Commissioner of Income Tax vs. Vani Educational Society

1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRR No. 358 of 2013 Mohan Agrawal S/o Late G.P. Agrawal Aged About 58 Years R/o 167 New Civil Center Bhilai , Tahsil Durg , Civil And Revenue Distt. Durg C.G. ---- Applicant Versus 1. B.Vishvanath S/o Block No 7, 1st Floor, Himalay Complex , G.E. Road Bhilai, Tahsil And Distt. Durg C.G. 2. Dhawal Kumar Sahni S/o Late H.K. Sahni Aged About 45 Years R/o Sakun Restaurant,124 New Civil Centre , Bhilai, Tahsil and Distt. Durg C.G. 3. G.C. Choudhari S/o R.P. Choudhari Aged About 61 Years R/o House No 14b, Sadak No 25, Sector 10 Bhilai, Tahsil And Distt. Durg C.G. 4. Subodh Udandkar S/o Late M.N. Udandkar Aged About 52 Years D.G.M. Ispat Bhawan , Room No 481 Bhilai Ispat Company, Bhilai , Tahsil and Distt. Durg C.G. 5. State of Chhattisgarh S/o Through - The District Magistrate Durg C.G. ---- Respondents (Cause-title taken from Case Information System) For Applicant : Mr. Raghavendra Pradhan, Advocate. For Respondent No.1 : Mr. Siddharth Rathore, Advocate. For Respondent No. 2 : Mr. Avinash Chand Sahu, Advocate. For Respondent No. 3 : Mr. Kashif Shakeel, Advocate. For Respondent No. 4 : Mr. Anuroop Panda, Advocate For Respondent No. 5 : Mr. Amit Buxy, Panel Lawyer CRR No. 360 of 2013 Mohan Agrawal S/o Late Shri G.P. Agrawal Aged About 58 Years R/o 167, New Civic Centre, Bhilai, Tah. Durg, Civil And Rev. Distt. Durg C.G. , Chhattisgarh ---- Applicant

2 Versus 1. Dhawal Kumar Sahni S/o Late H.K. Sahni Aged About 45 Years R/o Sakun Restaurant, 124, New Civic Centre, Bhilai, Tah. And Distt. Durg C.G. 2. State of Chhattisgarh S/o Through the Distt. Magistrate Durg C.G. ---- Respondents (Cause-title taken from Case Information System) For Applicant : Mr. Raghavendra Pradhan, Advocate. For Respondent No.1 : Mr. Avinash Chand Sahu, Advocate. For Respondent No. 2/State : Mr. Amit Buxy, Panel Lawyer CRR No. 361 of 2013 Mohan Agrawal S/o Late Shri G.P. Agrawal Aged About 58 Years R/o 167, New Civic Centre, Bhilai, Tah. Durg, Civil And Rev. Distt. Durg C.G. ---- Applicant Versus 1. G.C. Choudhari S/o R.P. Choudhari Aged About 61 Years R/o House No. 14b, Sadak No. 25, Sector 10, Bhilai, Tah. And Distt. Durg C.G. 2. Dhawal Kumar Sahni S/o Late H.K. Sahni Aged About 45 Years R/o Sakun Restaurant, 124, New Civic Centre, Bhilai, Tah. And Distt. Durg C.G. 3. B. Vishvanath S/o Block No. 7, 1st Floor, Himalay Complex, G.E. Road, Bhilai, Tah. And Distt. Durg C.G. 4. Subodh Udandkar S/o Late Shri M.N. Udandkar Aged About 52 Years D.G.M. , Ispat Bhawan, Room No. 481, Bhilai Ispat Co. Bhilai, Tah. And Distt. Durg C.G. 5. State of Chhattisgarh S/o Through The Distt. Magistrate Durg C.G. ---- Respondents (Cause-title taken from Case Information System) For Applicant : Mr. Raghavendra Pradhan, Advocate. For Respondent No.1 : Mr. Kashif Shakeel, Advocate. For Respondent No. 2 : Mr. Avinash Chand Sahu, Advocate.

