Court No. - 53
Case :- APPLICATION U/S 482 No. - 12896 of 2004 Applicant :- Chandra Bhan Sharma and another Opposite Party :- State Of U.P. And Others Counsel for Applicant :- R.P. Mishra Counsel for Opposite Party :- Govt. Advocate
Hon'ble J.J. Munir,J.
This is an application under Section 482 Cr.P.C. seeking to quash further proceedings of Criminal Case No. 5853 of 2004 arising out of Case Crime No. 394 of 2003 under Sections 420, 467, 468, 471 and 120-B I.P.C. pending before the Court of the Chief Judicial Magistrate, Ghaziabad.
The prosecution has commenced on an FIR lodged by the Assistant Commissioner, Trade Tax Mobile Squad, Unit B, Noida, District Ghaziabad, who apprehended vehicle bearing Registration No. HR - 47 - 3896 of which applicant no. 1 is the driver and applicant no. 2 is the registered owner. The vehicle was apprehended by the officials of the trade tax department on 11.06.2003. The Trade Tax Officer filed the present FIR on 11.6.2003 with allegations that the goods being carried in the vehicle, last mentioned, were held on the basis of papers that were forged, where two firms shown with different names on the invoices, bore the same registration number from the Trade Tax Department. There is some further detail of bogus and forged documents carried on board vehicle, with the intention to evade revenue. The applicants were reported to the police for the commission of offences punishable under Section 420, 467, 468, 471 and 120-B I.P.C. The police after investigation, proceeded to file the impugned charge sheet dated 14.05.2004. The Chief Judicial Magistrate took cognizance of the same on 31.05.2004. This application was filed on 20.11.2004, when this Court issued notice and stayed further proceedings before the Magistrate.
A counter affidavit on behalf of the State has been filed, but the same is not traceable on record. It is a counter affidavit dated 5th July, 2008. A copy of the same has been supplied by the leaned A.G.A., which is taken on record and shall form part of it.
Heard Sri R.P. Mishra, learned counsel for the applicants and Sri J.B. Singh, learned A.G.A. assisted by Sri Avaneesh Shukla appearing on behalf of the State.
The submission of the learned counsel for the applicants is that the present prosecution is barred by the provisions of Section 14(3) of the U.P. Trade Tax Act, 1948. Section 14 under reference, provides as under:-
"14. Offences and penalties.–(1) Any person who–
(a) fails to pay without reasonable cause within the time allowed the tax assessed on him under this Act ; or
(b) [* * *] Omitted by Act No.22 of 1984
(c) being liable to pay the tax under this Act, carries on business as a dealer without applying for registration under and in accordance with Section 8-A; or
(d) refuses to permit or refuses or neglects to produce for inspection, examination any book, document or account, or refuses to allow copies to be taken in accordance with the provisions of Section 13; or
(e) act in contravention of the provisions of this Act or the rules made thereunder, shall, without prejudice to his liability under any other law for the time being in force, and in addition to the recovery of tax or any other dues payable to him under this Act, on conviction be punishable with fine which may extend to two thousand rupees, and where the default is a continuing one, to a further fine which may extend to Rs. 50 for every day after the first day during which the default continues:
Provided that, in the event of a second or subsequent conviction under clause (a) of this sub-section, the minimum punishment to be awarded shall be a fine of five hundred rupees or the amount of tax involved in the offence, whichever is less.
