9911796707
TMI Blog1997 (12) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... r court on the application filed by the complainant-Income-tax Officer, the respondent herein, under section 305 of the Code of Criminal Procedure making the petitioner as the representative to the first accused firm cannot be sustained under law. Therefore, the impugned order is liable to be set aside. The facts of the case are these : The Income-tax Officer filed a complaint against the first accused firm and its partner, Peer Mohideen (A-2), for the offences under the Income-tax Act. When the proceedings were pending, Peer Mohideen (A-2) passed away. The petitioner, Syed Ibrahim, filed a petition for waiver of interest and also paid a substantial amount of the bills on behalf of the first accused firm. The complaint was filed in the ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Criminal Procedure does not apply to the first accused firm and therefore, fixing the liability on the petitioner under section 305(1) of the Code of Criminal Procedure to represent the firm is not permissible under law. (2) As per section 305(2) of the Code of Criminal Procedure, even in case section 305(1) of the Code of Criminal Procedure applies, only the accused firm has got a right to appoint its representatives and the complainant cannot pick and choose the representative, especially when the other partners are still available. Admittedly, the petitioner is the son of one late Mohammed Idris who was a partner of the firm. The father of the petitioner was not an accused in this case. When it is so, it is stated, that the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined, shall be construed as a requirement that the representative shall be examined. (4) Where a representative of a corporation does not appear, any such requirement as is referred to in sub-section (3) shall not apply. (5) Where a statement in writing purporting to be signed by the managing director of the corporation or by any person (by whatever name called) havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration or a registered society is an accused. At the time of argument learned counsel for the petitioners conceded that Haji Esmail Noor Mohammed is not a company or a registered society, but it is a firm. The description of Razak Abdul Latif as partner of the firm in the heading of the petition clearly shows that it is a partnership firm and not a corporation or a registered society. Section 305 of the Criminal Procedure Code has, therefore, no application to the present case." In the instant case, though a faint attempt has been made by counsel for the respondent, that a corporation includes firm, the said submission was not substantiated by any basis either with reference to the relevant section of the Code of Criminal Procedure or t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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