J.Jayalalithaa v. The Assistant Commissioner of Wealth Tax (Central Circle – II – 2)Nungambakkam High RoadChennai-34

appeal. The Commissioner of Wealth-tax (Appeals) passed an orderdated 16.06.1997 revising the assessment. Thereafter the income-taxand wealth-tax liabilities were deducted and taxable wealth wasarrived at Rs.1,34,99,600/- and the wealth tax payable wasdetermined at Rs.1,19,996/- and with the interest under Section 17(B) of the Act, the wealth-tax payable was determined atRs.1,91,993/- for the assessment year 1993-1994. A show causenotice dated 30.07.1996 was issued calling upon her to show cause asto why prosecution proceedings under Section 35 (B) of the Actshould not be initiated against her. In response to the show causenotice a reply dated 04.10.1996 was received from the authorisedrepresentative of the petitioner setting out the details for non-filing of the return. It is alleged in the complaint that thepetitioner was deliberately bent upon not to file her return ofwealth tax at all and may be she has willingly welcomed the exparteassessment for reasons best known to her. It is further allegedthat by deliberately failing to file the return of wealth thepetitioner has committed an offence punishable under Section 35 (B)of the Act.(iv) It is further alleged in the complaint that the complainthas been filed in pursuance of the sanction order dated 12.11.1997passed by the Commissioner of Wealth Tax (Central II), Chennai,under Section 35 (i) of the Act. The said sanction order was filedalong with the complaint.(v) Since the complaint had been filed by the respondent who isa public servant sworn statement of the respondent was not recordedand on a perusal of the allegations contained in the complaint andon being prima facie satisfied that a case has been made out underSection 35 (B) of the Act the learned Magistrate took cognizance ofthe offence on 08.12.1997 and process was ordered to be issued.3. The above Criminal Original Petition has been filed seekingto quash all further proceedings in E.O.C.C.No.263 of 1997 pendingon the file of the Additional Chief Metropolitan Magistrate(Economic Offence – I), Egmore, Chennai – 600 008 on the followinggrounds:-At the time of filing the complaint except the complaint andsanction order no other document was filed though in the complaint11 specified documents have been mentioned and under Item 12 it ismentioned “XII and other connected documents”. During the pendencyof the complaint an application for discharge has been filed and oncoming to know that none of the documents mentioned in the complainthave been filed before the Court a copy application was filed inC.A.No.3100 of 2007 dated 23.07.2007. On the said copy applicationthe following office note was made, namely, “Submitted : At the timeof giving the complaint list of documents mentioned in list have notbeen filed. Hence it is submitted necessary orders may be passed inthis regard”. To the above note the Court passed an order to thefollowing effect:- https://hcservices.ecourts.gov.in/hcservices/ “Call for the records from the complainant. Sd/-.. 30.7.2007.”4. It is contended by the petitioner that cognizance has beentaken only on the mere averments or recitals in the complaintwithout any supporting documents. It is further contended that thecomplaint of facts which constitutes an offence does not mean thatthe complaint alone and it necessarily needs the supportingdocuments connected with the complaint. It is further contendedthat the non-filing of any document along with the complaintincluding the sanction order could only mean that the Magistrate atthe time of taking cognizance has not applied his mind nor werethere sufficient materials to form any opinion so as to issue theprocess. The wordings of Section 190 (1) (a) and Section 204Cr.P.C., illustrate that not only the material facts but also thematerial particulars have to be necessarily included along with thecomplaint at the initiation or commencement of proceedings beforethe Magistrate. In fine, according to the petitioner, the petitionunder Section 482 Cr.P.C., has been filed on the ground that thecognizance taken by the Court on 18.12.1997 in the absence ofdocuments being produced before the Court and merely on the basis ofthe recitals in the complaint is contrary to law and it is incapableof satisfying either Section 190 or Section 204 of the Cr.P.C., 5. In the above Criminal Original Petition the respondent hasfiled a counter inter-alia contending as follows:-The complaint is filed for the offence under Section 35 (B) ofthe Act for wilful failure to file the return of wealth for theassessment year 1993-1994 and such return has not been filed even upto this date and as such the offence is still continuing in view ofthe decision of the Apex Court reported in 1986 (1) SCC 445 = (1986)157 ITR 330 (Maya Rani Punj v CIT). The petitioner has suppressedthe filing of Crl.O.P.Nos.2759 and 5378 of 1998 before this Courtwhich were dismissed as withdrawn by orders dated 06.03.1998 and06.02.2001, respectively, and about the time limit fixed by thisCourt for disposal of the cases. The petitioner has also suppressedthe orders passed in Crl.M.P.Nos.5854 of 2001, 3907 of 2002 and13179 of 2002 whereby the time for disposal of the case was extendedperiodically. Ever since the filing of the complaint the trial hasnot progressed because of the conduct of the petitioner. In view ofthe dismissal of the earlier two quash petitions the presentCriminal Original Petition is not maintainable. The presentcontention raised in the above petition could have been raised andcanvassed by the petitioner in the earlier quash petitions and thepetitioner has no right to file the quash petitions repeatedlyseeking the very same relief. 6. In the counter various dates on which the case stoodadjourned and the reasons for such adjournments have been stated. Itis stated that so far 180 hearings have taken place withoutexamining even a single witness even though prosecution is readywith its witnesses and documents from the day one. On 19.05.2008 https://hcservices.ecourts.gov.in/hcservices/ P.W.1 was examined in part after the petition for adjournment by thepetitioner was dismissed. For the past 11 years only one witnesswas examined in part. It is further stated that two witnesses havealready retired and they are aged more than 70 years and two otherwitnesses are at the verge of retirement shortly. On the aforesaidcontentions the respondent is praying for dismissal of the aboveCriminal Original Petition.7. Pending the above case, the petitioner filed Crl.M.P.No.3457of 2001 under Section 245 (2) of the Cr.P.C. seeking discharge. Inthe discharge petition it is contended that in the complaint it isalleged that the wealth tax assessment for the year 1993-1994 wasfinalised exparte on 15.02.1996. The appeal was filed by thepetitioner to revise the said assessment which stood allowed by theorder dated 03.08.1999 made in GIR No.701 J/93-94. As per the ordermade in the Revision, the Petitioner has got only deficit wealth tothe extent of Rs.24,97,939/- in short the liability of thepetitioner exceeds the total assets. In such circumstances there isno need or necessity for the petitioner to file the return. Theeffect of the order dated 03.08.1999 relates back to the allegedcause of action to file and maintain the complaint. Since no primafacie case has been made out against the petitioner she prayed fordischarge.8. The respondent filed a counter inter-alia contending asfollows:-The discharge petition is not maintainable under law. Inspiteof the statutory notice issued the petitioner wilfully anddeliberately failed to file the return of wealth which resulted inpassing of an exparte assessment order. The Department was deprivedof knowing the true and correct wealth of the petitioner / accusedwhich she ought to have disclosed voluntarily before the statutorydue date. The petitioner had net assessable wealth before thededuction of Income Tax liabilities for the years 1987 to 1993-1994and it means that the petitioner had sufficient wealth warrantingher to file the return of wealth. Had the petitioner filed herreturn of wealth disclosing her true and correct wealth voluntarily,which is a statutory obligation, there would not have been anydeficit wealth even in the consequential order. Not disclosing thetrue and correct net wealth and thereby inviting an exparteassessment order and claiming Income Tax liabilities form theassessable net wealth, all have the ingredients of tax-evasion.Therefore failure to file the return of wealth is an independentoffence under Section 35 (B) of the Act. 9. It is further contended that against the order made inG.I.R. No.701 J/93-9 the Department has preferred a further appealbefore the Income Tax Appellate Tribunal. Hence the order passed inGIR No.701 J/93-94 has no bearing on the offence alleged in thecomplaint and serious prejudice would be caused to the complainantif the impugned order is pressed into service without recordingevidence as the offence alleged in the complaint is independent ofthe impugned order which has no bearing on the offence alleged inthe complaint. Hence without recording evidence and commencement of https://hcservices.ecourts.gov.in/hcservices/ the Trial, the discharge petition is not maintainable and therespondent prayed for dismissal of the discharge petition.10. The petitioner raised the following additional grounds fordischarge, namely:-For the year 1993-1994 no income tax was assessed so far by theDepartment hence wealth-tax cannot be assessed for the year 1993-1994. The amount of tax payable towards income tax has to bededucted from the Tax Payable by way of wealth-tax. At the timewhen the complaint was filed, appeals filed by the petitioner aswell as the Department are still pending with respect to the taxpayable for the year 1993-1994 and it will have a bearing and effecton the tax payable if not under the wealth-tax Act. When the taxamount in respect of the assessee under the wealth-tax Act is yet tobe finalised the criminal prosecution launched is pre-mature. 11. The Learned Magistrate on a careful consideration of thecontentions raised on either side and on an application of variousdecisions relied upon on either side rejected the contentions putforth by the petitioner and dismissed the discharge petition andbeing aggrieved by that the petitioner has filed the above CriminalRevision Case. 12. Heard Sri.B.Sriramulu the learned counsel for thepetitioner in the Criminal Original Petition and Mr. K.Ramasamylearned Special Public Prosecutor for the respondent.13. Since a preliminary objection has been raised by thelearned Special Public Prosecutor for IT Cases regarding the verymaintainability of the above Criminal Original Petition on theground that the petitioner has suppressed earlier filing anddismissal of Criminal Original Petition Nos.2759 and 5378 of 1998the maintainability of the above Criminal Original Petition has tobe dealt with at the threshold.14. As far as the above Criminal Original Petition is concernedthe same has been presented even according to the petitioner, asstated in paragraph 19 of the quash petition, on the ground that thecognizance taken by the Court on 18.12.1997 without any recordbefore the Court except the recitals in the complaint is contrary tolaw and is incapable of satisfying either under Section 190 or underSection 204 of Cr.P.C. It is contended in the quash petition thatwhen a complaint containing merely the recitals without materialevidence or materials has to be termed in law as an inchoatecomplaint which has no legal sanctity and as such the cognizancetaken by the Court below is bad in law. It is further contendedthat any filing of the documents at the later stage cannot cure theinitial defect. It is also contended that the wordings of Section190 (1) (a) and Section 204 of Cr.P.C. illustrate that not only thematerial facts but also the material particulars have to benecessarily included in the complaint. Therefore the learned senior https://hcservices.ecourts.gov.in/hcservices/ counsel for the petitioner can only canvass the aforesaid groundtaken in the quash petition but not the following other groundssought to be raised:-(i)When the assessment proceedings were not completeddetermining the actual wealth, prosecution could not have beenlaunched on 08.12.1997.