Judgment :- Complainant/State, represented by the Deputy Commercial Tax Officer - IV, Chennai, has come forward with this Appeal against the order of acquittal in C.T.M.P. No.1/1994 on the file of the XVII Metropolitan Magistrate. The trial Magistrate has dismissed the complaint under Sec.256 Crl.P.C. and acquitted the Respondents / accused under Sec.256(2) Crl.P.C. 2. An important question that arises in this Appeal: is whether the trial Magistrate justified in dismissing the complaint for the death of complainant/Public Servant, who has filed private complaint for violation of the provisions of Tamil Nadu General Sales Tax Act, 1959 (for short, TNGST Act)? 3. Relevant facts for the disposal of this Appeal could briefly be stated thus:- Tvl.Ratnagiri Building Products Ltd., are registered dealers under the Tamil Nadu General Sales Tax Act 1959 and Central Sales Tax Act 1956. They are also assessees paying Sales Tax and other levies within the jurisdiction of the Commercial Tax Officer, Alandur Assessment Circle. On receipt of an anonymous phone call followed by certain documents alleging that the dealers in Rooft Fibre Cement Products are indulging in evasion of tax, the place of business of Ratnagiri Building Products Ltd., at (Old No.28) New No.1, Salem Real Estate, Munusamy Salai, K.K. Nagar (West), Madras - 78 was inspected by three of the Enforcement Wing Officers headed by K.T.Sivaramakrishnan, Deputy Commercial Tax Officer, Central Enforcement Wing-I, Group-IV, Madras - 6. During the time of Inspection, some material defects were noticed. Some unnumbered delivery challans were taken for verification. The Inspecting Officers also seized Delivery Challans numbering 1 to 6 issued by the Company to various dealers in Madras City and Chengai M.G.R. District. Documents numbered 1 and 2 are un-numbered Documents, Document No.3 is with printed number and Document No.6 is with type written number. In all the documents, Ratnagiri Building Products Ltd., Madras, in addition to the value of Roofit Fibre Cement Products, Charged Sales Tax at 12% Surcharge at 15% and Addl.Surcharge at 5% under the Tamil Nadu General Sales Tax Act 1959 and Tamil Nadu Sales Tax (Surcharge) Act 1971. Out of the six documents, the company accounted for and paid tax only in respect of Document No.3, raising sales invoice. In respect of remaining five documents the company did not raise invoices and thereby evaded the Sales Tax, Surcharge and Additional Surcharge. Some records were seized from Tvl.Amudha Engineering Co.(P) Ltd., Alagiri Nagar, Madras-26. Out of the six documents, the company accounted for and paid tax only in respect of Document No.3, raising sales invoice. In respect of remaining five documents the company did not raise invoices and thereby evaded the Sales Tax, Surcharge and Additional Surcharge. Some records were seized from Tvl.Amudha Engineering Co.(P) Ltd., Alagiri Nagar, Madras-26. It was noticed that the Company also evaded tax, surcharge and additional surcharge. 4. Accused 2 to 4 are the Directors. A1 is the Company; A5 is the General Manager-Marketing, A-6 is the Marketing Manager of the Company, who is Incharge of the sales collection in the capacity of General Manager. A5 has signed the Monthly Returns submitted to the Commercial Tax Officer, Alandur Assessment Circle. 5. Accused 1 to 4 have committed the offence punishable under Secs.45(2)(a), 45(2)(b), 45(2)(cc), 45(2)(d) of the Tamil Nadu General Sales Tax Act 1959 and Rule 26(10) of the Tamil Nadu General Sales Tax Rule 1959. Accused 5 and 6 have knowingly committed the offence of evasion of tax payable under the Tamil Nadu General Sales Tax Act and Tamil Nadu Sales Tax Surcharge Act 1971 and committed the offence punishable under Sec.45(7) of Tamil Nadu General Sales Tax Act. Accused 7 to 10 have accepted the Stock Transfer Delivery Challans issued by Accused 1 to 6 and prepared invoices as if the Roofit Fibre Cement Products were sold from Pondicherry to Madras dealers. Thus, Accused 7 to 10 have knowingly evaded the tax. The total evasion of tax amount is Rs.36,185/-. 6. The complaint, which was filed by the DCTO, K.Sivaramakrishnan, was taken on file on 16.2.1994 in C.T.M.P. No.1/1994. The complainant - Deputy Commercial Tax officer - K.T. Sivaramakrishnan was present for all the hearings. When the case was listed on 31.8.1995, ACTO - Hariharan was present in the Court and he was expecting the arrival of K.T. Sivaramakrishnan. At the time of calling the case, the ACTO - Hariharan informed that the DCTO would be present. In the mean while, K.T.Sivaramakrishnan died on the very same day at about 9.00a.m. Inspite of representation made by the ACTO - Hariharan, the case was adjourned to 21.9.1995 as "Complainant absent" . 