Dismissed

Income Tax Department (a-Ii Ward, Bombay) v. Derkumar Agarwal and Anr.

Bombay HC24 Jul 2014APEAL/363/1994

Case brief

AI extract

What is this about?

The High Court dismissed the appeal by the Income-tax Officer against an acquittal for perjury. The court held that despite contradictory statements regarding property ownership, the later admission of tax liability to avoid legal proceedings did not render the initial statement false under criminal law standards.

What did the court decide?

The appeal was dismissed without interference with the acquittal.

Income Tax Department (a-Ii Ward, Bombay) Vs Derkumar Agarwal and… — Income Tax | Bombay HC (2014)

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Appeal363_1994

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Vidya amin

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 363 OF 1994

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K.K. Gupta Income-tax Officer, A-II Ward, Mumbai.

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… Appellant

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vs.

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Dev Kumar Agarwal R/o. Ocean View, Warden Road, Mumbai – 26.

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State of Maharashtra … Respondents

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Mr. Suresh Kumar, Advocate for the appellant.

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Mr. Haresh Jagtiani, Senior Advocate a/w. Ms. Kathleen Lobo & Ms. Rishika Rajadhyasha i/b. B.V. Dhoria and C F Bilimoria, Advocate for respondent no. 1.

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Ms. Alpa Javeri, APP for the State.

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CORAM : MRS. MRIDULA BHATKAR, J. RESERVED ON : 18^th July, 2014. PRONOUNCED ON : 24^th July, 2014.

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JUDGMENT

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This Appeal is directed against the judgment and order dated 22^nd February, 1993 passed by the Additional Sessions Judge, Greater Bombay thereby setting aside the judgment of Additional Chief Metropolitan Magistrate, 19^th Court, Esplanade, Mumbai and acquitting respondent no. 1 from the charges under section 193 read with 191 of the Indian Penal Code.

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The appellant is an Income-tax Officer through whom the income-tax department has filed this Appeal. One K.K. Gupta, 1^st

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Income-tax Officer of A-II Ward, Mumbai had lodged the complaint against the respondent for committing offence of perjury under section 193 r/w. 191 of the Indian Penal Code. On 8^th January, 1975 said Income-tax officer along with his staff had searched the residential premises of respondent no. 1 at Ocean View, Warden Road, Mumbai. During the search, they found huge quantity of silver and gold coins, miniature paintings, foreign currency notes. The coins were valued Rs.2,67,000/-. The miniature paintings were valued Rs.40,000/-. At the relevant time, the Income-tax officer recorded his statement under section 132(4) of the Income-tax Act, 1961 (hereinafter referred to as “The Act”). Under the said section, he was legally bound to state on oath True facts. The respondent no. 1 stated on oath that these miniature paintings and gold & silver coins did not belong to him but it belonged to one Mr. Kalyanmal. The said statement was accepted by the Income-tax Officer at the time of search. Subsequently, on 29^th September, 1975 respondent no. 1 submitted the Income-tax returns of the A.Y. 1975-76. disclosing the income of Rs.9,21,350/-. In the said income-tax return, respondent no. 1 disclosed the value of gold & silver coins as Rs.2,67,000/-, value of foreign currency notes as Rs.5,000/and value of miniature paintings as Rs.40,000/- as belonged to him, so he paid income-tax on value of these articles. The Income-tax authority, therefore, found that as he has paid income-tax on the value of these articles and thus claimed ownership, his previous statement

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made on 10^th January, 1975 is false and therefore, a private complaint was filed before the learned Magistrate for perjury. The Income-tax officer Mr. K.K. Gupta and other witnesses were examined by the prosecution and after assessing the documentary as well as oral evidence, the learned Chief Metropolitan Magistrate convicted the accused for the offence punishable under section 193 r/w. 191 of the Income-tax Act and thereby sentenced him to suffer S.I. till rising of the Court and to pay fine of Rs.25,000/-. i/d. to suffer further R.I. for 6 months. The said judgment of conviction was challenged before the Sessions Court, Greater Mumbai in Criminal Appeal No. 103 of 1991. The Sessions Judge accepted the defence of the appellant and set aside the said judgment. Being aggrieved by the said decision of the Sessions Court, this Appeal against the acquittal is filed by the Income-tax Department.