(ii)Unless the net wealth exceeds Rs.15,00,000/-, there is nonecessity for the petitioner to file tax returns. Otherwise,she is bound to file tax returns.(iii)When there is no final determination of her wealth, thequestion of liability does not arise.(iv)Unless the tax liability is determined, the question ofprosecution does not arise.(v)When the matter was remitted back in the appeal and the taxliability is not determined and the order of the assessingofficer is also not in existence, the learned Magistrate oughtnot to have taken cognizance of the offence.(vi)Till the remedies available under the Statute are exhaustedand the assessment order becomes final, the question ofprosecution for liability does not arise. In this case, thevery assessment order is not in existence. The learnedMagistrate ought not to have taken the case on file on08.12.1997.(vii)When notice under Section 17 of the Act is issued, theassessee is bound to file a return and not under Section 16(4) of the Act and in this case the notice was issued onlyunder Section 16 (4) and not under Section 17 of the Act.15. One another reason for not considering the aforesaidsubmissions made by the learned senior counsel for the petitioner isthat admittedly the petitioner had earlier filed Crl.O.P.No.2759 of1998 but the same was dismissed as withdrawn on 06.03.1998. Once-again the petitioner filed Crl.O.P.No.5378 of 1998 for quashing theproceedings in EOCC No.263 of 1997. In that quash petition thefollowing grounds have been raised:-(i)The prosecution instituted on alleged contravention ofSection 35 (B) of the Act is pre-mature since the assessmentproceedings in the case of the petitioner have not reachedfinality.(ii)The order granting sanction to prosecute the petitioner isinvalid as it has taken into several irrelevant and extraneousfacts.(iii)Where a complaint does not disclose the offence in the faceof it or where it is vitiated by an apparent error it takesaway the jurisdiction to institute proceedings then it wouldbe proper and just to set-aside the entire proceedings asotherwise directing the petitioner to undergo the ordial oftrial would be a serious abuse of law. https://hcservices.ecourts.gov.in/hcservices/

16. The said Crl.O.P.No.5378 of 1998 and other connectedCrl.O.Ps. were withdrawn and dismissed by a learned Judge of thisCourt by an order dated 06.02.2001. It will be relevant to refer tothe said order dated 06.02.2001 which reads as follows:-“1. The common endorsement made by the learnedcounsel for the petitioner in respect of all theabove Criminal Original Petition is placed onrecords.2.In view of the same, all the above CriminalOriginal Petitions are dismissed as withdrawn.Consequently, connected Crl.M.Ps. are alsodismissed. Interim stay granted in all thesecases shall stand vacated.3.It is open to the petitioner to raise whatevergrounds which are open to her under law before thetrial court. As the matters relate to the years1996 to 1998, the concerned trial Judge, E.O.I,Chennai shall dispose of the cases within a periodof eight months from the date of the receipt ofthis order without fail”A reading of the aforesaid order makes it clear that no permission /liberty has been given to the petitioner to file a similar quashpetition on the same cause of action but liberty has been given tothe petitioner to raise whatever grounds which are open to her underthe law before the trial court. In the light of the said order itis not open to the petitioner to raise the very same grounds in theabove Criminal Original Petition once-again.17. In this context it will be useful to refer to a decision ofthe Apex Court reported in (1987) 1 Supreme Court Cases 5 (SARGUJATRANSPORT SERVICE v. S.T.A.T.). In this decision in paragraph 9 ithas been observed as follows:-“9. The point for consideration is whether a petitionerafter withdrawing a writ petition filed by him in the HighCourt under Article 226 of the Constitution of Indiawithout the permission to institute a fresh petition canfile a fresh writ petition in the High Court under thatarticle. On this point the decision in Daryao case (1962)1 SCR 574 : AIR 1961 SC 1457 is of no assistance. But weare of the view that the principle underlying Rule 1 ofOrder XXIII of the Code should be extended in theinterests of administration of justice to cases ofwithdrawal of writ petition also, not on the ground of resjudicata but on the ground of public policy as explainedabove. It would also discourage the litigant fromindulging in bench-hunting tactics. In any event there isno justifiable reason in such a case to permit apetitioner to invoke the extraordinary jurisdiction of theHigh Court under Article 226 of the Constitution once https://hcservices.ecourts.gov.in/hcservices/ again. While the withdrawal of a writ petition filed in aHigh Court without permission to file a fresh writpetition may not bar other remedies like a suit or apetition under Article 32 of the Constitution of Indiasince such withdrawal does not amount to res judicata, theremedy under Article 226 of the Constitution of Indiashould be deemed to have been abandoned by the petitionerin respect of the cause of action relied on in the writpetition when he withdraws it without such permission. Inthe instant case the High Court was right in holding thata fresh writ petition was not maintainable before it inrespect of the same subject-matter since the earlier writpetition had been withdrawn without permission to file afresh petition.”18. The aforesaid principle rendered in the context ofdismissal of a writ petition filed under Article 226 of theConstitution of India on the ground of Public Policy and also todiscourage the litigant from indulging in Bench hunting tacticsequally applies to a quash petition filed by invoking the inherentjurisdiction of this Court under Section 482 Cr.P.C.19. But at the same time it has to be pointed out that theaforesaid ground taken in the present quash petition could not havebeen taken in the earlier quash petitions since according to thepetitioner the non filing of the list of documents mentioned in thecomplaint came to the knowledge of the petitioner only when thelearned Magistrate called for the records from the complainant byhis order dated 30.07.2007 passed on the copy application filed bythe petitioner in C.A.No.3100 of 2007 dated 23.07.2007. Thereforein the light of the aforesaid facts the present ground taken in theabove quash petition could not have been taken in the earlier twoquash petitions and therefore the above quash petition should bedeemed to have been filed on a fresh cause of action which was notavailable to the petitioner earlier and hence the preliminaryobjection raised by the respondent cannot be countenanced.20. Learned senior counsel for the petitioner while elaboratingthe contentions raised in the quash petition made the followingsubmissions:-(i)Since the complainant being a public servant there is no needto record his sworn statement but at least the learnedMagistrate must have perused the relevant documents mentionedin the complaint.(ii)Without calling for the records, the learned Magistrateought not to have taken the complaint on his file and issuedthe summons, which shows his non application of mind.(iii)The learned Magistrate ought to have called for andexamined the contents of the documents before takingcognizance of offence and issuing of summons.(iv)Had the learned Magistrate called for the documents, hewould not have taken cognizance of the offence. https://hcservices.ecourts.gov.in/hcservices/

21. In support of his aforesaid contentions the learned seniorcounsel for the petitioner relied upon the following decisions ofthe Apex Court:-(a) (1997) 4 Supreme Court Cases 241 (KRISHNAN v KRISHNAVENI).In this decision in paragraph 8 it is observed as follows:-“8. The object of Section 483 and the purpose behindconferring the revisional power under Section 397 readwith Section 401, upon the High Court is to investcontinuous supervisory jurisdiction so as to preventmiscarriage of justice or to correct irregularity of theprocedure or to mete out justice. In addition, theinherent power of the High Court is preserved by Section482. The power of the High Court, therefore, is very wide.However, the High Court must exercise such power sparinglyand cautiously when the Sessions Judge has simultaneouslyexercised revisional power under Section 397(1). However,when the High Court notices that there has been failure ofjustice or misuse of judicial mechanism or procedure,sentence or order is not correct, it is but the salutaryduty of the High Court to prevent the abuse of the processor miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in itsjuridical process or illegality of sentence or order.”(b) 1998-1-L.W. (Crl.) 72 (M/s. Pepsi Foods Ltd. & Anr. v.Special Judicial Magistrate & Ors). In this decision in paragraphs20 and 26 it is observed as under:-“20. It is settled that the High Court can exercise itspower of judicial review in criminal matters. In State ofHaryana v. Bhajan Lal and others 1992 Supp (1) SCC 335this Court examined the extraordinary power under Article226 of the Constitution and also the inherent powers underSection 482 of the Code which it said could be exercisedby the High Court either to prevent abuse of the processof any court or otherwise to secure the ends of justice.While laying down certain guidelines where the court willexercise jurisdiction under these provisions, it was alsostated that these guidelines could not be inflexible orlaying rigid formulae to be followed by the courts.Exercise of such power would depend upon the facts andcircumstances of each case but with the sole purpose toprevent abuse of the process of any court or otherwise tosecure the ends of justice. One of such guidelines iswhere the allegations made in the first information reportor the complaint, even if they are taken at their facevalue and accepted in their entirety do not prima facieconstitute any offence or make out a case against theaccused. Under Article 227 the power of superintendence bythe High Court is not only of administrative nature but isalso of judicial nature. This article confers vast powerson the High Court to prevent the abuse of the process oflaw by the inferior courts and to see that the stream ofadministration of justice remains clean and pure. ....” https://hcservices.ecourts.gov.in/hcservices/

26. Summoning of an accused in a criminal case is aserious matter. Criminal law cannot be set into motion asa matter of course. It is not that the complainant has tobring only two witnesses to support his allegations in thecomplaint to have the criminal law set into motion. Theorder of the Magistrate summoning the accused must reflectthat he has applied his mind to the facts of the case andthe law applicable thereto. He has to examine the natureof allegations made in the complaint and the evidence bothoral and documentary in support thereof and would that besufficient for the complainant to succeed in bringingcharge home to the accused. It is not that the Magistrateis a silent spectator at the time of recording ofpreliminary evidence before summoning of the accused. TheMagistrate has to carefully scrutinise the evidencebrought on record and may even himself put questions tothe complainant and his witnesses to elicit answers tofind out the truthfulness of the allegations or otherwiseand then examine if any offence is prima facie committedby all or any of the accused.”