# Omkeshwar Nath Verma & Anr v. State of U.P

- **Citation:** (2020) 2 ILRA 1481
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-09
- **Case number:** Application U/S 482 No. 4526 of 2009
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/omkeshwar-nath-verma-anr-v-state-of-u-p-45522
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 190(1) -
Section
41/411-
Basis
of
applying
Section 420 of I.P.C. is that the applicants
have acted in contravention of Section 28A of the U.P. Trade Tax Act therefore the
person is liable to be penalised under
Section
15A(1)(o)
of
the
Act-
The
applicants had preferred a Sales/ Trade
Tax Revision u/s 11 of the Act before the
High Court, against the order of the
Tribunal whereby the order confirming the
penalty u/s 15 A (1)(o) of the Act was
confirmed, and since the said Revision was
allowed by the High Court, the allegations
against the applicants stood negated and
nothing remained for which they would be
made
liable
to
face
the
criminal
proceedings and no offence of cheating
can be said to be made out against the
applicants under Section 420 I.P.C.
1482 INDIAN LAW REPORTS ALLAHABAD SERIES
B.
Criminal
Law-Code
of
Criminal
Procedure,1973- Section 190(1) - Section
41- U.P.Trade Tax Act- Section 14(3),
Section 28-A- The reference of Special Law
under Section 41 IPC in the present case is
U.P. Trade Tax Act and Section 14(3) of U.P.
Trade Tax Act, provides that no court shall take
cognizance of any offence under this Act, or
the Rules made thereunder except with the
previous
sanction
of
the
[Commissioner]
whereas, there is no previous sanction of the
Commissioner.

The previous sanction of the Commissioner is
mandatory before taking cognizance of any
offence under the Act and absence of sanction
by the Commissioner would
render the
prosecution illegal.

C. Criminal Law - Code of Criminal
Procedure, 1973- Section 5 - The perusal of
Section 5 Cr.P.C., which is saving clause and
protects the procedure provided under the
provisions of U.P. Trade Tax Act, which is a
Special Law, for initiation of prosecution
against the person who contravenes any of the
provisions of U.P. Trade Tax Act. By virtue of
the provisions of Section 5 of the Cr.Pc, the
Special Law, e.i U.P Trade Tax Act, shall prevail
over the General Law and the procedure under
the Cr.Pc stands ousted.

D. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482- The
continuation of the criminal prosecution of the
applicants after the judgement passed by the
High Court, whereby the Sales/Trade Tax
Revision of the applicants was allowed, would
be illegal and nothing but an abuse of the
process of the Court.
(Para 18,19,20,22,24,28,29,31)

Application u/s 482 allowed.

Case law discussed:-

## Text

2 All. Omkeshwar Nath Verma & Anr. Vs. State of U.P.
1481
any offence and make out a case against
the accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made
in the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accused.

(6) Where there is an express
legal bar engrafted in any of the
provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted)
to
the
institution
and
continuance of the proceedings and/or
where there is a specific provision in the
Code or the concerned Act, providing
efficacious redress for the grievance of the
aggrieved party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or
where
the
proceeding
is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due
to private and personal grudge."

18. Looking to the facts of this case and
in the light of exposition of law, as discussed
above, I find that here is not a case where mere
name of applicants has been taken but details
of incident have been given showing the
manner in which applicants have acted and
committed crime. Hence, it cannot be said that
there is no material whatsoever and also that
on mere probability of complicity they have
been summoned but there is appropriate
material and evidence to justify summoning of
applicants under Section 319 Cr.P.C. and I find
no manifest error in the order passed by Court
below.

19. The application lacks merit and is
accordingly dismissed.
----------
(2020)02ILR A1481

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2020

BEFORE
THE HON'BLE MANISH KUMAR, J.

Application U/S 482 No. 4526 of 2009

Omkeshwar Nath Verma & Anr.
 ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Sri Atul Mehra

