K.K. DANDAPANI, vs. THE COMMISSIONER OF INCOME TAX (APPEALS),
What did the High Court hold?
The High Court, while acknowledging that it could not find any infirmity in the reasons stated in the impugned order of the learned Chief Judicial Magistrate, decided to grant an opportunity to the petitioner to cross-examine the witnesses and adduce his evidence, considering the totality of the circumstances. The Court noted that the omission to cross-examine the prosecution witnesses could lead to prejudice and potentially delay the proceedings. Therefore, as a last chance and to avoid a one-sided prosecution, the application was allowed on terms. The impugned order dated 05.04.2024 was set aside. The petitioner was directed to pay a cost of Rs. 2,500/- to the Kerala Legal Services Authority by 19.06.2024. PW1 and PW2 were to be cross-examined between 22.07.2024 and 29.07.2024. The petitioner was also to bear the cost for procuring the witnesses again. The Court left undecided whether the application was indeed an attempt to delay proceedings, focusing instead on providing an opportunity for a fair trial.
What were the facts?
The petitioner, P.M. Abdul Nazeer, is the accused in C.C. No. 1193 of 2017 before the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam. He is being prosecuted under Sections 276C and 276CC of the Income Tax Act, 1961. During the trial, the prosecution witnesses PW1 and PW2 were examined but were not cross-examined by the defence. Subsequently, the petitioner filed an application under Section 311 of the Criminal Procedure Code, 1973, seeking to reopen the evidence to cross-examine PW1 and PW2. This application was dismissed by the learned Chief Judicial Magistrate by an order dated 05.04.2024, who found the application vague, incomplete, and an attempt to delay proceedings.
What were the issues?
1. Whether the High Court, in its supervisory jurisdiction under Article 227 of the Constitution of India, should interfere with the order of the Additional Chief Judicial Magistrate dismissing the application filed under Section 311 Cr.P.C. to recall prosecution witnesses for cross-examination and to adduce defence evidence, considering the alleged failure of the defence to cross-examine the witnesses during trial? Assessee's Contention: The petitioner argued that an opportunity should be granted to cross-examine the witnesses and adduce defence evidence, as the omission to cross-examine could lead to prejudice and prolong the proceedings. The petitioner sought to reopen the evidence as a last chance. Revenue's Contention: The State respondent contended that the application was an attempt to delay the proceedings, and the learned Chief Judicial Magistrate had correctly dismissed it for being vague, incomplete, and lacking in specificity regarding the relevancy of the evidence sought to be adduced.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
JUDGMENT Petitioner is the accused in C.C.No.1193/2017 on the files of the Additional Chief Judicial Magistrate Court (Economic Offences) Ernakulam. He is being prosecuted for the offences under Section 276C and 276 CC of the Income Tax Act, 1961. After the trial commenced, when PW1 was examined on 10.01.2024, the counsel appearing for the accused did not cross-examine the witness. Subsequently, when PW2 was examined on 01.02.2024, again, the witness was not cross-examined by the defence. The learned Chief Judicial Magistrate thereafter, proceeded with the trial. Later an application under Section 311 Cr.P.C, seeking to reopen the evidence to enable the petitioner to cross-examine PW1 and PW2. The said application, filed as C.M.P.No.1643/2024, has been dismissed by the impugned order dated 05.04.2024. 2. I have heard Sri. M.P.Shameem Ahamed, the learned counsel for the petitioner as well as Sri. Jose Joseph, the learned Standing Counsel for OP(CRL.) NO. 372 OF 2024 3 the Income Tax Department.
The learned Chief Judicial Magistrate has, by an elaborate order, dismissed the application under Section 311 Cr.P.C, after observing that the application is vague and incomplete and also that it is an attempt to delay the proceedings. The learned Chief Judicial Magistrate also held that the relevancy of the evidence sought to be adduced is not at all ascertainable, nor is it specifically stated in the application.
Though this Court cannot find any infirmity in the reasons stated in the impugned order, considering the totality of the circumstances, it is essential that an opportunity be granted to the petitioner to cross- examine the witnesses and to adduce his evidence. During the trial, none of the witnesses were cross-examined. Though the failure can be attributed to the petitioner himself, the omission to cross-examine the prosecution witnesses can lead to prejudice, which in turn may delay or drag the proceedings in the ultimate analysis. Therefore, an opportunity ought to be granted, as a last chance. To avoid a possible delay due to a one sided prosecution, this Court is of the view that the application of the petitioner to recall the witnesses for cross-examination and to adduce defence evidence be allowed on terms.
OP(CRL.) NO. 372 OF 2024 4
Since the respondent had vehemently contended that the attempt of the petitioner is only to delay the matter, it is appropriate to fix a specific period within which the cross examination is completed. Having regard to the circumstances, the prosecution witnesses PW1 and PW2 can be made available for cross examination on a particular date and the cross examination be completed by the petitioner without delay.
In view of the above, the impugned order dated 05.04.2024 is set aside, and the application of the petitioner for cross examining the prosecution witnesses PW1 and PW2 and also to adduce the defence evidence, if any, is allowed on payment of a cost of Rs.2,500/- on or before 19.06.2024, to the Kerala Legal Services Authority and the receipt shall be filed before the Trial Court. PW1 and PW2 shall be cross-examined between 22.07.2024 and 29.07.2024. In case, petitioner fails to cross examine the witnesses within the above stipulated period, the learned Chief Judicial Magistrate will be free to proceed with the case. Needless to mention that the cost for procuring the witnesses once again, shall also be borne by the petitioner. Original petition is disposed of as above. BECHU KURIAN THOMAS JUDGE AMV/10/06/2024
OP(CRL.) NO. 372 OF 2024 5
Appendix — schedule of exhibits
More judgments on Section 276C
- Joydeep Mukherjee, Presently Residing at Usa vs DCIT, Intl Taxation Circle 1(2), Bangalore…ITA 2017/BANG/2025[2018-19]Status: Disposed23 Feb 2026AY 2018-19
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- DCIT(It)-3(2)(2), Mumbai vs Murex Southeast Asia Private Limited…ITA 1453/MUM/2025[2014-15]Status: Disposed30 Jun 2025AY 2014-15
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- M/S. Marico Industries Ltd, Mumbai vs Deputy Commissioner of Income Tax, Central…ITSSA 661/MUM/2002[1988-97]Status: Disposed25 Oct 2023AY 1988-97
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