(c) 1993 Supp (1) Supreme Court Cases 499 (PUNJAB NATIONAL BANKv. SURENDRA PRASAD SINHA). In this decision in paragraphs 5 and 6it is observed as under:-“5. .....The bank had in its possession the fixed depositreceipt as guarantee for due payment of the debt and thebank appropriated the amount towards the debt due andpayable by the principal debtor. Further, the F.D.R. wasnot entrusted during the course of the business of thefirst appellant as a Banker of the respondent but in thecapacity as guarantor. The complaint does not make out anycase much less prima facie case, a condition precedent toset criminal law in motion. The Magistrate withoutadverting whether the allegation in the complaint primafacie makes out an offence charged for, obviously, in amechanical manner, issued process against all theappellants. The High Court committed grave error indeclining to quash the complaint on the finding that theBank acted prima facie high-handedly.6. It is also salutary to note that judicial processshould not be an instrument of oppression or needlessharassment. The complaint was laid impleading theChairman, the Managing Director of the Bank by name and ahost of officers. There lies responsibility and duty onthe Magistracy to find whether the concerned accusedshould be legally responsible for the offence charged for.Only on satisfying that the law casts liability or createsoffence against the juristic person or the personsimpleaded then only process would be issued. At that stagethe court would be circumspect and judicious in exercisingdiscretion and should take all the relevant facts andcircumstances into consideration before issuing processlest it would be an instrument in the hands of the privatecomplaint as vendetta to harass the persons needlessly. https://hcservices.ecourts.gov.in/hcservices/ Vindication of majesty of justice and maintenance of lawand order in the society are the prime objects of criminaljustice but it would not be the means to wreak personalvengeance. Considered from any angle we find that therespondent had abused the process and laid complaintagainst all the appellants without any prima facie case toharass them for vendetta.”(d) (2002) 1 Supreme Court Cases 241 (S.W.PALANITKAR v. STATEOF BIHAR). In this decision in paragraphs 23, 25 and 27 it isobserved as under:-“23. Many a times, complaints are filed under Section 200CrPC by the parties with an oblique motive or forcollateral purposes to harass, to wreck vengeance, topressurize the accused to bring them to their own terms orto enforce the obligations arising out of breach ofcontract touching commercial transactions instead ofapproaching civil courts with a view to realize money atthe earliest. It is also to be kept in mind that whenparties commit a wrongful act constituting a criminaloffence satisfying necessary ingredients of an offence,they cannot be allowed to walk away with an impressionthat no action could be taken against them on the criminalside. A wrongful or illegal act such as criminal breach oftrust, misappropriation, cheating or defamation may giverise to action both on civil as well as on the criminalside when it is clear from the complaint and swornstatements that necessary ingredients of constituting anoffence are made out. Maybe parties are entitled toproceed on civil side only in a given situation in theabsence of an act constituting an offence but not toproceed against the accused in a criminal prosecution.Hence before issuing a process a Magistrate has toessentially keep in mind the scheme contained in theprovisions of Sections 200-203 CrPC keeping in mind theposition of law stated above and pass an order judiciouslyand not mechanically or in a routine manner. ....25. ..... No doubt, exercise of inherent power underSection 482 CrPC by the High Court should be limited tovery extreme exceptions but in a case where ingredients ofalleged offences are not satisfied, even prima facie, itcannot be said that power under Section 482 CrPC shouldnot be exercised to quash the process issued by aMagistrate. In the case of Nagawwa (1976) 3 SCC 736 : 1976SCC (Cri) 507 it is laid down that in such a case, powerunder Section 482 CrPC can be exercised to quash theprocess issued by a Magistrate. ...27. Exercise of inherent power is available to the HighCourt to give effect to any order under CrPC, or toprevent abuse of the process of any court or otherwise tosecure the ends of justice. This being the position,exercise of power under Section 482 CrPC should beconsistent with the scope and ambit of the same in the https://hcservices.ecourts.gov.in/hcservices/ light of the decisions aforementioned. In appropriatecases, to prevent judicial process from being aninstrument of oppression or harassment in the hands offrustrated or vindictive litigants, exercise of inherentpower is not only desirable but necessary also, so thatthe judicial forum of court may not be allowed to beutilized for any oblique motive. When a person approachesthe High Court under Section 482 CrPC to quash the veryissue of process, the High Court on the facts andcircumstances of a case has to exercise the powers withcircumspection as stated above to really serve the purposeand object for which they are conferred.”22. Countering the aforesaid submissions the learned SpecialPublic Prosecutor submitted that if the perusal of the allegationscontained in the complaint reveals prima facie the commission of anyoffence the Court can take cognizance of the same. The materialpoint to be considered at this stage is as to whether the Courtwhile taking cognizance has applied its mind to the allegations inthe complaint or not. Since the complaint in this case hasadmittedly been filed by a Public servant, Sections 192 and 202Cr.P.C. have no role to play. Section 192 Cr.P.C. cannot be madeapplicable to the complaint in this case which is filed by a Publicservant as the said provision is applicable only to a complaintfiled by a private person. The examination of the complainant andthe perusal of the documents are not necessary in the case filed bya public servant for taking cognizance of the offence and thereforethe learned Special Public Prosecutor submitted that the contentionsput forth by the learned senior counsel for the petitioner areliable to be rejected.23. Learned Special Public Prosecutor further submitted that acomplaint by a Court and a complaint by a public servant areconspicuously excluded from the ambit of Section 202 Cr.P.C. Allthe documents mentioned in the complaint were placed before theauthority who has granted sanction to prosecute the petitioner andonly after perusing such documents sanction for prosecuting thepetitioner has been granted and the sanction for order has beenfiled along with the complaint; a mere perusal of the allegationscontained in the complaint prima facie reveals the ingredients ofthe offence under Section 35 (B) of the Act and therefore thecognizance taken by the learned Magistrate is in accordance withlaw. In support of his contentions the learned Special PublicProsecutor relied upon the following decisions:-(i) 1990 (1) EFR 5 (14) (ALL) (Kalloo v. Union of India). Inthis decision it has been laid down as under:-“The question whether in the cases exclusivelytriable by the Court of Sessions, the Magistrateis bound to ask the complainant to produce all hiswitnesses and to examine them only arise after theMagistrate considers fit to postpone the issue of https://hcservices.ecourts.gov.in/hcservices/ the process and decide to hold an inquiry in thematter. If the Magistrate is already satisfiedand decides to take cognizance of the matterstraightaway and to issue process under Section204, Cr.P.C. that stage will not reach. Aspointed out earlier this discretion of theMagistrate of taking cognizance without postponingthe issue of process is perfectly legal and withinthe ambit of the provisions of Chapter XVmentioned above .....It is, thus, clear that the complaint by privateperson and the complaint by Court or publicservant acting or purporting to act in thedischarge of his duties have been put on differentpedestal in the scheme of the Code and withoutrecording any statement of the complainant or anywitnesses in the second category the cognizancecan be taken straightaway and process issuedirrespective of the fact whether it is a caseexclusively triable by the Sessions Judge or inother ordinary case.In view of the above discussion it was notnecessary for the Chief Judicial Magistrate tohave held an inquiry under Section 202 (2),Cr.P.C. in the case and the impugned order islegal and does not suffer from any infirmity.”(ii) 1970 (1) Supreme Court Cases 665 (B.B.BHU SANNAVAR v.L.S. SAMAGOUDA). In this decision in paragraph 11 it has beenobserved as follows:-“The word “complaint” has a wide meaning since itincludes even an oral allegation. It may,therefore, be assumed that no form is prescribedwhich the complaint must take. It may only be saidthat there must be an allegation which prima faciediscloses the commission of an offence with thenecessary facts for the Magistrate to take action.Section 190(1)(a) makes it necessary that thealleged facts must disclose the commission of anoffence.”24. I have carefully considered the above submissions made bythe learned counsel on either side, perused the allegationscontained in the complaint and the order of the learned AdditionalChief Metropolitan Magistrate while taking cognizance of the case.The contentions put forth by the learned senior counsel for thepetitioner that in the absence of the documents mentioned in thelist of documents appended to the complaint the cognizance taken bythe learned Magistrate is bad is concerned this Court is of theconsidered view that it is not mandatory that the documents https://hcservices.ecourts.gov.in/hcservices/ mentioned in the complaint should have been made available to thelearned Magistrate even at the time of taking cognizance of thecomplaint. At the time of taking cognizance what is required isthat the learned Magistrate on a careful consideration of theallegations contained in the complaint should be satisfied primafacie that the ingredients of the offence / offences alleged in thecomplaint are made out. At that stage the learned Magistrate has totake the allegations contained in the complaint to be true andproceed to consider the same to find out as to whether a prima faciecase is made out or not.25. The decisions relied upon by the learned senior counsel forthe petitioner are not applicable to the facts of this case. In(1997) 4 Supreme Court Cases 241 (referred to supra) it is laid downthat when the High Court notices that there has been failure ofjustice or misuse of judicial mechanism or procedure, sentence ororder is not correct, it is but the salutary duty of the High Courtto prevent the abuse of the process or miscarriage of justice or tocorrect irregularities/ incorrectness committed by inferior criminalcourt in its juridical process or order. In the considered view ofthis Court the learned senior counsel for the petitioner is unableto point out any such ground in this case for interference by thisCourt. Learned senior counsel relied upon the followingobservations in paragraph 26 of the Pepsi Foods's Case, namely, “he has to examine the nature of allegations made in thecomplaint and the evidence both oral and documentary insupport thereof and would that be sufficient for thecomplainant to succeed in bringing charge home to theaccused”. But the aforesaid observation has been made by the Hon 'ble ApexCourt in the context of a complaint filed by a private individual.The facts of the case relating to Pepsi Foods's Case shows that thecomplaint in that case was filed by a private individual but not bya public servant and therefore the sworn statement of thecomplainant, the documents and the evidence of the witnessesproduced by him were recorded and only in that context the aforesaidobservation has been made by the Apex Court. But admittedly in thiscase the complaint has been filed by a public servant and as suchthe recording of his sworn statement or the evidence on the side ofthe complainant at that stage does not arise and hence the abovesaid observation made by the Apex Court is not applicable to thefacts of this case. Similarly the law laid down in Punjab NationalBank's case and S.W.Palanitkar's case has no relevance to the factsof this case as the facts of those cases are totally different fromthe facts of the case on hand. In this case the examination of thewitnesses and the production of documentary evidence is yet tocommence and even before that the above quash petition has beenfiled. For taking cognizance the examination of the complainant whois a public servant is not necessary and the production of anydocuments in support of the allegations contained in the complaintare also not necessary. It is also pertinent to point out that itis not the contention of the petitioner that any of the facts stated https://hcservices.ecourts.gov.in/hcservices/ in the complaint are false and therefore it is not at all necessaryfor the complainant to have produced the documents enumerated in thelist of documents appended in the complaint. 