Punjab-Haryana High Court
Income-Tax Officer vs Kesho Ram on 29 May, 1991
Equivalent citations: [1993]199ITR164(P&H)
JUDGMENT Harbans Singh Rai, J.
1. As the facts of Criminal Revisions Nos. 166 and 167 of 1990 are the same, they are disposed of by this order.
2. The brief facts are that the firm, M/s. Sat Pal Tarsem Lal, Desi Wine Contractors, Bhawanigarh, in the financial year 1975-76 had shown a bogus credit of Rs. 10,000 in the name of Ram Nath. In order to prove the genuineness of this credit, the firm filed an affidavit dated April 14, 1977, purported to have been signed by Ram Nath before the Income-tax Officer and produced a person purported to be Ram Nath before him. The Income tax Officer cross-examined Ram Nath and he was cross-examined by counsel for the firm. Ram Nath signed his statement. The said firm also filed an affidavit purported to have been signed by Ram Nath before the Appellate Assistant Commissioner of Income-tax, Patiala.
3. The signatures on both the affidavits and the statement dated August 5, 1977, are the signatures of Kesho Ram. Kesho Ram impersonated as Ram Nath. The Income-tax Commissioner authorised Shri J.B.S. Gill, Income-tax Officer, Patiala, to file the complaint against Kesho Ram accused.
4. The learned Magistrate accepted the prima facie evidence led by the prosecution and started trial after framing the charge against the accused. The accused filed revision petitions against the order of the Judicial Magistrate, Patiala, dated September 13, 1988, which were accepted by the learned Additional Sessions Judge, Patiala, vide his order dated October 12, 1989. Feeling aggrieved against the order of the learned Additional Sessions Judge, the petitioner has filed the present revision petition.
5. The complainant, in support of its case, examined the following persons :
P.W.-1, Y.K. Ghaiha, proved the authorisation exhibit P-4 for launching the present complaint. He proved a specimen writing of Kesho Ram, exhibit P-1. He also stated that a specimen writing of Kesho Ram was given by him as Ram Nath and the original is signed by him and the photostat copy of the same is exhibit P-G. P.W.-2, Ajit Singh Chhabra, Income-tax Officer, stated that proceedings of assessment of the accused-firm for the assessment year 1976-77 were pending before him as he was posted as Income-tax Officer in those days at Patiala. The return was duly signed and verified by Tarsem Lal, partner of that firm. The said firm had introduced a cash credit of Rs. 10,000 in the name of Ram Nath who filed an affidavit dated April 14, 1977, photostat copy of which is exhibit P-5. He also recorded the statement of Kesho Ram who was posing as Ram Nath. Kesho Ram had impersonated himself as Ram Nath while filing the affidavit and giving the statement.
P.W.-3, Dharam Pal Sharma, Inspector, stated that he recorded the statements of Ram Nath, son of Baru Ram, and the copy of which is exhibit P-7.
P.W.-4, Shri J.B.S. Gill, proved exhibit P-4, the authorisation given by Shri S.C. Prashar, Commissioner of Income-tax, Patiala, vide which he was authorised to file the present complaint. He also proved the specimen signatures of Ram Nath. He further proved the statement of Ram Nath, exhibit P-9, recorded by him.
P.W.-5, Dewan K.S. Puri, document expert compared the signatures of Ram Nath.
6. I have heard learned counsel for the parties and gone through the record with their help.
7. Mr. A.K. Mittal, learned counsel for the petitioner, has referred to an unreported judgment of this court in ITO v. Emerson Paul Plastic Co. (since reported in [1991] 191 ITR 560) (Criminal Misc. Nos. 2467-M and 2648-M of 1987) decided by A.P. Chowdhri J., on February 25, 1991, and submits that the facts of this judgment squarely apply to the facts of these cases. The relevant portion of ITO v. Emerson Paul Plastic Co. [1991] 191 ITR 560, is as under (at page 563) :
"Regarding the merits of the petitions, two points arise for consideration. One is--what is the precise connotation of the expression 'no case against the accused has been made out which, if wnrebutted, would warrant his conviction' occurring in Section 245 of the Code of Criminal Procedure and, secondly, what is a prima facie case ? Both the courts below have taken the view that the standard of proof required for framing the charge is more than that of a prima facie case. By doing so, both the courts fell into a grave error which has consequently resulted in failure of justice. The question as to the interpretation of Section 245 of the Code is not res integra. In R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045, the Supreme Court pointed out that the provisions regarding discharge were contained in Sections 227, 239 and 245 depending on the fact whether the case was triable by the Court of Session or it was instituted on a police report or otherwise than on a police report. It was further pointed out that the three provisions contained somewhat different languages in regard to the discharge of the accused. It was concluded in paragraph 44 of the report at page 2071 '. . . Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed.' A question immediately arises that the stage for the accused to put forward his plea by making a statement under Section 313 and of leading evidence in defence arises only on the conclusion of the prosecution evidence and what would be the meaning left 'in rebuttal' referred to in Section 245. This question was answered by their Lordships in para 47 at page 2072 by saying that there was no scope for doubt that the 'rebuttal case' envisaged in Section 245(1) was fairly clear from the cross-examination of prosecution witnesses as also from the documents, if any, exhibited before the court. The standard required to be applied in cases instituted otherwise than on a police report for purposes of framing a charge is thus a prima facie case.
This brings me to a consideration of the next question as to what is meant by a prima facie case.
In R.S. Nayah's case, AIR 1986 SC 2045, the Supreme Court gave an illustration to bring out the meaning of the expression 'prima facie case'. It was stated that if the scales of a part as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then, in such a situation, ordinarily and generally, the order, which will have to be made will be one under Section 228 (charge to be framed) and not under Section 227 (of discharge). Making a reference to Superintendent and Remembrancer of Legal Affairs v. Anil Kumar, AIR 1980 SC 52, in which State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 was quoted, it was observed that the truth, veracity and the effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of the charge. In determining whether a prima facie case had been made out, the evidence of the witnesses is entitled to a reasonable degree of credit. Where much can be said on both sides, it would be for the trial court to decide whether to accept the evidence or not. For purposes of prima facie case, the same would have been made out. A prima facie case is not made out where the evidence is totally unworthy of credit or the same is patently absurd or inherently improbable. It is obviously not possible to define the expression 'prima facie case' because it will vary from case to case."
8. The complainant has led prima facie evidence which clearly shows a case against the accused. The learned Additional Sessions Judge by stretching the provisions of law and giving importance to minor and superficial contradictions and deficiencies in the prosecution case discharged the accused. At this stage, prima facie case is to be seen and the prosecution has clearly made out a prima fade case against the accused. The learned Additional Sessions Judge has committed an error of law in discharging the accused. The order of discharge dated October 12, 1989, passed by the Additional Sessions Judge, Patiala, is set aside and the order of the Magistrate dated September 13, 1980, framing the charge against the accused is restored. The parties are directed to appear before the trial court on July 22, 1991.