3 For Respondent No. 3 : Mr. Siddharth Rathore, Advocate. For Respondent No. 4 : Mr. Anuroop Panda, Advocate For Respondent No. 5 : Mr. Amit Buxy, Panel Lawyer CRR No. 362 of 2013 Mohan Agrawal S/o Late Shri G.P. Agrawal Aged About 58 Years R/o 167, New Civic Centre, Bhilai, Tah. Durg, Civil and Rev. Distt. Durg C.G. ---- Applicant Versus 1. Subodh Udankar S/o Late Shri M.N. Udandkar Aged About 52 Years D.G.M. , Ispat Bhawn, Room No. 481, Bhilai Ispat Co. , Bhilai, Tah. And Distt. Durg C.G. 2. Dhawal Kumar Sahni S/o Late H.K. Sahni Aged About 45 Years R/o Sakun Restaurant, 124, New Civic Centre, Bhilai, Tah. And Distt. Durg C.G. 3. B. Vishvanath S/o Block No. 7, 1st Floor, Himalay Complex, G.E. Road, Bhilai, Tah. And Distt. Durg C.G. 4. G.C. Choudhari S/o R.P. Choudhari Aged About 61 Years R/o House No. 14b, Sadak No. 25, Sector 10, Bhilai, Tah. And Distt. Durg C.G. 5. State of Chhattisgarh S/o Through The Distt. Magistrate Durg C.G. ---- Respondents (Cause-title taken from Case Information System) For Applicant : Mr. Raghavendra Pradhan, Advocate. For Respondent No.1 : Mr. Anuroop Panda, Advocate For Respondent No. 2 : Mr. Avinash Chand Sahu, Advocate. For Respondent No. 3 : Mr. Siddharth Rathore, Advocate. For Respondent No. 4 : Mr. Kashif Shakeel, Advocate. For Respondent No. 5 : Mr. Amit Buxy, Panel Lawyer Hon'ble Shri

Ramesh Sinha

, Chief Justice

4 Order on Board 20.03.2024 1. Heard Mr. Raghavendra Pradhan, learned counsel for the applicant. Also heard Mr. Amit Buxy, learned Panel Lawyer appearing for the respondent/State, Mr. Kashif Shakeel, learned counsel for the respondent-G.C.Choudhari, Mr. Anuroop Panda, learned counsel for the respondent-Subodh Udankar, Mr. Siddharth Rathore, learned counsel for the respondent-B.Vishwanath, Mr. Aavinash Chand Sahu, learned counsel for the respondent- Dhawal Kumar Sahni. 2. Challenge in these revision petitions is to the common order dated 06.05.2013 passed by the learned Fifth Additional Sessions Judge, Durg, in Criminal Revision No. 185/2012, 49/2012, 221/2012 and Criminal Revision No.220/2012, respectively by which the learned revisional Court has quashed the order dated 14.08.2012 passed in the complaint cases filed by the applicant, by which the learned trial Court had directed to issue summons to the private respondents herein for the offences punishable under Section 420, 467, 468, 471, 120-B read with Section 34 of the Indian Penal Code. 3. Since all the above four revision petitions involve common facts and issue, they are being considered and decided by this common order. However, for disposal of these petitions, Cr.R. No. 358/2013 is taken as the lead case. 4. The facts, in brief, as projected by the applicant/ complainant/ revisionist is that the Bhilai Steel Plant (for short, the BSP), Bhilai, District Durg,had invited a tender for catering for Bhilai Niwas