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The offence in question is of perjury and therefore, the issue before the Court is whether a statement made by the respondent dated 9^th January, 1975 which is marked as Exhibit P-7 is a false statement or not? It is an admitted fact that Income-tax department while searching the premises on the night intervening 9^th January and 10^th January, 1975, gold & silver coins, foreign currency notes and miniature paintings were found at the residence of respondent no. 1. At that time, The respondent made a statement on oath under section 132(4)

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of the Income-tax Act before the Authority that the articles belonged to Mr. Kalyanmal and thereafter while filing the returns in the month of September, 1975, he paid the income tax on the value of the said articles is not disputed under section 132(4). A person is legally bound to make a true statement before the income-tax authority, is also accepted by both the parties.

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The learned counsel Mr. Suresh Kumar has submitted that as per the procedure followed under the Income-tax Act, a person in whose custody the amount/articles are found, is required to disclose whether it belongs to him or the name of the person who is the owner of the said property. In the present case, the respondent earlier had informed the officer that the property belonged to one Mr. Kalyanmal and the said statement was accepted as true. However, when he filed the returns after 9 months, he made a different statement and paid the income-tax on the said property. He informed that he is not aware of the address of Kalyanmal, as Kalyanmal had come to him through some dealer and left the articles with him for his approval. The learned counsel has submitted that it was the responsibility of the respondent to produce Kalyanmal or give the address of Kalyanmal to enable the authority to search for Kalyanmal and the authority could have imposed the income-tax of the said property on Kalyanmal. However, respondent no. 1 paid the income-tax on the said property and thus, he

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accepted that he is the owner of those valuables. The learned counsel argued that it is the responsibility of the prosecution to prove the case and thus with the help of the witnesses especially PW-1 K.K. Gupta and also on the basis of documents such as Income-tax returns (P-1) & statement dated 10^th January, 1975 (P-7), the prosecution has proved the case on all counts against respondent no. 1. He submitted that the judgment given by the learned Sessions Judge is illegal and not consistent with the legal provisions of criminal law as well as the Income-tax Act, therefore,it is to be set aside.

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The learned senior counsel Mr. Jagtiani has supported the judgment of the Sessions Court and submitted that respondent no. 1 is innocent and he has not made any false statement. He relied on the admission given by PW-1 in paragraph 5 of the deposition. The officer has stated that he came to the conclusion that the statement of the appellant dated 10^th January, 1975 regarding coins, miniature paintings and foreign currency notes is false in view of the return for the A.Y. 1975-76 filed by the appellant on 29^th September, 1975 i.e. Exhibit P-1. He further admitted that it is true that there is no other basis to come to the conclusion that the statement dated 10^th January, 1975 given by the appellant before him was false except the return filed by the accused Exhibit P-1. The learned counsel submitted that there is no other basis for the income-tax authority to come a conclusion

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about the falsity of the previous statement. He also read over the relevant portion in respect of assessment order of PW-2 Income-tax Officer Mr. V.V. Padode. He pointed out that out of the value of gold & silver coins of Rs.2,67,000/, coins valued Rs.81,600/- belonged to his four brothers and accordingly he had filed affidavit of his four brothers. He submitted that those brothers are not examined by the Income-tax department. He further argued that section 69 of the I.T. Act, lays down a deeming provision that a person in whose possession a property found is accountable and if he cannot tell the name of the owner of property, then he is deemed to be the owner of the said property. The learned counsel submitted that the Chartered Accountant of respondent no. 1 Mr. R.C. Jain has therefore adviced him to pay the income-tax on this property as Mr. Kalyanmal was not found and therefore his Chartered Accountant wrote letter to Income-tax Department that in order to avoid the multiple legal proceedings, respondent no. 1 wanted to buy peace and wanted to cooperate the income-tax department, therefore, he offered the income-tax on the said property. The learned counsel submitted that in view of this, the judgment of the trial Court was illegal and it was rightly set aside by the Sessions Court. He submitted that the Appeal therefore be dismissed.

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Whether the Statement (Exhibit P-7) dated 10^th January, 1975

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made before the Income-tax authority by respondent no. 1 is false or

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not is to be answered. It is a case of perjury. Section 191 of IPC

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defines perjury as follows:

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“191. Giving false evidence.—Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. Explanation 1.—A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2.—A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.”

