RANA SENGUPTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD M/s N.K. Agrawal, Sr. Advocate, and D.N. Tiwari, Advocate, on behalf of the petitioners and Mr. Jharkhandi Upadhaya, the learned A. P. P. for the State.

(2.) THROUGH this application the petitioners have prayed for quashing of the entire Complaint Case No. 596/2003 including the order dated 20.2.2004 passed therein by Sri R.K. Singh, Judicial Magistrate, 1st Class, Madhepura, whereby he has taken cognizance under Section 420 I.P.C. One Ghanshyam Prasad Jaiswal, the complainant, proprietor of M/s Anand Trading Company, Bihariganj, filed the aforesaid complaint alleging the commission of offences under Sections 427, 384, 420/34 I.P.C. against the petitioners and others on the allegation that his Company happened to be the dealer of Hindustan Lever Limited (hereinafter referred to as "the Principal Company") till the year 1999 and used to do his business at Bihariganj and at the time of agreement with the complainant obtained his signature on certain plain and printed papers and that the complainant was not made aware of the conditions of the agreement. It was also alleged that the Principal Company failed to supply Form IX -C for exemption of sales tax to the complainant for the period 1997 -98 and 1998 -99 even after repeated demands made by the complainant which the Principal Company was under an obligation to provide to the complainant as stipulated by Rule 12(2) of Bihar Finance Act, 1981 (hereinafter referred to as "the Act") ar.d as such the accused persons had cheated the complainant. It has also been alleged that a proceeding under Section 17 (a)(1) of the Act was initiated against the complainant for the financial years aforesaid wherein the complainant was directed to produce his books of accounts but due to non -availability of Form IX -C the complainant could not present his case and as a result thereof an ex parte order of assessment was passed against him and complainant was directed to pay Rs. 3,03,000/ - for the year 1997 -98 as sales tax including penalty and Rs. 2,22,690/ -as sales tax including penalty for the year 1998 -99. It has also been alleged that during the aforesaid two assessment proceedings the complainant had approached the accused persons but he was not provided with Form IX -C and as a result thereof he has incurred financial loss and the accused persons were liable for the loss incurred by the complainant.

(3.) IT has been submitted on behalf of the petitioners that it was apparent from the complaint petition itself that due to non -appearance of the complainant before the assessing authority he has been imposed with penalty through an ex parte order and the petitioners in the circumstances, even by the remotest means, cannot be made liable for the same. It has also been submitted that Section 45 of the Act provides for appeal against order of assessment and the complainant was free to avail of the statutory remedy provided under the Act and could have obtained the duplicate IX -C Forms from the Company after giving indemnity bond and could have produced the same before the appellate authority for setting aside the assessment order but he did not do so and has filed the complaint with the ulterior motive of harassing the petitioners.