Jharkhand High Court
Rohit Khaitan vs The State Of Jharkhand on 12 March, 2013
Equivalent citations: 2013 (2) AJR 168
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P.No.36 of 2013
Rohit Khaitan .................................Petitioner
VERSUS
State of Jharkhand.......................Opposite Party
CORAM:HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : M/s.Y.V.Giri, Sr. Advocate
and M.S.Mittal, Sr.Advocate
For the State : Mrs. Reshmi Kumar, A.P.P
4/ 12.3.13. This application has been filed for quashing of the order dated 18.9.1998 passed in connection with Chaibasa Sadar P.S. Case no.119 of 1991 (G.R. No.653 of 1991) whereby and whereunder cognizance of the offences punishable under Sections 380, 411, 120B, 467, 468, 471 and 120B of the Indian Penal Code has been take against the petitioner.
Before proceeding with the matter, the order passed on 15.1.2013 needs to be recorded.
"Mr. Y.V. Giri, learned senior counsel appearing for the petitioner, submits that this petitioner, who happened to be the Executive Vice President of the company namely, M/s Amrit Vanaspati Pvt. Ltd., has been made accused in a case registered as Chaibasa (Sadar) P.S. Case No. 119 of 1991 (G.R. No. 653 of 1991) along with other persons namely, Ramesh Chandra Jain and Rajeev Pal Singh, who also happened to be the Sr. Manager, Banking and Taxation and Sr. Vice President (Commercial) respectively, for commission of the offences under Sections 380, 411, 120B, 467, 468, 471 and 420 of Indian Penal Code.
On submission of charge-sheet, cognizance of the offences punishable under under Sections 380, 411, 120B, 467, 468, 471 and 420 of Indian Penal Code was taken not only against this petitioner but also against Ramesh Chandra Jain and Rajeev Pal Singh. When application for discharge had been rejected by the court below, those two persons moved to this Court in Cr.M.P. No. 609 of 2005. This Court having regard to the facts and circumstances did hold in the case of Ramesh Chandra Jain and Rajeev Pal Singh (Cr.M.P. No. 609 of 2005) that in the face of allegation the petitioners cannot be prosecuted under the general law as said allegation does constitute offence under Section 10A of the Central Sales Tax Act 1956.
At the same time, it was also held on the fact of the case that in absence of any specific allegation petitioners of that case (Cr.M.P. No. 609 of 2005) cannot be prosecuted under the principle of vicarious liability and thereby the order, under which prayer for discharge was rejected, was quashed.
The petitioner though never moved application for discharge but if the petitioner is relegated to the court below for filing application for discharge, it would be an empty formality, as this Court has already given finding to the effect that no case under the Indian Penal Code is made out against Ramesh Chandra Jain and Rajeev Pal Singh whose case was at par with this petitioner and, therefore, this petitioner has challenged the order taking cognizance.
In view of the submission, post this case on 12.2.2013 so that in the meantime, the State may file counter affidavit.
Till then, further proceeding of Chaibasa (Sadar) P.S. Case No. 119 of 1991 (G.R. No. 653 of 1991) pending in the court of Sub Divisional Judicial Magistrate, Chaibasa shall remain stayed so far petitioner-Rohit Khaitan is concerned."
It is the case of the prosecution that Assistant Commissioner, Commercial Tax, Chaibasa, Sk. Ashok Kumar 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, the peon 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 283 had been stolen from the office of the Assistant Commissioner, Commercial Tax, Chaibasa and out of those 283 Forms, 26 Forms had been used by the petitioner's Company, namely, M/s. Amrit Vanaspati Pvt. Ltd., Amrit Nagar, Ghaziabad to which the petitioner, as per the case of the petitioner, was the Vice President whereas, according to the case of the prosecution, he was the Managing Director of the Company.
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 only against the petitioner but also against Ramesh Chandra Jain and Rajeev Pal Singh, who happened to be the Sr. Manager, Banking and Taxation and Sr.Vice President (Commercial) respectively. Subsequently, those two persons had filed an application for discharge before the court below. That application was rejected vide order dated 28.1.2004 which was challenged before the revisional court but the revisional court did not find any illegality with that order and hence, dismissed the revision application.
Being aggrieved with that order, those two persons had moved before this Court, vide Cr.M.P.No.609 of 2005 which application was allowed after holding that allegation which had been made against these petitioners is the subject matter of the prosecution under Central Sales Tax Act, 1956 and hence, when the allegation is covered by a special legislation, the petitioners cannot be allowed to be prosecuted under the general law. The other ground on which the order refusing discharge was quashed is that those two persons were being prosecuted without there being any allegation that they were responsible for day-to-day affairs of the company.
Mr. Giri, learned Sr. counsel appearing for the petitioner submitted that the case of the petitioner is squarely covered by the decision rendered in a case of those two persons in Cr.M.P.No.609 of 2005 as this petitioner happened tobe the Vice President of the Company and against whom there has been absolutely no allegation that he was responsible to or In-charge of day-to-day affairs of the business of the Company and therefore, the court has certainly committed illegality in taking cognizance of the offence against the petitioner.
It was further submitted that according to the allegation, the Company used F forms which were, according to the case of the prosecution, forged and in that event, one can be held liable to be prosecuted under Section 10A of the Central Sales Tax Act, 1956 but the petitioner is being prosecuted for the offences relating to forgery which can not be allowed in view of the provision as contained in Section 4 of the Code of Criminal Procedure and that there has not been any allegation against the petitioner about the commission of offence of theft and thereby the order taking cognizance is fit to be quashed.
A counter affidavit has been filed wherein plea has been taken that the petitioner should have first moved the application for discharge before the court below but in stead of moving the application for discharge, he has approached this Court straightway against the order taking cognizance and hence, the application at this stage is fit to be rejected.
Further it has been stated that the Managing Director is certainly responsible for the present offence either committed by him or his Company.
The statement made in the counter affidavit certainly does suggest that the petitioner is being prosecuted on the principle of vicarious liability as it is the statement in the counter affidavit that the petitioner being Managing Director would be responsible for the commission of offence committed by the Company. No statement seems to be there in the counter affidavit that this petitioner at the relevant point of time was responsible to or In-charge of day- to-day affairs of the Company. In absence of that allegation, the petitioner is not liable to be prosecuted on account of the offence being committed by the Company, in view of the proposition laid down by the Hon'ble Supreme Court in a case of S.K.Alagh vs. State of Uttar Pradesh and others [(2008) 5 SCC 662] and also in a case of Aneeta Hoda vs. Godfather Travels and Tours Pvt. Ltd [(2012) 5 SCC 661].
Going further in the matter to consider 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.
Further the provision as contained in Section 10A of the Central Sales Tax Act, 1956, one needs to take notice 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 Sub-Section (a) of Section 10 thus prescribes that if one furnishes certificate or making declaration under sub-section (2) of Section 6 which he knows or has reason to believe to be false, he is liable to be finally penalized.
Here in the instant case, it is the specific case of the prosecution that Form F which were forged have been utilized by the Company. In such situation, the allegation certainly appears to have been falling within the mischief of Section 6A punishable under Section 10 of the Central Sales Tax Act, 1956.
Under the circumstances stated above, the petitioner cannot be allowed to be prosecuted under the General Law in view of the provision as contained in Section 4 of the Code of Criminal Procedure. Accordingly, the order taking cognizance is hereby quashed.
In the result, this application stands allowed.
(R.R.Prasad, J.) ND/