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Thus to prove the offence of perjury, it is necessary for the prosecution to prove that the statement made before the authority is false and the

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maker knows that the statement is not true. Thus, the Section specifically contemplates a false statement and the knowledge of the person that it is false. Whether the statement (Exhibit P-7) dated 10^th January, 1975 can be said to be false or not in view of the circumstances and the second statement made by respondent no. 1?

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The facts stated before the Court can be false ipso facto or can be ascertained on the basis of prevailing circumstances or the statement can be labelled as false on the basis of other statement made by the same person. In the present case, two statements were made as follows:

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(i) In Exhibit P-7 respondent no. 1 stated that the property

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belongs to Mr. Kalyanmal.

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(ii) In Exhibit P-2 a letter written by Chartered Accountant, through whom respondent no. 1 has made statement that in order to buy peace and avoid multiplicity of legal proceedings, he is paying the income-tax on the said property.

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Had respondent stated that the property belonged to him and paid income-tax, then explanation was required from respondent no.1; how and when he became the owner of the said property and in the absence of any explanation, the first statement would have been a false statement. His previous statement before the income-tax authority i.e. Exhibit P-7 is clear. He pointed out his finger to Kalyanmal as the owner of the property. Whether this statement i.e. P-7 is falsified by his second statement or not is to be verified after analysing his second statemnet I.e P-2. He did not make statement that he is the owner of the property. He said that he is ready to pay income-tax on it because he wants to avoid multiple legal proceedings and so also he wanted to buy peace. It is true that to buy a peace is not a concept available in the criminal law, however, while dealing with a case of perjury, which is based on the statements made under the Income-tax Act, it is necessary for the Criminal Court to consider the provisions of Income-tax Act. If the prosecution is based on any such Special Act, then those provisions which may have different repercussion or interpretation cannot be ignored. While applying the regular yardstick of the criminal

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jurisprudence and the aid and assistance of provisions of the said statute is required to be taken.

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In the present case, Section 69A is a special provision under which property deemed to be of a particular person , if he does not explain the possession. This is the deeming provision and by virtue of this deeming provision, a person is held to be liable to pay the incometax. It fixes a fiscal liability on an individual but it does not decide the ownership. Those two statements i.e. P-7 and P-2 are undoubtedly contrary statements, however, the second statement does not render the first statement false. The false means not true or invalid or illegal or intended to deceive and contrary means opposite in nature. In the offence of perjury, the prosecution has to prove not only a contradiction in the statement but to prove falsehood in the statement and unless the falsity of one of the two statements as charged is proved to be so, the perjury cannot be established. The statement can be contrary but every contrary statement is not necessarily be false. The Court should be fully satisfied that two contradictory statements from every point of view are irreconcilable and then only that statement can be brought within the ambit of Section 191. In the case of Emperor vs. Bankatram Lachiram, reported in (1904) 6 Bom. L.R. 379, it is observed as under:

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“... It is a well known rule of law applied by eminent Judges to cases of perjury arising out of contradictory statements, that the Court dealing with them should not convict unless fully satisfied that the statements are from every point of view irreconcilable, and if the contradiction consists in two statements opposed to

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each other as to matters of inference or opinion on which a man may take one view at one time and a contrary view at another, there can be no perjury, unless he has on oath stated facts on which his first statement was based and then denied those facts on oath on a subsequent occasion.”

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Thus, if at all two contrary statements do not plug in inference leading third possibility, then the statements remain contrary only and neither of the statements be said as false.

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In the present case, possibility of Kalyanmal not returning back due to unavoidable reasons cannot be overruled. Respondent no. 1 has disclosed after 9 months that his four brothers were the owners of coins valuing Rs.81,600/- The income-tax authorities have neither recorded the statements of his four brothers nor the brothers were called as witnesses to ascertain the truth. It is also to be mentioned that in the beginning along with this criminal case of perjury, the income-tax authorities initiated proceedings under section 277 and 271 of the Income-tax Act before the Magistrate in respect of same returns of 1975-76, however, he was discharged and the said order of discharge was maintained by the High Court. In view of this, the judgment passed by the Sessions Court is found to be correct and legal and hence no interference is called for.

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The Appeal is dismissed.

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Income Tax Department (a-Ii Ward, Bombay) v. Derkumar Agarwal and Anr.

Case brief

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Income Tax Department (a-Ii Ward, Bombay) v. Derkumar Agarwal and Anr.

Case brief

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