Gujarat High Court

Rajeshkumar Haridas Dattani vs State Of Gujarat on 10 July, 2023

Bench: Sandeep N. Bhatt

     R/CR.MA/4076/2020                              ORDER DATED: 10/07/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 4076 of 2020

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                         RAJESHKUMAR HARIDAS DATTANI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR MONAL S CHAGLANI(10240) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 10/07/2023

                                 ORAL ORDER

1. The present application under Section 482 of

the Code of Criminal Procedure, 1973 (`the Code' for

short) is filed with the following prayers:

"8(A) That the Present Quashing Petition be kindly admitted.

(B) That the F.I.R. lodged by the Manavadar Police Station

of District Junagadh bearing F.I.R. no.II/70/2014 alleging the

charge of Sec.85(d) and 86(1) of The Gujarat Value Added

Tax Act, 2003 against the Petitioner be kindly Quashed.

(C) Pending the Petition and the Disposal of this Quashing

Petition, all the legal proceedings and steps in pursuance of

the F.I.R.No.II/70/2014 lodged by Manavadar Police Station of

District Junagadh ought to be taken by the Manavadar

Police Station (District - Junagadh) be kindly stayed.

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(D) That any other final or interim relief which this Hon'ble

Court deems fit be kindly allowed."

2. The facts as stated in the application are such

that the applicant was permanent resident of Thane

since 23.12.1999 and upon intimation from Manavadar

Police Station in the end of March, 2019 to appear

before the Manavadar police station pursuant to the FIR

lodged against him in the year 2014, the applicant

became aware of the FIR. It is stated that the applicant

came to know about the `A' summary filed and the order

passed therein; that on perusal of the FIR, it is stated

therein that the applicant is a tax evader and the

complaint is filed. It is this complaint which is sought to

be quashed by filing this application.

3. Heard learned advocates for the parties.

3.1 Learned advocate Mr.Chaglani submitted that

FIR is filed after much delay. As per FIR, the

transaction has occurred between 2003-2006 and FIR is

filed on 14.8.2014. He has drawn my attention towards

Section 468 of the Code and submitted that the

cognizance has to be taken if the offence is committed

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within one year prior to the date of FIR; that the FIR

is filed after much delay and could not be maintainable

in eye of law; that as per the FIR, the same is filed on

the basis of the some assessment order of the year 1995-

96 which is passed in the year 2005, 1996-97 which is

passed in 2006 and 1998-99 which is passed in the year

2003, 1999-2000 which is passed in the year 2004 and

that as per the order passed under Section 41(4) of the

Gujarat Sales Tax Act, that too passed beyond the period

of limitation, no amount can be recovered by the

authority as such assessment order is passed beyond

prescribed period of limitation. However, he has

submitted that when he was called by the investigating

officer, he has paid the entire amount towards tax by availing the benefit of Amnesty Scheme, the last

installment of which is paid on 24.2.2021; therefore, as

of now, the entire amount which is demanded by the

authority is paid, of course by way of availing the

benefit of Amnesty Scheme and therefore there is no

question to refund any amount in case of the proceeding

of present FIR is quashed by this Court. He has further

submitted that otherwise also, no fruitful purpose will be

served in view of the subsequent development to proceed

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with the investigation/prosecution pursuant to the said

FIR since the applicant has paid the entire amount and

the state exchequer has not incurred any loss. He,

therefore, prays to quash the impugned FIR and

consequential proceeding by allowing this application.

4. Per contra, learned APP Mr.Jayswal has

strongly opposed the said application by submitting that

the applicant has not paid huge amount of Rs.44,56,425/-

towards sales tax and pursuant to that, the complaint is

required to be filed under Section 86(1) and 85(d) of the

Gujarat Value Added Tax Act, 2003. He has further

submitted that after filing of FIR, the applicant could

not be traced out and therefore the investigating officer made an application under Section 70 of the Cr.P.C.,

even thereafter, the applicant could not be traced out

and therefore `A' summary report was filed on 7.5.2015.

Thereafter, on further investigation by another officer, it

was found that the present applicant was staying at

Thane in Mumbai, he had appeared before the

investigating officer, he was arrested on 6.4.2021 and at

that point of time, he has revealed that he has paid the

entire amount of tax by way of Amnesty Scheme.

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Learned APP submitted that merely because he has paid

the entire outstanding amount by way of Amnesty

Scheme itself does not erase the fact that offence is

committed by the applicant and therefore this is not a

fit case where the court should exercise discretion of

inherent powers under Section 482 of the Code which

should be exercised very sparingly. He, therefore,

requested to dismiss this application.

