N. S. GUPTA, J. By means of this peti tion under Section 482, Cr. P. C. the petitioner M/s Krishna Pipe & Tube and its partners Nand Kishore Agarwal and Smt. Krishna Devi seek to quash the proceedings of criminal complaint No. 19 of 1983, Union of India through Sri V. B. Mishra, Income Tax Officer, Circle 1 (5), Kanpur v. Mis Krishna Pipe & Tube and others, initiated against them for the contravention of the provisions of Income Tax Act (Referred to as the Act) punishable under Section 376-C of the said Act, which are pending before the Chief Judicial Magistrate (Special), Kanpur. 2. The facts of the case briefly stated are as follows: 3. The petitioner No. 1 is a firm registered under the Indian Partnership Act. It carries on business for purchase and sale of steel tubes and fittings at Kanpur. The petitioner Nos. 2 and 3 were the partners of the said firm. For the assessment year 1980-81, relevant to the accounting year ending 31. 3. 80, the petitioner No. 1 filed a return of income showing an income of Rs. 1,08,260 on 31-1-81. On 21-5-80, a search was conducted at tae residential and business premises of Sri. Banwari Lal Agarwal, husband of petitioner No. 3. On the basis of the papers found on the said search, it transpired that the petitioners had omitted to record certain transactions in their account books. However, a settlement was arrived at in between the Commissioner of Income Tax and the petitioner, in accord ance with which the petitioner surrendered a sum of Rs. 60,000/- on the understanding that no penal action or prosecution would be initiated against them. The petitioner accordingly filed return surrendering an amount of Rs. 60,000/ -. The assessments of the applicant were completed on 28-2-81 and no penal action under Section 271 (1) (c) was initiated against the petitioners. The petitioners claimed that in view of the settlement arrived at with the Commis sioner of Income Tax, Kanpur no appeal was filed by them against the order of the assess ment. It was pleaded that the aforesaid criminal complaint has been filed by the O. P. without giving any opportunity of being heard. The applicant at no stage were in formed about the impugned prosecution. It was pleaded that the aforesaid criminal complaint has been filed by the O. P. without giving any opportunity of being heard. The applicant at no stage were in formed about the impugned prosecution. The said complaint was pleaded to an ab solutely frivolous and false, inasmuch as that the applicants had not made any at tempt wilfully or otherwise to evade any tax or penalty or interest. No allegations have been made in the complaint as to who out of the two petitioners viz. No. 2 and 3 was incharge of the affairs of the firm in ques tion, the complaint filed by the O. P. was without jurisdiction and the sanction for prosecution accorded by the Commissioner was vitiated, the same having been granted without application of mind and mechani cally, the Commissioner of Income Tax having failed to consider the settlement reached between him and the petitioner and the assurance given by him. 4. On behalf of the O. P. viz. Union of India and Commissioner of Income Tax, a counter-affidavit was filed, which was sworn in by Sri V. L. Sharma, Income Tax Inspector ward 3/5, Kanpur. It was stated therein that upon the detection of the concealed income by the department on the basis of in criminating account books ceased during the search, the return filed by the petitioners showing extra income of Rs. 60. 000/- was accepted. It was stated that no assurrance was given to the petitioners to the effect that there would be no prosecu tion. It was, however, admitted that only penalty and interest were later on waived by the Commissioner of Income Tax, Kanpur in pursuance of the waiver application filed by the petitioner. The applicants were not entitled for an opportunity of being heard granted to them before filing the complaint in question. There was no bar for the initia tion of the criminal prosecution against the petitioners without the issuance of notice under Section 271 (1) (c) of the Act. The Commissioner of Income Tax had not waived his right to launch prosecution against the applicant. The petition filed by the petitioners was, therefore, bad in law and was sought to be dismissed. 5. I have heard Sri R. S. Agarwal, learned counsel for the petitioners and Sri Shekher Srivastava, learned standing coun sel for the Income Tax Department, con sidered their contentions. 6. The petition filed by the petitioners was, therefore, bad in law and was sought to be dismissed. 5. I have heard Sri R. S. Agarwal, learned counsel for the petitioners and Sri Shekher Srivastava, learned standing coun sel for the Income Tax Department, con sidered their contentions. 