5 managed by the BSP. The said tender contained certain conditions which were required to be fulfilled to be eligible for participating in the said tender process. The respondent-G.C.Choudhari is the retired D.G.M. of the BSP who had invited the tender. The respondent- Dhawal Kumar Sahni participated in the said tender process alongwith the applicant. The tender submitted by the applicant was found to be eligible but the respondent-Dhawal Kumar Sahni did not had the requisite criteria but still he was awarded the tender. 5. The applicant filed a complaint case for the offence punishable under Section 420, 467, 468, 471, 120-B/34 of Indian Penal Code against the four private respondents/non-applicants. In the complaint, it was submitted that the applicant is partner of Agrawal Catering Caterers. It was also submitted that the non-aplicant – G.C.Choudhari is the officer of the BSP who had invited tender for catering for Bhilai Niwas managed by Bhilai Steel Plant. The applicant as well as the Dhawal Kumar Sahni and other persons submitted their tender. The tender submitted by the applicant was found to be eligible but the non- applicant Dhawal Kumar Sahni was not fulfilling the eligibility criteria. As per the condition No.1, the persons should have turn over of 12 lacs in three financial years and Dhawal Kumar Sahni with the help of non-applicant B. Vishwanath prepared forged and fabricated document of financial year 2004-05, 2005-06 and 2006-07 of turn over of Rs.245636/-, 290014/- and 320892/- total Rs. 8,56,542/-, which did not fulfill the clause 1 of the tender rules. Dhawal Kumar Sahni was also not fulfilling the clause 4 of the tender for having sale tax and service tax registered number on 31-03-2007 as the registration dated was 01-05-2007 and was affective from 02-04-

6 2007. Even, Dhawal Kumar Sahni is not even the owner of shop No.124, New Civic Centre, Bhilai and has given sale tax number of that shop and Shri O.P.Singal is owner of the that shop and NOC was not taken from Shri O.P. Singal. From the show cause notice issued by the Commercial Tax Officer, it is evident that Dhawal Kumar Sahni has started the business from 02-04-2007. Since Dhawal Kumar Sahni had started his business from 02-04-2007 and therefore preparing the accounts of financial year 2004-05, 2005-06 and 2006- 07 is fabricated and forged. B. Vishvanath has prepared in favour of Dhawal Kumar Sahni, forged and fabricated documents, which does not fulfill the condition of clause (1) of the tender. Likewise the details of the offence committed by the non-applicants No.1 to 4 were mentioned in the complaint. The proceedings were initiated and vide order dated 15-09-2011, the complaint filed by the applicant was rejected. The applicant preferred the revision before the Sessions Judge Durg, which was rejected on 01-02-2012. The applicant preferred Cr.M.P. No. 227/12 against the order dated 01-02-2012 and this Court passed the order dated 23-04-2012 allowing the petition and both the orders dated 01-02-2012 and 15-09-2011 were quashed and the case was remitted to the trial court for further enquiry into the complaint dismissed under Section 203 of the Cr.P.C, in terms of section 398 of the Cr.P.C. 6. After the remitting the case to the trial court, the applicant filed the copy of the letters dated 23-08-2012, 21-06-2012, 28-05-2012 and 31-01-2012. The complaint adduced the evidences of Shri Kameshwar Rao on dated 07-07-2012 in addition to earlier two evidences of the applicant and Shri Aditya Jindal. The learned

7 Judicial Magistrate First Class registered the case against the non- applicant No. 1 to 4 on 14-08-2012. B.Vishwanath preferred the Criminal Revision No. 185/2012 against the order dated 14-08-2012 regarding the registration of the case No. 527/12. Notice was issued to the applicant and the applicant in addition to the oral argument submitted written argument before the revisional Court. The learned 5th Additional Sessions Judge passed the impugned order dated 06-05-2013 in the most arbitrary and illegal manner, setting aside the order dated 14-08-2012 for registration of the case No.527/2012 relating to the offence under Section 420, 467, 468, 471, 120 (B) and 34 of Indian Penal Code. 7. Learned counsel for the applicant argued that the impugned order is contrary to the facts, law and circumstances of this case and ought to have considered the fact that the applicant has proved his case before the Court below. He further argued that the learned court below ought to have consider that the petitioner was the effected party as the petitioner has also submitted his tender and by forged and fabricated documents was submitted by the Dhawal Kumar Sahni with the help of non- applicant No.1 and although Dhawal Kumar Sahni was not fulfilling the criteria and despite that the tender has been granted to him. The tender submitted by the applicant was found to be eligible but Dhawal Kumar Sahni was not fulfilling the eligibility criteria. As per the condition No.1, the persons should have turn over of 12 lacs in three financial years and Dhawal Kumar Sahni with the help of non- applicant No.1 prepared forged and fabricated document of financial year 2004-05, 2005-06 and 2006-07 of turn over of Rs.245636/-, 290014/- and 320892/- total Rs. 8,56,542/-, which was not fulfill the

