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2004 DIGILAW 203 (CAL)

Mahesh Kumar Goyal v. STATE OF WEST BENGAL

2004-03-19

S.P.Mitra

body2004
JUDGMENT 1. THIS is an application under Sections 401 and 482 of Cr. P. C. read with Article 227 of the Constitution of India filed by the petitioners, Mahesh Kumar Goyal and Dinesh Kumar Goyal challenging the order dated 16th July, 1999 passed by the learned C.M.M., Calcutta in connection with a non-existing proceedings in which the petitioners' prayer for dropping the proceeding for non-filing of the complaint by the respondent was rejected with the observation that learned C.M.M. had no power under Section 482 of Cr. P.C. to drop any proceeding where the complaint was not filed. 2. BEING aggrieved by the said order the present petitioners preferred this application praying for dropping the non-existing proceeding pending before the learned C.M.M., Calcutta and/or to direct the learned C.M.M., Calcutta to drop the non-existing proceeding. The background of this case is that the petitioners are registered dealers under the MODVAT Scheme. However, a search was conducted in the business premises of the petitioners and in course of search the books of accounts, other documents and cash amounting to Rs. 17,80,000/-were seized and on 16th January, 1996 the petitioners were arrested and produced before the learned C.M.M., Calcutta under a report of the Intelligence Officer, DGAE (C.Ex.) Calcutta that they were liable to be prosecuted under Section 13 for offence punishable under Section 9 of Central Excise and Salt Act, 1944. The petitioners were bailed out on 30.1.1996 and, ultimately, their bail was confirmed on 29.3.1996. 3. HOWEVER, the petitioners subsequently filed a revisional application No. C.R.R. 328 of 1996 with a prayer for quashing the proceedings against them but, learned Hon'ble Justice Asish Baran Mukherjee while rejecting their said application observed that as no proceeding was in existence against them, there was no occasion to quash the same. Against this order the petitioners did not prefer any appeal. Thereafter, the petitioners moved an application under Sections 401 and 482 of Cr. P.C. registered as C.R.R. No. 1812 of 1997 before the Hon'ble Justice S.K. Tiwari against the order dated 19.5.1997 passed by the learned C.M.M., Calcutta. The learned Judge by his order dated 23.5.1997 stayed operation of the impugned order dated 19.5.1997 with a direction upon the petitioners not to attend the Court of learned C.M.M., Calcutta unless a complaint was filed in Trial Court. The learned Judge by his order dated 23.5.1997 stayed operation of the impugned order dated 19.5.1997 with a direction upon the petitioners not to attend the Court of learned C.M.M., Calcutta unless a complaint was filed in Trial Court. Since passing of the-said order by Hon'ble Justice Tiwari the petitioners are not attending the Court of the learned C.M.M., Calcutta. It is submitted by the learned Advocate for the petitioners that the departmental proceedings as regards imposition of penalty against them terminated in their favour. In view of the order passed by the C.E.G.A.T. the respondents are debarred from filing any complaint against the petitioners. As such, the non-existing proceeding may either be dropped by this Court or it may be quashed. In this connection reliance has been be placed upon two decisions, reported in 1992 (62) ELT 684 , Bengal Cardboard lnd. and Printers (P) Ltd. v. Asstt. Collector of C. Ex. and 1990 (45) ELT 201 , Collector of Central Excise v. Decent Dyeing Co. But these decisions as cited by the learned Advocate of the petitioners are not applicable in this case because we are not concerned to take into account the result of the departmental proceedings in relation to a criminal case where the complaint is yet to be filed by the respondents. The learned Advocate for the petitioners, however, submits that it is true that the petitioners are not attending the Court in view of the order passed by the Hon'ble Mr. Justice Tiwari and that apart in Criminal Revision No. 328 of 1996 no prayer was made by the petitioners for dropping the proceeding. He, therefore, submits that in the circumstances, the Court has ample power to quash the non-existing proceeding or it may drop the said proceeding. Reliance has been placed upon the decisions reported in 1996 (81) ELT 479, Mrs. Rajee George v. Assistant Collector of Central Excise, 1987 (32) ELT 511 , Jewels of India and 2 Others