M/s National Academy of Construction, vs. Deputy Director of Income Tax (Exemptions)-I,

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 497/2013 Lakhapat Raj Lunkar s/o Late Shri Ugam Raj Lunkar, aged about 68 years, b/c Oswal, r/o Jain Street, Sarafa Bazar, House No. 67, Jwala Vihar, Jodhpur (Raj). ----Petitioner Versus State Of Rajasthan Through P P ----Respondent For Petitioner(s) : Mr. J.K. Singhi Sr. Adv. With Mr. O.P. Pareek For Respondent(s) : Mr. R.S. Shekhawat, PP HON'BLE MR. JUSTICE G R MOOLCHANDANI Order 10/09/2018 This petition is directed against the order passed by Additional Sessions Judge, No. 2 Kota in criminal Revision No. 17/2012 Lakhpat Raj Lunkar Vs. State upholding the order passed by Additional Chief Judicial Magistrate No. 2, Kota, in criminal case No. 241/1995 State Vs. Suresh Kumar, whereby learned trial court has framed charges qua the petitioner on 11.09.2012 for the offences punishable under Sections 406, 407, 409, 468, 471, 420 read with Section 120-B of IPC. Learned counsel for the petitioner, relying upon the judgment Sohan lal Vs. State of Rajasthan 2012 (3) Cr.L.R. (Raj.) 1473, Radheyshyam Kejriwal Vs. State of West Bengal & Anr decided on 18.02.2011, Krishnan & Anr Vs Krishnaveni & Anr. decided on 24.01.1997, State of Maharashtra Vs. Dr. Budhikota Subbarao decided on

(2 of 4) [CRLMP-497/2013] 16.03.1993 has contended that petitioner was exonerated by the inquiry officer, which was conducted against the petitioner by the department and same has also been ratified by the Government, so, there is no occasion to proceed against the petitioner in prosecuting him in criminal side, moreover the co-accused persons against whom trial was conducted have also been acquitted by the concerned trial court, referring Exhibit-4, learned counsel for the petitioner has urged that petitioner Lakhpat Raj Lunkar was exonerated by the inquiry officer vide Annexure-4 on 02.12.1999, as such there was no reason to proceed against the petitioner for the alleged criminal offence therefore the petitioner be acquitted after quashing the charges. Per contra learned Public Prosecutor, opposing the petition has not controverted the factual aspect that petitioner/ delinquent accused has already been exonerated by the inquiry officer and the said inquiry report has further been ratified by the State Government. Heard both the sides and perused the material available on the record. A Co-ordinate Bench of this court, while deciding Sohan Vs. State of Rajasthan 2012 (3) Criminal Law Report (Raj) 1473, taking support of Apex Court judgment Radhey Shyam Kejriwal Vs. State of West Bangal 2011 (3) SCC 581 has held that after exoneration from departmental inquiry, framing of charge/s and continuation of criminal proceedings on the similar charge, amounts an abuse of process of the court. Apex court, in the case of Radhey Shyam Kejriwal (Supra) has held as below:-

(3 of 4) [CRLMP-497/2013] “We find substance in the submission of Mr. Sharan, there may appear to be some conflict between the views in the case of Standard Charted Bank (supra) and L.R. Melwani (supra) holding that adjudication proceeding and criminal proceeding are two independent proceedings and both can go on simultaneously and finding in the adjudication proceeding is not binding on the criminal proceeding and the judgments of this Court in the case of Uttam Chand (supra), G.L. Didwania (supra) and K.C. Builders (supra) wherein this Court had taken a view that when there is categorical finding in the adjudication proceeding exonerating the person which is binding and conclusive, the prosecution cannot be allowed to stand. Judgments of this Court are not to be read as statute and when viewed from that angle there does not seem any conflict between the two sets of decisions. It will not make any difference on principle that latter judgments pertain to cases under the Income Tax Act. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceeding is not necessary

before

initiating

criminal prosecution; (iii) Adjudication proceeding and criminal proceeding are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution; (v)

Adjudication

proceeding

the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances can not be allowed to continue

(4 of 4) [CRLMP-497/2013] underlying principle being the higher standard of proof in criminal cases. In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court.” In view of the Hon’ble Supreme Court authority, it becomes apparent that further proceedings of the criminal case would be an abuse of process of the court, it is not disputed that the petitioner stands exonerated by the inquiry officer while conducting departmental inquiry against the petitioner. Besides the co-accused persons who were tried, have already been acquitted by the trial court on 01.12.2014 and proceedings qua the petitioner were stayed by this court on 05.07.2013. Thus, the petition succeeds and the impugned order dt. 11.09.2012 and that of order passed by revisional court dt. 18.01.2013 are hereby set aside and quashed and petitioner is discharged from the offence punishable under Section 406, 407, 409, 468, 471, 420 read with Section 120-B of IPC. Instant petition stands disposed of. (G R MOOLCHANDANI),J Ashu/5