Jharkhand High Court
Ramesh Chandra Jain & Anr. vs State Of Jharkhand on 29 August, 2012
Equivalent citations: 2013 (1) AJR 20
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P.No.609 of 2005
1. Ramesh Chandra Jain
2. Rajeev Pal Singh .................................Petitioners
VERSUS
State of Jharkhand.............................Opposite Party
CORAM:HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioners : M/s.Y.V.Giri, Sr. Advocate
and M.S.Mittal, Advocate
For the State : A.P.P
6/ 29.8.12. Heard learned counsel appearing for the petitioners and learned counsel appearing for the State.
This application is directed against the order dated 26.5.2005 passed by the learned Sessions Judge, West Singhbhum at Chaibasa in Cr. Rev. No.4 of 2004 affirming the order dated 28.1.2004 passed by the then Sub-divisional Judicial Magistrate, Sadar at Chaibasa in Sadar P.S. case no.119 of 1991 whereby and whereunder petitioners' prayer for discharging them from the accusation was rejected.
Mr.Giri, learned Sr. counsel appearing for the petitioners submitted that it is the case of the prosecution that Assistant Commissioner, Sales Tax, Chaibasa lodged a case stating therein that when he returned to the office after vacation, the peon informed him that three persons who had approached him wanted to meet the Assistant Commissioner to whom he stated that he is not available. Thereafter the peon entertained them and permitted them to sleep in the office of the Assistant Commissioner. However he immediately did find booklets of several forms, such as, Form-C, Form-F and other forms missing from the office.
On such allegation, case was lodged which was registered as Sadar P.S. case no.119 of 1991 under Sections 380, 411,120B, 467, 468, 471 and 420 of the Indian Penal Code. That matter was investigated upon by the district police but the Investigating Officer did not find any clue of the culprits and thereby submitted final form. However, subsequently C.I.D took up the matter for further investigation and during investigation, it was found that F forms numbering 253 had been stolen from the office of the Assistant Commissioner, Sales Tax, Chaibasa and out of those 283 Forms, 26 Forms had been used by the petitioners' Company, namely, M/s. Amrit Vanaspati Pvt. Ltd., Amrit Nagar, Ghaziabad.
On such accusation, charge sheet was submitted, upon which cognizance of the offence was taken under Sections 380, 411,120B, 467, 468, 471 and 420 of the Indian Penal Code not against the company but against these two petitioners, who happened to be the Sr. Manager, Banking and Taxation and the Sr.Vice President (Commercial) of the said Company and also against several other persons including the peon, who had disclosed about the incident at first occasion to the Assistant Commissioner, Sales Tax, Chaibasa.
Subsequently, an application was filed on behalf of the petitioners for discharging them from the accusation. That application was rejected, vide order dated 28.1.2004.
Being aggrieved with that order, the petitioners did prefer a Criminal Revision which was also dismissed on 26.5.2005.
Being aggrieved with these orders, this application has been filed.
Mr. Giri, learned Sr. counsel appearing for the petitioners submitted that admittedly the Company, namely, M/s. Amrit Vanaspati Pvt. Ltd., who is said to have used F Form has never been made accused, though two of its officers, who are the petitioners here have been made accused without there being any allegation that these two petitioners were responsible to or In-charge of day-to-day affairs of the business of the Company.
It was further submitted that the offence as alleged will fall within the mischief of the provision of the Central Sales Tax Act which is special legislation and as such, any prosecution under the general law cannot be allowed to be gone into in view of the provision as contained in Section 4 of the Code of Criminal Procedure and on this ground also, entire prosecution becomes bad.
It was further submitted that there has been absolutely no material against the petitioners to show that the petitioners did commit offence of theft or even forgery. Moreover, the offence of forgery never gets attracted even if the entire allegation made in the charge sheet is taken to be true.
Under the circumstances as aforesaid, impugned orders have been sought tobe quashed.
A counter affidavit has been filed wherein statement has been made that stolen F Form had been used by the Company and that two of the officers, who happen to be employees of the petitioners' Company had stated that those forms had been provided by the consignee, the dealer of the petitioners' Company and thereby it has been stated that the Company and also the petitioners, who happen to be the officers of the Company are responsible for the offence alleged.