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 190(1) -
Section
41/411-
Basis
of
applying
Section 420 of I.P.C. is that the applicants
have acted in contravention of Section 28A of the U.P. Trade Tax Act therefore the
person is liable to be penalised under
Section
15A(1)(o)
of
the
Act-
The
applicants had preferred a Sales/ Trade
Tax Revision u/s 11 of the Act before the
High Court, against the order of the
Tribunal whereby the order confirming the
penalty u/s 15 A (1)(o) of the Act was
confirmed, and since the said Revision was
allowed by the High Court, the allegations
against the applicants stood negated and
nothing remained for which they would be
made
liable
to
face
the
criminal
proceedings and no offence of cheating
can be said to be made out against the
applicants under Section 420 I.P.C.
1482 INDIAN LAW REPORTS ALLAHABAD SERIES
B.
Criminal
Law-Code
of
Criminal
Procedure,1973- Section 190(1) - Section
41- U.P.Trade Tax Act- Section 14(3),
Section 28-A- The reference of Special Law
under Section 41 IPC in the present case is
U.P. Trade Tax Act and Section 14(3) of U.P.
Trade Tax Act, provides that no court shall take
cognizance of any offence under this Act, or
the Rules made thereunder except with the
previous
sanction
of
the
[Commissioner]
whereas, there is no previous sanction of the
Commissioner.

The previous sanction of the Commissioner is
mandatory before taking cognizance of any
offence under the Act and absence of sanction
by the Commissioner would
render the
prosecution illegal.

C. Criminal Law - Code of Criminal
Procedure, 1973- Section 5 - The perusal of
Section 5 Cr.P.C., which is saving clause and
protects the procedure provided under the
provisions of U.P. Trade Tax Act, which is a
Special Law, for initiation of prosecution
against the person who contravenes any of the
provisions of U.P. Trade Tax Act. By virtue of
the provisions of Section 5 of the Cr.Pc, the
Special Law, e.i U.P Trade Tax Act, shall prevail
over the General Law and the procedure under
the Cr.Pc stands ousted.

D. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482- The
continuation of the criminal prosecution of the
applicants after the judgement passed by the
High Court, whereby the Sales/Trade Tax
Revision of the applicants was allowed, would
be illegal and nothing but an abuse of the
process of the Court.
(Para 18,19,20,22,24,28,29,31)

Application u/s 482 allowed.

Case law discussed:-

1. Zandu Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq & ors., (Para-10) (2005) SCC (Cri.)
283

2. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur & ors. Vs. St. of Guj. & anr. (2018) 1 SCC
(Cri) 1 & K. C. Builder Vs. Assistant Commissioner of
Income Tax (2004) 2 SCC 731. [followed]

3. R.P. Kapur Vs. St. of Punjab, AIR (1960) SC 866
(FB) [followed]

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Shri Atul Mehra, learned
counsel for the applicants, learned A.G.A. for
the State and examined the record.

2. The present application under Section
482 Cr.P.C. has been preferred by the
applicants for quashing the charge-sheet dated
26.05.1995, order dated 17.1.2007 passed by
Additional Chief Judicial Magistrate, Court
No.2, Allahabad by which the the learned court
below rejected the discharge application
moved by the applicants in Criminal Case
No.294 of 2004 registered under Sections
41/411 I.P.C. at Police Station Daraganj,
District Allahabad and the revisional order
dated 07.10.2008 passed by Additional
Sessions Judge/Fast Track Court, by which the
revision was dismissed on the ground that
against the interlocutory order revision is not
maintainable.

3. The brief facts of the case are that
on 02.06.1994, the police had intercepted
the applicants' Maruti Car No. U.P.-82A0144
at
Shastri
Bridge
Chungi
at
Allahabad and after the search, 151 kg. of
Silver, 4.5 kg. silver ornaments and
Rs.2,73,000/- cash were recovered from
the possession of the applicants. On the
very same day i.e. on 02.06.1994, an FIR
has been lodged at P.S. Daraganj, District
Allahabad under Sections 41/411 I.P.C.
and applicants were arrested.

4. During the investigation, the
statements of nine persons have been
recorded under Section 161 Cr.P.C. and
2 All. Omkeshwar Nath Verma & Anr. Vs. State of U.P.
1483
except one Trade Tax Officer all the
remaining witnesses were the Police
personnels and the charge-sheet was filed
against the applicants under Section
41/411 I.P.C.

5. From the perusal of the statement
of Trade Tax Officer, it has come out that
after lodging of the FIR, the matter has
been referred to the Trade Tax Department
for initiation of proceedings under the
provisions of U.P. Trade Tax Act.

6. The applicants moved a bail
application before the Sessions Court and
there the applicants had stated that the
goods in question belonged to M/s
Sarvshri Chardeva Abhushan Bhandar,
Buxar (Bihar) and the silver and cash
seized were entered in the books of
account of the firm and the said documents
were filed with the bail application.
Learned trial court had released the car
and the cash in favour of the applicants.

7. On the intimation by the police to
the Trade Tax Department, a notice dated
02.06.1994 was issued by the Sales Tax
Officer, Allahabad.

