High Court Of Madras
Income Tax Officer vs. Balaji Chit Fund & Ors.
Sections CPC 245(2), 276C, 277
A. Packiaraj, J.
Crl. Revision Case Nos. 310 to 313 of 2000
24th April, 2003
Counsel Appeared
K. Ramaswamy, for the Petitioner : R. Asokan, for the Respondents
JUDGMENT
A. packiaraj, J. :
This revision has been filed by the complainant, namely, the ITO, Ward-I(2), Coimbatore, against the orders passed by the Judicial Magistrate No. 2, Coimbatore, in Crl. MP. Nos. 1581 to 1584 of 1998 in CC Nos. 306 to 309 of 1989 on his file, discharging the accused of offence under s. 245(2) of the Cr.PC.
2. The circumstances under which the said order has come to be passed are as follows : “(a) The first accused firm was carrying on business in chit funds and money-lending. Every year it was paying interest to the depositors and the interest is either credited to their accounts or paid to them. Under the provisions of the IT Act, 1961, by virtue of s. 194A, the firm is liable to deduct tax at the prescribed rates out of interest payable to the depositors either at the time of payment or crediting the interest to the accounts of the depositors, whichever is earlier. The firm concerned has to necessarily file a declaration under s. 194A(2) to the ITO about the details of the said interest being paid to the depositors. Accordingly, the firm filed their returns for the year 1980 and has been signed by the second accused Thiru Jayaraman, the managing partner. In addition to the said declaration the firm had also filed Form No. 15A allegedly signed by the depositors. However, on investigation, it came to be known that the depositors were fictitious in some cases and some of the depositors denied having received any interest. Hence, the prosecution.”
3. The contention raised by the respondents herein/the petitioners in the petition filed under s. 245 (2) of the Cr.PC was that the authorisation was given to Thiru Selvaraj and the complaint filed by him was returned for making out some corrections and subsequently, when the same was represented it was filed by another officer for whom sanction or authorisation was not given. Hence, according to the respondents, the prosecution is invalid.
4. No doubt, the CIT has given authorisation to Thiru Selvaraj to file a complaint and Thiru Selvaraj, who has been designated as ITO, City Circle-1, Coimbatore, has in fact filed the complaint. But subsequently, Thiru Muniandi has represented the complainant. For all practical purposes, the complainant is deemed only to be Thiru Selvaraj. As a matter of fact, s. 18 of the General Clauses Act, 1897, reads as follows : “Successors : In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession to express its relation to the functionaries or corporations. This section applies also to all Central Acts made after the third day of January, 1868, and to all regulations made on or after the fourteenth day of January, 1887.” Initially, the authorisation was given to Thiru Selvaraj and he has filed a complaint. Subsequently, if he relinquishes the office or transferred, his successor can proceed with the same complaint as a complainant. Therefore, I see no illegality in the complaint as regards this point, when Thiru Muniandi, the ITO, Ward-I(2), Coimbatore, proceeded with.
The next contention raised by the petitioner is that though the Tribunal found fault with the assessment, on appeal, the assessment order has been accepted and hence, the prosecution cannot be launched. True the appellate authority has accepted the assessment order. But the appellate authority did not suspect the bona fides of the depositors or that he was of the opinion that forgery was committed and false document has been utilised for the purpose of establishing their claim on the basis of the declaration, allegedly signed by the depositors. But now, the income-tax authorities by virtue of the powers conferred on them have investigated the matter, examined the respective depositors, who are supposed to have signed them have come out with a definite case that they have not affixed their signatures and that they are rank forgeries. In some of the cases, the depositors appear to be fictitious and consequently the offence of conspiracy, forgery, using a forged document or a false document and offence under ss. 276C and 277 of the IT Act are said to have been committed, which prima facie appear to have been committed. Therefore, the orders passed by the Judicial Magistrate No. 2, Coimbatore, have to be necessarily set aside and the matter is remanded back to the trial Court for proceeding as per law. However, it is open for the accused to put forth all their claims during the course of the trial and agitate the same. Since the matter relates to the year 1986, the Magistrate is directed to expedite the matter at the earliest.
With these observations, the revisions are allowed.
[Citation : 264 ITR 42]
