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Ratanchand Radhakisondas Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1491 of 1958 and 124 of 1959
Judge
Reported in(1959)61BOMLR1161; 1960CriLJ461
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 154 and 423; Evidence Act, 1872 - Sections 35; Indian Penal Code (IPC), 1860 - Sections 30, 467 and 471; Bombay Sales Tax Act, 1953 - Sections 7 and 9; ;Bombay Sales Tax (Registration, Licensing and Authorisation) Rules, 1954 - Rule 13(2)
AppellantRatanchand Radhakisondas
RespondentState
Appellant AdvocateM.J. Mirchandani, ;R. Jethamalani and ;P.V. Pawar, Advs.
Respondent AdvocateV.T. Gambbirwal, Asst. Govt. Pleader
Excerpt:
.....-- bombay sales tax (registration, licensing and authorisation) rules, 1954, rule 13(2) -- first information report in cognizable case reduced to writing but not signed by person giving it -- whether such information inadmissible in evidence -- 'k' form of bombay sales tax office whether 'valuable security' within section 30, indian penal code -- whether fact that purchasing dealer giving 'k' form not a licensed dealer makes form not a 'valuable security.';under section 154 of the criminal procedure code, 1898, the condition as to a first information report being reduced to writing and that it shall be signed by the person giving it, is a mere matter of procedure and failure to observe the procedure as to signature will not make the information given, if it is reduced to writing,..........misdirection of which mr. mir chandani made a serious grievance was about the use of the first information report. according to in this case consists of the complaint made by athale. sales tax officer. enforement branch sales tax department at the princess street police station on 4-12-1956 it is admitted by athale that his signature was not taken upon this complaint. according to mr. mirchandani, the signature not having been taken on the first information report as required under s. 154 of the criminal procedure code, that first information report was inadmissible in evidence and since the learned trial judge has referred to it in his charge to the jury, he has asked the jury to consider and rely on a document which is inadmissible and, has then substance in this argument. under.....
Judgment:

Gokhale, J.

(1) Criminal Appeal No. 1491 is an appeal by one Ratachand Radhakisondas against his convictions under S. 471 read with S. 467 and under S. 420 of the Indian Penal Code. The charge against thhe accused was that on 12-11-1956 at Bombay he fraudulently or dishonestly used as genuine a certain document purporting to be a valuable security, viz., K form of Bombay Sales Tax Officer, which he know or had reason to believe at the time be used it to be a forged document and thereby comitted an offence punishable under S. 471 read with S. 467 of the Indian Penal Code. The second charge against him was that at the saem time and place and in the course of the sametransaction, he cheated on Ratialal Wadilala, partner of Shantilala and Company, by dishonesty inducing him to deliver poplin cloth valued at Rs. 844-1-0 to the accused without payment of general sales tax and which cloth was the property of the said Ratilala Wadilala and thus committed an offence punishable under S. 420 of the Indian Penal Code. The allegations against the appellant were that 12-11-1956 he approached Ratialal Wadialal a partner in the firm of Shantilal and Co., with a representation that he represented a firm named Manmal Kundamal either as a proprietor or as a representative. stating that he was authorized to make purchases of goods on behalf of Manmal Kundamal free of general sales tax, as he was a licensed dealer, held a registration certificate and was purchasing the goods in question for the purpose of resale to other persons. Under cl(1) of the proviso to section 9 of the Bombay Sales Tax Act, 1953, no general sales tax is to be levied on the sales of goods to a dealer who holds a licence and furnishes to the selling dealer a certificate in K form. On the representation made by the appellant goods worth Rs. 884-1-0 were sold to him wiithout levy of the general sales tax. According to the prosecution, the accused had knowledge that the 'K' Form which he was furnishing was aforged K form that constituted a valuable security, inasmuch as he would be able to purchase the goods that he was purchasing without payment of general sales tax. The representation made by the accused to Shantilal and Co., was according to the prosecution, a false and fraudulent representation on the basis of which they 0parted with goods worth 884-1-0 on 12-11-1959. It appears that there was another firm in the Mulji Jetha Market called B. Jayantilal and Co., and certain investigations were being made by the Sales Tax Officer, in the course of which the Officer came across a similar K form in the name of Manmal Kundamal and in the course of a cross check the sales Tax authorities realised that the firm of Manmal Kundamal had altogether a different business and did not deal in cloth. That was why further inquirires came to be made withb. Jayantilal and on 29-11-1956. Kshatriya, Sales Tax Inspector, located the present appellant sitting at some place. A complaint was filed on 4-12-1956 and a raid was organized in the course of which according to the prosecution. the appellant was found in possession of a bag containing several forms of a similar type which indicated that the appellant was intending to use them and also that he was responsible for furnishing this form given to Shantilala and co. on 12-11-1956 On these allegations, the accused was charged as already stated above.

