Decided on January 11,1978



DAS, J. - (1.) THE petitioner has been convicted under S.25(1) (g) of the Orissa ST Act, 1947 and has been sentenced to simple imprisonment for five months and to pay a fine of Rs. 500/ - in default to undergo simple imprisonment for a further period of fifteen days.
(2.) PROSECUTION case is that the petitioner is the proprietor of a firm at Malgodown Cuttack which was registered under s.9 of the Orissa ST Act, 1947 as well as the rules thereunder. He submitted his returns along with list of registered dealers and declarations during the years 1971 -72, 1972 -73 and 1973 -74 claiming deductions from the sales tax payable on account of various sales tax payable on account of various sales under s.5(2)(A)(a)(ii) of the Act. Assessment was completed on 26th Sept., 1974. During enquiries made by the STO, it was detected that the information furnished and the return submitted by the petitioner for those years were false and he had claimed deductions from sales tax by showing the fictitious names of different firms, said to have purchased several goods and thereby avoided to pay a sizable sum as sales tax to Government. The defence plea is one of complete denial and it is further pleaded that the information list of registered dealers and declarations furnished by the petitioner were true and the firms named therein are not fictitious, as alleged and has committed no offence. Both the Courts below have held that the names of the firms given by the petitioner are fictitious and have convicted him. Mr. Pasayat, the learned counsel for the petitioner, raises the question that congnizance has been taken after one year of the alleged commission of the offence and, as such, the case is barred by limitation, as provided under s.468 of the Code of Criminal procedure. The provisions of that section are to the effect that no Court shall take cognizance of an offence categorized therein after expiry of the period of limitation. According to Sub -S. 2(b) of the aforesaid section, the period of limitation shall be one year, if the offence is punishable with imprisonment for a term not exceeding one year. It is not disputed that the offence alleged in this case comes under this cl. And cognizance cannot be taken in this case after expiry of one year. Sec. 469 Cr. P.C. provides the periods of commencement of limitation and three categories have been mentioned therein. Mr. Pasayat contends that the period of returns ranges from 1971 -72 to 1973 -74 and the transactions are between 23rd October, 1971 and 9th Feb. 1973. The complaint has been filed on 13th June 1975. He further contends that sanction by the STO was accorded on 7th Dec., 1974 and that by the CST on 6th Jan, 1975. He then contends that the date of knowledge, according to the petitioner, is 22nd Nov., 1973, i.e. the date of knowledge of the STO Accordingly, he contends that the entire case is not entertainable and the conviction is bad in law.
(3.) THE learned Additional Standing Counsel entertained that such a contention cannot be entertained as the same has not been raised anywhere in the Courts below. In my view, this is a point of law which basically affects the case. If the case is barred by limitation, the conviction cannot be sustained. It is, therefore, necessary that this question should be decided. The learned Courts below have not considered this aspect which has a material bearing on the case. For coming to the conclusion on this point, certain factual aspects are to be taken into consideration by the Court. In view of the aforesaid circumstances, it is necessary that the case should be remanded to the trial Court for considering the aforesaid aspect. The trial Court will not allow the parties to lead any fresh evidence.;

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