Calcutta High Court (Appellete Side)
Surinder Singh Kohli vs State Of West Bengal on 21 December, 2018
Author: Asha Arora
Bench: Asha Arora
1
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Asha Arora
C.R.R 1091 of 2015
Surinder Singh Kohli
........Petitioner
Versus
1. State of West Bengal
2. D.S. Gupta, Joint Commissioner,
Commercial Taxes (Investigation Wing),
Central Section, Kolkata
......... Opposite Parties
For the Petitioner : Mr. Sumit Chakraborty, senior advocate
Mr. Kaushik Gupta, advocate
Mr. Ajay Choudhury, advocate
Mr. Mayukh Mukherjee, advocate
Ms. Pritha Basu, advocate
Ms. Shivangi Pathak, advocate
For the State : Ms. Faria Hossain, advocate
Hearing concluded on : 17.12.2018
Judgment on : 21st December, 2018.
Asha Arora, J.:
By the present application under section 482 of the Code of Criminal Procedure the petitioner has approached this court for quashing of the proceeding in GR No. 899 of 2013 arising out of Hare Street P.S. Case No. 154 of 2013 dated 6/3/2013 under section 93(4)(c)/93(6)/93(7) of West Bengal Value Added Tax Act, 2 2003 read with section 120B/403/420/467/468/471 of the Indian Penal Code pending before the learned Chief Metropolitan Magistrate Calcutta.
The facts in brief leading to the instant application are as follows:
On 6/3/2013 the complainant/opposite party no. 2 herein lodged a written complaint with the Deputy Commissioner of Police, Enforcement Branch Kolkata alleging commission of offences under section 93(4)(c), 93(6) and 93(7) of West Bengal Value Added Tax Act, 2003 and under the relevant sections of the Indian Penal Code by the Company named M/S MBL Infrastructure Ltd. and its directors namely, Surinder Singh Kohli who is the petitioner herein, Maruti Maheswari and Anjanee Kumar Lakhotia the two other directors and Nitin Bagaria the Secretary who were in charge of and responsible to the said company for the conduct of its business during the relevant period of tax evasion. It is alleged that there was suppression of contractual transfer price worth Rs. 47.13 crore by the company thereby evading tax payable to the tune of Rs. 2,79,02,375/- under the WBVAT Act during the period 2007- 2008 to 2011-2012. M/S MBL Infrastructure had executed works contract during the aforementioned period for Steel Authority of India Ltd. and Public Works (Roads) Department, Government of West Bengal but did not show the same in the returns filed under the Act. Business activities were carried out clandestinely by the dealer without maintaining proper books of accounts. On the basis of the said written complaint the proceeding was initiated 3 against the petitioner and three others hereinabove named as the directors and Secretary of the said Company. Investigation into the case culminated in the submission of the charge-sheet under section 93(4)(c)/93(6)/93(7) of WBVAT Act read with section 120B/403/420/467/468/471 IPC against the four accused persons hereinabove named including the petitioner.
Learned counsel for the petitioner argued that the contents of the FIR and the charge-sheet do not disclose the ingredients of the offences alleged against the petitioner. Referring to the petition of complaint dated 6/3/2013 and the letter dated 19/2/2013 addressed to MBL Infrastructure Ltd., it is pointed out that the tax alleged to have been evaded as mentioned in the FIR is Rs. 2,79,02,375/- whereas in the letter dated 19/2/2013 the figure of evaded unpaid tax is Rs. 2,35,92,215/-. It is further canvassed that the order dated 7/3/2013 of the Taxation Tribunal was not complied by making a formal assessment order for the relevant period quantifying the dues payable by the Company. Learned counsel for the petitioner sought to impress that without the demand being quantified by way of making assessment as per law there is no liability to pay the tax. In the written notes of argument on behalf of the petitioner it is contended that the petitioner was appointed as an independent director of the Company on 25/6/2010 and he resigned on 1/6/2013. Further contention is that as an independent director under the Companies Act the petitioner was in no way responsible for the conduct of business and the day to day affairs of the Company. He was inducted in the Company for his expertise in the field of finance. It is further averred that there is 4 no specific allegation against the petitioner who has been arrayed as an accused only due to his designation and not by reason of his involvement in the business transaction of the Company.
