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2003 DIGILAW 1017 (RAJ)

Payare Lal v. State of Rajasthan

2003-07-23

RAJESH BALIA

body2003
JUDGMENT 1. - Heard the learned counsel for the petitioner as well as learned P.P. 2. This petition is directed against the judgment of learned Addl. Sessions Judge dated 3.6.1994 rejecting the appeal filed by the petitioner against his conviction under Section 16(3)(h) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as the Act, 1954.) 3. The petitioner was prosecuted for having committed offence under Section 16(3)(h) of the Act, i954 as according to the complaint lodged, the accused was served with the copy of the assessment orders for assessment years 1974-1975 and 1975-1976 under the Act, 1954 as well as the Central Sales Tax Act on 10.9.1979 but he has failed to deposit the amount of demand even after expiry of six months. The complaint was lodged on 10th March, 1981. The learned trial Court having found the petitioner guilty of committing offence under Section 16(3)(h) of the Act, 1954 convicted and sentenced him to three months S.I. It has also come on record that the petitioner has discontinued the business and has lost his son on account of cancer. 4. On appeal, the learned Addl. Sessions Judge has confirmed the conviction and sentence. Hence this revision petition. 5. It has been pointed out by the learned counsel for the petitioner that the necessary ingredients of offence under Section 16(3)(h) of the Act, 1954 has not been proved. In fact, it is not a case of no evidence against the petitioner-accused. The basic ingredients of offence under Section 16(3)(h) is a failure on the part of the accused to pay the demand even after expiry of two months from the date of the receipt of the notice of demand by him. Therefore, in order to convict a person under Section 16 (3)(h), it must be established by the prosecution that a demand notice under the Act, 1954 was issued to the accused assess and it was received by him and notwithstanding the receipt of notice by him, he has failed to make the payment even after expiry of six months therefrom. 6. Both the courts below have reached their conclusions on the basis that demand notices was given to Manmal, Vakil, who was the authorised representative of the petitioner. Apparently, both the courts below have not found that the notice was at all received by the accused assessee. 6. Both the courts below have reached their conclusions on the basis that demand notices was given to Manmal, Vakil, who was the authorised representative of the petitioner. Apparently, both the courts below have not found that the notice was at all received by the accused assessee. In fact, there is no evidence on record to suggest that the notices of demand in question was ever received by the assessee and thereafter he failed to make the payment, until expiry of six months. 7. PW-1, Harimohan Gupta was the Assistant Commercial Taxes Officer between 18.7.79 to 6.6.81. He stated that he obtained sanction from Deputy Commissioner (Admn.) Commercial Taxes Department, Kota and thereafter he lodged the complaint. While he stated that notice was served on Manmal Jain, counsel for the accused on 10.9.1979, he admitted that when he got the notice served on Manmal Jain, he was of the opinion that he was the counsel for the accused. However, he was. not aware whether Manmal Jain ceased to be a counsel for the accused. He further stated that whether Manmal Jain was the counsel for accused when the demand was raised is not within his knowledge. 8. PW-2, Shankar Lal is the person who has passed orders on 1 30.6.1979 in connection with the accused for assessment years 1974-75 and 1975-76 and has also issued the demand notices on the same date. He also stated that on the demand notice, the signature of Pyara Lal as recipient cannot be shown. He admitted that it was necessary that demand notices when issued to the concerned assessee, they may be given to the counsel for the assessee. He nowhere stated that demand notices were ever received by the recipient or was issued directly to the assessee. 9. PW-3, Ramgopal stated that he issued the demands under the Act, 1954 and Central Sales Tax Act in 1999 under his own signature and demand notices were given to Manmal Jain. In his cross-examination, he admitted n that no Vakalatnama of Manmal Jain existed on the record of the assessee. He also admitted that regular procedure which is followed in the case of issuance of demand notices is that in the first instance demand notices are sought to be served on the assessee himself and if the process server report about non service, then only notices are issued to the counsel. He also admitted that regular procedure which is followed in the case of issuance of demand notices is that in the first instance demand notices are sought to be served on the assessee himself and if the process server report about non service, then only notices are issued to the counsel. He is not in a position to say even this procedure was followed in the case of accused-petitioner. According to this witness also, there is nothing on records to suggest that Manmal Jain was the counsel for the accused. 