(2) The defence of the appellant was that he had no dealings of any kind with Ratialal Wadilal of Shantilal and Co. According to him, he was petty commission agent or Dalal working in the Mulji Jetha Market and it was his case that he was making purchases of small quantities of cloth at the instance of customers but that he was not a licenced dealer. As he used to move about in the Mulji Jetha Market, he was taking tea on 4th December when the raid was made, and the place where he was sitting was really a tea-shop According to him, Jayathnilal Punamchand Parekh of the firm him, of B. Jayanthilal and Co. happened to come there for tea, took his seat beside the accused, kept is bag there and told him that he was going to answer a call of nature and left the spot. Within 5 too 7 minutes, the raiding party came and foisted Jayani lal's bag on him. He denied that he had any connection with the transation on which the prosecution relied or with the bag which he stated was foisted upon him at the instance of Jayanthilal.

(3) The accused was tried by the learned Additional Sessions Judge, in the court of Session for Greater Bombay with the aid of a jury which returned a unanimouns verdict of guilty on both the charges levelled against the accused. Accepting that verdict, the learned Judge convicted the appallant under S. 471 read with S. 467 of the Indian Penal Code and sentenced him to rigorous imprsonment for two years and a fine of Rs. 300/- in default rigorous impriosnment for three months. He also convicted the appellant under S. 420 of the Indian Penal code and sentenced him to rigourous imprisonment for 18 months on that charge. He directed that the sentences on these charges should run concurrently. That is why the accused has filed the present appeal.

(4) In this appeal, Mr. Mirchandani leanred advocate appearing on behalf of the appeallant, has not been able to point out any substantital misdirection or non-direction in the learned Judges chrage to the jury. The only misdirection of which Mr. Mir chandani made a serious grievance was about the use of the first information report. According to in this case consists of the complaint made by Athale. Sales Tax Officer. Enforement Branch Sales Tax Department at the Princess Street Police Station on 4-12-1956 It is admitted by Athale that his signature was not taken upon this complaint. According to Mr. Mirchandani, the signature not having been taken on the first information report as required under S. 154 of the Criminal Procedure Code, that first information report was inadmissible in evidence and since the learned trial Judge has referred to it in his charge to the jury, he has asked the Jury to consider and rely on a document which is inadmissible and, has then substance in this argument. Under S,. 154 of the Criminal Procedure Code every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station has to be reduced to writiing by him or under his direction and has to be read over to the informant and every suuchh informatiion, whether given in writiing or reduced to writing has to be signed by the person giving it and the substance thereof has to be entered in a book to be kept by the officer in such for as the State Government may rpescribe in this behlaf. Now the admissibility of a first information report depends not on the fact that it is signed by the person making it, But on the fact that a first information report given in writing or taken down by a police officer would be a part of the official record as the substance of such information is to be entered in a book kept vby the station officer in the form prescribed and that may attract the operation of the provisions of S. 35 of the Indian Evidence Act. See emperor v. Chittar Singh. : AIR1925All303 The condition as to its being reduced to writing and that it shall be signed by the person giving ti seems to us to be a mere matter of procedure as to signature would not make the information given, if it is reduced to writting, inadmissible, It is well settled, however, that a statement of an informant contained iin the first information report is not substavie evidence. The information is only admissible to corroborate or contradict the testimony of the informant when he gives his evidence in court. The object of the first information report is to obtain early information of any alleged criminal activity, to record the circumstances before there is time for such circumstances to be forgotten or embelished, and the report can be put in evidence when the informant is examined if it si desired to do so. See Eemperor v. Nazir Ahamed In the present case, Athale, the Sales Tax Officer, has deposed that he lodged the present complaint on 4-12-1956 at the Princess street Police Station, that it was reduced to writing and that the same was read over to him though his signature was not taken upon it. He also stated that the statement which was read over to him in court was the one made by him and was correctly recorded. In our view, thereofre thhe argument of mr. Mirchandani that the first information in the present case should not have been read out to the jury because it was not signed by Athale and hence becomes inadmissible is untenable.

