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State Vs. Kaikhushroo Merwan Irani and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal Nos. 1216, 1217 and 1218 of 1957
Judge
Reported in[1958]9STC681(Bom)
ActsSales Tax Act, 1953 - Sections 38(1); Evidence Act - Sections 25
AppellantState
RespondentKaikhushroo Merwan Irani and ors.
Appellant AdvocateV.H. Gumaste, Additional Assistant Government Pleader
Respondent AdvocateH.M. Chokshi, ;Rajni Patel and ;V.K. Shah, Advs.
Excerpt:
.....of false returns - whether accused liable to be convicted - no documentary evidence led to support sales figures disclosed by prosecution witness - accused not liable to be convicted on such evidence. (ii) true accounts - respondents charged with non-maintenance of true accounts of purchases - no evidence to show that particular purchase was not entered in books or that value of purchases entered was incorrect - charges against respondents not maintainable. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of..........in his evidence that on 30th september, 1954, the accused's premises were visited and that certain account books had then been seized. he has also stated in the cross-examination that he inspected these account books on 8th february, 1955, and certain dates thereafter in 1955 and till the investigation was complete. they would indicate that on 8th february he was investigating some offence which the accused were suspected to have committed. under sub-section (1) of section 38 of the sales tax act, 1953, the collector may authorise any person to assist him in investigating an offence punishable under the act. kulkarni had been so authorised by the collector. sub-section (2) of section 38 provides that every person so authorised shall, in the conduct of such investigation, exercise the.....
Judgment:

Chainani, J.

1. These three appeals Nos. 1216, 1217 and 1218 have been heard together, as they are against the same respondents and arose out of proceedings held before the Sales Tax Officer, witness Kulkarni. In the case giving rise to appeal No. 1216, the charge against the accused was that they had knowingly submitted false returns for the quarters ending 31st March, 1952, 30th June, 1952, and 31st October, 1952. The evidence to prove these charges was of two kinds. There was a statement made by respondent No. 1 before witness Kulkarni, who was then the Sales Tax Officer, Enforcement, at Bombay. In this statement respondent No. 1 has admitted that the returns submitted by the respondents were incorrect. This statement was recorded on the 8th February, 1955. Kulkarni has stated in his evidence that on 30th September, 1954, the accused's premises were visited and that certain account books had then been seized. He has also stated in the cross-examination that he inspected these account books on 8th February, 1955, and certain dates thereafter in 1955 and till the investigation was complete. They would indicate that on 8th February he was investigating some offence which the accused were suspected to have committed. Under sub-section (1) of section 38 of the Sales Tax Act, 1953, the Collector may authorise any person to assist him in investigating an offence punishable under the Act. Kulkarni had been so authorised by the Collector. Sub-section (2) of section 38 provides that every person so authorised shall, in the conduct of such investigation, exercise the powers conferred by the Code of Criminal Procedure upon the officer in charge of a police station for the investigation of a cognizable offence. As therefore Kulkarni was authorised to exercise the powers conferred upon an officer in charge of a police station for the investigation of a cognizable offence, he would be a Police Officer within the meaning of section 25 of the Indian Evidence Act. (See Nanoo Sheikh Ahmed v. Emperor : (1926)28BOMLR1196 . The statement made by respondent No. 1 to Kulkarni, in which he has virtually admitted the offence, therefore, amounts to confession and was rightly not admitted in evidence by the leaned Magistrate.

2. The other evidence against the respondents consists of the oral evidence led by Kulkarni. He has stated that when the respondents' stores was visited on 30th September, the totals of the cash sales were made from the cash memo books. He has stated that the total amount of sales found for the period ending 31st March, 1952, was Rs. 9,358-3-3, for the quarter 1st April, 1952, to 30th June, 1952, Rs. 23,772-13-6 and for the period 1st July, 1952, to 31st October, 1952, Rs. 90,144-9-7. The values of sales shown in the returns for these periods were however different. Kulkarni's evidence on this point is admissible as secondary evidence, as the original account books are not now forthcoming. It is however not clear from the evidence as to whether Kulkarni had made any notes at the time when these totals of sales had been made from the cash memo books. No such notes have been produced. It is therefore, not possible for us to say how and on the basis of which documents Kulkarni was able to give these specific figures, when he gave his evidence. Unless, therefore, it can be shown, and on this point, as I have stated, there is no evidence, that the figures given by Kulkarni are based on notes made by him at or about the time when the totals were made, no reliance can be placed on them, for it is not possible for Kulkarni to remember these figures about three years after he had made the totals. We enquired from the learned assistant Government Pleader, who appears on behalf of the State, but he is unable to state from what documents exactly these figures had been taken by Mr. Kulkarni and then mentioned in his evidence. It will, therefore, not be right to convict the accused on the basis of these figures. The appeal is therefore dismissed.

3. In the case giving rise to appeal No. 1218, no evidence has been led by the prosecution. That appeal must therefore also be dismissed.

4. In the case to which Appeal No. 1217 relates the charge against the respondents was that they had not maintained true accounts of the goods purchased by them. There is, however, no evidence to show that the respondents had not entered in the account books any particular goods purchased by them or that the values of some goods purchased by them as entered in the account books were incorrect. The learned Magistrate was therefore right in acquitting the respondents. This appeal is therefore dismissed.

5. Appeals dismissed.


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