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Daljeet Singh and anr. Vs. Income-tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revision No. 55 of 1980
Judge
Reported in[1984]148ITR510(MP)
ActsIncome Tax Act, 1961 - Sections 277 and 278; Indian Penal Code (IPC) - Sections 193 and 467
AppellantDaljeet Singh and anr.
Respondentincome-tax Officer and anr.
Appellant AdvocateJ.P. Gupta, Adv.
Respondent AdvocateR.C. Mukati and ;S.S. Maheshwari, Advs.
Cases Referred and R. K. Dalmia v. Delhi Administration
Excerpt:
- - even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. on 21st march, some cattle in the market were brought but the persons bringing cattle to the market place failed to obtain receipts from the accused. it, however, would have been better for him to have specified different sentences in the event of non-payment of fine under each offence......the ito to believe that they were executed on the dates on which they were purported to have been executed which the applicants knew was not true. the representations contained in those documents were made solely for the purpose that the firm of which the applicants are partners could get benefit by paying less income-tax as a result of the misrepresentation that the acquitted co-accused, sakorikar, had advanced those loans to them on the dates appearing in those false documents. if it was an advantage or benefit to the applicants on the one hand, it was a corresponding loss to the i.t. department on the other hand. 13. the gist of forgery which is made punishable is that the document must be false. it must not merely tell a lie but tell a lie about itself. it must purport to be that.....
Judgment:

C.P. Singh, J.

1. This revision application aims at setting aside the judgment of the Sessions Judge, Indore, in Criminal Appeal No. 33 of 1979, only partly allowing the applicants' appeal, though maintaining their convictions under Sections 193 and 467, Indian Penal Code, reducing the sentence till the raising of the court on each count but enhancing the fine to Rs. 2,000 andRs. 3,000 failing the payment of which rigorous imprisonment for two years, instead of rigorous imprisonment for one year and fine of Rs. 1,000 on each count with a direction for the substantive sentences to run concurrently and in the event of non-payment of fine further rigorous imprisonment for three months.

2. There is a firm called ' M/s. Satya Trading Corporation' of which, among others, the applicants are partners. This firm for the year 1972-73 submitted its balance-sheet showing that the co-accused Sureshchandra Sakorikar (since acquitted), was its (firm's) creditor in a sum of Rs. 17,000. Mr. Nazirsingh (P. W. 1), the ITO, with regard to this item of Rs. 17,000, conducted an inquiry during the course of which the pronotes (Exts. P-9, P-10, P-11 and P-12) purporting to be executed on July 3, 1972, July 10, 1972, July 13, 1972 (with overwriting) and June 12, 1974, for Rs. 2,000, Rs. 5,000, Rs. 10,000 and Rs. 17,000, respectively, all bearing similar revenue stamps with the exception of one, by the applicant, Daljeet Singh, and attested by the applicant, Rasjeet Singh, showing the said Sureshchandra Sakorikar as the lender of those sums to the firm, were produced before him. These applicants, among others, verified the returns to be true. These pronotes were sent to the stamp expert, Indian Security Press, Nasik, who found that the revenue stamps affixed on Exts. P-9, P-10, P-11 and P-12 were first printed on March 19, 1975, with the exception of one 10 P. stamp on the pronote, Ex. P-12, which was first printed on July 25, 1974.

3. The ITO after due inquiry passed an assessment order, that the pro-notes (Exts. P-9, P-10 and P-11) were all fabricated only to support a false claim that Rs. 17,000 had been borrowed from Sureshchandra Sakorikar, who was not in a position to lend that amount. The applicant, Daljeet Singh, preferred an appeal and the AAC, observing that it was for (the said) Sakorikar to explain the source of that amount or to suffer the consequences, allowed the applicant Daljeet Singh's appeal setting aside the ITO's order.

4. The applicants along with others were prosecuted, among others, for offences punishable under Sections 193 and 467, Indian Penal Code, before the First Additional Chief Judicial Magistrate, Indore, who acquitted the co-accused altogether and also the applicants of other offences (punishable under Section 420/511 and 468, IPC, and Sections 277 and 278B of the I.T. Act), but finding them guilty of offences punishable under Sections 193 and 467, IPC, sentenced them, from which the applicants appealed, but only partly successfully, to the Sessions Judge, to which a detailed reference has already been made in the opening paragraph of this order.

5. The contention by the learned counsel for the applicants is that if their defence and explanation are given weight, they could not have been convicted of the two offences and punished for them.

6. The defence of the applicants was that the ITO during the inquiry of the assessment proceedings would often call Daljeet Singh, in spite of the consolidated pronote (Ex. P-12) covering the entire amount borrowed pursuant to the cancellation of the earlier pronotes, in sums of Rs. 2,000, Rs. 5,000 and Rs. 10,000 respectively, and insist on him to produce before him the discharged (cancelled) promissory notes. He, therefore, on the advice of his father brought three promissory notes (Exts. P-9, P-10 and P-11) which he executed and got attested by the applicant, Rasjeet Singh, and got them produced by his counsel, Mr. Airen, before the ITO. The applicants while admitting that their statements were recorded during the course of the inquiry by the ITO explained that their narration was in Hindi.

