Punjab-Haryana High Court
Sharanjit Singh vs State Of Punjab on 21 December, 2013
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
CRM-M No.29107 of 2013 -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.29107 of 2013.
Date of decision : December 21, 2013
Sharanjit Singh
...... Petitioner
Versus
State of Punjab
...... Respondent
CORAM : HON'BLE MR.JUSTICE AMOL RATTAN SINGH
***
Present : Mr. Veneet Sharma, Advocate,
for the petitioner.
Mr. Arshdeep Singh Kler, A.A.G. Punjab.
***
1. Whether Reporters of local papers may be allowed to see the judgment? Yes / No
2. To be referred to the Reporters or not? Yes / No
3. Whether the judgment should be reported in the Digest? Yes / No
***
AMOL RATTAN SINGH, J.
1. This petition seeks anticipatory bail to the petitioner in view of an FIR having been lodged against him on 02.08.2013, registered for the commission of offences punishable under Section 406, 419, 420, 465, 467, 468, 471, IPC at Police Station, C-Division, Amritsar City.
2. Briefly, the facts are that the petitioners' firm, duly registered under the Punjab VAT Act, 2005, was imposed penalty and interest vide order dated 5.03.2013, by the Excise and Taxation Officer concerned. The petitioner is stated to be in appeal against that order, before the Deputy Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.29107 of 2013 -:2:- Excise and Taxation Commissioner.
3. After the imposition of the penalty and interest, the Excise and Taxation Officer subsequently registered a complaint against the petitioner, in the Police Station, leading to the registration of the FIR in question.
4. Mr. Veneet Sharma, learned counsel for the petitioner, even on the initial date, had argued that provisions of the VAT Act and the Indian Penal Code cannot be invoked simultaneously, in respect of the same offence and since the VAT Act had already been invoked and a penalty imposed on the petitioner, which was subject matter of challenge before the Appellate Authority, there was no question of any criminal liability arising on the petitioner, in respect of any offence under the Indian Penal Code.
5. When the Court was not inclined, at that stage also, to agree with the submission with regard to non-maintainability of the proceedings under the code, it had been argued by Mr. Sharma that even taking it that both proceedings could run simultaneously, the documents which were required, had already been seized from the petitioner and were available with the VAT authorities, as well as with the investigating agency, i.e. Police, and as such, there was no cause for custodial interrogation.
6. On that argument, interim anticipatory bail had been granted to the petitioner, vide order dated 05.09.2013 and had been continued from time to time, in view of the submissions made by either side, till the matter was finally argued by both sides.
7. Mr. Sharma has relied upon various judgments / orders of Co- ordinate Benches of this Court, to submit that once there is a special Act dealing with a particular occurrence, the general Act, i.e. the IPC, cannot be invoked, to proceed against the petitioner .
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8. The contention itself, in my opinion, is fallacious, in view of the fact that the relevant provisions of the VAT Act have been invoked in respect of evasion of tax by the petitioner and the penalty and interest imposed by the Excise and Taxation Officer is in pursuance of such evasion.
As regards liability under criminal proceedings, retail invoices & bills etc. were seized from the petitioner, purporting to have made interstate sales of goods to Himachal Pradesh, giving therein the Tax Identification Number (TIN) of the dealer in Himachal Pradesh, to whom the consignment was sold. Since it was shown to be an inter-state sale, as such, a lower rate of tax was leviable, than if the sale had been made within Punjab, on which a higher rate of tax under the Punjab VAT Act, 2005, was applicable. Interstate sales, of course, are governed by the rate of taxation laid down in the Central Sales Tax Act, 1956.
The allegation of the respondent-State, as argued by Mr. K.S. Sidhu, learned Deputy Advocate General and subsequently by Mr. Arshdeep Singh Kler, Assistant Advocate General, is that: -
The bills, retail invoices and other documents relied upon by the petitioner, to claim a lower rate of taxation under the CST Act, were found to have been forged and fabricated documents, upon verification from the VAT authorities of Himachal Pradesh, inasmuch as, either the TIN given on the documents was not the TIN of the person to whom the sales were shown to have been made, or the TIN itself was non-existent. As such, the documents relied upon are stated to be forged and fabricated, showing purported sales to non-existent persons in Himachal Pardesh. Therefore, in view of the fabrication and forgery committed, the relevant provisions of the Code have been invoked and the FIR has been registered against the Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.29107 of 2013 -:4:- petitioner, as per learned State Counsel, who was also assisted by the Excise and Taxation Officer.
9. Though the question in this case is primarily whether the petitioner is entitled to the concession of pre-arrest bail or not, since the maintainability of the FIR itself has been argued as an issue by Mr. Sharma, to contend that when the FIR itself is not maintainable, then obviously anticipatory bail must be granted in any case, in respect of offences made out in that FIR, hence that issue (of maintainability of criminal proceedings), needs to be dealt with first.
