Bangalore District Court
Smt. Azamath B vs Aged About 49 Years on 1 December, 2020
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the Ist day of December 2020
PRESENT:
Sri Venkatesh R.Hulgi, B.Com. LL.B(Spl.),
LI Addl. City Civil & Sessions Judge,
Bengaluru City.
Criminal Appeal No. 2517/2019
APPELLANTs : 1. Smt. Azamath B,
W/o. Bismilla Ahamed Basha,
Accused Aged about 49 years,
2. Bismilla Ahamed Basha,
S/o. Late B. Mohammed Ismayil,
Both are R/at No.262,4th Cross,
Vinobhanagar, Near Royal School,
K.G.Halli, Bengaluru.
(By Sri.Arun.G., Advocate)
Versus
RESPONDENT : State of Karnataka, by CID,
(E.O.D)Bengaluru-560 001,
Complainant
(By Learned Public Prosecutor)
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JUDGMENT
This appeal under Section 374(C) R/w Section 386(2) of Cr.P.C is filed by Appellant/Accused No.1 and 2 before the trial Court in CC No. 28654/2014 assailing the legality and correctness of the Judgment of learned I ACMM, Bengaluru dt: 6/11/2019 in the above case whereby the trial court has convicted both the accused No.1 and 2 for the offences punishable under Sections 465, 468 and 471 of IPC R/w Section 34 of IPC and sentenced them to undergo Simple Imprisonment for two years for each offences and also to pay fine and the sentences of imprisonment ordered to be run concurrently.
2. The facts which are required for disposal of the instant appeal, if briefly stated are as under:-
That the accused No.1 and 2 having colluded together have created and fabricated documents pertaining to Iron and Steel transactions with 11 purchasers for Rs. 5,30,08,730/-in between 1/8/2011 to 30/9/2011, but failed to pay necessary Taxes to the tune of Rs. 25,24,204/- to the Government by 3 Crl.A. No. 2517/2019 fabricating the documents. Therefore a complaint was filed against accused No.1 and 2 by complainant Ramesh Babu before the S.H.O. of Kalasipalya P.S. Bengaluru. Pursuant to the said complaint a case was registered in Crime No. 14/2012 of the aforesaid P.S. for the offences punishable under Sections 465, 468 and 471 of IPC R/w Section 34 of IPC. Subsequently the investigation of the case was handed over to the CID, Bengaluru. Thus, the Inspector of Police, (Economic offences squade), CID, Bengaluru has conducted investigation and laid down Chargesheet against both the accused.
3. The accused appeared in the Trial Court and enlarged on bail. After preliminary formalities, the Trial Court has framed the charge against accused No.1 and 2 for the aforesaid offences and it was read over and explained to the accused. As the accused pleaded not guilty and claimed to be tried, therefore to prove its case, the prosecution examined 6 witnesses in the Trial Court as PW 1 to 6, Exs. P-1 to P-35 documents are marked for the prosecution. After the evidence is closed, the trial Court has heard the 4 Crl.A. No. 2517/2019 arguments of both sides, after recording the statement of accused No.1 and 2 under Section 313 of Cr.P.C. and on perusal of materials on record has held that prosecution has proved the guilt of the accused beyond reasonable doubt. Consequently the aforesaid sentence was imposed by the Trial Court vide its Judgement and order of conviction dt: 6/11/2019 which is impugned in the present appeal on the following:
GROUNDS
(a) The Judgment and order of conviction passed by the Trial Court is illegal and against the facts and the evidence on record. Therefore, same is not sustainable under law.
(b) The Trial Court has failed to appreciate the relevant facts and documents on record, which is resulted in mis-carriage of justice.
(c) The Trial Court has failed to appreciate that accused No.1 and 2 are very innocent and were working as coolies with one Syed Imthiyaz Ahmed, who took advantage of the innocence of the accused No.1 and 2 fabricated documents.5
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(d) The Trial Court has failed to appreciate that the aforesaid person has made appellants as scapegoats for his illegal deeds.
(e) The Trial Court has failed to consider the evidence on record and also the admission given by the witnesses for prosecution.
