Rajeswar Tiwari & Ors vs Nanda Kishore Roy

2) The facts leading to the present appeal are as under:

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 the Officer-in-Charge P.S. Hirapur to cause an inquiry into the allegations made in the complaint. On 30.04.2004, the appellants 2 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 Form No-16 of 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 3 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.

5) We have adverted to almost all the averments/allegations made by the respondent herein in respect of accused nos. 1 to 5 who are appellants before us. From this, we are able to understand that the respondent has grievance against the management in respect of his non promotion at the relevant time, moving to the High Court of Calcutta, obtaining certain orders, filing of contempt petition etc. It is also alleged that the appellants have deducted income tax to the extent of Rs. 1,640/- per month from his monthly salary as income tax but according to the respondent, he was not liable to pay income tax.

276BB. If a person fails to pay to the credit of the Central Government, the tax collected by him as required under the provisions of section 206C, he shall be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to seven years and with fine."

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. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant."

21) In 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 16 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.

22) Considering all these materials and in the light of the various principles enunciated, we hold that the High Court committed an error in not exercising its jurisdiction and dismissing the petition filed under Section 482. Consequently, we quash the criminal proceedings pending before the trial Court being Case No. C/438 of 2003 initiated against the appellants. The criminal appeal is allowed.

AUGUST 19, 2010.

Hon'ble Mr. Justice P. Sathasivam pronounced the judgment of the Bench comprising Self and Hon'ble Dr. Justice B.S. Chauhan.

The appeal is allowed.

[ Signed reportable judgment is placed on the file ] 18 19