8 clause 1 of the tender rules. He later argued that Dhawal Kumar Sahni was also not fulfilling the clause 4 of the tender for having sale tax and service tax registered number on 31-03-2007 as the registration dated was 01-05-2007 and was affective from 02-04-2007. Even, Dhawal Kumar Sahni is not the owner of shop No.124, New Civic Centre, Bhilai and has given sale tax number of that shop and Shri O.P.Singal is owner of the that shop and NOC was not taken from Shri O.P. Singal. From the show cause notice issued by the Commercial Tax Officer, it is evident that Dhawal Kumar Sahni has started the business from 02-04-2007. Further, since Dhawal Kumar Sahni had started his business from 02-04-2007 and therefore preparing the accounts of financial year 2004-05, 2005-06 and 2006-07 is fabricated and forged. The non- applicant No.1 has prepared in favour of non- applicant No.2, forged and fabricated documents, which does not fulfill the condition of clause (1) of the tender. Likewise the details of the offence committed by the non-applicant No.1 to 4 were mentioned in the complaint. 8. Learned counsel for the applicant submits that Dhawal Kumar Sahni also committed the offence and has clearly mentioned in the complaint by filing the necessary documents in support of it and the revisional Court ought to have considered the fact that Dhawal Kumar Sahni has in connivance with B. Vishwanath has prepared forged document relating to the year 2004-05, 2005-06 and 2006-07 and the said document was annexed with the tender and utilized it and got catering services in Bhilai Niwas. He also submitted that the applicant just after the opening of the technical bid submitted an application on dated 24- 07-08 that the document relating to turn over of Dhawal Sahni for the

9 year 2004-05, 2005-06 and 2006-07 is forged one. The application was submitted regarding forged document prepared by Dhawal Kumar Sahni and B. Vishwanath to contract sale, G.C. Choudhari and also to Subodh Udenkar and on not taking action on the application, the complaint case was filed. Although, objection was raised by the applicant but the concerned officers namely G.C. Choudhari and Subodh Udenkar did not to take action and knowingly that the documents relating to turn over of the year 2004- 05-, 2005-06 and 2006-07 are forged one, did not took action. That, Shri Dhawal Kumar Sahni, G.C. Choudhari, Subodh Udankar and B. Vishwanath with a common intention conspiracy and utilized forged document to be a genuine document and issued work order in favour of Shri Dhawal Kumar Sahni. He later submitted that after the passing of the order dated 23-04-2012 the case was remitted to the trial court for further enquiry in to the complaint, dismissed under Section 203 of the Code in terms of Section 398 of the Code and thereafter the impugned order dated 14-08-2012 was passed and respondent No.1 has neither challenged the order dated 23-04-2013 passed by the Hon'ble High Court nor has submitted their submission before the trial court against the order dated 14-08-2012. He later submitted that the eligibility criteria the average annual turn over for the last three years financial year ending on 31-03-2007 ought to be 12 lacks in catering business. The party should enclosed audited profit and loss accounts and balance sheet for passed three financial year to support this, but Shri Dhawal Kumar Sahni in connivance with B. Vishwanath without auditing has submitted Rs.245636-00, Rs.2,90,014-00, Rs.3,20,892- 00 for three financial years instead of average annual financial turn