(f) The Trial Court has failed to appreciate the documentary evidence produced by the prosecution in the light of the evidence of witnesses, thus the approach of the Trial Court to the whole case is illegal, perverse and against the well established principles of law.
Hence, the Judgment and order of conviction passed by the Trial Court impugned in present appeal is liable to be set-aside. Therefore the Appeal.
4. In response to the notice of appeal, learned Public Prosecutor has appeared for the Respondent.
5. The Trial Court records are summoned.
6. Heard the arguments of both the sides. Both sides have submitted the written arguments with citations, accepted. Perused the material placed on record. 6
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7. The following points emerge for my consideration.
POINTS
1) Whether the Trial Court has committed error in appreciation of case of prosecution and evidence lead by it?
2) Whether the Trial Court has committed error in convicting the accused for the aforesaid offences and in passing the impugned sentence?
3) Whether the Judgment and order of conviction of the Trial Court requires interference at the hands of this Court?
4) What order?
8. My findings on the above points are as under;
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: In the Negative.
Point No.4: As per the final order for the Following;
REASONS
9. Points No.1 to 3: As these points are interlinked to each other, hence they have been taken together for common discussion to avoid the repetition of facts, evidence and arguments.
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10. As mentioned above the appellants who are husband and wife have been charge sheeted by the CID Economic offences wing, Bengaluru for the offences punishable under Sections 465, 468 and 471 of IPC R/w Section 34 of IPC.
11. As this Court is the first appellate Court being the final Court of facts, therefore it is necessary to cull-out the facts of the case in brief:-
According to the prosecution, appellant No.1 is the sole proprietrix of M/s. Variety Steels, which is a dealer in Iron and Steel. Accused No.2 being the husband of accused No.1 has been helping her in carrying out the business of the aforesaid sole proprietoryship concern. According to the prosecution, accused No.1 has obtained Tax payers identification No. 29290625454 as dealer holding PAN No. ARVPA6873F. It is alleged that from the month of August and September 2011, the accused No.1 being the proprietrix of M/s Variety Steels has illegally generated 64 E-sugama delivery notes amounting to Rs. 5,04,53,402/- by fabricating the bills. When a visit was made by the team of Commercial 8 Crl.A. No. 2517/2019 Tax officials to the business place of appellant No.1 on 16/11/2011 it was found that the premises was locked and during inspection the team found that the above firm of accused No.1 has dealt with many fictitious firms under a bill trading, further evaded the tax to be given to the Government as required under law. Thus accused No. 1 and 2 by fabricating the documents and using those documents as genuine had deceived the Government to the tune of Rs.
25,24,204/- and thereby they have committed the aforesaid offences.
12. The law was set into motion by filing a complaint at Ex.P-24 by one Sri.B.Nagaraja Rao, the then Asst. Commissioner of Commercial Taxes. Initially a case was registered in Kalasipalya P.S. and later the investigation was taken over by the CID, Bengaluru as per order of the Government.
13. At the outset, the counsel for appellant would challenged the locus standi of the CID Police to investigate the matter and to submit the Chargesheet to the Court. It is 9 Crl.A. No. 2517/2019 submitted that CID not being a independent Police station has no power to conduct the investigation in the matter and to file Chargesheet before the Criminal Court. Thus the entire investigation, according to the learned advocate is vitiated as the CID lacks jurisdiction to file the Chargesheet against the accused No.1 and 2. On this count alone accused are entitled for acquittal is the argument.
14. Per contra the learned P.P. would submit that the accused did not raise this issue before the trial court at the earliest opportunity as could be seen from the trial court record, particularly the judgement of the trial court impugned in the present appeal. Consequently the accused cannot raise such a new plea in the first appellate Court. Therefore, she has prayed to reject the said line of arguments advanced by the counsel for the appellants.
15. It is noticed from the trial court records that the accused have not raised an issue of jurisdiction of CID for investigation of the case in the trial Court. Therefore the trial court had no occasion to give its finding on this issue. 10
Crl.A. No. 2517/2019 Nevertheless this Court being the first appellate Court considered this line of arguments advanced by the advocate for the appellants only to do complete justice to the parties.
