Patna High Court
Mahabir Prasad Saraogi vs State Of Bihar And Anr. on 25 September, 1978
Equivalent citations: [1979]120ITR663(PATNA)
JUDGMENT Muneshwari Sahay, J.
1. This application is directed against the conviction of the petitioner for offences under Sections 193, 465 and 471 of the Indian Penal Code.
2. The petitioner is a partner of a firm known as M/s. Shriniwas Jhabarmal which carries on business at Dehri. The other partner of this firm is the petitioner's brother, Shankar Lal Saraogi. The firm was granted registration of partnership under Section 26A of the I.T. Act, 1961, in the year 1953-54. Under the income-tax law when a registration of the partnership is granted to a firm for any assessment year it can have effect for every subsequent year provided the firm furnishes a declaration in Form No. 12 along with the return for the assessment year concerned, stating therein that there has been no change in the status of the firm or in the shares on the partners as evidenced by the instrument of partnership. The firm did not file any such declaration in the assessment year 1962-63. Consequently, the ITO, Arrah, issued a notice to the firm to show cause as to why the registration already granted to it should not be cancelled. The petitioner appeared before the ITO on the 1st of October, 1963, and made a statement that the application in the prescribed Form No. 12 for the continuance of the registration in the assessment year 1962-63 had been filed separately from the return and it was sent either by post or it was filed in the office of the ITO. The ITO rejected the plea taken by the petitioner and made assessment for the year in question on the basis as if the firm was an unregistered one.
3. The partners of the firm filed an appeal before the AAC of Income-tax, Patna, against the assessment order of the ITO, but the appeal was dismissed by an order dated the 21st November, 1964, and the assessment order of the ITO was affirmed. The partners of the firm thereafter filed a second appeal before the Income-tax Tribunal, Patna Bench. The appeal was dismissed by the Tribunal on 8th December, 1965. During the pendency of the appeal before the Tribunal, the ITO, Arrah, had gone to Dehri in the month of July, 1965, as the case of the firm for the assessment year 1963-64 and the assessment case of another firm, M/s. Jai Hind Talkies, had been fixed for hearing at Dehri Camp. The petitioner's brother, Shankar Lal Saraogi, is also a partner of the firm, M/s. Jai Hind Talkies, There it was submitted before the ITO that the declaration form of the firm in question in the assessment year 1962-63 had been wrongly placed in the assessment file of M/s. Jai Hind Talkies. Such a declaration form was in fact found in the file of M/s. Jai Hind Talkies and the ITO directed that the same be placed in the recovery file of the firm in question, i.e., M/s. Shriniwas Jhabar Mal. It is remarkable that when the appeal before the Tribunal had come up for hearing, the appellant, namely, the partners of the firm did not press that the declaration form for the assessment year 1962-63 had since been traced in the file of M/s. Jai Hind Talkies.
4. The petitioner filed an application under his signature for obtaining a copy of the declaration form which had been traced in the file of M/s. Jai Hind Talkies. The application was made on 2nd February, 1966. Thereafter, the petitioner and his brother filed two applications before the Tribunal. One of these applications was under Section 256 of the I.T. Act for making a reference to this court. The certified copy of the aforesaid declaration was filed along with the application. The other application was under Section 154(2) of the I.T. Act for rectification of the mistake alleging therein that the missing declaration had since been traced and was being withheld by the department.
5. When this was reported to the ITO, Arrah, he held an enquiry into the matter and he found :
(i) That the declaration in question did not bear the signature of the ITO in token of its receipt.
(ii) That the declaration purported to bear the signature of one S.N. Jain, who was a U.D. clerk in the income-tax office at Arrah in January, 1963, but had quit the job in July, 1965, and was practising as an advocate on the income-tax side, and
(iii) That the declaration was on a form which had been actually printed at the Government press on 24th December, 1964, and as such it could not have been available to the petitioner on January 15, 1963, when he purported to have signed it.
6. The petitioner, it seems, came to know about the enquiry held by the ITO and, therefore, he withdrew the application filed by him for the rectification of the mistake and did not press the application for making a reference to this court by the Tribunal. The prosecution alleged that the declaration (Ex. 10) was a forged and fabricated document which was brought into existence to support the false claim of the petitioner. The prosecution alleged further that the petitioner had used that document by obtaining a certified copy of the same and had filed the certified copy before the Tribunal. A complaint was, accordingly, filed by the ITO, Arrah, on 24th January, 1970, and the petitioner was summoned for trial.