26. It is pertinent to point out that the well settled legalprinciple relating to pleadings is that the evidence of facts asdistinguished from the facts themselves need not be pleaded. Inother words the pleadings should contain a statement of materialfacts on which the party relies but not the evidence by which thosefacts are to be proved. The facts are of two types:-(a) Facta probanda – the facts required to be proved (materialfacts); and(b) Facta probantia – the facts by means of which they are tobe proved (particulars or evidence).27. The complaint should contain only facta probanda and notfacta probantia. The material facts on which the complainant reliesfor bringing home prima facie the offence alleged are called factaprobanda and they must be stated in the complaint but the facts orevidence by means of which the material facts are to be proved arecalled facta probantia and they need not be stated in the complaint.They are not the fact in issue but only relevant facts required tobe proved at the trial in order to establish the fact in issue. Inthe case of William v. Wilcox (1838) 3 AD & EI 314 (331), LordDenman, C.J., puts the principle pithily:“It is an elementary rule in pleading that, when a stateof facts is relied it is enough to allege it simply,without setting out the subordinate facts which are themeans of proving it, or the evidence sustaining theallegation.”28. If the aforesaid legal principles are applied to the caseon hand it has to be held that the documents described / mentionedin the list of documents appended to the complaint in question aresought to be relied upon by the complainant as evidence forsustaining the allegations made in the complaint. The factsrequired to be proved to establish the offence alleged have been setout in detail in the complaint and the facts by means of which theallegations are to be proved are by producing the documentsmentioned / described in the list of documents. It is not disputedor denied that the contents of the documents mentioned in the listof documents have been set out in detail in the body of thecomplaint. As laid down in 1970 (1) SCC 665 (referred to supra)there must be an allegation which prima facie discloses thecommission of an offence with the necessary facts for the Magistrateto take action. Section 190 (1) (a) makes it necessary that thealleged facts must disclose the commission of any offence.Therefore if the learned Magistrate had applied his judicial mind tothe allegations contained in the complaint and thereafter has cometo the conclusion that such allegations do prima facie reveal the https://hcservices.ecourts.gov.in/hcservices/ commission of the offence and taken cognizance of the offence noexception can be taken.29. A perusal of the order passed by the learned Magistratewhile taking cognizance of the complaint do reveal that the learnedMagistrate has applied his judicial mind to the entire allegationscontained in the complaint and only thereafter being satisfied thata prima facie case has been made out has taken cognizance of theoffence alleged and has ordered issue of process to the petitioner.The learned Magistrate has passed a detailed order even for takingcognizance of the complaint and this Court finds absolutely no erroror illegality in the order. Therefore this Court is of theconsidered view that the non-filing of the documents mentioned inthe list of documents appended to the complaint has not vitiated thecognizance taken by the learned Magistrate. 30. For the aforesaid reasons this Court is unable tocountenance the contentions put forth by the learned senior counselfor the petitioner. Accordingly the above Criminal OriginalPetition fails and the same is dismissed. 31. Heard Mr. Ravi Shankar Prasad the learned Senior counselfor the petitioner in Criminal Revision Case and Mr. K.Ramasamylearned Special Public Prosecutor for the respondent.32. The learned senior counsel for the petitioner made severalsubmissions and the same are dealt with one by one. Since thelearned counsel on either side referred to several decisions, someof them on the very same proposition of law, all the decisions arenot being referred to by me except the important ones.33. The first submission made by the learned senior counsel forthe petitioner is that the obligation to file the wealth tax returnis purely vested with the assessee and if there is no obligation tofile the return the question of prosecuting the assessee does notarise. According to the learned senior counsel, Section 14 (2) ofthe Act squarely applies to the case of the petitioner and since thenet wealth of the petitioner for the relevant assessment year isless than Rs.15,00,000/- she need not file any return and if shefiles any return it shall be deemed never to have been furnished andtherefore the petitioner cannot be prosecuted for the allegedoffence under Section 35 (B) of the Act for non-filing of thereturn. Learned senior counsel for the petitioner further submittedthat when the net wealth of the assessee is in the negative, theassessee is not obliged to file her return; when the assessee isnot obliged to file file her return the entire prosecution underSection 35 (B) of the Act for non-filing of the return would becomewithout jurisdiction. https://hcservices.ecourts.gov.in/hcservices/

34. Countering the said submissions the learned Special PublicProsecutor submitted that the assessee on her own cannot deduct anyliability for arriving at the net wealth without filing the returnin Form 'A' prescribed under Rule 3 (1) (a) of the Rules framedunder the Act disclosing in detail all the particulars referred totherein; if the assessee wants to deduct any liability the assesseemust show the evidence along with the return for such liability,only then the Department can find whether the net wealth of theassessee exceeds Rs.15,00,000/- or not; therefore the filing of thereturn is mandatory and Section 14 (2) of the Act is not applicablein the case of existing assessees.35. I have considered the aforesaid submission made by thelearned counsel on either side. It has to be pointed out thatthough the contention based on Section 14 (2) of the Act made by thelearned senior counsel looks attractive it has no substance. 36. For better appreciation of the aforesaid contentions putforth by the learned senior counsel for the petitioner it will beuseful to refer to the provisions contained in Section 14 of theAct, which reads as follows:-“14. Return of Wealth. – (1) Every person, if his net wealthor the net wealth of any other person in respect of which heis assessable under this Act on the valuation date exceededthe maximum amount which is not chargeable to wealth-tax,shall, on or before the due date, furnish a return of hisnet wealth or the net wealth of such other person as on thatvaluation date in the prescribed form and verified in theprescribed manner setting forth particulars of such netwealth and such other particulars as may be prescribed.Explanation. – In this sub-section, “due date” in relationto an assessee under this Act shall be the same date as thatapplicable to an assessee under the Income-tax Act under theExplanation to sub-section (1) of Section 139 of the Income-tax Act.(2) Notwithstanding anything contained in any otherprovision of this Act, a return of net wealth which showsthe net wealth below the maximum amount which is notchargeable to tax shall be deemed never to have beenfurnished:Provided that this sub-section shall not apply to a returnfurnished in response to a notice under Section 17.”A careful reading of the aforesaid provisions makes it clear thatSection 14 casts an obligation statutorily upon every person whosenet-wealth is assessable on the valuation date to file a return. Itis not permissible, having regard to the scheme and purposeunderlying the Act, for anyone to decide for himself or herself thatthe net-wealth is below the taxable limit, himself or herselfworking out the statutory deductions and evade the responsibility tofile the return. https://hcservices.ecourts.gov.in/hcservices/

37. The reliance upon Section 14 (2) of the Act to contend thatit stands in the way of the petitioner filing the return or preventsan assessee from filing a return if one has net-wealth less thanRs.15,00,000 (Rupees fifteen lakhs only) is misconceived. Section14 (2) of the Act only enjoins that a return of net-wealth, whichshows the net-wealth below the maximum amount which is notchargeable to tax shall be deemed never to have been furnished. This postulates the existence of the return (which means that itshould have been filed also) which from the particulars furnishedtherein “shows the net-wealth” to be below the maximum notchargeable, as a condition precedent for the deeming envisagedtherein to come into operation. It is only such return which hasbeen “deemed never to have been furnished”. A statutory deemingenvisaged in this sub-section is of a return furnished and factuallyin existence and available. Otherwise, there is no need for deeminga non-existent return to be “never to have been furnished”. The saidprovision does not exonerate such a person envisaged in section 14from not filing a return, but only on filing if it satisfy therequirement en-grafted in Section 14 (2) of the Act, that the“return of net-wealth which shows the net-wealth below the maximumamount which is not chargeable”, it is ordained to be deemed neverto have been furnished. The words “a return of net-wealth whichshows” postulates the existence of return filed and can never relateto a return not filed.38. Further it is pertinent to point out that admittedly inthis case the petitioner was already an assesee and as such shecannot evade liability from filing the return. Hence the abovecontention of the learned senior counsel for the petitioner cannotbe countenanced and the same is rejected.39. The second contention of the learned senior counsel for thepetitioner is that when according to section 2 (m), “net wealth”means the assets in excess of the aggregate value of all the debtsowed by the assessee as on the valuation date and when the appellateauthority accepted the contention of the assessee and in terms ofthe appellate order, had the assessing officer done the arithmeticwork, the net wealth of the assessee would have become in thenegative and the question of prosecuting the assessee would not havearisen. It is further contended that even the amendment to Section2(m) does not exclude the debt owed. Learned senior counsel for thepetitioner further submitted that the rectification of an assessmentmust be treated on the same basis as an original assessment for thepurpose of a claim to deduction in the computation of the assessee’snet wealth. He further contended that it is the final quantificationof the particular tax liability which must be taken into account.Learned senior counsel also contended that the liability to payincome tax is a debt within the meaning of section 2 (m) of the Actand it arises on the valuation date during the accounting year. Insupport of the above said contentions the learned senior counsel forthe petitioner relied upon the following decisions:- https://hcservices.ecourts.gov.in/hcservices/ (i) (1983) 4 Supreme Court Cases 692 (C.W.T. v. VIMLABENVADILAL MEHTA). In this decision in paragraph 3 the Apex Court haslaid down as under:-“3. Even if the tax liabilities, of which a deduction wasclaimed, were created by rectification orders or byassessment orders made after the date of the wealth taxassessment order under appeal the law requires the claimto deduction being considered on the same basis as if ithad been made in the original wealth tax assessmentproceeding. It is true that the rectification orders andthe gift tax assessments related to tax liabilities whichwere not claimed by the assessee in the course of theoriginal assessment proceeding before the Wealth TaxOfficer, but as the Appellate Assistant Commissionerpermitted the claim to be made during the hearing of theappeal, we see no reason why the assessee should be deniedconsideration of his claim. And as regards thequantification of the other income tax and wealth taxliabilities effected after the Wealth Tax Officer hadcompleted the original wealth tax assessment proceeding,the quantification of the liabilities related to a claimwhich had already been raised before the Wealth TaxOfficer in the course of the original assessmentproceeding. As we have observed in CWT v. VadilalLallubhai (1983) 4 SCC 697 the rectification of anassessment must be treated on the same basis as anoriginal assessment for the purpose of a claim todeduction in the computation of the assessee’s net wealth.The rectification merely quantifies the true tax liabilitywhich had already been crystallised and become a debt onthe last day of the previous year in the case of an incometax liability, on the valuation date in the case of awealth tax liability and on the last day of the previousyear in the case of a gift tax liability.”