ORDER
1. Heard the learned counsels for the parties.
2. By this application, the petitioner has prayed for quashing the entire criminal prosecution including the order taking cognizance dated 9-8-1991 under section 276DD of the Income Tax Act, 1961 in Complaint Case No. 308 of 1991 appertaining to T.R. No. 3007 of’ 199 1.
3. It is submitted by the learned counsel for the petitioner that the petitioner had filed Money Suit No. 20 of 1984 against Shri S.K. Choubey, the then Income Tax Officer, Darbhanga, and, on the basis of the statement made in the case by the petitioner showing certain deposits in the credit of the petitioner, the present prosecution has been launched against him for violation of section 269SS punishable under section 276131) of the Act, The learned counsel for the petitioner further submitted that there was no material before the complainant to launch criminal prosecution against the petitioner alleging therein that the petitioner had contravened the provision of section 269SS, inasmuch as he had received loan otherwise than by an account payee cheque or account payee bank draft. The learned counsel also submitted that even as per the details disclosed by the petitioner it cannot be said that he had received any loan amount, rather he had received return of the loan already advanced to the loanee in transaction of the business. The learned counsel has drawn my at tention to section 269SS which contemplates that no person shall, after 30-6-1984, take or accept from any other person any loan or deposit otherwise than by an account payee cheque or account payee bank draft. The learned counsel for the petitioner further submitted that on a perusal of Annexure 3 which is a statement, of facts showing receipts of money, it would appear that the petitioner had received the money towards loan advanced by him and lie had not accepted any loan nor he had given any loan to anybody. The learned counsel also submitted that the very basis of assessment of the income-tax authority has been set aside by the Tribunal and since the very basis of the prosecution has been set aside, the present criminal prosecution launched against the petitioner shall be an abuse of the process of the court. The learned counsel for the revenue very fairly accepted this position and stated that the Tribunal has set aside the order of assessment and now there is no basis for prosecution of the petitioner.
4. Since the very basis of the prosecution has been set aside by the Tribunal, in my opinion, the present prosecution of the petitioner for an offence under section 276DD will be an abuse of the process of the court and it should not be allowed to proceed any more. I, therefore, allow this application and set aside the entire criminal prosecution launched against the petitioner, including the order taking cognizance.