Order Heard the learned counsel for the petitioner and the learned counsel for the State, as also learned counsel for the Revenue. 2.The petitioner is aggrieved by the order dated 24.12.2002 passed by the learned Special Judge, Economic Offences-cum-Sub-Judge 2nd, Dhanbad, in C.O. Case No.105 of 1989, whereby, the application filed by the petitioner under Section 245 of the Code of Criminal Procedure, has been dismissed by the Court below. 3. It may be stated that the petitioner had earlier filed. an application for discharge before the then Hon'ble the Patna High Court, Ranchi Bench, which was registered as Cr. Misc. No. 8307 of 1998(R) and the same was dismissed by order dated 13.10.1998, holding that at that stage, the Court would not interfere in the proceeding against the petitioner. 4. It may also be stated that another application filed by the other partner of the firm, namely Gopi Krishna Bagaria, who had also challenged the same criminal proceeding against him and had filed Cr. Misc. No. 8872 of 1992 before the then Patna High Court, Ranchi Bench, was allowed by order dated 18.9.1992. 5. It appears that the complaint petition was filed against M/s Shankar Mica Produce Company and its partners namely, Sheo Kumar Bagaria, Gopi Krishna Bagaria and Nirmal Kumar Bagaria (petitioner), which was registered as C.O. No.105 of 1989, by the Union of India through the Income-tax Officer, Ward No.2, Hazaribagh, alleging therein that the said firm had not filed the income tax returns on the due date for the assessment year 1978-79, rather the return was filed belatedly. Consequently, an action was taken under Section 271 (1)(a) of the Income Tax Act, 1961 by the Income Tax officer against the accused persons for filing belated returns. A show-cause notice was also served on the accused persons, requiring them to file reply, but when no reply was filed, a penalty was imposed under Section 271 (1)(a) of the Income Tax Act. Alleging that the accused persons had willfully attempted to evade tax and penalty by furnishing inaccurate particulars of their true income, defaulted in filing their return in time, as also by furnishing false statement in the verification, they had committed the offences under Sections 276C, 276CC and 277 of the Income Tax Act, 1961, the complaint petition was filed. 6. Alleging that the accused persons had willfully attempted to evade tax and penalty by furnishing inaccurate particulars of their true income, defaulted in filing their return in time, as also by furnishing false statement in the verification, they had committed the offences under Sections 276C, 276CC and 277 of the Income Tax Act, 1961, the complaint petition was filed. 6. From perusal of the complaint petition, it appears that there is no averment that the petitioner was in charge of, or was responsible to the firm or for the conduct of the business of the firm, nor there is any allegation that the offence was committed with the connivance or in the knowledge of the petitioner or that the petitioner was in any manner responsible for the said offence. It also appears from the record that the return was signed by another partner and not by this petitioner. Accordingly, one of the partners namely Gopi Krishna Bagaria, whose case stood on the same footing as that of this petitioner, filed application for quashing the criminal proceeding against him before the then Patna High Court, Ranchi Bench, in Cr. Misc. No. 8872 of 1992, in which, the only point taken was that so far as the said petitioner was concerned he could not be prosecuted, in view of the provision under Section 278B of the Income Tax Act, as there was no whisper in the complaint to suggest that the said petitioner was in-charge of, or was responsible to the firm for the conduct of the business of the firm. The then Hon'ble Patna High Court, Ranchi Bench, by order dated 18.9.1992 allowed the application and quashed the criminal proceeding against the said partner and accordingly, the said partner namely Gopi Krishna Bagaria stood discharged. Subsequently, the present petitioner also filed the application for quashing the entire criminal proceeding against him before the then Hon'ble the Patna High Court, Ranchi Bench, which was registered as Cr. Misc. No. 8307 of 1998(R). In the said case, the same ground was taken as in the case of Gopi Krishna Bagaria and it was also pointed out that the criminal proceeding against Gopi Krishna Bagaria was quashed by the High Court. Misc. No. 8307 of 1998(R). In the said case, the same ground was taken as in the case of Gopi Krishna Bagaria and it was also pointed out that the criminal proceeding against Gopi Krishna Bagaria was quashed by the High Court. However, the submission of the petitioner could not find favour by the Court and in view of the fact that the Court found that the necessary documents had not been brought on record, the said Cr. Misc. No. 8307 of 1998 (R) was rejected at that stage. 