Criminal Complaint against Commercial Taxes Officers conducting

Criminal Complaint against Commercial Taxes Officers conducting Search - factual scenario goes to show proceedings were nothing but abuse of process of law – complaint quashed: Supreme Court NEW DELHI, AUG 31, 2008 : AN Assistant Commissioner of Commercial Taxes conducted a search and got himself stuck as an accused in a criminal case filed by the assessee and now after 13 years of relentless struggle, he is discharged by the Supreme Court. Raiding officers of other Revenue Departments should realise this kind of risks and ensure that they follow the procedure to the P. The appellant, at the relevant time in 1994, i.e. 24.10.1994, was working as Assistant Commissioner of Commercial Taxes. He along with his subordinate staff went to the business premises belonging to the respondent no.2 for carrying out an inspection during business hours. The premises were registered business premises of M/s. Rajani Fireworks whose proprietor is the son of the respondent no.2. The officials went to the premises at 5 p.m. on 24.10.1994. In the same business premises, the documents and business stocks relating to Kasanagottu Srisailam and Bros. were also noticed. During the inspection, the son of the respondent no.2 alongwith one Sri. Kasanagottu Satyanarayana said to be one of the partners of Sri Kasanagottu Srisailam and Bros. were available. A statement of inspection was recorded. The statement was recorded by the appellant on a request of the son of the respondent no.2 on his business letter pad. The statement was written by the son of the respondent no.2 on his own, wherein he duly declared that the shop has been inspected that day at 5.30 p.m. and that till the date of such inspection i.e. 24.10.1994, he had not written any of the books of accounts relating to his business and that he did not even give the returns for the year 1993-94 and also that he did not issue any sale bills. He also declared in writing that he is giving 178 slips containing the transactions relating to his business for a detailed examination by the appellant. The slips were not seized by the appellant but they were submitted on their own by the owners of the business. Since the accounts books were not written by them, these slips were filed before the appellant for a subsequent examination, which was on their own volition. The stock book was signed and returned. No cash was recovered. After a period of three months after the inspection, i.e. on 24.1.1995, the respondent no.2 filed a complaint for alleged commission of offences punishable under Sections 448, 380, 384 and 506 of the Indian Penal Code, 1860 (IPC) before the Judicial Magistrate, Ist Class, Karimnagar, stating that the appellant along with his subordinate, have taken away the bill books, cheque books, records and also Indira Vikas Patras worth Rs. 2 lacs forcibly without giving any acknowledgement and without conducting panchanama duly intimidating his son and forcibly taking the signatures of his son on white papers with an intention to extract Rs.3 lacs. In the complaint it was mentioned that the shop-cum- residence was inspected on 24.10.1994 and the time of inspection was 7 - 9.30 p.m. In the sworn statement he mentioned it as 3 p.m. as the time of inspection. It is relevant to point that the complaint was not made by the owner of the business namely the son of the respondent no.2 but by the respondent no.2 alone. The above complaint was referred by the Magistrate to the police. After a thorough enquiry the police filed a final report on 18.9.1995 that the complaint itself is a false complaint. However, the police report was objected to by the complainant as wrong and incorrect and that it is without any proper investigation. It appears that without giving any reasons whatsoever and without recording any defect in the final report of the police and without any sufficient additional materials, the said objection was taken into cognizance and the Magistrate has issued notice and process to the appellant and his subordinate and the officials were asked to appear before the Court for trial of offences u/s 448, 380, 384 and 506 IPC. [For your ready reference these sections deal with - 380. Theft in dwelling house, etc; 384. Punishment for extortion; 448. Punishment for house-trespass; 506. Punishment for criminal intimidation] The appellant had appeared from time to time before the Magistrate and it was pointed out that the said complaint itself is false and in any case process ought not to have been issued since there was specific bar contained under Section 37 of the Andhra Pradesh General Sales Tax Act, 1957 read with Section 197 of the Cr.P.C. The appellant along with the other officials preferred a petition before the Magistrate under Section 37 of the Act read with Section 197 Cr.P.C. with a prayer to dismiss the complaint. A petition under Section 482 Cr.P.C. was filed before the High Court praying for quashing of the proceedings pending. By the impugned order, the High Court dismissed the Crl.O.P.No. 5218 of 2001 filed by the appellant. The High Court even after noting down all the provisions relevant under the Act and after noting down the protection under Section 197 Cr.P.C. came to hold that "having regard to the specific allegation that officer who has searched and seized the documents has not issued any receipt to evidence that such seizure was in discharge of official duty or any search warrant was issued by the appellant before searching the business premises and the residence of the complaint, it is for the appellant/accused to lead evidence and establish that acts done by him was in due discharge of the official duties and non issue of receipt in evidence of seizure was in dereliction of duties, if any. In the absence of the same, it is not possible for this Court to accept the plea taken by the appellant that the acts complained of are done in discharge of official duty or in dereliction of duties for quashing the proceedings at the initial stage unless the complainant is given opportunity to establish his case." The petition was resisted by the respondent before the High Court on the ground that Section 37 cannot come to the aid of the appellant as the alleged acts had nothing to do with discharge of official duty. With reference to sub-sections (3) and (4) of Section 28 it was observed by the High Court that the acts complained of are not encompassed by the said provision to give any protection to the appellant. Accordingly, the petition was dismissed. The Assistant Commissioner, CT is before the Supreme Court. The Supreme Court observed, 1. Section 37 like Section 197 Cr.P.C. aims at preventing vexatious prosecution and proceedings against public servants. 2. Section 37 puts embargo on institution of suits, prosecution or other proceedings against any officer or any servant of the State Government for any act done or purported to be done under the Act without previous sanction of the State Government. 3. There is a further embargo i.e. no such suit, prosecution or proceeding shall be instituted after the expiry of six months from the date of the act complained of. 4. Sub-section (2) affords protection to the officer referred to above in respect of an act if the same was done in good faith in the course of execution of duties imposed or the discharge of functions entrusted by or under the Act. 5. "Good faith" according to the definition in General Clauses Act means a thing, which is in fact done honestly whether it is done negligently or not. 6. Anything done with due care and attention which is not malafide is presumed to have been done in "good faith" 7. Section 197 Cr.P.C. provides for protection to public servants in discharge of official duties. There is a need to balance between protection to officers and protection to citizens. The Supreme Court referred to its decision in State of Haryana and Ors. v Bhajan Lal and Ors wherein the Supreme Court had given the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (6) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Coming back to the present case, the Supreme Court held, "As the factual scenario goes to show the proceedings were nothing but abuse of the process of law, in view of what is stated in Section 37 of the Act and the ratio in Bhajan Lal's case (supra) the appeal deserves to be allowed. The proceedings in CC No.356/96 pending before learned Additional Judicial Magistrate, First Class, Karimnagar stand quashed.

"Loved reading this piece by ca.bhupendrashah?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Join our Telegram group

Join our Whatsapp group