Heard.

2. The petitioner no.2 in Writ Petition No. 396 of 2012 and applicant in Criminal Application No. 494 of 2012 claim to be the Directors of G.S. Oils Ltd. which is petitioner no.1 in writ petition. For the sake of convenience, the petitioners in writ petition are hereinafter referred to as “the petitioners” and the applicant in criminal application is referred to as “the applicant”. They have challenged the registration of FIR No. 139/2012 for the offences under Sections 406, 409, 420, 465, 471, 468, 120B, 34 of IPC and Section 74(1)(b)(c)(d)(e), 74(2), 74(3)(b)(o)(r), 74(4) of Maharashtra Value Added Tax Act, 2002 at Police Station Wani.

3. Both the petitioner no.2 as well as the applicant claim to be the Directors of the G.S. Oils Ltd. and the applicant further claims that he is not entrusted with any functions in the day to day affairs of the company.

4. The First Information Report (FIR) is registered on the basis of the complaint made by Deputy Commissioner (Vigilance), Sales Tax Department, Amravati Division, Amravati, specifically alleging that the petitioner company had evaded the tax liability of crores of rupees by preparing false record that the goods were exported outside the State when as a matter of fact the goods were sold in the local market thereby evading the sales tax payable to the State.

5. Heard Shri Jaiswal, the learned counsel appearing on behalf of the petitioners in Writ Petition No. 396/202 and Shri Dewani, the learned counsel appearing on behalf of the applicant in Criminal Application No. 494/2012.

6. Shri Jaiswal, the learned counsel has made the following submissions in support of the petition:-

That when a special statute is created by a Legislature to deal with particular type of offences, even if for similar act an offence is created in a general statute i.e. Indian Penal Code, the provisions of the general statute cannot be invoked. The second contention raised is under Section 77 of the Maharashtra Value Added Tax Act, 2002 (VAT Act), the investigation of the crime in question cannot be entrusted to the Police Machinery. The third submission is that the FIR can be registered only after the assessment is completed and the assessing authority comes to a conclusion that there has been evasion of taxes.

7. The learned counsel relies on the judgment of the Apex Court in the case of Jeewan Kumar Raut .vs. C.B.I. reported in (2009) 7 Supreme Court Cases 526 and in the case of MirzaIqbal Hussain .vs. State of U.P reported in AIR 1983 Supreme Court 60.

8. Shri Dewani, the learned counsel appearing on behalf of the applicant in Criminal Application No. 494/2012 submits that the provisions of Section 75 of the VAT Act are analogous to the provisions of Section 141 of the Negotiable Instruments Act. The learned counsel, therefore, submits that unless there are specific allegations against the Director regarding the specific role played by him in the day to day affairs of the company, the offence could not have been registered. The learned counsel submits that on this short ground the proceedings initiated against the applicant deserve to be quashed and set aside. The learned counsel relies on various judgments of the Apex Court i.e. (2008) 5 SCC 662 – S.K. Alagh .vs. State of Uttar Pradesh and others; (2007) 12 Supreme Court Cases 788 – K. Srikanth Singh .vs. North East Securities Ltd; (2008) 5 Supreme Court Cases 668Maksud Saiyed .vs. State of Gujarat and others; (2009) 6 Supreme Court Cases 475 -Keki Hormusji Gharda .vs. Mehervan Rustom Irani; (2010) 11 Supreme Court Cases 469 – State of NCT of Delhi .vs. Rajiv Khurana; (2011) 1 Supreme Court Cases 176 – Pepsico India Holdings Private Ltd..vs. Food Inspector; 2011 (5) SCALE137 – Subhankar Biswas .vs. Sandeep Meta; 2011 ALL MR (Cri) 3603 (S.C.)M/s Thermax Ltd. vs. K.M. Johny; 2012 IV AD (S.C.)489 Aneeta Hada .vs. M/s Godfather Travels & Tours Pvt. Ltd. and the judgment delivered by one of us (Gavai, J.) in the case of Pramod Parmeshwarlal