P.M.SHUKLA v. SANTOSH HARDWARE

CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 23/06/2000 ORAL JUDGEMENT

1.(cid:9)Heard Mr.B.B.Nayak, learned advocate for the petitioner, Mr.D.F.Amin, learned advocate for the respondents No.1 to 6 and Mr.S.J.Dave, learned APP for the respondent No.7-State.

2.(cid:9)Respondent No.1 is a partnership firm carrying on its business at Godhra and respondent Nos. 2 to 6 are the partners of respondent No.1 firm. Respondent No.1 firm filed its return of income for the assessment year 1982-83 and the assessment was completed by the Income Tax Officer on 31.3.1984 under Section 144 of the Income Tax Act, 1961, taking into consideration the duplicate books of accounts seized by the Sales Tax Department, wherein the total income of the assessee firm was determined and has not accepted the income shown by the respondent No.1 firm but has determined more income than the income shown by the respondent no.1. The Income Tax Officer thereafter passed order under section 271(1)(c) on 19.2.1986 levying minimum penalty of Rs.23,540/-. The Commissioner of Income Tax (Appeals), Baroda, vide order dated 29.10.1987 confirmed the penalty order. Thereafter on 26.2.1990 a complaint was filed in the court of Chief Judicial Magistrate, Godhra, being Criminal Case No.1008/90 for offence under section 276(C)(1) and section 277 of the Income Tax Act, 1961 against the respondent No.1 firm and its partners.

3.(cid:9)On receiving the said complaint, the learned Chief Judicial Magistrate, Panchmahals at Godhra has issued the process. Thereafter respondents have appeared through their learned advocates and they have pleaded guilty. In pursuance of that, the learned Chief Judicial Magistrate by his judgment and order dated 6.5.1991 convicted the accused for the offence alleged against them and sentenced respondents No.2 to 6 till rising of the court and imposed fine of Rs.250/- each on all the accused, failing which ordered them to undergo simple imprisonment for 12 days.

4.(cid:9)Against that judgment and order, the present petition has been filed by the petitioner prayed for quashing and setting aside the judgment and order dated

6.5.91 passed by the learned Chief Judicial Magistrate, Panchmahals at Godhra in Criminal Case No.1008/90, mainly on the following grounds: "That the learned Magistrate erred in law in trying the case in a summary way as provided under section 260 of the Code of Criminal Procedure, 1973. The learned Magistrate ought to have appreciated that since the offence under section 276(C)(1)(ii) and section 277 of the Income Tax Act, 1961 was punishable with imprisonment for a term exceeding two years he had no power to try the case in a summary wasy as provided under section 260 of the Code of Criminal Procedure. "