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7. Mr. Tushar Sheth, learned advocate has raised several contentions. His primary contention is that the complaint which is filed against all the family members by the Income-

Tax Department for the single transaction, that means, lottery ticket purchased by the HUF and the amount is received by HUF and therefore, the profit is divided amongst all the family NEUTRAL CITATION R/CR.MA/8222/2019 JUDGMENT DATED: 20/07/2023 undefined members and that amount is shown in the return. He has submitted that there is no case made out against Section- 130D of the I.T.Act or IPC as alleged in the respective complaints. He has further submitted that Criminal Case is pending about 20 years and which itself amounts to breach of fundamental rights and speedy trial conferred under Article 21 of the Constitution. In support of the same, he has referred judgment of Hon'ble Apex Court reported in 2002 (4) SCC 578, para-21 of the said judgment and also another judgment of Hon'ble Apex Court reported in 1992 (1) SCC 225, para 62 to 65 of the said judgment and has submitted that in view of this also, this Court should interfere with the proceedings, which are otherwise, not maintainable in eye of law. He has submitted that the complaint, which is filed by the Income-Tax Department is time barred and instituted after a period of seven years and eight months from the date of filing of the return i.e. on 16.07.1985 and the present complaint is filed on 31.03.1993. He has filed the present complaint after dismissal of Second Appeal of petitioner no.1 on 02.05.1990 as well as dismissal of Misc. Application of petitioner no.1 on 19.11.1991 by the ITAT. He has further submitted that similar type of NEUTRAL CITATION R/CR.MA/8222/2019 JUDGMENT DATED: 20/07/2023 undefined different 15 complaints (total 19 complaints) are filed by the respondent no.2. Out of total 19 complaints, 04 complaints are dismissed for default, against which, the revision applications are preferred by the Income-Tax Department. He has further submitted that all the complaints are almost verbatim same regarding same allegations made in the complaint. Therefore, he has submitted that the present petitioner and his relatives will have to undergo agony of trail in 19 cases, out of 04 dismissed for default and atleast 15 applications are pending for similar allegations arising out of same transactions, of- course, by mentioning different sections, which is not permissible in eye of law. In support of his submission, he has relied on judgment of Hon'ble Apex Court in the case of T.T. Antony Vs. State of Kerala reported in 2001 (6) SCC 181 and has submitted that looking to the sameness of allegations, such applications, total in 19 and at present 15 complaints are pending, are not maintainable in eye of law. He has further submitted that the petitioner has applied for compounding prosecution under Section-276D and 277 of IT Act with separate format and with an undertaking to pay the compounding charges on 13.11.2018 before the Chief NEUTRAL CITATION R/CR.MA/8222/2019 JUDGMENT DATED: 20/07/2023 undefined Commissioner of Income-Tax. Pursuant to which, petitioner no.1 was informed to pay Rs.1,40,258/- as the compounding fees including prosecution establishment charges and litigation expenses. Thereafter, the petitioner has written to the authority about his readiness to pay amount by filing undertaking, but there is no response and therefore, the petitioner has paid an amount of rs.1,40,260 in the account of Income-Tax Department on 25.03.2019 and receipt is issued against the said payment. Thereafter, the petitioner has applied for waiver of interest and penalty vide application dated 13.11.2018 stating that the details of case as stated herein above and further stating that he is not having work due to his old age and he is dependent on Seaminarayan Temple Organization and therefore, he is not able to pay the amount. But no response is received from the Department and he further submitted that the Income-Tax Department has produced a communication at the time of hearing for perusal of this Court, whereby, the Department has further raised demand of Rs.54,59,191/- towards the amount of tax involved penaty etc., which is not permissible in eye of law. He has also dorawn attention of this Court purusant to the earlier order NEUTRAL CITATION R/CR.MA/8222/2019 JUDGMENT DATED: 20/07/2023 undefined passed by this Court. He has already preferred an application dated 08.07.2019 for withdrawal of discharge application before the concerned trial Court, but he is not aware about the development pursuant to such application filed by the petitioner for withdraw of such application. Therefore, he submitted that at the best, only one complaint can be proceeded against all the persons as their transactions are same and therefore, the Income-Tax Department by filing 19 different complaints, out of which 15 are pending. Therefore he prays to exercise jurisdiction under Section-482 of the Cr.P.C. by quashing and setting aside the criminal case.

