Prosecution for offenses under the IPC is permissible even if there are related provisions under special legislation.

JUDGMENT :

ANIL KUMAR CHOUDHARY

1. Heard the parties.

2. Learned counsel for the petitioners seeks permission of this Court to delete the petitioner No.1 as the petitioner No.1 has erroneously been impleaded as a party to this Criminal Miscellaneous Petition.

3. Prayer is allowed.

4. Registry is directed to delete the petitioner No.1 of this Criminal Miscellaneous Petition with red ink and treat petitioner No.2 as sole petitioner of this Criminal Miscellaneous Petition.

5. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the FIR being Adityapur P.S. Case No.08 of 2022 arising out of C.C. No.585 of 2021 and the order taking cognizance dated 21.02.2024 passed by the learned Chief Judicial Magistrate, Seraikella in connection with the said Adityapur P.S. Case No.08 of 2022 arising out of C.C. No.585 of 2021 involving the offences punishable under Section s 406 , 409, 420 of the Indian Penal Code .

6. The brief facts of the case is that the petitioner No.2 who has been described as the sole petitioner, being the Director of Explorer Auto Enterprises Pvt. Ltd., Adityapur Industrial Area, Seraikella Kharsawan cheated and dishonestly induced the informant-complainant to pay the Goods and Services Tax amount in respect of supply of motor vehicle parts to the complainant on various bills in total amounting to Rs.57,79,263.34/- during the period of 2017-2022 but after being entrusted with the said Goods and Services Tax amount in capacity of merchant/agent by way of cheating, has dishonestly misappropriated the same amount instead of depositing the same with the State Goods and Services Tax Authority. The FIR of Adityapur P.S. Case No.08 of 2022 was registered, consequent upon the complaint of the informant-complainant being referred to the police under Section 156(3) of the Code of Criminal Procedure and after investigation of the case, the police found the allegation against the petitioner No.2 to be true and submitted charge-sheet against him for having committed the said offences and the learned Chief Judicial Magistrate, Seraikella found prima facie case for the offences punishable under Section s 406 , 409, 420 of the Indian Penal Code and held that there is sufficient material available in the case record for further proceeding against the petitioner No.2 and directed to issue summons to him.

7. Learned counsel for the petitioner No.2 draws attention of this Court to Section 132 (1)(d) of the Central Goods and Services Tax Act , 2017 and submits that the same provides punishment for the person who retained the benefit arising out of collecting any amount as taxes but failing to pay the same to the Government beyond a period of three months but as per Section 132 (6) of the said Act, for a person to be prosecuted for such offences, the sanction of the Commissioner is required. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

8. Learned Special Public Prosecutor appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner No.2 made in this Criminal Miscellaneous Petition. Learned Special Public Prosecutor relies upon the judgement of the Hon’ble Supreme Court of India in the case of Jayant & Others vs. State of Madhya Pradesh reported in (2021) 2 SCC 670, para-21.5 of which reads as under:-

“21.5. In a case where the violator is permitted to compound the offences on payment of penalty as per sub-section (1) of Section 23-A, considering sub-section (2) of Section 23-A of the MMDR Act, there shall not be any proceedings or further procee