Dismissed

Mukesh Goyal v. the State of Assam and Anr.

Gauhati HC20 Sept 2022Crl.Pet./718/2016

Case brief

AI extract

What is this about?

The Single Judge dismissed a petition under Section 482 CrPC seeking quashing of criminal proceedings against the petitioner for tax evasion and criminal conspiracy. The Court held that a prima facie case was made out against the petitioner based on the FIR and charge sheet, making the prayer untenable.

What did the court decide?

The petition was dismissed; the impugned order was not quashed; proceedings continue before the learned Court below.

Mukesh Goyal Vs the State of Assam and Anr. — Corruption | Gauhati HC (2022)

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GAHC010207032016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./718/2016

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MUKESH GOYAL

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S/O SHRI ROSHAN LAL AGARWAL R/O P.C.M. TOWER, GROUND FLOOR, SEVAK ROAD, SILIGURI DIST. DARJEELING, WEST BENGAL.

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VERSUS

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THE STATE OF ASSAM AND ANR

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REP. BY THE COMMISSIONER AND SECRETARY, DEPARTMENT HOME AFFAIRS, GOVT. OF ASSAM, DISPUR, GUWAHATI -6.

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2:SHRI NAYAN JYOTI DAS INSPECTOR OF TAXES ATTACHED TO BIEO ASSAM SRIMANTAPUR GUWAHATI-32

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BEFORE

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HON’BLE MR. JUSTICE ROBIN PHUKAN

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Date of hearing : 25.07.2022.

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Date of judgment : 20.09.2022.

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JUDGEMENT AND ORDER (CAV)

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Heard Mr. S.P. Roy, learned counsel appearing for the petitioner. Also heard Mr. D. Das,

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learned Addl. Public Prosecutor, Assam, appearing for the State respondent.

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In this petition, under Section 482 of the CrPC, the petitioner, Sri Mukesh Goyal has prayed for quashing the proceeding of G.R. Case No.2488/2014, pending in the Court of learned CJM, Kamrup (M) at Guwahati and the impugned order dated 28.12.2015, passed in the aforesaid case, as well as the Charge Sheet, No.11/2015, dated 22.12.2015, in the aforementioned G.R. Case No.2488/2014, under Sections 120(B)/420 IPC.

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The factual background leading to filing the present petition is briefly stated as under:

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“On 11.03.2014, Sri Nayan Jyoti Das, Inspector of Taxes, B.I.(E.O.), Assam, Guwahati lodged one FIR with the Officer-in-Charge of B.I.(E.O.) Police Station, Assam, Srimantapur, Guwahati to the effect that obtaining a search warrant from the Court of leaned Addl. CJM, Kamrup at Guwahati dated 07.01.2014, a team of officials of the Directorate of B.I.(E.O.), Assam conducted search in the residential premises of one Jitendra Begani, on 08.01.2014, situated at Pragati Nagar, Narendra Nir Apartment, Lal Ganesh, Guwahati who is the proprietor of M/s. Brahmaputra Hardware, Lokhra, Guwahati, which deals in G.I. pipes, wire, nails, etc. and on verification of accounts of the dealer, it was found that he maintained his books of accounts in such a manner, which is likely to cause evasion of taxes and thereby he cheated the Government and the said books of accounts were seized observing all formalities under Sections 74(1)/74(3) of the Assam Value Added Tax Act, 2003. Thereafter, the dealer appeared with the books of accounts in connection with verification of the seized documents and then it has been found that he has committed the offence under Section 85(1)(a) of the Assam Value Added Tax Act and from May, 2012 till January, 2014, he has performed sale transaction of Rs.42,63,99,717/- and he evaded tax amounting to Rs.2,13,19,988/- and on

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verification of the documents it has been found that the said amount relates to only with regard to the sale transaction and he could not produce any document of purchase against the said sale transaction and mainly the G.I. Pipes and Wires were purchased from Siliguri and Kolkata illegally and the payment of the same has been made mainly through suspicious transaction and the accused was involved in the criminal conspiracy against the Government, causing loss to the National as well as the State exchequer, by suppressing the turnover of the business transaction.

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Upon the said FIR, the Officer-in-Charge of the B.I.(E.O.) Police Station registered the B.I.(E.O.) P.S. Case No.04/2014, under Sections 120(B)/420 IPC, read with Section 85(1)(a) of the Assam Value Added Tax Act, 2003 and endorsed Dy. S.P. Ajemil Choudhury to investigate the same.