9. He has relied on judgment reported in [2016] 70 taxmann.com 131 (Gujarat), para 14 and 16 of that judgment and submitted that in view of the provisions of Income-Tax Act, there can be statutory presumption as to 'culpable mental state'. Therefore, prima-facie, the present proceedings are required to be continued in the facts and circumstances of the presence case, merely, delay in the trial is not good ground considering the change of circumstances. He has also submitted that the present case is barred by limitation as the criminal cases are filing in the year 1993 and present petitions are filed after a huge delay of 26 years and that itself on the ground of delay itself the petitions are required to be dismissed. He has further submitted that regarding the offences, which are punishable under various provisions of IPC, in all sections prima-facie case attracted to the provisions NEUTRAL CITATION R/CR.MA/8222/2019 JUDGMENT DATED: 20/07/2023 undefined of Sec.197 to 199 of IPC in respective matters as there is a false declaration made by the concerned assessee in the Income-Tax Return and there is also conspiracy between the family members about with a view to avoid liability of Income- Tax pursuant to the amount received from lottery amount. Therefore, only prosecution is permitted to be proceeded further with the complaints, which are filed by the Income-Tax Department. This will say by example for the other members of the society and therefore, under the guise of all, the petitioners should not permitted to raise contentions under Article 21 of the Constitution, which is not available to the petitioners by considering the fact that since 1993 to 2019, he is able to see that the complaint could not be proceeded further, which is filed before the concerned Court and in the year 2019 , he has filed present petition and thereafter, while issuing notice, this Court has granted liberty to the applicants to file appropriate applications for adjournment on account of pendency of present proceedings. Therefore, now it is appropriate time for this Court to consider the case by dismissing this petition with appropriate direction to concerned trial Court to expedite the proceedings. He has NEUTRAL CITATION R/CR.MA/8222/2019 JUDGMENT DATED: 20/07/2023 undefined further submitted that in view of the judgment of M/s. Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra reported in 2021 SCC Online Sc 315, this Court should not exercise power under Section-482 of Cr.P.C. as prima-facie case is made out against all the petitioners.

18. From the bare reading of all these observations, this Court has specifically observed that there is a statutory presumption prescribed in Section-278-E of the Act. This Court has to presume the existence of culpable mental state, and absence of such mental state can be pleaded by all accused as a defence in respect to the act charged as an offence in the prosecution. Therefore, the factual aspects highlighted by the appellants were rightly not dealt with by the this Court. This is a matter for trial. Therefore, I am completely agree with the judgment, which is cited at the bar by the learned advocate for the respondent. Moreover, considering the fact that at the time of filing of petition, the petitioner has filed discharge application. He has not proceeded with the discharge application and simultaneously, he has filed this petition and as such there is no absolute bar under Section-482 of Cr.P.C. whether the discharge NEUTRAL CITATION R/CR.MA/8222/2019 JUDGMENT DATED: 20/07/2023 undefined application is filed while issuing notice, the present petitioner has withdrawn the discharge application. However, till the hearing of this petition, though the petitioner has produced a copy of discharge application on the record, but could not produced any order passed pursuant to the discharge application. Therefore, on this count also, the petition is not required to be considered in detail on merits. However, this Court has discussed various contentions raised at the bar even otherwise on this count, the Court can refuse to exercise inherent power under Section-482 of Cr.P.C. more particularly, when the discharge application is pending in the facts and circumstances of the present case. It is also required to be noted that merely showing the readiness to compound the offences by accepting the communication received from the Chief Income-Tax Commissioner and thereafter, by filing undertaking to the effect that the petitioners are ready to compound offeces and thereafter, as the Department has not responded by depositing of compounded fees to the tune of Rs.1,40,258/- in the bank account itself is not sufficient. In view of this fact, this Court cannot exercise its power under Section-482 of Cr.P.C. as now the department is not ready to NEUTRAL CITATION R/CR.MA/8222/2019 JUDGMENT DATED: 20/07/2023 undefined compound the offences. It is also required to be noted at this stage that Mr. Sanghani, learned advocate has drawn attention of this Court that even as per the provision of law, the petitioners are required to pay huge amount of Rs.54,59,191/- towards penalty. Therefore, it cannot be said that the Income-Tax Department has acted unfair, on the contrary, the Department is trying to recover the huge amount, if the proceedings pursuant to the recovery is not proceeded then the department may have loss of that amount also, though the present proceedings is not merely for the recovery of that amount, but such amount is outstanding from the present petitioners. Therefore, this Court has to consider from this angle about loss of revenue to the State.

20. Considering the judgment of Hon'ble Supreme Court in case of M/s Neeharika Infrastructure Private Limited v. State of Maharashtra, 2021 SCC OnLine SC 315, more particularly, pra-80 of that judgment, the Apex Court has laid down certain parameters while considering the application under Section- 482 of Cr.P.C.

21. Considering the above observations, this Court is of the opinion that present petition is filed nothing but to delay the proceedings, which is initiated by the Income-Tax Department for the offence as stipulated in the complaints. Considering the totality of the facts and circumstances of the case, this Court do not exercise its power under Section-482 of Cr.P.C. Let the petitioners may face the trial of each case pursuant to NEUTRAL CITATION R/CR.MA/8222/2019 JUDGMENT DATED: 20/07/2023 undefined the complaints filed by the respondent no.2 by raising all defence available with them. Learned trial Court shall consider the same in accordance with law.