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TMI Blog2003 (8) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... 34 of the Indian Penal Code are quashed - - - - - Dated:- 6-8-2003 - Judge(s) : V. M. JAIN. JUDGMENT V. M. Jain J. -This revision petition has been filed by the accused-petitioners under section 401/482 of the Code of Criminal Procedure, seeking quashment of the criminal complaint under section 277 of the Income-tax Act, 1961, copy annexure P1 and also quashing the order dated January 19, 1990, copy annexure P3, passed by the Additional Sessions Judge, vide which order dated May 22, 1989, copy annexure P2, passed by the learned Chief Judicial Magistrate discharging the accused was set aside and the case was ordered to be sent to the Chief Judicial Magistrate for further inquiry into the matter. The facts which are relevant for the decision of the present petition are that the Income-tax Officer filed a complaint for the offence under section 277 of the Income-tax Act read with section 34 of the Indian Penal Code against the accused-petitioners and others. It was alleged that M/s. Vishkarma Motors, accused No. 1, was a partnership concern of which accused Nos. 2 to 4, namely, Hardayal Singh, Rakha Singh and Smt. Punna Devi, were the partners having shares to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, accused No. 2, Hardayal Singh and accused No. 4., Smt. Punna Devi, were discharged whereas accused No. 3 had been declared as proclaimed offender. It was directed that the file be consigned and the same shall be requisitioned as and when accused No. 3, Rakha Singh, was arrested. Aggrieved against this order passed by the Chief Judicial Magistrate, the Income-tax Officer (complainant) filed revision petition in the Sessions Court. The learned Additional Sessions Judge, vide order dated January 19,1990, copy annexure P-3, found that under section 278B of the Income-tax Act even the firm is guilty of the offence if the offence had been committed by the firm. It was found that the accused, Hardayal Singh, prima facie, appeared to be guilty for the commission of the offence alleged in this case and could not be discharged as ordered by the trial court. It was also found that so far as Smt. Punna Devi was concerned, she was only a sleeping partner of the firm and the revision petition was not directed against her discharge on that account. Resultantly, while accepting the revision petition, the learned Additional Sessions Judge, directed the trial court for further inquiry into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the said return, the accused could be prosecuted under the amended Act. Section 278 of the Income-tax Act (after its amendment with effect from April 1, 1964), as it stood on July 18, 1973, the date on which the income-tax return was filed by the accused, was as under: "Abetment of false return, etc.-If a person abets or induces in any manner another person to make and deliver an account, statement or declaration relating to any income chargeable to tax which is false and which he either knows to be false or does not believe to be true, he shall be punishable with rigorous imprisonment for a term which may extend to two years: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than six months." With effect from October 1, 1975, section 278 of the Income-tax Act, 1961, was amended to read as under: "Abetment of false return, etc.-If a person abets or induces in any manner another person to make and deliver an account or a statement or declaration relating to any income chargeable to tax which is false and which he either knows to be false or does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: "So far as the liability of the directors of the company is concerned, we might add that section 278B which was brought on the statute book with effect from October 1, 1975, by the Taxation Laws (Amendment) Act, 1975, makes only the director who was in charge of the business of the company guilty of the offences in question. Since the offences were committed in the year 1965-69, we cannot apply the principle enshrined in this section to create ex post facto offences. To do so would tantamount to acting contrary to the clear mandate contained in article 20 of the Constitution. Mr. Awasthy has submitted that even prior to the coming into force of section 278B of the Act, position of law was the same. We are, however, of the view that if the Legislature itself thought of clarifying the position of law, it would not be proper for us to assume something to be in existence and then to go on to punish a person for a criminal offence. We, therefore, affirm the view taken by the learned Chief Judicial Magistrate and decline to allow the appeal as against the respondents Nos. 1 to 3..." The law laid down by the Division Bench in the above said authority was followed by a singl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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