IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.490 OF 2011 Between:
Purushotham M/s Shiva Enterprises No.222, 4th Cross III Main, Chamarajapet Bengaluru – 560 018 And presently residing at No.285, 15th ‘D’ Cross II Phase, II Stage Near Nandini Theatre Mahalakshmi Layout Bengaluru. ... Petitioner (By Sri C R Gopalaswamy – Advocate for Sri S Chennaraya Reddy - Advocate) And:
The Assistant Commissioner of Commercial Taxes 1st Additional Circle Bengaluru.
... Respondent (By Sri Thejesh .P, HCGP) This Crl. R. P. is filed under Section 397[1] of the Code of Criminal Procedure, praying to, set aside the order dated 26.03.2011 passed by the District and Sessions Judge and Presiding Officer, Fast Track Court-IV, Bangalore in Crl.A.No.770/2010 and judgment and order passed by the Spl. JMFC (Sales Tax), Bangalore in C. C. No. 954/2004.
This petition coming on for Hearing, this day, the Court made the following:
O R D E R This criminal revision petition is directed against the judgment rendered by the Appellate Court in Crl.A.No.770/2010 dated 26.03.2011 dismissing the appeal by confirming the judgment of the Trial Court in C.C.No.954/2004 dated 15.10.2010 convicting the petitioner under Section 255(2) of Cr.P.C. and sentencing him to undergo simple imprisonment of 6 months for the offence punishable under Section 29(1)(c) of the Karnataka Sales Tax Act, 1957 (for short ‘the KST Act’) and sentencing him to pay a fine of Rs.15,000/- for the offence punishable under Section 29(2)(e) of the Act.
2. Factual matrix of the petition is as follows:
The case of the complainant – Assistant Commissioner of Commercial Taxes is that accused – petitioner is the registered dealer under the KST Act. It was found that the petitioner had failed to furnish the true statements and also failed to pay tax in advance as required under Section 12-B(1) of the Act read with Rule 7(1) of the KST Rules. The respondent - complainant had made assessment for the year 1993-94 and finalized the same on the basis of information received from the wholesale distributor of liquors M/s. MSIL, Cunningham Road, Bangalore, who are the consignors of M/s. Shiva Enterprises – petitioner herein and assessed the tax for the year at Rs.1,71,64,730/- which the petitioner failed to pay within the stipulated time. The case of the respondent was that the petitioner had not shown the actual transaction and had fraudulently evaded the sales tax payable by him and hence is said to have committed offences punishable under Sections 29(1)(c), 29(2)(c) and Section 29(2)(e) of the KST Act.
The Trial Court took cognizance of the offence and registered the case where the accused pleaded not guilty and claimed to be tried.
In order to prove the case, the prosecution examined PW-1 and got marked 10 documents as Exhibits P1 to P10. The accused got himself examined as DW-1. The statement of the accused was recorded under Section 313 Cr.P.C. The petitioner - accused had denied all the incriminating evidence and adduced defence evidence.
The learned Magistrate, after hearing both sides and perusing the oral and documentary evidence, by its impugned order dated 15.10.2010 convicted the accused for the offence punishable under Sections 29(1)(c) and 29(2)(e) of the KST Act but however acquitted the accused for the offence under Section 29(2)(c) of the KST Act.
The said judgment of the Trial Court in C.C.No.954/2004 was taken up in appeal in Crl.A.No.770/2010 before the District and Sessions Judge, Bangalore, which appeal came to be dismissed by order dated 26.03.2011 confirming the judgment of conviction and sentence passed by the Trial Court. It is these judgments which are under challenge in this revision petition seeking to allow the petition and thereby to set aside the orders of the Trial Court as well as the Appellate Court.
3. Heard the learned counsel for the petitioner and the learned HCGP for the State and perused the records.
4. Learned counsel for the petitioner – accused contends that both the courts below have failed to apply their mind to the facts and circumstances of the case.
The learned counsel contends that the Magistrate, without taking cognizance in respect of Section 29(1)(c) of the KST Act, recorded the plea for the offences punishable under Section 29(1)(c), 29(2)(c) and 29(2)(e) of the KST Act, which is contrary to law and consequently prejudiced the case of the accused.