7. On 21.9.1995, the successor in office - Perinbaraj appeared before the Court and represented that K.T.Sivaramakrishnan died on 31.8.1995. The DCTO was accompanied by two ACTOs viz., Hariharan and S. Vijayakumar. 7. On 21.9.1995, the successor in office - Perinbaraj appeared before the Court and represented that K.T.Sivaramakrishnan died on 31.8.1995. The DCTO was accompanied by two ACTOs viz., Hariharan and S. Vijayakumar. The Court also directed the DCTO to take steps to serve summons to A2, A3 and A4 who are residing at Bombay. On 21.9.1995 fresh summons were obtained from the Court for causing service on the Accused 2, 3 and 4. Even on that day also, Docket Entry was made that "the Complainant absent". The case was adjourned to few hearings. On 20.11.1995 both DCTO and ACTO were present. The counsel for the accused made representation to the Court that the case is liable to be dismissed under Section 256(2) Crl.P.C. The case was adjourned to 22.11.1995. On 23.11.1995, the complaint was dismissed mainly on two grounds noted below:- (i) that the complainant - Sivaramakrishnan is dead; (ii) that the sanction order was not produced in support of the affidavit filed by the successor in office -Perinbaraj. The trial Magistrate referred to certain decisions viz., AIR 1970 SUPREME COURT 652, and 1978 CRI.L.J 1177. The decisions relied upon by the Government Advocate - 1990 CRI.L.J 1619, AIR 1928 Madras 167 were not taken note of on the ground that they are not related to the decisions of the Madras High Court. 8. Aggrieved over the order of acquittal, the State has come forward with this Appeal. The Government Advocate assailed the order impugned contending that the Court below erred in dismissing the complaint filed by the prosecution and seriously erred in dismissing the application filed by the prosecution to implead the successor in office - K.T. Sivaramakrishnan as the complainant. It is further submitted that the factum of representation on behalf of the complainant is not properly reflected in the Notes Paper maintained by the trial Court. 9. Respondents / Accused 2, 3, 4 were served. Notice sent to R1, R5, R6 to R10 not returned. Since the appeal arises out of the order of acquittal of the accused dismissing the complaint for non-appearance of the complainant and acquitting the accused under Sec.256(2) Crl.P.C., which involves consideration of the correctness of the impugned order, service held sufficient for R1, R5 to R10. Names of all the respondents are printed in the cause list. Since the appeal arises out of the order of acquittal of the accused dismissing the complaint for non-appearance of the complainant and acquitting the accused under Sec.256(2) Crl.P.C., which involves consideration of the correctness of the impugned order, service held sufficient for R1, R5 to R10. Names of all the respondents are printed in the cause list. The arguments advanced by the Respondents / accused before the trial Court is taken note of in considering the contentious points urged by the learned Government Advocate. 10. At the outset, it has to be pointed out that this complaint is not an ordinary private complaint filed by any private individual either under Sec.138 of the N.I. Act or complaining violations of certain private rights. R1/A1 - Tvl. Ratnagiri Building Products Ltd., and its Directors are alleged to have committed the offence of evasion of Tax, Surcharge and Addl.Surcharge to a tune of Rs.36,185/-. Thus, the offence committed is an economic offence involving evasion of tax. It is not a simple case of assault or theft of a trifling amount. The offence with which we are concerned is an economic offence involving an amount of Rs.36,185/-. It is to be pointed out that an economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequences to the community. The trial Magistrate has not at all kept the nature of the offence in his view. 11. By careful perusal of the records, it is clear that right from the beginning, the trial Magistrate was obdurate in not recording the presence of the officials and the representation onbehalf of the complainant. From the memo filed by the complainant, and also as seen from the lower Court records, it is amply made clear that the "Notes Paper" do not reflect the actual happenings before the trial Court. 