IN RE: D.B. KANIA Vs. STATE

JUDGEMENT

(1.) THE accused -Petitioner is a dealer. His shop was inspected by the Deputy Commercial Tax Officer, R.S. Puram Division on 24th May, 1968 at 6 -20 p.m. He did not find the Day Book written upto date. On the contrary, he found the Stock Book and the Day Book written upto 1st May, 1968. Therefore, it follows that from 1st May, 1968 to 24th May, 1968, this dealer did not write the books. This is characterized as failure to keep and maintain a true and correct account on the part of the accused -Petitioner. It is the gravamen of the charge against him. On 24th May, 1968, the Deputy Commercial Tax Officer obtained a statement marked Ex. P -1 from the cashier of the accused, wherein he has stated that the accused -Petitioner has gone on his business trip from 1st May, 1968. From Ex. D -1, it can be inferred that the accused was available in Coimbatore on 15th May, 1968 and he has written a document Ex. D -1 wherein he has indicated his projected trip to Salem, Bangalore, Sholapur, Poona and other places for his business. It is also very clear from the entire records that the accused dealer was not available on 24th May, 1968. On his return from his business trip, it appears that he seems to have received a notice from the Deputy Commercial Tax Officer on 2nd July, 1968 evening. In reply to that he has stated that he was arranging for his business tour on and from 1st May, 1968. This averment in Ex. P -3 is quite consistent with the statement of the cashier in Ex. P -1. No doubt, there is an omission in Ex. P - 3 about his stay on the 15th but it does not really matter for the purpose of this case. On 5th July, 1968, the accused submits an explanation to the Deputy Commercial Tax Officer, which is marked as Ex.P -3, in reply to the notice received on his behalf on 2nd July, 1968 evening.

(2.) WHEN examined under Section 342 of the Code of Criminal Procedure the explanation of the accused is that on account of his business tour, he could not write the Day Book and the Stock Book, which he himself would maintain in Gujarathi language, but under his instructions, his clerk Krishnaswamy bad maintained a temporary note -book in Tamil marked as Ex. P -4 regarding all the transactions and that subsequently, he copied those in the regular account books with the assistance of his clerk. No doubt, 'Ex. P -4 was not produced by the cashier D 1 before P. W. 1, the Deputy Commercial Tax Officer, but in his explanation dated 5th July. 1968, there is definitely an averment to the effect that his clerk has been keeping the temporary cash book in tamil and properly maintaining it daily. After returning from the journey, the accused copied the same in Day -Book in Gujarathi with the help of his clerk. It is not disputed by the prosecution that the maintenance of the accounts is only in the Gujarathi Language.

(3.) IN this context, it is worthwhile to reproduce Section 40 of the Madras General Sales Tax Act (1 of 1959) which reads as follows: