1. Present revision petition has been filed on behalf of the petitioner under Section 397 r/w 401 of Cr.P.C being aggrieved by the order dated 13.12.2019 passed in ST No. 337/2016 by ASJ, Indore whereby the learned trial Court has directed for framing charges for the offence punishable under Section 420 of IPC.

2. Briefly stated facts leading to the present petition are that as per the prosecution story, the respondent has filed a private complaint for the offences punishable under Section 276(1), 266CC,277, 277A, 278 of Income Tax Act, 1961 read with Section 420, 467, 468, 471, 120A,120-B of IPC in respect of the assessment return filed for the year 2004-2005. In the complaint, it is also alleged that the petitioner was involved in providing and making bogus and fake bills for purchase of iron and steel to various parties of Indore. It is further alleged that a search under Section 132(1) of IT Act was conducted at the residence of the petitioner and simultaneously a survey under Section 133-A of the IT Act was conducted on the business premises of the petitioner at Indore. Thereafter, considering the evidence based on the said private complaint, the learned trial Court has taken cognizance in the matter vide order dated 31.11.2011. Thereafter, vide the impugned order dated 13.12.2019, the learned ASJ, Indore has directed the learned JMFC, Indore to frame charges against the petitioner under Section 420 of IPC, hence, the present petition before this Court.

3. Learned counsel for the petitioner submits that the impugned order passed by the learned trial Court is illegal, contrary to law and facts on record so far as it relates to direction of framing of charges under Section 420 of IPC against the petitioner. It is further submitted that the offences punishable under the provisions of Income Tax Act are technical in nature and having no relevancy with the question of cheating and preparation and submission of false, forged and fabricated documents. It is further submitted that there is no allegation with regard to any fraudulent or dishonest intention. The respondent department while calculating the income of the petitioner had taken into consideration the data furnished by him and the penalty has already been dropped. It is further submitted that the petitioner has already paid all the taxes to the respondent and there is no concealment or forgery committed by the petitioner. It is further submitted that the ingredients of Section 415 of IPC are missing for establishing the charges under Section 420 of IPC. Hence, the learned court below has passed the impugned order erroneously and without considering the evidence available on record as well as the principles of law, therefore, prayed for setting aside the impugned order.

4. In support of her contention, learned counsel for the petitioner has placed reliance upon the judgement of Moti Singh S/o Shri Budha Ram vs. State of Rajasthan passed in SB Criminal Miscellaneous Bail Application No. 14358/2021 dated 01.10.2021 wherein while the court granted bail has considered that "for the sake of argument, if maximum indulgence is granted to the complainant, the offences may fall under Section 181 of IPC. In view of specific offences defined under Section 177, 181 and 182 of IPC, offence of cheating is also not made out" and also held that giving a false affidavit does not attract the offence under Section 420 of IPC. Counsel for the petitioner has also placed reliance over the judgment of this Court passed in MCRC No. 5027/2006 in Ummed Singh &Ors. vs. State of M.P. decided on 23.10.2009. She has also relied upon Manojsingh Gautam vs. State of M.P. (MCRC No. 1033/2010)

5. On the other hand, counsel appeared for Union of India has vehemently opposed the prayer by submitting that in the present matter, forged and fabricated bills have been produced by the petitioners and cause loss to the Government and fabrication/falsification of such type, the offence under Section 420 of IPC are necessary to be charged. She further submits that looking the record in the matter, at this initial stage, it is not possible to reach on the conclusion without proper appreciation of the record. Hence, the petitioner is not entitled for any relief at this time and prays for dismissal of the petition.

6. I have heard the counsel for the parties and perused the record.

7. From the face of record, it is clear that the allegation against the petitioner is to file false affidavit and bills without actual transactions regarding purchasing of iron and steel.

8. Learned counsel for the petitioner has mainly stressed that when the petitioner has been charged under the provisions of Income Tax Act then thee is no use of Section 420 and it cannot be assumed that during the course of framing of bills, the petitioner has no dishonest intention because, the preparation of bills is found with dishonest intention then he cannot be discharged from other offences. As such without dishonest intention from the initial stage, the charges of cheating under Section 420 of IPC is not made out.

9. On this point, counsel for the petitioner relying upon the judgment of K.C. Builders & Anr. vs. Assistant Commissioner of Income Tax [ (2004) 2 SCC 731] [LQ/SC/2004/122] has submitted that when the charges of other sections of imposing penalty under the Income Tax Act and other acts are culminated, the offence under Section 420 of IPC cannot be made out.

10. The existence of fraudulent intention should be at the time of preparation of bills or misrepresentation for the offence of cheating punishable under Section 420 of IPC. It cannot be assumed by a prudent man that a person while making false affidavit for false transaction he would have no dishonest intention. Thus, in the case where the allegations are of making false affidavit or submitting forge bills were made against the petitioner, he cannot be escaped from the liability of the offence of cheating.

11. The law in this regard is well settled that at the time of framing of charges, the Court has to see only prima facie case and detailed enquiry and appreciation of the evidence is not required.

12. On this aspect, in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605, [LQ/SC/2009/1669] manifesting the concerning provisions of framing charge, the Hon'ble Apex Court ordained in para no.25 reads as under:-

"25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."

13. Again, the Hon'ble Apex Court in the case of State of M.P. vs. Deepak [(2019) 13 SCC 62] [LQ/SC/2019/497] , reversing the order of discharging from charges, has enunciated the principles which the High Courts must keep in mind while exercising their jurisdiction under the provision. In this case, endorsing another case of Hon'ble Apex Court in the case of Amit Kapoor vs. Ramesh Chander [ (2012) 9 SCC 460 [LQ/SC/2012/789] has quoted as under:-

"27. .. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."

Emphasis supplied.

14. So far as the judgments cited by counsel for the petitioner in the cases of Moti Singh (Supra) is concerned, the same is related to the order of anticipatory bail and so far as other cases Ummed Singh (Supra) and Manoj Singh Gautam (supra) are concerned, the orders were passed by this Court under Section 482 of Cr.P.C by using extraordinary jurisdiction, whereas, in the case in hand, this court is dealing the matter under Section 397 of Cr.P.C., therefore, no benefit can be granted to the petitioner. However, on the other hand also, the aforesaid judgments cited by counsel for the petitioner is having no relevancy on the factual matrix of the case, therefore, the same are distinguished.

15. In view of the aforesaid facts and circumstances of the case and the principle laid down by Hon'ble Apex Court, the learned Sessions Court has directed the learned trial Court to frame the charges against the petitioner under Section 420 of IPC and the impugned order is clearly showing that the learned session Court has considered the prima facie case, therefore, at this very initial stage, without proper appreciations of the material available on record, it would be very inappropriate to conclude the matter. Therefore, the learned Session Judge has not committed any irregularity, illegality or impropriety while passing the impugned order. Hence, the present petition is dismissed.

16. Pending application, if any, also closed.

17. It is made clear that this Court has not made any observations on the merits of the case and this order shall not be come in the way of the learned trial Court while passing the final judgment.