KEJRIWAL BROTHERS Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard learned counsel for the petitioners, learned counsel for the State as also learned counsel for the Revenue. The petitioners have challenged the order dated 20.12.2002 passed by the learned 2nd Subordinate Judge-cum-Special Judge Economic Offences. Dhanbad, in Complaint Case being C.A. No. 303 of 1992, whereby the application for discharge filed by the petitioners under Section 245 of the Cr PC, has been rejected by the Court below. Petitioner No. 1 is a partnership firm and the rest of the petitioners are the partners therein.

(2.) The complaint case was filed by the complainant, Union of India through the Assistant Commissioner of Income Tax, Investigating Circle-I, Dhanbad. against the accused firm and its partners alleging that for the assessment year 1988-1989 the accused firm had filed its return of income showing total income of Rs. 86,100/-. Subsequently, a search operation under Section 132 of the Income Tax Act was conducted in the premises of the accused persons and during search one of the partners namely Shiv Kumar Kejriwal, whose statement on oath was recorded under Section 132(4) of the Income Tax Act, declared/surrendered Rs. 5,00,000/- as undeclared income for the assessment year 1988-1989. Alleging that a reasonable opportunity was given to the assessee to explain under what situation/circumstances the concealed income of Rs. 5,00,000/- was not shown in the return of assessee for the assessment year 1988-1989, but no satisfactory explanation to this effect was furnished, the said complaint petition was filed alleging that the accused No. 1 in connivance with accused Nos. 2 to 6 had willfully attempted to evade taxes by concealing the particulars of their true income and by furnished false statement in verification portion of their return and had thus rendered themselves liable for prosecution under Sections 276-C and 277 of the Income Tax Act and proper sanction, therefor, was also obtained.

(3.) It appears from the impugned order that prima-facie case was found against the petitioners and the petitioners were summoned to face the trial. It also appears that trial was going on, in which one witness was examined on behalf of the Revenue and some documents were also marked as exhibits, when the application under Section 245 of the Cr PC was filed by the accused persons for discharge, submitting that the order of penalty passed under Section 271(1)(c) of the Income Tax Act for the same alleged undeclared income, was reversed by the Income Tax Appellate Tribunal in I.T.A. No. 531 (Pat.)/1993 by order dated 22.7.1996 and the penalty imposed upon the partners were directed to be refunded by the Income Tax Appellate Tribunal. By the impugned order dated 22.12.2002 the application filed by the petitioners was rejected by the Court below holding that in the present case the complainant had brought evidence under Section 244 of the Cr PC, oral as well as documentary, and if these evidence be left unrebutted, they would warrant the conviction of the accused persons. It has also been held by the learned Court below that the penalty proceeding cannot be a condition precedent for initiation of the prosecution against the accused persons and as such, the reversing of the order of penalty cannot bar the criminal proceeding against the accused persons. As the Court found sufficient materials, oral as well as documentary on the record, which if unrebutted would warrant conviction against the, accused persons, the petition filed under Section 245 of the Cr PC was rejected by the Court below by order dated 20.12.2002 which has been challenged in the present revision application.