Back
Gujarat High Court
Judgename :SHARAD D.DAVE
ALKESH SUBODHCHANDRA SHAH - Appellant
Versus
STATE - Respondent
CRIMINAL REVISION APPLICATION 130 of 1989
Decided On : 05/04/1994
The plea of the accused, namely that the material does -not disclose a case on which they could be tried before the trial -Court, which was already accepted by the learned Metropolitan Magistrate, -if were to be again accepted by the learned Addl. City Sessions Judge, -then definitely there should have been a conclusion of the proceedings -launched against the petitioner accused. Viewing the matter from this -angle it appears that the orders under challenge cannot be said to -be interlocutory orders against which the revision application would -not be maintainable before this Court. The real intent and the purport -of the provisions contained under section 397(3) of the Code of Criminal -Procedure, 1973. This provision would while eliminating the scope -of two successive revision petitions by the same party would say that, -if a revision application under this section has been made, by any -person either to the High Court or to the Sessions Court, no further -application by the same person shall be entertained by either of them. -But when once the Revision Application has been accepted by the Sessions -Court and a finding adverse to the case of the petitioner accused -has been recorded, in all fairness and under the law also, it could -not be urged that now the petitioner accused cannot come before this -Court under a revision. If the orders granting discharge were found -not to be interlocutory, how the orders of not granting the discharge -and directing the charges to be framed could be said to be interlocutory -so as to bar the jurisdiction of this Court under section 397 (2) -of the Code? On a careful analysis of the views expressed by the Supreme -Court and the provisions contained under section 397 of the Code of -Criminal Procedure, 1973, it is apparently clear that the present -Criminal Revision Applications cannot be said to be not maintainable -or barred under section 397 (2) of the Code of Criminal Procedure, -1973 as having been filed against Orders which are interlocutory in -nature. The preliminary objection on this count raised by the learned -counsels Mr. Naik and Mr. Mehta thus in my view fails.
[Paras 15 & 17]
Criminal Procedure Code, 1973-Secs. 245(i) and 397(2)-Discharge-Magistrate -though not required to appreciate evidence but he has to form the -opinion on the prima facie case-In the instant case discharge -order was justified.
At the stage of framing of the charge, the Magistrate -is not required to appreciate the evidence meticulously but he has -to form an opinion on the prima facie case. The power to discharge -is exercisable under section 245(1) of the Code when the Magistrate -considers, for reasons to be recorded, that no case against the accused -have been made out which, if unrebutted, would warrant his conviction. -In fact on the analysis of the material made available to him in the -instant cases the learned Metropolitan Magistrate has come to the -conclusion that no such case is made out. It appears that, he was -perfectly justified in his conclusion, regard being had to the legal -and the factual position.
[Para 35]
Income Tax Act, 1961-Sec. 276-C-Wealth Tax -Act, Sec. 35-A-Wilful attempt to evade income tax and wealth tax-Prosecution -against accused-assessees-Returns showing income for other sources -accepted by Department-No proceedings pending-Held, money -and valuables recovered during search and seizure can be attributed -to the financial year, the income of which has been assessed.
As the case of the assessee has been accepted in full -and as no penalty proceedings for the concealment of the income or -for showing incorrect particulars in the return were initiated, the -prosecution could not have been launched on the basis of some view -which right from the initiation, was even according to the department -in favour of the assessee accused. As the case of the assessee has been accepted in full -and as no penalty proceedings for the concealment of the income or -for showing incorrect particulars in the return were initiated, the -prosecution could not have been launched on the basis of some view -which right from the initiation, was even according to the department -in favour of the assessee accused.
( 1 ) THESE Common Orders shall govern the disposal of these three Criminal Revision Applications presenting common questions of law and facts.
( 2 ) THE Questions of Law in the background of Facts, indisputed and accepted are :- (1) When the money/or the value of the valuable articles, found dunning search operations during a year, has been accepted as the deemed income of the assessee for such financial year by the Income-Tax department and also as wealth on the basis of the Returns to be filed by the assessee - can there be a charge of a wilful attempt to evade income-Tax and also the Wealth-Tax for the said year ? (2) Whether the Orders of the City Sessions Court in Revisional Jurisdiction, quashing the Magisterial Orders discharging the accused, and directing the framing of the charges, can be said to be Interlocutory orders, not amenable to Revisional Jurisdiction of this Court under Sec. 397 (2) of the Code of Criminal Procedure, 1973 ? (3) Whether, in the facts and circumstances of the cases, the assesseeaccused persons should have been put on trial for wilful attempt to evade Income-Tax and Wealth-Tax ? to these questions, the answers in my view need to be in Negative.
( 3 ) CRIMINAL Revision Application No. 130 of 1989 : the Income-Tax Department had carried out the search operations at the residential premises of the accused Alkesh Shah on 24-1-1984 exercising their powers under Sec. 132 of the Income-Tax Act, 1961. During the search operations a cash amount of Rs. 70,488. 00 was recovered and/or found. Out of this, an amount of Rs. 65,oco. 00 was treated as an amount of which the nature and source of acquisition were not explained. It appears that the necessary return for the assessment year 1984-85 came to be submitted by the accused-assessee before the requisite date. It is not in dispute that the returned income, as shown by the assessee in the return, has been accepted and that the tax thereon has also been assessed. It is also not in dispute that no penalty proceedings against the assessee-accused were taken out, either for the concealment of the income or for showing incorrect particulars in the return. It is indeed true that some penalty proceedings were initiated against the accused-assessee on the ground that, there was a delay for the payment of the instalment of the advance tax and that the correct particulars in respect of the advance tax were not given. But again, later on these proceedings have been dropped. The factual and legal position, therefore, identifiable from this set of facts, is that the amount so recovered during the search operations was shown by the assessee-accused as his income in his return and the same has been accepted by the Income-Tax authorities and the assessment orders have been made. Any how it appears that, later on Criminal Cases Nos. 185 and 236 of 1986 came to be instituted on the basis of two complaints to be filed by the Competent officials. The said complaints related to the offence punishable under Sec. 276-C of the income-Tax Act, 1961 and for the offence punishable under Sec. 35-A (1) of the Wealth-Tax Act, 1957. The evidence of the complainant was recorded and all the material on which the prosecution wanted to place reliance was made available to the learned Addl. Chief Metropolitan Magistrate. After that exercise was done, there was a prayer coming from the assessee-accused that looking to the said material, he requires to be discharged from the proceedings. This prayer appears to have been accepted by the learned metropolitan Magistrate on the ground that, he could see no reasonable ground to believe that the accused had committed the offences as alleged by the Department. The learned Metropolitan Magistrate, was also of the opinion that there was no sufficient material which would justify the framing of the charges against the assessee-accused. This view was taken and expressed by the learned Addl, Metropolitan Magistrate by his orders dated 16/06/1985.
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
