UNION OF INDIA Vs. MAMTA SETHI

JUDGEMENT

(1.) BEING aggrieved by the judgment dated April 23, 1994, passed by the Additional Chief Judicial Magistrate (Economic Offences) Indore, in Criminal Case No. 5 of 1985, whereby the respondents were convicted of an offence punishable under Section 276C and 277 of the Income Tax Act, 1961, but were released by giving benefit of Probation of Offenders Act upon furnishing the bond for a period of two years of good conduct, the present appeal has been filed.

(2.) SHORT facts of the case are that a private complaint was filed against four accused namely M/s. Rajkamal Agencies, a registered partnership firm and its three partners Smt. Mamta Sethi, Smt. Sheela Jain and Rameshchandra Sethi under Section 276C, 277 of the Income Tax Act, 1961, and under Section 420 read with Section 511 of the Indian Penal Code on March 29,1985, by the then Income Tax Officer Mr. N.R. Gupta under the directions of the Commissioner of Income Tax, Bhopal, under Section 279 of the Income Tax Act (which shall be referred hereinafter as the "Act"). In the complaint it was alleged that the firm M/s. Rajkamal Agency credited Rs. 50,000 in its books in the name of Hazarilal Harikishan and showed as deposited Rs. 33,000 in the Andhra Bank in its account, but according to entry in its book it was Rs. 30,000 relating to a cheque of Rs. 30,000 received from the M/s. Rajkumar Mills. It was alleged that there was unexplained cash credit of Rs. 53,000 within the meaning of Section 68 of the Act on which the firm evaded tax. Learned trial court after taking cognizance, framed the charges under Sections 276C, 277 of the Act. Prior to it during pendency of the criminal case Mr. Rameshchand Sethi died on September 20, 1991. After framing of charges the petitioner examined Mr. Andrew Dutt, Inspector of Income Tax as PW/1 and Shyamkishore Mehta, Income Tax Officer as PW72. After recording of evidence the learned trial court convicted the three accused namely M/s. Rajkamal Agency, Smt. Mamta Sethi and Smt. Sheela Jain under Section 276C, 277 of the Act but released them on probation of good conduct on a bond of Rs. 10,000 for two years under Section 4 of the Probation of Offenders Act, 1958, vide judgment dated December 23, 1994, against which the present appeal has been filed for enhancement of sentence.

(3.) MR . A.S. Parihar, learned Counsel for the appellant argued at length and submits that the impugned judgment passed by the learned court below so far as it relates to sentence, is illegal and deserves to be set aside. It is submitted that there was no justification on the part of the learned court below in giving the benefit of the Probation of Offenders Act to the respondents while the learned court below found that the respondents have committed the offence. It is submitted that the appeal filed by the appellant be allowed and the judgment so far as it relates to sentence is concerned be modified and the respondents be convicted as per the Act.