12. As noted earlier, on 21.9.1995, the successor in office - Perinbaraj - the DCTO appeared before the trial Court and reported about the death of K.T. Sivaramakrishnan on 31.8.1995. He was accompanied by his Assistants Hariharan and S. Vijayakumar. The Court also directed the DCTO to take steps to serve summons to the Accused 2, 3 and 4 who are residing at Bombay. The case was adjourned to 21.9.1995. Fresh summons were obtained from the Court for causing service to the Accused 2, 3 and 4 at Bombay. He was accompanied by his Assistants Hariharan and S. Vijayakumar. The Court also directed the DCTO to take steps to serve summons to the Accused 2, 3 and 4 who are residing at Bombay. The case was adjourned to 21.9.1995. Fresh summons were obtained from the Court for causing service to the Accused 2, 3 and 4 at Bombay. Thereafter, the case was adjourned to 12.10.1995. 13. On 12.10.1995 also, the ACTOs - Hariharan and S. Vijayakumar had attended the Court. The Successor in office - Perinbaraj was on Earned Leave. Thus, the complainant was represented by other officials but the Docket entry for 12.10.1995 is written as "Complainant absent". Then the case was adjourned to 9.11.1995. On 9.11.1995, a memo was filed by the DCTO submitting served copy of the summons on Accused 2, 3 and 4. On 9.11.1995, Hariharan - ACTO was also present. On that day, the trial Court asked as to why the Court was not informed about the death of the complainant - Sivaramakrishnan in writing. It was then reported to the Court that the same was brought to the notice of the Court on 21.9.1995. Inspite of personal appearance and representation made by the complainant on 9.11.1995, the Docket Entry was written as "Complainant absent". 14. In the mean while, on 10.11.1995, a petition was filed by the DCTO informing the death of the deceased along with a copy of the Death Certificate. The petition was returned with endorsement to quote the provision of law. The petition was resubmitted to the Court. The case was adjourned to 20.11.1995. On that day also, the DCTO and ACTOs were present. The defence counsel represented to the Court that the case is liable to be dismissed under Sec.256(2) Crl.P.C.,. The case was adjourned to 22.11.1995. There is no Notes Paper Entry for 22.11.1995. It is not known whether the matter was called on 22.11.1995 but from the Notes Paper, it is seen that the following two orders were passed on 23.11.1995:- "Complainant absent. A1 to A5 absent. Petition filed and allowed. Other accused present. Call on 23.11.1995 for orders." . . . . 15. The complainant - Sivaramakrishnan filed the complaint not in his private capacity. On the day when the complaint was dismissed, the accused were also not present. On their behalf, a petition under Sec.311 Crl.P.C. was filed and their absence were condoned. Petition filed and allowed. Other accused present. Call on 23.11.1995 for orders." . . . . 15. The complainant - Sivaramakrishnan filed the complaint not in his private capacity. On the day when the complaint was dismissed, the accused were also not present. On their behalf, a petition under Sec.311 Crl.P.C. was filed and their absence were condoned. Thereafter, the complaint was dismissed for non-appearance of the complainant. 16. As noted earlier, Notes Paper does not indicate the correction position. The complainant was well represented by other officials but the representation of the complainant was not correctly recorded. It passes ones comprehension as to why the presence of the officials and the representation onbehalf of the complainant is to be pushed under the carpet. On many of the hearing dates, the trial Magistrate has recorded "Complainant present" and thereafter struck of the word, "present" and written as "absent". Courts are expected to maintain the Notes Paper reflecting the correct position. This Court is constrained to express the disapproval of the manner in which the trial Magistrate proceeded in not correctly recording the Notes Paper Entry. 17. In support of its Order, the trial Magistrate has referred to AIR 1970 SUPREME COURT 652. That decision arose in a service case filed by a Government Servant. In that proceedings, the affidavit was filed contending serious allegations. In that context, the Supreme Court has observed the necessity of importance of verification to test the genuineness and authenticity of allegations and also to make the deponent responsible for the allegations. Since it was a service case, the Supreme Court felt the necessity of verification. The case in hand stands entirely on a different footing. The successor in office - Perinbaraj has only filed the petition informing about the factum of death of the complainant - K.T. Sivaramakrishnan seeking