TMI Blog2005 (3) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... n against the order of discharge which is barred under section 397(2) of the Criminal Procedure Code. The provisions of section 397(2) of the Criminal Procedure Code cannot be circumvented merely by filing the petition under section 482 of the Criminal Procedure Code. On the merits also, in held that in the absence of pleading in the complaint about the involvement of the respondents and about their responsibility for the conduct of the business, the discharge order passed by the trial court on the said ground cannot be said to be unjustified - - - - - Dated:- 7-3-2005 - Judge(s) : SATISH KUMAR MITTAL. JUDGMENT Satish Kumar Mittal J.- The Income-tax Officer, Faridkot, has filed the instant petition under section 482 of the Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 201(1A) of the Act. During those proceedings, the accused firm explained that no interest had been paid by it and the aforesaid amount was paid as carrying charges. This explanation given by the firm was not accepted, therefore, the penalty under section 221 of the Act was imposed and the accused firm was held liable to be proceeded against under section 194A of the Act. Hence, the complaint was filed. After summoning of the accused, pre-charge evidence was recorded and the matter was heard regarding framing of charge. After considering the evidence produced by the petitioner, the Chief Judicial Magistrate came to the conclusion that the complainant was not able to prove his case and there was no sufficient evidence against the accused o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se [1991] 188 ITR 376 wherein it was held that under section 278B of the Act, the basic requirement is that the prosecution must prove that the persons concerned were in charge of, and were responsible to, the firm for the conduct of its business. It is only then that they can be vicariously prosecuted along with the firm. Against the order of discharge, the petitioner filed a revision petition, which has been dismissed by the Sessions Judge, Faridkot, while observing as under: "In this case, there is no allegation in the complaint as to which of the partners was in charge of and responsible to the firm for the conduct of the business of the firm. No notice was given to the partners before initiation of action against them. It was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and the instant petition is nothing but a second revision. In order to circumvent provisions of section 397(2) of the Criminal Procedure Code, the petitioner has filed the instant petition under section 482 of the Criminal Procedure Code for setting aside the order of the trial court as well as the revisional court. In support of their contention, counsel for the respondents relied upon a decision of this court in ITO v. Adinaih Sales Corporation [1992] 2 C.C. Cases 105. On the merits, learned counsel relied upon a judgment of this court in Smt. Pushpa Maini v. ITO [1993] 200 ITR 198, wherein it was held that where an offence under the Act has been committed by a company, every person who, at the time of commission of the offence was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code. The provisions of section 397(2) of the Criminal Procedure Code cannot be circumvented merely by filing the petition under section 482 of the Criminal Procedure Code. On the merits also, in similar circumstances, this court in Smt. Pushpa Maini's case [1993] 200 ITR 198 has held that in the absence of pleading in the complaint about the involvement of the respondents and about their responsibility for the conduct of the business, the discharge order passed by the trial court on the said ground cannot be said to be unjustified. Similarly, regarding the notice part, the Himachal Pradesh High Court in ITO v. Dayal Sons [2000] 244 ITR 126; [2001] 1 RCR (Crl.) 511 has held that prosecution of the accused for offences under sections 276C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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