BANWARI Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) These three appeals arise out of a common order dated 14/03/1980 of the High court of Bombay, Nagpur bench, Nagpur, reversing the order of discharge passed by the learned Judicial Magistrate, I Class, 6th court, Nagpur. Briefly stated the facts are that the appellants were running a partnership concern known as Loiya Brothers at Kamptee, Nagpur. This registered partnership firm was carrying on business in the manufacture of 'bidis' in the relevant assessment years. It had ceased to do business w. e. f. 31/12/1972 but in their returns for the years inquestion they had mentioned the date of cessation of business as 31/12/1969. These returns were filed on 16/08/1973 and as soon as the mistake was noticed on 17/08/1974 it was corrected on 26/08/1974. The Income Tax Officer, however, filed three complaints in respect of the statements made out by one of the partners on 23/11/1973 and 17/08/1974 alleging that accused 2, a partner of the firm, had made false statements on verification which was punishable under Section 277 of the Income Tax Act and Section 420 of the Indian Penal Code. When these three complaints were taken up for hearing a preliminary objection was raised that on the face of the complaint no charge was made out and hence they were entitled to be discharged under Section 245 (2 of the Code of Criminal Procedure. The learned Magistrate after perusing the averments in the complaint and the supporting documents came to the conclusion that the date of cessation of business mentioned as 31/12/1969 was merely a bona fide mistake and no mensrea could be culled out and accordingly directed discharge of the accused persons. Against the said order passed in the three complaints, three revision petitions were carried to the High court, The High court by an elaborate judgment came to the conclusion that without recording evidence it was not open to the learned Magistrate to discharge the accused on the plea that the mistake was a bona fide one. It also took the view that all of them could be dealt with the aid of Section 34 Indian Penal Code. In this view that the High court took it allowed the Revision Applications, set aside the order of the learned Magistrate and remitted the complaints to the learned Magistrate to be dealt with in accordance with law. It is against the said order passed by the High court that the present three appeals have been preferred on certificate granted by the High court.

(2.) This court admitted the appeals and granted an interim stay of further proceedings in the trial court. Therefore, for more than a decade now the proceedings have been pending in the trial court. We do not see that any useful purpose will be served by proceeding with the complaint after such a long lapse of time. It seems that after the returns were filed on 16/08/1973 one of the partners i. e. accused 2, was examined by the department on 17/08/1974. On that occasion he stated that the business had been discontinued w. e. f. 31/12/1969 but within 10 days thereafter on 26/08/1973 he intimated that he had committed a mistake and the correct date of cessation of business was 31/12/1972. Taking these facts into consideration the learned Magistrate came to the conclusion that a bona fide mistake was committed in mentioning the date of cessation of business as 31/12/1969 instead of 31/12/1972. We think having regard to the facts and circumstancesof the case the learned Magistrate could not be said to have been grossly wrong in interring that it was merely a bona fide mistake. Be that as it may, after this long lapse of time we see no reason for the continuance of the proceedings of 1977 which have become totally State now. In the result we allow these appeals, set aside the order of the High court and restore the order of the learned Magistrate discharging the appellants before us.