High Court Of Madhya Pradesh : Indore Bench
Union Of India vs. Smt. Mamta Sethi & Ors.
Section 68, 276C, 277, 278B, 279, 292A, Criminal Procedure Code 1973, ss. 24, 24(2), 277 & 377(2); Indian Penal Code, ss. 420 & 511; Probation of Offenders Act, 1958, s. 4
N.K. Mody, J.
Criminal Appeal No. 213 of 1995
5th May, 2009
Counsel appeared :
A.S. Parihar, for the Appellant : S.K. Jain, for the Respondents
JUDGMENT
N.K. Mody, J. :
Being aggrieved by the judgment dt. 23rd Dec., 1994 passed by Addl. CJM (Economic Offence), Indore in Criminal Case No. 5 of 1985 whereby the respondents were convicted for an offence punishable under ss. 276(C) and 277 of IT Act, but were released by giving benefit of Probation of Offenders Act upon furnishing the bond for a period of two years of good conduct, the present appeal has been filed.
Short facts of the case are that a private complaint was filed against four accused namely M/s Rajkamal Agencies, a registered partnership firm and its three partners Smt. Mamta Sethi, Smt. Sheela Jain and Rameshehandra Sethi under ss. 276(C) and 277 of IT Act, 1961 and under s. 420 r/w s. 511 of IPC on 29th March, 1985 by the then ITO, Mr. N.R. Gupta under the directions of the CIT, Bhopal under s. 279 of IT Act (which shall be referred hereinafter as an “Act”). In the complaint it was alleged that the firm M/s Rajkamal Agency credited Rs. 50,000 in its books in the name of Hazarilal Harikishan and showed as deposited Rs. 33,000 in the Andhra Bank in its account, but according to entry in its book it was Rs. 30,000 relating to a cheque of Rs. 30,000 received from the M/s Rajkumar Mills. It was alleged that there was unexplained cash credit of Rs. 53,000 within the meaning of s. 68 of the Act on which the firm evaded tax. Learned Trial Court after taking cognizance, framed the charges under ss. 276(C) and 277 of the Act. Prior to it during, pendency of the criminal case Mr. Rameshchandra Sethi died on 20th Sept., 1991. After framing of charges petitioner examined Mr. Andrew Dutt, Inspector of Income-taxT as PW/1 and Shyamkishore Mehta, ITO as PW/2. After recording of evidence the learned Trial Court convicted the three accused namely, M/s Rajkamal Agency, Smt. Mamta Sethi and Smt. Sheela Jain under ss. 276(C), 277 of the Act but released them on probation of good conduct on a bond of Rs. 10,000 for two years under s. 4 of the Probation of Offenders Act, 1958, vide judgment dt. 23rd Dec., 1994. against which the present appeal has been filed for enhancement of sentence.
The appeal was listed for hearing on 26th Aug., 1997 and was dismissed holding that there is no reason to interfere with the order of the Trial Court, against which an appeal was preferred by the petitioner before the Hon’ble apex Court which was numbered as Crl. Appeal No. 661 of 2000 arising out of SLP No. 823 of 1999, which was allowed by the Hon’ble apex Court vide order dt. 11th Aug., 2000 and the order passed by this Court was set aside with the following directions :
“The contention of the appellant Union is that the Trial Court as well as the High Court missed to notice s. 292A of the Indian IT Act containing an express bar against the invocation of the provisions of the Probation of Offenders Act in respect of the offence enumerated in the IT Act. Prima facie, the said interdict is insurmountable but learned counsel for the respondents contended that they are able to convince the High Court that they are not liable to conviction at all under s. 276C or 277 of the Indian IT Act. It is open to the respondents to canvass for the said position in the appeal which Union filed against them. Without prejudice to their right in raising such contention we set aside the impugned order and send the criminal appeal back to the High Court for disposal afresh according to law.”
Mr. A.S. Parihar, learned counsel for appellant argued, at length and submits that the impugned judgment passed by the learned Court below so far as it relates to sentence, is illegal and deserves to be set aside. It is submitted that there was no justification on the part of learned Court below in giving benefit of Probation of Offenders Act to the respondents while the learned Court below found that the respondents have committed the offence. It is submitted that the appeal filed by the appellant be allowed and the judgment so far as it relates to sentence is concerned be modified and the respondents be convicted as per the Act.
Learned counsel for the respondent submits that the appeal itself deserves to be dismissed as the appeal has been filed by the counsel of the Department who is not authorised to file the appeal under s. 277 of Cr.PC. It is submitted that the appeal should have been filed by the Public Prosecutor under the directions of the Government of India. It is submitted that there is no agency empowered to make investigation under the Act. It is submitted that Public Prosecutor has defined under s. 24 of Cr.PC. The standing counsel of the Department is not appointed as public prosecutor within the meaning of s. 24(2) of Cr.PC, therefore, the appeal filed by the appellant under s. 377 (2) of Cr.PC is not maintainable. For this contention reliance is placed on a decision in the matter of Asstt. CCE vs. Krishnamoorthy AIR 1997 SC 1904 wherein in an appeal for enhancement on account of inadequacy, Hon’ble apex Court held that Public Prosecutor and not complainant has locus standi to file appeal. Learned counsel further submits that the appeal filed by the appellant also deserves to be dismissed as the partners of a firm cannot be made liable for any offence under the Act unless the requirements of s. 278B are fulfilled. It is further submitted that there should be allegation in the complaint that the partner at the time of offence committed, was in-charge of and was responsible to the firm for the conduct of the business of the firm and there should be evidence in support thereof. It is submitted that there is absolutely no allegation in the complaint that the partners or any of them, at the time of offence committed, was in-charge of and was responsible to the firm for the conduct of the business of the firm. On the strength of this, it is submitted that the conviction of the respondent deserves to be quashed.
6. Sec. 276C reads as under : Wilful attempt to evade tax. etc. (1) If a person wilfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under this Act he shall without prejudice to any penalty that may be imposable on him under any other provision of this Act be punishable— (i) in a case where the amount sought to be evaded exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine : (ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine. (2) If a person wilfully attempts in any manner whatsoever to evade the payment of any tax, penalty or interest under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and shall, in the discretion of the Court, also be liable to fine. Sec. 277 reads as under : False statement in verification, etc. If a person makes a statement in any verification under this Act or under any rule made thereunder, or delivers an account or statement which is false, and which he either knows or believes to be false or does not believe to he true, be shall be punishable,— (i) in a case where the amount of tax which would have been evaded if the statement or account had been accepted as true, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine; (ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine.
7. From perusal of the record it is evident that after due appreciation of evidence, the learned Court below has convicted the respondents and since the respondents are women and were aged 47 years and 44 years in the year 1995 who must have attained the age of senior citizen by now, no illegality has been committed by the learned Court below in giving the benefit of Probation of Offenders Act in spite of their conviction. So far as acquittal of the respondents are concerned since no appeal has been filed by the respondents, therefore, at this stage the respondents cannot be acquitted. In view of this appeal filed by the appellant stands dismissed.
[Citation : 322 ITR 440]
