P. Jayappan vs First Income Tax Officer

Mrs. Padmini Jesudurai, J.—These two revisions have been filed by the same accused facing trial in two cases filed by the Income Tax

Department for the offence under the Income Tax Act. Crl. R. C. No. 314 of 1986 is against the order passed by the learned Magistrate in Crl.

M. P. No. 404 of 1986 in C. C. No. 133 of 1983, while Crl. R. C. No. 315 of 1986 is against the order passed by the same Magistrate in Crl.

M. P. No. 485 of 1986 in C. C. No. 134 of 1983. Both the miscellaneous petitions were filed by the prosecution u/s 311, Crl. P. C., seeking to

have six additional documents in the first case and one additional documents in the second case, filed by recalling P. W. 1. The offences in both the

cases were under sections 193 and 196 of the Indian Penal Code, read with section 136 and section 276(c) of the Income Tax Act for assessment

orders for different assessment years.

On the prosecution filing the above petitions for additional evidence, the petitioner objected to the same contending that the petitions were

belated and were bound to prejudice the petitioner-accused and that PW-1 was incompetent to mark them and that permitting production of the

documents would result in gaps of the prosecution being filled up.

On the learned Magistrate overruling the objections and allowing the recalling of P. W. 1 for receiving additional evidence, the present revisions

have been filed challenging the above order.

Thiru Calvin Jacob, learned counsel for the petitioner, would reiterate the same objections that had been urged before the trial court through the

counter, while the learned Special Public Prosecutor for Income Tax cases, relying upon the decision in Jamatraj Kewalji Govani Vs. The State of

Maharashtra, , would contend that the documents being necessary for the just decision of the case, the trial court had rightly ordered their

reception.

The documents relate to fabrication of false account books for two assessment years and the consequent attempt to evade tax. It is true that,

initially, PW-1 had been once recalled for filing an additional document, viz., the reassessment order. The prosecution had now come forward with

petitions to have seven documents received as additional evidence (six documents in the first case and one document in the second case) by

recalling PW-1. It is stated that it is on the basis of these documents that the reassessment order had been passed. The trial court had taken the

view that the prosecution had not yet been closed and, as such, no prejudice could be caused to the accused by ordering reception of the

additional documents and granting a fresh opportunity to the accused to cross-examine such of those witnesses as the accused desired relating to

these additional documents as would meet the ends of justice. This view of the learned trial judge is in consonance with the decisions of the

Supreme Court, particularly with Jamatraj Kewalji Govani Vs. The State of Maharashtra, , wherein the court had emphasized the wide discretion

given to the trial court to act as the exigencies of justice required. Emphasis was laid on the repeated use of the word ""any"" throughout section 540

(the present provision is section 311, Cr. P. C.). It was also laid down that there was no limitation on the powers of the court relatable to the stage

to which the trial might have reached, provided the court was bona fide of the opinion that, for the just decision of the case, that step had to be

taken. It was also mentioned that the action might equally benefit the prosecution also.

Learned counsel for the petitioner, in addition, reply upon a decision of a learned judge of this court in Narayanan v. State [1980] TLNJ 30

wherein, on the circumstances of the case, the learned judge held that permitting the recall of P. W. 1 for filing certain additional documents would

amount to filling up the prosecution case and turned down the request of the prosecution. The learned judge had dealt, in extension, with the two

parts of section 311 of the Criminal Procedure Code, the first part dealing with the wide discretion of the trial court, to recall or re-examine any

witness, if the evidence appears to it to be essential to the just decision of the case, and the second part which is in the nature of a mandatory one

compelling the court to invoke the powers u/s 311 of the Criminal Procedure Code when the first part is satisfied. Emphasis has also been laid on

the limitation to the exercise of this power by relying on the decision of the Supreme Court referred to above. In the case before the learned judge,

PW-1, the Food Inspector, in a prosecution under the prevention of Food Adulteration Act, to whom specific suggestions had been put in the

cross-examination that he had violated rules 16 to 18 of the Rules farmed under that Act, had neither chosen to say anything that indicated

compliance with the above rules nor was the position clarified in the re-examination. After arguments were addressed by counsel for the defence,

the prosecution came to recall PW-1 to elicit compliance with rules 16 to 18 and when the trial court had ordered the application, the learned

judge reversed the order holding that this amounted to permitting the prosecution to fill up the lacuna.

Reliance was also placed upon a decision of the Allahabad High Court in Bhagwana v. State of U. P. [1953] Crl. L. J. 785, dealing with this

petition of law and also a decision in Arjundas v. Basant Lal [1953] Crl. L. R. 980 (Vindhya Pradesh) wherein permission to recall the defence

witness for further cross-examination was turned down since it was felt that the same would only enable the parties to fill up the gap in the

evidence.

Reliance was also placed on a decision of the Kerala High Court in Chandran v. State of Kerala [1985] Crl. L. J. 1288

The facts of the instant case are entirely different from the facts of the cases referred to above. The reassessment order had already been

marked and the additional documents that are sought to be produced now are only the documents on the basis of which the reassessment order

has been passed. These documents would not only help the prosecution but also the defence and would be necessary for the just decision of the

case since a reassessment not done, without the material on which it had been passed, would only handicap the defence. It is not the case of filling

up any lacuna in the prosecution case.

Under these circumstances, the objection of learned counsel for the petitioner is of no substance. Even the learned Magistrate had made it after

the reception of the additional evidence, an opportunity would be given to the petitioner to further cross-examine such of those witnesses as he

desires and that the additional documents are necessary for the just decision of the cases. The orders of the trial court not being in any way illegal

or perverse or contrary to law have to be upheld.

In the result, both these revisions are dismissed.