Madhya Pradesh High Court
Sunil Kumar Khandelwal vs Union Of India Through Shri P.K. Singi on 4 December, 2015
M.Cr.C. Nos.3260/2015, 3261/2015, 3263/2015 & 3264/2015
04.12.2015
Ms. Sudha Shrivastava, learned counsel for the applicant.
Shri Ajay Kumar Kakani, learned counsel for the
respondent.
This common order shall govern disposal of M.Cr.C. Nos.3260/2015, 3261/2015, 3263/2015 & 3264/2015.
These are first applications under Section 438 Cr.P.C. for grant of anticipatory bail. The present applicant apprehends his arrest in execution of warrant issued by concerning Magistrate in criminal case No.18/2011 (M.Cr.C. No.3260/2015), No.15/2011 (M.Cr.C. No.3261/2015), No.16/2011 (M.Cr.C. No.3263/2015) and criminal case No.17/2011 (M.Cr.C. No.3264/2015) under Sections 276C (1), 276CC, 277, 277-A, 278 of Income Tax Act, 1961 read with Section 420, 467, 468, 471, 120-A, 120-B of IPC.
The facts relevant for disposal of these applications are that the respondent acting in his official capacity filed criminal complaint before the concerning Magistrate under the aforementioned Sections in respect of various assessment years. According to the facts stated in the complaint, the present applicant was involved in providing and making fake and bogus bills for purchase of iron and steel to various parties at Indore. A search was conducted under Section 132 (1) of Income Tax Act, and simultaneously, a search was also conducted under Section 133-A of Income Tax Act in the premises of the present applicant. It was found during the search that being proprietor of M/s Prateek Enterprises, the present applicant issued fake and bogus bills to different parties while iron or steel was neither purchased nor supplied by the present applicant to the parties, and thereby, it was alleged that the present applicant evaded his tax liabilities.
Learned counsel for the applicant submits that as per the instructions received by her from Chartered Accountant of the present applicant, penalty proceedings under Section 271 (1) (c) of Income Tax Act initiated for the assessment years 2003-04 and year 2008-09 in respect of the present applicant was dropped by ACIT Circle 5 (1) Indore, Madhya Pradesh and placing reliance on the judgment of Hon'ble Apex Court in case of "Uttam Chand and others Vs. Income Tax Officer (1982) 2 S.C.C. 543", she further submits that when penalty proceedings were dropped by the income tax, the present applicant cannot be prosecuted for filing false returns or evading tax. She also placed reliance on the order passed by Co-ordinate Bench of this Court in case of "Laxmichand Ahuja Vs. Union of India passed in M.Cr.C. Nos.9194/2015 and 9196/2015 dated 20.10.2015" in which under the similar condition, bail was granted under Section 439 of Cr.P.C. to the assessee against whom the similar kind of allegations were made.
Per contra, the counsel appearing for the respondent cited the order of Co-ordinate Bench of this Court in the same case of "Laxmi Chand Ahuja Vs. Union of India passed in M.Cr.C. Nos.6671/2015 and 6672/2015" where it was observed that the case was serious in nature and the applicant was absconding earlier for a period of more than three years, therefore, application for grant of bail was dismissed. He also cited judgment of Punjab & Haryana High Court in case of "Jasdeep Singh Bains Vs. The State of Union Territory Chandigarh, 2004 Cr.L.J. 2318" in which, it was observed that when huge financial money was involved and also there are allegations under Sections 406 and 420 of IPC, the petition for bail should be filed. He further submits the present applicant also remained absconding since 2011 for almost 4 years knowingly fully well that the complaint cases are pending against him, and therefore, bail should not be granted to the present applicant.
In response, learned counsel for the applicant submits that in the present case, no statement of the complainant and his witnesses were recorded by the Magistrate under Sections 200 and 202 of Cr.P.C. and without recording of statements cognizance was taken which is against the provisions of law, and therefore, the proceedings for taking cognizance is vitiated, and as such, the present applicant is entitled for the bail.
Argument raised by the counsel for the applicant that the Magistrate failed to record statements of complainant and his witnesses under Sections 200 and 202 Cr.P.C. cannot be accepted. As in the light of proviso to Section 200 Cr.P.C., the Magistrate need not to examine the complainant and the witnesses, if a public servant acting or purporting to act in discharge of his official duties or the Court has made complainant. Here the proceedings before the respondent is a nature of quasi-judicial proceedings in which evidence is or may be recorded on oath, and therefore, no recording of statement of complainant and his witnesses are required. This apart only the hindrance in granting bail seems to be that the present applicant remained absconding since 2011. However, there is no evidence produced by the respondent to show that in fact efforts were made to arrest the present applicant earlier and the present applicant evaded his arrest, and therefore, merely because the complaints are pending since 2011, it cannot be assumed that the present applicant tried to evade his arrest by hiding himself. As such, looking to the nature of allegations where custodial interrogation of the present applicant is not required, in considered opinion of this Court, these applications deserve to be allowed, and allowed accordingly.
It is directed that in the event of arrest, the applicant shall be released on anticipatory bail on his furnishing a personal bond of Rs.50,000/- (Rupees Fifty Thousand Only) in each case and one solvent surety of the like amount in each case to the satisfaction of the concerned Magistrate or Arresting Officer as the case may be, with the following conditions :-
(i) that he will make himself available for interrogation by a police officer as and when required.
(ii)that he will not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade his from disclosing such facts to the Court or to any police officer.
(iii)that he would comply with the conditions enumerated under section 437 (3) of Cr.P.C. meticulously.
Certified copy, as per rules.
(Alok Verma) Judge Chitranjan