Learned counsel appearing for the State countered that the materials collected during investigation make out a prima facie case against the petitioner and the factual issues raised can only be decided by evidence during trial. Placing reliance upon the case of P. Jayappan versus S.K. Perumal, First Income Tax Officer, Tuticorin reported in AIR 1984 Supreme Court 1693, learned counsel for the State argued that there is no legal bar to the institution of criminal prosecution during the pendency of the assessment proceeding.
In P. Jayappan's Case (Supra) the petitioner, an assessee under the Income Tax Act, 1961, filed income tax return for the relevant periods which was accepted. Later a search of the petitioner's residence revealed that the petitioner had suppressed certain business transactions and had kept false accounts. On the basis of the allegation that the petitioner had deliberately filed false returns and had kept false accounts with the intention of using them as genuine evidence under the assessment proceedings, complaints were filed against him in the court of the Additional Chief Judicial Magistrate(Economic Offences), Madurai for taking action against him for offences punishable under sections 276 C and section 277 of the Income Tax Act and under section 193 and 196 of the Indian Penal Code. The petitioner moved before the High Court of Madras under section 482 of the Code of Criminal Procedure for quashing the proceedings 5 contending that the launching of the prosecution was a premature one on the ground that the reassessment proceedings started against him under the Income Tax Act had not been completed. The High Court refused to quash the criminal proceeding and dismissed the petition. The petitioner then approached the Supreme Court under Article 136 of the Constitution for Special Leave to appeal. The petitioner did not urge any legal bar for the institution of the proceedings except stating that in the event of the petitioner being exonerated in the reassessment proceedings, the prosecution may have to be dropped. Dismissing the petition for Special Leave the Supreme Court held that the pendency of the reassessment proceedings cannot act as a bar to the institution of the criminal prosecution for offences punishable under section 276 C or section 277 of the Act. The institution of the criminal proceedings cannot in the circumstances also amount to an abuse of the process of the Court. There is no provision in law which provides that a prosecution for the offences in question cannot be launched until reassessment proceedings initiated against the assessee are completed.
Bearing in mind the parameters laid down by the Supreme Court for exercising the power under section 482 of the Code of Criminal Procedure, I have perused the petition of complaint, the charge-sheet and the materials in the case diary. Upon perusing the aforesaid it cannot be said that the uncontroverted allegations made in the FIR and the materials collected in support thereof do not disclose the commission of any of the offences alleged against the petitioner. A criminal proceeding 6 cannot be quashed merely on the ground that all the ingredients of the offences alleged have not been spelt out in the petition of complaint. The test is whether the allegations in the complaint disclose a prima facie case. It is not necessary that the complainant should verbatim reproduce in the body of the complaint all the ingredients of the offences he is alleging. In the present case, from the FIR and the materials available it is evident that the necessary factual foundation has been laid for the offences alleged. Disputed questions of fact raised herein are matters to be decided by evidence during the trial. While exercising the power under section 482 CrPC neither a detailed inquiry nor a meticulous analysis nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted. The court is required to find out if the facts emerging from the materials on record, taken at their face value and accepted in their entirety constitute the offences alleged. In the instant case, upon perusal of the aforesaid materials it cannot be said that there is no prima facie case for proceeding against the petitioner.
For the reasons aforestated, the application being CRR 1091 of 2015 is devoid of merit and is accordingly dismissed.
No order as to cost.
It is made clear that no opinion has been expressed by this Court on the merits of the case and the trial Court will decide the case in accordance with law without being influenced by any observation made hereinabove.7
Urgent photostat certified copy of this order, if applied for, shall be given to the applicant upon compliance of requisite formalities.
(Asha Arora, J.)