10. Mr. Sharma has relied upon the following judgments of co- ordinate benches of this Court, to make good his contention, that since the issue primarily relates to the Punjab VAT Act, 2005, which is a special Act, which deals with the evasion of tax, therefore, the provisions of the Indian Penal Code cannot be attracted.
i. CRM-M No.26178 of 2013, Samandeep Singh vs. State of Punjab, decided on 2.11.2010.
ii. CRM-M No.35811 of 2010, Ashok Sidana vs. State of Punjab & another, decided on 23.08.2011.
iii. CRM-M No.24853 of 2012 (O&M), Ishwar Singh @ Billa vs. State of Punjab & another, decided on 30.04.2013.
iv. CRM-M No.26116 of 2010, Pritpal Singh vs. State of Punjab & another, decided on 05.03.2012.
v. CRM-M No.21279 of 2012 (O&M), Pawan Kumar Sharma & Ors. vs. State of Punjab decided on 28.09.2012.
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11. I am not inclined to agree with Mr. Sharma in any manner, on this issue, because in the judgments cited above, either the State Counsel had expressed his inability to assist the Court, in the absence of assistance to him, leading to the grant of anticipatory bail, or the State Counsel had conceded that the matter is already under consideration of the VAT Authority, and as such, the implication was that there was no need to pursue with criminal proceedings.
12. In one case, i.e. Pritpal Singh vs. State of Punjab and another (supra), the argument before the learned Single Judge was the same as is made by Mr. Sharma, that since the petitioner in that case had been found cheating the Government by evading the payment of tax therefore, he also was liable to be proceeded against under the provisions of the Indian Penal Code. The Court found that the petitioner was neither the owner of the truck which was carrying the goods, nor was stated to have anything to do with the goods themselves. Therefore, if the driver of the truck had failed to produce the transit receipt for the goods, which were only in transit in Punjab, there was adequate provision of penalty upto 50% of the value of goods under Section 51(4) of the Punjab VAT Act, 2005. In that case, there were no proper documents produced, with regard to the goods in question. Reliance had been placed by the counsel for the petitioner in that case, on the judgment of the Supreme Court in Dalwinder Singh vs. Iqbal Singh & another 2005(4) R.C.R. (Criminal) 855, to submit that where a special statute governs any particular aspect / issue, it would prevail over the general statute and, as such, since proceedings under the Punjab VAT Act, 2005, adequately take cognizance of the offence of evasion of tax, the provisions of the IPC cannot be invoked.
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That judgment, is distinguishable on facts alone, because in that case, there was no argument on the issue of whether any false documents had actually been prepared and had been verified and found to be false. That seems to be a case of no documents having been produced, in respect of the goods which were being transported.
13. In the present case, on the other hand, as already noted, the documents produced, were verified from Himachal Pradesh and were found to have been documents which were forged and fabricated, inasmuch the persons to whom the goods were allegedly sold, were non-existent persons, or no such goods had been sold to those persons. Therefore, obviously, in the present case, the provisions of the IPC, with regard to forgery and fabrication of documents, and cheating, are, prima facie, made out. Whether or not any particular provision which has been mentioned in the FIR is sustainable or not, obviously, would be seen by the investigating agency and, if it comes to that, by the trial Court, subsequently.
Hence, in view of the specific situation here, where the documents have been verified and found to be false, I see absolutely no commonality between the present case and the one which has been relied upon by Mr. Sharma, in respect of the above contention.
14. Secondly, the issue itself, that just because a particular statute governs a particular issue and therefore, proceedings cannot be initiated for violation of any other statute, also does not hold good in my opinion, as what the Punjab VAT Act deals with, is only evasion of tax and the penalties etc. that are to be levied, in case such evasion is proved.
However, the fabrication of the documents itself being an offence punishable under the provisions of the IPC, in my opinion, there is Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.29107 of 2013 -:7:- no reason why, for the commission of such offence alone, proceedings under the IPC would not be maintainable against the petitioner.
