Sanjay Surekha @ Sanjay Kumar Surekha v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision. No. 678 of 2016 Sanjay Surekha @ Sanjay Kumar Surekha … Petitioner … - Versus - The State of Jharkhand ... … Opposite Party ------ CORAM: - HON’BLE MR. JUSTICE AMBUJ NATH ----- For the Petitioner : M/s. N. K. Pasari, Advocate : M/s. Sidhi Jalan, Advocate : M/s. Rituraj Safalta, Advocate : M/s. Shubham Choudhary, Advocate : M/s. Gaurav Kaushalesh, Advocate : M/s. Shubham Gurung, Advocate For the State : M/s. Rakesh Ranjan, A.P.P --- 20/03.04.2023 Heard the Parties. The petitioner has filed this application against the judgment dated 12.02.2016 passed in Criminal Appeal No. 215/2012, passed by Sri Swarn Shanker Prasad, learned Additional Judicial Commissioner-VII, Ranchi whereby and wherein the learned Additional Judicial Commissioner-VII, Ranchi dismissed
Legal Reasoning
the appeal of the petitioner and affirmed the judgment of conviction
Legal Reasoning
and order of sentence dated 30.07.2012 passed by Sri Shankar Kumar Maharaj, learned J.M.F.C., Ranchi in connection with Kotwali P. S. Case No. 164/1996, corresponding to G. R. No. 973/1996, holding the petitioner guilty of offence under sections 49 (1)(b), 49(2)(f)(g) and 49(3)(d) of the Bihar Finance Act r/w section 120(B) of the Indian Penal Code and thereby sentencing him to undergo simple imprisonment for four months alongwith a fine of ₹1,000/- for the offence under section 49 (1) (b) of the Bihar Finance Act r/w section 120(B) of the Indian Penal Code and in default of payment of fine to further undergo imprisonment for 10 days, and further to undergo simple imprisonment for nine months along with a fine of ₹1500/- for the offence under section 49(2)(f)and (g) of the Bihar Finance Act read with section 120(B) of the Indian Penal Code and in default of payment of fine to further undergo imprisonment for 15 days. Finally the petitioner was sentenced to undergo simple imprisonment for 1 year and 6 months along with a fine of ₹2,000/- for the offence under section 49(3)(d) of the Bihar Finance Act r/w section 120(B) of the Indian Penal Code and in default of payment of fine he was further directed to under S.I. for 20 days. All the sentences were ordered to run concurrently the period of detention undergone by the petitioner during the trial was ordered to be set off. The prosecution case as alleged is that the petitioner is a partner of M/s. Anil Kumar & Company bearing Sales Tax Registration No. RN (SL) 3507 (R) & 941(C) having its business at Upper Bazar and also at Lake Road, Ranchi. It is alleged that the petitioner’s firm had misused form F and has concealed the receipt of goods from his parent company of whom M/s. Anil Kumar & Company is stockiest and franchise and due to such misuse of forms by the firms, evasion of sales tax to the tune of ₹15.47 lakhs was committed between the period 1987- 89 and 1991-92. During the course of the trial, the prosecution has adduced both oral and documentary evidence. Both the learned trial court as well as the learned appellate court have come to a concurrent finding regarding the guilt of the petitioner. Mr. Nitin Kumar Pasari, learned lawyer appearing on behalf of the petitioner submitted that the allegation against the petitioner is of using lesser value of form F which comes within the purview of section 6(A) of the Central Sales Tax Act, 1956 for which penalty and punishment is provided under Central Sales Tax Act, 1956 itself. It was further submitted that since the Central Sales Tax Act, 1956 is a special enactment, the provisions of the Indian Penal Code could not be invoked. Accordingly, the judgment of conviction and sentence awarded under sections 49 (1)(b), 49(2)(f)(g) and 49(3)(d) of the Bihar Finance Act r/w section 120(B) of the Indian Penal Code was bad in law. It was finally submitted that the co-accused persons have been acquitted of the charge and the petitioner was the sole accused who was convicted and punished, as such, provision of section 120(B) of the Indian Penal Code will not be invoked. Reliance has been placed upon the decision of the Jharkhand High Court in Ramesh Chandra Jain and Another vs. State of Jharkhand as reported in 2012 SCC Online Jhar 2156: (2013) 1 AIR Jhar R 20 : (2013) 126 AIC (Sum 18) 11 wherein, it was held :- “14. Coming to the point as to whether the offence alleged falls within the mischief of the provision of the Central Sales Tax Act, one needs to take notice of Section 6-A of the Central Sales Tax Act which reads as follows:- “6A. Burden of proof etc., in case of transfer of goods claimed otherwise than by way of sale – (1) where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a declaration duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of dispatch of such goods, [and if the dealer fails to furnish such declaration, then, the movement of such goods shall be deemed for the purpose of this Act to have been occasioned as a result of sale.] 2. If the assessing authority is satisfied after making such enquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub- section (1) are true, he may at the time of, or at any time before the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which the declaration relates shall be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale”. 