The finding of the Tribunal cannot render the proceedings before the criminal Court groundless.

As the petitioner and respondent are common in all these petitions and the same question is raised for consideration in all of them, they can be disposed of by a common order.

2. The petitioner herein, an Assistant Commissioner in the Income Tax Department has preferred three complaints alleging commission of offences by the respondent herein in respect of three different periods. These complaints were made on the assertion that the respondent had filed false returns of income. The facts leading to the filing of the complaints do not in any manner weigh upon the issue arising for consideration and hence, are not informed herein.

3. The complaints of the petitioner in EOCC Nos.62,63,64 of 1992 are as follows:

a) wilful attempt to evade Income-tax under Section 276C(1) of the Income-tax Act, 1961;

b) filing of false return of income with false statement of accounts under section 277 of the Income-tax Act, 1961;

c) fabricating false evidence under section 193 IPC;

d) using such false evidence in judicial proceedings before the Income-tax Officer under section 196 IPC;

e) cheating the Income-tax Officer under section 420 IPC.

for the Assessment Years 1984-85, 1985-86 and 1986-87.

4. Penalties were levied upon the respondent u/s. 271(1) (c) of the Income Tax Act. Against the orders of penalty imposed by the department, the respondent filed appeals before the Income Tax Appellate Tribunal, Madras. The Economic Offences Court has taken cognizance of the complaints while these appeals were pending. The Appellate Tribunal allowed the appeals and the penalties levied against the respondent were cancelled. The respondent had moved petitions for discharge on 06.03.1996 before the Economic Offences Court. The contention therein is that in view of the order of the Appellate Tribunal undoing the levy of penalty, the very basis of prosecution in the complaint case has been taken away and as such the complaints ought to be dismissed as groundless. The petitioner filed counter and the said petitions have not been disposed of till date.

5. The petitioner herein has filed a petition under Section 244(2) Cr.P.C. on 21.07.2005, seeking a direction for issue of process to the list witnesses towards their examination. This was done on the basis of a direction passed by this Court in decision reported in 217 ITR 839.

6. The decision of this Court in 217 ITR 839 came about in the following manner:

A petition under Section 311 Cr.P.C. was moved before the trial court by the petitioner herein, which was allowed. The respondent challenged that order. This Court under order dated 17.04.1995 rejected the contention of the respondent observing as follows:

"the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Accepting the contention of the petitioner amounts to narrowing the scope of Section 244, Criminal Procedure code, and would actually lead to grave injustice and hardship to the complainants."

7. The petitioner informs that pursuant to the order of this Court, witnesses were produced before the lower Court, but the matter has been adjourned on a petition moved on behalf of the respondent under Section 309 Cr.P.C. Thereafter, the respondent filed a petition under Section 245(2) Cr.P.C. seeking discharge.

8. The petitioner had filed a counter taking the stand that 245(2) Cr.P.C. petition was not maintainable without the evidence of the prosecution being recorded under Section 244 (1) Cr.P.C. The contention was that the petition under Section 245(2) Cr.P.C. will be considered only after taking evidence of the prosecution under Section 244(1) Cr.P.C. The petition moved by the respondent under Section 245(2) Cr.P.C. had been kept endlessly pending and the reason therefor is not clear. As above stated, on 21.07.2005, the petitioner moved a petition under Section 244(2) Cr.P.C. before the trial Court seeking a direction for issue of process to the witnesses.

9. The