M AYYASAMI NADAR Vs. STATE OF MADRAS

JUDGEMENT

(1.) THIS revision case is against the conviction and sentence of the four petitioners by the Fourth Presidency Magistrate under section 45(2)(a) of the Madras General Sales Tax Act, 1939, the sentence being a fine of Rs. 200 on each, in default two months' simple imprisonment. The four petitioners are the partners of M. Ayyasami Nadar. There was one other partner by name Shanmugha Nadar. He died pending proceedings before the Presidency Magistrate and his name was struck off. The firm of Ayyasami Nadar has been dealing in provisions at No. 172, Anna Pillai Street, with godowns at Kandappa Chetty Street. The Special Deputy Commercial Tax Officer (P.W. 1) inspected the shop and godown of the firm on 28th June, 1958, in the presence of Kandasami Nadar (A-3) when he took into custody a pocket note book exhibit P-1 containing entries of business transactions from Dharmalingam, an employee of the firm. Subsequently, on a report from P.W. 1, the Joint Commercial Tax Officer, P.W. 2, issued summons and A-3 produced regular accounts which on a comparison with exhibit P-1, were found to contain several omissions. P.W. 2 then served a notice on A-3 who filed his objections. These objections were overruled and P.W. 2 passed an assessment order as per exhibit P-7 and the same was served on A-3. The assessee filed an appeal but that was dismissed by the Tribunal and the assessee was disinclined to compound the matter. All the partners of the firm were, therefore, prosecuted under section 45(2)(a) for wilfully submitting an untrue return. P.W. 1 who had inspected the shop with Assistant Commercial Tax Officers, gave evidence in support of the prosecution. A-3 had made a statement, exhibit P-2, in the presence of P.W. 1 admitting the correctness of the entries in exhibit P-1.

(2.) WHEN verified with regular accounts, discrepancies were found in the items of purchases, 1/5th of which was uncovered by bills. Further, as per stocks in the godown, there were no purchase bills for 90 bags of pulav rice, 57 bags of rava, 75 bags of maida and 70 tins of cashewnuts.The accused examined Dharmalingam (D.W. 1) to explain that exhibit P-1 was maintained by him to note the market rates of commodities, that the entries made therein did not refer to purchase or sales, and that it was his personal note book that was seized from him.

(3.) HE further relied on Public Prosecutor v. Syed Rowther 1961 M.W.N. (Crl.) 117), which has held that section 14 of the Act does not invest the officers of the department with the powers of the police officers. In Venkateswara Rao, In re Panchapakesa Ayyar, J., had occasion to comment upon the practice of Commercial Tax Officers preparing statements and obtaining signatures from parties whom they wanted to charge-sheet later relying on such statements as evidence. The learned Judge characterised this practice as highly objectionable and observed that a party cannot be compelled to sign such a statements against his will and that rule 24 of the Madras General Sales Tax Rules giving the Assistant Commercial Tax Officer power to summon a person to give evidence before him did not empower him to go to the dealer's premises and prepare a statement himself incriminating the dealer and compel him to sing it.The position nevertheless is that exhibit P-2 is not an inadmissible document. But, having regard to the manner in which the said document was prepared and got signed by A-3, the evidentiary value to be attached on it may be a question. Standing by itself, it is hardly sufficient to sustain a conviction. Exhibit P-1, however, can be fully relied on. A scrutiny of exhibit P-1 would show that there has been suppression of the real stock in the accounts purported to have been regularly maintained by the firm. I am not impressed with the story that the entries in exhibit P-1 do not relate to the sales held by the firm and that they are not account books relating to firm transactions. It might have been kept in the personal custody of D.W. 1 but that does not make it the less an account book relating to firm transactions when admittedly D.W. 1 was a trusted employee of the firm and apart from entries relating to firm transactions, no other entries could have been made therein. I have, therefore, no doubt in my mind that a charge under section 45(2)(a) has been satisfactorily made out.