v. State and Another, 1998 (5) SCC 749 , Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Ors., 171 ITR 482, Dr. Murari Mohan Mukherjee v. Kanailal De and Ors., 133 ITR 909, Uttam Chand and Ors. v. Income Tax Officer, Central Circle, Amritsar and 1989 (108) ELT 16, G.L. Didwania v. Income Tax Officer. Murari Mohan Mukherjee v. Kanailal De and Ors., 133 ITR 909, Uttam Chand and Ors. v. Income Tax Officer, Central Circle, Amritsar and 1989 (108) ELT 16, G.L. Didwania v. Income Tax Officer. But on a perusal of the aforesaid decisions as well as the facts of the present case, I find that those decisions are not applicable in this case because the respondents have not yet filed any complaint against the petitioners. The question is whether the respondents will file any complaint against the petitioners in spite of finding of C.E.G.A.T. in favour of the petitioners is absolutely their business and this Court cannot interfere in the matter by giving a direction upon the respondents to file complaint. Since it is a case under economic offence resulting evasion of excise duty, the law of limitation has no application as the Economic Offences (Non- Applicability of Limitation) Act, 1974. (Act XII of 1974) has made the Limitation Act not applicable in connection with economic offences. Therefore, when the Act itself enables the respondents to file complaint without imposing the restrictions as to limitation, this Court cannot direct the respondents to file a complaint within a specified time for that would be not warranted under the Law. But the fact remains the complaint has not yet been filed in the case by the respondents against the petitioners. It further appears that no proceeding is pending against the petitioners as complaint against them is yet to be filed by the respondents. This position remains the same as it was when the Criminal Revision No. 328 of 1996 was dismissed by the Hon'ble Mr. Justice Asish Baran Mukherjee with the observation that as there was a complaint there was no proceeding in existence and, therefore, there could not be any question of quashing the proceeding which was pre-matured. This order remains unchallenged. In view of a decision reported in 2000 (4) SCC (Crl) 63 as cited by the learned Advocates for the respondents it appears that before quashing the proceeding the Court should consider whether there was any material to frame charge against the accused. But this decision relates to a criminal proceedings pending against the accused and it is not a case where no proceeding is pending in relation to a complaint filed. But this decision relates to a criminal proceedings pending against the accused and it is not a case where no proceeding is pending in relation to a complaint filed. So unless a proper complaint is filed against the petitioners, there is hardly any scope to interfere with the non-existing proceeding at this stage. Section 482 of Cr. P.C. runs as follows : "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 4. THERE is no indication that there was any abuse of the process of Court. Economic Offences (Non-Applicability of Limitation) Act, 1974 gives a privilege to the respondents to file complaint against the petitioners at any time they may deem with fit and proper. It is true that the respondents have not yet filed any complaint in the Court below against the petitioners but, by an order of this Court the petitioners are not attending the Court of C.M.M., Calcutta until a complaint is filed against them by the respondents. Therefore, the petitioners cannot be said to be prejudiced in any way whatsoever. Since no proceeding is pending before the learned C.M.M., Calcutta, this Court has hardly any scope to quash any non-existing proceeding. In this context I can only say that learned C.M.M., Calcutta while dismissing of the application for dropping proceeding filed by the petitioners against them had rightly observed that he had no inherent power to drop any proceeding. Therefore, the order dated 16.7.1999 passed by the learned C.M.M., Calcutta cannot be called in question. Since the present application for dropping or quashing the non-existing proceeding against the petitioners is pre-mature and as no proceeding is pending against them for want of complaint to be filed by respondents against them, I am of the view that there is hardly any scope to entertain the prayer made by the petitioners before this Court. In the result, I find no merit in the application and it is accordingly dismissed.