8. The contention of the learned
counsel for the applicants is that the
applicants are not liable to pay any tax on
goods seized by the police under the Trade
Tax Act for the reason, the applicants are
not the importer as per the definition of
importer provided under Section 2E of the
U.P. Trade Tax Act and contesting the
matter before the authorities.

9. Reliance has been placed upon
Section 15A(1)(o) and Section 28-A of
U.P. Trade Tax Act to show that the goods
seized do not fall within the purview of
above-noted provisions.

10.

Learned
counsel
for
the
applicants has further contended that
Sales/Trade Tax Revision No.597 of 2002
was preferred before this Court,under
Section 11 of the U.P. Trade Tax Act
against the order of the Tribunal dated
26.08.2002, by which the Tribunal has
confirmed the penalty imposed on the
assessee/applicants
for
a
sum
of
Rs.1,50,000/- under Section 15A(1)(o) and
the said revision was allowed by this Court
by setting aside the order of the Tribunal
vide it order dated 09.08.2010. It will be
useful to quote the relevant part of the
order absolving the applicants from
imposition of any penalty under the Act. It
reads as follows:-

"The present revision has been
filed by the assessee under Section 11 of
the U.P. Trade Tax against an order of the
Tribunal dated 26.08.02, by which the
Tribunal
has
confirmed
the
penalty
imposed on the assessee for a sum of
Rs.1,50,000/- under Section 15A(1)(o).

The facts of the case are that the
goods of the assessee were seized at
Allahabd. He was carrying his goods from
Agra to Indore. After the seizure was
made, a penalty was also imposed on the
assessee under Section 15A(1)(o).

It is the contention of the learned
counsel for the assessee that at the
relevant time the assessee had applied
before the authority that the goods which
were seized were entered into the books of
accounts of the assessee at his place of
registration in Bihar and were duly
cleared by the Income Tax Authorities also
in the regular course of business. This
contention is stated by the assessee in
paragraph-10 of the revision.

Thereafter, the assessee filed a
supplementary affidavit in support of this
contention and placed before this Court
1484 INDIAN LAW REPORTS ALLAHABAD SERIES
photocopies of the registration certificates
under the Bihar Sales Tax Act and Central
Sales Tax Act. In response to the
contentions made in the supplementary
affidavit,
the
State
has
filed
a
supplementary counter affidavit and has
not in any manner doubted the veracity of
the tax clearances filed by the assessee
from Bihar.

Thus, in view of the
facts as stated in the supplementary
counter affidavit, it becomes abundantly
clear that the averments made by the
applicant in the revision were correct.
Since the entries of the items were duly
accounted for in the books of accounts at
his original place of business, the
imposition under Section 15A(1)(o) is not
justified.

The penalty imposed upon the
assessee is deleted.

This revision is allowed.

The order of the Tribunal is set
aside.

Dated:9.8.10"

11. Under these circumstances, now
no material is in existence against the
applicants which may further compel them
to face the criminal proceedings. It is
further contended that Section 5 Cr.P.C.
bars the simultaneous proceedings. It is
further contended that if any proceedings
could be initiated against the applicants
that too with the previous sanction of the
Commissioner as per Sub-section 3 of
Section 14 of the U.P. Trade Tax Act,
which is also not taken and hence the
proceedings are barred by Section 5 of
Cr.P.C.

12.

Learned
counsel
for
the
applicants
placed
reliance
upon
the
decisions of the Hon'ble Supreme Court in
Parbatbhai
Aahir
@
Parbatbhai
Bhimsinhbhai Karmur And Ors. Vs. State
of Gujarat And another 2018 (1) SCC
(Cri) 1 and K. C. Builder Vs. Assistant
Commissioner of Income Tax 2004 (2)
SCC 731.

13. Learned A.G.A. has vehemently
opposed the contentions raised on behalf
of the applicants and apprise this Court
about the scope of interference by the
High Court under Section 482 Cr.P.C. He
has further contended that there is no
illegality in the order dated 17.01.2007
passed by Additional Chief Judicial
Magistrate, for the reason by that time the
order of Sales/Trade Tax Revision No.597
of 2002 was not in existence and the
revisional authority has rightly rejected the
said
revision
vide
its
order
dated
07.10.2008 as not maintainable against the
interlocutory orders and there is no
illegality or perversity in the orders.

