The Assistant Commissioner of Central Excise(Legal) v. M/S Anugraha Engineering

Karnataka HC16 Nov 2023CRL.P/1875/2017

Case brief

AI extract

What is this about?

In a criminal revision, the High Court held that no inherent jurisdiction under Section 482 Cr.P.C. existed to interfere with the Revisional Court setting aside the issue of process. Despite the missing quid pro quo, the case was remitted to the Trial Court rather than dismissed to afford fresh application of mind regarding the tax threshold limit.

What did the court decide?

Case remitted to Trial Court to take cognizance after complying with Section 190(1)(a) Cr.P.C. after due application of mind.

The Assistant Commissioner of Central… — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC:40890 CRL.P No. 1875 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL PETITION NO. 1875 OF 2017

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BETWEEN:

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THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE (LEGAL) 7^TH FLOOR, TRADE CENTRE, BUNTS HOSTEL ROAD, MANGALURU-575001.

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…PETITIONER

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(BY SRI. AMIT DESHPANDE, ADVOCATE)

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AND:

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M/S. ANUGRAHA ENGINEERING HAVING OFFICE AT "DIANA VILLA", OPP.TO GOVERNMENT HEALTH CENTRE, SURATHKAL, MANGALURU TALUK-575001.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SHRI PETER ALEX D'SOUZA S/O. LATE MR. NORBERT ALEX D'SOUZA, RESIDING AT "DIANA VILLA", OPP.TO GOVERNMENT HEALTH CENTRE, SURATHKAL, MANGALURU TALUK-575001.

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…RESPONDENTS

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(BY SRI. VIVEKANANDA PANIYALA, ADVOCATE ALONG WITH SRI. SANDEEP LAHIRI, ADVOCATE FOR RESPONDENT NOS.1 AND 2)

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THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE ORDER DATED 15.07.2016 PASSED BY THE IV ADDL. DISTRICT

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NC: 2023:KHC:40890 CRL.P No. 1875 of 2017

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AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU IN CRL.RP.NO.60/2015.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has challenged the correctness of the order dated 15.07.2016 passed by the IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru (Revisional Court) in Crl.R.P.No.60/2015 by which, it allowed the revision petition and set aside the order dated 17.12.2014 passed in C.C.No.495/2014 on the file of Principal CJM, Mangaluru, (Trial Court) issuing process to the accused.

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The petitioner herein initiated prosecution of the respondents for the offences punishable under Section 89(1)(d) of the Finance Act, 1994 by filing a private complaint before the Trial Court under Section 89(4) of the Finance Act, 1994.

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The Trial Court dispensed the recording of the pre-summons evidence of the complainant/petitioner and ordered to register the criminal case against the accused and

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3 - NC: 2023:KHC:40890 CRL.P No. 1875 of 2017

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issued process. Being aggrieved by the said order the respondent filed Crl.R.P. No.60/2015 before IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru. The Revisional Court perused the order passed by the Trial Court issuing process to the accused and found that there was no application of mind before issuing process and consequently, it held that the order issuing process to the accused was patently erroneous, perverse and consequently allowed the revision petition and set aside the order dated 17.12.2014 issuing process to the respondent. Being aggrieved by the same, the petitioner is before this Court.

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The learned counsel for the petitioner submitted that the Revisional Court had exceeded its jurisdiction in literally discharging the accused/respondent herein by exercising power under Section 397 of Criminal Procedure Code, 1973. He contends that the Revisional Court is not invested with power to discharge the respondent. He contends that the offence complained against the respondent was punishable under Section 89(1)(d) of the Finance Act,

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4 - NC: 2023:KHC:40890 CRL.P No. 1875 of 2017

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1994 and there was sufficient material for the Sessions Judge to proceed against the accused/respondent.

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Per contra, the learned counsel for the respondent contended that the order dated 17.12.2014 passed by the Trial Court issuing process to the accused did not even indicate that the cognizance was taken by the Trial Court. It also did not indicate the offences, in respect of which cognizance was taken. He therefore, submits that the Trial Court mechanically issued process without applying its mind. In this regard he relied upon the judgment of the Hon'ble Apex Court in the case of Sunil Bharathi Mittal Vs.

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CBI - (2015) 4 SCC 609 and contended that summoning the accused without recording proper reasons by the Court is incorrect and improper. He therefore, submits that there is an error apparent on the face of the order passed by the Trial Court warranting interference at the hands of this Court by exercising power under Section 482 of Cr.P.C.

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I have considered the submissions made by

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learned counsel for the petitioner and learned counsel for the respondent.

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NC: 2023:KHC:40890 CRL.P No. 1875 of 2017

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The impugned order passed by the Revisional

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Court merely indicates that the order issuing process was set aside as there was no proper and sufficient application of mind to the facts and circumstances of the case. The Revisional Court while disposing off the revision petition had observed that the private complaint did not disclose that the tax that was collected and not deposited by the accused/respondent did not exceed a sum of Rs.50,00,000/to attract an offence punishable under Section 89 of the Finance Act, 1994. This is something that the Trial Court must have considered.

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Having regard to the fact that the order impugned before the Revisional Court did not show any clear application of mind and also did not indicate that the Trial Court was satisfied that an offence under Section 89(1)(d) of the Finance Act, 1994 was committed, the Revisional Court ought to have remitted the case back to the Trial Court for reconsideration namely, to take cognizance after due application of mind.

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NC: 2023:KHC:40890 CRL.P No. 1875 of 2017

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In that view of the matter, there is no error

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apparent on the face of the impugned order warranting interference at the hands of this Court.

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Hence, the petition is dismissed , subject to the observations contained herein below.

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The case is remitted back to the Trial Court which shall take fresh steps to take cognizance after complying with Section 190(1)(a) of Cr.P.C. in accordance with law.

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Sd/JUDGE

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List No.: 1 Sl No.: 27

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The Assistant Commissioner of Central Excise(Legal) v. M/S Anugraha Engineering

Case brief

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The Assistant Commissioner of Central Excise(Legal) v. M/S Anugraha Engineering

Case brief

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