10. The aforesaid testimony of three witnesses, which is the total evidence to prove the commission of offence by the accused does not show the receipt of demand notice by the assessee. Mere existence of a demand or even knowledge of accused about existence of such demand, is not enough to make the offence under Section 16(3)(h) complete. The existence of demand coupled with issuance of demand notices and its receipt by the accused dealer and thereafter further to pay the demand until expiry of six months are the essential requirements to prove the offence. Service of demand notice on somebody else than the accused is not enough, what is needed to be established, is a receipt of demand notice by the accused. To fasten the criminal liability, mere indirect service of notice of demand is not enough until direct receipt is proved or such receipt can be assumed beyond any reasonable doubt by the accused dealer. 11. Section 16(3)(h) of the Act, 1954 reads as under "16(3)(h) wilfully refuses or fails to pay the amount of any demand notice and a period of not less than six months has elapsed since the receipt of the demand notice by him." A perusal of the aforesaid provisions fastens criminal liability on the assessee who fails to make payment within a period of six months even after receipt of notice, requiring him to prove the necessary ingredients of offence under Section 16(3)(h). The liability to be prosecuted for offence punishable with imprisonment can not be proved vicariously by proving the service on a counsel appearing in the Court. The service of demand notice on counsel may be sufficient to enforce a civil liability. However, to hold the person liable for an offence and punish him requires something more. The liability to be prosecuted for offence punishable with imprisonment can not be proved vicariously by proving the service on a counsel appearing in the Court. The service of demand notice on counsel may be sufficient to enforce a civil liability. However, to hold the person liable for an offence and punish him requires something more. The requirement of the offence is not the service of notice in the manner but it is receipt of demand notices by the accuser. The expression "receipt" in the context cannot be "receipt" of demand notice by any person other than the accused. Receipt by his counsel at the office of Commercial Taxes Department cannot be equated with receipt by the accused dealer of such demand notice for the purpose of criminal prosecution which demands strict compliance of provision with strict proof of all the Ingredients of offence. It is also relevant it the purpose that the period within which If the demand Is not paid then only the assessee becomes liable to be criminally prosecuted and punished, cannot commerce until the demand notice is actually received by the t accused dealer. A dealer cannot be punished where receipt of notice by him is not proved. Receipt of notice by an agent cannot for the purpose of making the dealer liable for criminal prosecution be equated with receipt of notice by the dealer. 12. It is well settled that while construing a statute defining any act as an offence and render the offender criminally liable, ping any act as I construed strictly and its scope cannot be widened by extending has to be operation beyond the clear purport of the language defining the offeflln its 13. Both the courts below have fallen in error in not appreciating position while considering the ingredients of offence and finding whether such ingredients have been proved against the accused or not. it will also be noticed that even the fact.that Manmal Jain on whom alone the notices have alleged to have been served has not been proved beyond reasonable doubt, to be the representative of the assessee. 14. In view of the aforesaid, the conviction and sentence of the petitioner cannot be sustained. 15. Accordingly, the revision petition succeeds and is allowed. The judgment under challenge of the learned Addi. Sessions Judge, in Cr. 14. In view of the aforesaid, the conviction and sentence of the petitioner cannot be sustained. 15. Accordingly, the revision petition succeeds and is allowed. The judgment under challenge of the learned Addi. Sessions Judge, in Cr. Case No. 33/86 dated 3.6.94 as well as the order of conviction and sentence dated 14.7.1986 passed by learned Addi. Chief Judicial Magistrate in Cr. case No. 1282/83 are set aside. As the accused is already on bail, the bail bonds are discharged.Revision Allowed - Conviction set Aside. *******