(ii) (1983) 4 Supreme Court Cases 697 (C.W.T. v. VADILALLALLUBHAI). In this decision in paragraph 3 the Apex Court has laiddown as under:-“3. When, in the course of a wealth tax assessment, theassessee makes a claim to deduction on account of incometax, wealth tax and gift tax liabilities subsisting asdebts owed by him on the valuation date, it is the finalquantification of the particular tax liability which mustbe taken into account. Where the wealth tax assessment somade is carried in appeal, we have no doubt that theAppellate Authority will take into account the ultimatequantification of the tax liability, even though suchultimate quantification has been reached after therelevant valuation date and during the pendency of thewealth tax appeal.” https://hcservices.ecourts.gov.in/hcservices/ (iii) (1966) 2 SCR 688 (KESORAM INDUSTRIES v. COMMR. W. TAX).In this decision the Apex Court has laid down as under:-“For the reasons we have stated earlier, we agree with theconclusion arrived at by the Gujarat High Court. We,therefore, hold that the liability to pay income-tax is adebt within the meaning of s. 2 (m) of the Wealth-tax Actand it arises on the valuation date during the accountingyear”.40. Countering the aforesaid submissions the learned SpecialPublic Prosecutor submitted that (1968) 69 ITR 864 (H.H.Sety ParvatiBaji v. CWT) relates to the construction of the un-amended section2(m) and further in that case the assessee had filed the return andtherefore the said decision is not applicable to the facts of thiscase because in this case we are concerned with the amendedprovision of section 2(m) of the Act. He further submitted that inthe case relating to (1966) 2 SCR 688 (referred to supra) theassessee had filed the return and that case also dealt with the un-amended provisions contained in Section 2 (m) of the Act andtherefore the said decision has no relevance to the case on hand;since the order of the appellate authority is no longer in force inview of the order passed by the Income Tax Appellate Tribunal thecontention based on the decision reported in (1983) 4 Supreme CourtCases 692 (referred to supra) has no substance.41. I have carefully considered the said submissions made bythe learned counsel on either side. The aforesaid contention of thelearned senior counsel is based on the order dated 11.06.1999 passedin W.T.Appeal No.17/98-99 of the Commissioner of Income-Tax(Appeals-1) Chennai. In the said order the following direction hasbeen issued:-“I direct the A.O. To pass a sensible consequential orderwhich should give effect to the direction given by the CIT(A). As directed by the CIT (A) the A.O. Should ascertainthe incometax liabilities of the A.Y. Under considerationand allow the same as a deduction from assessable wealth”.Pursuant to the said order the Assistant Commissioner of Wealth Tax,Central Circle II (2), Chennai – 34, passed an order dated03.08.1999 in GIR No.701 J/93-94 where-under the net wealth of theassessee was shown as deficit wealth namely Rs.24,97,939/-. Mainlybasing reliance on this order only the petitioner has filedCrl.M.P.No.3457 of 2007 seeking discharge. It is pertinent to pointout that as rightly contended by the learned Special PublicProsecutor as against the order dated 16.06.1997 passed by theCommissioner of Income-Tax (Appeals) (IV), Chennai the revenuepreferred an appeal before the Income Tax Appellate Tribunal,Chennai Bench, 'A' Chennai in WTA No.293 (MDS)/97 (Assessment year1993-1994) and the said appeal was allowed in favour of the Revenueby order dated 16.12.2005. In the said order the scope of theamended provision 2 (m) was considered in detail and ultimately ithas been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ “Taking into consideration the entire conspectus of thecase we are of the opinion that the income-tax and wealth-tax liabilities cannot be deducted as debts due inrelation to taxable assets. We, therefore decide thisissue in favour of the Revenue and against the assessee”.It is also seen that the Assessing Officer by his order dated03.07.2006 in GIR No.701 J/93-94 had quantified the wealth taxpayable by the assessee as Rs.5,95,617/-. Therefore when the orderof the Commissioner of Income Tax (Appeals) IV, dated 16.06.1997itself has been set-aside by the Tribunal it goes without sayingthat all the consequential orders / proceedings passed / issuedpursuant to the order dated 16.06.1997 namely the order dated30.06.1997 of the A.O. giving effect to the order dated 16.06.1997,the order dated 11.06.1999 passed in WTA No.17/98-99 and theconsequential order dated 03.08.1999 passed in GIR No.701 J/93-94gets obliterated and ceased to be in existence. Therefore theaforesaid contention of the learned senior counsel for thepetitioner has no basis whatsoever and hence the same is liable tothe rejected and accordingly rejected. The learned Magistrate hasdealt with the scope of the amended provisions contained in Section2 (m) of the Act which is in consonance with the order passed by theIncome Tax Appellate Tribunal dated 16.12.2005 and therefore thesaid order does not call for any interference. Moreover it has tobe pointed out that neither the learned Magistrate nor this Court ina criminal proceedings can go into the question of correctness orotherwise of the order passed by the authorities under the wealthtax act as the same can be done only by the competent authoritiesunder the Act. In the considered view of this Court the saidcontention itself ought not to have been allowed to be raised beforethe learned Magistrate.42. It is pertinent to point out that the learned seniorcounsel for the petitioner submitted that in the counter affidavitthe respondent has taken a stand that a Criminal Court can determinethe tax liability of the petitioner and contended that the criminalcourt cannot determine the tax liability of the petitioner. Insupport of the said contention the learned senior counsel reliedupon a decision of the Apex Court reported in (1972) 1 Supreme CourtCases 438 (S.V.KANDEAKAR v. V.M.DESHPANDE) and submitted that thecontention put forth in the counter filed by the respondent that thecriminal court can determine the tax liability of the petitionercannot be countenanced. But it has to be pointed out that duringthe course of arguments the learned Senior Special Public Prosecutorfor Income-tax Cases himself has fairly submitted that therespondent is not pressing the said contention and has conceded thatthe criminal court has no power to determine the tax liability ofthe petitioner. When the contention of the revision petitioneritself is that the Criminal Court cannot determine the tax liabilityof the petitioner it is futile on the part of the petitioner toexpect the criminal court to render a finding as to whether theincome tax and wealth tax liabilities are deductable for arriving atthe net wealth of the petitioner in the light of the amendedprovisions contained in Section 2 (m) of the Act. Learned senior https://hcservices.ecourts.gov.in/hcservices/ counsel himself rightly contended that the Income Tax Act as well asthe Wealth Tax Act are self-contained codes and there are severalauthorities constituted under the said Acts clothed withjurisdiction to pass assessment orders and determine the IncomeTax / Wealth Tax liability of the assessees and as such the criminalcourt cannot decide the tax liability of a person. In the light ofthe said contention of the learned senior counsel for the petitionerhimself this Court is of the considered view that the contentionsput forth by the petitioner basing reliance on the provisionscontained in Section 2 (m) of the Act ought not to have been raisedat all before the Criminal Court.43. The third submission made by the learned senior counsel forthe petitioner is that the assessment proceedings in the case of thepetitioner have not reached finality; the assessee has filed a taxcase in Tax Case SR Nos.35552 to 35556 of 2008 on 22-4-2008 beforethis Court with a petition to condone the delay and such delay isyet to be condoned. Basing reliance on the pendency of the Tax Casethe learned senior counsel submitted that an appeal re-openseverything and when the net wealth is finally quantified it revertsback to the original date and therefore till final quantification isdone and all the remedies available to the assessee under the wealthtax Act up to the Supreme Court are exhausted the assessee cannot beprosecuted. He further submitted that in view of Section 2 of theEconomic Offences in applicability of Limitation Act 1974 no periodof limitation is prescribed for prosecuting the assessee for non-filing of the return if ultimately it is decided that such assesseeis liable for payment of wealth tax. Therefore the learned seniorcounsel contended that the prosecution launched against thepetitioner is pre-mature. In support of the aforesaid contentionthe learned senior counsel relied upon the following decisions:-(i) (2005) 10 Supreme Court Cases 451 (GURU NANAK ENTERPRISESv. ITO). In this decision in paragraphs 5 to 7 the Apex Court hasheld as under:-“5. It appears to us that the case of the appellant isclearly covered by proviso (ii)(b) of Section 276-CC. Inthe instant case as noticed, the total tax liability ofthe appellant was finally assessed at Rs 1360. UnderSection 276-CC proviso (ii)(b), shorn of unnecessarydetails, a person shall not be proceeded against underthis section for failure to furnish in due time the returnof income if the tax payable by him on the total incomedetermined, as reduced by advanced tax, if any, paid, andany tax deducted at source, does not exceed Rs 3000. Asnoticed earlier, the appellant had disclosed a taxliability of Rs 644 which on final assessment wasdetermined as Rs 1360.6. Counsel for the Revenue could not advance any argumentto support the prosecution launched against the appellant,because it is clear that the total income tax liabilitydetermined by the department is only Rs 1360 which is muchless than Rs 3000 envisaged under the proviso. https://hcservices.ecourts.gov.in/hcservices/

7. We, therefore, find in the facts and circumstances ofthe case, that the prosecution is wholly unwarranted. ....”It is pertinent to point out that that in the above referred GuruNanak Enterprises's case in respect of the assessment year 1982-1983the appellant firm did not file its return in time but in its incometax return filed belatedly the appellant disclosed a tax liabilityof Rs.644. Thus it is clear that in that case the return was filedbut it was filed belatedly but in the case on hand the wealth-taxreturn is admittedly not at all filed even as on today. Thisdecision is relied upon in support of the contention that unless anduntil the wealth-tax assessment proceedings reach finality theassessee cannot be prosecuted for non-filing of the wealth-taxreturns.