15. From perusal of this provision,- it does appear that if a manufacturing Company takes a plea that the goods after being manufactured has been transported to its dealer then the dealer needs to pay tax over it. However, if it happens that the manufacturing Company only transfers his stock to the dealer to the other state then the manufacturing company needs not to pay the sales tax over the goods, rather it is only the dealer who is required to pay the sales tax and the manufacturing company is only to establish that the goods had been transferred to the dealer. 16. However, that provision was amended whereby dealer was required mandatorily to furnish F form with effect from 11.05.2002. If F form got used by the dealer, manufacturing company needs not to pay sales tax over it. However, if such form is used and is found to be forged, then the manufacturing company is liable to be punished in view of the provisions as contained under Section 10-A of the Central Sales Tax Act, 1956 which reads as under:- 10. Penalties - If any person- (a) furnishes a certificate or declaration under sub-section (2) of Section 6 or sub Section (1) of Section 6-A or sub-section (4) [or sub-section (8)] of Section 8, which he knows, or has reason to believe, to be false; or (aa) fails to get himself registered as required by Section 7 or fails to comply with an order under sub-section (3-A) or with the requirements of sub-section (3-C) or sub-section (3-E), of that section; or (b) being a registered dealer, falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration; or (c) not being registered dealer, falsely represents when purchasing goods in the course of inter-State trade or commerce that he is a registered dealer; or (d) after purchasing any goods for any of the purposes specified in clause (b) or clause (c) or clause (d) sub-section (3) of Section 8 fails, without reasonable excuse, to make use of the goods for any such purpose:- (e) has in his possession any form pre scribed for the purpose of sub-section (4) of Section 8 which has not been obtained by him or by his principal or by his agent in accordance with the provisions of this Act or any rules made thereunder; (f) collects any amount by way of tax in contravention of the provisions contained in Section 9-A; he shall be punishable with simple imprisonment which may extent to six months, or with fine, or with both; and when offence is continuing offence with a daily fine which may extend to fifty rupees for every day during which the offence continues.” 17. Here is the specific case of the prosecution that those stolen forms had been used and by using those forms, exemption has been taken by the petitioners, as a result of which, the Company did not pay sales tax over the goods manufactured and transferred to the dealer and thereby the company should have been prosecuted under Section 10-A of the aforesaid Act but in the instant case, petitioners who are the officers of the Company are being prosecuted under the General Law which would not be permissible in view of the provision as contained in Section 4 of the Cr.P.C. which reads as follows:- 4. Trial of offences under the Penal Code, 1860 and other laws (1) All offence under the Penal Code, 1860 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 18. As I have already stated that whatever allegations are there against the petitioners these fall within the mischief of Section 10 of the Central Sales Tax Act and therefore, the petitioners cannot be prosecuted under the general law and thereby the trial Court and even the revisional Court committed illegality in refusing the petitioners to discharge them from the case.” Learned A.P.P. appearing for the state conceded that the trial of the petitioner under Bihar Sales Tax Act r/w section 120(B) of the Indian Penal Code was bad in law and the petitioner ought to have been tried under the provisions of the Central Sales Tax Act, 1956. The petitioner had purchased edible oil from M/s. Anil Kumar & Company, Ghaziabad, Uttar Pradesh. The case of the prosecution is that form F furnished by the firm of the petitioner were of lesser value then the goods purchased by the petitioner. Rule 12 Sub Rule 5 of Central Sales Tax (registration and turnover) Rules 1957 deals with declaration to be made in form F. According to this rule declaration referred in sub-section 1 and 6- A shall be in form F. According to this rule form F has to be obtained by the purchasing dealer or as the case may be permissible in the state in which the goods covered by such form. Rule 12 further prescribes the procedure of furnishing form F, in case of procedural lapse, the burden of proving that form F was validly submitted rested upon the petitioner as per the provision of section 6A of the Central Sales Tax Act 1956 and in default of which penal provisions of section 10-A is attracted. Even assuming the entire prosecution case to be true, the entire allegation against the petitioner will come within the purview of section 10 of the Central Sales Tax Act 1956 and therefore the petitioner cannot be prosecuted under the general law of Bihar Finance Act and Indian Penal Code. The learned trial court and even the appellate court have come to an erroneous finding regarding the guilt of the petitioner under Bihar Finance Act and section 120 (B) of the Indian Penal Code. Accordingly, the judgment of conviction and order of sentence passed by the learned trial court is set aside. This Criminal Revision Application is allowed.
Decision
Pending I.A., if any, also stands disposed of. Saurabh (Ambuj Nath, J.)