BABU C GEORGE vs. THE ASSISTANT COMMISSIONER OF INCOME TAX

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 31ST DAY OF OCTOBER 2014/9TH KARTHIKA, 1936 Crl.Rev.Pet.No.1019 of 2014 --------------------------------------- Crl.MP No.1001/2014 in CC NO.466/2007 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFCENCES),ERNAKULAM. REVISION PETITIONER/PETITIONER/ACCUSED: --------------------------------------------------------------------- BABU C. GEORGE,AGED 66 YEARS, S/O.P.G.GEORGE,CHANDRATHIL HOUSE, PALARIVATTOM. BY ADVS.SRI.JOHNSON ABRAHAM SRI.NELSON ABRAHAM RESPONDENTS/COMPLAINANT: ----------------------------------------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1,ERNAKULAM. 2. STATE OF KERALA,PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX R2 BY PUBLIC PROSECUTOR SMT.LILLY LESLEY THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: pk

K. Ramakrishnan, J. ============================== ============================== Dated this, the 31st day of October, 2014. O R D E R Petitioner in Crl.M.P.No.1001/14 in C.C.No.466/07 on the file of the Additional Chief Judicial Magistrate, (Economic Offences), Ernakulam is the revision petitioner herein. 2. The case was taken on file on the basis of a complaint filed by the first respondent herein against the petitioner alleging commission of offences under Section 277 of Income Tax Act and Section 181 of Indian Penal Code. 3. The petitioner filed Crl.M.C.No.1833/08 before this court for quashing the proceedings. But, this court disposed of that petition leaving open the right of the petitioner to apply before the court below for discharge. It is on that basis, the petitioner filed Crl.M.P.No.1001/14 before the court below seeking discharge under Section 245 of Code of Criminal Procedure and that petition was dismissed by the court below by the impugned order which is being challenged by the petitioner by filing this revision petition. 4. Heard both sides. 5. The Counsel for the petitioner submitted that the

: 2 order passed by the court below is not legal and even on the basis of the documents produced, the offences are not attracted. So, the court below should have allowed the application. Further, the Counsel also submitted, if the court felt that without taking evidence under Section 244 of Code of Criminal Procedure, the petition should not have been considered at that stage, then, the learned magistrate should have mentioned that without going in to the merit and disposed of that application. 6. On the other hand, the Counsel for the respondent submitted that there is no illegality committed. Further, the right of the petitioner to argue for discharge even after pre charge evidence is not shut out by this order. 7. It is an admitted fact that on the basis of the private complaint filed by the Income Tax Department through the first respondent against the revision petitioner, the above case was taken on file as C.C.No.466/07 by the Additional Chief Judicial Magistrate, (Economic Offences), Ernakulam alleging offence under Section 277 of the Income Tax Act and Section 181 of Indian Penal Code. It is also an admitted fact that the petitioner filed a petition before this court as

: 3 Crl.M.C.No.1833/08 to quash the proceedings and this court disposed of the petition leaving open the right of the petitioner to file an application under Section 245 of the Code of Criminal Procedure for discharge and it is on that basis, the petition has been filed. It may be mentioned here that it is seen from the order of the court below itself that no pre charge evidence has been taken in this case. So, only after taking evidence under Section 244 of Code of Criminal Procedure of the complainant and their witnesses and after considering the documents and evidence, court need consider whether charge has to be framed in this case or not and the revision petitioner has to be discharged or not and only thereafter, the question of framing charge or discharging the accused under Section 245 of Code of Criminal Procedure will arise. So, under the circumstances, the court below ought not have disposed of that application for discharge, especially, when it was observed in the order itself that without taking evidence under Section 244 of Code of Criminal Procedure and without giving an opportunity to the complainant to produce all documents and witness, the question of discharge as claimed by the petitioner cannot be considered at that stage. The right of the revision petitioner to

: 4 argue for discharge after pre charge evidence adduced by the complainant, it not shut out by this order as well. So, under the circumstances, this court feels that the petition can be disposed of as follows:

Considering the fact that, the case is of the year 2007, the lower court is directed to expedite the enquiry in C.C.No.466/07 regarding the pre charge evidence to be adduced by the complainant under Section 244 of Code of Criminal Procedure and then, consider the question of discharge as pleaded by the petitioner untrammeled by the observation made by the learned magistrate in the impugned order. The court below is directed to complete the enquiry under Section 244 of the Code of Criminal Procedure and consider the question of discharge or framing charge under Section 245 of Code of Criminal Procedure as expeditiously as possible at any rate within three months from today. It is also submitted by the Counsel for the revision petitioner that, as directed by this court in Crl.M.C.No.1833/08, the revision petitioner has filed an application for personal exemption under Section 205 of Code of Criminal Procedure and no orders have been passed and the learned magistrate is

: 5 insisting for the presence of the petitioner. On interaction with the Counsel for the revision petitioner, it is revealed that the accused had not appeared and taken bail. So, he will have to appear and take bail and after taking bail, the application for personal exemption already filed is directed to be disposed of by the learned magistrate in accordance with law on the date of granting bail to the petitioner itself. With the above observation and direction, the petition is disposed of. Parties are directed to appear before the court below on 25.11.2014. Office is directed to communicate this order to the court below at the earliest. Sd/- K.Ramakrishnan, Judge. Bb [True copy]

P.A to Judge