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The I.O. then visited the place of occurrence, examined the witnesses and seized the documents and verified the same and after completion of investigation, the I.O. laid the charge sheet against two accused, namely, Jitendra Begani & Mukesh Goyal (present petitioner) to stand the trial in the Court under Sections 120(B)/420 IPC, before the Court of learned CJM, Kamrup (M) at Guwahati. Thereafter, vide impugned order dated 28.12.2015, the learned Court below has taken cognizance against both the accused and issued process to them. Thereafter, on appearance of the accused persons before the learned Court below, complying with the provision under Section 207 CrPC and hearing learned Advocates of both sides, had framed charge against both the accused under Sections 120(B)/480 /465/468 IPC and on being read over, they pleaded not guilty to the same. Thereafter the learned Court below has posted the case for examination of witnesses and examined one witness.

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Being highly aggrieved, the petitioner approached this Court for quashing the proceeding on the ground that the petitioner Shri Mukesh Goyal hails from Siliguri, West Bengal and he has not been doing any business in Assam and that he is not a dealer under the Assam Value Added Tax Act and as such he does not require to pay any tax, as only the registered is to pay tax. It is further submitted that the offence under Sections 120(B)/420 IPC is not applicable in the case of Mukesh Goyal, however the same may be applicable in case of the other accused and that Mukesh Goyal has not committed any offence and not a single document has been seized from him and no tax evasion has been calculated against the petitioner and Section 89 of the Assam Value Added Tax Act is an compoundable offence and therefore, it is contended to allow this petition.

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Mr. S.P. Roy, learned counsel for the petitioner has reiterated the aforesaid points and submitted that the petitioner has not been doing any business in Assam and he used to do the same in Siliguri in West Bengal and his farm is not registered under the Assam Value Added Tax Act and as such he is not required to pay any tax and that the respondent side has not filed any counter affidavit and perusal of the FIR and the charge sheet failed to reveal any case against the petitioner and no tax evasion is calculated against him and no ingredients of the offence under Sections 120(B)/420 IPC are made out against him and therefore, Mr. Roy contended to allow this petition. Mr. Roy also referred to three decisions of the Hon’ble Apex Court in support of his submissions i.e. (1) State of Haryana and others vs. Ch. Bhajan Lal and others, reported in AIR 1992 SC 604, (2) Rajiv Thapar and other vs. Madan Lal Kapoor, reported in (2013) 3 SCC 330 and (3) Central Bureau of Investigation vs. K. Narayan Rao, reported in (2012) 9 SCC 512.

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On the other hand, Mr. D. Das, learned Addl. P.P., Assam submits that though counter

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affidavit has not been filed by the respondents, yet non filing of counter affidavit do not cause any dent to the case of the respondents. Mr. Das further submits that the I.O. has collected sufficient materials against the petitioner and the modus operandi adopted by the petitioner is clearly stated in the charge sheet and having found prima facie case made out against the petitioner Mukesh Goyal, the Court of learned CJM, Kamrup (M) at Guwahati has framed charge against him along with co-accused Jitendra Begani, under Sections 120(B)/480/465/468 IPC and that this is not a fit case to invoke the inherent jurisdiction of this Court under Section 482 CrPC.

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Mr. Das has referred one case law i.e. M/s. Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra & Ors. (2021 SCC OnLine SC 315), wherein the Hon’ble Supreme Court has held as under:

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“i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

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ii) Courts would not thwart any investigation into the cognizable offences;

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iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

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iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).

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v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

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vi) Criminal proceedings ought not to be scuttled at the initial stage;

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vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

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viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

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ix) The functions of the judiciary and the police are complementary, not overlapping;

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x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

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xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

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xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

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xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

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xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

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xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

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xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

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xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

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xviii) ……………………………………………………………………..”

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Under the above facts and circumstances, Mr. Das has contended to dismiss the

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petition.

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Having heard the submission learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the scan copy of the LCR and the case laws referred by learned Advocates of both sides.

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It appears that the FIR was lodged on 11.03.2014 and upon the same, the B.I.(E.O.)