7. The petitioner denied the charges framed against him under Sections 193, 465 and 471 of the IPC. His defence was that the document was not forged or fabricated, that it did not bear his signature or writing ; that the business of the firm was being looked after by his brother, Shankar Lal Saraogi ; that the petitioner had no knowledge about the recovery of the declaration form from the file of M/s. Jai Hind Talkies and that he had been a victim of official manipulation of the I.T. department. The petitioner also, of course, took the plea that the different offences for which he has been charged could not be tried together ; that the ITO was not competent to file a complaint against him in view of the provisions of Section 195 of the Cr. PC, 1898, and that the prosecution was barred in view of the provisions contained in Section 479A of the Code.
8. The trial court accepted the case of the prosecution and convicted the petitioners on all the counts. The trial court sentenced him to undergo rigorous imprisonment for six months each, under Sections 465 and 471 of the IPC. The sentences were ordered to run consecutively. The petitioner was further convicted under Section 193 of the IPC and was sentenced to pay a fine of Rs. 1,000 and in default to undergo rigorous imprisonment for three months. On appeal, the convictions and the sentences have been affirmed except that the sentences have been ordered to run concurrently.
9. Learned counsel for the petitioner has confined his submissions virtually to only one point, namely, that the complaint filed by the ITO was not competent in view of the provisions of Section 195 of the Cr.PC. He has, of course, also submitted that the prosecution is barred under the provisions of Section 479A of the Code.
10. Before I proceed to examine the submissions, I would like to point out the findings of fact arrived at by the lower appellate court. The findings are : (i) that the declaration (Ex. 16) was brought into existence to support the claim of the petitioner to be assessed as a registered partnership firm causing wrongful gain to him and wrongful loss to the I. T. dept. ; (ii) that Ex. 16 is a forged and fabricated document; (iii) that the petitioner had committed the forgery ; (iv) that the form (Ex. 16) was in the writing of the petitioner and it bore his signature ; (v) that the petitioner had applied for the certified copy of the document which was issued to him ; (vi) that the petitioner had filed the certified copy (Ex. 17) before the Tribunal for rectification of the alleged mistake of assessment on the ground that the declaration (Ex. 16) had been traced out and it was withheld by the I.T. dept. ; and (vii) that the petitioner had used the forged document by obtaining its certified copy and filing the same before the Tribunal.
11. These findings have not been, as they could not be, challenged by the petitioner.
12. Learned counsel for the petitioner has referred me to the provisions of Section 195(1)(a) and (b) of the Code in support of his submissions that the ITO was not competent to file the complaint against the petitioner. Section 195(1)(b) provides, inter alia, that no court shall take cognizance of an offence punishable under Section 193 of the IPC, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, except on the complaint in writing of that court, or of some other court to which such court is subordinate. Learned counsel contends that the certified copy of the declaration form had been filed before the Tribunal and, therefore, it was the Tribunal or some other court to which the Tribunal was subordinate, which was competent to file a complaint against the petitioner. In my view, the argument is misconceived. The offence of fabricating false evidence for the purpose of being used at any stage of a judicial proceeding is complete as soon as the fabrication is complete. Even if the judicial proceeding in which the fabricated document may be intended to be used may not have commenced, the offence is complete as soon as the document is fabricated and, therefore, the offence cannot be said to have been committed in or in relation to any proceeding in any court. To hold otherwise will mean that the offence will not be said to have been completed unless the fabricated document is filed in any proceeding in any court. Section 193, IPC, does not contemplate the actual user of the document. The user of the fabricated document is punishable under Section 196, IPC. Learned counsel has pointed out that in the charge under Section 193 of the IPC it was stated that the document had been fabricated by the petitioner intending that the certified copy of the same might appear as evidence before the Tribunal in a judicial proceeding. In my view, this does not alter the position in favour of the petitioner. It is remarkable that the charge under Section 193 of the IPC does not state that the certified copy of the document had actually been filed before the Tribunal. I have no doubt in my mind, therefore, that the complaint filed by the ITO for the offence under Section 193 of the IPC is not incompetent.