It is his further contention that the offences taken cognizance of relates to failure to submit returns as required under the KST Act and evading payment of tax. The alleged offences though relates to the years 1993-94, the charge-sheet has been filed on 28.05.2004, which is clearly beyond the period of limitation of one year as per Section 468(b) of the Cr.P.C. Since the Trial Judge had no jurisdiction at all to take cognizance of the offences in view of the same being barred by limitation, the learned counsel contends that the revision petition ought to be allowed.
In support of his contention, the learned counsel points out to Section 29 of the KST Act which was substituted by Act No.3 of 1998, which came into effect from 1.4.1998. Section 29 of the KST Act relates to offences and penalties to be imposed if there are any lapses in payment of sales tax by a person. The learned counsel contends that the tax assessment relates to the year 1993-94. Whereas the amendment to Section 29 of the KST Act has come into effect as on 01.04.1998, which means that the said amendment has come into prospective effect as on 01.04.1998. Hence he contends that the Trial Court was not justified in giving effect to the amendment to Section 29 of the KST Act in retrospective effect in respect of a sales tax assessment relating to 1993-94 to hold the accused guilty of the offences under Sections 29(1)(c) and 29(2)(e) of the KST Act. It is his contention that the said sections which had not at all come into effect as in the year 1993-94, cannot be applied to the case of the accused. This is the main ground which has been urged in the petition among various grounds. Therefore, he contends that the impugned judgment rendered by the Trial Court which has been affirmed by the First Appellate Court be set aside and the petitioner be acquitted of the offences punishable under Sections 29(1)(c) and 29(2)(e) of the KST Act.
5. Per contra, learned HCGP for the State justifies the order of conviction and sentence passed by the Trial Court under Sections 29(1)(c) and 29(2)(e) of the KST Act which has been affirmed by the Appellate Court as well, which does not call for interference in this revision petition and hence he prays for dismissal of this petition.
6. On a careful consideration of the contentions raised by both the parties, the evidence adduced by the witnesses and the material on record, it is seen that the notice under Sections 29(1)(c), 29(2)(c) and 29(2)(e) of the KST Act pertaining to the year 1993-94 was issued to the petitioner – accused by the Commercial Taxes Department as on 7.10.2003, thereby directing framing of charges against the petitioner. The charge-sheet has been filed on 28.05.2004, which is clearly beyond the period of limitation of one year as per Section 468(b) of the Cr.P.C. Thereafter, the Judicial Magistrate held the charges against the petitioner under Sections 29(1)(c) and 29(2)(e) of the KST Act to be proved and thereby convicted him and sentenced to under simple imprisonment for a period of six months for the offence under Section 29(1)(c) and to pay a fine of Rs.15,000/- for the offence under Section 29(2)(e) of the KST Act.
It is seen that Section 29 of the KST Act, 1957 had been substituted by Act No.3 of 1998 with effect from 1.4.1998. The law is clear that an Act which has come into force as on 1.4.1998 would apply prospectively from that date and not retrospectively. Trial Court as well as the Appellate Court have lost sight of the fact that the assessment under challenge related to the year 1993-94 at which time the said section was not at all in force. Hence, I find that the learned Trial Judge has committed an error in applying the said Section 29 of the KST Act which has come into force only from 1.4.1998, retrospectively, in respect of an assessment of the year 1993-94. On this ground alone, the order passed by the Trial Court which has been affirmed by the Appellate Court as well, requires to be set aside.
Consequently, the petitioner deserves to be acquitted. Accordingly, I proceed to pass the following:
ORDER Crl.RP.No.490/2011 preferred by the Accused – petitioner under Section 397 Cr.P.C. is hereby allowed. Consequently, the judgment rendered by the First Appellate Court in Crl.A.No.770/2010 dated 26.03.2011 dismissing the appeal and confirming the judgment of conviction and order of sentence rendered by the Trial Court in C.C.No.954/2004 dated 15.10.2010 is hereby set-aside. The accused – petitioner herein is acquitted for the offence punishable under Sections 29(1)(c) and 29(2)(e) of the KST Act.
However, it is stated that separate recovery proceedings have been initiated by the complainant – authority against the petitioner – accused, as contended by the counsel. Hence, it is made clear that any observation made in this order would not influence the mind of the authority while dealing with the recovery proceedings said to have been initiated against the petitioner - accused.
Sd/- JUDGE KS