TMI Blog2018 (7) TMI 1818X X X X Extracts X X X X X X X X Extracts X X X X ..... a facie materials. None of these findings will have any bearing while Court below decides the case finally and the decision will be made only based on the evidence on record and on the merits of the case without being influenced by any of the findings given while dismissing the discharge petition. The complaint is of the year 1991. It is therefore necessary for this Court to fix a time limit for the completion of the proceedings. The Additional Chief Metropolitan Magistrate (EO-1), Egmore, Chennai is directed to complete the proceedings strictly within a period of four months from the date of receipt of copy of this order. The petitioner and the respondent are directed to co-operate with the proceedings to ensure that the same is completed within a time stipulated by this Court. Criminal Revision Petition is dismissed. - CRL.R.C.615 of 2011 and MP.2 of 2011 - - - Dated:- 13-7-2018 - N. ANAND VENKATESH, J. For the Petitioner : Mr.B.Kumar, Senior Counsel for Mr.K.Anantha Krishna For the Respondent : Mr.N.Baaskaran, Senior Special Public Prosecutor (IT Cases) ORDER This Criminal Revision Petition has been filed aggrieved by the order dated 07.04.2011 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2nd accused/A2 died and insofar as the other accused persons are concerned, the respondent proceeded to prosecute the complaint. 6. The petitioner who subsequently became 2nd accused/A2 on the death of the Managing Director, filed an application for discharge under Section 245 of the Criminal Procedure Code. The Court below on consideration of the grounds raised in the discharge petition and also after considering the arguments made on either side was pleased to dismiss the discharge petition and aggrieved by the same, the present Criminal Revision petition has been filed before this Court. 7. Mr.B.Kumar, learned Senior Counsel appearing on behalf of the petitioner made the following submissions :- The respondent ought to have issued a notice under Section 2(35) of the Income Tax Act 1961, expressing his intention to treat the petitioner as the Principal Officer of the Company and without such a notice, the complaint filed by the respondent is not maintainable. The entire complaint is based on the assessment order made by the Assessing Officer for the Assessment year 1985-1986. This order was challenged by way of an appeal before the CIT (Appeals), which confirme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her] reported in 1995 Supp (2) SCC 724 [Swathy Chemical Limited Vs. Union of India] reported in CDJ 2001 MHC 578 (High Court of Madras). [M/s.Tata Ropbins Fraser Limited.,Jamshedpur Vs. State of Jharkand and others] reported in 2005 Cri.L.J.2318 (Jharkand High Court). [Madhumilan Syntex Limited and others Vs. Union of India and another] reported in 2007 11 SCC 297 (Supreme Court) [Greatway Private Limited Vs. Assistant Commissioner of Income Tax (P H)] reported in 1993 (76) Comp Cas 259 (Punjab and Haryana High Court). [Sushil Suri and Others Vs. State and others] reported in Manu/De/9898/2006 [Income Tax Officer Vs. Delhi Iron Works Private Limited and others] reported in 2010 SCC online Del. 3921 [Vikram Singh Latwal Vs. State of Uttarkhand] reported in 2013 SCC Online Utt 2579 [Devendra and others Vs. State of Uttarpradesh and another] reported in 2009 (7) SCC 495. 8. Per contra, Mr.N.Baaskaran, learned Senior Special Public Prosecutor for IT Cases would submit as follows : A notice under Section 2(35) of the Income Tax Act will be a pre-requisite only if the offence is under Section 276(B) wherein the duty is cast upon the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that is involved in the present case is under Section 276(C) (1) which deals with wilful attempt to evade a tax, Section 277 which deals with making false statement in any verification under the Act and Section 278(B) which deals with offence by companies including every person at the time when the offence was committed was incharge of and was responsible to the company for the conduct of the business of the Company. For filing a complaint under these offences, the determination of a Principal Officer is not necessary and non-issuance of individual notice before filing of the complaint will be of no consequence. This issue has been discussed in detail by the Court below. 9.2 This Court, therefore does not find any substance in the first submission that was made by the learned Senior counsel appearing for the petitioner and consequently, all the judgments that were referred and cited by the learned Senior Counsel will not have any applicability in the present case and in all those judgments, the offence in question was under Section 276 (B) of the IT Act. 9.3 The next submission made by the learned senior counsel with regard to the effect of the order passed by the Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er at the time of signing the profit and loss account and balance sheet, she had the requisite knowledge are all matters to be considered at the time of Trial. 9.6 Including the Indian Penal Code offence along with the offence under the Income Tax Act has also been questioned by the learned senior Counsel appearing for the petitioner. For an offence committed in relation to IT proceedings, the assesee can be prosecuted and tried both under the provisions of the Income Tax Act and under the provisions of Indian Penal Code and there is no bar for the same. Therefore, the submissions made by the learned senior counsel in this regard also stands rejected. 9.7 Insofar as the cognizance is concerned, it is true that the Supreme Court Judgement in [Pawan Kumar Sharma Vs. State of Uttaranchal] reported in 2014 139 AIC 652 has deprecated the practice of Rubber Stamp orders while taking cognizance of a complaint. This used to be a practise some years back. In view of the Judgments of the Supreme Court and the administrative instructions given by this Court, this practise has stopped in the State of Tamil Nadu long back. It is true that taking cognizance of the complaint requires applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well settled law laid down by this Court in the case of State of Bihar v. Ramesh Singh (1977) 4 SCC 39: 4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227. 25. We have already indicated above that framing of charge is the first major step in a criminal trial where the Court is expected to apply its mind to the entire record and documents placed therewith before the Court. Taking cognizance of an offence has been stated to necessitate an application of mind by the Court but framing of charge is a major event where the Court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al stage . The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 12. The Court below has carefully considered each and every issue that was raised by the petitioner in the discharge petition and has come to a conclusion that there are no grounds to discharge the petitioner. This Court does not find any ground to interfere with the order passed by the Court below. Accordingly, this Court confirms the order passed by the Court below dismissing the discharge petition. 13. It is made clear that the findings that have been given both by the Court below and this Court, are only based on prima facie materials. None of these findings will have any bearing while Court below decides the case finally and the decision will be made only based on the evidence on record and on the merits of the case without being influenced by any of the findings given while dismissing the discharge petition. 14. The complaint is of the year 1991. It is therefore necessary for this Court to fix a time limit for the completion of the proceedings. The Additional Chief Metropolitan Magistrate ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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