NANDRAM AGARWALLA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is a petition under Section 215 of the Criminal P. C. for quashing the commitment of the petitioner Nandaram Agarwalla who was committed to this Court for trial on charges under Sections 120B/379 and 466 and 465 of the I. P. G.

(2.) The prosecution arose out of the alleged removal of two returns filed on behalf of the assessee Sriram Jhabarmull for the assessment years 1945-46 and 1946-47 on the 9-12-1946 and the 30-12-1946 and their substitution by two other returns in between the 27-2-1952 and the 29-2-1952 by return Exts. 3 and 4 bearing the dates 9-12-1946 and 30-12-1946, respectively, but written on forms printed as appears from the forms themselves, on the 4-5-1949. The case for the prosecution is that the files in which these returns were kept were in the custody of the Income-tax Officer Sri Nani Gopal Das Gupta, P. W. 2, who used to keep these files in a steel almirah in his room under lock and key, the key being kept by bim. It is his evidence that at the time he took over charge from his predecessor. Sri S. N. Roy, he was directed by Mr. Roy to take particular care of the file of Sriram Jhabarmull and-also to see that the file was kept with him and never to send it to the office. In accordance with these instructions he took particular care of these files. On the 27-2-1952, three different parts of the file relating to this asses-see Sriram Jhabarmull had to be sent to the Appellate Assistant Commissioner in connection with the hearing of an appeal. The returns in question are said to have been in these files. On the 27-2-1952, the Income-tax Officer had a conference with the Commissioner of Income-tax and the Inspector of Assessment for discussing ways and means of recovery of income tax assessment from Nandaram Agarwalla, the present petitioner', who according to him, had evaded income tax for a number of years and a further conference was to be held on the 29th. The Commissioner of Income-tax had instructed Sri. Nani Gopal Das Gupta to call for the file from the Appellate Assistant Commissioner. The Income-tax Officer sent one. Ebnd Ali Mondial, P. W. 9, an assistant in the Income-tax Department, to fetch the files. When these files were brought to Sri Das Gupta on the 29th by Ebad Ali Mondal, he began to go through their contents in order to prepare himself for the con- ference. In the course of his scrutiny of these papers. Sri Das Gupta discovered two returns Exts. 3 and 4 which according to him had been freshly prepared, and the ink on the same had not yet completely dried up. He also discovered that the retums wera submitted on forms printed on the 4-5-1949 although, the dates they bore were the 9-12-1946 and the 30-12-1946, respectively. He made a report Ex. 2 to the Commissioner of Income-tax on the-4-3-1952 The Commissioner of Income-tax then sent this report of Sri Das Gupta with a complaint of his owrt to the police.

(3.) The prosecution case, as far as one can. Judge from the complaint of the Commissioner of Income-tax is simply this. That the original returns for 1940-41 assessment year had been filed in respect of the joint family consisting of Nandaram Agarwalla and his sons and in those for 1945-46 and 1946-47 the status of the assessee was shown to be a firm whereas the forged returns show that .Nandaram Agarwalla is the sole proprietor of the firm and the object is to prevent execution proceedings against Kashiram Agarwalla, the son of Nandaram Agar- walla and his properties. To prove these facts thqr prosecution examined the Commissioner of Income-tax, P. W. 1, the Income-tax Officer, Sri Nani Gopai Das Gupta, P. W. 2, Sri S. N. Roy, P. W. 3, who was. succeeded by Sri Nani Gopal Das Gupta as Income-tax Officer, and a number of other witnesses including Ebad Ali Mondal, the clerk who had brought back the file from the office of the Appellate Assistant Commissioner to Sri Nani Gopal Das Gupta.