5. I have considered the rival submissions and

also considered the provisions of law:

"Section 468 of the Code reads as under:

468. Bar to taking cognizance after lapse of the period of limitation.

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only

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1. Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974 ), s. 2 end Sch.

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]

Section 85(d) and 86(1) of the Gujarat Value Added Tax Act, 2003 read as under

85. Offences and penalties. - (1) Whoever-

(d) fails to pay tax as per the returns filed by him;

86. Offences by companies, etc. - (1) Where an offence under this Act or the rules there under has been committed by a company, every person who at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of the business of the company, as

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well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that, nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

Section 42 of the Gujarat Sales Tax Act reads as under:

42. Time limit for Completion of assessment. - (1)(a) No order of assessment for a year or part of a year shall be made under sub-section (3) or (4) of section 41 at any time after the expiry of three years from the end of the year in which the last monthly, quarterly or as the case may be, annual return is filed.

(b) Where the Commissioner issues a notice under sub- section (6) of section 41 to any dealer for assessment of tax in respect of any period, no order of assessment shall be made for such part of the period, if any, as is prior to:-

(i) a period of eight years ending on the last date of the year immediately preceding the year in which such notice is issued, in a case where the Commissions has reason to believe that such dealer has failed to apply

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for registration with intention to defraud Government revenue; and

(ii) a period of four years ending on the last date as aforesaid, in any other case:

Provided that for the purpose of this section if it is considered necessary so to do, the State Government may, subject to such conditions as it may deem fit, and the Commissioner may, subject to such conditions as may be prescribed, by a general or special order, stay, either generally or for a specified period, the assessment proceedings of a dealer or class of dealers:

Provided further that in computing the period of limitation for the purposes of this section, any period during which assessment proceedings are stayed under the first proviso or by an order or injunction of any court or authority shall be excluded:

Provided further that where a fresh assessment is required to be made in pursuance of any order under section 65, 67 or 69 or in pursuance of any order of any court or authority such fresh assessment shall be made at any time within three years from the date of such order.

(2) Nothing in sub-section (i) shall apply to any assessment proceedings (including any notice issued) pending immediately before the appointed day.

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6. In view of the aforesaid, if we peruse the facts

of the case, it is undisputed fact that the contents of the

FIR, more particularly, column 3 indicates that the

offence is committed between period 11.3.2003 to

27.3.2006 for which FIR is filed on 14.8.2014, therefore,

the FIR is filed after about eight years from the last

date of period of offence. Therefore, there is delay and

laches on the part of the complainant which is not

explained in the entire FIR. Further, the date of incident

is mentioned of 1995-96 and the assessment year is

mentioned as 2005, for 1996-97 assessment year is

mentioned as 2006 and prior to that for 1998-99, the order is passed on 11.3.2003 and on that basis it was

stated in the FIR that the total outstanding is of

Rs.44,56,425/- towards the sales tax/vat and therefore the

complaint is filed under the provisions of Gujarat Value

Added Tax Act. Though the averments in the FIR also

indicate the word of cheating and forgery, however, the

offence is not registered under any provisions of the

Indian Penal Code.

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7. Considering the fact that FIR is filed after

much delay of 8 years, FIR itself is filed at belated

stage without giving any justifiable explanation, in view

of the provisions of Section 468 of Indian Penal Code

and also the provisions of Section 42 of the Gujarat

Sales Tax Act, even the impugned order as well as FIR

in question is passed/filed beyond the period of

limitation; that during the pendency of the investigation,

the investigating officer initially filed `A' summary report

thereafter in view of further investigation, when the

location of the present applicant is traced out, he was

arrested and thereafter he has paid entire amount

during that time by way of Amnesty Scheme to the

government; the government has also now received the outstanding amount as claimed towards the non-payment

by the applicant as indicated in the present FIR and

therefore now there is no loss to the public exchequer in

view of the subsequent development.

8. Considering the totality of the facts and

circumstances of the present case, it is appropriate to

exercise my discretion in favour of the applicant as no

fruitful purpose will be served to continue the proceeding

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against the present applicant pursuant to the impugned

FIR.

9. Further, it will also be fruitful to mention the

judgment of Hon'ble Supreme Court in the case of State

of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information

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report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for

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proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

10. It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan

Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23

& 24 thereof, which read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do

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real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;]

[(ii) to prevent abuse of the process of court, and]

[(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

11. In view of above settled position of law and

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after considering the facts as alleged in the FIR and

circumstances of the present case, it transpires that

continuation of further proceedings pursuant to the said

FIR will cause greater hardships to the petitioner and no

fruitful purpose would be served if such further

proceedings are allowed to be continued. The Court must

ensure that criminal prosecution is not used as

instrument of harassment or for seeking private vendetta

or with ulterior motive to pressurise accused or to settle

the score.