TaxTMI 
TaxTMI 
2010 (8) TMI 664
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....was appointed as assistant foreman. In 1991 he filed a writ petition being C. O. No. 9954(W) of 1991 before the High Court of Calcutta seeking direction for considering his claim for promotion to the post of senior mechanic alleging that he was superseded by his juniors. On January 19, 1995, the respondent filed another writ petition praying for interim order restraining the appellants from filling up the post of assistant foreman. The High Court, in the said writ petition, directed for maintaining status quo. In June 1996, the respondent filed a contempt petition on the ground of violating the said status quo order by the appellants herein. In the said contempt petition, the High Court directed for personal appearance of the concerned officers of the company and ultimately after hearing them, dismissed the contempt petition. (b) On December 6, 2003, the respondent filed a private complaint being C/438 of 2003 before the Additional Chief Judicial Magistrate, Asansol under sections 461/468/406 read with section 120B of the IPC against the appellants herein alleging discrimination by unduly deducting Rs. 1,640 per month from the monthly salary as income-tax. It was also sta....
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....anjit Kumar, learned senior counsel for the appellants and Mr. Yashank Adhyaru, learned senior counsel for the respondent. 4. In order to test the claim of both the parties as well as the correctness of the impugned order of the High Court, it is useful to refer the details of the complaint dated December 6, 2003 filed by the respondent. He described himself as an employee of ME Steel, IISCO, Burnpur and he made the following officers as accused persons : 1. A. K. Jaiswas, EDI/C.Cum M.D. IISCO Ltd., Burnpur Works 2. Rajeswar Tiwari, GM (P&A) 3. Robin Roy, DGM (MM) SMS Deptt. 4. P. Karmakar, AGM (MM) SMS Deptt. 5. Sukumar Mukherjee, Manager Finance. 6. Shivaji Roy, DGM (PL) 7. Tarit Pal, GM (IS) 5. All are of IISCO Burnpur, PS Hirapur Distt. (Burdwan) In the complaint, he mentioned about the filing of writ petition in 1991 before the High Court of Calcutta and the order passed therein in 2003. He also referred to his contempt petition before the High Court. He alleged that due to the direction of the High Court, which was issued at his instance, the above-said officers entered into a criminal c....
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....hough the High Court has permitted to take action against him according to law, the management did not take any action against him. He also pointed out that in view of the statutory provisions of the Income-tax Act, particularly, sections 192, 200, 206, 271C, 276B and 276BB, like other employees, the respondent was liable to pay income-tax and the appellant as an employer statutorily bound to deduct an amount from his salary as per the above provisions. Whatever may be, inasmuch as the appellants have performed their statutory obligation, it is not a case for adjudication by the magistrate on criminal side. He further contended that the High Court also failed to exercise its jurisdiction under section 482 for quashing the summoning order. On the other hand, Mr. Yashank Adhyaru supported the order of the magistrate based on the complaint of the respondent and also submitted that the High Court has not committed any wrong in rejecting the petition under section 482 of the Code. 8. At the relevant time, i.e., on December 6, 2003, when the respondent made a complaint to the magistrate, he was an employee of IISCO, Burnpur. There is no dispute about the same. 9. Chap....
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....rified in such manner and setting forth such particulars as may be prescribed :" 12. Section 271C deals with penalty for failure to deduct tax at source."271C. (1) If any person fails to- (a) deduct the whole or any part of the tax as required by or under the provisions of Chapter XVII-B ; or (b) pay the whole or any part of the tax as required by or under,- (i) sub-section (2) of section 115-O; or (ii) the second proviso to section 194B, then, such person shall be liable to pay, by way of penalty, a sum equal to the amount of tax which such person failed to deduct or pay as aforesaid." 13. Sections 276B and 276BB speaks about failure to pay tax to the credit of the Central Government and failure to pay the tax collected at source. "276B. If a person fails to pay to the credit of the Central Government,- (a) the tax deducted at source by him as required by or under the provisions of Chapter XVII-B ; or (b) the tax payable by him, as required by or under,- (i) sub-section (2) of section 115-O ; or (ii) the second proviso to section 194B, he shall be punishable with rigorous impriso....
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....corded statements of IISCO officials, perused the documents concerned and also noted that the tax was deducted as per their company norms. After making such a note, the SI, Hirapur, has concluded that "the matter is civil in nature" and forwarded the same to the Additional Chief Judicial Magistrate with a request to clarify the same. On the basis of the said report, by order dated January 31, 2005, the Additional Chief Judicial Magistrate, after recording the stand of the complainant about illegal deduction of Rs. 1,640 per month from his salary as income-tax and the same had not been deposited by the accused persons to the income-tax authority month by month, has concluded "on perusal of the same, it appears to me that there is sufficient ground for proceeding against the accused persons under section 406/120B IPC." First of all, it is not clear how the Additional Chief Judicial Magistrate has concluded that "there is sufficient ground for proceeding against the accused under section 406/120B, IPC", more particularly, when the inquiry report by the SI, Hirapur, shows that the issue raised in the complaint is civil in nature. 17. We have already adverted to the relevant provisio....
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....ion and quash the same. 20. Contours of the power under section 482, CrPC, have been explained in a series of decisions by this court. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi [1976] 3 SCC 736, it was held that the magistrate while issuing process against the accused should satisfy himself as to whether the allegations in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of the magistrate issuing process against the accused could be quashed under the following circumstances* : "(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused ; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused ; (3) where the discretion exercised by the magistrate in issuing process is capricious and....
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....ction 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 24. In Alpic Finance Ltd. v. P. Sadasivan [2001] 3 SCC 513, this court reiterated that the complaint must disclose essential ingredients of the offence. After adverting to Smt. Nagawwa [1976] 3 SCC 736 and State of Haryana v. Bhajan Lal [1992] Supp 1 SCC 335, and after finding that in the complaint there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property, it is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception, upheld the order of the High Court quashed the proceedings and dismissed the appeal. 25. In Indian Oil Corporation v. NEPC India Ltd. [2006] 6 SCC 736, 748 the following paragraphs are relevant : "13. While on this issue, it is necessary to ta....