15. In this regard, reference may be had to the judgment of the Supreme Court in the case of Institute of Chartered Accountants of India vs. Vimal Kumar Surana & Another 2011(1) SCC 534, wherein, while dealing with the provisions of the Chartered Accountants Act, 1949, which were alleged to have been violated, and Sections 419, 468, 471 & 472 of the IPC, which had also been invoked in view of the nature of the offences committed, by means of which the violation of the Chartered Accountants Act had taken place, it was held as follows: -
22. The issue deserves to be considered from another angle. If a person cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is (Section 416 Indian Penal Code), then he can be charged with the allegation of cheating by personation and punished under Section 419 for a term which may extend to 3 years or with fine or both. If a person makes any false document with the intent to cause damage or injury to the public or to any person, or to support any claim or title, then he can be prosecuted for an offence of forgery (Section 463) and can be punished under Section 465 with imprisonment which may extend to 2 years or with fine or with both. If a person commits forgery for the purpose of intending that the document forged by him shall be used for the purpose of cheating then he can be punished with imprisonment for a term which may extend to 7 years and fine (Section 468). If a person makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for committing any forgery which would be punishable under Section 467 or with such intent, in his Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.29107 of 2013 -:8:- possession any such seal, plate or other instrument, knowing the same to be counterfeit then he is liable to be punished with imprisonment for life or with imprisonment which may extend to 7 years. He shall also be liable to fine.
23. The provisions contained in Chapter 7 of the Act neither define cheating by personation or forgery or counterfeiting of seal, etc. nor provide for punishment for such offences. If it is held that a person acting in violation of Section 24 or contravening sub-section (1) of Sections 24A and 26 of the Act can be punished only under the Act even though his act also amounts to one or more offence(s) defined under the Indian Penal Code and that too on a complaint made in accordance with Section 28, then the provisions of Chapter 7 will become discriminatory and may have to be struck down on the ground of violation of Article 14.
24. Such an unintended consequence can be and deserves to be avoided in interpreting Sections 24A, 25 and 26 keeping in view the settled law that if there are two possible constructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. That apart, the Court cannot interpret the provisions of the Act in a manner which will deprive the victim of the offences defined in Sections 416, 463, 464, 468 and 471 of his right to prosecute the wrong doer by filing the first information report or complaint under the relevant provisions of Criminal Procedure Code.
25. We may add that the respondent could have been simultaneously prosecuted for contravention of Sections 24, 24A and 26 of the Act and for the offences defined under the Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.29107 of 2013 -:9:- Indian Penal Code but in view of the bar contained in Article 20(2) of the Constitution read with Section 26 of the General Clauses Act, 1897 and Section 300 Criminal Procedure Code, he could not have been punished twice for the same offence.
26. In Maqbool Hussain v. The State of Bombay (supra), the Court considered the question whether the appellant who had brought gold from Jeddah in contravention of notification dated 25.8.1948 could have been prosecuted under Section 8 of the Foreign Exchange Regulation Act, 1947 after the gold had been confiscated by the authorities of the Customs Department under Section 167(8) of the Sea Customs Act, 1878. The appellant challenged his prosecution by contending that this amounted to infringement of his fundamental right under Article 20(2) of the Constitution. The Bombay High Court negatived his challenge.
27. This Court upheld the order of the High Court and observed : (Maqbool Hussain case, AIR pp. 327-28, paras 3 & 7-9) "3.... There is no doubt that the act which constitutes an offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the same viz. importing the gold in contravention of the notification of the Government of India dated 25th August, 1948. The appellant could be proceeded against under Section 167(8) of the Sea Customs Act as also under Section 23 of the Foreign Exchange Regulation Act in respect of the said act....
7. The fundamental right which is guaranteed in Article 20(2) enunciates the principle of "autrefois convict" or "double jeopardy". The roots of that principle are to be found in the well established rule of the common law of England "that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.29107 of 2013 -:10:- criminal proceedings for the same offence". (Per Charles, J. in Reg v. Miles). To the same effect is the ancient maxim "Nemo bis debet puniri pro uno delicto", that is to say that no one ought to be twice punished for one offence or as it is sometimes written "pro eadem causa", that is, for the same cause.
8. This is the principle on which the party pursued has available to him the plea of "autrefois convict" or "autrefois acquit". "The plea of 'autrefois convict' or 'autrefois acquit' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.... The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of 'autrefois acquit' is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbury's Laws of England, Hailsham Edition, Vol. 9, pp. 152 and 153, para 212).
9. This principle found recognition in Section 26 of the General Clauses Act, 1897, -
'26. provisions as to offences punishable under two or more enactments.- 'Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence,' and also in Section 403(1) of the Criminal Procedure Code, 1898, -
'403. Person once convicted or acquitted not to be tried Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.29107 of 2013 -:11:- for same offence.- (1) 'A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237'."
28. The Court then referred to the provisions of the Sea Customs Act, 1878 and held : (Maqbool Hussain case, AIR P.330, Paras 17-18) "17. We are of the opinion that the Sea Customs authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy."
"18. It therefore follows that when the Customs authorities confiscated the gold in question neither the proceedings taken before the Sea Customs authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a court or judicial tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs authorities to have been "prosecuted and punished" for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay, in the complaint which was filed against him under Section 23 of the Foreign Exchange Regulation Act."
