1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1988 of 2010 Mahadeo Baburao Kale ..VERSUS.. Manohar Kondbaji Jadhao and another Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S.N.Bhattad, Advocate for the applicant Mr. Anand Deshpande, Advocate for Respondent no.1 Mr. N.V.Navlani, Advocate h/f Mr. Anand Parchure, Adv. for respondent no.2 CORAM : Prasanna B. Varale, J. DATED : 18 th Febru ary , 2011 . Heard. By the present application under Section 482 of the Code of Criminal Procedure, the applicant/accused is raising challenge to the order passed below Exh.100 by the learned Judicial Magistrate, First Class, Darwha, dated 15/9/2010, in a Summary Criminal Complaint Case No. 48/2002 (Manohar .vs. Mahadeo). A very short point is involved in the present application. A Criminal Complaint Case No. 48/2002 under Section 138 of the Negotiable instruments Act has been filed by the present non- applicant no.1/complainant against the present applicant/accused. In that case the present applicant/accused had moved an application under Section 311 of the Code of Criminal Procedure before the learned Magistrate, Darwha and following prayer was made : "By allowing the present application, issue witness summons to the Commissioner of Income Tax, Income Tax Department, Yavatmal or any other person who is in charge of the Income Tax files of Complainant to give in evidence Income Tax particulars of complainant for the assessment year 1998-99 to 2005-2006 in the interest of justice." 2 The learned Magistrate, by order dated 02/3/2010 allowed the application and thereby the summons was issued to the Commissioner of Income Tax, Income Tax Department, Yavatmal. The Income Tax officer, Ward (1), Yavatmal moved an application (Exh.100) before the learned Magistrate expressing his inability to produce the documents in view of the provisions of Income Tax Act therein claiming immunity by referring to the provisions of the Income Tax Act. The learned Magistrate, by order dated 15/9/2010 allowed the said application (Exh.100) by observing that the Commissioner of Income Tax is hereby discharged as witness. Being aggrieved by the said order, the present application is moved by the applicant/accused before this Court. Mr. Bhattad, learned Advocate for the applicant/accused submitted that the learned Magistrate, Darwha has grossly erred in allowing the application (Exh.100) in view of the Apex Court judgment in the case of M/s Dagi Ram Pindi Lall and another .vs. Tilok Chand Jain and others, reported in A.I.R. 1992 Supreme Court 990. It will be useful to refer the relevant paragraph 14 of the judgment, wherein it has been observed by the Apex Court that : "14. The finality which has been attached to the order of the Commissioner under Section 138(1)(b) of the Act is applicable only in cases where application is made to the Commissioner by a party or any other person for receiving documents or information. It has nothing to do with the powers of the Courts to summon the production of assessment record of an assessee, filed after 1/4/1964. The privilege as to secrecy, which the assessee had acquired under Section 54 of the 1922 Act remained unimpaired by the repeal of that Act or even by the omission of Section 137 of the 1961 Act in respect of record filed prior to 1/4/1964 and relating to the assessments prior to that date. That privilege did 3 not extend, after April 1, 1964, to record filed before the income-tax authorities, for the assessment years 1964-65 onwards. Section 6 of the General Clauses Act as well as Section 138(1)(b) of the 1961 Act cannot extend the ban on the exercise of the jurisdiction by the Courts to summon the production of documents from the income-tax authorities after April 1, 1964 relating to assessment year 1964-65 in respect of the record filed after April 1, 1964." In response to the notice issued by this Court, Mr. Parchure, learned Advocate for non-applicant no.2 has filed before the Court a Pursis dated 15/2/2011, which is signed by him and by the Income Tax Officer Ward (2). It is taken on record and marked as "X" for identification. Perused the pursis. It is stated in the pursis that there is no post as Commissioner of Income Tax, Yavatmal in existence and the said post is functioning at Nagpur only. It is further stated in the pursis on the instructions received from the department that the department is willing to furnish the relevant information relating to respondent no.1 before the learned J.M.F.C., Darwha and Income Tax Officer Ward (2), Yavatmal is authorized to depose on behalf of the Commissioner of Income Tax, Nagpur, if so directed by the J.M.F.C., Darwha. In view of the statement made in the pursis, learned Advocates appearing for the parties submit that the application can be disposed of finally. Mr. Deshpande, learned Advocate for non- applicant no.1 submits that the matter is pending before the learned Magistrate since 2002 and therefore, prayed for directing the learned trial court for expediting the matter. In view of the pursis filed by non-applicant no.2, the criminal application is disposed of in the following terms : 4 The order passed by the learned Judicial Magistrate, First Class, Darwha, dated 15/9/2010 in Summary Criminal Complaint Case No. 48/2002, is hereby quashed and set aside. In view of the fact that the matter is pending since long, I hope and trust that the learned Judicial Magistrate, First Class, Darwha shall endeavour to dispose of the Summary Criminal Complaint Case No. 48/2002 as early as possible and preferably within a period of six months from the date of receipt of the this order. JUDGE Diwale