By TIOL News Service

CHANDIGARH, NOV 09, 2015: BY a Writ Petition, the Petitioner has sought quashing of the FIR dated 09.06.2011 under Section 406 of Indian Penal Code registered at Police Station Manesar, District Gurgaon and the consequential proceedings arising therefrom, including the order dated 16.07.2014, whereby charge was ordered to be framed against the petitioner.

The petitioner submitted that the only alleged irregularity committed was the alleged non-payment of service tax of Rs.1,05,705/-. It is also submitted that the petitioner later deposited exactly the same amount i.e. Rs.1,05,705/- on account of service tax and, therefore, the investigating agency ought to have prepared the cancellation report in favour of the petitioner.

Moreover, it is the case of the petitioner that since the Act of 1994 was a complete Code in itself, providing a procedure for recovery as well as for penalty, registration of impugned FIR was wholly unwarranted; since the Act of 1994 was a special Act, general provisions of IPC would not be attracted. Reliance is placed on the apex court decision in Jeewan Kumar Raut and Anr. Vs. Central Bureau of Investigation , 2009 (7) SCC 526. The petitioner concluded by submitting that if the competent authority, after following the procedure provided under the Act of 1994 would arrive at a conclusion, holding the petitioner liable for any amount, petitioner would not be averse in paying the said amount. He prayed for quashing the impugned FIR and the consequential proceedings arising therefrom, including the impugned order of charge by allowing the present petition.

The counsel for the State submitted that when the impugned FIR was registered against the petitioner, he was found to have committed an offence under Section 406 IPC, while not depositing the amount of Rs.1,05,705/- on account of service tax; that the factum of deposit of said amount by the petitioner alone would not absolve the petitioner from his criminal liability.

The High Court after considering the submissions observed that in the given fact situation of the present case the petition deserves to be allowed and the impugned FIR as well as the consequential criminal proceedings arising therefrom, are liable to be quashed, for the following more than one reasons:

++ There is no denial to the fact that the moment petitioner received any demand put to him by the competent authority, he immediately deposited the amount of Rs.1,05,705/- towards service tax.

++ The Act of 1994 is a special and complete Code in itself.

++ When a pointed question was put to the counsel for the State, as to how the impugned FIR was registered under the general provisions of IPC, when the Act of 1994 was a special Act, which would prevail upon the general provisions, he had no answer.

++ It has also not been argued on behalf of the respondent-State that any competent authority, after following the procedure provided under the abovesaid relevant provisions of law contained in the Act of 1994, has arrived at a conclusion, pointing out any financial liability of the petitioner, which might have been outstanding against him.

++ Once the Act of 1994 was a special and complete Code in itself, wherein even the procedure for penalty has been provided, governing the fact situation as obtaining in the present case, registration of the impugned FIR was nothing but abuse of process of Court and the same cannot be sustained.

The impugned FIR as well as the consequential criminal proceedings arising therefrom was quashed.

(See 2015-TIOL-2564-HC-P&H-ST )