16. It can be born from the records that though the tax department initially submitted a complaint before the Kalasipalya Police station which is a jurisdictional P.S. however looking to the gravity of the allegations made against the accused and its impact on the society, the government vide its order dated 2/4/2013 has transferred further investigation of the case to CID, Economic offences wing for effective investigation of the case and to submit chargessheet before the jurisdictional Court. It is true that CID is not an independent police station under such circumstances whether it has got power to conduct investigation in the case is to be seen. In this behalf I deem it proper to refer to a decision of our Hon'ble High Court in the case State of Karnataka Vs. Sri. Thamaiah and others (ILR 1999 KAR 1012) In this decision the Hon'ble High Court had occasion to discuss the aforesaid point raised by the counsel for the appellant. In Para 9 of its Judgement, Hon'ble High Court 11 Crl.A. No. 2517/2019 has held that " That the COD is a special branch established for such purposes to meet the type of crimes enumerated in para 7 of the Judgement." It is further held that the COD is not a police station as defined under Section 2(s) or no police officer is in charge of the police station according to Sec. 2(o) of the Cr.P.C. The departments would take up investigation as per the order of DIG only on the request of the Superintendent of police or the Government, depending on the nature of offence as the case may be. It is not open to lodge information to the COD to investigate the case. When it is not a police station, it cannot register a crime and submit a report to the Court, on the other hand, it can investigate the offence where the crime is registered by any police station and as requested by the Superintendent of Police, depending on the nature of the offence. Such being the case, without any reason if the Courts below were to direct the COD to conduct the investigation, which could normally be done by the regular police would hamper the investigation of the COD where their is required."
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17. From the above it is clear that though the COD is not a independent Police station, however it could make investigation of the case which are referred to it by the Government or DIG. In the instant case also the investigation of the case has been transferred to COD based on the order of Government referred to above. Therefore no one can find any illegality in CID conducting investigation of the case and filing Chargesheet against the appellants before the jurisdictional Court. Thus, for the reasons mentioned above, I am unable to accept the line of arguments advanced by the counsel for appellant.
18. Now let me turn to the facts of the instant case. The complaint is filed by the then Asst. Commissioner of commercial Taxes Sri. B.Nagaraja Rao. He set the law into motion by filing a complaint at Ex.P-24 making allegation against the accused that they have fabricated E-sugama and by making use of it, accused No.1 and 2 have created bills indulging in bill trading activities and thereby they evaded tax worth in lacks which is legally payable. The complainant has been examined as PW-3 in the instant case. In the Chief 13 Crl.A. No. 2517/2019 examination PW-3 has deposed to the effect that from 2010- 13 he was working as Asst. Commissioner of Commercial taxes in LVO-110 division, Bengaluru. According to him accused No1. Smt. B. Azamath had obtained TIN No. referred to above from the office in the name of M/s. Variety Steels dealing in Iron and Steel under VAT. As there was doubt entertained recording the transaction of the aforesaid firm, therefore PW-1 Sri. Ramesh Babu, Asst. Commissioner of Commertial Taxes was deputed to visit the premises of the said firm. Consequently Pw-1 visited the place of business of M/s. Variety Steels with subordinate officials on 16/11/2011. But very surprisingly during the course of inspection it was found that no business of steel and iron was being conducted in the said premises and on enquiry with neighbours, they informed that the premises has been closed for past few months. Therefore they have verified E- sugama used by the firm and found that by creating fictitious transactions in crores M/s. Variety Steel and Iron firm had created bills and evaded tax to be payable to the Government illegally. It is deposed by Pw-1 that the documents reveal that said firm has conducted business worth 5,04,53,402/- 14
Crl.A. No. 2517/2019 and was liable to pay taxes of Rs. 25,24,204/- to the government. Noticing this irregularity, he approached the Kalasipalya P.S. with a complaint at Ex.P-24. Later he was placed several documents as per the request made by the SHO vide its letter at Ex.P-25 and he furnished information as per Ex.P-26. He has also identified accused No.1 and 2 before the Court.
