Delhi District Court
Vinod Kumar Ahuja vs State (Govt Of Nct Of Delhi) on 6 August, 2014
IN THE COURT OF MANOJ JAIN: ASJ/SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
Criminal Revision No. 12/2014
Unique ID No. 02406R0056302014
FIR No. 936/2000
PS Hauz Khas
Vinod Kumar Ahuja,
Son of late Sh. T.R. Ahuja,
Resident of C-8/8206, Vasant Kunj,
New Delhi. ..........................Revisionist/Accused No. 1
Versus
State (Govt of NCT of Delhi) .............................................Respondent
Date of institution of Revision : 04.03.2014
Date on which case was received on
Transfer by this Court : 29.04.2014
Date of conclusion of arguments : 23.07.2014
Date of Judgment : 06.08.2014
Memo of Appearance
Sh. Riyaz Ahmad Bhat, learned counsel for revisionist.
Sh. Inder Kumar, learned Addl. P.P. for State/respondent.
JUDGMENT
1 Revisionist has taken exception to order dated 30.01.2014 passed by learned Trial Court whereby charges have been ascertained.
2 I have heard Sh. Riyaz Ahmad Bhat, learned counsel for revisionist and Sh. Inder Kumar, learned Addl. P.P. for State/respondent and carefully perused the entire material available on record.
3 First & foremost ground taken in the revision is denial of opportunity to revisionist to address arguments on charge. It has been contended that on 30.01.2014, defence counsel was not available and even CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 1 of 20 the concerned APP for the State was not ready with the arguments on charge but despite that opportunity to address arguments was declined to accused and charges were framed in a mechanical manner that too by taking assistance of IO. Such act of the court has been labelled as bias and high- handedness.
4 Such defence contention is nothing but fallacious, highly contemptuous and also factually untrue. This case is not, admittedly a run-of- mill kind of case. Even learned Trial Court had noted in the impugned order that matter was technical warranting assistance of IO as well as of Prosecutor. Impugned order does not anywhere disclose that state was not prepared for the arguments. On the contrary, State had rendered the requisite assistance.
5 A perusal of Trial Court Record would also expose that accused persons had been taking the Court for a ride. Court cannot go on granting adjournments merely on the ground of non-availability of defence counsels for one reason or the other. Undoubtedly, the original record went missing and file was reconstructed albeit with great difficulty. The incident in question is of the year 2000 and we are already in the middle of 2014. At this juncture, I would not make any comment as to how the file disappeared. I am sure that responsibility on this crucial score must have been fixed already. Learned trial court is requested to ascertain such fact as missing of record is a very serious thing and cannot be taken lightly. Erring official must face the music. Reverting back to various order sheets, suffice it to comment that accused persons had been given sufficient indulgence by the learned Trial Court. In fact, they were given last and final opportunity time and again to address arguments on charge but the accused persons misused the leniency and liberal approach shown by the Court.
CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 2 of 206 In such type of matters, whenever there is a delay in disposal, on most of the occasions, it is the Trial Court which has to bear the brunt and faces the irk and fury of superior courts as well as of concerned parties. No one can be permitted to reap fruit of his/her own wrongs and in the instant case, the house of revisionist is not in order and he is unwarrantedly and unjustifiably accusing the Court.
7 I would rather place on record my compliments for the learned Trial Court for rolling up its sleeves and for taking a deep plunge in the matter albeit such scrutiny should have been extra intense. But, there is absolutely no reason for accused to feel agitated for the serious concern shown by the learned Trial Court which was manifestly to ensure that there was development in the matter. Therefore, there is no reason whatsoever to remand the matter for re-hearing of arguments.
8 Sh. Bhat has now been asked to show as to how charges are not sustainable in the eyes of law. He has contended that various charges do not stand revealed at all and moreover the joint trial, qua alleged 13 separate incidents of misappropriation, was not permissible in view of the mandatory provision contained in Criminal Procedure Code. Sh. Bhat has also contended that criminal court should act with broad vision and should look to the substance and not to the technicalities and it should be the endeavour of the Court to ensure that accused has a fair trial and is not prejudiced in any manner whatsoever.
9 In order to understand the defence contentions, it would be appropriate to see as to how the alleged offences came to fore.