6. This is an admitted case of the par ties that a search at the business and residential premises of the petitioner was conducted by the Income Tax Officials. The petitioner thereafter filed a return of in come mentioning therein a sum of Rs. 60,000/- as income from other sources, which was added to the trading account for working out the gross profit of the firm. It is also not disputed that assessment had be come final and was not further challenged in appeal, and further that the penal proceed ings were waived by the Commissioner of Income Tax. The petitioners in paragraphs 3 and 9 of their petition have very clearly averred that in order to purchase peace and in order to avoid protracted litigation with the department, the dispute was settled with the then Commissioner of Income Tax, Kanpur in pursuance of which the petitioner surrendered a sum of Rs. 60,000/- on the assurance that no penal action in the form of penal interest shall be taken against the petitioner. When the Commissioner of In come Tax admittedly waived the penalty and interest, which were imposable upon the petitioners, it was obvious that all the penal action which were available to the depart ment including their criminal prosecution was also waived. 7. When the petitioners have made specific allegations regarding the settle ment of thdir dispute with the Commis sioner of Income Tax, the affidavit sworn in by the Inspector of Income Tax in proof of the fact that no such waiver was granted by the Commissioner, could not be regarded as good. The petitioners have specifically made the Commissioner of Income Tax as O. P. No. 2 in their petition. Thus the Com missioner of Income Tax, the O. P. No. 2 was the proper person to refute the allegations of the compromise (if waiver, pleaded by the petitioner and not the Inspector of the Department like Sri /v. L. Verma who probably was not associated with the proceedings in question. 8. Thus the Com missioner of Income Tax, the O. P. No. 2 was the proper person to refute the allegations of the compromise (if waiver, pleaded by the petitioner and not the Inspector of the Department like Sri /v. L. Verma who probably was not associated with the proceedings in question. 8. It was next argued by the learned counsel for the petitioners that no oppor tunity of being heard was afforded to the petitioners before launching the impugned prosecution. The learned counsel for the petitioner argued that the Principles of Natural Justice were flouted and on that score also the criminal complaint filed by the O. P. was bad in law. 9. In the instant case the prosecution was launched against the M/s Krishna Pipe and Tube which was a partnership firm and was a juristic person as also against the partners of the said firm viz. Sri Nand Kishore Agarwal and Smt. Krishna Devi. The learned counsel for the petitioner ar gued that Sri Nand Kishore Agarwal has since died. Smt. Krishna Devi was only a sleeping partner, meant for sharing the profit of the business. She was not an active partner in the said firm and therefore, was not responsible for any omission or com mission of the errors of the firm. Mens rea is an important ingredient of every offence of there was no mens rea on the part of the petitioner No. 3, Smt. Krishna Devi the criminal complaint against her was not maintainable. 10. The provisions of Section 276-C makes only a willful attempt to evade tax punishable. Section 278 of the Act makes a person liable who abets or induces in any manner another person to make and deliver an account or statement or declaration relating to income chargeable to tax which is false and which he either knows to be false or does not believe to be true. 11. Section 278 of the Act makes a person liable who abets or induces in any manner another person to make and deliver an account or statement or declaration relating to income chargeable to tax which is false and which he either knows to be false or does not believe to be true. 11. The provision of Section 278-B makes a person who was in charge and was responsible for the conduct of the business and affairs of the company responsible and as per explanation appended to the said section company includes a firm, it would thus follow that for attracting the penal provisions of committing an offence punishable under the Act, it has got to be pleaded and proved in case of a company, a firm and association of persons that at the time of occurrence of the offence in ques tion, the person complained against was in charge of and was responsible for conduct of business and that the omissions or errors in book of accounts etc. was wilfully com mitted by him with a intention to evade a tax. So in case of the present petition, if the petitioner No. 3, Smt. Krishna Devi was only a sleeping partner in the firm, and had nothing to do with the business of the firm, except to share the profit of the business and if she was not incharge for the conduct of the business, she cannot be deemed to be guilty for any error, omission or commission in the books of account of a partnership firm. The complaint filed against the petitioner does not disclose any word to show as to who was the partner responsible for the conduct of the business of the firm. 12. The provisions contained in Sec tion 279 of the Act which reads as under have provided the safeguard for launching of false and frivolous prosecution against theassessees. The complaint filed against the petitioner does not disclose any word to show as to who was the partner responsible for the conduct of the business of the firm. 12. The provisions contained in Sec tion 279 of the Act which reads as under have provided the safeguard for launching of false and frivolous prosecution against theassessees. Section 279 (1 ).