(ii) (2001) 3 Supreme Court Cases 459 (CIT v. BHUPEN CHAMPAKLAL DALAL). In this decision in paragraphs 3 to 5 the Apex Courthas laid down as under:-“3. The prosecution in criminal law and proceedingsarising under the Act are, undoubtedly, independentproceedings and, therefore, there is no impediment in lawfor the criminal proceedings to proceed even during thependency of the proceedings under the Act. However, awholesome rule will have to be adopted in matters of thisnature where courts have taken the view that when theconclusions arrived at by the Appellate Authorities have arelevance and bearing upon the conclusions to be reachedin the case necessarily one authority will have to awaitthe outcome of the other authority.4. This Court in G.L. Didwania v. ITO 1995 Supp (2) SCC724 dealt with the similar situation where there is aprosecution under the Act for making a false statementthat the assessee had intentionally concealed his incomeand the Tribunal ultimately set aside the assessmentholding that there is no material to hold that such incomebelongs to the assessee and the petition was filed beforethe Magistrate to drop the criminal proceedings andthereafter, an application was filed before the High Courtunder Section 482 CrPC to quash those criminalproceedings. This Court held that the whole question iswhether the appellant made a false statement regarding theincome which according to the assessing authority hasescaped assessment and this issue was dependent on theconclusion reached by the Appellate Tribunal and hence theprosecution could not be sustained. In Uttam Chand v. ITO(1982) 2 SCC 543 : 1982 SCC (Tax) 150 this Court held thatin view of the finding recorded by the Tribunal onappraisal of the entire material on the record that thefirm was a genuine firm and the assessee could not beprosecuted for filing false returns and, therefore,quashed the prosecution. In P. Jayappan v. S.K. Perumal,First ITO 1984 Supp SCC 437 : 1985 SCC (Tax) 7 this Court https://hcservices.ecourts.gov.in/hcservices/ observed that the pendency of the reassessment proceedingsunder the Act cannot act as a bar to the institution ofthe criminal proceedings and postponement or adjournmentof a proceedings for unduly long period on the ground thatanother proceedings having a bearing on the decision wasnot proper.5. In the present case, there is no claim of quashing ofthe proceedings. When ultimately the result to come out ofthe proceedings before the Appellate Authorities have adefinite bearing on the cases alleged against therespondents, we find that the High Court is justified ingranting the interim order it did and we do not think thatsuch an interim order calls for interference at our hands.The learned counsel on either side relied on severaldecisions, but in the view we have taken it is unnecessaryto refer to those decisions.”In the considered view of this court the above decision has norelevance to the facts of the case on hand since the facts of thiscase are different. Even in this very same decision in paragraph 3the Apex Court has observed that the prosecution in criminal law andproceedings arising under the Act are, undoubtedly, independentproceedings and, therefore, there is no impediment in law for thecriminal proceedings to proceed even during the pendency of theproceedings under the Act. The Apex Court has referred to andrelied upon the earlier decisions of the Apex Court reported in 1995Supp (2) SCC 724 (G.L.Didwania v. ITO), (1982) 2 SCC 543 = 1982 SCC(Tax) 150 (Uttam Chand v. ITO) and 1984 Supp. SCC 437 = 1985 SCC(Tax) 7 (P.Jayappan v. S.K.Perumal, First ITO).(iii) 1995 Supp (2) Supreme Court Cases 724 (G.L.DIDWANIA v.INCOME TAX OFFICER). In that case, the assessing authority holdingthat the appellant / assessee had intentionally concealed his incomederived from 'Y' company which belonged to him, initiatedprosecution against him. The appellant filed an appeal before theAppellate Tribunal and the Tribunal set-aside the assessment holdingthat there was no material to hold that the 'Y' company belonged toassessee. Basing reliance on the finding of the Appellate Tribunala petition was filed before the Magistrate to drop the criminalproceedings. An application before the High Court under Section 482Cr.P.C. to quash the criminal proceedings was filed and the same wasdismissed. Hence the appeal was filed before the Apex Court and theApex Court held that the whole question was whether the appellantmade a false statement regarding the income which according to theassessing authority had escaped assessment. Since this issue wasconcerned the finding of the appellate tribunal was conclusive andhence the prosecution cannot be sustained and on that ground thecriminal proceedings are quashed. But the facts of this case aretotally different from the facts of the case on hand and hence thedecision is not applicable.(iv) 1984 (Supp) Supreme Court Cases 437 (P.JAYAPPAN v.S.K.PERUMAL, 1ST I.T.O.). In this decision in paragraphs 5 and 6 itis laid down as under:- https://hcservices.ecourts.gov.in/hcservices/ “5. At the outset it has to be stated that there is noprovision in law which provides that a prosecution for theoffences in question cannot be launched until reassessmentproceedings initiated against the assessee are completed.Section 279 of the Act provides that a person shall not beproceeded against for an offence punishable under Section276-C or section 277 of the Act except at the instance ofthe Commissioner. It further provides that a person shallnot be proceeded against for an offence punishable underthose provisions in relation to the assessment for anassessment year in respect of which penalty is imposed orimposable on him under clause (iii) of sub-section (1) ofSection 271 has been reduced or waived by an order underSection 273-A. The Commissioner has the power eitherbefore or after the institution of proceedings to compoundany such offence. In this case it is not claimed that theCommissioner has not initiated the proceedings forinstituting the complaints. No other legal bar for theinstitution of the proceedings is urged except statingthat in the event of the petitioner being exonerated inthe reassessment proceedings, the prosecutions may have tobe dropped. It is true that as observed by this Court inUttam Chand v. ITO (1982) 133 ITR 909 : (1982) 2 SCC 543 :1982 SCC (Tax) 150, the prosecution once initiated may bequashed in the light of a finding favourable to theassessee recorded by an authority under the Actsubsequently in respect of the relevant assessmentproceedings but that decision is no authority for theproposition that no proceedings can be initiated at allunder Section 276-C and Section 277 as long as someproceeding under the Act in which there is a chance ofsuccess of the assessee is pending. A mere expectation ofsuccess in some proceeding in appeal or reference underthe Act cannot come in the way of the institution of thecriminal proceedings under Section 276-C and Section 277of the Act. In the criminal case all the ingredients ofthe offence in question have to be established in order tosecure the conviction of the accused. The criminal courtno doubt has to give due regard to the result of anyproceeding under the Act having a bearing on the questionin issue and in an appropriate case it may drop theproceedings in the light of an order passed under the Act.It does not, however, mean that the result of a proceedingunder the Act would be binding on the criminal court. Thecriminal court has to judge the case independently on theevidence placed before it. Otherwise there is a danger ofa contention being advanced that whenever the assessee orany other person liable under the Act has failed toconvince the authorities in the proceedings under the Actthat he has not deliberately made any false statement orthat he has not fabricated any material evidence, theconviction of such person should invariably follow in thecriminal court. ..... ”. https://hcservices.ecourts.gov.in/hcservices/

6. It may be that in an appropriate case the criminalcourt may adjourn or postpone the hearing of a criminalcase in exercise of its discretionary power under Section309 of the Code of Criminal Procedure if the disposal ofany proceeding under the Act which has a bearing on theproceedings before it is imminent so that it may take alsointo consideration the order to be passed therein. Evenhere the discretion should be exercised judicially and insuch a way as not to frustrate the object of the criminalproceedings. There is no rigid rule which makes itnecessary for a criminal court to adjourn or postpone thehearing of a case before it indefinitely or for an undulylong period only because some proceeding which may havesome bearing on it is pending elsewhere. But this,however, has no relevance to the question ofmaintainability of the prosecution. The prosecution inthose circumstances cannot be quashed on the ground thatit is a premature one.”(v) (1992) 3 Supreme Court Cases 178 (K.T.M.S. MOHD. v. UNIONOF INDIA). In this decision after referring to P.JAYAPPAN's caseand Uttam Chand's case in paragraph 51 the Apex Court has held asunder:-“51. In the present case, on two occasions, the Tribunalhas held that the amount of Rs 6 lakhs was not owned bythe first appellant. In Ex. D-4, the Tribunal has furtherheld that Section 69(a) dealing with the unexplained moneyetc. has no application to the facts of the case. Takingthis finding of the Tribunal into consideration, we areconstrained to hold that the appellants cannot be held tobe liable for punishment under Sections 120-B read with277 and 277 (simpliciter) of the I.T. Act as the verybasis of the prosecution is completely nullified by theorder of the Tribunal which fact can be given due regardin deciding the question of the criminal liability ofappellants 1 and 2.”Basing reliance on P.JAYAPPAN's case the learned senior counsel forthe petitioner submitted that since the tax case filed by thepetitioner is still pending even if this Court is of the view thatthe criminal proceedings cannot be quashed or the revision is notallowed a direction may be issued to the learned Magistrate to stayall further proceedings in the case and await the out come of theTax Case pending before this Court. 44. Learned senior counsel for the petitioner based reliance onthe decision reported in (1972) 2 Supreme Court Cases 890 (STATE OFBIHAR v. DEOKARAN NENSHI). In this decision in paragraphs 5 and 9the Apex Court has observed as under:-“5. A continuing offence is one which is susceptible ofcontinuance and is distinguishable from the one which iscommitted once and for all. It is one of those offences https://hcservices.ecourts.gov.in/hcservices/ which arises out of a failure to obey or comply with arule or its requirement and which involves a penalty, theliability for which continues until the rule or itsrequirement is obeyed or complied with. On every occasionthat such disobediance or non-compliance occurs andreoccurs, there is the offence committed. The distinctionbetween the two kinds of offences is between an act oromission which constitutes an offence once and for all andan act or omission which continues, and therefore,constitutes a fresh offence every time or occasion onwhich it continues. In the case of a continuing offence,there is thus the ingredient of continuance of the offencewhich is absent in the case of an offence which takesplace when an act or omission is committed once and forall.9. Regulation 3 read with Section 66 of the Mines Actmakes failure to furnish annual returns for the precedingyear by the January 21, of the succeeding year an offence.The language of Regulation 3 clearly indicates that anowner, manager etc. of a mine would be liable to thepenalty if he were to commit an infringement of theRegulation and that infringement consists in the failureto furnish returns on or before January 21, of thesucceeding year. The infringement, therefore, occurs onJanuary 21, of the relevant year and is complete on theowner failing to furnish the annual returns by that day.The Regulation does not lay down that the owner, manageretc. of the mine concerned would be guilty of an offenceif he continues to carry on the mine without furnishingthe returns or that the offence continues until therequirement of Regulation 3 is complied with. In otherwords, Regulation 3 does not render a continueddisobedience or non-compliance of it an offence. As in thecase of a construction of a wall in violation of a rule ora bye-law of a local body, the offence would be completeonce and for all as soon as such construction is made, adefault occurs in furnishing the returns by the prescribeddate. There is nothing in Regulation 3 or in any otherprovision in the Act or the Regulations which renders thecontinued non-compliance an offence until its requirementis carried out.”Basing reliance on the above decision learned senior counsel for thepetitioner submitted that the offence alleged in this case namelySection 35 (B) of the Act is not a continuing offence. 