10 Reference be straightaway made to the report of Sh. Sudesh Garg, Deputy Director of Income Tax (Investigation), Unit-VI, New Delhi dated 22.11.2000. In such report addressed to DCP (South), Sh. Garg informed CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 3 of 20 that a team of Income Tax officials had carried out a search and seizure operation u/s 132 of Income Tax Act at C-21 (First & Second Floors), Hauz Khas, New Delhi. During such search, various incriminating documents were recovered. Search authorization was shown to Vinod Kumar Ahuja (revisionist) and Pramod Narang (co-accused) and search was carried out in their presence at said premises. These, inter alia, included as under: -
(i) Different rubber stamps in the name of Bank of India, Panchsheel Park, New Delhi meant for acknowledging the payment in cash and cheque.
(ii) Fabricated income tax payment challans.
(iii) Blank Income Tax Returns form bearing machine receipt number and Income Tax Office stamp indicating the receipt of Income Tax Returns.
(iv) Blank intimation slip u/s 143 (1) (a) of Income Tax Act bearing stamp of ITO.
(v) Fabricated Sales Tax challans bearing stamp of bank.
(vi) Non-judicial stamp paper without signatures of stamp vendor and the buyer.
11 Search had started on 19th & 20th October 2000 but since it could not be completed, the search operation spread over to subsequent dates as well. Investigation revealed that accused Vinod Kumar Ahuja (revisionist) was into income tax and sales tax consultancy and had indulged in fraudulent and criminal activities and duped his clients as well as usurped the revenue by forging the bogus tax payment challans etc. Bank of India also confirmed that the stamps appearing on such challans were fabricated and they had not received any payment under those challans. It also came to light that substantial amount issued by one Sh. O.P. Dawar, proprietor of M/s Dawar Properties towards payment of tax was misappropriated by accused either by transfer to account of his brother or by self-withdrawal. During investigation, statements of various public persons were recorded and they CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 4 of 20 also revealed that they had been duped by accused Vinod Kumar Ahuja. They are Chander Mohan, Kamla Kohli, Kabir Pandit, Krishan Singh, Nand Kishore Luthra, Vijay Abbot, Rajender Singh, Mangat Ram (brother of Vinod Maini), Rajiv Kohli, Tejvir Singh, Arun Kumar Jain, Ashok Kumar Gupta and Ret. Col. Durlabh Singh. Charge-sheet was initially filed on 23.02.2001. Supplementary charge-sheet was laid before the Court on 05.08.2004. Subsequent investigation was conducted by Insp. Sunder Singh who had primarily recorded the statements of the concerned public witnesses who revealed that they had been duped at the hands of revisionist.
12 Needless to say that at the stage of consideration of charge, the Court is not required to embark upon in-depth scrutiny and minute evaluation of the allegations. A roving enquiry is to be made merely to satisfy itself whether the material on record discloses grave suspicion of commission of offences or not. At this initial stage, the Court is not required to weigh up the stance of the defence.
13 Accused has been charged for following offences:-
1. Sec 259/260 read with sec 120B IPC (possession and use of counterfeit government stamps in terms of criminal conspiracy)
2. Sec 472 read with sec 120B IPC (possession of counterfeit government stamps for cheating in terms of criminal conspiracy) 3 Sec 467/471 read with sec 120B IPC (Committing forgery and using forged documents in terms of criminal conspiracy) 4 Sec 420 read with sec 120B IPC (cheating in terms of criminal conspiracy) 5 Sec 406 read with sec 120B IPC (misappropriation in terms of criminal conspiracy) 6 Thirteen separate charges u/s 406 IPC (misappropriation)
14 Let me assess each head.
CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 5 of 2015 Undoubtedly, "Government Stamp" has not been expressly defined in Indian Penal Code but fact remains that as per the wordings appearing in Section 259 IPC, such stamp is one which is issued by the Government for the purpose of revenue. Any challan containing acknowledgment of deposit of Tax cannot be labelled as Government Stamp.
16 However, various non-judicial stamp papers were also recovered during the search and seizure. These are admittedly Government Stamp. These stamp papers can be obtained through authorized stamp- vendor and as and when any such vendor sells any such stamp paper, he or she puts his own stamp and also fills the requisite particulars on the reverse of such stamp paper besides putting his signature.