-A person shall not be proceeded against for an offence under Section 275-A, Section 276, Section 276-A, 276-B, Section 276-BB, Section 276-C, Section 276-SCC, Section 276-D, Section 277 or Section 278 except with the previous sanction of the Commissioner or Com missioner (Appeals) or the appropriate authority: Provided that the Chief Commissioner, or as the case my be, the Director General may issue such instructions or directions to the aforesaid income-tax authorities as he may deem fit for institution of proceedings under this sub-section. (1-A) A person shall not be proceeded against for an offence under Section 276-C or Section 277 in relation to the assessment for an assessment year in respect of which the penalty imposed or imposable on him under clause (iii) of sub-section (1) of. Section 271 has been reduced or waived by an order under Section 273-A. (2) Any offence under this Chapter may, either before or after the institution of proceed ings be compounded by the Chief Commissioner or a Director General. " 13. Sub-section (2) of Section 279 as reproduced above makes an offence punish able under the Income Tax Act compoundable by the Chief Commissioner or the Director General either before or after the institution of the proceedings. 14. The words "either before or after the institution of proceedings" are very sig nificant. By providing that an offence punishable under the Income Tax Act may be compounded even before the institution of the criminal proceedings, fully go to show that the legislature intended to cast a duty upon the authorities of the Income Tax Department to issue a show-cause notice to the assessees before proposing a criminal prosecution to show cause as to whether he was prepared to compound the offence or to face penal consequence. It obviously fol lows that before according sanction of the prosecution contemplated by the provisions of Section 279 of the Act, the concerned authorities should issue a show-cause notice and to accord sanction only after recording their satisfaction. It obviously fol lows that before according sanction of the prosecution contemplated by the provisions of Section 279 of the Act, the concerned authorities should issue a show-cause notice and to accord sanction only after recording their satisfaction. If such a show- cause notice is issued to the person intended to be prosecuted, it is quite possible that such person may avail of the benefits of the provisions regarding compounding before institution of the criminal complaint and would further be able to satisfy the sanction ing authority about his bona fides or the circumstances under which certain errors or omissions were committed by him with regard to the maintenance of his account book of for the making of the statement and submission of return etc. Instances may not be rare where the assessee may be anxious to offer composition before the initiation of criminal proceedings in order to save him self from disgrace and the ordeals of the criminal prosecution. Mostly the persons who are sought to be prosecuted hi connec tion with the offence punishable under the Income Tax Act are the persons holding positions and status in the society. Even if, there is cases of willful concealment of in come tax, such persons may repent or out of fear of the prosecution or of standing as an accused in the dock before the criminal court, he may offer to compound with the terms and conditions which the compound ing authority may impose. When the law offers an opportunity for compounding before or after prosecution is launched, the Income Tax Authorities in their wisdom should offer an opportunity to the prosecu tion to compound the offence before launching of the prosecution. 15. The aforesaid view taken by me finds support from the following rulings which were relied upon by the learned coun sel for the petitioner:- (1) P. V. Pai and others v. R. L. Rinawama, Deputy Commissioner of Income Tax, 1993, I. TR. 717. (2) Shree Singhvi Brothers and others v. Union of India and others, I. TR. 1991 (187), 219. (3) Dunlop India Ltd. and others v. Arun Chandra Sinha, Assistant Commis sioner of Income Tax and others, 1995, I. TR. (211), 79. 16. 717. (2) Shree Singhvi Brothers and others v. Union of India and others, I. TR. 1991 (187), 219. (3) Dunlop India Ltd. and others v. Arun Chandra Sinha, Assistant Commis sioner of Income Tax and others, 1995, I. TR. (211), 79. 16. Thus to sum up, I find that after the search of the premises of the petitioner the compromised assessment was made by the Income Tax Officer himself; that the penal action regarding the imposition of the penalty was waived by the Commissioner of Income Tax; that no finding that the petitioner No. 2, Smt. Krishna Devi was an active partner in the affairs of the firm and had wilfully concealed her income or for that matter wilfully filed false return was recorded by the Income Tax Officer and that no opportunity of compounding the offence before launching the impugned prosecution was afforded to the petitioners, I, therefore, held that the initiation of the criminal proceedings by way of filing impugned criminal complaint by the Income Tax Officer amounted to an abuse of the process of the criminal courts, and to secure the ends of justice the impugned criminal complaint deserves to be quashed. Thus this petition is allowed and the proceedings initiated on the basis of the criminal complaint No. 19 of 1988, Union of India and others v. Mis. Krish na Pipe & Tube pending in the court of C. J. M. (special), Kanpur are hereby quashed. Petition allowed. .