permission to continue the proceedings. There arose no question either for sanction or essence of verification. The impugned order is unsustainable for yet another reason. The successor in office - Perinbaraj has filed the petition to the Court on 9.11.1995. The same was returned on 10.11.1995 with the following endorsement:- "The provision under which the petition is filed may be mentioned." No where it is stated that the petition has to be filed along with sanction order or properly verified affidavit. The successor in office - Perinbaraj has filed the petition to the Court on 9.11.1995. The same was returned on 10.11.1995 with the following endorsement:- "The provision under which the petition is filed may be mentioned." No where it is stated that the petition has to be filed along with sanction order or properly verified affidavit. Thereafter, the petition was resubmitted on 15.11.1995 with the following submissions:- "Resubmitted: 2) It is submitted that the charge sheet was filed under Sec.45 of the Tamil Nadu General Sales Tax Act 1959. 3) The petition has been filed with reference to Sec.256 of the Criminal Procedure Code. The Original Complainant K.T.Sivaramakrishnan (Late) had filed the charge sheet only in his Official capacity as DCTO-IV, CEW-I, Madras - 6 onbehalf of the State of Tamil Nadu. The present Officer, who is holding the post of DCTO-IV, CEW-I, is attending the Court. 4) this is submitted for favour of information of the Hon'ble Court." The petition was received in Court on 16.11.1995 and retained on the file of the Court. The petition was not returned. The filing of the petition on 9.11.995, informing the Court about the factum of death, enclosing the Certificate of Death of Sivaramakrishnan was not at all taken note of by the trial Magistrate. 18. The trial Magistrate was persistent in not recording the presence of the complainant; but in a mechanical manner stating that the complainant was absent. On 23.11.1995, the impugned order was passed as "Complainant absent" acquitting the accused under Sec.256(2) Crl.P.C.,. The trial Magistrate totally closed his eyes to the factum of the death of the complainant. On 23.11.1995, proceeded to make an entry as "Complainant absent" and was obdurate in dismissing the complaint. 19. Sec.256(2) Crl.P.C. is not to be used. Sec.256(2) is not intended to serve as short cut for trial Court to dismiss the complaint by short Judgment. The trial Magistrates should apply their mind to the facts of each case and in fit cases ought to take appropriate decisions in substituting the complainant. The trial Magistrate erred in not recording the representation onbehalf of the complainant and also grossly erred in dismissing the complaint on the ground that the "Complainant absent". Since the complainant is the State Government represented by the Public Servant, the trial Magistrate ought to have taken note of the death of the Public Servant who filed the complaint. The trial Magistrate erred in not recording the representation onbehalf of the complainant and also grossly erred in dismissing the complaint on the ground that the "Complainant absent". Since the complainant is the State Government represented by the Public Servant, the trial Magistrate ought to have taken note of the death of the Public Servant who filed the complaint. This is the more appropriate case where the trial Magistrate ought to have exercised his discretion in allowing the successor in office to continue the proceedings. This is all the more so, when the offence involving complaint relates to evasion of tax of Rs.36,185/-, the impugned order suffers from serious and substantial error. The complainant/Commercial Tax Officers are to be given opportunity to proceed with the complaint by substituting the complainant by proper successor in office. Since the impugned order suffers from serious and substantial error, the same has to be set aside allowing this Appeal. The matter has to be remitted back to the trial Court with a direction to provide opportunity to the complainant by substituting the successor in office and proceed with the complaint and dispose of the same in accordance with law. 20. Therefore, the order of the Court of XVII Metropolitan Magistrate in C.T.M.P. No.1/1994 dated 23.11.1995 is set aside and this Appeal is allowed. The matter is remitted back to the XVII Metropolitan Magistrate, Saidapet with a direction to provide opportunity to the complainant/DCTO by substituting the successor in office and to dispose of the complaint in accordance with law and after issuing notice to the accused parties.