Assistant Director Of Income Tax (Inv.) Hissar v. Dr. Kaushal Goyal

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHAN DIGAR CRM-A-452-MA-201 Date of decision :08.08.2017 Assistant Director of Income Tax (inv.) Hissar Versus ...... Applicant Dr. Kaushal Goyal ...... Respondent CORAM : HON'BLE MR.JUSTICE H.S. MADAAN KKK Present ;Mr. Rajesh Sethi, Senior Standing Counsel,for the applicant.Mr. N.S. Shekhawat, Advocatefor the respondent. +++ H.S. MADAANiJ. Assistant Director Income Tax (inv.) Hissar had filed acomplaint under Section 181 of Indian Penal Code (for short — IPC) againstaccused Dr. Kaushal Goyal son of Sh. Jai Narain Goyal, resident of ModelTown, Rewari in the Court of Additional Chief Judicial Magistrate, Rewarion the allegations that Income Tax Department had conducted search andseizure operation in the premises of accused on 24.08.2006 and during theverification so conducted by the department, the accused had madestatement having glaring contradiction with regard to existence of lockerNo.152 with State Bank of Indore, Rewari held in the joint name of theaccused and his wife. The accused had made a statement on oath denyingknowledge of existence of any such locker which was proved to be a false statement purposely made before a Public Servant since this locker wasactually found to be there in the name of the accused and his wife. Atter thecomplaint was filed, the accused was summoned by the Court and he put inappeCalallC During evidence of complainant four witnesses were examinedand thereafter chargesheet was served upon accused for commission ofoffence under section 181 IPC. To prove its case, the complainant had examined four witnessesas per details below:- PW-l Sh. R.P. Dhanda posted as Deputy Commissioner,Income Tax Department, Sirsa appeared and deposed that accused was dutybound to disclose bank account number, lockers etc. but he made statementon oath deliberately withholding information which he was bound todisclose to a public servant and he had given false statement that he did notpossess any locker in any bank in his own name or in the name of his wife. | PW-2 Sh. Satish Chander, Income Tax Officer stated that hehad recorded statement of accused under the instructions of Sh. RP.Dhanda, Additional Deputy Director of Income Tax, Hissar. The statementwas recorded over a period of 4 to 5 hours. PW-3 Ms.Harbans Kaur, Income Tax Inspector proved thesanctioned order by Director of Income Tax, Chandigarh for the purpose oflaunching prosecution against accused Dr. Kaushal Goyal stating thatnecessary approval for launch of prosecution was obtained from Director ofProsecution, Chandigarh. PW-4 Mahesh Kumar Deputy Manager, State Bank of India stated that Dr. Kaushal Goyal (accused) was having locker in State Bank ofIndore, which was operated on 13.04.2006. With that, the evidence of complainant was closed. Statement of accused was recorded under Section 313 Cr.P.C.in which the accused while denying the incriminating circumstancesappearing against him submitted that he was innocent and had been falselyinvolved in the case._ After hearing arguments learned Additional Chief JudicialMagistrate, Rewari dismissed the complaint. Feeling aggrieved, the complainant has approached this Courtmoving an application under Section 378(4) of Code of Criminal Procedureseeking grant of Special Leave to appeal from order of acquittal datedQ1.11.2010 passed by learned Additional Chief Judicial Magistrate, Rewariin complaint No.40 titled as Deputy Director of Income Tax (Inv.) Hissarvs. Dr. Kaushal Goyal. On notice, the respondent put in appearance through counsel,I have heard learned counsel for the parties and have gonethrough the record. © I conclude that no ground is made out to grant special leave toappeal. The judgment passed by the trial Court is well reasoned one anddoes not suffer from any illegality or infirmity. It comes out to be a result ofdue application of mind and there is no defect apparent on the face of it. Thetrial Court came to the conclusion that: On notice, the respondent put in appearance through counsel,I have heard learned counsel for the parties and have gonethrough the record. © I conclude that no ground is made out to grant special leave toappeal. The judgment passed by the trial Court is well reasoned one anddoes not suffer from any illegality or infirmity. It comes out to be a result ofdue application of mind and there is no defect apparent on the face of it. Thetrial Court came to the conclusion that: 1. No offence against the accused stood proved sinceprovisions of Oath Act, 1969 have not been complied with inasmuch statement of accused was recorded in parts aftertaking breaks and oath was not administered to him by DeputyDirector of Income Tax regarding his statement after everybreak. 2. The sanction to prosecute the accused as required undersection 181 IPC has not been properly proved. 3 It has been established on record that accused washypertensive and undergoing regular treatment at the time ofsearch and seizure and he could be perplexed at that time inview of his medical condition and as admitted by PW1 in his cross-examination that accused was in nervous state of mindwhile making statement, as such it cannot be said that it was adeliberate case of falsehood on a matter of substance. 4. There was no|Mens redon the part of the accused tocommit an offence. 5. There is no material on record to show that dueapplication of mind on the part of complainant to conclude thatit was in the interest ofjustice to file a complaint. Furthermore, it has been contended on behalf of the accused andnot refuted by counsel for the complainant that Income Tax AppellateTribunal vide order dated 16.1.2013 has come to the conclusion that!addition of =15.5 lacs was not sustainable in the hands of the assessee andhe has explained the sources. Accordingly, the appeal of assessee(Dr.Kaushal Goyal) was allowed and addition was deleted. Thus it comesout that it was not a case of concealment of income. Learned counsel for the respondent has referred to citationM/s Shastri Sales Corporation and others Versus Income Tax Officer, Ward No.3(G), 1996 Crl.Law Journal 449by Nagpur Bench of Hon'ble HighCourt of Bombay wherein penalty proceedings had been initiated underprovisions of Income Tax Act, however, the criminal complaint was filedon same facts during pendency of such proceedings. The penalty order wasquashed by final authority. It was held that continuation of criminalproceedings thereafter were not permissible and accused was entitled todischarge, Learned counsel for the respondent has further pressed intoservice authorityMahendra Pratap Singh Versus State of Uttar Pradesh, 200911) SCC 334by Hon'ble Apex Court wherein it was held that whenthe trial Court had acquitted the accused and appeal was filed against thatorder, in that eventuality unless the conclusion of the trial Court drawn onthe evidence on record is found to be unreasonable and perverse orunsustainable, the High Court should not interfere with the order ofacquittal| On the other hand, learned counsel for the applicant has alsoreferred to various citations as under‘ I. TS. Baliah Versus T.S. Rangachari, Income Tax Officer, 72 ITR 787. 2. | Hazari Lal Versus Emperor, 5 ITR 610. 3. P.D. Patel Versus Emperor, I [RT 363.4. State ofMaharashtra Versus Sujay Mangesh Poyarekar, 2008(4) R.C.R. (Criminal) 555 5. Kishan Singh (D) through LRs. Versus Gurpal Singh and others, 2010 Crl.Law Journal 4710,6. Syed Askari Hadi Ali Augustine Imam and anotherVersus State (Delhi Admn.) and another, 2009 AIR (SC)323) But those are not helpful to the applicant due to different factsand circumstances and the context in which such observations have beenmade. Thus no ground is made out to grant special leave to appeal inthis case. The application is, therefore dismissed accordingly. 08.08.2017 |Gaurav Sorot /Brij ( H.S. MADAAN)JUDGE 1. Whether reportable?No /Yes 2. Whether speaking / reasoned?No/Yes