Petition filed under Section 482 CrPC to quash a complaint alleging misuse of TIN for tax violations and cheating. Court held no prima facie evidence of offence exists based on police report and available records. Complaint quashed against petitioner.
Annexure-1 complaint and C.C. No. 384/2015 stand quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 16TH DAY OF AUGUST 2023 / 25TH SRAVANA, 1945
CRL.MC NO. 3615 OF 2016
AGAINST THE ORDER/JUDGMENT CC 384/2015 OF JUDICIAL MAGISTRATE OF FIRST
CLASS ,VADAKARA
PETITIONER/S:
A.M.ANANTHA RAJ
S/O.KUNHI KANNAN, AMRITH, NARAYANA NAGARAM, VATAKARA, PIN-673 103.
(PARTNER VATAKARA SOWMILL, VATAKARA VALIYA VALLAP, V.V.ROAD,
THAZANGADI, VATAKARA)
BY ADVS.
SRI.K.RAKESH ROSHAN
SMT.THUSHARA.V
RESPONDENT/S:
1M.MUHAMMED NAZEEM
AGED 51 YEARS
AGED 51 YEARS, S/O.S.V.MUHAMMED KOYA, RESIDING AT 14/349, SAJITHA
MANZIL, NEAR KUNDUNGAL POST OFFICE, WEST KALLAI, KOZHIKODE
DISTRICT, PIN-673 003, (WITHIN THE LIMITS OF CHEMMANGAD POLICE
STATION)
2STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-
31.
BY ADVS.
SRI.NIRMAL. S
SMT.VEENA HARI
OTHER PRESENT:
SR PP P G MANU
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 16.08.2023, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
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O R D E R
Dated this the 16th day of August, 2023
This Criminal Miscellaneous Case has been filed under
Section 482 of the Code of Criminal Procedure and the prayer in this petition is to quash Annexure-1 complaint now pending as C.C.No. 384/2015 on the files of the Judicial First Class Magistrate’s Court, Vatakara as against the petitioner herein, who is the 1st accused in the said crime.
The 1st respondent herein filed complaint before the Judicial
First Class Magistrate’s Court, Vatakara, vide CMP No. 1699/2012 on the allegation that accused Nos. 1 and 2 in the complaint committed offences punishable under Sections 120(B), 420, 463, 464, 465, 468, 469 read with 34 of the IPC and the specific allegation was that the 1st accused at the connivance of
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the 2nd accused, misused the Taxpayer Identification Number (hereinafter referred to as ‘TIN’) allotted to the complaint while uploading the monthly returns of the 2nd accused and thereby made it appear that the said purchase of timber was done by the complainant. The complaint was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure and after a detailed investigation, the police filed Annexure-2(a) report, finding that the allegation of misuse of TIN, belonged to the complainant for the purpose of the timber sale was false, and the complainant himself purchased timber from M.K.V. Kandaswamy Nadar for which he was directed to pay the tax assessed and later reduced to the tune of Rs.5,07,690/-. It is further submitted that the complaint was filed when he was directed to pay Rs.5,07,690/- (Rupees five lakh seven thousand six hundred and ninety only), being reduced amount to close the tax liability, with a view to delay the said payment. Thereafter, a protest complaint was filed before the court reiterating the allegations, and the court below recorded the
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sworn statements of the complainant and one witness.
Cognizance for the said offences was taken acting on the complaint and the sworn statement.
police filed refer charge after investigation of the matter. Therefore, the court below wrongly took cognizance in this matter. Since the allegation in the complaint is not supported by any materials, the complaint is liable to be quashed.
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with the said M.K.V. Kandaswamy Nadar and the 1st and 2nd accused hatched conspiracy and forged records and thereby the tax invoices were issued in the name of the complainant and therefore, the offences are well made out. Therefore, the matter shall go for trial is the submission of the learned counsel appearing for the 1st respondent.
