1 S.B.Cr.Misc.Petition No.637/05 S. B. CRIMINAL MISC. PETITION NO.637/05 GEHARI LAL CHOUDHARY & OTHERS V. UNION OF INDIA & OTHERS. DATE OF ORDER ::: 09/11/2009 HON'BLE MR. C. M. TOTLA, J. Mr. K.K.Shah, for Petitioner (s). Mr. M.S.Shekh, for Respondents. Respondent No.3 is not served. Learned counsel for the petitioners submits that respondent No.3 – the then Director of the firm, is a formal party and in addition has resigned from directorship so service to him is not necessary. Learned counsel for respondent No.1 submits that department has not even filed any complaint against R3 who is unnecessarily made a party. In view of the above submission, no necessity appears for specific service of R3. Both the learned counsel submit that this petition under Section 482 Cr.P.C. can be decided at this stage of stay itself. Arguments heard. Alleged facts very briefly are that respondent No.1 IT department lodged a criminal complaint against petitioners and company for violation of provisions of IT Act. Learned Magistrate taking cognizance vide order dated 10.9.04 registered criminal case for the offences of Sections 276 and 278 IT Act and issued warrants. This petition submitted in May, 05, requests quashing of above cognizance and proceedings. Learned counsel for the petitioners argues that following assessment order Annex.6 dated 29.4.03, then demand notice Annex.7 dated 22.3.04 and ultimately per order of Commissioner of Income Tax dated 27.7.04 Annex.8 this complaint was lodged and now the above order of the learned Commissioner is set aside by Income Tax Appellate 2 S.B.Cr.Misc.Petition No.637/05 Tribunal vide judgment dated 29.1.09 passed in IT assesse No.11- 12/2005 and since order is set aside, the very basis of the complaint do no longer exist and proceedings should be ordered to be quashed. Learned counsel for respondent No.1 argues that (1) against the order impugned, the revision could have been preferred before the Sessions Court and petitioner not doing so, so this petition under Section 482 Cr.P.C. is not maintainable – established is this principle. (2) The effect of above order of 29.1.09 is not to be examined in this petition, and at this stage-and that submissions on basis of it are to be and can be made before the trial Court. (3) Petitioner preferred revision against the same order and this Court decided that revision No.889/04 regarding this cognizance order on 10.9.05.Therefore, this petition cannot be maintainable. Regarding above last submission, learned counsel for petitioner that the order in criminal revision No.889/04 dated 3.12.04 does bar this petition and this petition is for quashing the entire proceedings. Also submitted that no useful purpose is to be served now by directing to prefer revision. Thoughtfully considering arguments, perused earlier order and record. Before this Court S. B. Criminal Revision Petition No.889/04 was regarding this very challenged order dated 10.9.04 and the Court deciding observed “ learned counsel for the petitioner submits that petitioner does not want to challenge order dated 10.9.04 passed by the trial Court where by trial Court took the cognizance of the offence against the petitioner.” Grievance of the petitioners remains that instead of summoning them by non-bailable warrant, they may be summoned by bailable warrant. As above, regarding this impugned order dated 10.9.04, specific is the order – as such the contention raised by the defendant is of strength. Moreover, order is that of the Magisterial court against which revision can be preferred before the Sessions Court. Mentioned order of 29.1.09 is 3 S.B.Cr.Misc.Petition No.637/05 much after cognizance order and presentation of this petition. Regarding effect of this order, if any, petitioners can raise their objections before courts below and then obviously are at liberty to pursue legal remedies as may be available. In above view of the matter, the petition is not acceptable, the same is rejected with the observations that petitioners can raise all the objections before the trial Court or by way of revision before the Sessions Court per law. There will be no effect of this order on proceeding. Record be sent back. Accordingly decided. (C. M. TOTLA), J. scd