MAHENDER KUMAR Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) CHALLENGE in this petition is to orders of conviction and sentence dt. 18th July, 1983, and 19th July, 1983, respectively, rendered by the Addl. Chief Judicial Magistrate, Bhiwani, as also order dt. 30th Nov., 1987, vide which Addl. Sessions Judge, Bhiwani, set aside the conviction and sentence of the accused Mahender Kumar for an offence punishable under S. 278 of IT Act, 1961, but maintained the conviction and sentence for an offence punishable under S. 277 of the IT Act, 1961, and reduced the sentence from one year and six months to nine months.

(2.) BRIEF facts of the case reveal that a partnership concern known as M/s Sat Narain Mahender Kumar at Tosham had three partners, namely, Mahender Kumar, Raj Kishan Gupta and Daropadi Devi. The accounts of this partnership firm were maintained by one Ram Kishan, Munim. The income tax return for the financial year 1976 77 was filed in the year 1977 by Mahender Kumar, partner. The documents accompanying the income tax return were also signed by Mahender Kumar. Inasmuch as the concerned Department was of the view that in the income tax return aforesaid, the firm has concealed the total income to be shown in the return, it lodged a complaint against the firm, its three partners as also Ram Kishan, Munim. The complaint was lodged under ss. 277 and 278 of the IT Act, 1961 (hereinafter referred to as the Act, 1961), as also under ss. 193 and 477 A of IPC. To substantiate its case, the Department examined two witnesses, namely, Uma Sharma, L.D.C. of the IT Department as PW 1 and Rattan Lal, ITO, as PW 2, who happened to be the complainant as well. It requires to be mentioned here that from the statement of the witnesses, it is clear that the firm is a partnership concern and it had concealed an amount of nearly, Rs. 13,000. The assessment was completed on 30th Aug., 1976, as would be clear from the assessment order, Ex. P 3. The complaint aforesaid was lodged on 14th March, 1977, against the firm, Mahender Kumar, Raj Kishan Gupta, Daropadi Devi and Ram Kishan, Munim under ss. 277 and 278 of the Act, 1961, as also 193/477 A of IPC. The charge came to be framed on 13th Feb., 1980. It is pertinent to mention here that no charge was framed against the firm. Rather the charges were framed against its partners aforesaid and Ram Kishan Munim under ss. 277 and 278 of the Act, 1961, as also ss. 193, 477 A r/w S. 120 B of IPC. Against this charge, Daropadi Devi filed a revision before the Addl. Sessions Judge, Bhiwani, which was accepted vide order, dt. 16th Nov., 1981. Insofar as Raj Kishan Gupta is concerned, he was acquitted in appeal preferred by him. So far as Ram Kishan, Munim is concerned, he died when his appeal was pending before the Addl. Sessions Judge.

(3.) ON the facts, as fully detailed above, Mr. Gupta, representing the petitioner, without touching the merits of the case, only states that in view of the facts and circumstances of this case as also the fact that litigation is going on for the last more than 25 years, it will not be in the interest of justice at this stage to order the petitioner to undergo a jail sentence. Not only that, the petitioner has undergone the agony of protracted trial, spanned over a period of 25 years, the allegation against the petitioner was only to the extent that a sum of Rs. 13,000 and odd had been concealed. This too, as per learned counsel for the petitioner, on the basis of evidence available on record, i.e. statement of ITO and that of petitioner, was because of some acts of cheating and negligence of Ram Kishan, Munim. Further, insofar as the firm is concerned, no charge has been framed against it and insofar as other partners are concerned, one of them has been acquitted and the other has died.