Judgment:
M. Saran, J.
1. In this Miscellaneous application prayer is for quashing the entire proceedings including the order of cognizance dated 3.1.2000 passed by learned Special Judge, Economic Offences, Patna in Complaint Case No. 395(C)/99 by which he has issued processes against the petitioners and other for facing trial for the offences punishable under Sections 276C, 277 and 278 of the Income Tax Act, 1961 (in short as Act)
2. It is said that petitioner No. 1 is a partnership firm of which petitioner No. 2 Sri Sarad Kumar is one of the partners. Petitioner No. 3 is Accountant of the said firm. The facts of the case, in short, are that opposite party No. 2 filed a petition of complaint in the court of Presiding Officer/special Judge, Economic Offences, Civil Court, Patna alleging therein that a search was conducted in the case of Sanwin Pharmacuticals at its office situated in Merchant Building, 9/12, Lal Bazar Street, Calcutta-1 in June, 1996 and during the search some documents pertaining to the assessee/petitioners were seized and in pursuance thereof an assessment was made under the provisions of Sections 158BC, 158BD read with Section 144 of the Act at a total income of Rs. 11,87,85,570.00 only and in the said assessment it has been established that the supplies of medicines and cattle feed etc. to the Animal Husbandary, Government of Bihar as claimed by the firm in their return of income filed earlier were never made and that wrong claim of expenses in the return was made on the basis of bogus purchases. It is alleged that the petitioners on the basis of the aforesaid facts have committed offences punishable under Sections 276C, 277 and 278 of the Income Tax Act. The sanction of opposite party No. 1 has also been obtained. Thereafter a petition of complaint as mentioned above was filed on the basis of which cognizance has been taken.
3. It has been submitted on behalf of the petitioners that the order of assessment which is the basis of the complaint is an appealable order and the appeal has been preferred on 29.6.2001 before the Commissioner of Income Tax (Appeals) and therefore, the present complaint till the disposal of appeal should not proceed with. He also submitted that even the order passed by the court of appeal is appealable before the Tribunal and in case the same is allowed then the whole prosecution would fall.
4. On the other hand, learned Standing Counsel supported the impugned order and submitted that no interference is required by this Court.
5. Now coming to the argument of petitioners' counsel this Court finds that the pendency of assessment appeal or other proceedings under the Income Tax Act by itself does not preclude the department from launching a prosecution. The Criminal Court in an appropriate case however, may stay the proceedings in view of such pendency where the court takes a view that the conclusion arrived at by the appellate authority under the Act would have relevance upon the decision to be reached by the Criminal Court.
6. It appears from the impugned order of cognizance that the learned Judge after being satisfied that prima facie case has been made out, took cognizance under Sections 267C, 277 and 278 of the Income Tax Act, 1961. The impugned order of cognizance indicates application of judicial mind and satisfaction of learned Judge.
7. In the facts and circumstances of the case, at present this Court finds no error in the order of cognizance. The continuation of criminal proceeding therefore, at this stage cannot be accepted to be an abuse of process of the Court.
8. This application is accordingly dismissed.
9. However, the petitioners will be at liberty to file an application before the court below for stay of the proceeding and if such application is filed then the same shall be considered and disposed of in accordance with law in the light of decision of the Apex Court given in the case of Commissioner of Income Tax, Mumnai v. Bhupen Champaklal Dalai and Anr., reported in : [2001]2SCR178 .