17 I have seen all these Non Judicial Stamp Papers which were allegedly recovered in the present matter from the conscious possession of accused. These are six in number - one is of ten rupees and the remaining of two rupees each. I have seen the reverse of all such stamp papers and there is a stamp of stamp agent having name as "Kiran Jad", licence No. 492, Kalkaji, N.D. 19. No relevant particulars are mentioned which are essentially filled at the time of sale. There are no signatures of alleged vendor either. These stamps are alleged as counterfeit stamps by the prosecution. Word "counterfeit" has been defined u/s 28 of IPC which reads as under:-
"Counterfeit"-A person is said to "counterfeit" who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised".
[Explanation 1.-It is not essential to counterfeiting that the imitation should be exact.
Explanation 2.-When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 6 of 20 resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised.] 18 If prosecution wants me to hold that such stamp is counterfeit stamp then it is obligatory for it to show that there was an act whereby the these stamps were made to resemble the original for the purposes of deception. I need not re-emphasize that the case is limited to the recovery of alleged Non Judicial Stamp Papers from the possession of the accused. There is nothing to indicate the user of such stamp papers.
19 Two clear and evident options were available to police during the investigation which could have, perhaps, established that these stamps were counterfeit stamps. Firstly, it could have been verified by the government press duly backed up by forensic opinion. Secondly, the concerned stamp vendor could have been easily contacted and his version also could have been recorded. Unfortunately, for inexplicable reasons, no step in such direction was taken during the investigation. Neither government press was contacted nor the stamp-vendor.
20 Naturally, such stamp paper can only be sold by any authorized and licensed stamp vendor and as and when any such sale takes place, the vendor is required to note down all the particulars in his/her register and also mentions the details on the reverse of the stamp paper. Since neither the government press nor the concerned stamp vendor have been contacted, there is manifestly a possibility that these stamp papers might actually be genuine and are merely possessed by accused albeit wrongfully. For such act, such stamp-vendor is to be blamed squarely.
21 Burden of proof, in a criminal case involves a process of shifting of onus. It is first for the prosecution to prove the crucial ingredients of any particular offence and only then the accused can be called upon to explain CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 7 of 20 about any special fact which might be within his exclusive knowledge. Presumption can be drawn wherever it can be legally drawn. Here, to me, it appears that perhaps the accused persons were having some good rapport and nexus with some stamp vendor who obliged them by handing over such stamp papers without making any endorsement or without making any record. Such conduct of the stamp vendor is condemnable and invites stern action against him under Indian Stamp Act. However, fact remains that since the concerned stamp vendor has not been even examined, nothing can be said with certainty in this regard and no action against the vendor can be taken merely on the basis of vendor's stamp appearing on reverse.
22 The picture which emerges from my aforesaid discussion clearly indicates that the possession of the aforesaid Non Judicial Stamp Papers is though somewhat unjustified, debauched and improper but by no stretch of imagination, such stamp papers can be held as counterfeit stamp. I cannot, by inference alone, brand these as counterfeit stamps. Therefore, no offences u/s 259/260 IPC are found made out against the accused.
23 In the aforesaid search, various fabricated income tax payment challans, blank Income Tax Returns bearing machine receipt No. as well as stamp of income tax office, Blank intimation slips u/s 143 (1) (a) Income Tax Act bearing stamp of ITO and fabricated Sales Tax Challans were also recovered. I have seen all such seized documents. I can understand that the printed proforma can always be available with any income tax practitioner. Similarly, the blank sales tax proforma for the purposes of filing of Sales Tax Returns can also be available with any such sales tax practitioner.
24 Fact, however, remains that though possession of blank forms and unfilled forms does not invite any criminality, eyebrows are bound to rise if these unfilled and blank forms are found containing seal and stamp of any government agency. No such agency would put its stamp and seal on any CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 8 of 20 such unfilled form and if at all, it is so done, there is no reason for any outsider to be in the possession of same. Here, the unfilled forms "Intimation u/s 143 (1) (a) of Income Tax Act 1961" bear stamp of Income Tax Officer, Ward 15 (6), New Delhi as well as the seal of Income Tax Officer. So much so, unfilled copies of Acknowledgment known as 'Return Form No.2' have also been recovered in the search and these also bear seal of Income Tax Office, Ward 15 (7), New Delhi and also machine receipt No. which has to be necessarily put by the concerned receiving official alone. Even if accused is an Income Tax Practitioner, he had no business to have possessed such blank forms having seal and stamp of a government department. These are, on the face of it, fabricated documents. These have either been manufactured by accused or he had some nexus with officials of Income Tax Department.