19. He has been cross-examined by the counsel for the accused. In the Cross-examination it is suggested that in the complaint, he has not referred to the name of Pw-1 who conducted the spot inspection and nothing mentioned about his report. It is admitted as true to by Pw-3. But it has no any consequences since the prosecution has examined Pw-1 to prove the aforesaid facts. Further it is suggested that in order to suppress the illegality done by one Syed Imthiyaz Ahmed, they have filed a false case against accused No.1 and
2. This suggestion is denied as false by Pw-1.
20. In the instant case to prove that accused No.1 is the proprietrix of the aforesaid firm, the prosecution has 15 Crl.A. No. 2517/2019 produced Exs. P-1 to 7 documents. Ex.P-1 is the VAT certificate standing in the name of accused No.1, which bears here signature. Ex.P-2 is the form No.2 in the name of accused No.1. Ex.P-3 is the form No. A which is also in the name of accused No.1. Exs. P4 and 5 are the lease agreements and Ration card and Pan card of Accused No.1. Ex.P-6 is the copy of the Pass book in the name of accused No.1. Ex.P-7 is the Katha extract. Ex.P-9 to P-19 are the E- sugama receipts. They clearly go to show that accused No.1 being the sole proprietrix of aforesaid firm has created E- sugama bills by using the user ID and pass word given to her by the department. Nowhere it is suggested that accused No.1 is only the name lender to the firm and she did not deal in the name of the said firm. It is argued that one Syed Imthiyaz Ahmed is the man behind these documents. But unfortunately the accused were not able to prove this aspect in the trial Court. They have not taken pain to lead any evidence in proof of their defence. Even in their 313 Cr.P.C. Statement also both the accused have not disclosed anything except denial of incriminating statement appeared against 16 Crl.A. No. 2517/2019 them. Therefore I am unable to accept the aforesaid arguments of the counsel for appellant.
21. Pw-1 is examined to prove that he had visited the premises of aforesaid firm on 17/11/2011 and found that premises was closed and on enquiry with neighbours, he came to know that the accused No.1 was not at all doing any business from the said firm. He has spoken that though the accused have crated many bills in the name of different firms, however on enquiry with owners of the said firm, they have agreed that they have not done any dealings with M/s. Variety steels. Though this witness has been cross-examined by the counsel for the accused, but nothing worth the name could be madeout to dis-believe his evidence. Thus from the evidence of this witness it becomes very clear that by fabricating several bills in E-sugama the accused have conducted only bill trading and no business in reality. It is done only to evade tax payable to the Government. The E-sugama receipts indicate that they have been generated from the TIN No. given to the accused on various dates by using the user ID and pass word given by the department. Both the accused have 17 Crl.A. No. 2517/2019 failed to demonstrate how they were not able to show how the E-sugama bills were generated without their knowledge. Therefore, the evidence of Pw-2 which fully corroborate the evidence of Pw-3 remains unchallenged by the accused.
22. PW-2 Ravindra babu is said to be the Proprietor of M/s. Sumo steels doing business of Iron and Steels at Bombu Bazzar. He claim that he has obtained VAT Registration No and TIN No. from the department in the name of his wife Sujatha. He further deposed to the effect that in the year 2011, he has purchased Iron and Steel from various forms amounting to Rs. 16,30,000/- and he paid Rs. 94,000/- towards VAT through a D.D. and cheque to M/s. Variety steels. However he came to now that said VAT input tax has not been paid by M/s. Variety steels and accordingly, he has paid Rs. 94,000/- to the department with interest. Thus it is clear from the evidence of this witness that though he has generated the tax bills in the name of M/s. Variety steels, but which has not paid the same to the Government. Though he was cross-examined by the counsel for the 18 Crl.A. No. 2517/2019 accused, but nothing could be madeout in the cross- examination of Pw-2 to disbelieve his version.