10 over of Rs. 12 lakhs, which is also forged one because Shri Dhawal Kumar Sahni has submitted an application before Commercial Tax Officer Durg, Circle-II on which the letter dated 03-11-2008 has been issued that Dhawal Kumar Sahni starting the catering business on 02- 04-2007 and under this eventuality, the document relating to the turn over from the year 2004-05 in catering business is itself forged one. 9. Learned counsel for respondent /Dhawal Kumar Sahni submits that after filing of the complaint, the statement of complainant's witnesses Mohan Agrawal and Aditya Jindal were recorded by the trial Court i.e. JMFC, Durg on 03.02.2011. After examining the complaint and the witnesses, the learned trial Court by its order dated 15.09.2011, while dismissing the complaint, the trial Court recorded the specific finding that the complainant failed to prove that how forgery has been done in documents, specially when no complaint has ever been lodged by Bhilai steel plant about the questioned tender in favour of answering respondent. At the most if any loss is caused to complainant, remedy of civil suit is available. Being aggrieved by the above order, the applicant/ complainant filed the criminal revision before the Court of Sessions. The revision petition filed by the applicant has registered as Criminal Revision No. 187/2011 and by the order dated 01.02.2012, the learned revisional court also dismissed the said revision petition. 10. He further submits that the applicant being dissatisfied with the above order, filed the Cr.M.P. before this Hon'ble Court, which was registered as Cr.M.P. No. 227/2012 and by the order dated 23.04.2012 this Hon'ble Court was kind enough to grant one more liberty to the applicant to act in accordance with section 398 of Cr.P.C.

11 On the basis of the order passed by this Hon'ble Court again one more witness i.e. Kameshwar Rao was examinec before the court below on behalf of complainant. That, the above order was challenged by the answering respondent including other respondents by filing separate revision petition before the Court of Sessions, Durg. This answering respondent made allegation that petitioner out of enmity regularly falsely complaining to various authorities like Police Station, Sales Tax Department, Income Tax Department, Economic Offence Wing, Collector, Bhilai Steel Plant etc. Petitioner prior to catering tender in year 2007-2008, did business for 14 years continuously without facing any tender/competition. Petitioner due to his failure in catering tender and success of this respondent filed false complaint as well as to different administrative authorities. By the order impugned dated 06.05.2013, the learned trial Court allowed the criminal revision preferred by the answering respondent including other respondents, on various grounds, aggrieved by which, the present criminal revision has been filed by the complainant/applicant. 11. He later submits that according to the documents and the averments made in the complaint, itself shows that M/s Sakoon Restaurant was validly registered under the Commercial Tax Department and according to the petitioner, the petitioner himself filed the document regarding turnover and assessment of tax in respect of the answering respondent for the year 2004- to 2007. It is pertinent to mention here that in respect to subsequent tender for the period 2012-2015, floated by Bhilai Steel Plant, the applicant filed the Writ Petition before this Hon'ble Court, which has been registered as W.P. (C) No. 1447/2012, in which the answering respondent has been arrayed as respondent

12 no. 5 & 6 and by the order dated 11.11.2014, this Hon'ble Court has dismissed the said writ petition. 12. On the basis of the statement of witnesses, recorded in the first round and after remand, again the statement of Kameshwar Rao does not constitute the alleged offence, therefore the revisional court has rightly allowed the revision and set-aside the order of cognizance dated 14/08/2012 passed by the JMFC, Durg. The respondent hereby categorically denied all the averments narrated by the applicant against the interest of respondent and in view of above facts and circumstances of the case, the instant revision deserves to be dismissed with cost. 13. Learned counsel for respondent-B.Vishwanath submits that he is a Chartered Accountant and is authorized to prepare a profit and loss account along with balance sheet. The preparation of balance sheet is a job of B.Vishwanath thereby to perform a job is not a criminal conduct. Applicant has filed the case with bad intention and no case is made out against the answering respondent. The allegation in the complaint ought to be taken at their face value, no case is made out against him. The only averment made in complaint is that the petitioner in connivance with B. Vishwanath prepared false statement and conspired. Only the averment is not enough to establish prima facie case. It has to be seen that no documents has been filed, no evidence has been submitted by the complainant even complainant himself has not stated a single word in his statement submitted under section 202 of Cr.P.C. therefore the registration of case against B. Vishwanath is an abuse of process and deserves to be quashed.