25 It is also important to mention that various other challans were also recovered during the search in question and Inspector Surender Singh vide his letter dated 26.05.2004 sent all such details to the office of Income Tax Commissioner with request that it be verified whether the amount mentioned in those challans were deposited in the account of subscriber or not. I have also seen the reply dated 09.06.2004 sent by the officer of Commissioner of Income Tax ( Computer Division) which clearly lay bare that none of such challans were either received by IT office or by the bank and were not found entered in tax accounting System at all. These are 65 challans in all involving sufficient amount. Naturally, if these challans are forged, the concerned assessee must have also been duped.
26 I have seen the version of Sh. S.K. Kataria, Manager, Bank of India, Panchsheel Branch as appearing in his statement recorded u/s 161 Cr.P.C. He was shown 20 such challans and all these challans reflected deposit of income tax with them. The total worth of such amount comes to Rs. 5,35,000/- and as per Mr. Kataria when they examined their own bank record, CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 9 of 20 it was found that no amount purported to be deposited under those challans was ever received by them. Such fact has to be appreciated in light of the fact that during such search, different rubber stamps of Bank of India, Panchsheel Park, New Delhi were recovered from the premises of accused.
27 Thus it becomes apparent that accused was in possession of fabricated challans which were containing forged stamp of the bank. He was also in possession of blank Income Tax Returns having machine received No. and seal stamp of government office.
28 Similarly, Sales Tax challans have been fabricated. I have seen statements of various officials of Sales Tax Department who have categorically claimed that some such challans were never accounted for in their record. Sh. S.S. Bhogal, official of Bank of India also stated that no sales tax amount under 23 challans was ever deposited with their bank.
29 Question now arises whether these fabricated or forged acknowledgments can be said to be falling within the scope and ambit of sec 467 IPC or not.
30 According to defence, these acknowledgments do not fall within the definition of valuable security and hence charge u/s 467 IPC was not tenable. As per sec 30 IPC, "valuable security" denotes a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right. These false and forged acknowledgements in fact extinguish a legal liability to pay tax. Moreover, sec 467 IPC is not confined to valuable security alone. It talks about other documents as well. Such section reads as under:-
Sec 467. Forgery of valuable security, will, etc Whoever forges a document which purports to be a valuable security or a will, or an CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 10 of 20 authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquaintance or receipt acknowledging the payment of money, or an acquaintance or receipt for the delivery of any movable property or valuable security, shall be punished with 152[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.(emphasis added) 31 A receipt acknowledging the payment of money also falls under sec 467 IPC. Viewed from any angle, the conclusion is inescapable. Such acknowledgments fall within the ambit and scope of sec 467 IPC.
32 Reliance on Shriniwas Pandit Dharamadhiikari Vs. State of Maharashtra 1981 SCC (Cri) 45 is misplaced as in that case, certificate, submitted for the purposes of getting admission into college, was found to be forged and it was held that such certificate did not fall within the definition of valuable security. There cannot be any dispute with respect to the aforesaid proposition of law but in the present case, documents are altogether of different nature.
33 Accused was also found in possession of counterfeit stamp of Bank of India. Such possession was with the intent to commit forgery under sec 467 IPC. Thus, sec 472 IPC also stands attracted.
34 I have seen the statements of Chander Mohan, Kamla Kohli, Kabir Pandit, Krishan Singh, Nand Kishore Luthra, Vijay Abbot, Rajender Singh, Mangat Ram (brother of Vinod Maini), Rajiv Kohli, Tejvir Singh, Arun Kumar Jain, Ashok Kumar Gupta and Ret. Col. Durlabh Singh.CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 11 of 20
35 Sh. Bhat has contended that separate 13 incidents could not have been clubbed and tried together. He has referred to Chapter XVII of Cr.P.C. He has, in particular, drawn my attention towards Section 219 Cr.P.C.
and it has been contended that learned Trial Court did not appreciate that there could not have been joint trial in respect of 13 charges for different incidents of different transactions. He has also placed his reliance upon Nga San Mya Vs. Emperor AIR 1933 Rangoon 325 & Hari Ram Vs. Emperor AIR (34) 1947 Calcutta 420 and has contended that for every alleged distinct offence, there should have been a separate trial. According to him, only three offences of the same kind committed within the span of one year can be charged and tried together. Relying on Sri Ram Varma Vs. State AIR 1956 Allahabad 466, it has been argued that rules prohibiting the joinder of charge have been framed for the benefit of the accused so that accused is not embarrassed or handicapped in conducting his defence and also to eliminate any likelihood of Judge getting prejudiced in view of the large number of accusation(s). It has been contended that even if accused agrees to undergo such joint trial, such consent cannot override the specific provision of law. I have seen the aforesaid judgments but the facts therein are distinguishable and, therefore, defence cannot dig out any substantial advantage from the aforesaid judgments.
