IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34613 of 2008 1. Pawan Kumar Rajgarhia alias Pawan Rajgarhia, son of Deep Chand Rajgarhia, Director of M/s. Maa Annapurnna Transport Agency Private Limited, Branch Office Rambagh, Jhauganj, PS Chowk, Patna City, Dist. Patna. 2. Pawan Kumar Dhanuka, son of Late Damodar Prasad Dhanuka, Branch Manager, Patna City Branch, Mohalla Rambagh Jhauganj, PS Chowk, district Patna – petitioners. Vs. 1. The State of Bihar, 2. Prabhat Kumar Sharan, Commercial Taxes Officer Investigation Bureau (Head Quarter), Bihar, New Secretariat, Patna – opp. parties. … For the petitioners : Mr. N.K. Agrawal, Senior Advocate and Mr. Rabindra Prasad Advocate. For the State : Mr. Jharkhandi Upadhyay, A. P. P. For opposite party no.2 : Mr. Ajay Kumar Sharma, Advocate. … 4 30.3.2010 Heard learned counsel for the parties. This application has been filed for quashing the entire criminal proceeding including the order taking cognizance, dated 8.4.2008 passed by the Additional Chief Judicial Magistrate, patna City in Chowk PS Case No. 38/2004. Two points have been raised on behalf of the petitioners in this application under section 482 of the Code of Criminal Procedure. The first question is whether the petitioners being Director and Branch Manager of M/s. Maa Annapurnna Transport Agency Private Limited, Rambagh, Jhauganj, patna City can be prosecuted under section 49 of the Bihar Finance Act, 1981. This question is covered by a decision of this court in the case of Sri Ramesh Prasad Singh vs. State of Bihar, 2007 (1) PLJR 688. This court has held that without valid sanction for taking cognizance of an offence committed under the Bihar Finance Act as required under section 49(5) of the said Act, the court cannot proceed and take cognizance of an offence under the aforesaid section. The second question that has been raised 2 on behalf of the petitioners is that there is a bar under section 468 of the Cr. P. C. in taking cognizance after expiry of the period of limitation. Section 468 Cr. P. C. provides that no court shall take cognizance of an offence of the category described under sub-section (2) after the expiry of period of limitation. Sub-section 2© reads as follows : “© three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. “ Section 469 of the Cr. P. C. deals with the period of limitation with respect to the offence in question. Sub-section (1) (a) of section 469 specifies that the period of limitation would be counted on the day on which the offence is committed. In the facts of this case the date of occurrence is 25.2.2004 and the cognizance for the offence has been taken on 8.4.2008 after a period of four years. In the circumstances this case would be covered by sections 468 and 469 of the Cr.P.C. As such the order taking cognizance will have to be quashed on this ground as well. Ordinarily the court would have given leave to the opposite party to correct the order of sanction if they were so advised but in the present case since the period of limitation for taking cognizance has expired, it would not be proper for this court to give such a direction. Accordingly, I hold that no offence is made out under section 49 of the Bihar Finance Act. The order of cognizance discloses that cognizance has 3 also been taken under sections 420, 467, 468 and 120B of the Penal Code. Learned counsel for the petitioners submits that the offence alleged in the F.I.R. itself would disclose that there was a recovery of items from the truck belonging to the petitioners. However, the truck was transporting the goods on behalf of the owner whose name has not been mentioned in the F.I.R. or in fact in the subsequent investigation. It is not a case of the prosecution that the petitioners were the owners of the goods so recovered, and this aspect of the matter would need to be proved by the prosecution or by the Sales tax authorities in an assessment proceeding. The question that arises is that would an offence which is directly covered by a special Act i.e. Bihar Finance Act, 1981 attract the provisions of the Penal Code as well. Section 33 of the Bihar Finance Act deals with the procedure to be adopted by the authorities for inspection and seizure of accounts, documents and goods and search of premises. Sub-section (3) of section 33 of the Bihar Finance Act provides : “(3) If any authority appointed under sub-section (1) or Section 9 has reason to suspect that any dealer is attempting to evade the payment of any tax, or any clearing or forwarding agent or a person transporting goods or owner of a warehouse or a godown is keeping or has kept his accounts in such a manner as is likely to cause evasion of tax payable under this part, such authority may, for reasons to be recorded in writing, seize such accounts, registers or documents of the dealer or the clearing or forwarding agent or the person transporting or the owner of a warehouse, or godown as may be necessary and shall grant a receipt for the same; such seized accounts, registers or documents shall be retained for so long as may be reasonably necessary for examination thereof or for a prosecution under Section 49 and shall thereafter be returned to the dealer in the prescribed manner : “Provided that if the seized accounts, registers or documents are retained by any authority other than the Commissioner for more than one hundred and twenty days, the reasons for doing so shall be recorded in writing and the approval of the Commissioner 4 obtained by the authority for retaining them.” It is, thus, clear that any evasion of tax whether it be by an agent or a person transporting goods or by an owner of a warehouse or a godown is an offence under section 49 of the Bihar Finance Act and the offender would be dealt with by the provisions of section 49 of the aforesaid Act. Likewise section 49 describes the penalties and the offence for which the accused person would be prosecuted or tried and specifies the punishments to be awarded to such persons. In the circumstances it cannot be said that sections 420, 467, 468 and 120B of the Penal Code would be attracted in this case. The definition of cheating would suggest that there should be an dishonest intention to induce a person to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security. These allegations are not prima facie present in the F.I.R. Similarly sections 467 and 468 of the Penal Code are not attracted in this case inasmuch as there is no allegation in the F.I.R. that the petitioners had produced any forged document before any authority. I, therefore, find that in the facts of this case, sections 420, 467 and 468/120B of the Penal Code are not attracted. Accordingly, the impugned order is hereby quashed. This application is allowed. haque (Sheema Ali Khan, J.)