29. In T.S. Baliah's case, the Court considered the question whether the appellant could be simultaneously prosecuted under Section 177 Indian Penal Code and for Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.29107 of 2013 -:12:- violation of Section 52 of the Income Tax Act, 1922. After noticing Section 26 of the General Clauses Act, the Court held : (AIR P. 706, Para 6).
"6....A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case."
34. In State of Rajasthan v. Hat Singh, the Court considered the question whether the High Court was right in taking the view that the respondent could have been prosecuted either under Section 5 or Section 6(3) of the Rajasthan Sati (Prevention) Act, 1987 and not under both the sections. The High Court had ruled in favour of the respondent. This Court reversed the judgment of the High Court, referred to Article 20(2) of the Constitution, the judgments in Maqbool Hussain v. The State of Bombay (supra), State of Bombay v. S.L. Apte (supra) and observed : (Hat Singh case, SCC P.158, Para 9) "9. The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 26 of the General Clauses Act, 1897, Section 300 of the Code of Criminal Procedure, 1973 and Section 71 of the Indian Penal Code. Section 26 of the General Clauses Act provides :
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"26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
Section 300 Criminal Procedure Code provides, inter alia, -
"300. Person once convicted or acquitted not to be tgried for same offence.-(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof."(emphasis supplied in Hat Singh case) Both the provisions employ the expression "same offence"."
36. In view of the above discussion, the argument of the learned senior counsel appearing for the respondent that the Act is a special legislation vis-a-vis Indian Penal Code and a person who is said to have contravened the provisions of sub- section (1) of Sections 24, 24A, 25 and 26 cannot be prosecuted for an offence defined under the Indian Penal Code, which found favour with the High Court does not commend acceptance.
16. Thus, though a person cannot be punished twice in respect of the same offences, proceedings under different Acts in respect of offences Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.29107 of 2013 -:14:- committed under the provisions of each Act are not barred. In this case, the stage of punishment has not been reached and, in any case, the penalty imposed, is for evasion of tax. The punishment, if any is eventually imposed, for fabricating / forging documents, would be punishment for that offence. Furthermore, that would be not punishment by a judicial tribunal, as per the ratio of the law laid down in Maqbool Hassans' case (paras 17-18 thereof), cited in Vimal Kumar Suranas' case (supra).
17. Now coming to whether, even having held that simultaneous proceedings are maintainable, under the provisions of the Punjab VAT Act and the Indian Penal Code, in the particular circumstances of the case, is the petitioner entitled to continuity of the concession of anticipatory bail granted to him or not?
18. Mr. Vennet Sharma, learned counsel for the petitioner, has argued that the documents already having been seized by the VAT authorities and being easily available with the investigating agency, i.e. the Police, there is no cause for custodial interrogation and, as such, subject to his continuing to join investigation and cooperating in the investigation and complying with other conditions under Section 438(ii) Cr.P.C., there is no reason for not making the interim order absolute. Learned State Counsel, on the other hand, has argued that, whereas, there is no doubt that the documents which are alleged to have been fabricated and forged and have been found to be so, on verification from the Himachal Pradesh authorities, are already in the possession of the Punjab Authorities, however, as to where the goods were sold, which were purported to have been sold to the dealer in Himachal Pradesh, needs to be found out from the petitioner, Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.29107 of 2013 -:15:- which he is not revealing and, as such, his custodial interrogation is required, to determine the extent of the evasion, both in respect of the case in question, as also in respect to other transactions by the petitioner himself, or even by those to whom the goods have been sold in Punjab, so as to ensure that evasion of tax in this manner is at least attempted to be curtailed.
19. I find force in the arguments of the learned State Counsel, inasmuch as, the means of evasion of tax which have allegedly been adopted by the petitioner, is becoming a very commonly used method. When, on random checking or otherwise, the bills/invoices in any particular case are actually found to have been false, obviously the next logical question would be as to where the goods which are stated to have been sold, interstate, have been actually sold within the State itself, so as to avoid much higher levels of taxation involved. Hence, to determine the above question, since the petitioner is stated to be not cooperating in that regard, despite his being on interim anticipatory bail for the past 2 months, I do not find it to be a case where the concession of pre-arrest bail, as granted vide order dated 5.9.2013, should be continued any further.
20. In view of the above, this petition is dismissed and the interim order dated 5.09.2013, granting interim anticipatory bail to the petitioner is vacated.
However, nothing said hereinabove would be taken to be a finding on the merits of the case, but only observations necessary to be made, in the context of the prayer for continuing the concession of anticipatory bail.
Petition disposed of.
( AMOL RATTAN SINGH )
December 21, 2013 JUDGE
Gaurav Sorot
Sorot Gaurav
2014.01.14 14:24
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integrity of this document