N.K. Mody, J.@mdashBeing aggrieved by the judgment dated April 23, 1994, passed by the Additional Chief Judicial Magistrate (Economic Offences) Indore, in Criminal Case No. 5 of 1985, whereby the respondents were convicted of an offence punishable u/s 276C and 277 of the Income Tax Act, 1961, 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.
2. 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 Rameshchandra Sethi u/s 276C, 277 of the Income Tax Act, 1961, and u/s 420 read with Section 511 of the Indian Penal Code on March 29,1985, by the then Income Tax Officer Mr. N.R. Gupta under the directions of the Commissioner of Income Tax, Bhopal, u/s 279 of the Income Tax Act (which shall be referred hereinafter as the "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 Section 68 of the Act on which the firm evaded tax. Learned trial court after taking cognizance, framed the charges under Sections 276C, 277 of the Act. Prior to it during pendency of the criminal case Mr. Rameshchand Sethi died on September 20, 1991. After framing of charges the petitioner examined Mr. Andrew Dutt, Inspector of Income Tax as PW/1 and Shyamkishore Mehta, Income Tax Officer as PW72. After recording of evidence the learned trial court convicted the three accused namely M/s. Rajkamal Agency, Smt. Mamta Sethi and Smt. Sheela Jain u/s 276C, 277 of the Act but released them on probation of good conduct on a bond of Rs. 10,000 for two years u/s 4 of the Probation of Offenders Act, 1958, vide judgment dated December 23, 1994, against which the present appeal has been filed for enhancement of sentence.
3. The appeal was listed for hearing on August 26, 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. A. No. 661 of 2000 arising out of SLP No. 823 of 1999, which was allowed by the apex court vide order dated August 11, 2000 (
The contention of the appellant-Union is that the trial court as well as the High Court missed to notice Section 292A of the Income Tax 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 Income Tax 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 u/s 276C or 277 of the Income Tax Act. It is open to the respondents to canvass for the said position in the appeal which the 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.
4. Mr. A.S. Parihar, learned Counsel for the 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 the learned court below in giving the benefit of the 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.
5. Learned Counsel for the respondents submits that the appeal itself deserves to be dismissed as the appeal has been filed by the Counsel for the Department who is not authorised to file the appeal u/s 277 of the Criminal Procedure Code. 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 been defined u/s 24 of the Criminal Procedure Code. The standing Counsel of the Department is not appointed as public prosecutor within the meaning of Section 24(2) of the Criminal Procedure Code, therefore, the appeal filed by the appellant u/s 377(2) of the Criminal Procedure Code, is not maintainable. For this contention reliance is placed on a decision in the matter of
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.
7. Section 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 be true, he 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.
8. From a 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 citizens by now, no illegality has been committed by the learned court below in giving the benefit of the Probation of Offenders Act inspite of their conviction. So far as acquittal of the respondents is 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.
