S ARUMUGAM Vs. S SARANGAPANI

JUDGEMENT

(1.) This petition coming on for hearing upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. N. Natarajan for MIs. S. Jothiraman, G. Dhesingu and S. Govindarajan, Advocates for the petitioners and of Mr. Sam. V. Chelliah, Standing Counsel for Income-tax on behalf of the Respondent, the Court made the following order: This is a petition to quash the proceedings in C.C. No. 2193 of 1983 on the file of the SubDivisional Judicial Magistrate, Poonamallee. The accused 1 and 2 are the petitioners.

(2.) The respondent-3 Income-tax Officer, salaries Circle II, Madras has filed the criminal prosecution against the petitioners in C.G No. 2193 of 1983 on the file of the Sub Divisional Judicial Magistrate, Poonamallee for offences under sections 120- Band 34 read with sections 181 and 193 of the Indian Penal Code and sections 276(1) and 277 of the Income-tax Act, 1961. The first accused is the husband and the second accused is his wife. The first accused was carrying on Circulation Business in benami names and was reported to have unaccounted wealth. On 28.1.1982 the respondent searched the premises of the accused and questioned the first accused as to whether he owned any locker or safe deposit, vault in his name of in the name of his wife or relation and the first accused denied the same. The search party however locared two Godrej keys in the suit case of the first accused and be was asked to explain the same. He stated that one S. Vasudevan of No.7 Kamal Thope Street. Madurai-1 gave those goods to him for safe custody. A sworn statement was recorded from the first accused and it was written by his wife, the second accused in which the first accused denied his ownership of the keys. Subsequently the Department by its own efforts identified that one of the keys pertained to a locker kept in the Madras Safe Deposit Vault Company, Nungambakkam High Road, Madras in the name of the first accused and the other to another locker kept in the Bank of Baroda, purasawalkam branch in the name of the second accused. The lockers were opened in the presence of the accused. A sum of Rs 1,00,000/-, three passbooks and two fixed deposit receipts were recovered from the locker belonging to the first accused. A sum of Rs. 3,00,000/- was seized from the locker belonging to the second accused. Hence this prosecution.

(3.) The only contention advanced by the learned counsel for the Petitioners is that the sworn statement recorded from the first accused was in violation of the provisions of section 132(4) of the Income-tax Act, 1961 and the prosecution based thereon is void in law. According to him, under section 132(4), only when a person is found to be in possession or control of any books of accounts, documents, money bullion, jewellery or other valuable article or thing the authorized officer can examine him on oath concerning the aforesaid materials. In this case, the authorized officer has not found any books of accounts, documents, money bullion, jewellery or other valuable article or thing as mentioned in subsection (4) of section 132 and hence the statement obtained from the first accused on oath was without jurisdiction.