Orissa High Court
Union Of India vs Pusparani Khana on 25 April, 2023
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA NO.18 of 1995
(In the matter of application under Section 378 of the
Criminal Procedure Code, 1973.).
Union of India .... Appellant
-versus-
Pusparani Khana .... Respondent
For Appellant : Mr. S.S. Mohapatra, Advocate
For Union of India.
For Respondent : Ms. A.K. Dei, Amicus Curiae
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING :17.04.2023
DATE OF JUDGMENT:25.04.2023
G. Satapathy, J.
1. The judgment of acquittal of the Respondent passed on 07.08.1993 by learned Additional Chief Judicial Magistrate (Special), Cuttack in 2.C.C. No.64 of 1994 has been challenged in this appeal U/S.378 CRA No.18 of 1995 Page 1 of 12 of the Code of Criminal Procedure, 1973 (in short the Code).
2. Facts giving rise to this appeal in precise are the respondent-accused was the proprietress of M/s.R.K. Diesels, located at Modipara, Sambalpur and was an income tax assessee for the relevant period. Accordingly, for the assessment year 1980-81, the respondent-accused filed a return showing her income at Rs.8,860/- (Rupees Eight Thousand and Eight Hundred Sixty) and accordingly, the Income Tax Officer (hereinafter referred to as ITO) accepted such return, but the said ITO in the course of investigation, could know that the respondent- accused had constructed a costly building at Modipara without disclosing the source of such investment and, thereby, the ITO reopened the assessment proceeding by doubting the correctness of the return so filed by the respondent-accused. In the course of CRA No.18 of 1995 Page 2 of 12 investigation, the statement of the respondent- accused was recorded U/S.131 of the Income Tax Act (in short the IT Act) and it was ascertained that the building was completed during the financial year 1979-80, which was relatable to the assessment year 1980-81. While the matter stood thus, on 03.01.1981, the respondent-accused filed another return showing income at Rs.33,860/- (Rupees Thirty-three Thousand and Eight Hundred Sixty) to the ITO towards her total income for the same assessment year 1980-81, by duly verifying the return declaring the information as given in the second return as true. However, the assessment was completed and income of the respondent-accused was assessed at Rs.74,510/- (Rupees Seventy-Four Thousand and Five Hundred ten) after allowing all admissible deductions, but the respondent-accused unsuccessfully impugned such assessment order in the appeal, which was turned down by the Appellate CRA No.18 of 1995 Page 3 of 12 Authority for non disclosure of the source of expenses for construction of house by her during the year under reference. On the above facts, a complaint was instituted by the ITO namely R.C. Sarangi in the Court of Additional Chief Judicial Magistrate (Special), Cuttack, which was came to be registered as 2(c) C.C. No.64 of 1990.
In the course of trial, the respondent- accused took a defence plea of non-maintainability of the complaint on the ground that she had neither suppressed the income nor willfully evaded to pay the income tax, but the learned Additional Chief Judicial Magistrate (Special), Cuttack proceeded with the trial in the complaint in which the prosecution examined 2(two) witnesses and relied upon 11 documents as against no oral evidence whatsoever, but the acknowledgement receipt under Ext.-A by the defence. After appreciating the evidence upon CRA No.18 of 1995 Page 4 of 12 hearing the parties, the learned trial Court passed the impugned judgment acquitting the respondent- accused of the charge, which is assailed in this appeal by the Union of India.
3. In the course of hearing the appeal, Mr. S.S. Mohapatra, learned counsel appearing for the appellant submits that the learned trial Court by erroneously appreciating the evidence, acquitted the respondent-accused, but the prosecution has clearly established the guilt of the respondent for the charge U/Ss.276(G)/277 of IT Act and, therefore, the judgment of acquittal is unsustainable in the eye of law and required to be reversed in this appeal. Learned counsel for the appellant, accordingly, prays to allow the appeal and convict the respondent- accused by reversing the judgment of acquittal as recorded against the respondent and sentencing her to appropriate punishment.
CRA No.18 of 1995 Page 5 of 12
On the contrary, Ms. A.K. Dei, learned Amicus Curiae for the respondent-accused, however, strongly refutes the submission of the appellant by inter alia submitting that the respondent-accused was acquitted in this case way back in the year 1993 by the learned trial Court after holding a full-fledged trial and appreciating the evidence in proper prospective and, therefore, the present appeal lacks merit and liable to be dismissed.
