Decided on August 13,1968



- (1.) I am afraid that both the lower courts have erred in convicting and sentencing the petitioner under S.174 of the Penal Code.
(2.) P. W. 1, a Sales Tax Officer, inspected the shop of the petitioner and saw some of his accounts. The officer felt that the accounts were not properly and truly maintained; and therefore, he issued a notice, Ex. P2, calling upon the petitioner to appear in person on a particular day and to express his willingness or otherwise for compounding. The petitioner did not appear, but sent an explanation Some correspondence followed; and ultimately, the Sales Tax Officer issued Ex. P7 calling upon the petitioner to appear before him for an enquiry which he proposed to conduct to find out whether the accounts were true or not. The petitioner failed to appear; and for such failure to appear he was prosecuted under S.174 of the Penal Code. Mr. N. K. Sreedharan, the counsel of the petitioner, argues that no enquiry as proposed by the Sales Tax Officer to find out whether the accounts were true or not before prosecuting the petitioner under S.46(c) is contemplated by the Sales Tax Act. The counsel contends further that the Sales Tax Officer had therefore no authority to call upon the petitioner to appear personally before him under S.28 of the Act for an enquiry like this. This is not an enquiry in connection with an assessment relating to escape of income, etc., and therefore, S.28 of the Sales Tax Act cannot come into play in this case. But the lower courts say that the principles of natural justice require that before the Sales Tax Officer launched a prosecution, he should satisfy himself whether prima facie there are grounds for the offence, and therefore, a notice issued for this purpose cannot be said to be for a purpose beyond the scope of the Act. Firstly, does natural justice require that the Sales Tax Officer should satisfy himself by such an enquiry before a prosecution is launched What natural justice may require, if at all, is that if the petitioner is prosecuted, he must be given an opportunity to explain before he is prosecuted. And that requirement is satisfied when the notice is served on the petitioner; and the Sales Tax Officer need not go further and insist on the petitioner's personal appearance to prosecute him. If a prosecution is launched without an enquiry as proposed by the Sales Tax Officer in this case, I do not think any court will say that the prosecution is bad because of the absence of the enquiry. Secondly, if the enquiry is not contemplated by the Act, is the petitioner bound to assist the Sales Tax Officer in collecting material for the prosecution Obviously not. Pressing into service natural justice in a case like this is thoroughly out of place.
(3.) Under S.46(c), the Sales Tax Officer could have prosecuted the petitioner for maintaining false accounts; and the petitioner would have met the prosecution I have looked into Exx. P2 to P7. The Sales Tax Officer has asked the petitioner even in Ex. P2 to appear personally and state unequivocally whether he was willing to compound: why a personal appearance at that stage Would it not have been sufficient if the petitioner sent his willingness to compound instead of appearing in person . What Exx. P2 to P7 have revealed is that the Sales Tax Officer was unnecessarily insisting on the petitioner's personal appearance. In my opinion, this was not a case in which the Sales Tax Officer should have insisted on the personal appearance of the petitioner. Responsible officers should not use the power vested in them by law out of its proper place; and if it is used out of place; it is even likely to be a misuse of the power. A prosecution like this should not have also been launched.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.