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TMI Blog2015 (11) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ure for penalty has been provided, governing the fact situation as obtaining in the present case, registration of the impugned FIR was nothing but abuse of process of Court and the same cannot be sustained. If any competent authority, after following the procedure laid down under the Act of 1994, comes to the conclusion that some amount was outstanding against the petitioner on account of service tax or any other financial liability for that purpose, petitioner would not be running away from his legal obligation and he would deposit the same, as he had been doing on earlier occasions also. In this view of the matter, it can be safely concluded that continuation of the criminal proceedings arising out of the impugned FIR, would certainly result in further abuse of process of Court, therefore, the same cannot be sustained, for this reason as well. - as an abundant precaution that the competent authority under the Act of 1994, would be at liberty to proceed further against the petitioner, as per the procedure provided therein. If the competent authority, after following the procedure under the Act of 1994 arrives at a conclusion that petitioner is liable to pay any amount, he shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Raut and anr. Vs. Central Bureau of Investigation, 2009 (7) SCC 526, since the Act of 1994 was a special Act, general provisions of IPC would not be attracted. Learned counsel for the petitioner concluded by submitting that if the competent authority, after following the procedure provided under the Act of 1994 would arrive at a conclusion, holding the petitioner liable for any amount, petitioner would not be averse in paying the said amount. He prays for quashing the impugned FIR and the consequential proceedings arising therefrom, including the impugned order of charge (Annexure P-5), by allowing the present petition. On the other hand, learned counsel for the State, on instructions from ASI Shobha Singh, Police Station Manesar, Gurgaon, submits that when the impugned FIR was registered against the petitioner, he was found to have committed an offence under Section 406 IPC, while not depositing the amount of ₹ 1,05,705/- on account of service tax. So far as factum of deposit of said amount by the petitioner vide Annexure P-3 was concerned, learned counsel for the State submits that said fact alone would not absolve the petitioner from his criminal liability. He prays f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his section shall not exceed the service tax payable. There is no denial to the fact that the moment petitioner received any demand put to him by the competent authority, he immediately deposited the amount of ₹ 1,05,705/-, which is so mentioned in the official communication (Annexure P-3). This amount deposited by the petitioner reflected in Annexure P-3, was towards service tax because this fact has also not been disputed by learned counsel for the State. This fact is referred in para 2 of the preliminary submissions of reply also. When a pointed question was put to learned counsel for the State, as to how the impugned FIR was registered under the general provisions of IPC, when the Act of 1994 was a special Act, which would prevail upon the general provisions, he had no answer and rightly so, it being a matter of record. It has also not been argued on behalf of the respondent-State that any competent authority, after following the procedure provided under the abovesaid relevant provisions of law contained in the Act of 1994, has arrived at a conclusion, pointing out any financial liability of the petitioner, which might have been outstanding against him. Having sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not be applicable. The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. To put it differently, upon completion of the investigation, an authorized officer could only file a complaint and not a police report, as a specific bar has been created by the Parliament. In that view of the matter, the police report being not a complaint and vice-versa, it was obligatory on the part of the respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode. The procedure laid down in TOHO, thus, would permit the respondent to file a complaint and not a report which course of action could have been t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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