Case: Rajeswar Tiwari and Ors Vs. Nanda Kishore Roy

p.m. from the monthly salary as Income Tax. It was also stated in the complaint that the amount so deducted was not deposited with the Income Tax Authority and should be refunded back. It was also mentioned in the complaint about the wrongful deduction of the amount on account of cooperative loan issued by the appellants/Company. On examination of the witnesses under Section 200 of the Code of Criminal Procedure, the Magistrate directed theP.S. Hirapur to cause an inquiry into the allegations made in the complaint. On 30.04.2004, the appellants informed that the amount of income tax deducted in consonance with Section 192 of the Income Tax Act being deposited in due course as tax to the credit of employee/respondent in terms of Section 199 of the Income Tax Act as uniformly done in respect of every employee and also produced Formof the respondent for the period from 01.04.2003 to 31.03.2004. On 15.07.2004 & 30.01.2005, the police submitted two inquiry reports, inter alia, stating the previous conduct of the respondent and also stated that the complaint in issue is civil in nature. On 31.01.2005, after taking into consideration the inquiry reports of the police, the Judicial Magistrate, Asansol directed issuance of summons against the appellants for an offence under Section 406/120B of the Indian Penal Code. In response to the summons, the appellants made an application under Section 205 of the Code before the Judicial Magistrate and the same was rejected by an order dated 26.07.2005. Subsequently, vide order dated 12.09.2005, the Judicial Magistrate issued warrant of arrest against the appellants. The appellants filed application being C.R.R. No. 2774 of 2005 before the High Court of Calcutta under Section 482 of the Code for quashing of the complaint and prayed for staying of proceedings in the complaint bearing No. C/438 of 2003. The appellants also filed another application under Section 482 being C.R.R. No. 2772 of 2005 seeking quashing of the order dated 12.09.2005. The High Court, by order dated 31.01.2007, rejected the prayer for quashing the criminal proceedings and disposed of both the applications with a direction to the trial Court to dispose of the matter within a period of six months. Aggrieved by the same, the appellants have preferred this appeal by special leave before this Court.3) Heard Mr. Ranjit Kumar, learned senior counsel for the appellants and Mr. Yashank Adhyaru, learned senior counsel for the respondent.4) In order to test the claim of both the parties as well as the correctness of the impugned order of the High Court, it is useful to refer the details of the complaint dated 06.12.2003 filed by the respondent. He described himself as an employee of ME Steel, IISCO, Burnpur and he made the following officers as accused persons:1. A.K. Jaiswas EDI/C.Cum M.D. IISCO Ltd. Burnpur Works2. Rajeswar Tiwari GM [P&A]3. Robin Roy DGM (MM) SMS Deptt.4. P. Karmakar, AGM [MM] SMS Deptt.5. Sukumar Mukherjee, Manager Finance6. Shivaji Roy DGM [PL]7. Tarit Pal GM [IS]All are of IISCO Burnpur PS Hirapur Distt. BurdwanIn the complaint, he mentioned about the filing of writ petition in 1991 before the High Court of Calcutta and the order passed therein in 2003. He also referred to his contempt petition before the High Court. He alleged that due to the direction of the High Court, which was issued at his instance, the abovesaid officers entered into a criminal conspiracy and with a view to pressurize him for withdrawing the said contempt, starting giving threats to him in various manners. According to him, due to such attitude towards him, the accused persons with a view to get their object fulfilled, started illegal deduction of Rs. 1640/per month from his monthly salary as income tax w.e.f. May 2003. In this way, the accused persons had deducted an amount of Rs. 13,120/from his salary on account of income tax and the said amount had not been deposited with the income tax authority. The appellant also stated that he does not fall within the category of taxable income, and in any event, not to the tune of Rs. 1640/. He also claimed that he sent a notice under registered post with acknowledgement due on 17.11.2003 to accused Nos. 1 to 5 requesting them to return the money so deducted illegally from his salary. On receipt of the notice, the accused persons abused him in the presence of witnesses and others and also threatened him with dire consequences. He also pointed out that a sum of Rs. 3050/had been deducted from his salary illegally on account of cooperative loan although, on the previous month, deduction was only to the extent of Rs. 50. With these allegations, he claimed that accused persons have committed offence under Sections 467, 468, 403 and 406 read with Section 120B IPC and prayed for issuance of summons.