23. Pw-4 is the owner of M/s. Heera Metal and who submitted to the effect that in theyear 2011 he has purchased materials worth Rs. 5,49,623/- from M/s. Variety steels and tender Rs. 26,173/- towards VAT through a cheque in the name of M/s. Variety steels. But later he learnt from the police that the later company has failed to tender the said amount to Government. In this behalf this witness has identified Ex. P-28 VAT Certificate, Ex.P-29 VAT form No.1, Ex.P-30 the Invoice issued by M/s. Variety steels. Ex.P-31 is the Bank Statement and Ex.P-32 is the Tax returns of this witness. Here also in the cross-examination of this witness nothing could be madeout by the accused to discard the evidence of Pw-4 in the chief examination.
24. Pws 5 and 6 are also owners of the business firms dealing with Iron and steel. Unfortunately, they have failed to support the case of prosecution. However this will not affect the case of prosecution as from the evidence of Pws 1 to 4, the 19 Crl.A. No. 2517/2019 prosecution is able to prove the allegation made against the accused beyond any doubt.
25. Thus from the evidence of Pws-1 to 4 and Exs. P-1 to P-35, it becomes very clear that accused No.1 being the sole proprietrix of M/s. Variety Steels and accused No.2 being her husband, but to establishing her in the business have done bill trading by fabricating the E-sugama bills and thereby they evade Tax of Rs. 25,24,204/- legally payable to the Government. During the course of arguments, the counsel for the appellant would submit that the prosecution has failed to examine the I.O. Hence it is fatal to the case of prosecution. I do not find any justification in this argument as the offence in its very nature is a technical offence and witnesses who are examined have sufficiently spoken about the alleged acts of accused No.1 and 2. Nothing is made out in their cross-examination to discard their evidence. Above all the documents produced by the prosecution would clearly support its case as to how accused No.1 being sole proprietrix of the above firm and accused No.2 being her husband have generated E-sugama bills and done the bill trading without 20 Crl.A. No. 2517/2019 real transaction only to avoid payment of tax. Therefore, the aforesaid line of argument has no any substance.
26. The counsel for appellant has also submitted that accused No.1 and 2 are very innocent and poor persons. They were working under one Syed Imthiyaz Ahemd and as per his request accused No.1 lent her name for the business purpose. The said person is the main man behind the entire crime. Therefore accused No.1 and 2 are not guilty of the alleged offences. To support his arguments the counsel for appellants has referred to the decision of the hon'ble Apex Court in the case of Sheila Sebastian Vs. R. Jawaharaj and another. ((2018)7 Supreme Court Cases 581). In the said decision it is held that "Charge of forgery cannot be imposed on/sustained against a person who is not the maker of false document in question."
27. There is no any querell with preposition of law laid down by the Apex Court in the above decision. But in the instant case as mentioned above, nothing is suggested to the witness for prosecution in their cross-examination that 21 Crl.A. No. 2517/2019 accused No.1 is the only name lender and entire business was carried out by the above referred Syed Imthiyaz Ahmed. Further in their 313 Cr.P.C. Statement also the accused have not stated this fact. They have not lead any evidence in their defence. On the other hand the prosecution has produced all the documents which are in the name of accused No.1 bearing her signatures. This is an admitted fact that the department had given user ID and password to generate E- sugama in the name of accused No.1 only. In such circumstances I am of the opinion that accused No.s 1 and 2 are not innocent. Hence the law laiddown in the above decision would not help the case of appellant to seek acquittal.
28. The learned Public Prosecutor has referred to the following decisions to argue that prosecution has proved its case against the accused beyond all reasonable doubt. They are:-
1) 1994 Cri.L.J. 2254 (Jayalal Sahu and etc., Vs. State of Orissa).22
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2)1995 Cri.L.J. 3748 (Ganesh Jadav and others Vs. State of Assam)
3)(2009)2 Crimes 415(SC) (Narendra Vs. State of Karnataka) In these 3 decisions the Hon'ble Courts have held that "a presiding judge is duty bound not only to see that no innocent is punished, but also that guilty does not go unpunished."
(4) The Public prosecutor has also referred to the decision of Hon'ble Apex Court reported in 2020(3) Crime 291(SC) (Smt. Shamim Vs. State (GNCT of Delhi) where in the Apex Court has held that a duty of a criminal Court is not only to see that no innocent is punished, but also to see that no guilty person escaped.
