Assistant Director Of Income Tax (Inv.)-Ii v. Sh.dhan Singh Sharma

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.A-1127-MA of 2015 (O&M)Date of decision: December 11, 2015 Assistant Director of Income Tax (Inv.)-II ...Applicant Versus Sh.Dhan Singh Sharma ...Respondent CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH Present: Mr.Rajesh Sethi, Senior Standing counselfor the applicant. **** INDERJIT SINGH, J. Applicant-Assistant Director of Income Tax (Inv.)-II hasfiled this application under Section 378(4) Cr.P.C. seeking permission for leave to appeal against respondent Dhan Singh Sharma,challenging the judgment of acquittal dated 22.10.2014 passed bylearned Judicial Magistrate Ist Class, Faridabad, in complaint No.RBT-9 of 2007 titled as 'Deputy Director of Income Tax (Inv.) Ambala vs.Sh.Dhan Singh Sharma. It is mainly stated in the application that accompanyingappeal is likely to succeed on the grounds taken therein. After givingfacts in detail in the application, it is prayed that special leave toappeal be given. I have heard learned counsel for the applicant and havegone through the record. As per the record, Deputy Director of Income Tax (Inv.)Ambala filed a complaint against Dhan Singh under Section 181 IPC.As per complainant's version, statement of accused was recorded onoath under Section 132(4) of the Income Tax Act, 1961. During thecourse of search of residence of accused, an incriminating documentwas found and seized as page no.69 and the said documentcontained a handwritten account and bears a head 'D.S.Doors' on thetop. The accused was asked vide question No.16 on page 10 of thestatement to explain the nature of account No.69/A-1/07.02.2007 andalso to explain that whether it had been accounted for in the books ofaccounts. Accused stated that it was rough estimate and did notrelate to him and it was left for the department to understand thedocument in the light of other evidences gathered during the search.The department had seized the computers containing the books ofaccounts of M/s D.S.Doors Pvt. Ltd. and M/s Woodtech Limited duringthe search of business premises. These were later on operated andprint outs of purchased accounts of these companies for the financialyear 2006-07 were taken out and duly authenticated by the accusedon 26.02.2007 and 27.02.2007. When the entries on the document69/A-1/7.2.2007 were co-related with the said purchase accounts ofM/s D.S.Doors Pvt. Ltd. and M/s Woodtech Limited, it revealed thatdocuments contains bill number and bill amount of Mango andShisham wood purchase. Accused knew that the document 69/A wasnot rough estimate and that it is related to the purchase account ofM/s D.S.Doors Pvt. Ltd. and M/s Woodtech Limited. Accused was asked vide letter No.4648 dated 15.03.2008 to show cause as to whythe prosecution under Section 181 IPC may not be initiated againsthim for making false statement before a public servant. In the reply,the accused remained non-committal as he has neither denied theallegation of the department that he had made a false statement or hereiterated the stand taken by him in the reply to question no.16 onpage 10 during the statement given on oath. Learned Judicial Magistrate Ist Class, Faridabad, afterappreciating the evidence, dismissed the complaint and acquitted theaccused vide impugned judgment dated 22.10.2014. asked vide letter No.4648 dated 15.03.2008 to show cause as to whythe prosecution under Section 181 IPC may not be initiated againsthim for making false statement before a public servant. In the reply,the accused remained non-committal as he has neither denied theallegation of the department that he had made a false statement or hereiterated the stand taken by him in the reply to question no.16 onpage 10 during the statement given on oath. Learned Judicial Magistrate Ist Class, Faridabad, afterappreciating the evidence, dismissed the complaint and acquitted theaccused vide impugned judgment dated 22.10.2014. At the time of arguments, learned counsel for the applicanthas not pointed out as to how the reasonings given by the Courtbelow are perverse or against the evidence and law. Learned counselfor the applicant shown the statement of the complainant recordedduring the search proceedings. At the start of the statement, the oathwas given to respondent-accused Dhan Singh Sharma and even thesignatures were obtained regarding oath. Then from 1 to 9 pages, thestatement was recorded in question-answer form and then thesignatures of respondent and competent authority were taken andRO&AC has been written, which means that statement was 'read overand accepted correct' by the person making the statement. It alsoleads to inference that this statement has been completed when thesignatures of Dhan Singh Sharma were taken. Thereafter, thestatement was again recorded by writing about continuity of thestatement. No time was mentioned as to when this statement was again started recording i.e. after how much time the statement wasagain started. Learned counsel for the applicant admitted at the timeof arguments that statement was re-started after some time on thesame day. There was a break in recording the statement andwhenever it is to be again recorded, the oath is to be given again tothe witness/accused but no such oath has been given second timewhen the statement was again recorded. Learned Magistrate after discussing the provisions heldthat question No.16, which was recorded later on, while recording thestatement after the completion of first statement, is without oath. Thefinding of learned Magistrate is correct, as per law and does notrequire any interference from this Court. Learned counsel for the applicant cited judgments passedby the Hon'ble Supreme Court in State of Maharashtra vs. SujayMangesh Poyarekar, 2008(4) RCR (Criminal) 555, Mishrilal andothers vs. State of M.P. and others, 2005 SCC (Cri) 1712, State ofU.P. vs. Rashid and another, 2010(1) SCC (Cri) 486 and judgmentpassed by the Hon'ble Bombay High Court in Yogita P. Gosalia vs.S.B.Morey and another, 2010(3) Bom.C.R. (Cri) 760. I have gonethrough all the above-cited judgments and the same will not apply inthe present case as none of the judgment is on the material pointregarding non-administering of oath. In view of the above discussion, I find that the findings given by learned Court below are as per evidence. The judgmentdated 22.10.2014 passed by learned Judicial Magistrate Ist Class, Faridabad, is correct, as per law and evidence. Keeping in view above facts and circumstances, I find that no ground is made out to grant permission for leave to appeal andtherefore, the present application stands dismissed. December 11, 2015Vgulati (INDERJIT SINGH) JUDGE