(5) Then Mr. Mirchandani has contended that the learned trial Judge has misdirected the Jury as regards the contends of the first information report and his grievance is thhat the first information report does not contain any reference to any bag to be found with the accused. Now, it has to be remembered that the complaint was lodged by Athale, the Sales Tax Officer, before the raid was effected and what was indicated iin that information was that a certain person would be sitting at a particular place with certain things in his possession. Thereafter the raid came to be made by the police and in that raid certain things were found in the possession of the accused. Now, in his charge to the jury, at on place, the learned Judge has undoubtedly stated that te raid was arranged in pursuance of the first information report which was lodged and, as alleged in the first information. the accused happened to be found there with a bag in his possession Mr. Mirchandanis grievance is that since no bag has been actually referred to in the first information report there has been a misdirectionn which has introduced an infirmity in the charge. This argument cannot be accepted. The learned Judge referred to the evidence of Athale and Kshatriya and read out the first information to the jury stating that it could not be treated as substantive evidence and thereafter he pointed out as to how in pursuance of the information a raid took place and that accused came to be found in possession of certain things. According to the first information report, the accused was sitting on the first floor, Shanchagalli, Mulji Jetha Market and was issuing K forms. After the raid was carried out, according to the prosecution evidence, in fact the accused was found in possession of a bag which contained amongst other papers similar type of K forms. Merely because the leanred judge at one place, instead of referring to the contents of the bag as disclosed in the evidence, stated that as anticipated and as aleged in the first information report the accused was found with a bag in his possession, we do not think that there has been any misdirection as to seriously prejudice the minds of the jury.

(6) Mr. Mirchandani then contended that Ratilals evidence was full of contradictions and discrepancies, but the learned judge, according to him, has gone into too many details which were calculated to confuse the minds of the jury instead of drawing their pointed attention to the contradictions and discrepancies in the prosecution evidence on which the defence relied. We are not impressed by this argument either. The learned judge has referred to the evidence of all the three prosecution witnesses at some length. He has also referred to the discrepancies between the evidence of Athale on the one hand and the Evidence of Kashatriya, on the Sales Tax Officer, and Shaikh, sub Inspector of Police, on the other. He has also referred to the discrepancies between the evidence of Kshatriya and Shaikh on the one hand and the evidence of the panch witness, on the other. The latter discrepancies related to the question whether at the time of the raid the bag was in the hand of the accused or the accused was running away with the bag. The other contradictions and discrepancies in the evidence have also been referred to in the learned Judges charge to the jury. We do not therefore, think that there is either any misdirection or non direction in the charge to the jury delivered by the learned judge when he dealt with this part of prosecution evidence on the record.

(7) Then Mr. Mirchandani contends that Jayanthilal who gave information to the Sales Tax Officer has been proved to be a shady person and the defence has placed on the record a document which was admitted by the learned trial Judge. which shows that Jayathilal was convicted on a charge of being in possession of counterfeit coins. But Jayathilal was not examined on behalf of the prosecution and Mr. Mirchandani says that the learned Judges charge has failed to lay the correct emphasis on the argument also is wiithout any substance. It appears from the evidence that the Sales Tax Officer obtained information against the present appellant while he was making investigation in connectiion with the dealings of Jayanthilal for the period commencing from 1-4-1954, and that investigation into it was pending at the time and that he did not know where Jayantilal was at the time he gave evidence. The learned trail Judge referred to this part of Athale's evidence and he also told the jury was a material witness who could have spoken on material points and whether he had been deliberately kept back by the prosecution, and the learned judge also told them that if that was theiir opinion they should draw an adverse inference against the prosecution. In our view, thereofre, there is neither any misdirection on this point in the learned Judges charge to the jury..

