Y.R.Meena, J. - (1.) BY this petition, the petitioners have prayed that the criminal proceedings in consequence of complaint No. 59 of 1987 filed by the Income-tax Officer, "A" Ward, Bikaner, be quashed.
(2.) INCOME-tax Officer, "A" Ward, Bikaner, has filed a complaint against the accused petitioners in the year 1987 in the Court of the Chief Judicial Magistrate (Economic Offences), Rajasthan, Jaipur, stating therein that petitioner No. 1 is the partnership firm and petitioners Nos. 2 to 9 are its partners and they are carrying on the business in the name of a firm, Messrs. Rajasthan Wool Processors at Bikaner. During the assessment year 1983-84, the abovementioned firm had submitted its income-tax return on March 3, 1984, stating therein that the income of the firm was Rs. 364. On perusal of the income-tax return, it is found that the firm had paid Rs. 1,34,993 as interest on the loans taken from the various parties. Section 194A of the Income-tax Act requires that when the payment of interest is more than one thousand then it is obligatory on the petitioner to deduct ten per cent. amount of the interest as income-tax payable by the creditors. In this case, the petitioners have deducted the interest of Rs. 13,500 as required under Section 194A of the Income-tax Act, but failed to deposit that amount in the account of the Central Government within two months from the date of deduction and thereby they have committed the offence under Section 276B read with Section 278B of the Income-tax Act. Cognizance has been taken on the complaint filed by the Department, in the Court of the Chief Judicial Magistrate (Economic Offences), Rajasthan, Jaipur, and on the material on record, he took cognizance, vide impugned order dated September 18, 1990. Not only that, two witnesses, viz., Mr. S.L. Sabbarwal, P. W.-1 and Govind Ram Calla, P. W.-2, have also been examined by the Department. Being dissatisfied with that order of cognizance, the petitioners have filed this petition under Section 482, Criminal Procedure Code, and also prayed that proceedings be quashed. Heard learned counsel for the petitioners, Mr. R.K. Jain, and learned standing counsel for the Income-tax Department, Mr. K.N. Garg. The impugned order was passed as far back as in September, 1990, and the petitioners have filed this petition in May, 1993, i.e., more than 21/2 years from the date of the impugned order and even the petitioners have not filed the revision petition under Section 397, Criminal Procedure Code, but preferred to file a petition under Section 482, Criminal Procedure Code, just to avoid the explanation regarding delay in filing the petition against the impugned order. At the stage of cognizance, the court has to consider only whether any case is made out on the face of the record. The trial court is fully justified in taking cognizance. In Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366, 369; [1979] 2 SCR 229, at pages 234-235, their Lordships laid down the principles which is to be kept in mind for framing the charge : "(1) That the judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the judge is satisfied that the evidence produced before him will giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code, the judge who under the present Code is a senior and experienced judge, cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he were conducting a trial."
(3.) IN Amar Chand Agarwala v. Shanti Bose, AIR 1973 SC 799, 804 ; [1973] Cr. L. J. 577, their Lordships have observed in paragraph 20 as under : "The jurisdiction of the High Court is to be exercised normally under Section 439, Criminal Procedure Code, 1898, only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice." Considering the facts of this case that the petitioners have deducted ten per cent. of interest payable to various creditors, i.e., Rs. 13,500, which has to be deposited within a particular period in the account of the Central Government but the petitioners have failed to deposit that amount in the account of the Central Government and for that no bona fides have been shown or any reasonable explanation has been brought to my notice. Further, not only the charge has been framed in this case, but the statements of the two witnesses have also been recorded. Considering this fact as stated above, I am not inclined to interfere with the impugned order dated September 18, 1990, nor is there any justification to quash the proceedings on the facts given above. Learned counsel for the petitioner has also submitted that in the case of some sleeping partners, there was no justification for framing charges. Therefore, at least the proceedings be quashed qua the sleeping partners. This issue has not been considered by the trial court and when two prosecution witnesses have also been examined, I do not find any justification to make an investigation in a petition under Section 482, Criminal Procedure Code, and give a finding who is the sleeping partner. Therefore, on that account also, I do not find any justification to interfere with the impugned order as well as no justification to quash the proceedings. However, this objection can be raised and argued at the time of final decision on the complaint filed by the Department. ;