13 14. He further submits that the applicant is under no duty to investigate whether account produced by B.Vishwanath are correct or not correct and the documents prepared by him mentioned in page No. 35 to 40 is a mere certificate which were prepared on 25.3.2007 and 26.3.2007 i.e. much before the 31.7.2007 i.e before issuance of Tender therefore the document can not be connected with the case of complainant. Merely preparing returns on the basis of the accounts placed before him and delivering them to client i.e. Dhawal Kumar Sahni will not make him liable for prosecution. The law of the country is clear on the point that the position of Charted Accountants representing the Income tax assessees is similar to that of an Advocate. As the Advocates are bound to act strictly within the instructions of client and are under no obligation to suspect their client or to investigate whether their case is true or false. In like manner, the a Charted Account is under duty to prepare correct statement of account. Charted Account is under no duty to investigate whether the accounts produced by the assesses are correct or not. Therefore, preparation of certificate mentioned in page 35 to 40 are true. The respondent hereby categorically denies all the averments narrated by the applicant against the interest of respondent and in view of above facts and circumstances of the case, the instant revision deserves to be dismissed with cost. 15. Learned counsel for the other private non-applicants submits that this is a purely civil dispute which the applicant is trying to give a colour of criminal conspiracy. The applicant after having lost in the tender process is making false and frivolous complaints against all the private respondents. As such, the learned revisional Court was fully

14 justified in quashing the order passed by the learned trial Court by which it had summoned the non-applicants/accused. 16. I have heard the learned counsel for the applicant and perused the records of the learned revisional court as well as the trial Court. 17. The trial Court, while taking cognizance of a complaint filed by a party is required to look into the averments made only in the complaint and thereafter it is required to derive as to prima facie what offence is made out. In the case in hand, there is no averment with regard to causing wrongful loss to the complainant but there is an allegation that the BSP entered into a criminal conspiracy with the accused and issued forged documents in his favour without the existence of relevant documents despite not being eligible for the tender. On the basis of this, the catering contract was allotted. There is no evidence to show how Dhawal Kumar Sahni alongwith his chartered accountant obtained the catering contract by forging and criminally conspiring with the officials of the plant on the basis of those false documents. The mere allegation of fraud or deceit in the complaint is not sufficient to take cognizance of the crime in question and in the absence of any documentary evidence regarding the document presented by the accused regarding taking the contract being forged, no case is prima facie made out against the accused/non-applicants. In absence of such evidence, it cannot be determined as to whether the accused have. 18. Even otherwise, it appears that since the applicant was unable to secure the tender floated by the BSP and the same was given to the accused-Dhawal Kumar Sahni, the applicant has arrayed all the

15 private respondents as accused in this case and even the Chartered Accountant also who had nothing to do with the tender process. The tender notice was issued in the year 2007 and after lapse of 17 years, no fruitful purpose would be served even if the order of the revisional Court is set aside as the tender has already been awarded to the accused-Dhawal Kumar Sahni which was only for a period of 36 months which would have come to an end on 2010. 19. As the learned revisional Court, after going through the pleadings and records available, did not find that there was any prima facie material available so as to make out a case against the accused/non- applicants, it has rightly allowed the revision and set aside the order passed by the learned trial Court. 20. I do not find any infirmity or illegality in the order passed by the learned revisional Court and as such, these revision petitions stand dismissed. Sd/-

(Ramesh Sinha)

Chief Justice Manpreet