Narayana Prasad Gupta vs S. Senthamarai Kannan, Eighth Ito

Arunachalam, J.—The petitioner is the sole accused in C. C. No. 264 of 1983, pending on the file of the Additional Chief Metropolitan

Magistrate, E. O. I., Egmore, Madras. On a private complaint preferred before the trial Magistrate by the respondent who is the VIII Income Tax

Officer, City Circle III, Madras, the petitioner is being prosecuted for the alleged commission of offences punishable under sections 193, 196 and

420 read with section 511 of the Indian Penal Code and sections 276C and 277 of the Income Tax Act.

The prosecution case is that the petitioner, with a view to evade Income Tax and to defraud the exchequer of its legitimate revenues and to

mislead and deceive the Income Tax Officer, committed the aforestated offences punishable under the Penal Code and the Income Tax Act. The

purchase register, sales register, cash book and ledger, two certified true copies of purchase bills and a copy of a sale bill, are stated to have been

fabricated.

In this petition filed u/s 482, Criminal Procedure Code, to call for the records and quash the pending prosecution as not maintainable and an

abuse of process of court, only one contention was urged by Mr. V. Gopinath, learned counsel appearing on behalf of the petitioner. He argued

that the offences punishable under sections 193 and 196, Indian Penal Code would fall within the fold of section 195(1)(b)(i) of the Criminal

Procedure Code and, therefore, no court can take cognizance of those offences except on a complaint in writing by that court or of some other

court to which that court was subordinate. Thought there was no dispute that the respondent was the court, on facts, Mr. Gopinath submitted that

the procedure contemplated u/s 340, Criminal Procedure Code, had not been followed, and this lacuna would be sufficient to exclude these two

offences from the pending prosecution.

I have heard Mr. Ramaswamy K., learned counsel appearing on behalf of the respondent.

I have carefully considered the contention advanced by learned counsel for the petitioner. In terms of section 340, Criminal Procedure Code,

which deals with the proceeding in cases mentioned in section 195, Criminal Procedure Code, the court, after a preliminary enquiry, if any, as it

thinks necessary, has to record a finding that it was of opinion that it was expedient in the interest of justice that an enquiry should be made into the

offences referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to proceeding before it

and thereafter make a complaint in writing and send it to a Magistrate of the First Class, having jurisdiction. In section 340, Criminal Procedure

Code, sub-section (4), reads :

In this section, ''court'' has the same meaning as in section 195.

In section 195, Criminal Procedure Code, sub-section (3), reads,

In clause (b) of sub-section (1), the term ''Court'' means a civil, revenue or criminal court, and includes a Tribunal constituted by or under a

Central, Provincial or State Act if declared by that Act to be a court for the purposes of this section.

Though there cannot be any dispute that the proceeding before the Income Tax Officer is a judicial proceedings, it will have to be decided, if the

Income Tax Officer can be considered as one of the ""courts"" falling within the ambit of section 195, Criminal Procedure Code.

This point is directly covered by the decision of the Supreme Court in Balwant Singh and Another Vs. L.C. Bharupal, Income Tax Officer, New

Delhi and Another, . The apex court held that though the proceeding before the Income Tax Officer for the registration of a firm u/s 26A of the

Indian Income Tax Act. 1922, were judicial proceedings in a court and section 195(1)(b) of the Criminal Procedure Code, 1898, applies, the

Income Tax Officer can''t be treated as a revenue court and neither section 476 nor section 479A of the Criminal Procedure Code would be

applicable. It was not incumbent on the Income Tax Officer to follow the procedure laid down in either of those two sections before he could

validly file a complaint for offences under sections 193 and 196 of the Indian Penal Code, 1860, where forged documents were produced and

false statements made on oath in proceedings u/s 26A of the Indian Income Tax Act. Sections 476 and 479A of the 1898 Code correspond to

section 340 of the 1974 Code. The language of the new section is not totally different to permit any other view being taken.

The law laid down by the Supreme Court would squarely apply to the facts of this case and it has to be necessarily held that the Income Tax

Officer cannot be treated as any one of the courts contemplated in section 195 and 340, Criminal Procedure Code. Therefore, there will be no

need for the Income Tax Officer to follow the procedure laid down in section 340, Criminal Procedure Code, before he can validly launch a

prosecution for the commission of offences punishable under sections 193 and 196, Indian Penal Code.

The Supreme Court had taken note of its earlier view rendered in Lalji Haridas Vs. State of Maharashtra and Another, , while deciding

Balwant Singh and Another Vs. L.C. Bharupal, Income Tax Officer, New Delhi and Another, .

In the result, this petition deserves dismissal and is, accordingly, dismissed.