K K GUPTA Vs. DEVKUMAR AGGARWAL

JUDGEMENT

(1.) This revision application is filed by the Assistant Director of Inspection (Intelligence), Bombay of the Income-Tax Department of the Government of India against the order passed by the learned Addl. Chief Metropolitan Magistrate, 19th Court refusing to frame charge against respondent No. 1 (who will be referred to hereafter as the "accused"). The petitioner (who will be referred to hereafter as the "complainant") had filed Criminal Case No. 64/S of 1980, against the accused on 26-3-1980, for offence under section 277 of the Income-Tax Act 1961. For the alleged offence arising out of, more or less, the same set of facts, another Criminal Case No. 78/S of 1980, was filed by him against the accused for offence under section 191 read with section 193, Indian Penal Code on 28-3-1980. Some evidence was led by the prosecution even before the framing of the charge and after examining the said evidence and after considering the likely plea of the accused, the learned Magistrate was of the opinion that the facts stated in the two complaints as also the materials sought to be placed by the prosecution in support of the said complaint could not conceivably bring home a conviction against the accused either under section 277 of the Income-Tax Act or under section 191 read with section 193, I.P.C. Hence, by the order dated 9-6-1982, the learned Magistrate passed an order discharging the accused in both the cases. The Present revision application is filed by the Department against the said order of discharge.

(2.) I may state here that both the cases were considered by the learned Magistrate together because the facts in both the cases belonged, more or less, to the same set of circumstances. As a matter of fact, the facts stated in the first complaint, Case No. 64/S of 1980, cover the facts contained in the second complaint, Case No. 78/S of 1980, also. The offences are, however, of a different character. The offence alleged in the case of 78/S of 1980, was that the accused had made a false statement before the relevant officer of the Department as regards the ownership of certain articles of value found in his house on the date of raid, thus committing an offence under section 191, I.P.C. Punishable under section 193, thereof. The substance of the offence alleged in Criminal Case No. 64/S of 1980, was that although the accused had agreed to treat some of the precious articles namely, the miniature paintings, found in his house on the date of raid to be of his ownership and had condescended to pay income-tax on the same on the basis that they were his articles without admitting that on the relevant date namely, the date of the raid, they belonged to him, still while filing the return in that behalf he had under-valued the said valuable articles, namely, the miniature paintings, to a gross extent and had, thus, committed the offence under section 277 of the Income-tax Act.

(3.) The revision application was argued at length before me on 15-6-1983, as also on 16-6-1983, by Shri Poras Mehta, the learned Counsel for the petitioner as well as by Shri H.M. Jatiani for the accused. After hearing the learned Counsel for both the parties at length but before hearing them finally, I expressed an opinion in the Court that this was certainly a case where the order passed by the learned Judge as regard the offence, under section 277, could not be seriously called in question. At the same time, I also expressed an opinion that so far as the desired charge under section 191, read with section 193, I.P.C., was concerned, the order of the learned Judge refusing even to frame charge against the accused for the offence under that section and discharging the accused is said Case No. 78/S of 1980, was unsupportable. Mr. Jagtiani, therefore, took time from the Court to consider whether he should submit to the order of the Court so far as the question of framing charge in Criminal Case No. 78/S of 1980, was concerned. I may state here that Shri Mehta did not make any such statement relating to Case No. 64/S of 1980. All the same, however, I adjourned the hearing of the petition till today to enable the learned Advocate for the petitioner to state whether he would insist on opposing the said revision application against the order in Criminal Case No. 78/S of 1980. When the petition reached before me today, Mr. Jagtiani, the learned Counsel for the respondent-accused made an unequivocal statement before me that he had instructions not to argue the matter any further and that the accused was submitting to the orders of the Court and was agreeable to a charge being framed against him in Criminal Case No. 78/S of 1980. The hearing of the petition, therefore, proceeded only on the question as to whether the order in Criminal Case No. 64/S of 1980, refusing to frame charge for offence under section 277, of the Income-tax Act could be sustained. I heard Mr. Mehta further on the said question today. I may state here at the outset that Mr. Mehta was not in a position to advance any argument other than those urged by him on the last date of hearing in support of his contention that on the material placed before the Court it was incumbent upon the learned Magistrate to frame charge in said Criminal Case No. 64/S of 1980.