13. The position with regard to the offences under Sections 465 and 471 of the IPC is worse for the petitioner. Section 195(1)(c) provides, inter alia, that no court shall take cognizance of any offence described in s, 463 or punishable under Section 471 of the IPC, when such offence is alleged to have been committed by a party to any proceeding in any court in respect of a document produced or given in evidence in such proceeding except on the complaint in writing of such court or of some other court to which such court is subordinate. Section 465 of the IPC reads :
" Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. "
14. " Forgery " has been defined under Section 463 of the IPC as making of a false document with the intention mentioned in that section. It will be noticed that Section 465 does not deal with the actual user of a forged document. Section 471 lays down that "whoever fraudulently and dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document shall be punished in the same manner as if he had forged such document".
15. Section 195(1)(c) of the Code came up for consideration before the Judicial Committee in the case of Sanmukhsingh v. King, AIR 1950 PC 31. In that case the original document which was said to have been forged had not been produced before the court and instead a copy of the same had been produced. It was held that Section 195(1)(c) can only refer to the document alleged to be forged and not to a copy of it. Therefore, Section 195(I)(c) had no application to that case. In the instant case as well, it will be noticed that the alleged fabricated declaration form (Ex. 16) had not been produced before the Tribunal, instead a certified copy of the same (Ex. 17) was produced before it. The Supreme Court as well, in the case of Budhu Ram v. State of Rajasthan [1963] (2) Cri. LJ 698 ; [1963] 3 SCR 376 said (at p. 701 of Cri. LJ.) :
"......What section 471 requires is the use as genuine of any document which is known or believed to be a forged document; it does not lay down that such use can only occur when the original itself is produced, for the section does not require the production of the original. Where, for example, under the rules, an attested copy would suffice, the production of an attested copy would, in our opinion, amount to use of the original document as genuine, if it is known or is believed to be a forged document. The difference between Section 471 of the Indian Penal Code and Section 195(1)(c) of the Code of Criminal Procedure is that while Section 195(1)(c) requires the production of the forged document itself in a court to make it necessary for a complaint to be filed before a person can be prosecuted for forging or using such document as genuine, Section 471 does not require the production of the original forged document. "
16. Therefore, it is evident that no complaint by the Tribunal was necessary for the prosecution of the petitioner for the offences under Sections 465 and 471 of the IPC.
17. Learned counsel for the petitioner has also contended that in the absence of any finding of the Tribunal or the ITO that it was expedient that the petitioner should be prosecuted for the offence of fabricating false evidence, the complaint under Section 195(1)(c) was not maintainable in view of Section 479A of the Cr.PC. Section 479A contemplates that a civil, revenue or criminal Court should form an opinion that a witness has intentionally fabricated false evidence for the purposes of being used at any stage of a judicial proceeding. In the instant case, the petitioner had not appeared as a witness before the Tribunal. Besides, the petitioner had withdrawn the application for rectification of the mistake in the assessment in which the certified copy of the forged declaration was filed. There was, therefore, no question of the Tribunal forming any opinion that the petitioner had intentionally fabricated a false evidence for the purpose of being used in any such judicial proceeding. Consequently, there was also no question of the Tribunal recording a finding that for the eradication of the evils of fabrication of false evidence it was expedient that the petitioner should be prosecuted. In my opinion, therefore, the bar of Section 479A of the Code does not apply to the facts of this case.
18. Learned counsel also faintly submitted that in offences under ss. 463 and 471 of the IPC an enquiry as contemplated under Section 476 of the Code was necessary, and in the absence of any such enquiry the complaint for such offences was not maintainable. I need hardly point out that the court is not competent to hold a preliminary enquiry under Section 476 of the Code and the absence of any such enquiry does not per se vitiate the proceedings. I am inclined to think that, on the facts of this case, no such enquiry was at all necessary.
19. Learned counsel for the petitioner submitted that the senteaces imposed against the petitioner were severe. I am unable to agree with the submission. I am satisfied that no interference is called for on the sentences imposed against the petitioner. Regard being had to the nature of the offences committed by him, his case also does not justify consideration under Section 360 of the Cr.PC, 1973. I, therefore, find no merit in this revision application which is accordingly dismissed.