IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 20.01.2009 Coram The Honourable Mr. JUSTICE K.MOHAN RAM Crl.O.P.No.27245 of 2007 and Crl.R.C.No.666 of 2008 and M.P.Nos.1 and 1 of 2008 J.Jayalalithaa .. Petitioner in both the petitions/ Accused -Vs.- The Assistant Commissioner of Wealth Tax (Central Circle – II – 2) Nungambakkam High Road Chennai-34 ... Respondent in both the petitions/ Respondent Prayer in Crl.O.P.No.27245 of 2007:- Criminal Original Petition filed under Section 482 of Cr.P.C. praying for a direction to call for the records pertaining to EOCC No.263 of 1997 pending on the file of the Additional Chief Metropolitan Magistrate (Economic Offence – I), Egmore, Chennai – 600 008 so as to quash the same. Prayer in Crl.R.C.No.666 of 2008:- Criminal Revision Case filed under Sections 397 and 401 of Cr.P.C., praying to call for the records in M.P.No.3457 of 2001 in E.O.C.C.No.263 of 1997 on the file of the Additional Chief Metropolitan Magistrate (E.O.1), Egmore, Chennai, set-aside and revise the order dated 25.02.2008 made in M.P.No.3457 of 2001 in E.O.C.C.No.263 of 1997 so as to discharge the petitioner from the above case. For Petitioner in Crl.O.P.: Mr. B.Sriramulu, senior counsel, for Mr. A.Navaneethakrishnan For Petitioner in Crl.R.C: Mr. Ravi Shankar Prasad, senior counsel, for Mr. A.Navaneethakrishnan, For Respondent in both the Petitions: Mr. Ramasamy, K., Sr. Spl.P.P., for I.T. Cases C O M M O N O R D E R Since common questions arise for consideration in the above Criminal Original Petition and in the above Criminal Revision Case both the cases are disposed of by this common order. https://hcservices.ecourts.gov.in/hcservices/ 2. The brief facts which are necessary for the disposal of the above cases are set-out below:- (i) The petitioner is the accused in E.O.C.C.No.263 of 1997 on the file of the learned Additional Chief Metropolitan Magistrate, (Economic Offence-I), Egmore, Chennai – 8. The respondent filed a complaint for the alleged offence under Section 35 (B) of The Wealth-Tax Act, 1957 (27 of 1957) (hereinafter referred to as “the Act”) in respect of non-filing of the Wealth Tax Return for the assessment year 1993-1994. The gist of the allegations are as under:- (ii) The petitioner is the General Secretary of the political party-All India Anna Dravidar Munnetra Kazhagam (A.I.A.D.M.K.). Earlier she was a Member of Parliament (Rajya Sabha). She was also the Chief Minister of Tamil Nadu during the period 1991-1996. Prior to her entry into politics, she was a film artist. The petitioner was assessed to wealth-tax since the assessment year 1966-1967 and as such she is aware of her duties and responsibilities under the Act. For the assessment year 1993-1994, relevant to the valuation date 31.03.1993, the petitioner was in possession and ownership of various assets set out in detail in the complaint. For the assessment year 1992-1993 she filed a return of wealth on 23.11.1992 on net wealth of Rs.5,81,94,800/- and her net wealth was assessed at Rs.6,53,98,100/-. The wealth tax return of the petitioner for the wealth tax assessment year 1993-1994 was due to be filed on or before 31.08.1993 as required under Section 14 (1) of the Act. However the petitioner did not file her return of wealth within the due date prescribed by the Statute inspite of being aware of her statutory duty. Thus the petitioner has wilfully and deliberately contravened the provisions of section 14 (1) of the Act by not furnishing her return of wealth on or before the due date prescribed by the Statute i.e., 31.08.1993 without any valid reason and thereby committed an offence under Section 35 (B) of the Act. (iii) Since the petitioner did not file the return a notice under Section 16 (4) of the Act was issued on 18.01.1994 requiring the petitioner to file the return of wealth within 30 days from the date of receipt of the notice. The said notice was served on the petitioner by RPAD on 19.01.1994. Inspite of that the petitioner neither sent a reply nor filed a return. A reminder letter dated 10.02.1995 was issued and the petitioner did not respond inspite of the Statutory Notice issued under Section 16 (4) of the Act. Since there was persistent failure in furnishing the return, in order to complete the assessment, a letter was issued on 31.07.1995 requiring the petitioner to furnish details of assets owned by her as on 31.03.1993 and also particulars of debts or liabilities as on that date. The case was posted on 22.08.1995 for furnishing the aforesaid information and