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TMI Blog2010 (4) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised for consideration in all of them, they can be disposed of by a common order. 2. The petitioner herein, an Assistant Commissioner in the Income-tax Department has preferred three complaints alleging commission of offences by the respondent herein in respect of three different periods. These complaints were made on the assertion that the respondent had filed false returns of income. The facts leading to the filing of the complaints do not in any manner weigh upon the issue arising for consideration and hence, are not informed herein. 3. The complaints of the petitioner in EOCC Nos. 62, 63, 64 of 1992 are as follows : (a) wilful attempt to evade income-tax under section 276C(1) of the Income-tax Act, 1961 ; (b) filing of false return of income with false statement of accounts under section 277 of the Income-tax Act, 1961 ; (c) fabricating false evidence under section 193 of the Indian Penal Code ; (d) using such false evidence in judicial proceedings before the Income-tax Officer under section 196 of the Indian Penal Code ; (e) cheating the Income-tax Officer under section 420 of the Indian Penal Code. for the assessment years 1984-85, 1985-86 and 1986-87. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g discharge. 9. The petitioner had filed a counter taking the stand that 245(2) of the Code of Criminal Procedure, 1973, petition was not maintainable without the evidence of the prosecution being recorded under section 244(1) of the Code of Criminal Procedure, 1973. The contention was that the petition under section 245(2) of the Code of Criminal Procedure, 1973, will be con-sidered only after taking evidence of the prosecution under section 244(1) of the Code of Criminal Procedure, 1973. The petition moved by the respondent under section 245(2) of the Code of Criminal Procedure, 1973, had been kept endlessly pending and the reason therefor is not clear. As above stated, on July 21, 2005, the petitioner moved a petition under sec-tion 244(2) of the Code of Criminal Procedure, 1973, before the trial court seeking a direction for issue of process to the witnesses. 10. The trial court has required the prosecution to argue on the maintain-ability of the petition filed by the complainant under section 244(2) of the Code of Criminal Procedure, 1973, written arguments were submitted by the prosecution on August 1, 2005. Informing that the trial court is not following the procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 245(2) of the Code of Criminal Procedure, 1973, would be maintainable before the stage of examination of witnesses con-templated under section 244 of the Code of Criminal Procedure, 1973, has been passed. If the matter stood thus, there would be no difficulty in dis-posing of the petition. But, this court finds that the petition for discharge moved under section 245(2) of the Code of Criminal Procedure, 1973, rests solely on the contention that the order of the Tribunal, whereby the levy of penalty against the respondent stands undone would render the complaint cases groundless. 15. Elaborate arguments have been advanced by either side on the binding nature of the order of the Tribunal upon a criminal court. While, the learned senior counsel for the respondent would submit that the same would be binding on the trial court, the learned special public prosecutor would argue otherwise. Various decisions were relied upon by counsel on either side. 16. The submissions of the learned senior counsel for the respondent pre-dominantly lie on the reasoning of the honourable apex court inK. C. Builders v. Asst. CIT [2004] 265 ITR 562 (SC) ; [2004] 2 SCC 731 and other decisions w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed persons and some other unknown persons had entered into a conspiracy at Bombay and other places in the beginning of October 1959 or thereabout for the purpose of smuggling goods into India and in pursuance of that con-spiracy they had smuggled several items of foreign goods in the years 1959 and 1960. 5. In that connection an enquiry was held by the customs author-ities. In the course of the enquiry some of the goods said to have been smuggled were seized. After the close of the enquiry those goods were ordered to be confiscated. In addition penalty was imposed on some of the accused. Thereafter on February 19, 1965, the Assistant Collector of Customs, Bombay after obtaining the required sanction of the Government filed a complaint against five persons including the appellants in Criminal Appeal No. 35 of 1967 (accused Nos. 1 and 2 in the case) under section 120B Indian Penal Code read with clauses (37), (75), (76) and (81) of section 167 of the Sea Customs Act, 1878 (Act VIII of 1878) as well as under section 5 of the Imports and Exports (Control) Act, 1947. Before the commencement of the enquiry in that complaint, the first accused filed on August 3, 1965, the appli-catio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal proceedings before a court of law or a judicial tribunal and prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. This court further held that where a person against whom proceedings had been taken by the sea customs authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed, was subsequently prosecuted before a criminal court for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act, the proceeding before the sea customs authorities was not a prosecution and the order for confiscation was not a punishment inflicted by a court or judicial tribunal within the meaning of article 20(2) of the Constitu-tion and hence his subsequent prosecution was not barred. The said rule was reiterated in Thomas Dana v. State of Punjab [1959] Supp 1 SCR 274 ; AIR 1959 SC 375 and in several other cases. 8. We shall now take up the contention that the finding of the Collector of Customs referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... launching the same, the present prosecution amounts to an abuse of the process of the court. The High Court has repelled that contention. It has come to the conclusion that the delay in filing the complaint is satisfactorily explained. That apart, it is not the case of the accused that any period of limitation is prescribed for filing the complaint. Hence the court before which the complaint was filed could not have thrown out the same on the sole ground that there has been delay in filing it. The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the complaint. Hence we see no substance in the contention that the prosecution should be quashed on the ground that there was delay in instituting the complaint." In P. Jayappan v. S. K. Perumal, First ITO [1984] 149 ITR 696 (SC) the honourable apex court has observed as follows (page 700) : "The criminal court no doubt has to give due regard to the result of any proceeding under the Act having a bearing on the question in issue and in an appropriate case it may drop the proceedings in the light of an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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