1. Heard learned counsel for the petitioners and learned counsel for all the opposite parties.
2. This is an application for quashing of the entire proceeding pending in the court of the Chief Judicial Magistrate, Patna in Pirbabore P.S. Case No. 82/2004 and also the first information report filed by respondent no.3 before the Officer Incharge, Pirbahore Police Station, Patna under the provisions of section 40(3)(d) of the Bihar Finance Act, 1981 (hereinafter called the Act) read with section 409 of the Indian Penal Code.
3. It is admitted case that petitioners deals with paper distribution business and they were assessed to pay some taxes for the assessment years 1999-2002, 2002-2003 and a sum of Rs. 2,59,85,947.85 paise was lying due towards the tax assessed by the department. Claim was made against the petitioner who sought exemption submitted representation before the appropriate authority; ultimately, matter went to final authority deciding the facts i.e. Commercial Taxes Appellate Tribunal. Order of the Commercial Taxes Appellate Tribunal, Patna, and Bihar, in Revision Case No.126-31/2003 vide order dated 17th August 2004 is annexed as Annexure 5 and petitioners claim seeking exemption was allowed and all earlier orders relating to demand of taxes are set aside.
4. By filing supplementary affidavit on behalf of the petitioners, order of the court below dated 15.07.2010 has been filed showing that in the case instituted in the year 2004 wherein charge sheet was submitted on 27.12.2008 cognizance has been taken on 15.07.2010 for the offence under section 409 of the Indian Penal Code read with section 49 of the Bihar Finance Act 1981.
5. Learned counsel for the petitioners mainly placing reliance on a decision of the Apex Court in the case of K.C. Builders and another v. Assistant Commissioner of Income Tax reported in 2004 I.T.R. 562 submitted that since the entire assessment and demand of tax against the petitioner has finally been set aside and now in the eyes of law, there is no demand further proceedings of the court below and order taking cognizance etc. are nothing but abuse of the process of law.
6. Learned counsel representing opposite parties is not in a position to dispute the submissions. However, the learned counsel tried to lead emphasis that there was no stay order granted earlier by the competent authorities in spite of that petitioners evaded to pay the tax assessed and demanded from them. So, it was incumbent upon them to deposit the said amount with a liberty to adjustment towards subsequent taxes to be levied or refund.
7. It is also contended that the petitioners may raise all issues before the court below at the stage of hearing on the point of charge or subsequent stage of trial.
8. No doubt, the petitioners have right to agitate the matters before the trial court at appropriate stage but Apex Court in various cases has held that if there is no material constituting any offence, the accused persons must not be left to suffer agony of trial or hearing at the point of charge, rather, the courts must interfere in exercise of powers conferred under section 482 of the Criminal Procedure Code.
9. The relevant decision of the Apex Court in a case of G. Sagar Suri and another v. State of U.P. and another reported in A.I.R. 2000 SCC 754; wherein after discussing other decisions including case of Ashok Chhaturvedi v. Shital H. Chanchani and another reported in A.I.R. 1998 2796; wherein paragraph 7 it has been held that " Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence is made out against them and still why must they undergo the agony of a criminal trial."
10. In view of the admitted position that entire claim of prosecution as regard to taxes now no longer assessed rather in the year 2004 itself. Such demands were set aside by competent authorities whose decision is final. If at all, the proceedings before the court below in Pirbabore P.S. Case No. 82/2004, is permitted to continue, who shall nothing but abuse of the process of law and sheer wastage of precious judicial time and this case squarely covered more than one criteria as prescribed by the Apex Court in case of State of Haryana & others V. Choudhary Bhajan Lal & others reported in A.I.R. 1992 SCC 604.
11. In the result, this application stands allowed and First Information Report in Pirbabore P.S. Case No. 82/2004 including order dated 15.07.2010 taking cognizance thereon stands quashed.