(8) As there are misdirections or non-directions in the charge to the jury, it would not be open to us to examine the correctness of the verdict of the jury by going through the evidence ourselves.

(9) But then Mr.. Mirchandani has challenged the conviction of the accused undeer S. 471 read with S. 467 of the Indian Penal Code on the ground that the form K which was alleged to have been used by the appellant would not be a valuable security within the meaning of S. 30 of the Indian Penal Code. Section 467 of the Indian Penal Code deals amongst other things with the offence of forging a document purporting to be a valuable security and prescribes punishment therefor, and S. 471 and prescribes the same punishment for the offence of fraudulently or dishoestly uysing as genuine any document which a person knows or has reason to believe to be a forged document. Under S. 30 of the Code, the words valuable security are defined as denoting a document which is or purports to be a document whereby any legal right is created, extended, transerred, restricted. extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right. Mr. Mirchandani has pointed out that according to the prosecution, the appellant is alleged to have tnedered to Ratilal Wadilal K form on behalf of Manmal Kundamal which enabled him to purchase goods worth Rs. 844-1-0 without paying general sales tax. But Mr. Mirchandani contends that what enables the appellant to make this purchase without payment, a general sales tax was not the K form but that the right to get such an exemption arose by virtue of the sales Tax, act itself. Section 9 of the Bombay Sales Tax Act, 1953, deals with the levy of general sales tax and it provides that subject to the provisions of S. 7, thereshall be levied a general sales tax ion the turnover of sales of goods specified in coloumn 1 of schedule B at the rates, if any specified against them in colum 3 of the said schedule. Section 7 provides that no tax shall be payable on the sales or purchases of certain goods. Section 9 is subject ot the provisions of this section. There are three clauses to the proviso to S. 9 and in the present case we are concerned with c.l.(1) of the proviso to S.9 which states that no general sales tax shall be levied on the sale of goods to a dealer who holds a licence and funishes to the selling dealer, a certificate in the prescribed form declaring interealia that the goods so sold to him are intended for resale by him. Section 45 of the Act gives the State Government power to make rules for carrying out the purposes of the act and under S. 13(2) of the Bomaby Sales Tax (Registration Licensing and Authorization) Rules, Provided 1954, it is provided that a certificat for the purpose fo cl.(1) of the provisio to s.9 the dealer must hold a licence and must furnish to the selling dealer a certificate in the K form declaring inter alia that the goods sold to him are iintended fro resale by him. It is then alone that he would be entitled to be exempted from levy of the general sales tax. Mr. Mirchandani's argument is that Ratilala evidence shows that the accused had shown him a licence in the name of Manmal Kundanmal firm and also the registration only once when he had the first transation with him in 1955 and he relied on the licence shown to him as a genuine one. Thereafter the accused had dealings wiith his shop on 10 or 12 occasions prior to the transation in question. But he stated that on subsequent occasions he did not insist on seeing the liecence of the accused because he had seen that once and so he merely accepted the K forms. Mr. Mirchandani says that the K form on which the prosecution rely and on basis of which the accused purhcased the goods in the present case cannot be considered as a valuable security because the right to be exempted from the payment of general sales tax is conferred by the Statute itself and therefore the furnishing of the K form duly filled in would not bring the accused within S. 467 of the Indian Penal Code. this argument cannot be accpeted. The sales Tax Act provides for the levy of general sales tax under S. 9 mentions certain other exemptions and the first clause of the provisio enables a dealer who holds a licence to purchase goods without paying general sales tax, if he furnishes to the seeling dealer a certificate in the K form declaring that goods sold to him are iinteded for resale by him. What enables the purchasing dealer to get exemption from the levyy of general sales to tax is the furnishing of a certificate in the K form containing a declaration that the goods sold to him are intended for resale by him. As the K form prescribed itself shows, besides mentioning the license under S.12 of the Bombay Sales Tax Act, there has to be a declaration that the goods purchases are intended for resale. It is apparent, therefore, that the K form containing the due declaration creates the legal right in the purchasing dealer to get exemption from payment of general sales tax as provided under cl (1) of provisio to S.9 of the sales Tax Act.

