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TMI Blog2006 (6) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... AR. JUDGMENT S. Ashok Kumar J.- This criminal revision case has been filed against the order of the learned Additional Chief Metropolitan Magistrate, (Economic Offences Wing-I), Chennai-8 in M.P. No. 1389 of 2003 in E.O.C.C. No. 179 of 1985, dated July 18, 2003 dismissing the discharge petition filed by the petitioner under section 245, Cr. P.C. The brief facts of the case are as follows: The respondent filed a complaint against the petitioner and others for the offences under section 120B IPC read with sections 420, 467, 468, 472, 181, 182, 177, 193, 196, 197, 198, 199, 200, 201, 380, 379, 419, 420 read with section 511 of the I.P.C, and 277 of the Income-tax Act. The petitioner is accused No. 12 in the said complaint. P.Ws 1 to 69 were examined on behalf of the complainant and exhibits P1 to P26 were marked. When the examination of witnesses was over by November 11, 1987, and the prosecution closed at that stage, the accused were required to be present in court on December 18,1987, for questioning under section 313(1) Cr. P.C. Thereafter the case had a checkered career, because one after another the accused absconded or filed discharge petitions before the trial court and qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficate and, after completing investigation, it would issue a duplicate tax deduction certificate. An assessee who happens to be a winner in the races has to enclose the original or duplicate tax deduction certificate with the income-tax return for payment of the tax or, if no tax is due, to get a refund order. A complaint was made that A-1 along with the other accused persons entered into a conspiracy between January, 1979, and June, 1984, to obtain duplicate tax deduction certificate on false pretences and also obtained some original certificates from the race club with the help of other accused, forged the signatures of the original winners and made false documents with the help of the other accused, that A-1 filed income-tax returns containing false declaration and statements before the income-tax authorities, that the income-tax authorities were induced to act on such false, forged and untrue documents and issue refund orders and that thereby the accused attempted to cheat the Government and income-tax authorities. The further case of the complainant was that after obtaining the income-tax deduction certificates, the accused persons obtained refund orders and encashed them by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ---------- 11-11-1987 So far as examination of accused under section 313(1) Cr. P C. adjourned to December 18,1987. A-1 to A-20 should be present on that date 18-12-1987 Petition filed under section 317 for A-19. Adjourned to January 20,1988. He is directed to be present on January 20,1988 for section 313(a). 20-1-1988 Petition under section 317 filed and allowed. Adjourned to March 25, 1988. 5-3-1988 Petition under section 317 filed for A-19. Adjourned to April 12,1988. 12-4-1988 NBW ordered to A-19. Adjourned to April 29,1988 29-4-1988 Case split up against A-18 to A-20. A-1 filed petition under section 245 Cr. P.C., for dismissal of complaint in M.P. No. 209 of 1988 24-5-1988 On May 24,1988 petition filed by A-1 dismissed. 1988 Crl. M.P. No. 4181/88 filed by Smt. Hema Mohnot, A-12 for quashing and stay granted. 14-7-1988 The above criminal M.P. was dismissed. 1988 Crl. M.P. No. 6457 of 1888 filed by A-11 Meenakumari Mohnot and stay granted The above two orders were passed in Crl. M.P. No. 4181/88 and Crl. M.P. No. 6457/88 reported in Hema Mohnot v. State by Chief CIT (Admn.) [1992] 198 ITR 410 (Mad). 1988 Crl. M.P. No. 4884/88 was filed by A-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proprietary concern of this petitioner and other records were seized and statements of A-1 to A-4, A-5 and A-12 were recorded under section 132(4) of the Income-tax Act. Some pronotes standing in the name of M/s. Ashoka Traders, Hindustan Electronics were found along with the other documents and certain challans. According to the investigation a cheque had been issued for Rs. 3,690 dated December 10, 1983, of Hindustan Electronics, the proprietary concern of this petitioner and this has been deposited and encashed by the petitioner through her account. During the search the account books of M/s. Naguasubbiah and company were found in the residential premises of A-5, A-11 and A-12. The false accounts written by the 7th accused in furtherance of the conspiracy stated to be Hassan and Company were found in the residential premises of A-1, A-3, A-4, A-5, A-11 and A-12. Therefore, the learned Addl. Chief Metropolitan Magistrate has come to the conclusion that there is a prima facie case existing for framing charges against the petitioner and other accused. What is a prima facie case existing for framing charges against an accused for the offence committed by him has been discussed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. Chapter XIX deals with provisions for trial of warrant cases instituted on a police report. Section 239 reads thus: '239. When accused shall be discharged.- If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.' 9. The said section shows that the magistrate is obliged to record his reasons if he decides to discharge the accused. The next section (section 240) reads thus: '240. Framing of charge.-(1) If, upon such consideration, examination, if any, and hearing, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, cited above, it is clear that the question whether a charge should be framed or not when the court is considering under section 245(1), Cr. P. C, the court has to take into account whether any case has been made out against the accused which if unrebutted would warrant his conviction. The hon'ble Supreme Court has gone to the extent of saying that the trial court has to consider the question as to framing of charge on a general consideration of the materials placed before him by the investigating police officer. Even a very strong suspicion founded upon materials before the magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence. In this case there is a strong circumstance to presume that a prima facie case exists against the petitioner (i) as she is the wife of A 1; (ii) several documents were seized from the residential house occupied by her along with her husband; (iii) a cheque for Rs. 3,690 issued in the name of her company has been encashed by her, the said cheque was issued by a fictit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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