Inst.Of Chartered Accountants Of India vs Vimal Kumar Surana & Anr

4. Shri Brij Kishor Saxena, who was authorised by the appellant-Institute to do so, submitted complaint dated 18.3.2001 to the Station House Officer, Police Station, Betul with following allegations:

5. After conducting investigation, the police filed challan in the Court of Chief Judicial Magistrate, Betul (hereinafter referred to as `the trial Court'), who passed order dated 10.3.2003 for framing charges against the respondent under Sections 419, 468, 471 and 472 IPC. The respondent challenged that order by filing revision under Section 397 of the Code of Criminal Procedure (Cr.P.C.). 1st Additional Sessions Judge, Betul allowed the revision, set aside order dated 10.3.2003 and remitted the case to the trial Court with the direction to decide whether there are sufficient grounds for framing charges under Sections 419, 420, 465, 467 and 473 IPC read with Sections 24 and 26 of the Act. After remand, the trial Court passed order dated 8.12.2003 and held that there was no basis for framing any charge 4 against respondent under the IPC. It further held that cognizance of offences under Sections 24 and 26 of the Act cannot be taken because no complaint had been filed by or under the order of the Council before the Magistrate.

6. The appellant questioned the correctness of orders dated 29.10.2003 and 8.12.2003 passed by 1st Additional Sessions Judge, Betul and the trial Court respectively by filing two separate revisions. The learned Single Judge of the High Court dismissed both the revisions. He held that even though prima facie case was made out against the respondent under Sections 24, 24A and 26 of the Act, the Magistrate could not have taken cognizance because no complaint was filed under Section 28 and the report submitted by the police could not be made basis for punishing him on the allegation of contravention of any of those provisions. The learned Single Judge also referred to Sections 2(d), 4, 5 and Section 195(1)(b)(ii) Cr.P.C. and held that in the absence of a complaint filed by the concerned Court, the Magistrate was not competent to frame charges against the respondent. The learned Single Judge also held that in view of the special mechanism contained in the Act for prosecution of a person violating Sections 24, 24A and 26 of the Act, he cannot be prosecuted under the IPC.

(2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

(ii) being a member of the Institute, but not having a certificate of practice, represents that he is in practice or practises as a chartered accountant, shall be punishable on first conviction with fine which may extend to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months or with fine which may extend to five thousand rupees, or with both.

21. In view of the above discussion, the argument of the learned senior counsel appearing for the respondent that the Act is a special legislation vis- `-vis IPC and a person who is said to have contravened the provisions of sub-section (1) of Sections 24, 24A, 25 and 26 cannot be prosecuted for an offence defined under the IPC, which found favour with the High Court does not commend acceptance.

26. Although, Shri Gupta argued that the allegations levelled against the respondent do not constitute any offence under Sections 419, 420, 465, 467, 468, 472 and 473 IPC, we do not consider it necessary to deal with this point 37 because the High Court did not sustain the orders challenged before it on that ground.

27. In the result, the appeals are allowed. The impugned order is set aside and the matter is remitted to the trial Court for considering whether the allegations contained in the complaint lodged by Brij Kishor Saxena constitute any offence under the IPC. If the trial Court comes to the conclusion that the allegations do constitute one or more offence(s), then it shall proceed against the respondent in accordance with law. However, it is made clear that in the absence of a complaint having been filed under Section 28, no charges be framed against the respondent for the alleged contravention of Sections 24, 24A or 26 of the Act.

.....J. [Asok Kumar Ganguly] New Delhi December 01, 2010.