(2) Notwithstanding anything in sub-section (1), any person who wilfully--
(a) submits a false return of turnover under this Act; or (aa) uses arty goods purchased after payment of the tax at concessional rate, or without payment of any tax, under Section 4- B for a purpose other than that for which a recognition certificate was granted under that section, or otherwise disposes of such goods; or (aaa) being liable to pay the tax under this Act, fails to submit, without reasonable cause, return of his turnover under the provisions of this Act or the rules made thereunder or fails to deposit the tax before or alongwith the return as provided in sub- section (1-A) of Section 7; or
(b) maintains or produces false accounts, registers or documents; or (bb) [* * *] Omitted by U.P. Act No.1 of 1973
(c) issues or furnishes a false certificate or declaration, by reason of which a tax on sale or purchase ceases to be leviable under this Act or the rules made thereunder; or
(d) makes a false verification or declaration on an application for registration or in connection with any other proceeding under this Act; or
(e) evades payment of the tax which he is liable to pay under this Act; or
(f) obstructs or prevents an officer empowered under Section 13 from performing any of the functions specified in subsections (2), (3), (4), (4-A) and clause (a) of sub-section (5) of Section 13 and in sub-section (1) of Section 13-A; or (ff) tampers with any seal put under sub-section (4-A) of Section 13; or
(g) demands or charges on the sale or purchase of any goods any tax, not due under the provisions of this Act; or (gg) obstructs or prevents the officer-in-charge of a check-post or barrier established under Section 28 from performing any of his functions under this Act; or
(h) refuses or neglects to furnish any information which may be in his knowledge or possession and which he has been required to furnish for the purpose of this Act, or furnishes information which is false in any material particulars; or
(i) carries on or continues to carry on business as a dealer without furnishing the security demanded under Section 8-C, shall without prejudice to his liability under any other law for the time being in force, and in addition to the recovery of tax or any other dues payable by him under this Act, on conviction, be punishable with simple imprisonment which may extend to one year or with fine, or both, and where the default is a continuing one, to a further fine which may extend to Rs. 100 for every day after the first day during which the default continues:
Provided that in the event of a second or subsequent conviction, the minimum punishment to be awarded shall be simple imprisonment for a term of three months.
(3) No Court shall take cognizance of any offence under this Act or under the rules made thereunder except with the previous sanction of the Commissioner, and no Court inferior to that of a Magistrate of the first class shall try any such offence.”
(Emphasis by Court) He submits that the present offence having arisen on the report of the Assistant Commissioner, Trade Tax Mobile Squad, Unit B, relating to a matter where the trade tax authority, reported the matter to the police, concerning evasion of revenue through preparation of false documents, the order of cognizance passed by the Magistrate and proceedings before him, are barred by the provisions of Section 14(3), U.P. Trade Tax Act, 1948.
Learned A.G.A. has opposed the aforesaid submission of the learned counsel for the applicants and urged that the police, after investigation, have found the offences clearly disclosed and submitted a charge-sheet on the basis of materials collected during investigation. He submits that, therefore, no case for quashing the impugned charge sheet is made out. So far as the submissions regarding the bar created by Section 14(3), U.P. Trade Tax Act, 1948 is concerned, it is submitted by learned A.G.A. that the same is not attracted.
This Court has carefully considered the submissions advanced on both sides. A perusal of Section 14, U.P. Trade Tax Act shows that Section 14(1) speaks about offences and penalties, and defines offences under the said Act, vide sub-Clauses (a) to (e) of sub-Section (1). Likewise, sub-Section (2) of Section 14 also contemplates distinct offences, defined vide Clauses (a) to (i) of sub-Section (2). A violation of any of these offences under Section 14(1) and 14(2) attracts penal liability which, on conviction or subsequent conviction, may result in sentence of imprisonment or fine. In cases of second or subsequent conviction, the sentence prescribed is higher. Sub-Section (3) of Section 14, U.P. Trade Tax Act is to be read with reference to the provisions of Section 14, as it clearly speaks about a bar to the congnizance of an offence under the Act, which means the U.P. Trade Tax Act. It does not relate to offences under the penal code. In the present case, the offences charged against the applicants are all offences under the penal code, involving forgery and preparation of false documents. These are not offences under Section 14 of the U.P. Trade Tax Act so as to attract the bar on cognizance, contemplated vide Section 14(3) of the said Act.
In this view of the matter, the ground on which the applicants challenge the impugned proceedings is not tenable. The fact that a charge-sheet has been filed on the basis of material collected during investigation, clearly leads to a position where the case is required to be tried in accordance with law. No other point was pressed. Thus, no case for interference with the impugned charge-sheet is made out. The application fails and is dismissed, accordingly.
The interim order, if any, stands vacated.
Let a copy of this order be communicated by the office to the Magistrate concerned, through the Chief Judicial Magistrate, Ghaziabad.
Order Date :- 19.12.2018 Anoop/ BKM/-