36 Undoubtedly, accused had been entrusted money for deposit of advance Tax by different persons at different times. For all such different transactions, revisionist alone has been separately charged u/s 406 IPC. Right her, I would hasten to add that there is one crucial aspect which investigating agency, prosecution and learned trial court lost sight of the fact. Accused was certainly acting as attorney for those persons who had entrusted him with money. Therefore, it is the aggravated form as provided u/s 409 IPC which comes into play not the simpliciter sec 406 IPC.
CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 12 of 2037 Certainly, as per Section 219 Cr.P.C. three offences of same kind committed within a span of 12 months can be tried together at one trial. However, reference be also made to Section 220 Cr.P.C. which is an exception to the general rule contained in Section 218 Cr.P.C.
38 In order to invoke Section 220 Cr.P.C., crucial point for determination would be whether facts composing several offences are interwoven and interconnected in such a manner so as to constitute one transaction. Such interconnection can be inferred by intention, knowledge or continuity of purpose. Substantial test is continuity of action and purpose. Words 'same transaction' are not capable of being put in a water tight container and there cannot be any strait-jacket formula which may prove handy and decisive on this score. It has to be deciphered keeping in mind the peculiar facts and circumstances of any such case. The evidence is the same and all the group of facts are so connected together that they clearly indicate a unity, continuity and linkage.
39 The real and substantial test to determine whether the acts are connected together so as to form same transaction depends upon whether they are so related to one another in point of purpose or as cause and effect or as principle and subsidiary acts so as to constitute one continuous and completed action. Here, there are continuous acts which lead to the same end and common purpose is found running through all the acts and thus all such separate instances of misappropriations fall within the meaning and scope of "same transaction".
40 Reference be made to Babulal Choukhani And Sailendra vs The King- Emperor (1938) 40 BOMLR 787. It has been observed therein that whatever scope of connotation may be included in the words " the same transaction," it was enough to say that, if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 13 of 20 circumstance which makes the act of one the act of each and all the conspirators), these acts are said to have been committed in the course of the same transaction which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it. It has also been approved therein that so long as the accusation against all the accused persons was that they carried out a single scheme by successive acts, the necessary ingredients of a charge regarding the one transaction would be fulfilled.
41 No doubt those persons had entrusted money on different occasions but they all have been cheated in the similar manner as instead of depositing the tax amount, same was misappropriated and all these things came to light only when search had been conducted and the premises of the accused had been raided. The evidence is substantially the same. The modus opernadi is the same. It might be rather for the benefit of the revisionist that he has been made to undergo only one trial. Had police registered separate FIRs for each such separate incident, he would have suffered much more. He would have to arrange separate sureties for each case. He might have also made himself liable for separate sentences, if eventually convicted. Moreover, in any case, he has to show as to how he is going to be prejudiced by one single trial. Trial can be separated when there is every chance of any such accused getting prejudiced. Keeping in mind the peculiar facts and circumstance of the case and my foregoing discussion, I am of the view that charge does not suffer from the vice of mis joinder.
42 It really does not matter that there are no separate seizure memos. Undoubtedly, the search operation was spread over some days and ideally, it would have been better if separate memos had been prepared date- wise. But infirmity on this score does not go to the root of the matter or vitiate the entire proceedings.
CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 14 of 2043 Learned trial court has charged accused persons for offences u/s 420/120B IPC for cheating one Sh. O.P. Dawar. Sh. Dawar had allegedly delivered three cheques to accused for the purposes of deposit of tax but those cheques were fraudulently got encashed by the accused and one such cheque was utilized dishonestly by accused Pramod Narang. Undoubtedly, the bank record, in this regard, has been collected but it was Mr. O.P. Dawar who could have thrown actual light on this vital aspect of his being cheated. I have carefully gone through the entire material on record. I have not been able to find out any statement of Mr. Dawar. I am conscious of the fact that part of the judicial record went missing and had to be reconstructed. It is quite possible that his such statement might be that part of missing record which could not be constructed. Fact, however, remains that presently available record does not contain any such statement of Sh. Dawar u/s 161 Cr.P.C. Only he could have substantiated as to how these three cheques issued by him had been misappropriated or used contrary to his instructions. Without knowing his standpoint, it would be fallacious to hold accused liable for cheating him. I must add here that while surfing the record, I stumbled upon the disclosure statements made by both the accused and if their statements are to be believed, then, rather, Sh. O.P. Dawar was their partner in crime as he desired some false documents to be prepared for the purposes of evading his own tax liability. Be that as it may, for want of version of Mr. Dawar, charges u/s 420/120-B IPC for cheating him and charges u/s 406 r/w Section 120B IPC for misappropriation of his money do not stand revealed.
44 Sh. Bhat has also vehemently contended that any proceeding before income tax authority is deemed to be a judicial proceeding and, therefore, any proceeding carried out u/s 136 of Income Tax Act would also amount to judicial proceedings and, therefore, no Court can take cognizance of any offence u/s 463 IPC or 465 IPC or 467 IPC or 471 IPC alleged to have been committed in respect of documents produced or given in such judicial CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 15 of 20 proceedings except on the complaint in writing of concerned Court. It has been argued that combined reading of Section 32 (4) Income Tax Act & section 136 of Income Tax Act would clearly show that the proceedings related to search and seizure were judicial proceedings and since there is no complaint of the concerned income tax authority which is deemed to be a civil court for the purpose of Section 195 Cr.P.C., prosecution, so far as it relates to Section 465/467/471 IPC, is bad. In this regard, strong reliance has been placed upon Lalji Haridas Vs. State of Maharashtra AIR 1964 SC 1154. In that case, appellant had filed a criminal complaint against respondent No. 2 alleging that he had committed an offence under s. 193 of the Indian Penal Code, 1860 by giving false evidence in certain proceedings before the Income-tax Officer under s. 37 of the Indian Income-tax Act, 1922. Respondent No. 2 raised a preliminary objection that the learned Magistrate could not take cognizance of the said complaint because the proceedings in which he was alleged to have made a false statement on oath were proceedings before a court within the meaning of s. 195(1)(b) of the Code of Criminal Procedure, 1898, and since no complaint in writing had been made by the court of the Income-tax Officer, the provision of s. 195(1)(b) created a bar against the competence of the appellant's complaint. The short question was whether the proceedings before an Income-tax Officer under s. 37 of the Income-tax Act can be said to be a proceeding in any court within the meaning of s. 195(1)(b) Code of Criminal Procedure. As per the majority view of Apex court, the proceedings held by Income Tax Officer were judicial proceedings for the purposes of ss. 193, 196 and 228 Indian Penal Code and the false statement alleged to have been made by respondent No. 2 was made in a judicial proceeding within the meaning of s. 193, Indian Penal Code and, therefore, the condition precedent prescribed by s. 195(1)(b) Code of Criminal Procedure had not been complied with as no complaint has been filed by the Income-tax Officer. Undoubtedly, as per the aforesaid judgment, proceedings before any Income Tax Officer u/s 37 of Income Tax Act are deemed to be proceedings pending before any Court within the meaning of CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 16 of 20 Section 195 (1) (b) Cr.P.C. However, accused cannot drive any advantage from said judgment in view of the peculiar facts of the present case. Here search and seizure operation had taken place u/s 132 of Income Tax Act. During such search, various forged and fabricated documents besides rubber stamps in the name of Bank of India had been recovered. Income tax authority had carried out such search operation and such search operation cannot be equated with "proceeding before an Income Tax Officer". Merely because the search had been carried out u/s 132 of Income Tax Act, would not mean and indicate that whatever had been recovered during the search was part of judicial proceedings conducted before any such authority. There is a huge difference between 'recovery of false documents during authorized search' and 'submitting false documents in judicial proceedings'. Latter would attract the bar provided u/s 195 (1) (b) Cr.P.C. but not the former one.
