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IN THE SUPREME COURT OF INDIA
G.S. Singhvi and Asok Kumar Ganguly, JJ.
The Institute of Chartered Accountants of India .......Appellant
Versus
Vimal Kumar Surana and another .......Respondents
CRIMINAL APPEAL NOS._________OF 2010
(Arising out of S.L.P. (Crl.) Nos.3411-3412 of 2009)
Decided on: December 01, 2010.
(b) Chartered Accountants Act, 1949 – Section 28 – Cheating not defined in the Act and no punishment prescribed – A person cannot be prosecuted u/s 28 for cheating or misrepresentation – It does not mean that the victim of such act would be left remediless – Therefore he is entitled to complaint u/s 156 or 200, Cr PC. (Para 14)
(c) Chartered Accountants Act, 1949 – Section 28 r/w Article 20(2), Constitution of India; section 26, General Clauses Act, 1897 and section 300, CrPC – A person cannot be simultaneously prosecuted for contravention of Sections 24, 24A and 26 of the Act and for the offences under IPC for the same acts and omissions – Contention that the Act being special Act will prevail over the general law IPC rejected. (Para 15, 21
(1953) 4 SCR 730; (1969) 3 SCR 65; (1961) 3 SCR 107; (1988) 3) SCC 467; (1988) 4 SCC 655; (2003) 2 SCC 152 – Relied upon
(2009) 6 SCC 316; (2009) 7 SCC 526 – Distinguished
(d) Chartered Accountants Act, 1949 – Section 28 – Provides only for prosecution for contravention of section 24A(1), 25 and 26 – Does not lay down any procedure – Therefore procedures as prescribed in CrPC have to be followed. (Para 24)
(e) Code of Criminal Procedure, 1973 – Section 195 – Respondent alleged to have misrepresented before Income Tax and Trade Tax authorities – These authorities are not court – Section 195 not attracted. (Para 25)
(2005) 4 SCC 370 – Relied upon
AIR 1931 Allahabad 443 – Cited with approval
Facts of the case:
The question arising for consideration in these appeals is whether the provisions contained in Sections 24, 24A and 26 of the Chartered Accountants Act, 1949 operate as a bar against the prosecution of a person charged with the allegations constituting offences under other laws including the IPC.
Respondent, Vimal Kumar Surana, who has passed the examination of Chartered Accountant but is not a member of the appellant-Institute is alleged to have represented himself before the Income Tax Department and the authorities constituted under the Madhya Pradesh Trade Tax Act on the basis of power of attorney or as legal representative and submitted documents such as audit reports and certificates required to be issued by the Chartered Accountants by preparing forged seals. He is also said to have impersonated himself as Chartered Accountant and prepared audit reports for monetary consideration.
The Institute filed a complaint with the Police.
Respondent was charged with offences under Sections 419, 468, 471 and 472 IPC.
Respondent challenged the order of framing charges, by filing revision petition under Section 397 of the Cr.P.C. which was allowed; matter was remanded to trial court. Upon remand the trial court held that there was no basis for framing any charge against respondent under the IPC. It further held that cognizance of offences under Sections 24 and 26 of the Act cannot be taken because no complaint had been filed by or under the order of the Council before the Magistrate.
Appellant’s revision petition thereagainst were dismissed by High Court.
Finding of the Court:
Impugned judgment cannot be sustained.
Result:
Appeals allowed.
JUDGMENT
G.S. Singhvi, J.
1. Leave granted.
2. The question which arises for consideration in these appeals is whether the provisions contained in Sections 24, 24A and 26 of the Chartered Accountants Act, 1949 (for short, 'the Act') operate as a bar against the prosecution of a person who is charged with the allegations which constitute an offence or offences under other laws including the Indian Penal Code (IPC).
3. Respondent, Vimal Kumar Surana, who is a graduate in Commerce and has passed the examination of Chartered Accountant but is not a member of the appellant-Institute is alleged to have represented himself before the Income Tax Department and the authorities constituted under the Madhya Pradesh Trade Tax Act on the basis of power of attorney or as legal representative and submitted documents such as audit reports and certificates required to be issued by the Chartered Accountants by preparing forged seals. He is also said to have impersonated himself as Chartered Accountant and prepared audit reports for monetary consideration.
4. Shri Brij Kishor Saxena, who was authorised by the appellant-Institute to do so, submitted complaint dated 18.3.2001 to the Station House Officer, Police Station, Betul with following allegations:
"1) That the said Shri Vimal Kumar Surana is not registered with the Institute of Chartered Accountants of India as Chartered Accountants, but he being not a Chartered Accountant impersonated in the public as such, and performed such functions which are being performed by a Chartered Accountant. Whereas without being registered as Chartered Accountant, he is not legally authorized to perform the said functions before the Income Tax Department, under the provisions of Income Tax Act, 1961, he represented himself as legal representative. Similarly under Section 31 of the M.P. Trade Tax Act, 1995 he worked on the basis of Power of Attorney or as legal representative. In this manner he has worked contrary to the provision of Section 24 of the Chartered Accountants Act, 1949, which is punishable offence under section 24 of the Act.
2) That in the manner above mentioned, the said Shri Vimal Kumar Surana not being a Chartered Accountant, personated to the public as Chartered Accountant and in the same manner unauthorisedly worked, which is an offence under Section 419 of the Indian Penal Code.
3) That the said Shri Vimal Kumar Surana impersonated himself as the Chartered Accountant, prepared the audit reports; which are required to be issued under different provisions of law and obtained monitory consideration which is an offence under Section 420 of the Indian Penal Code.
4) That the said Shri Vimal Kumar Surana with the intention of cheating with a view to extract money by playing fraud upon the general public, prepared valuable documents such as audit reports, certificates required to be issued by Chartered Accountants for being used, which is punishable offence under Section 468 of the Indian Penal Code.
5) The said Shri Vimal Kumar Surana with a view to perform aforesaid acts prepared forged seals and used the same, which is an offence punishable under Section 472 of the Indian Penal Code. He is in possession of the seal which he uses as Chartered Accountant. Therefore, this act is punishable offence under Section 473 of the Indian Penal code."
5. After conducting investigation, the police filed challan in the Court of Chief Judicial Magistrate, Betul (hereinafter referred to as 'the trial Court'), who passed order dated 10.3.2003 for framing charges against the respondent under Sections 419, 468, 471 and 472 IPC.
The respondent challenged that order by filing revision under Section 397 of the Code of Criminal Procedure (Cr.P.C.). 1st Additional Sessions Judge, Betul allowed the revision, set aside order dated 10.3.2003 and remitted the case to the trial Court with the direction to decide whether there are sufficient grounds for framing charges under Sections 419, 420, 465, 467 and 473 IPC read with Sec
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