7. Subsequently, it appears that two witnesses were examined before the charge in the Court below and thereafter, the petitioner filed an application under Section 245 of the Cr. P.C., for discharge, taking the same very ground that there was no averment that he was in-charge of, or was responsible to the firm for the conduct of the business, as this fact had also come in the evidence of C.W. 2., who was examined before charge, wherein, he had admitted that the return for the firm was filed under the signature of the partner, Sheo Kumar Bagaria. The Court below, however, found that there are materials against the petitioner and if the evidence adduced in the Court below remained unrebutted, the same would warrant the conviction of the petitioner and has accordingly, rejected the application filed under Section 245 of the Cr. P.C., by the impugned order dated 24.12.2002 and has directed the petitioner to appear in the Court below for framing of the charge. 8. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch as, now it is well settled principle of law by catena of decisions that in case the offence is alleged to be committed by the company or a firm, in absence of any specific averment in the complaint petition that the accused sought to be proceeded against was in-charge of, or was responsible to the firm for the conduct of the business of the firm, the criminal proceeding cannot be maintained. In this connection, learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court of India in Katta Sujatha (Smt.) vs. Fertilizers and Chemicals Travancore Ltd. & Anr., reported in (2002)7 SCC 655 , wherein in the similar circumstances, it was held that in absence of the averment in the complaint that the partner was in-charge of and was responsible to the firm for the conduct of the business of the firm, as also in absence of the allegation that the offence was committed with the consent or the connivance of the said partner, or that the same was attributable to any neglect on the part of the said partner, no case can be made out against the partner and the complaint was not maintainable. 9. Learned counsel further submitted that in the similar circumstances, the other partner whose case was exactly on the same footing as that of the petitioner, was quashed by the Patna High Court, Ranchi Bench, in Cr. Misc. No. 8872 of 1992 and in that view of the matter, the petitioner is also entitled to be discharged. Learned counsel, accordingly, submitted that the impugned order cannot be sustained in the eyes of law. 10. Learned counsel for the State, as also learned counsel for the Revenue, on the other hand, have submitted that there is no illegality in the impugned order passed by the Court below, inasmuch as, on the basis of the evidence brought on record, the Court below has come to the conclusion that the evidence against the petitioner if remains unrebutted would certainly warrant the conviction of the petitioner and accordingly, the Court below has found sufficient material and the prima facie case against the petitioner for the offence under Sections 276C, 276CC and 277 of the Income Tax Act and has rightly rejected the application for discharge filed by the petitioner. 11. After having heard the learned counsel for both sides and upon going through the record, I find that in the complaint petition, there is no averment that the petitioner was in-charge of, or was responsible to the firm or for the conduct of the business of the firm, nor there is any allegation that the offence was committed with the connivance or in the knowledge of the petitioner or that the petitioner was in any manner responsible for the said offence. I also find that the witness who has been examined before the charge, has specifically stated that the return was filed by another partner namely, Sheo Kumar Bagaria and the verification column was also signed by him on behalf of the partners. 12. In that view of the matter, I find that there is complete lack of material against the petitioner for proceeding against him for the criminal offence. I also find that in exactly similar circumstances, the other co-accused namely Gopi Krishna Bagaria had already been discharged by the then the Patna High Court, Ranchi Bench, in Cr. Misc. No. 8872 of 1992 and there is absolutely no reason as to why the same privilege be not extended to the petitioner as well. 13. For the foregoing reasons, the impugned order dated 24.12.2002.passed by the learned Special Judge, Economic Offences-cum-Sub-Judge 2nd, Dhanbad, in C.O. Case No. 105 of 1989 is, hereby, set aside and the petitioner stands discharged. 14. This application is, accordingly, allowed.