Reasoning:
10) In the case on hand, it is the categorical stand of thethat the amount of tax that has been deducted from the respondents salary as TDS under the head "Salaries" in terms of Section 192 is uniformly done in respect of each and every employee of the company. It is also asserted that the amount of tax so deducted, deposited to the credit of the employees including the respondent in terms of Section 199. They also produced a copy of Formbeing the certificate under Section 203 of the Income Tax Act, 1961 for the tax deducted at source from the income chargeable under the head "salaries" in respect of the respondent relating to period from April 1st, 2003 to March 31st, 2004.11) In the light of the factual scenario, let us see the initial direction of the Judicial Magistrate, Asansol to the IO concerned, the report of the police officer as well as ultimate order dated 31.01.2005 by the Additional Chief Judicial Magistrate issuing summons upon the appellants/accused persons for offence under Section 406 read with 120B IPC in terms of Section 204 of the Code. When the complaint was forwarded to the SI Hirapur, Police Station, he conducted an inquiry, recorded statements of IISCO officials, perused the documents concerned and also noted that the tax was deducted as per their company norms. After making such a note, the SI Hirapur has concluded that "the matter is civil in nature" and forwarded the same to Additional CJM with a request to clarify the same. On the basis of the said report, by order dated 31.01.2005, the Additional CJM, after recording the stand of the complainant about illegal deduction of Rs. 1640/per month from his salary as income tax and the same had not been deposited by the accused persons to the income tax authority month by month, has concluded "on perusal of the same, it appears to me that there is sufficient ground for proceeding against the accused persons under Section 406/120 B IPC." First of all, it is not clear how the Additional CJM has concluded that "there is sufficient ground for proceeding against the accused under Section 406/120 B IPC", more particularly, when the inquiry report by the SI Hirapur shows that the issue raised in the complaint is civil in nature.12) We have already adverted to the relevant provisions from the Income Tax Act, particularly, duty of the employer in deducting tax at source and forwarding the same to the authority concerned i.e. to the credit of Central Government as well as failure to do so results in prosecution. From the materials placed, particularly, the contents of the complaint, relevant statutory provisions of the Income Tax Act, report of the SI Hirapur, we are of the view that the complaint does not disclose any case to proceed against the accused persons as arrived by the Additional CJM. Even if the respondent had some grievance with the appellants aboutdirection of the High Court, pendency of contempt etc. it is not a case for criminal prosecution. If he is very much interested to vindicate his grievance, the respondent could have very well approached the officer concerned of the IISCO or to the IT authority concerned. Though in the complaint, it is stated that the respondent had sent a notice under registered post with acknowledgment due on 17.11.2003, admittedly, no such proof had been placed before the Court. In fact, the appellants stoutly denied the receipt of such a notice.13) Inspite of all the details and materials since the Additional CJM issued summons, the appellants approached the High Court under Section 482 of the Code for quashing the same. The High Court, by the impugned order, without adverting to any of the above mentioned relevant materials passed a cryptic order in one line "I am not inclined to quash the criminal proceeding pending before the Additional CJM, Asansol". No doubt, after dismissing the petition issued certain directions for protection relating to personal appearance of the appellants before the Magistrate.14) This Court, in a series of decisions, has emphasized the inherent power of the High Court to pass appropriate orders to prevent the abuse of process of court or to secure the ends of justice. Though, inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution when adequate materials are available which clearly shows that the proceeding is either of civil nature, cannot be adjudicated by the criminal court or if it is an abuse of process of court, the High Court is well within its power to exercise its inherent jurisdiction and quash theIn the light of the above mentioned well established principles, we are of the view that the High Court has committed an error, firstly, in not assigning any reason and passing a cryptic order and secondly, failed to exercise its jurisdiction under Section 482 when the complaint does not disclose any offence of criminal nature. For the sake of repetition, we reiterate, though the respondent had some grievance about his non promotion, certain orders passed by the High Court including filing of contempt etc., in view of the statutory provisions of the Income Tax Act, the assertion of the appellants that deductions were being made for all the persons who are liable to pay tax in terms of the Income Tax Act, the proper remedy for the respondent is to approach the authority/officer concerned and not by filing complaint as mentioned above. We have already adverted to the report of SI Hirapur holding that the matter in issue is civil in nature.