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TMI Blog1990 (10) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... ntenced to pay a fine of Rs. 1,000 under each count and also imprisonment till the rising of the court ; in default of fine, simple imprisonment for a term of six months. Aggrieved by the said judgment, an appeal for enhancement of the sentence has been filed by the Income-tax Department, whereas A-2 filed an appeal in the lower appellate court challenging the conviction. That was transferred to this court and numbered as Criminal Appeal No. 210 of 1988. Both the appeals are heard together. The brief facts of the prosecution case as spoken to by P. Ws. 1 and 2 are as follows: A-1 is a firm by name Messrs. City Dry Fish Company, Vijayawada, represented by its managing partner, Syed Suleman, A-2, and its accountant, Mohd. Zahrullah, A-3. They were carrying on business in dry fish at Vijayawada. The said firm was an assessee on the file of the Income-tax Officer, "E" Ward, Vijayawada. The accounting year of the firm ends with September 30, every year. No estimate was filed for the assessment year 1979-80. Exhibits P-3, P-4 and its verification exhibits P-4(a), its enclosures exhibit P-5, the profit and loss account and the computation of income were signed by A-2. Basing on exhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, there is no, appeal preferred by A-3 now in this court. Learned counsel for the Appellant (A-2) in Tr. Cr. A. P. No. 1637 of 1989 contends that there is no legal evidence to base a conviction, that the alleged documents, i.e., return of income filed by A-1 firm for the assessment year 1977-78, profit and loss account and computation of income statement signed by A-2, ledger of A-1 firm for the assessment year 1977-78, statement recorded from A-3 by the then inspectors, the late G. Krishna Rao and J. Chakravarthi, report of the inspectors submitted to the late S. V. K. Appaji Rao, the then Income-tax Officer, E-Ward, on September 11, 1980, secret books seized during the survey and other documents, are not properly proved and that, therefore, the conviction of A-2 cannot be based on the above evidence. Learned Special Public Prosecutor of income-tax cases contended that the above documents are all public documents and they are properly proved by the prosecution witnesses, P, Ws. 1 and 2. The court below thoroughly appreciated the evidence of the prosecution witnesses and convicted the accused. There are no grounds in this appeal and it is liable to be dismissed. To apprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-2 has only signed on the blank forms, that the said forms were subsequently filled in by some other persons and that there was no knowledge on the part of A-2 that he was filing a false return. It must be noted that A-2 is none other than the managing partner of A-1 firm, that he is dealing with the affairs of the firm A-1 and that, therefore, on the face of it, it cannot be believed that A-2 has no knowledge of the contents therein and that A-2 signed on the blank forms and some other person had filed the returns. This assertion is also falsified by the evidence of the defence witnesses. D. W. 1, the income-tax practitioner at Vijayawada, deposed that he is the consultant for A-1 firm from 1975 onwards, that A-3 was instructing him in the preparation of the returns and that A-2 was signing and sending the filled returns. He specifically stated that A-2 signed and filed the returns. In view of the evidence spoken to by D. W. 1, I see no force in this contention. It is next contended that there is no evidence to show that exhibits P-15 and P-16, secret account books, which were produced before the court, are the same account books that were seized from the house of A-3 and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence to show that exhibit P-16 was written by any particular person. But it is the case of A-1 firm that A-3 was the accountant and that he was maintaining the accounts and writing accounts. Further, the fact that the account books were seized from the house of A-3 and the statements of A-2 and A-3 were recorded by the Income-tax Inspectors would go to show that A-3 was maintaining the accounts. Apart from that, the firm itself had filed a revised return based on exhibit P-16. Therefore, the non-examination of the person who prepared the accounts matters little and on that basis the entire case cannot be thrown out. It is further contended by learned counsel that even taking that there is discrepancy of income in the original return and the subsequent return, still it cannot be said that the offences of concealment and fabrication of documents are made out. It must be noted that there is not only difference of income in the two returns but the same fact was also spoken to by P. W. 1 whose evidence is based on the documents, exhibits P-3, P-3(a), P-5, P-15, P-16, P-20, and P-29. Therefore, the case of the Department rests not only on the record but also on the evidence of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the Indian Penal Code, it is the Income-tax Officer, E-Ward that had to file the complaint and not the Income-tax Officer of A-Ward. Not having done so, the prosecution cannot be sustained. In the above case, the accused was convicted under sections 467 and 193 of the Indian Penal Code. Another accused was convicted under section 467 of the Indian Penal Code. On appeal, the Karnataka High Court set aside the conviction and acquitted Hamareddy on the ground that the complaint was filed by a private individual and not by the court. In appeal against the acquittal, their Lordships of the Supreme Court held that since the fabricated sale deed was not put in evidence at any stage of the suit, the accused was liable under section 467, Indian Penal Code, and hence the accused was convicted of the offence under section 467 of the Indian Penal Code, but confirmed the acquittal of Hamareddy of the offence under section 193 because there was no complaint from the court. It is on the basis of the above observations of the Supreme Court, it is contended, that even for the offence under the Income-tax Act, the complaint should have been filed by the Income-tax Officer, E-Ward, but not by P. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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