High Court Of Punjab & Haryana
Mohan Singh & Ors. vs. Income Tax Officer
Section 276DD, 278B, CPC 482
Ashutosh Mohunta, J.
Crl. Misc. No. 5243-M of 1995
16th October, 2002
Counsel Appeared
S.C. Chhabra, for the Petitioners : Dr. N.L. Sharda, for the Respondent
JUDGMENT
Ashutosh Mohunta, J. :
This is a petition under s. 482 of the CPC., for quashing the complaint Annexure P1 dt. 25th Jan., 1991, filed under s. 276DD r/w s. 278B of the IT Act, 1961, and order dt. 25th March, 1991, Annexure P2, passed by the Chief Judicial Magistrate, Ferozepur, vide which the petitioners were summoned in this case.
The brief facts of the case are that the complainant filed a complaint Annexure P1, before the Chief Judicial Magistrate, Ferozepur, alleging that the petitioners, who are running the firm in the name of Dua Rice Mills at Fazilka, took a loan of Rs. 1,20,000 on different dates from two persons, namely, Angrej Singh and Smt. Ajit Kaur. That amount was taken in cash and not through “account payee cheques/bank drafts.” Thus, according to the complainant, the petitioners committed an offence punishable under s. 269SS of the IT Act, 1961.
On the basis of the complaint, the petitioners were summoned by the learned Chief Judicial Magistrate, Ferozepur, vide order dt. 25th March, 1991, Annexure P2. Mr. S. C. Chhabra, learned counsel for the petitioners, contends that as per the allegations made in the complaint, apart from the aforesaid allegations being there against Mohan Singh, there are no other allegations against any of the partners. It is pointed out by learned counsel that Mohan Singh had filed income-tax return on behalf of the said firm and it was Mohan Singh, who had been prosecuting his case before the ITO. Apart from the above, petitioner No. 5 is an old person, whereas petitioner No. 5 is residing at Shahjahanpur, U.P., whereas petitioner No. 6 is resident of Udeypur in Rajasthan. It is contended that none of these persons are involved in any manner in the running of partnership concern, Dua Rice Mills, Fazilka. Thus, it is contended by learned counsel for the petitioners that the complaint against the aforesaid persons is not maintainable. He relies upon a decision of the Delhi High Court in Parmeet Singh Sawney vs. Dinesh Verma, ITO (1987) 66 CTR (Del) 130 : (1988) 169 ITR 5 (Del), to contend that in the complaint, the prosecution should have mentioned in what manner every partner was in charge and responsible for the business. Mr. Chhabra contends that in the present complaint, there are no other allegations against any of the partners.
The allegations of the petitioners have been controverted by Dr. N.L. Sharda, standing counsel for the IT Department. Learned counsel contends that even in the petition, the petitioners has contended that petitioners Nos. 5 and 6 were not responsible in any manner with the conduct of the business of the firm. The petitioner has nowhere stated that the other partners of the firm were not responsible in any manner with regard to the running of the partnership concern. Thus, at the most, the complaint can be quashed only against petitioners Nos. 5 and 6 and not against the others.
After perusing the allegations made in the complaint as well as the averments made in the petition, I find that there are no allegations against petitioners Nos. 5 and 6, namely, Gurdial Singh and Smt. Ajit Kaur, wife of Jit Singh, who were residents of U.P. and Rajasthan. A perusal of this petition shows that the other partners were responsible for the work and conduct of the partnership concern, Dua Rice Mills.
In this view of the matter, I quash the complaint Annexure P1 and the summoning order dt. 25th March, 1991, Annexure P2, Gurdial Singh and Ajit Kaur, petitioners Nos. 5 and 6, only. However, all the other petitioners shall face trial before the Chief Judicial Magistrate, Ferozepur. The petitioners are, however, given liberty to raise all the pleas as raised in this petition before the trial Court and the trial Court shall decide the case expeditiously.
This petition stands allowed partly.
[Citation : 262 ITR 547]