14. After hearing the counsel for both
the parties and examining the records, the
questions which arise for consideration are
as follows:-

(i) whether after the judgment
dated 09.08.2010 passed by this Court in
Sales/Trade Tax Revision No.597 of 2002
any criminal proceedings or prosecution
could be continued against the applicants.

(ii) whether the applicants are
not entitled for the benefit of Section 482
Cr.P.C. to prevent the abuse of the process
of any court or otherwise to secure the
ends of justice.

15. The order dated 17.1.2007 passed
by Additional Chief Judicial Magistrate,
rejecting the discharge application held
that the applicants for evading the tax did
not disclosed the possession of the silver,
silver ornaments which is in contravention
of Section 28-A of U.P. Trade Tax Act and
2 All. Omkeshwar Nath Verma & Anr. Vs. State of U.P.
1485
hence the seized goods of the applicants
fall under Section 420 of I.P.C.

16. The Trade Tax Department
initiated the proceedings against the
applicants under Section 15A(1)(o) of the
U.P. Trade Tax Act, which is quoted
below:-

[15-A.
Penalties
in
certain
cases.- (1) If the assessing authority is
satisfied that any dealer or other person-

[(o) imports or transports, or
attempts to import or transport or abets
the import or transport of any goods in
contravention of the provisions of Section
28-A ;]

17. While rejecting the discharge
application vide impugned order dated
17.01.2007 passed by the learned A.C.J.M.
held that applicants just to evade tax liability
under Section 28-A of the U.P. Trade Tax Act
had not disclosed the silver and silver
ornaments while entering in the State of U.P.
committed offence under Section 420 of I.P.C.

18. The conjoint reading of Section 28-A
and Section 15A(1)(o) clearly provides that in
case of contravention of the provisions of
Section 28-A of U.P. Trade Tax Act, the person
is liable to be penalised under Section
15A(1)(o).

19. From the perusal of the FIR and the
impugned order dated 17.01.2007 passed by
the learned trial court clearly establishes that
the basis of applying Section 420 of I.P.C. is
that the applicants have acted in contravention
of Section 28-A of the U.P. Trade Tax Act.

20. Though at the time of passing of
the impugned order dated 17.01.2007 by
the trial court, the judgment of the High
Court was not there, it was passed
subsequently, when the the High Court in
its judgment dated 09.08.2010 has held
that the imposition of penalty under
Section 15-A(1)(o) was not justified and
set aside the order of the Tribunal and
setting aside the order of penalty imposed
upon the assessee/applicants and allowed
the revision, then the very basis of the
reason assigned in the order impugned
dated 17.01.2007 itself goes and thereafter
no occasion of continuation of the
prosecution.

21. The FIR was lodged under
Section 41 I.P.C., the provision is quoted
below:-

41. "Special law" .-A "special
law" is a law applicable to a particular
subject.

22. The reference of Special Law
under Section 41 in the present case is
U.P. Trade Tax Act and under Subsection 3 of Section 14 of U.P. Trade
Tax Act, provides that no court shall
take cognizance of any offence under
this Act, or the Rules made thereunder
except with the previous sanction of
the [Commissioner] whereas, there is
no
previous
sanction
of
the
Commissioner. Section 14(3) is quoted
below:-

14. Offences and penalties. -
(1) Any person who -

(3)
No
court
shall
take
cognizance of any offence under this
Act, or the Rules made thereunder
except with the previous sanction of the
[Commissioner], and no court inferior
to that of a Magistrate of the 1st class
shall try any such offence.
1486 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The applicants are also entitled
for the benefit of Section 5 Cr.P.C. Section
5 Cr.P.C. is quoted below:-

5. Saving.- Nothing contained in
this Code shall, in the absence of a
specific provision to the contrary, affect
any special or local law for the time being
in force, or any special jurisdiction or
power conferred, or any special form of
procedure prescribed, by any other law for
the time being in force.

24. The perusal of Section 5 Cr.P.C.,
which is saving clause and protects the
procedure provided under the provisions
of U.P. Trade Tax Act for initiation of
prosecution
against
the person who
contravenes any of the provisions of U.P.
Trade Tax Act.

25. The Hon'ble Supreme Court in
the Case R.P. Kapur Vs. State of Punjab,
AIR 1960 SC 866 (FB) has held that
jurisdiction under Section 482 Cr.P.C. can
be exercised - either to prevent abuse of
process of any court or otherwise to secure
the ends of justice. Ordinarily criminal
prosecution instituted against an accused
person must be tried under the provisions
of the Code and the High Court would be
reluctant to interfere with the said
proceedings at an interlocutory stage.