45 Sh. Bhat has relied upon Chatt Ram Vs. State of Haryana 1980 SCC (Cri) 243. That case was altogether different. It related to forgery of a lottery ticket. Moreover, in that case conviction was set aside after comprehensive trial and the Apex Court held that at the most, there was suspicion about the requisite guilty knowledge or belief on the part of the accused. It also held that mere fact that a forged ticket was presented to claim the prize would not necessarily stamp such person with the knowledge or belief of its forged character. Keeping in mind the peculiar facts of the present case, defence cannot dig out any advantage from such judgment.
46 The Institute of Chartered Accountants of India (ICAI) has been established under the Chartered Accountants Act, 1949 to regulate the profession of Chartered Accountancy in India. The Institute has a detailed code of ethics. Any act in contravention of such code results in disciplinary action against the erring member. Here, investigating agency should have attempted to inform council of ICAI about such act of accused. However, learned trial court would be at liberty to take requisite steps depending upon CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 17 of 20 the final outcome of the case.
47 Sh. Bhat has relied upon Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. (2008) 1 SCC (Cri) 259. It has been observed therein that intention is the gist of offence of cheating and in order to establish cheating, it is necessary to show the fraudulent or dishonest intention at the time of making the promise. There cannot be any qualm to the aforesaid legal proposition but in the present case, the defence cannot extract any advantage from the aforesaid judgment as in the case in hand, intention of the accused persons was nothing but dishonest as not only they misappropriated the tax amount, they even did not blink for a second while preparing forged acknowledgment/challans.
48 Misdeeds of the accused were enough to land any innocent assessee in soup. I have come across one application u/s 245 (2) Cr.P.C. which had been filed by one Vijay Kumar and others seeking recalling of summoning order. He and his co-accused had been summoned on the basis of one complaint filed by Ms. Assema Neb, ACIT Circle-37 (1), New Delhi before the Court of learned ACMM, New Delhi. Such complaint was registered as Criminal Complaint No. 253/03 and as per the allegations made in that complaint, when challans purportedly submitted on behalf of the accused were sent to Bank of India, Panchsheel Park, New Delhi for verification, it was learnt that no payment had been made by those assessee through those challans and thus the challans were not found to be genuine challans. Accused persons in that complaint claimed that they never knew at any point of time that such challans were not genuine and they were rather victim at the hands of Sh. Vinod Kumar Ahuja. At this stage and in view of the limited material available on record, I am not in any position to make any further comment but suffice it to say that said Sh. Vijay Kumar Abbot is also one of the cited witnesses in the present case.
CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 18 of 2049 Before parting, I would like to add that offences u/s 467/409 IPC are very serious in nature. These invite life sentence. Irony of the fact is that these are triable by a Magistrate who has power to hand out maximum sentence of three years. Even if Section 325 Cr.P.C. is invoked, power of any Chief Metropolitan Magistrate and Chief Judicial Magistrate is to pass sentence upto seven years. State of Madhya Pradesh has come up with an amendment whereby some of such serious offences including aforesaid, which are otherwise triable by magistrate, have been made triable by Sessions. Similar amendment by other states and centre is need of the hour so that the Legislative intent of imposing harsh sentence to such offenders is actually met.
50 Allegation appearing on record thus clearly invite framing of charges for commission of offences u/s 465/467/472/120-B IPC against both the accused and also separate 13 charges for commission of offence u/s 409 IPC qua revisionist alone.
51 In view of the aforesaid, discussion, revision petition stands disposed of. Learned trial court would re-frame the charges in light of my foregoing discussion and would proceed with the matter in accordance with law.
52 Learned trial court would make every effort to dispose of the matter as expeditiously as possible as even otherwise incident dates back to the year 2000 and we are already in 2014. I do not know whether the original record lying with the concerned income tax authority, sales tax authority and Bank of India is lying preserved or not and, therefore, let there be no further hold-up in the matter.
53 Learned Trial court would also ensure that bail-bonds of accused(s) are there in the file. If these were part of missing record then it CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 19 of 20 would take fresh bonds from both the accused. I am compelled to make comment in this regards as I could not lay my hands upon the bonds from the TCR.
54 Revision petition stands disposed of in aforesaid terms.
55 Copy of this order be sent to learned Trial Court along with Trial Court Record.
56 File pertaining to Revision Petition be consigned to Record Room.
Announced in the open court On this 6th August, 2014. (MANOJ JAIN) ASJ/ Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CR No. 12/2014 Vinod Kr. Ahuja Vs. State Page 20 of 20