enquiry. Repeated adjournments were sought on behalf of the petitioner but the details sought for were not furnished. Therefore the assessment was completed under Section 16 (5) of the Act on 15.02.1996. The total taxable wealth was arrived at Rs.3,17,43,100/- and the wealth tax payable was determined at Rs.3,02,431/- and against that the petitioner filed an https://hcservices.ecourts.gov.in/hcservices/ appeal. The Commissioner of Wealth-tax (Appeals) passed an order dated 16.06.1997 revising the assessment. Thereafter the income-tax and wealth-tax liabilities were deducted and taxable wealth was arrived at Rs.1,34,99,600/- and the wealth tax payable was determined at Rs.1,19,996/- and with the interest under Section 17 (B) of the Act, the wealth-tax payable was determined at Rs.1,91,993/- for the assessment year 1993-1994. A show cause notice dated 30.07.1996 was issued calling upon her to show cause as to why prosecution proceedings under Section 35 (B) of the Act should not be initiated against her. In response to the show cause notice a reply dated 04.10.1996 was received from the authorised representative of the petitioner setting out the details for non- filing of the return. It is alleged in the complaint that the petitioner was deliberately bent upon not to file her return of wealth tax at all and may be she has willingly welcomed the exparte assessment for reasons best known to her. It is further alleged that by deliberately failing to file the return of wealth the petitioner has committed an offence punishable under Section 35 (B) of the Act. (iv) It is further alleged in the complaint that the complaint has been filed in pursuance of the sanction order dated 12.11.1997 passed by the Commissioner of Wealth Tax (Central II), Chennai, under Section 35 (i) of the Act. The said sanction order was filed along with the complaint. (v) Since the complaint had been filed by the respondent who is a public servant sworn statement of the respondent was not recorded and on a perusal of the allegations contained in the complaint and on being prima facie satisfied that a case has been made out under Section 35 (B) of the Act the learned Magistrate took cognizance of the offence on 08.12.1997 and process was ordered to be issued. 3. The above Criminal Original Petition has been filed seeking to quash all further proceedings in E.O.C.C.No.263 of 1997 pending on the file of the Additional Chief Metropolitan Magistrate (Economic Offence – I), Egmore, Chennai – 600 008 on the following grounds:- At the time of filing the complaint except the complaint and sanction order no other document was filed though in the complaint 11 specified documents have been mentioned and under Item 12 it is mentioned “XII and other connected documents”. During the pendency of the complaint an application for discharge has been filed and on coming to know that none of the documents mentioned in the complaint have been filed before the Court a copy application was filed in C.A.No.3100 of 2007 dated 23.07.2007. On the said copy application the following office note was made, namely, “Submitted : At the time of giving the complaint list of documents mentioned in list have not been filed. Hence it is submitted necessary orders may be passed in this regard”. To the above note the Court passed an order to the following effect:- https://hcservices.ecourts.gov.in/hcservices/ “Call for the records from the complainant. Sd/-.. 30.7.2007.” 4. It is contended by the petitioner that cognizance has been taken only on the mere averments or recitals in the complaint without any supporting documents. It is further contended that the complaint of facts which constitutes an offence does not mean that the complaint alone and it necessarily needs the supporting documents connected with the complaint. It is further contended that the non-filing of any document along with the complaint including the sanction order could only mean that the Magistrate at the time of taking cognizance has not applied his mind nor were there sufficient materials to form any opinion so as to issue the process. The wordings of Section 190 (1) (a) and Section 204 Cr.P.C., illustrate that not only the material facts but also the material particulars have to be necessarily included along with the complaint at the initiation or commencement of proceedings before the Magistrate. In fine, according to the petitioner, the petition under Section 482 Cr.P.C., has been filed on the ground that the cognizance taken by the Court on 18.12.1997 in the