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2005 DIGILAW 211 (UTT)

Sardar Buta Singh Dhami v. State of Uttaranchal

2005-06-18

J.C.S.RAWAT

body2005
JUDGMENT Hon'ble J.C.S. Rawat, J.- This criminal revision has been filed against the judgment and order dated 18.5.1990 passed by IInd Add!. Sessions Judge. Dehradun in Criminal Revision No. 98/1998. whereby the IInd Addl. Sessions Judge has allowed the revision and summoning order against the respondent No.2 for the offence under section 406 IPC. No.2 was set-aside. 2. Brief facts of the case are that the complainant-Sardar Buta Singh Dhami filed a complaint against the accused-Chander Mohan Chadha under section 403, 406, 420, IPC. alleging therein that the accused was the Managing Director of A.R.C. Cement Company Ltd. and the revisionist was the partner of a transport company "Buta Singh Dhami & Ass.”. It is further alleged in the complaint that since 1982 the accused had engaged the revisionist and his firm as a contractor for the carriage of cement on hire which was manufactured by the accused. At the time of payment towards the transport charges to the revisionist, the accused had deducted 2% of the total amount to be paid as income tax under section 194(c) of the Income Tax Act. The accused was duty bound to issue certificate on a prescribed form to the revisionist in respect of 2% deductions. In the year 1984-85, the accused had deducted Rs. 47,183.92 as income tax out of the total amount. But the accused did not issue the required certificate to the complainant and due to which the complainant could not submit his income tax return in time and suffered financial loss. Thereafter, the learned Magistrate recorded the statements under sections 200 & 202 Cr.P.C. and summoned the respondent No.2 under section 406 I.P.C. vide order dated 18.1.1988. 3. Feeling aggrieved to this, the respondent No.2 accused preferred a revision before the Addl. Sessions Judge. The Addl. Sessions Judge has allowed the revision and the summoning order was set-aside vide- its order dated 18.5.1990. 4. Feeling aggrieved by the order of the Addl. Sessions Judge, the revisionist has come up before this Court. 5. Heard Sri B.P. Nautiyal learned counsel for the revisionist, Sri Alok Singh learned senior Advocate and Sri Lalit Tiwari learned counsel for the respondent No.2 and learned A.G.A 6. 4. Feeling aggrieved by the order of the Addl. Sessions Judge, the revisionist has come up before this Court. 5. Heard Sri B.P. Nautiyal learned counsel for the revisionist, Sri Alok Singh learned senior Advocate and Sri Lalit Tiwari learned counsel for the respondent No.2 and learned A.G.A 6. The learned counsel for the revisionist contended that it is revealed from perusal of statements recorded under sections 200 & 202 I.P.C. that there is prima-facie case against the accused under section 406 I.P.C. The learned counsel for the respondent No. 2 refuted the contention and contended that the employer is duty bound to deduct the income tax from the person responsible for paying any sum to another for carrying out any work in pursuance of a contract under section 194(c) of the Income Tax Act. It is not disputed that 2% of the total amount was deducted from the complainant. Learned Addl. District Judge has held that there is no evidence on record to show that the money was entrusted to the accused-respondent No.2. The money was deducted by the respondent No.2 on behalf of the Income Tax Department. The Income Tax Department has nowhere claimed that the accused had actually misappropriated the amount himself. It was further held that the respondent No.2 did not issue the certificate and as such the revisionist could not file the income tax return in time. 7. Section 194 of the Income Tax Act casts the duty upon the person responsible for paying any sum to another for carrying out any work in pursuance of a contract. In pursuance of the said provisions, the respondent No.2 deducted the amount: After the deduction of the said amount, the accused is not responsible to the complainant as the accused has deducted the amount on behalf of the Income Tax Department. 8. In case the money has been misappropriated by the accused; the Income Tax Department would have filed a 'Complaint against the accused. Apart this, the Income Tax Department was fully competent to make penalty against the accused. There is no evidence on record which shows that the said amount was not deposited before the authority concerned. Even if the amount is not deposited by the accused, as claimed by the complainant, even then accused cannot be prosecuted under section 406 I.P.C. at the instance of the complainant. 9. There is no evidence on record which shows that the said amount was not deposited before the authority concerned. Even if the amount is not deposited by the accused, as claimed by the complainant, even then accused cannot be prosecuted under section 406 I.P.C. at the instance of the complainant. 9. In view of the above, I am in - agreement with the finding of the learned Judge. Therefore, no interference is required with the findings of the trial court. The revision is devoid of merit and is dismissed accordingly.