N K JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition under Section 482 of the Code of Criminal Procedure 1973 (for short Criminal Procedure Code.) read with Article 227 of Constitution of India petitioner is seeking quashing of the order dated 27/10/1998 passed by the court of Additional Chief Metropolitan Magistrate, Delhi dismissing his application for discharge and for quashing of the proceedings arising out of Criminal Complaint No. 11/94 under Section 277 of the Income Tax Act (hereinafter referred to as "the Act") read with Sections 193 and 196 of the Indian Penal Code.

(2.) Facts in brief are : that the Assistant Commissioner, Income Tax filed a complaint under above noted sections against the petitioner, alleging therein that on 8/2/1991 search and seizure operation under Section 132(1) of the Act was carried out at the premises of the petitioner and the valuables comprising of following items were seized;

(3.) During the course of the search petitioner surrendered an income of Rs.1,60,00,000.00 as his income for the current year. In his statement, he claimed that the said income was earned out of his commission and trading business in clothes, gold & silver ornaments. He also claimed undisclosed income for the year 1991-92, and stated that he would explain his assets and income of Rs.29,58,280.00 subsequently as he did not remember the details. However, in subsequent letters to the Income Tax Department he opted to change the above surrendered income from Rs.1,60,00,000.00 to Rs.1,30,00,000.00 claiming that the amount of Rs.29,50,200.00 was included in the earlier disclosure statement. In each of his subsequent communications dated 23/4/1991, 13.3/1992 and 17/3/1992 petitioner took different stands. His statements under Section 131 of Income Tax Act were recorded in accordance with the procedure. It is alleged that these statements are contrary to each other. The assessment was completed and an income of Rs.1,34,16,173.00 was assessed by the Assessing Officer vide order dated 23/3/1993. Thus it was alleged that the petitioner/accused made statements knowing them to be false or having reasons to believe that the same were false. The petitioner was summoned. The petitioner moved an application under Section 245(2) for recalling the order of summoning and for discharge, inter-alia, pleading that earlier petitioner took time to submit the details, as he was not sure of the factual position, and that subsequently he realised that amount of Rs. 29,00,000.00 lakhs was surrendered in excess and the amount of Rs.1.3 crores covered the entire amount. Thus the petitioner sought to revise the surrendered income to Rs.1.3 crores by his letter dated 9/3/1991 and 25/3/1991. The ACMM vide impugned order dated 27/10/1998 rejected the contentions of the petitioner observing that it is a warrant trial case and that witnesses have yet not been examined and, therefore, the application for discharge was not maintainable.