45. The learned Special Public Prosecutor submitted thatP.JAYAPPAN's case lends support to the case of the Revenue ratherthan the contentions put forth by the learned senior counsel for thepetitioner. He further submitted that in P.JAYAPPAN's case inparagraph 6 the Apex Court has observed that in an appropriate casethe criminal court may adjourn or postpone the hearing of a criminalcase in exercise of its discretionary power under Section 309 of the https://hcservices.ecourts.gov.in/hcservices/ Code of Criminal Procedure if the disposal of any proceeding underthe Act which has a bearing on the proceedings before it is imminentso that it may take also into consideration the order to be passedtherein. He further submitted that in this case, even according tothe petitioner, the Tax Case has been filed with a huge delay andthe delay itself is yet to be condoned and thereafter the tax caseis to be disposed of and it is not certain as to when the Tax Casewill be finally disposed of and therefore submitted that when thedisposal of the proceedings under the Act namely the Tax Casepending before this Court is not imminent there is no scope foreither adjourning or postponing the hearing of the criminal case.He further pointed out that in the very same decision the Apex Courtitself has observed that “there is no rigid rule which makes itnecessary for a criminal court to adjourn or postpone the hearing ofa case before it indefinitely or for an unduly long period onlybecause some proceeding which may have some bearing on it is pendingelsewhere. But this, however, has no relevance to the question ofmaintainability of the prosecution. The prosecution in thosecircumstances cannot be quashed on the ground that it is a prematureone”. He further submitted that all the witnesses to be examined inthis case are all aged and already three witnesses have retired fromservice and one witness is above 75 years old and another witness isdue to retire within few days and therefore submitted that this isnot a fit case where the criminal proceedings can either be quashedor stayed awaiting the out come of the Tax Case filed by thepetitioner. 46. He further submitted that since no return has been filed bythe assessee till date the offence still continues as the petitionerhas not disclosed her true and correct net-wealth in the prescribedform as required under Section 14 of the Act; reliance is placed onAIR 1986 SC 293 = 1986 (1) SCC 445 = (1986) 157 ITR 330 (Maya RaniPunj v CIT) wherein it is held that the non-compliance of anobligation of making a return is an infraction as long as thedefault continues and therefore the fact remains that theproceedings will have no bearing on the prosecution proceedingspending against the petitioner herein for non-filing of the return.He further submitted that in Maya Rani Punj's case, STATE OF BIHARv. DEOKARAN NENSHI's case has been referred to and only thereafterthe three Judges Bench has laid down as above and therefore thesubmission made by the learned senior counsel basing reliance onSTATE OF BIHAR v. DEOKARAN NENSHI's case cannot be countenanced.47. I have considered the said submissions made by the learnedcounsel on either side. The aforesaid contentions put forth by thelearned senior counsel for the petitioner are effectively answeredin the decision of the Three Judges Bench of the Hon 'ble Apex Courtrendered in P.JAYAPPAN's case referred to above wherein it has beenclearly laid down that a mere expectation of success in someproceeding in appeal or reference under the Act cannot come in theway of the institution of the criminal proceedings under the IncomeTax Act. In P.JAYAPPAN's case in paragraph 6 it has been observed https://hcservices.ecourts.gov.in/hcservices/ that in an appropriate case the criminal court may adjourn orpostpone the hearing of a criminal case in exercise of itsdiscretionary power under Section 309 of the Code of CriminalProcedure if the disposal of any proceeding under the Act which hasa bearing on the proceedings before it is imminent so that it maytake also into consideration the order to be passed therein. But inthis case, even according to the petitioner, the Tax Case has beenfiled with a huge delay and the delay itself is yet to be condonedand thereafter the tax case is to be disposed of and it is notcertain as to when the Tax Case will be finally disposed of andtherefore when the disposal of the proceedings under the Act namelythe Tax Case pending before this Court is not imminent there is noscope for either adjourning or postponing the hearing of thecriminal case. In the very same decision, the Apex Court itself hasobserved that “there is no rigid rule which makes it necessary for acriminal court to adjourn or postpone the hearing of a case beforeit indefinitely or for an unduly long period only because someproceeding which may have some bearing on it is pending elsewhere.But this, however, has no relevance to the question ofmaintainability of the prosecution. The prosecution in thosecircumstances cannot be quashed on the ground that it is a prematureone”. Further it is contended by the learned Special PublicProsecutor that all the witnesses to be examined in this case areall aged and already three witnesses have retired from service andone witness is above 75 years old and another witness is due toretire within few days and therefore this Court is of the consideredview that this is not a fit case where the criminal proceedings canbe stayed awaiting the out come of the Tax Case filed by thepetitioner. Further since admittedly the Criminal Case is of theyear 1997 it is not just or proper to adjourn or postpone thehearing of the case pending before the Criminal Court indefinitelyor for an unduly long period. Since the provisions of the wealth taxAct and the Income Tax Act are in pari-materia with each other theaforesaid decision squarely applies to the facts of this case andtherefore the above contentions of the learned senior counsel forthe petitioner are liable to be rejected and accordingly rejected. 48. As rightly contended by the learned Special PublicProsecutor Maya Rani Punj's case is a decision rendered by a ThreeJudges Bench of the Apex Court and in this case the Hon 'ble ApexCourt has referred to the decision of the Apex Court in DEOKARANNENSHI's case and only thereafter has held that the non-complianceof an obligation of making a return is an infraction as long as thedefault continues. Therefore the contention of the learned seniorcounsel for the petitioner that the offence under Section 35-B ofthe Act is not a continuing offence cannot be countenanced. 49. For the aforesaid reasons the following decisions referredto and relied upon by the learned senior counsel for the petitioner,namely, (2005) 10 Supreme Court Cases 451 (referred to supra),(2001) 3 Supreme Court Cases 459 (referred to supra), 1995 Supp (2)SCC 724 (referred to supra) and (1992) 3 Supreme Court Cases 178 https://hcservices.ecourts.gov.in/hcservices/ (referred to supra) are not applicable to the facts of this case asthe facts of those cases are totally different. 50. The learned senior counsel for the petitioner submittedthat admittedly in this case a notice under Section 16 (4) of theAct alone has been given and no notice under Section 17 of the Acthas been issued and therefore the non-filing of the return evenafter the issuance of a notice under Section 16 (4) of the Actcannot be construed to be wilful. Before the learned Magistrate acontention has been raised by the petitioner that the notice issuedunder Section 16 (4) of the Act is not a proper notice and it wasalso not properly served on the assessee. While considering theaforesaid contention the learned Magistrate has observed that thequestion whether the notice issued by the Department asking theassessee to file the report is issued under correct provision of lawand whether that notice was properly served on the person can beproved only during the trial by letting in oral and documentaryevidence by the prosecution. The learned Magistrate has furtherobserved that even the alleged notice has not been marked as anexhibit to enable the Court to look into it and hence has notconsidered the said contention on merits. According to the learnedsenior counsel, the learned Magistrate has erred in making suchobservation and submitted that the said contention ought to havebeen considered by the learned Magistrate on merits.51. Countering the said submissions the learned Special PublicProsecutor submitted that when admittedly the notice issued underSection 16 (4) of the Act has not been marked as an exhibit and theproof of service has also not been marked before the Court below andthe evidence is yet to be let in it is pre-mature to expect thelearned Magistrate to decide the said question.52. I have carefully considered the aforesaid submissions madeby the learned counsel on either side. I am of the considered viewthat the observations made by the learned Magistrate is perfectly inorder and it cannot be said that the learned Magistrate hascommitted any error of law. When admittedly the notice issued underSection 16 (4) of the Act is not before the Court namely that thesame has not been marked as an exhibit and the proof of service ofthe same is also not been produced before the Court it is not properon the part of the petitioner to expect the learned Magistrate toconsider the said issue at that stage. In the considered view ofthis Court the said contention goes beyond the scope of Section 245(2) of the Cr.P.C.53. Even otherwise this Court is of the considered view thatthe said contention is without substance for the reasons statedhere-under:-The relevant provisions of Section 16 of the Act reads asunder:- https://hcservices.ecourts.gov.in/hcservices/ “16. Assessment. - (1) Where a return has been made undersection 14 or section 15 or in response to a notice underclause (i) of sub-section (4), -(i) if any tax or interest is found due on the basisof such return, after adjustment of any amount paid by wayof tax or interest, then, without prejudice to theprovisions of sub-section (2), an intimation shall be sentto the assessee specifying the sum so payable and suchintimation shall be deemed to be a notice of demand issuedunder section 30 and all the provisions of this Act shallapply accordingly, and (ii) if any refund is due on the basis of suchreturn, it shall be granted to the assessee and anintimation to this effect shall be sent to the assessee”........(2) ......(3) .....(4) For the purposes of making an assessment underthis Act, the Assessing officer may serve, on any personwho has made a return under section 14 or section 15 or inwhose case the time allowed under sub-section (1) ofsection 14 for furnishing the return has expired, a noticerequiring him, on a date to be specified therein -(i) where such person has not made a return (withinthe time allowed under sub-section (1) of section 14 tofurnish a return of his net wealth or the net wealth ofany other person in respect of which he is assessableunder this Act on the valuation date, in the prescribedform and verified in the prescribed manner, setting forththe particulars of such net wealth and such otherparticulars as may be prescribed, or(ii) to produce or cause to be produced suchaccounts, records or other documents as the AssessingOfficer may require.(5) if any person -(a) fails to make the return required under sub-section (1) of section 14 and has not made a return or arevised return under section 15, or(b) fails to comply with all the terms of a noticeissued under sub-section (2) or sub-section (4), the Assessing Officer, after taking into account, allrelevant material which he has gathered, shall, aftergiving such person an opportunity of being heard, estimatethe net wealth to the best of his judgment and determinethe sum payable by the person on the basis of suchassessment.” https://hcservices.ecourts.gov.in/hcservices/

