Radheshyam vs Union of India

This is a revision by the accused applicant u/s 397/401 of the Code of Criminal Procedure. The applicant is aggrieved by the judgment dated 22-5-1999 passed by the Third Additional Sessions Judge, Indore, in Criminal Appeal No. 36/1993 whereby he maintained the conviction of the applicant u/s 276C and section 277 of the Income Tax Act sentencing him to undergo simple imprisonment of 3 months and fine of Rs. 2,500 and in default of payment of fine to undergo SI of I month on each count passed by Additional Chief Judicial Magistrate (Economic Offenccs), Indore, in Criminal Case No. 88/1990 decided on 25-2-1993 with a modification of the sentences to run concurrently.

Union of India through Income Tax Officer, Ward No. 2, Gwalior, filed a complaint against the applicant accused Radheshyam Renwal for offences punishable under sections 276C and 277 of the Income Tax Act, 1961. In the complaint it was alleged that the accused was a partner in the firm M/s. Narsinghdas Renwal, Sarafa, Lashkar; that a raid was conducted by the Central Excise Authorities on the residential premises of the accused on 4-2-1981; that gold ornaments valued at Rs. 1,70,400 silver valued at Rs. 42,552 and cash amount Rs. 42,000 was found there during the said raid conducted by the Central Excise department; that cash amount of Rs. 42,000 was then taken in possession in compliance of the authorization issued by the Commissioner of Income Tax, Bhopal, u/s 132A of the Income Tax Act, from the Central Excise Authorities; that the accused filed Income Tax return for assessment year 1981-82 showing income of Rs. 8,715 on 31-7-1981; that the return was signed by the accused; that the then Income Tax Officer, D-ward, Gwalior assessed the total income of the accused at Rs. 1,53,320 on 22-9-1984 u/s 143(3)/144B of the Income Tax Act, 1961; that the accused filed appeal before the Commissioner (Appeals), Bhopal against the order of the learned Income Tax Officer, D-Ward, Gwalior, that the Commissioner (Appeals), Bhopal reduced the income of the accused to Rs. 47,315 vide his order dated 13-12-1984; that the Income Tax department filed appeal before the Income Tax Appellate Tribunal, New Delhi, against the order of the learned Commissioner (Appeals), Bhopal that the learned Member of the Income Tax Appellate Tribunal dismissed the appeal of Income Tax department confirming the income of the accused at Rs. 47,315 vide order dated 6-10-1986; that the penalty proceedings for concealment of income were initiated u/s 271(1)(c) of the Income Tax Act by issuing a show-cause notice to the accused on 13-10-1986; that considering case of accused the Income Tax Officer, D-Ward, Gwalior, levied a penalty of Rs. 3,720 u/s 271(1)(c) of the Income Tax Act vide his order dated 27-3-1987; that the accused filed an appeal before the Commissioner (Appeals), Bhopal against the above penalty order of the learned Income Tax Officer, that the learned Commissioner (Appeals), Bhopal dismissed the appeal of the accused and confirmed the penalty order passed by the above Income Tax Officer; that from the above facts it was clear that the accused Radheshyam Renwal had concealed his income and furnished inaccurate particulars. Thus, he committed offences punishable under sections 276C and 277 of the Income Tax Act, that the Commissioner of Income Tax, Bhopal having lawful jurisdiction after considering the relevant facts and circumstances had authorized the complainant u/s 279 of the Income Tax Act to file the said complaint. It was, therefore, prayed that the accused be tried and accordingly punished.

The defence of the accused before the learned trial court was that ladies of the family had taken out the silver in question from family''s olden clothes by indigenous process and the total worth of the same was Rs. 3,000, the same being 30 per cent pure only. He, therefore, pleaded that the allegations in the complaint were ill-founded. The case went to trial. Prosecution examined three witnesses in support of its case. Defence could not examine any witness. At the conclusion of the trial, the learned trial court convicted the applicant, as stated above. He went in appeal. He did not get substantial success therein and with minor modification, as seen above, the appeal was disposed of. Hance this revision.

The learned counsel for the applicant pressed the revision on several grounds. Amongst other grounds he very powerfully submitted that the learned trial court has not been fair in the trial. He submitted that no proper opportunity of defending the accused applicant was afforded. It was also submitted that the right of the accused applicant to produce the defence evidence was mechanically without application of proper mind closed by the trial court.

Having heard the arguments, I have gone through the record of the case. I find that vide order dated 20-1-1993 recorded in the order-sheet the learned trial court after examining the accused applicant u/s 313 of the Code of Criminal Procedure asked him whether he wished to produce defence evidence and the applicant replied in the affirmative. The case was then adjourned for recording of the defence evidence to 17-2-1993 and the accused applicant was directed to produce his defence evidence himself. On 17-2-1993 the accused applicant was not personally present before the court and vide the order-sheet he submitted an application for his appearance by counsel. In the said application dated 17-2-1993, which is attached to the record, he requested that he was a person aged 65 years of age and was suffering from hypertension, therefore, he was not able to appear personally before the Court. He also in the said application requested for his appearance by counsel and an adjournment for production of defence evidence. The learned trial court granted the appearance by counsel but observed in the order-sheet dated 17-2-1993 that defence evidence was not present, the time which was sought for its production could not be granted as for this very purpose the case had already been adjourned earlier. The learned trial court also observed that under these circumstances, no further time could be granted hence he closed the right of the accused applicant to produce defence evidence. It is apparent that the learned court below lost sight of the fact that on the previous date which was 20-1-1993 the case was not adjourned for defence evidence. Actually that day the accused opted for defence evidence, hence the case was fixed up for recording of defence evidence on 17-2-1993. Thus, the trial court misconceived the factual position. When it had accepted the application for appearance by counsel on the ground of illness of the applicant, it was not fair on the part of the learned trial court to refuse adjournment for production of defence evidence on considerations which are found to be against facts. Therefore, great prejudice has been caused to the accused applicant in defending himself for want of the trial being fair.

In view of the above matter without dwelling upon any other argument, this court reaches the conclusion that it is a case which needs remand.

In the result, the conviction and sentence impugned are set aside with consequential benefits. The case is remanded to the learned trial court with a direction that an appropriate opportunity be afforded to the applicant accused to produce his defence evidence and thereafter final arguments be heard and case be disposed of according to law. It is also directed that the applicant should appear before the learned trial court, either in person or through counsel, on 19-12-2005. Let the records of the court below to go back with post haste.