(5) ILR 1999 KAR 1012 (State of Karnataka Vs. Sri. Thammaiah & others and ILR 1999 KAR 4274 (Krishna Reddy Vs. State of Karnataka & others.) are referred to argue that the COD being an independent investigating 23 Crl.A. No. 2517/2019 agency has power to conduct investigation of the case if matter is referred to it.
(6) (1996) 2 Supreme Court cases 317 (Behari Prasad and others Vs. State of Bihar) is referred to argue that non- examination of the I.O. do not perse vitiate the trial if the commission of alleged offences is proved by the prosecution by the evidence of other eye witnesses and documents. (7) (2004)7 SCC 487 (State of Karnataka Vs. Bhaskar Kushali Kotharkar and others) is referred to submit that non-examination of I.O. is not fatal if no contradictions are madeout in the evidence of vital witnesses. (8) On the similar points the learned Public prosecutor has also referred to the decision of Apex Court in the case of (Mano dutt and another Vs. State of Uttar Pradesh) (2012)4 SCC 79. and 1984 CrilLJ 1423 ( Gura Singh Vs. State of Rajastan) has referred to by learned Public prosecutor to argue that mere suggestion made in the cross- 24
Crl.A. No. 2517/2019 examination however ingenious have no evidentiary value unless accepted by the witness or proved by other evidence. (9) The learned Public prosecutor has referred to decision of Apex Court in the case of Surender Kumar Vs. State of Punjab ((2020)2 SCC 563) to argue that merely because prosecution has not examined any independent witnesses would not necessary lead to conclusion that accused was falsely implicated in the case. Further evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.
(10) The decision of Hon'ble High Court of West Bengal in the case of Furkan Sk Vs. the State of West Bengal 2015 SCC online Cal 4611 has referred to submit that a man may lie, but a document will never lie. It is pressed into service in the light of documentary evidence produced by the prosecution in the instant case.
30. Thus on a over all consideration of evidence on record in the light of the allegations made against accused 25 Crl.A. No. 2517/2019 No.1 and 2, I find that the trial court has not committed any error in appreciating the case of prosecution in the light of the available evidence and has not committed any error in holding that accused No.1 and 2 are guilty of the offences alleged and convicted them. Consequently I am of the considered view that the Judgement and Order of conviction of the trial court impugned in the present appeal does not require interference at the hands of this Court. Thus for the reasons and discussions made above, I answer Points No.1 to 3 in the Negative .
31. Point No.4:- In the result of my above discussions, I proceed to pass the following:
O R D E R The Criminal Appeal filed by the accused/appellants No.1 and 2 U/Sec. 374(3) of Cr.P.C. R/w Sec. 386(2) of Cr.P.C., is hereby dismissed.
The Judgment and order of conviction dated 6/11/2019 passed by I ACMM Court, Bengaluru, in CC No.28654/2014, is hereby confirmed. 26
Crl.A. No. 2517/2019 No order as to cost.
Send a copy of this Judgment to the Trial Court along with LCR forthwith.
(Dictated to the Judgement writer, transcribed and computerized by her, the same is corrected, signed and then pronounced by me on this the Ist day of December 2020) (VENKATESH.R.HULGI) LI Addl. City Civil & Sessions Judge, BENGALURU.
27 Crl.A. No. 2517/2019 (Judgment is pronounced in the open court. Operative portion of the same is extracted as under) OR D E R The Criminal Appeal filed by the accused/appellants No.1 and 2 U/Sec. 374(3) of Cr.P.C. R/w Sec.
386(2) of Cr.P.C., is hereby dismissed. 28 Crl.A. No. 2517/2019 The Judgment and order of conviction dated 6/11/2019 passed by I ACMM Court, Bengaluru, in CC No.28654/2014, is hereby confirmed. No order as to cost. Send a copy of this Judgment to the Trial Court along with LCR forthwith. (VENKATESH.R.HULGI) LI Addl.City Civil & Sessions Judge, Bengaluru City. 29 Crl.A. No. 2517/2019