54. Section 17 of the Act reads as under:-“17. Wealth escaping assessment. - (1) If the AssessingOfficer has reason to believe that the net wealthchargeable to tax in respect of which any person isassessable under this Act has escaped assessment for anyassessment year (whether by reason of under-assessment orassessment at too low a rate or otherwise), he may,subject to the other provisions of this section andsection 17-A, serve on such person a notice requiring himto furnish within such period, as may be specified in thenotice, a return in the prescribed form and verified inthe prescribed manner setting forth the net wealth inrespect of which such person is assessable as on thevaluation date mentioned in the notice, along with suchother particulars as may be required by the notice, andmay proceed to assess or reasssess such net wealth andalso any other net wealth chargeable to tax in respect ofwhich such person is assessable, which has escapedassessment and which comes to his notice subsequently inthe course of the proceedings under this section for theassessment year concerned (hereinafter in this sectionreferred to as the relevant assessment year), and theprovisions of this Act shall, so far as may be, apply asif the return were a return required to be furnished undersection 14:”Explanation to Section 17 (1A) reads as under:-“Explanation. - For the purposes of sub-section (1) andsub-section (1A), the following shall also be deemed to becases where net wealth chargeable to tax has escapedassessment, namely:-(a) where no return of net wealth has been furnished bythe assessee although his net wealth or the net wealth ofany other person in respect of which he is assessableunder this Act on the valuation date exceeded the maximumamount which is not chargeable to wealth-tax;(b) where a return of net wealth has been furnished by theassessee but no assessment has been made and it is noticedby the Assessing Officer that the assessee has understatedthe net wealth or has claimed excessive exemption ordeduction in the return”.55. A careful reading of the aforesaid provisions makes itclear that while Section 16 deals with assessment, Section 17 dealswith wealth escaping assessment and thus the above provisions applyto two different situations. As per section 16 (4) of the Act, anAssessing Officer may serve a notice requiring a person in whosecase the time allowed under sub-section (1) of section 14 forfurnishing the returns has expired on a date to be specified therein- where such person has not made a return within the time allowedunder sub-section (1) of section 14 to furnish a return of his netwealth in the prescribed form and verified in the prescribed manner https://hcservices.ecourts.gov.in/hcservices/ setting forth the particulars of said net wealth and such otherparticulars as may be prescribed. If any person fails to complywith all the terms of the notice issued under sub-section (4) theAssessing Officer after taking into account all relevant materialwhich he has gathered shall after giving such person an opportunityof being heard estimate the net wealth to the best of his judgmentand determine the sum payable by the person on the basis of suchassessment. Admittedly in this case the assessee / petitioner hadnot filed the return for the assessment year 1993-1994 within thedue date and hence the Assessing Officer had issued the notice underSection 16 (4) of the Act and thereafter by following the procedureprescribed under Section 16 has passed the best judgment assessment.The aforesaid facts are not in dispute.56. Whereas section 17 deals with cases relating to escapedassessment and it is not the case of the learned senior counsel forthe petitioner that the assessment pertaining to the petitionerfalls under this category namely escaped assessment. Only in a casewhere section 17 applies a notice contemplated under Section 17 (1)of the Act can be issued but not otherwise. Simply because in theexplanation to Section (1-A) of section 17 of the Act it is providedthat where no return of net wealth has been furnished by theassessee although his net wealth on the valuation date exceeded themaximum amount which is not chargeable to wealth tax shall also bedeemed to be a case where net wealth chargeable to tax as escapedassessment for the purpose of sub-sections (1) and (1-A), it cannotbe contended that, first a notice under Section 17 (1) of the Actshould be issued and only thereafter a notice under Section 16 (4)of the Act can be issued. At the cost of repetition it has to bepointed out that the provisions contained in sections 16 and 17operate in two different situations and therefore this Court isunable to countenance the aforesaid contention put forth by thelearned senior counsel for the petitioner and the notice issuedunder Section 16 (4) of the Act to the petitioner should beconstrued to be validly issued.57. Before the learned Magistrate a contention had been raisedthat for mere non-filing of the return of wealth prosecution cannotbe launched and the element of 'wilfulness' in not filing the returnof wealth on the part of the assessee has to be established by theprosecution but no materials have been produced by the prosecutionto prove the wilfulness in non filing of the return and hence theassessee is entitled for discharge. The learned Magistrate basingreliance on the provisions contained in Section 35-O of the Act andthe various decisions referred to in the order came to theconclusion that the element of 'wilfulness' in non filing of thereturn of wealth need not be proved by the prosecution and it is onthe shoulder of the accused to prove the non having of the mentalstate of the 'wilfulness' by the rebuttal evidence. Though theaforesaid findings of the learned Magistrate has been challenged inground no.33 of the grounds of revision as under:-“33. It is submitted that the trial court erred in relying https://hcservices.ecourts.gov.in/hcservices/ upon the presumption engrafted into sec. 35 of the Act tohold that the element of “wilfulness in non filing of returnof wealth need not be proved by the prosecution and that ison the shoulder of the accused to prove the absence ofmental state, without considering that the prosecution wasduty bound to make out a prima facie case of wilfulness towarrant further consideration of a complaint, which theprosecution had failed to do in the case on hand.”the Learned Senior Counsel for the petitioner did not advance anyarguments in that regard. On the contrary the learned SpecialPublic Prosecutor wanted to make submissions relating to mens-rea onthe part of the assessee in not filing the returns, but this Courtdid not permit him to advance any arguments by pointing out that itis the function of the trial court at the conclusion of the trialand on the basis of the evidence to be let in to decide the questionof mens-rea and its rebuttal by the petitioner.58. In the decision reported in (2004) 9 Supreme Court Cases686 (Prakash Nath Khanna v. C.I.T.) the Apex Court while consideringSection 278-E of the Income-Tax Act which is in pari-materia withsection 35-O of the Act has held as under:-“There is a statutory presumption prescribed inSection 278-E. The court has to presume the existence ofculpable mental state, and absence of such mental statecan be pleaded by an accused as a defence in respect ofthe act charged as an offence in the prosecution.Therefore, the factual aspects highlighted by theappellants were rightly not dealt with by the High Court.This is a matter for trial. It is certainly open to theappellants to plead absence of culpable mental state whenthe matter is taken up for trial.”It may be that only in the light of the aforesaid decision of theApex Court the learned senior counsel may not have advanced anysubmissions on the aforesaid ground taken in the grounds ofrevision.59. It will also be useful to refer to the decision of the ApexCourt reported in (1994) 4 SCC 659 (State of Maharashtra v. Som NathThapa) wherein the Hon 'ble Apex Court has observed thus:-“..... The aforesaid shows that if on the basis ofmaterials on record, a court could come to the conclusionthat commission of the offence is a probable consequence,a case for framing of charge exists. To put itdifferently, if the court were to think that the accusedmight have committed the offence, it can frame the charge,though for conviction the conclusion is required to bethat the accused has committed the offence. It isapparent that at the stage of framing of a charge,probative value of the materials on record cannot be goneinto; the materials brought on record by the prosecutionhas to be accepted as true at that stage.” https://hcservices.ecourts.gov.in/hcservices/

60. The aforesaid legal principles has been rightly followed bythe learned Magistrate in this case. In the decision reported in(2000) 5 SCC 679 (Om Prakash Sharma v. C.B.I, Delhi) the Hon 'bleApex Court cautions the trial courts against undertaking a rovingenquiry against the pros and cons of the case by weighing theevidence or collecting the materials, as if during the course orafter the trial. The Apex Court has also held that this woulddepend on the facts of each case and also that the Court concernednamely the Magistrate's Courts must be allowed a large latitude inthe matter of exercise of discretion, and unless the Court conductsitself in so demonstrably an unreasonable manner unbecoming of ajudicial authority, the superior court shall not intervene verylightly or in a routine fashion. The reason being, at that stage,“the question is one of mere proprieties involved in the exercise ofjudicial discretion by the Court and not of any rights concretisedin favour of the accused”. In the light of the aforesaidobservations made by the Hon 'ble Apex Court if the order of thelearned Magistrate is considered it could be seen that the learnedMagistrate has considered all the submissions made by both sides,has framed the points for consideration, has dealt with each of themand has come to the conclusion that some of the questions raised bythe petitioner must be decided, substantiated and adjudicated at thetime of trial.61. It has to be pointed out that the learned Magistrate in hisdetailed order has considered all these aspects and applied thecorrect principles of law to the facts of this case and as such Ifind absolutely no reason to interfere with the order. For thereasons stated above the above Criminal Revision Case fails and thesame is dismissed.62. Before parting with the case this Court wants to refer tothe submission made by the learned Special Public Prosecutorregarding the long pendency of the case before the Trial Court. Thelearned Special Public Prosecutor vehemently contended that thepetitioner had sought for more than 180 adjournments and had notallowed the prosecution to commence the examination of the witnessesand submitted that the delay in disposal of the case is only due tovarious vexatious proceedings initiated by the petitioner. But ithas to be pointed out that in the reply filed by the petitioner ithas been pointed out that though the petition under Section 245 (2)of the Cr.P.C. was filed in the year 2001 the respondent had takennearly three-and-half years to file the counter statement and thesame was only filed in the year 2004 and thereafter also thepetition was not taken up for hearing by the Court below but therespondent was insisting for the examination of the witnesses evenbefore the disposal of the discharge petition. Therefore thepetitioner had to approach this Court for a direction under Section482 Cr.P.C. for disposal of the discharge petition and only afterthis Court directed the learned Magistrate to dispose of thepetition filed under Section 245 (2) Cr.P.C. the same was disposedof on 25.02.2008 and therefore the delay in disposal of the case wasnot due to any default on the part of the petitioner. It has alsobeen pointed out by the petitioner that after the case was taken on https://hcservices.ecourts.gov.in/hcservices/ file by the Court below quash petitions were filed before this Courtand initially stay was granted and only because of the pendency ofthe Criminal Original Petition the trial could not be commenced.63. The aforesaid facts shows that the petitioner cannot beentirely blamed for the delay in disposal of the case by the Courtbelow but on the other hand the respondent as well as the Courtbelow are also responsible for the huge delay that has occasioned asaforesaid.64. This Court, in the light of the directions issued onearlier occasions while disposing of the Criminal Original PetitionNos.2759 and 5378 of 1998 directing the Court below to conclude thetrial within a specified time, expects the petitioner as well as therespondent to co-operate with the Trial Court to dispose of the caseat the earliest. Considering the fact that the case is pendingright from 1997 the learned Additional Chief MetropolitanMagistrate, (Economic Offence – I), Egmore, Chennai, is herebydirected to dispose of EOCC No.263 of 1997 as early as possible andpreferably within a period of five months from the date of receiptof a copy of this order.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.srkTo1. The Assistant Commissioner of Wealth Tax (Central Circle – II – 2) Nungambakkam High Road, Chennai2. The Additional Chief Metropolitan Magistrate (Economic Offence – I), Egmore, Chennai – 600 0083.The Public Prosecutor, High Court of Madras, Chennai - 1042 ccs to Mr.A. Navaneethakrishnan, Advocate, Sr. 2021, 2022Crl.O.P.No.27245 of 2007 andCrl.R.C.No.666 of 2008 and M.P.Nos.1 and 1 of 2008 VSV (CO)kk