UNION OF INDIA Vs. GUPTA BUILDERS PVT LTD

JUDGEMENT

(1.) Heard learned counsel for the petitioner. None appears for the respondents though they are served. Respondent No.4 however was deleted from the array of parties by the petitioner.

(2.) Brief facts which are relevant for the purpose of deciding this application are as under:-

(3.) Learned Additional Chief Metropolitan Magistrate allowed the discharge application filed by the accused and discharged from the same prosecution. Trial court has held that there was delay of 10 years in initiating prosecution and therefore, further held that no notice was issued before launching the prosecution. He further held that it was necessary to issue notice to the accused before launching prosecution and also to give personal hearing and if such personal hearing is not given prosecution would not be sustainable. He relied on the judgment of Supreme Court in the case of C.B.Gautam Vs. Union of India reported in 199 I.T.R. 530(SC). Learned counsel for the petitioner submitted that accused had continuously committed an offence in not depositing the amount and therefore question of delay did not arise as it was continuous offence. He further submitted that period of limitation would not apply to the case of prosecution where the punishment is more than three years. He further submitted that punishment prescribed for the offence punishable U/s.276-B was upto seven years and therefore, provisions of Section 468 of Cr.P.C. would not apply to the facts of present case. He submitted that ratio of the judgment in C.B. Gautam V/s. Union of India(Supra) would not apply to the facts of present case since in the said case Supreme Court had construed the provisions of Income Tax Act and had observed that notice had to be issued to assessee before imposing civil liability. He further submitted that said ratio would not apply to the case where criminal prosecution was launched against the accused. He further relied on the judgment of Supreme Court in the case of Union of India V.Banwari Lal Agarwal reported in AIR 1999 SC 196 wherein Supreme Court has held that giving of prior notice or opportunity of hearing would not necessary as that could be done after the institution of proceedings. Though respondents were served, none appears for the respondents. Respondent No.4 is deleted from the array of parties and therefore, order of discharge has been confirmed so far as respondent No.4 is concerned.