4. Admittedly, this is an appeal against acquittal, which was recorded by the learned trial Court way back in the year 1993 and law is very well settled that in case of acquittal, the presumption of innocence of accused as provided under law, is reinforced and unless there appears miscarriage of justice and compelling reasons, no judgment of acquittal can be interfered with after near about 30 years, more particularly in a case of this nature, CRA No.18 of 1995 Page 6 of 12 where the offences with which the respondent- accused was charged. In this case, the appellant was charged for offence U/S.276(C)/277 of the IT Act, but offence U/S.276(C) of IT Act can be established by way of evidence that such persons willfully attempted in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under this Act. Similarly, offence U/S.277 of IT Act can be established by way of evidence that such persons made a statement in any verification under this Act or under any rule made there under or delivered an account of statement, which is false, and which he either knows or believes it to be false or does not believe it to be true.
5. Although the Appellant was charged for offence U/S. 276(C) of the IT Act, but the evidence of P.W.1 transpires that the Assessing Officer reopened the assessment doubting concealment of the income CRA No.18 of 1995 Page 7 of 12 by the accused as she had constructed a house in Modipara at Sambalpur with huge investment and there is a provision under the Income Tax Act for filing revised return U/S.139(5) of the Income Tax Act and the accused had filed a subsequent return under Ext.4, where it was written as revised return. P.W.1 had also admitted in cross-examination that the penalty proceeding started against the assessee for the the assessment year 1980-1981 for concealment of the income was dropped U/S.271(1)(c) of the IT Act on 26.03.1984 by the then ITO, Sambalpur and the certified copy of the order was confronted and exhibited through the witness under Ext.B. It is also admitted by P.W.1 that the assessment return under Ext.4 relates to assessment of the year 1980-1981 which was also confirmed by P.W.2 in his cross-examination that the penalty proceeding for the assessment year 1980- 1981 was dropped. An analysis of above evidence CRA No.18 of 1995 Page 8 of 12 would go to reveal that the penalty proceeding was initiated against the Respondent-accused for concealment of the income, but such penalty proceeding was, however, dropped by the Income Tax Authority vide order under Ext.B. This Court does not find any error with the finding of the learned trial Court with regard to the offence U/S. 276(C).
6. On coming to the next charge for offence U/S.277 of IT Act, it is alleged that the Respondent- accused had furnished wrong and false information by verifying those returns as true knowing or having reason to believe that the information contained in her returns was false. It is worthwhile to mention that the evidence of P.W.1 discloses that he was working as an Income Tax Officer, Sambalpur since August, 1988, but P.W.2 in his evidence has stated that he had received the returns filed by the accused. The Income Tax Act, however, permits filing of revised CRA No.18 of 1995 Page 9 of 12 returns as has been admitted by the witness earlier and the accused had filed a second return by which she accounted for incurring a loan of Rs.25,000/- (Rupees Twenty Five Thousand) from one Gyan Singh Sandhu, Barai Palli, Sambalpur and it was admitted by P.W.1 that the second return of the accused under Ext.4 relates to assessment year 1980-1981, but the loan taken by the accused was disbelieved by the Income Tax Authority and it was, accordingly, treated as concealment of income, but P.W.1 has in fact admitted in cross-examination that if the Income Tax Officer is satisfied that there is no concealment of income, he can drop the penalty proceeding and in this case, the penalty proceeding brought against the respondent-accused was dropped by the Authority. Hence, there is no point by the Income Tax Authority to disbelieve the explanation offered by the respondent-accused for incurring loan of Rs.25,000/- (Rupees Twenty Five Thousand) which was in fact CRA No.18 of 1995 Page 10 of 12 shown by the accused-respondent in her second return. Further, there is no evidence on record to show that the accused made deliberately or intentionally false statement. It is also found from the evidence on record that the accused-respondent had furnished first return by showing her income as Rs.8,860/-, but when she was asked, she filed subsequent return showing a loan taken by her from one Mr. Gyan Singh Sandhu and in fact, when there is a provision for filing revised returns which was admitted by P.W.1 in his evidence and, therefore, adding Rs.25,000/- to Rs.8,860/- in the second return would not certainly be considered as a false statement, which was verified by the respondent- accused.
7. In such view of the matter, on analysis of the evidence on record and scrutinizing the impugned order in this case, this Court does not find any error CRA No.18 of 1995 Page 11 of 12 apparent with the impugned order directing acquittal of respondent-accused warranting any interference by this Court.
8. Resultantly, the appeal is dismissed on contest, but in the circumstance, there is no order as to costs.
(G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 25 th day of April, 2023/Subhasmita CRA No.18 of 1995 Page 12 of 12