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Assistant Commissioner also Muhammed Nazeem took a
contention that he had no business transaction with M.K.V. Kandaswamy Nadar. At the time of Annexure-3 proceedings, the tax authorities have given opportunity to M.K.V. Kandaswamy Nadar, Timber Merchants, Punalur to rectify the defect, if any, while uploading the returns which they had received on 31.10.2011. But, the same was not reckoned as a mistake by M.K.V. Kandaswamy Nadar and he stuck on its accuracy; thereby the contention of the 1st respondent in this regard was found against. The said order depicts that Muhammed Nazeem raised a contention therein that, if at all, the complainant had purchased timber from M.K.V. Kandaswamy Nadar, M.K.V. Kandaswamy Nadar might have paid in respect of the timber transport and therefore, input tax credit to that extent had to be allowed in respect of the turnover estimate on the presumption that the complainant had purchased timber from M.K.V. Kandaswamy Nadar.
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learned Magistrate while taking cognizance for the offences punishable under Sections 120(B), 420, 463, 464, 465, 468, 469 read with 34 of the IPC, in fact, nothing could be gathered from the sworn statements to establish, prima facie, to find commission of the above offences. No documents also produced to establish commission of the said offences. It is relevant to refer Annexure R1(d)/2, order in O.T.R. No. 115/2017 dated 10.08.2017. As per Annexure R1(d)/2 the complainant raised challenge as regards the monthly returns of the complainant for the month of April, May, June, and July 2011, but the challenge was negatived by the Division Bench of this court, holding that the said challenge is meritless and thus unsustainable. However, it has been observed as per Annexure R1(d)/4 that if the assessee had any factual records available to prove his contentions, it was up to him to take them up before the Tribunal and proceed in accordance with law. Even though the learned counsel appearing for the 1st respondent submitted that the matter has been pending before the Tribunal, no records are available before this court to see the
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proceedings before the Tribunal.
In the result, the Criminal Miscellaneous Case stands allowed and Annexure-1 complaint and CC No. 384/2015 on the files of
the Judicial First Class Magistrate’s Court, Vatakara as against the petitioner stands quashed.
Sd/-
A. BADHARUDEEN JUDGE
RMV
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APPENDIX OF CRL.MC 3615/2016
PETITIONER ANNEXURES |
|
|---|---|
ANNEXURE 1 : |
CERTIFIED COPY OF THE COMPLAINT FILED BY THE 1STRESPONDENT AS COMPLAINANT BEFORE THE JUDICIAL FIRSTCLASS MAGISTRATE COURT, VATAKARA NOW PENDING AGAINSTTHE PETITIONER AS CC NO.384/2015. |
ANNEXURE 2 : |
TRUE COPY OF THE FIR CRIME NO.245/2012 OF VATAKARAPOLICE WITH FIS (THE COMPLAINT FORWARDED FROM JFCMVATAKARA IN CMP NO.1699/2012) |
ANNEXURE 2(A) : |
TRUE COPY OF THE FINAL REPORT FILED BY THE VATAKARAPOLICE STATION IN CRIME NO.246/2012 (OF RELEVANTPAGES) |
ANNEXURE 3 : |
TRUE COPY OF THE ASSESSMENT ORDER OF THE ASST.COMMISSIONER, COMMERCIAL TAXES, KOZHIKODE DATED 15-2-2012, RELATING TO THE 1ST RESPONDENT. |
ANNEXURE 4 : |
TRUE COPY OF THE STATEMENT OF 2ND ACCUSED RECORDEDBY POLICE DURING INVESTIGATION ON ANNEXURE 2. |
RESPONDENTS' EXHIBITS:NIL
TRUE COPY
P.A.TO JUDGE
3 issues framed by the court
Whether the complaint, based on alleged misuse of Taxpayer Identification Number triggering tax misconduct, warrants quashing under Section 482 CrPC due to lack of prima facie evidence of criminal con
Whether the materials placed on record by the police and tax authorities demonstrate that the first accused utilized the complainant's TIN to commit cheating offences.
Whether cognizance of the offences against the petitioner can be sustained in absence of documentary proof linking the accused to the alleged fraudulent transactions.
2 provisions across 2 enactments
A.M. ANANTHA RAJ
M.M. MUHAMMED NAZEEM
STATE OF KERALA
A. BADHARUDEEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court