7. By virtue of Section 136 of the I.T. Act, the proceedings are judicial within the meaning, among others, of Section 193, IPC. The pronotes (Exts. P-9, P-10 and P-11) are undoubtedly valuable securities within the meaning of Section 467, IPC. The fact that they were executed and attested by the applicants not on the dates on which, they purport to be executed but on a subsequent date is also not disputed. They being false documents are, therefore, not denied. The contention with regard to the offences punishable under Section 193, IPC and Section 467, IPC, is that they were neither fabricated nor had any intent to defraud preceded their execution and attestation.

8. There is no doubt that there is a distinction between merely deceiving and deceiving with intent to commit fraud. 'Deceit' carries a wider notion. By it is meant to induce one to believe that a thing is true, which is false and which the person practising the deceit knows it to be so or believes to be false or makes the statement recklessly whether it is true or false. ' Defrauding ' is a kind of deceit; it means causing some kind of injury or loss by deceit, but the nature of the injury or loss may sometimes be difficult to define. The intent need not necessarily be to obtain property ; an intent to obtain employment, or a professional qualification, may also be sufficient. By defrauding is meant to induce a course of action (or inaction), while deceiving merely includes inducing a state of mind. Section 24 of the IPC defines ' dishonestly ' : whoever does anything with intent to cause wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly '. Under Section 25, IPC, a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.

9. Section 463, IPC, defines ' forgery '. It has to be read along with Section 464, IPC. The essence of forgery is making a false document so as to make it appear as genuine. In essence, most cases of forgery include the cases of obtaining (or attempting to obtain) property by deception.

10. Their Lordships of the Supreme Court in Dr. Vimla v. Delhi Administration [1963] 33 Comp Cas 279, 287 ; AIR 1963 SC 1572, 1576, laid down that :

' The expression 'defraud' involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.'

11. With regard to offence punishable under Section 467, IPC, the prosecution has to prove the making of a false document which has to be valuable security in order that it may be used as genuine and with intent to defraud.

12. Bearing these principles of law in mind, admittedly, the two applicants had made the pronotes, one of them executing them and the other attesting them. They had contained representations in writing, inducing the ITO to believe that they were executed on the dates on which they were purported to have been executed which the applicants knew was not true. The representations contained in those documents were made solely for the purpose that the firm of which the applicants are partners could get benefit by paying less income-tax as a result of the misrepresentation that the acquitted co-accused, Sakorikar, had advanced those loans to them on the dates appearing in those false documents. If it was an advantage or benefit to the applicants on the one hand, it was a corresponding loss to the I.T. Department on the other hand.

13. The gist of forgery which is made punishable is that the document must be false. It must not merely tell a lie but tell a lie about itself. It must purport to be that which it is not. A document is false, if among others, it bears a false time or place of making or if it purports to be made by or on behalf of someone who did not make it nor did he authorise its making (at a particular time). From the very nature of the pronotes in question, it does appear that they were not merely false documents but also calculated to defraud the ITO into believing that they were made on the dates on which they were purported to have been made. These documents, therefore, are certainly fabricated and were used during the course of judicial proceedings.

14. A number of cases have been cited. The strongest of them is Badriprased v. Emperor [1917] ILR 40 All 35 ; AIR 1918 All 326. The accused,in that case, was a clerk employed to record the sales of cattle at a market place. On 21st March, some cattle in the market were brought but the persons bringing cattle to the market place failed to obtain receipts from the accused. They were interrogated by a sub-inspector of police. They, therefore, on 27th March, produced receipts made by the accused bearing the date of 21st March, even though they had been made on 27th March. The accused was held not guilty mainly because he had issued the receipts to enable the investigating officer to arrive at a correct opinion. This case is easily distinguishable on facts. The cattle having been certainly brought to the market place on the date in question, the accused had not made a false statement. His act was innocent. The appellants by producing the forged pronotes before the ITO undoubtedly, in the circumstances, had done so with intent that the ITO may entertain an erroneous opinion about those documents being executed and attested on dates on which in fact they were not executed or attested. Similarly, the other cases of Mangalsingh v. State, AIR 1956 Pat 154, Emperor v. Govind Singh, AIR 1926 Pat. 535 and Dr. Vimla v. Delhi Administration, [1963] 33 Com Cas 279; AIR 1963 SC 1572, had turned on their own facts.

15. The learned Sessions Judge has rightly relying upon the cases of Baij Naih Bhagat v. Emperor. AIR 1940 Pat, 486, Sivananda Mudali, In re, AIR 1926 Mad 1072, Mahesh Chandra Chaudhari v. Emperor, AIR 1918 Cal 61 (for offence punishable under Section 193, IPC), Manilal Girdharilal Shah v. State of Gujarat, AIR 1979 SC 1343, Mahendra Singh v. State of Rajasthan, AIR 1971 SC 2593 and R. K. Dalmia v. Delhi Administration [1962] 32 Comp Cas 699 ; AIR 1962 SC 1821, found that the applicants have rightly been held guilty of the offences punishable under Sections 193 and 467, IPC. He has also noted the authorities justifying his dealing with the applicants leniently. It, however, would have been better for him to have specified different sentences in the event of non-payment of fine under each offence. Instead, he seems to have provided the alternative of rigorous imprisonment for two years in the event of non-payment of total fine of Rs. 5,000.

16. There is no force in this revision petition, and it is dimissed. The convictions and sentences for the offences punishable under Sections 193 and 467, IPC, are maintained.


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