TMI Blog1997 (3) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the two complaints lodged by the Income-tax Officer, Madurai, one in the year 1979, taken on file as C. C. No. 82 of 1979 against Sri Visalam Chit Fund Ltd., and 28 others and another complaint in the year 1980 against Nellai Finance Private Limited and 26 others came up before the Chief Judicial Magistrate, Madurai. Both the complaints were lodged for offences under sections 120B, 193, 196, 420, 468 and 511 of the Indian Penal Code and sections 277 and 278B of the Income-tax Act. The assessment year in both the complaints was 1975-76. These two complaints on transfer have been taken on file as C. C. No. 22 of 1983 and 23 of 1983, respectively, on the file of the Additional Chief Judicial Magistrate, Madurai. The accused in the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused under section 245 of the Code only when some evidence is let in on behalf of the complainant. Counsel has cited several authorities on this point and out of the authorities cited by him, I only rely upon the judgment of the Supreme Court in the case of R. S. Nayak v. A. R. Antulay, AIR 1986 SC 2045. The Supreme Court interpreting the scope and impact of sections 227, 239 and 245 of the Code, which operates at various spheres and stages, held that the order of discharge under section 245 of the Code, can be passed only if the evidence referred to under section 244 had been taken. Admittedly, in this case no evidence whatsoever had been let in by the complainant which fact is not disputed by counsel appearing for the respondent and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the cases relates to the assessment year 1975-76. I am not, in this order, going into the merits of the case at all in passing this order. The returns filed by the respective accused for the assessment year referred to above were found to be false and, therefore, the returns were not accepted by the Department. The Department made assessment in respect of the accused on their own. These reassessment orders were appealed by the respective assessees to the Commissioner (Appeals) on October 9, 1978. Ultimately, the liability of the respective accused were the subject-matter of settlement proceedings between the parties on the one hand and the Department on the other. The Commissioner of Income-tax ultimately passed an order on May 15, 1982, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... later stage was incorporated as one of the terms of settlement. Learned senior counsel appearing for the respondents submitted that since the entire sum of Rs. 75,00,000 assessed had been paid and the terms of settlement contained a clause for considering the withdrawal of the prosecution cases at a later stage, the learned trial judge had not committed an error in taking those two aspects into account while passing the impugned order. Besides learned senior counsel appearing for the respondent in each of the cases also states that in Crl. R. C. No. 584 of 1983, A3, A4, A8, A9, A10, A13, A14, A15, A17, A23 and A26 are dead. Likewise, in Crl. R. C. No. 794 of 1984, A2, A6, A7, A11, A14, A23 are reported to be dead. Learned senior counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if A-2 is alive (unfortunately he is not), then it would have been possible for him to offer his explanation before the court for the entries found in the documents seized from him which, if accepted, then the benefit would go to the accused, and if the explanation is not accepted, then all the legal consequences would follow. Why I am emphasising on this aspect is that the death of A-2 is likely to cause considerable prejudice to the accused, especially after a lapse of so many years. No doubt, it is not my idea to say that the delay in this case is certainly only due to the complainant. The delay is due to so many causes including the delay of nearly thirteen years of pendency of the case in this court. Learned senior counsel appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case are not similar to the facts on hand. On the peculiar facts available in this case enumerated by me earlier in this order, I am of the firm view that if the two cases are remitted back for retrial, the accused, who will be forced to face the trial, would be definitely and considerably prejudiced. The prejudice, which is likely to be caused to the accused in this case, if a retrial is ordered, would be very serious and irreparable. Under these circumstances, I am inclined to uphold the arguments Mr. K. Ramaswamy, learned senior counsel appearing for the respondents in each of the cases, for not sending back both the cases to the trial court. Under these circumstances and for the reasons stated above, I feel, while holding that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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