absence of documents being produced before the Court and merely on the basis of the recitals in the complaint is contrary to law and it is incapable of satisfying either Section 190 or Section 204 of the Cr.P.C., 5. In the above Criminal Original Petition the respondent has filed a counter inter-alia contending as follows:- The complaint is filed for the offence under Section 35 (B) of the Act for wilful failure to file the return of wealth for the assessment year 1993-1994 and such return has not been filed even up to this date and as such the offence is still continuing in view of the decision of the Apex Court reported in 1986 (1) SCC 445 = (1986) 157 ITR 330 (Maya Rani Punj v CIT). The petitioner has suppressed the filing of Crl.O.P.Nos.2759 and 5378 of 1998 before this Court which were dismissed as withdrawn by orders dated 06.03.1998 and 06.02.2001, respectively, and about the time limit fixed by this Court for disposal of the cases. The petitioner has also suppressed the orders passed in Crl.M.P.Nos.5854 of 2001, 3907 of 2002 and 13179 of 2002 whereby the time for disposal of the case was extended periodically. Ever since the filing of the complaint the trial has not progressed because of the conduct of the petitioner. In view of the dismissal of the earlier two quash petitions the present Criminal Original Petition is not maintainable. The present contention raised in the above petition could have been raised and canvassed by the petitioner in the earlier quash petitions and the petitioner has no right to file the quash petitions repeatedly seeking the very same relief. 6. In the counter various dates on which the case stood adjourned and the reasons for such adjournments have been stated. It is stated that so far 180 hearings have taken place without examining even a single witness even though prosecution is ready with its witnesses and documents from the day one. On 19.05.2008 https://hcservices.ecourts.gov.in/hcservices/ P.W.1 was examined in part after the petition for adjournment by the petitioner was dismissed. For the past 11 years only one witness was examined in part. It is further stated that two witnesses have already retired and they are aged more than 70 years and two other witnesses are at the verge of retirement shortly. On the aforesaid contentions the respondent is praying for dismissal of the above Criminal Original Petition. 7. Pending the above case, the petitioner filed Crl.M.P.No.3457 of 2001 under Section 245 (2) of the Cr.P.C. seeking discharge. In the discharge petition it is contended that in the complaint it is alleged that the wealth tax assessment for the year 1993-1994 was finalised exparte on 15.02.1996. The appeal was filed by the petitioner to revise the said assessment which stood allowed by the order dated 03.08.1999 made in GIR No.701 J/93-94. As per the order made in the Revision, the Petitioner has got only deficit wealth to the extent of Rs.24,97,939/- in short the liability of the petitioner exceeds the total assets. In such circumstances there is no need or necessity for the petitioner to file the return. The effect of the order dated 03.08.1999 relates back to the alleged cause of action to file and maintain the complaint. Since no prima facie case has been made out against the petitioner she prayed for discharge. 8. The respondent filed a counter inter-alia contending as follows:- The discharge petition is not maintainable under law. Inspite of the statutory notice issued the petitioner wilfully and deliberately failed to file the return of wealth which resulted in passing of an exparte assessment order. The Department was deprived of knowing the true and correct wealth of the petitioner / accused which she ought to have disclosed voluntarily before the statutory due date. The petitioner had net assessable wealth before the deduction of Income Tax liabilities for the years 1987 to 1993-1994 and it means that the petitioner had sufficient wealth warranting her to file the return of wealth. Had the petitioner filed her return of wealth disclosing her true and correct wealth voluntarily, which is a statutory obligation, there would not have been any deficit wealth even in the consequential order. Not disclosing the true and correct net wealth and thereby inviting an exparte assessment order and claiming Income Tax liabilities form the assessable net wealth, all have the ingredients of tax-evasion. Therefore failure to file the return of wealth is an independent offence under Section 35 (B) of the Act. 9. It is further