← Library
Bombay High CourtWP/2803/2024allowed

Clifton Zimmermann v. The State Of Maharashtra

2025-08-07Hon'Ble Shri Justice Jitendra Shantilal Jain2 pages

2025:BHC-AS:33784 Sayyed 15-WP.2803.2024.docx IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL CRIMINAL WRIT PETITION NO.2803 OF 2024 WRIT PETITION NO.2803 OF 2024 Dr. Clifton Zimmermann Dr. Clifton Zimmermann ...

...Petitioner

Petitioner

Versus

Versus

The State of Maharashtra & Ors.

The State of Maharashtra & Ors.

...

...Respondents

Respondents _____________________________________________________ Mr. Kushal Mor a/w Mr. Kunal Kanungo, Ms. Rupa Shaw i/by S. Mr. Kushal Mor a/w Mr. Kunal Kanungo, Ms. Rupa Shaw i/by S. Venkateshwar for the Petitioner.

Venkateshwar for the Petitioner.

Mr. Shrikant Yadav, APP for Respondent No.1-State. Mr. Shrikant Yadav, APP for Respondent No.1-State. Mr. Y. S. Bhate for Respondent Nos.2 & 3.

Mr. Y. S. Bhate for Respondent Nos.2 & 3.

_____________________________________________________ CORAM :

Jitendra Jain, J.

DATED : 7 August 2025 PC.:- 1.

This petition challenges the issuance of process and summons This petition challenges the issuance of process and summons against the Petitioner in Criminal Case No.SW/3800068/2014 before against the Petitioner in Criminal Case No.SW/3800068/2014 before the learned Metropolitan Magistrate 38 the learned Metropolitan Magistrate 38th th Court at Ballard Pier, Mumbai Court at Ballard Pier, Mumbai 2.

In complaint, it is baldly averred that the Petitioner being a In complaint, it is baldly averred that the Petitioner being a Director of the Company was responsible for deducting the tax at source Director of the Company was responsible for deducting the tax at source and making the payment in time with the treasury. In the complaint, it and making the payment in time with the treasury. In the complaint, it is also baldly averred that the Petitioner is a principal officer responsible is also baldly averred that the Petitioner is a principal officer responsible for deduction of tax at source. Except this bald averments, there is no for deduction of tax at source.

Except this bald averments, there is no other averment on the basis of which it can be said that the Petitioner other averment on the basis of which it can be said that the Petitioner was responsible in day-to-day conduct and affairs of the business of the was responsible in day-to-day conduct and affairs of the business of the Company. The Petitioner has filed Form No.32 to show that he is an Company. The Petitioner has filed Form No.32 to show that he is an Additional Independent and Non-Executive Director of the Company. Additional Independent and Non-Executive Director of the Company. This has not been rebutted by the Respondents. There is also no notice This has not been rebutted by the Respondents. There is also no notice to the Petitioner for treating him as a principal officer.

to the Petitioner for treating him as a principal officer.

Sayyed 15-WP.2803.2024.docx 3.

The learned counsel for the Petitioner and Respondents The learned counsel for the Petitioner and Respondents submit that there was a delay in depositing the TDS, but the TDS has submit that there was a delay in depositing the TDS, but the TDS has been deposited alongwith interest for the delay. been deposited alongwith interest for the delay. 4.

The issue of whether Non-Executive Director can be charged The issue of whether Non-Executive Director can be charged with the offence under Section 276B read with Section 278B of the with the offence under Section 276B read with Section 278B of the Income Tax Act, 1961 had come up before this Court in the case of Income Tax Act, 1961 had come up before this Court in the case of Homi Phiroz Ranina vs. State of Maharashtra Homi Phiroz Ranina vs. State of Maharashtra1. In my view, the facts of . In my view, the facts of the present the present case are similar to the facts of present case in the case of case are similar to the facts of present case in the case of Homi Phiroz Ranina Homi Phiroz Ranina (supra) (supra). Furthermore, the process has been issued .

Furthermore, the process has been issued without due application of mind by only mentioning issue process. without due application of mind by only mentioning issue process. Therefore, on both these grounds, the impugned orders issuing process Therefore, on both these grounds, the impugned orders issuing process and summons dated 5 March 2014 and 6 July 2022 respectively are and summons dated 5 March 2014 and 6 July 2022 respectively are hereby quashed and set aside.

hereby quashed and set aside.

5.

I clarify that the order passed in this petition is applicable only I clarify that the order passed in this petition is applicable only to the Petitioner (Accused No.5) before me and not to any other to the Petitioner (Accused No.5) before me and not to any other Accused in the criminal case filed by the Respondents which is a subject Accused in the criminal case filed by the Respondents which is a subject matter of the present petition.

matter of the present petition.

6.

The Petition is disposed of in above terms. No costs. The Petition is disposed of in above terms. No costs. (Jitendra Jain, J.) 1 ( (2003) 3 Mah LJ 34 2003) 3 Mah LJ 34 Signed by: Sayyed Saeed Ali Designation: PA To Honourable Judge Date: 07/08/2025 17:46:23