STATE Vs. VISHANDAS MOTIRAM MALWANI

JUDGEMENT

(1.) Appeal No. 664 of 1960 has been filed by the State against an order passed by the learned Presidency Magistrate, 19th Court, Esplanade, Bombay, acquitting one Vishandas Motiram Malwani, who was accused No. 1 in Case No. 188/P/59, of an offence under s. 380 of the Indian Penal Code. Criminal Eevision Application No. 706 of 1960 is also filed by the State against all the four accused in the aforesaid case for the enhancement of sentence passed by the learned Presidency Magistrate against them in respect of an offence under s. 353 read with s. 34 of the Indian Penal Code. None of the accused, it may be noted, has filed any appeal against his conviction under s. 353 read with s. 34 of the Indian Penal Code.

(2.) The case for the prosecution was that on April 7, 1959, one Ghanekar, a Sales Tax Officer, received an assignment from the Additional Collector, Sales Tax, Enforcement Branch, to visit the place of business of Messrs L. Chaturbhuj & Co. to inspect the books of account and seize the same, if necessary. The Sales Tax Officer, accompanied by Inspector Kandhari, went to the place of business of Bherumal Narayandas on Girgaum Road, where the officer was told, the proprietor of L. Chaturbhuj & Co. could he contacted. Accused No. 2 was the proprietor of the company. Ghanekar contacted the accused at that place and asked him to show him the books of account of his firm. The accused, however, told him that he had kept the books of account at his residence at Batra House, Sorab Bharucha Road, Colaba. The officer told him to take him there and accused No. 2 took him and the Inspector to his residence mentioned above. At the same time, as the Sales Tax Officer Ghanekar got an assignment to visit the business premises of L. Chaturbhuj & Co., another Sales Tax Officer Sidhwani was given an assignment order to visit the residence of accused No. 2 at Batra House for the same purpose, viz. checking his books of account. This Sales Tax Officer Sidhwani, accompanied by an Inspector by name Gandhi and another Inspector Khamgaonkar, went to the house of accused No. 2 at Batra House on the third floor and rang the bell. An old woman answered the bell and told him that accused No. 2 was not at home. Sidhwani along with his Inspectors, therefore, went down and was waiting on the road when accused No. 2 reached there along with the Sales Tax Officer Ghanekar and Inspector Kandhari.Ghanekar and Kandhari to the Police Station. The Police Constables sent by Sub-Inspector Kuril also went back with them to the Police Station, where, according to the prosecution, the first report of Ghanekar was recorded. Sub-Inspector Kuril then went with them to the house of accused No. 2. All of them entered the house and accused Nos. 1, 3 and 4 were pointed out to the Police by the Sales Tax Officers as the persons who had taken part in pushing them out of the house. The house was thereafter searched and a. panchanama was prepared of the account books which were seized in course of that search. In respect of the seizure of the account books Ghanekar himself prepared a memo. under s. 23 and a receipt which was exh. 1 in the case. All the four accused were then taken to the Police Station and were put under arrest. The Police then started the investigation of the case and after it was complete, all the four accused were sent up on charges under s. 353 read with s. 34 and s. 424 read with s. 34 of the Indian Penal Code. A regards the charge under s. 424 read with s. 31, the case for the prosecution was that about 25 books were lying scattered in the flat when the Sales Tax Officers were pushed out, that on their return to the flat from the Police Station they found the books neatly arranged on a table, that those books were seized by the officers and thereafter the bill book and seven other books were found missing from among those which were lying scattered when they were pushed out. Accused No. 1 was further charged under s. 380 of the Penal Code. In respect of this charge, the prosecution alleged that after accused No. 1 returned the assignment order to Ghanekar, he again snatched it from him while he was pushing him out of the flat.

(3.) In support of the prosecution case several witnesses were examined including the four Sales Tax Officers. Even the Additional Collector of Sales Tax was examined to say that he had issued the assignment orders to the two Sales Tax Officers at 2-15 p.m. on the day of the incident and also to say that he was the officer who got the report of this incident and gave a sanction to the prosecution. Besides the aforesaid witnesses, the only other witness examined was the Sub-Inspector Kuril who had investigated the case.