26. The Hon'ble Supreme Court in
the Case of Zandu Pharmaceutical Works
Ltd. Vs. Mohd. Saraful Haq and another,
(Para-10) 2005 SCC (Cri.) 283 has held
that the High Court should not assume the
role of a trial court and embark upon
enquiry as to reliability of evidence and
sustainability
of
accusation
on
a
reasonable appreciation of evidence where
it appears to the contrary, interference by
High Court would be justified. The
inherent power under Section 482 Cr.P.C.
must be exercised sparingly, carefully and
with the caution and only when such
exercise
is
justified
by
the
tests
specifically laid down in Section 482
Cr.P.C. The power to be exercised ex
debito justi tiae to prevent abuse of
process of Court.

27. After hearing both the parties and
examining the record, I am of the
considered view while exercising the
inherent power of the High Court has a
wide ambit and plenitude it has to be
exercised;-

(i) to secure the ends of justice
or

(ii) to prevent an abuse of the
process of any court.

28. After the judgment dated
09.08.2010 in Sales/Trade Tax Revision
No.597 of 2002 passed by this Court, the
allegations against the applicants stood
negated and nothing remained for which
they would be made liable to face the
criminal proceedings and no offence of
cheating can be said to be made out
against the applicants under Section 420
I.P.C.

29. As far as the revisional order
dated 07.10.2008 is concerned there is no
illegality or perversity in the same for the
reason, the revision is not maintainable
against the interlocutory orders.

30. Learned A.G.A. has not disputed
this fact that after the judgment dated
09.08.2010 in Sales/Trade Tax Revision
No.597 of 2002 passed by this Court, now
nothing remains for which the applicants
made liable to face prosecution/criminal
proceedings.
2 All. Mohammad Ibrahim Vs. State of U.P. & Anr.
1487

31. For the facts and reasons, the
continuation of the prosecution against the
applicants would be illegal and nothing but
an abuse of the process of the Court.

32.

In
view
of
the
above
observations, the application under Section
482 is, accordingly, allowed.

33. Under these circumstances,
charge-sheet dated 26.05.1995, order dated
17.01.2007 as well as the criminal
proceedings in Criminal Case No. 294 of
2004,
under Sections
41/411
I.P.C.,
pending in the Court of Additional Chief
Judicial
Magistrate,
Court
No.2,
Allahabad, are hereby quashed.
----------
(2020)02ILR A1487

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2020

BEFORE
THE HON'BLE HARSH KUMAR, J.

Application U/S 482 No. 9348 of 2018
&
Application U/S 482 No. 11224 of 2018

Mohammad Ibrahim ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri
Sharib
Salaman
Ahmad
Ansari,
A/V0429

Counsel for the Opposite Parties:
A.G.A., Sri Vinod Singh

A.
Criminal
Law-Code
of
Criminal
Procedure,1973 - Section 482- Disputed
questions of fact, which require evidence,
cannot be adjudicated upon under Section 482
Cr.P.C. At this stage only prima facie case is to
be seen in the light of the law laid down by
Supreme Court.

Application u/s 482 Cr.Pc rejected. (Para 7,8)

Case law discussed:-

1. R.P. Kapur Vs. St. of Punj., A.I.R. (1960)
S.C. 866,

2. St. of Har. Vs. Bhajan Lal, (1992) SCC (Cr.)
426,

3. St. of Bih. Vs. P.P.Sharma, (1992) SCC (Cr.)
192

4. Zandu Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq & anr. (Para-10) (2005) SCC (Cr.)
283.

(Delivered by Hon'ble Harsh Kumar, J.)

1. Photo copy of Nikahnama of
applicant Siftain Khan Qadri @ Sonu filed
by learned counsel for applicants today in
the Court is taken on record.

2. The two applications u/s 482
Cr.P.C. have been moved by two accused
(father and son) separately, which were
heard together and are being disposed of
by one and the same order.

3. Heard Sharib Salaman Ahmad
Ansari learned counsel for applicants, Shri
Vinod Singh learned counsel for opposite
party no.2, learned A.G.A. for State and
perused the record.

4. The application under Section 482
Cr.P.C. No. 9348 of 2018 has been filed
for quashing the entire proceedings of
Case
No.3084
of
2016
(State
vs.
Mohammad
Ibrahim
Khan)
and
application under Section 482 Cr.P.C. No.
11224 of 2018 has been filed for quashing
the entire proceedings of Case No.3356 of