A P SHARMA Vs. STATE

JUDGEMENT

(1.) G . N. Srivastave, ITO Meerut filed a complaint against 5 accused (accuse Nos. 1 & 3 have since died) on the allegations that the accursed are assessee in the name of Modi Industries Ltd. Modinagar, Police Station Modinagar, Meerut. The sad concern has several unties, one of which is Modi Paints and Varnishes Works, Modinager, Meerut. The company filed an income-tax return on 16th Nov., 1964 at Meerut. P. R. Kumawat, ITO and predecessor in office of complainant considered the said return on 16th Nov., 1964. The return was compieted on 25th March, 1969. In the accounts of the firm the Company claimed a deduction of Rs. 31,647 paid as commission to Mehara and Co., Babarpur Road, Delhi. In order to prove this claim, the company filed an agreement dt. 1st Nov., 1962 at Rs. 2, stamp before P. R. Kumawat, ITO during the course of assessment proceeding. The stamp paper has actually been purchased on 16th July, 1963, but the date has been interpolated. It was alleged that Mehra and Company was a bogus firm which did not have any existence. Thus the records were manipulated. It is said that during the assessment proceeding, Madan Lal, accused, admitted that the firm was a bogus firm. However, later on changed his stand in appeal by filing an affidavit before AAC on 11th Oct., 1971. It was further alleged that Sri Amlok Ram was examined before Kumawat and he admitted he was only scapegoat of the firm and that there was no Mehra and Company in existence. On these allegations, the accused person are alleged to have committed an offence punishable under S. 193/196/109 I PC.

(2.) AN application was filed on behalf of the accused on 9th Aug., 1978 praying that the complaint be dismissed as the provisions of S. 340 Cr P C have not been followed. That application was rejected by the Judicial Magistrate, Meerut on 8th June, 1979, hence this revision.

(3.) COUNSEL for the opposite parties has raised a preliminary objection that the revision is not maintainable. For this purpose, he has placed reliance upon S. 401 (4) Cr P C, which runs as follows: Sec. 401 (4) --"Where under this code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party, who could have appealed." The contention is that the accused should have filed an appeal under S. 342 Cr P C, and since that has not been done, the instant revision is not maintainable. In order to decide this question, it would be relevant to quote S. 341 Cr P C Sec. 341-- "Any person on whose application any Court other than a High Court has refused to make a complaint under sub-s. (1) or sub-s. (2) of S. 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-s. (4) of S. 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under S. 340 and if it makes such complaint, the provisions of the section shall apply accordingly." (2) An order under this section and subject to any such order, an order under S. 340, shall be final and shall not be subject to revision."