1 225309 IN THE HIGH COURT OF JUDICATURE AT BOMBAY vgm CRIMINAL APELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2253 OF 2009 Pravin Tarachand Agarwal ...Petitioner V/s. The State of Maharashtra & Anr. ...Respondents Mr. A.M. Saraogi for the Petitioner Mr. V.B. Konde-Deshmukh, A.P.P., for the State Mr. M.B. Avhad, D.C., Mr. S. Patil, D.C., and Mr. Vilas B. Patil, Joint Commissioner of Sales Tax (Enforcement), present CORAM: A.M. KHANWILKAR AND R.G. KETKAR, JJ. DATE: DECEMBER 8, 2011 P.C.:- Broadly, four points have been raised before us for quashing of the F.I.R. The first contention is that the Company, which has allegedly committed offence, has not been named as accused. It is the Directors of the said Company, who are being proceeded against, without the principal offender being brought to book. The second point raised before us is that the local police has no authority to register the F.I.R. or 2 225309 to investigate the matter pertaining to offence under the provisions of the Maharashtra Value Added Tax Act, 2002 (hereinafter referred to as “the said Act”, for short). The third point raised is that, as per Section 78 of the said Act, the offence under Section 74, for which, the petitioner is being proceeded is a compoundable offence. The Company as well as the petitioner is pursuing the matter with the Sales Tax Department in that behalf. The last contention is that, in absence of assessment to be done by the Sales Tax Department, the question of assuming that the accused persons are responsible for furnishing false returns or producing false bill, cash memorandum, voucher, declaration, certificate or other documents does not arise. 2. As regards the first point, the learned A.P.P., on instructions of the Investigating Officer as well as the officers and Joint Commissioner of the Sales Tax Department, states that the F.I.R. discloses case of offence committed by the Company by name Red Star Trading Co. Pvt. Ltd., and the petitioner, being the Director of the said Company, will also be vicariously responsible on account of Section 75 of the Act. Nevertheless, the Sales Tax Department, which is the complainant, and the local police, who has registered the F.I.R., have decided to name the Company as accused in the impugned F.I.R. No. 2 3 225309 of 2009, dated 26th June, 2009, registered with Lokmanya Tilak Marg Police Station, Mumbai. This assurance is accepted. Necessary steps in that behalf be taken forthwith, which would redress the grievance made by the petitioner before this Court that the criminal case cannot proceed against the conspirator, leaving out the principal offender. 3. As regards the second contention that the local police has had no authority to register the F.I.R. in question and to proceed with the investigation, to buttress this contention, reliance is placed on Section 77 of the Act. Section 77 is not a provision expressly excluding the authority of the local police from proceeding in the matter, if cognizable offence is disclosed by way of written or oral complaint filed before it. Section 77, on the other hand, is only an enabling provision, on the basis of which, the Commissioner can authorise, either generally or in respect of a particular case or class of cases any officer or person subordinate to him to investigate all or any of the offences punishable under the Act. The learned A.P.P., on instructions, states that the investigation of the case has now been entrusted to Crime Branch of the Sales Tax Unit, Mumbai. In any case, in the present matter, admittedly, complaint was filed by the authorised officer of the Sales Tax Department in the local police station alleging loss caused to the State Exchequer to the extent of 4 225309 Rs. 22.61 crores due to the acts of commission and omission of the accused persons. On receipt of such complaint, the local police was under obligation, by virtue of Section 154 of the Criminal Procedure Code, to register that as F.I.R. It could have proceeded in the matter in accordance with law, but now, the investigation of the case is entrusted to Crime Branch of the Sales Tax Unit, Mumbai. Therefore, we are not impressed by the argument of the petitioner under consideration. 4. The next argument canvassed by the petitioner is that the offence is compoundable, in view of Section 78 of the Act. The fact that the offence is compoundable presupposes that the offence has been committed by the accused persons. At the stage of registration of F.I.R., it is not open to the police to examine the genuineness and correctness of the complaint as made. In any case, the F.I.R. cannot be quashed merely because the offence in question is compoundable by virtue of Section 78 of the Act. In the circumstances, even this submission does not commend to us. 5. The next argument of the petitioner is that, in absence of any concluded assessment, it is not possible to assume that the petitioner or the accused persons named in the F.I.R. have committed any offence, 5 225309 much less under Section 74 of the Act. Even this submission is devoid of merits. The F.I.R. is in respect of acts of commission and omission of Company creating documents, such as false and fabricated bills, which was nothing but hawala sales, thus causing loss to the State Exchequer to the extent of Rs.22.61 crores. Whether that allegation is true or false, is a matter for investigation. The fact that assessment orders have still not been passed, cannot be the basis to quash the F.I.R. The allegation in the F.I.R. has nothing to do with the proposed assessment proceedings. 6. At the same time, we are of the opinion that there was no tangible reason for the officers of the Sales Tax Department to not proceed against the petitioner and conclude the assessment proceedings, even though the claim against the accused named in the F.I.R. is a substantial one, to the extent of Rs. 22.61 crores. In our opinion, the fact of pendency of assessment proceedings will be of no avail to the petitioner, and cannot be the basis to quash the F.I.R. as registered. 7. In view of the observations made earlier, the counsel appearing for the petitioner submits that, in that case, the petitioner will not press this petition, with liberty to pursue other remedies before the 6 225309 concerned Court after the filing of the charge-sheet by the Investigating Officer. We would accede to this request of the petitioner. 8. At this stage, the counsel for the petitioner submits that, after the Company is joined as accused, and, if there are other contentions available to the petitioner or the Company, those questions may be kept open, with liberty to the petitioner, as well as the Company, to approach this Court afresh for the same relief of quashing of F.I.R. As regards the petitioner, we have no hesitation in taking the view that the petitioner, once having availed of remedy of quashing of F.I.R. by way of the present petition, cannot be allowed to, once again, approach this Court for the same relief by filing successive petitions. The fact that some new accused has been named in connection with the pending criminal case, cannot give rise to the new cause of action to the petitioner for filing petition for similar relief which has already been rejected. Hence, this request cannot be accepted. 9. We, however, make it clear that any observation made in this order is only for the limited purpose of considering the prayer for quashing of F.I.R. and is not a final opinion on merits of the case, which is pending investigation or trial, as the case may be. All questions are 7 225309 left open. The ad-interim relief granted in this petition is vacated forthwith. 10. While parting, we place on record our concern about the laxity of the State Sales Tax Department in not expediting the assessment proceedings against the Company and related persons. 11. We also make it clear that it will be open to the Investigating Officer to consider of making all the companies, which are the beneficiaries of the transaction in question, and not limited to Red Star Trading Co. Pvt. Ltd., as accused. That decision will have to be taken by the Investigating Officer on the basis of material as would be collected from the investigation. 12. This petition is allowed to be withdrawn with the abovesaid observations. R.G. KETKAR, J. A.M. KHANWILKAR, J.