S R SWAMY Vs. STATE

JUDGEMENT

(1.) THE petitioner is the same in all these revision cases. He has been convicted under section 45(2)(b) of the Madras General Sales Tax Act, 1959, and sentenced to pay a fine of Rs. 35, in default to undergo simple imprisonment for three weeks in each case, by the Fourth Presidency Magistrate, Madras. These revisions relate to non -payment of tax for the years 1954 -55 to 1961 -62. There is no dispute in these cases that the demand notices were served on the petitioner. The petitioner asked for time for payment. In spite of the authorities having granted time, he failed to pay the tax. Hence the prosecution.

(2.) THE only point raised in these revision cases by the learned counsel for the petitioner is that the prosecution has not proved that the petitioner fraudulently evaded the payment of tax. It is clear from section 45(2)(b) that mere evasion of payment of tax or failure to pay tax is not an offence. But the prosecution should prove that the petitioner failed to pay tax with fraudulent intent. Mere failure to pay tax even for a long time is not per se an offence. The word "fraudulently" used in section 45(2)(b) of the Act will have the same meaning as is given in section 25, Indian Penal Code. Under section 25, Indian Penal Code, a person is said to do a thing "fraudulently" if he does that thing with intent to defraud but not otherwise. There must be an element of deception to bring it within the scope of section 25, Indian Penal Code. It must be understood in its ordinary and popular sense.

(3.) IN C.T. No. 39 of 1964 the learned Magistrate has observed as follows in the same context :