The above decision will apply to this case also. Accordingly, this writ petition is allowed on the above terms. The first respondent is directed to
return the cheque mentioned above forthwith on receipt of this order.