S MOHAN GANDHI Vs. VISALAM CHIT FUNDS

JUDGEMENT

(1.) These two revisions have been filed by the Income-tax Department questioning the order dated April 11, 1983, in C.M.P. No. 174 of 1983 in C.C. No. 22 of 1983 and against the order dated September 4, 1984, in C.M.P. No. 1073 of 1983 in C.C. No. 23 of 1983 both on the file of the Chief Judicial Magistrate, Madurai, discharging the respective accused under section 245(2) of the Criminal Procedure Code.

(2.) A few facts are necessary to dispose of these two revision cases. The accused in the two complaints lodged by the Income-tax Officer, Madurai, one in the year 1979, taken on file as C.C. No. 82 of 1979 against Sri Visalam Chit Fund Ltd., and 28 others and another complaint in the year 1980 against Nellai Finance Private Limited and 26 others came up before the Chief Judicial Magistrate, Madurai. Both the complaints were lodged for offences under sections 120B, 193, 196, 420, 468 and 511 of the Indian Penal Code and sections 277 and 278B of the Income-tax Act. The assessment year in both the complaints was 1975-76. These two complaints on transfer have been taken on file as C.C. No. 22 of 1983 and 23 of 1983, respectively, on the file of the Additional Chief Judicial Magistrate, Madurai. The accused in the first case filed Crl. M.P. No. 174 of 1983 and the accused in the second case filed Crl. M.P. No. 1073 of 1983 before the Additional Chief Judicial Magistrate, Madurai, to discharge them from the proceedings initiated against them. Those applications were opposed by the Income-tax Officer on various legal grounds. One of the main grounds is that the court can discharge the accused under section 245 of the Criminal Procedure Code only when the complainant has let in some evidence and that evidence was found to be insufficient by the court for proceeding further. According to the complainant before the lower court no evidence whatsoever had been let in and, therefore, theapplication for discharge could not be decided at all and it is misconceived. However, the learned judge ordered both the applications and thereby discharged all the accused from the prosecution. The learned magistrate, while doing so, mainly took into account the settlement proceedings entered into between the accused on the one hand and the complainant on the other hand in each of the cases.

(3.) I have heard Mr. Ramasamy, K., learned advocate appearing for the Income-tax Department and Mr. K. Ramasamy, learned senior counsel appearing on behalf of Mr. Gani in both the cases. The argument of Shri Ramasamy, K., learned counsel appearing for the revision petitioner, is that the order of discharge passed by the trial court is illegal and premature. The submission of counsel is that the court gets power to discharge the accused under section 245 of the Code only when some evidence is let in on behalf of the complainant. Counsel has cited several authorities on this point and out of the authorities cited by him, I only rely upon the judgment of the Supreme Court in the case of R. S. Nayak v. A. R. Antulay, . The Supreme Court interpreting the scope and impact of sections 227, 239 and 245 of the Code, which operates at various spheres and stages, held that the order of discharge under section 245 of the Code, can be passed only if the evidence referred to under section 244 had been taken. Admittedly, in this case no evidence whatsoever had been let in by the complainant which fact is not disputed by counsel appearing for the respondent and, therefore, the order of the learned trial judge is wholly without jurisdiction and erroneous. Under these circumstances, I have no hesitation in setting aside the orders made in these two revision petitions as illegal and without jurisdiction.