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P.S. Case No.04/2014, under Sections 120(B)/420 IPC, read with Section 85(1)(a) of the Assam Value Added Tax Act, 2003 has been registered and the FIR was lodged by Nayan Jyoti Das, Inspector of Taxes, attached to B.I.(E.O.), Assam. It is clearly stated in the FIR that one Jitendra Begani has evaded tax amounting to Rs.2,13,19,988/-, after doing business of Rs.42,63,99,717/- from the month of May, 2012 till January, 2014 and he deals with the G.I. pipes, wires, nails, etc. And during investigation, it has been found by the I.O. that Jitendra Begani brought the same from the M/s. Sensitive Banijya Pvt. Ltd., situated at Siliguri of which the petitioner Mukesh Goyal is the proprietor. The articles were transported in night super buses, in a secret chamber, and thereafter, brought the same to Guwahati and stored in the godown of accused Jitendra Begani, situated at Garbhanga, before 5 O’clock and within 7 O’clock in the morning, those articles were sent to different business establishment in his own DI van and Auto van. It has been found that accused Jitendra Begani has done business transaction for a sum of Rs.42,63,99,717/- and out of the said amount, he has to pay sales tax amounting to Rs.2,13,19,988/- and no document could be found in respect of depositing the sale tax and no document could be produced by accused Jitendra Begani and he has also not reflected the daily list of case book, ledger book etc. and it has also been found from the documents seized from the accused Jitendra Begani that he has sent the sale proceeds by RTGS to Mukesh Goyal, the petitioner, who is the proprietor of M/s. Sensitive Banijya Pvt. Ltd., Siliguri. It has also been found that accused Jitendra Begani and the present petitioner have purchased five vehicles, one in the name of wife of Jitendra Begani, Smti Pinky Begani and the rests are in the name of Jitendra Begani and during the period of stay of the investigation by this Court, in a petition filed by accused Jitendra Begani, he has sold the aforesaid vehicles and also one flat, which was purchased by accused Jitendra Begani with

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the tax evaded by them. Further it has been found that the articles purchased from M/s. Sensitive Banijya Pvt. Ltd., Siliguri of the present petitioner, were transported in the night super buses, instead of carrying the same in trucks and sufficient materials have been found against both the accused for committing the offence under Sections 120(B)/420 IPC, and accordingly the I.O. laid charge sheet against present petitioner and accused Jitendra Begani to stand the trial under Sections 120(B)/420 IPC.

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Thus, a careful perusal of the FIR as well as the charge sheet and also the documents placed on record, shows complicity of both the accused in the offence alleged in the FIR. While dealing with a petition under Section 482 CrPC, this Court is not entitled to embark into a robbing inquiry as to the correctness or truthfulness of the assertion made in the charge sheet, as held by the Hon’ble Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. (supra) and Mr. D. Das, learned Addl. Public Prosecutor, Assam has rightly pointed out this during his argument.

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It is also to be noted here that the learned Court below, after hearing the learned Advocates of both the parties had framed the charges against the present petitioner and accused Jitendra Begani, under Sections 120(B)/480/465/468 IPC and already examined one witness. The said order of framing charge has not been challenged, by the petitioner, however he has challenged the entire proceeding.

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I have carefully gone through the case laws referred by Mr. S.P. Roy, learned counsel for the petitioner and also considered the submission advanced by him and in view of aforesaid discussion and finding, this Court is unable to record concurrence with his submission. It is to be noted here that two judgments referred to by Mr. Roy i.e. Rajiv Thapar (supra) and K.

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Narayan Rao (supra) were delivered by two Judges Bench of Hon’ble Supreme Court, whereas the judgment in the case of Neeharika Infrastructure Pvt. Ltd. (supra) was delivered by a three Judges Bench and as such this Court is of the view that the case laws referred by Mr. S.P. Roy, learned counsel for the petitioner would not come into his aid. The other case law i.e. Ch. Bhajan Lal and others (supra) also would not come into his aid, as a clear case is made out against the petitioner from a bare perusal of the FIR and also the charge sheet and the materials placed on record.

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In the result, I find no merit in this petition and accordingly the same is dismissed.

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It appears that the G.R. Case No.2488/2014 is pending since the year 2014. Therefore, the learned Court below is requested to endavour to dispose of the same at the earliest. The petitioner is directed to appear before the learned Court below and interim order of stay, if any, stands vacated. The parties have to bear their own costs.

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JUDGE

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Comparing Assistant

Mukesh Goyal v. the State of Assam and Anr.

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Mukesh Goyal v. the State of Assam and Anr.

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