contended that against the order made in G.I.R. No.701 J/93-9 the Department has preferred a further appeal before the Income Tax Appellate Tribunal. Hence the order passed in GIR No.701 J/93-94 has no bearing on the offence alleged in the complaint and serious prejudice would be caused to the complainant if the impugned order is pressed into service without recording evidence as the offence alleged in the complaint is independent of the impugned order which has no bearing on the offence alleged in the complaint. Hence without recording evidence and commencement of https://hcservices.ecourts.gov.in/hcservices/ the Trial, the discharge petition is not maintainable and the respondent prayed for dismissal of the discharge petition. 10. The petitioner raised the following additional grounds for discharge, namely:- For the year 1993-1994 no income tax was assessed so far by the Department hence wealth-tax cannot be assessed for the year 1993- 1994. The amount of tax payable towards income tax has to be deducted from the Tax Payable by way of wealth-tax. At the time when the complaint was filed, appeals filed by the petitioner as well as the Department are still pending with respect to the tax payable for the year 1993-1994 and it will have a bearing and effect on the tax payable if not under the wealth-tax Act. When the tax amount in respect of the assessee under the wealth-tax Act is yet to be finalised the criminal prosecution launched is pre-mature. 11. The Learned Magistrate on a careful consideration of the contentions raised on either side and on an application of various decisions relied upon on either side rejected the contentions put forth by the petitioner and dismissed the discharge petition and being aggrieved by that the petitioner has filed the above Criminal Revision Case. 12. Heard Sri.B.Sriramulu the learned counsel for the petitioner in the Criminal Original Petition and Mr. K.Ramasamy learned Special Public Prosecutor for the respondent. 13. Since a preliminary objection has been raised by the learned Special Public Prosecutor for IT Cases regarding the very maintainability of the above Criminal Original Petition on the ground that the petitioner has suppressed earlier filing and dismissal of Criminal Original Petition Nos.2759 and 5378 of 1998 the maintainability of the above Criminal Original Petition has to be dealt with at the threshold. 14. As far as the above Criminal Original Petition is concerned the same has been presented even according to the petitioner, as stated in paragraph 19 of the quash petition, on the ground that the cognizance taken by the Court on 18.12.1997 without any record before the Court except the recitals in the complaint is contrary to law and is incapable of satisfying either under Section 190 or under Section 204 of Cr.P.C. It is contended in the quash petition that when a complaint containing merely the recitals without material evidence or materials has to be termed in law as an inchoate complaint which has no legal sanctity and as such the cognizance taken by the Court below is bad in law. It is further contended that any filing of the documents at the later stage cannot cure the initial defect. It is also contended that the wordings of Section 190 (1) (a) and Section 204 of Cr.P.C. illustrate that not only the material facts but also the material particulars have to be necessarily included in the complaint. Therefore the learned senior https://hcservices.ecourts.gov.in/hcservices/ counsel for the petitioner can only canvass the aforesaid ground taken in the quash petition but not the following other grounds sought to be raised:- (i)When the assessment proceedings were not completed determining the actual wealth, prosecution could not have been launched on 08.12.1997. (ii)Unless the net wealth exceeds Rs.15,00,000/-, there is no necessity for the petitioner to file tax returns. Otherwise, she is bound to file tax returns. (iii)When there is no final determination of her wealth, the question of liability does not arise. (iv)Unless the tax liability is determined, the question of prosecution does not arise. (v)When the matter was remitted back in the appeal and the tax liability is not determined and the order of the assessing officer is also not in existence, the learned Magistrate ought not to have taken cognizance of the offence. (vi)Till the remedies available under the Statute are exhausted and the assessment order becomes final, the question of prosecution for liability does not arise. In this case, the very