Coming to the point as to whether the offence alleged falls within the mischief of the provision of the Central Sales Tax Act, one needs to take notice of Section 6A of the Central Sales Tax Act which reads as follows:
" 6A. Burden of proof etc., in case of transfer of goods claimed otherwise than by way of sale - (1) where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority,within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a declaration duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of dispatch of such goods. [and if the dealer fails to furnish such declaration, then, the movement of such goods shall be deemed for all purposes of this Act to have been occasioned as a result of sale].
2. If the assessing authority is satisfied after making such enquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub-section (1) are true, he may at the time of, or at any time before, the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which the declaration relates shall be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale".
From perusal of this provision, it does appear that if a manufacturing Company takes a plea that the goods after being manufactured has been transported to its dealer then the dealer needs to pay tax over it. However, if it happens that the manufacturing Company only transfers his stock to the dealer to the other State then the manufacturing Company needs not to pay the sales tax over the goods, rather it is only the dealer who is required to pay the sales tax and the manufacturing Company is only to establish that the goods had been transferred to the dealer.
However, that provision was amended whereby dealer was required mandatorily to furnish F form with effect from 11.5.2002. If F form got used by the dealer, manufacturing Company needs not to pay sales tax over it. However, if such form is used and is found tobe forged, then the manufacturing Company is liable to be punished in view of the provisions as contained in Section 10A of the Central Sales Tax Act, 1956 which reads as under:
"10. Penalties - If any person -
(a) furnishes a certificate or declaration under sub-
section (2) of Section 6 or sub-section(1) of Section 6-A or sub-section (4) [or sub-section (8)] of Section 8, which he knows, or has reason to believe, to be false; or (aa) fails to get himself registered as required by section 7 or fails to comply with an order under sub-section (3-A) or with the requirements of sub-section (3-C) or sub-section (3-E), of that section; or
(b) being a registered dealer, falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration; or
(c) not being registered dealer, falsely represents when purchasing goods in the course of inter-
State trade or commerce that he is a registered dealer; or
(d) after purchasing any goods for any of the purposes specified in clause (b) or clause (c ) or clause (d) sub-section (3) of section 8 fails, without reasonable excuse, to make use of the goods for any such purpose :
(e) has in his possession any form prescribed for the purpose of sub-section (4) of section 8 which has not been obtained by him or by his principal or by his agent in accordance with the provisions of this Act or any rules made thereunder;
(f) collects any amount by way of tax in contravention of the provisions contained in section 9-A;
he shall be punishable with simple imprisonment which may extent to six months, or with fine, or with both; and when offence is continuing offence with a daily fine which may extend to fifty rupees for every day during which the offence continues."
Here is the specific case of the prosecution that those stolen forms had been used and by using those forms, exemption has been taken by the petitioners, as a result of which, the Company did not pay sales tax over the goods manufactured and transferred to the dealer and thereby the company should have been prosecuted under Section 10A of the aforesaid Act but in the instant case, petitioners who are the officers of the Company are being prosecuted under the General Law which would not be permissible in view of the provision as contained in Section 4 of the Code of Criminal Procedure which reads as follows:
4. Trial of offences under the Indian Penal Code and other laws - (1) All offence under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. As I have already stated that whatever allegations are there against the petitioners these fall within the mischief of Section 10 of the Central Sales Tax Act and therefore, the petitioners cannot be prosecuted under the general law and thereby the trial court and even the revisional court committed illegality in refusing the petitioners to discharge them from the case.
Further it does appear that it is the case of the prosecution that stolen forms had been used by the Company, namely, M/s. Amrit Vanaspati Pvt. Ltd. Nowhere it is the case of the prosecution that it were the petitioners who were responsible to or In-charge of day-to-day affairs of the business of the Company.
Under the circumstances, it can be presumed that the petitioners are being prosecuted under the principle of vicarious liability. But the Indian Penal Code save and except some provisions, specially providing thereof, does not contemplate any prosecution on account of vicarious liability on the part of the party, who is not charged directly for commission of the offence. This proposition has been laid down in a case of S.K.Alagh vs. State of Uttar Pradesh and others [(2008) 5 SCC 662] and recently that principle has been reiterated in a case of Aneeta Hoda vs. Godfather Travels and Tours Pvt. Ltd. [(2012) 5 SCC 661] .
Under the circumstances stated above, the trial court and also the revisional court certainly committed illegality in refusing to discharge the petitioners from the accusation. Accordingly, both the orders are hereby set aside.
Consequently, the petitioners are discharged from the case. In the result, this application stands allowed.
(R.R.Prasad, J.) ND/