(10) In Superintendent and Rememberancer of Legal Affairs, Bengal v. Daulatram Mudi : AIR1932Cal390 it was held that the original of the transist pass, without which no forest produce could be removed, was valuable securiity within the meaning of s. 30 of the Indian Penal Code becuase it creates or purports to create a right to transport forest produce, an action which witout the trnasis pass, would be an offence punishable with fine and imprisonment. In Durgadas Tulsiram v. State : AIR1955Bom82 It was held by a division Bench of this court that an import licence would be a valuable security because it created a right in the license to import goods. In the present case, also, though clause (1) of the provisio to S.9 of Sales Tax Act provides for an exemption from the payment of the general sales tax, it is the certificate in the prescribed K form containing a declaration that the goods sold to the dealer are inteded for resale by him that confers on him the right to purchase these goods without the levy of general sales tax. It is true that the purchasiing dealer must be a licensed dealer before he can furnish the necessary certificate. In the present case, it would appear that the licence produced by the accused on the first occasion was in the name of Manmal Kundanmal, who deals in gold and silver and with whom the accused had no connection. The K form furnished by the accused was, therefore, a forged one and that was accepted by Tailal Wadilal as a genuine certificate required under clause (1) of the proviso to S. 9 The mere fact, however, that the accused had no licence would not make the K form furnished by him not a valuable security under S. 30 of the Indian Penal Code. In our judgment therefore the certificate in form K which is alleged to have been furnished to the firm of Shatilal and co. but the accused on 12-11-1956 was a valuable security within the definition of that term under s. 30 of the code. There is therefore, no eligibility in the conviction recorded against the accused under s. 471 read with S. 467 of the Indian Penal code.

(11) We must, thereofre, confirm the convictions, of the appellant under S. 471 read with s. 467 as well as under S. 420 of the Indian Penal Code.

(12) As regards the sentences imposed on the duce these sentences on the ground that they were excessive. He does not dispute the position that as the convictions of the accused are confimed the appellant is guilty of ann offence which has enabled him to cheat the State of its revenue. But he points out that there was another case of a similar character against the present appealant and that case is the subject of the other appeal which is also before us, viz., which was also tried in the court of session for greater Bombay with the aid of a jury in appears that the jury returned a verdict of not guilty on the charge under S. 471 read with S. 467 of the Indian penal Code as regards the K form. The accused was also charged with fabricating the N form and on that charge also the jury returned a verdict of not guilty under S. 471 read with S. 465 in respect of the K and N forms annd also under S. 420 of the Code. It appears that in that case by the use of these two forms the accused was alleged to have cheated one diwanchand Bishants, Partner, of Bishands Diwanchand cloth of the value of Rs. 2,705-11-3 without payment of general sales tax. Mr. Mirchandani says that in the present sales tax goods worth only Rs.884-1-0 while the goods purchased by him in the other case are worth about 21/2 times the value of goods in the present case, so that the loss to the State in the present case, so that the loss to the state in the amoung of tax would be larger, and even then the learned Additional Sessions Judge has imposed on him, in that case, a sentence of six months rigorous imprisonment on each count under S. 471 with S. 465 and a sentence of one years rigorous imprisonment on the thrid charge under S. 420 of the Indian Penal Code and while doing so Mr. Mirchandani points out, that the learned judge has observed that he could not help feeling that the accused was a willing tool in the hands of some bigger merchants and that was why he was imposing on the accused a rather lenient sentence. The other appeal is also before us for hearing to day, and there seems to be some force in what Mr. Mirchandani has urged, though in the present case the conviction is under S. 471 read with S. 467 while in the comanion appeal it is under S. 471 read wiith the Section 465 of the Indian Penal code. In our view, the ends of justice would be met if we reduce to some extend the sentences imposed on the accused on both the charges in the present case. We accordingly confirm the conviction of the appellant under S. 471 read with S. 467 of the Indian Penal Code but reduce the substantive sentence imposed on him with regard to this charge to rigorous imprisonment for one year, but maintain the sentence of fine and the sentence in default of payment of fine. His conviction under S. 420 of the Indian Penal Code is also confirmed but the sentence in connection with this vonction is also reduced to rigorous imprisonment for one year. Both these sentences will run concurrently.

(The rest of the judgment regarding Criminal Appeal No. 124 of 1959 is not material for purposes of thiis report.).

(13) Order accordingly.


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