assessment order is not in existence. The learned Magistrate ought not to have taken the case on file on 08.12.1997. (vii)When notice under Section 17 of the Act is issued, the assessee is bound to file a return and not under Section 16 (4) of the Act and in this case the notice was issued only under Section 16 (4) and not under Section 17 of the Act. 15. One another reason for not considering the aforesaid submissions made by the learned senior counsel for the petitioner is that admittedly the petitioner had earlier filed Crl.O.P.No.2759 of 1998 but the same was dismissed as withdrawn on 06.03.1998. Once- again the petitioner filed Crl.O.P.No.5378 of 1998 for quashing the proceedings in EOCC No.263 of 1997. In that quash petition the following grounds have been raised:- (i)The prosecution instituted on alleged contravention of Section 35 (B) of the Act is pre-mature since the assessment proceedings in the case of the petitioner have not reached finality. (ii)The order granting sanction to prosecute the petitioner is invalid as it has taken into several irrelevant and extraneous facts. (iii)Where a complaint does not disclose the offence in the face of it or where it is vitiated by an apparent error it takes away the jurisdiction to institute proceedings then it would be proper and just to set-aside the entire proceedings as otherwise directing the petitioner to undergo the ordial of trial would be a serious abuse of law. https://hcservices.ecourts.gov.in/hcservices/ 16. The said Crl.O.P.No.5378 of 1998 and other connected Crl.O.Ps. were withdrawn and dismissed by a learned Judge of this Court by an order dated 06.02.2001. It will be relevant to refer to the said order dated 06.02.2001 which reads as follows:- “1. The common endorsement made by the learned counsel for the petitioner in respect of all the above Criminal Original Petition is placed on records. 2.In view of the same, all the above Criminal Original Petitions are dismissed as withdrawn. Consequently, connected Crl.M.Ps. are also dismissed. Interim stay granted in all these cases shall stand vacated. 3.It is open to the petitioner to raise whatever grounds which are open to her under law before the trial court. As the matters relate to the years 1996 to 1998, the concerned trial Judge, E.O.I, Chennai shall dispose of the cases within a period of eight months from the date of the receipt of this order without fail” A reading of the aforesaid order makes it clear that no permission / liberty has been given to the petitioner to file a similar quash petition on the same cause of action but liberty has been given to the petitioner to raise whatever grounds which are open to her under the law before the trial court. In the light of the said order it is not open to the petitioner to raise the very same grounds in the above Criminal Original Petition once-again. 17. In this context it will be useful to refer to a decision of the Apex Court reported in (1987) 1 Supreme Court Cases 5 (SARGUJA TRANSPORT SERVICE v. S.T.A.T.). In this decision in paragraph 9 it has been observed as follows:- “9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case (1962) 1 SCR 574 : AIR 1961 SC 1457 is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once https://hcservices.ecourts.gov.in/hcservices/ again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition.” 18. The aforesaid principle rendered in the context of dismissal of a writ petition filed under Article 226 of the Constitution of India on the ground of Public Policy and also to discourage the litigant from indulging in Bench hunting tactics equally applies to a quash petition filed by invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. 19. But at the same time it has to be pointed out that the aforesaid ground taken in the present quash petition could not have been taken in the earlier quash petitions since according to the petitioner the non filing of the list of documents mentioned in the complaint came to the knowledge of the petitioner only when the learned Magistrate called for the records from the complainant by his order dated 30.07.2007 passed on the copy application filed by the petitioner in C.A.No.3100 of 2007 dated 23.07.2007. Therefore in the light of the aforesaid facts the present ground taken in the above quash petition could not have been taken in the earlier two quash petitions and therefore the above quash petition should be deemed to have been filed on a fresh cause of action which was not available to the petitioner earlier and hence the