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Madhavlal Manishanker Trivedi Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 268 of 1957
Judge
Reported inAIR1960MP269; 1960CriLJ1217
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195(1); Income Tax Act - Sections 61; Indian Penal Code -Sections 466 and 471
AppellantMadhavlal Manishanker Trivedi
RespondentState of Madhya Pradesh
Appellant AdvocateR.C. Khare, Adv.
Respondent AdvocateS.B. Sen, Govt. Adv.
Cases ReferredRaja Khima v. State of Saurashtra
Excerpt:
.....the indian, penal code, where the burden to prove those issues is on the prosecution. 16. the facts that the applicant had a motive to prove his eligibility under section 61 of the income tax act and that he had failed to establish that he had practised in the pre-merger bhopal in 1947-48 and had used the documents in support of his eligibility, which i have found to be forged, may create a strong suspicion against his bona fides; but, as is often said, suspicion, however strong, cannot be substituted for proof......to bolster up his false claim to practise under the said section, fraudulently used as genuine two forged certificates (exhibits p-4 and and p-7) which he knew to be forged. the said certificates purported to bear the signatures of shri p. d. pradhan, income-tax officer, bhopal, certifying that the applicant 'used to appear for assessees of income-tax in the bhopal state in the year 1947-48 as an authorized representative' and that 'he knew him as an income-tax practitioner of bhopal', the trial court convicted him in respect of the two certificates on two counts under section 471 of the indian penal code and sentenced him to pay a fine of rs. 1,000/- or, in default, to suffer rigorous imprisonment for a period of six months on each count. on appeal, the first additional sessions judge,.....
Judgment:
ORDER

T.P. Naik, J.

1. This order shall also dispose of criminal revision No. 192 of 1957, a reference made by the 1st Additional Sessions Judge, Jabalpur for enhancing the sentence.

2. On 29-4-1954, the Special Police Establishment, Jabalpur, filed a complaint under Section 471 of the Indian Penal Code against the applicant (accused) in the Court of the Special Magistrate, Jabalpur. The charge against him was that as he was not eligible to practise as an Income-tax Practitioner under Section 61(2) (iv) of the Income-tax Act, he, in order to bolster up his false claim to practise under the said section, fraudulently used as genuine two forged certificates (Exhibits P-4 and and P-7) which he knew to be forged. The said certificates purported to bear the signatures of Shri P. D. Pradhan, Income-tax Officer, Bhopal, certifying that the applicant 'used to appear for assessees of income-tax in the Bhopal State in the year 1947-48 as an authorized representative' and that 'he knew him as an Income-tax Practitioner of Bhopal',

The trial Court convicted him in respect of the two certificates on two counts under Section 471 of the Indian Penal Code and sentenced him to pay a fine of Rs. 1,000/- or, in default, to suffer rigorous imprisonment for a period of six months on each count. On appeal, the First Additional Sessions Judge, Jabalpur, maintained both the convictions. As regards the sentence, he was of opinion that the user of the two forged certificates was only for the purpose of establishing his eligibility as an Income-tax Practitioner and consequently their production at different stages could be treated as one transaction and made the subject of a single charge entailing one sentence only under Section 471 of the Indian Penal Code; but as there was also an application of the State Government for enhancing the sentence, on which he was making a reference to this Court, he left the question of passing a proper sentence to this Court.

The reference was on the ground that the conviction was under Section 471, read with Section 466 of the Indian Penal Code which made the sentence of imprisonment obligatory, and even otherwise the case called for a more deterrent sentence.

3. The facts of the case may now briefly be stated. The applicant claims to be an Income-taxand Sales Tax Practitioner at Jabalpur. On 20-7-1951, Shri Rawal (P. W. 10), Income-tax Officer, Jabalpur, by a general notice (Ex. P-1), called upon all the Income-tax Practitioners to furnish information in the prescribed form to his office of their eligibility to practise as Income-tax Practitioners under Section 61 of the Income-tax Act, 1922 for being communicated to the Commissioner of Income-tax, Madhya Pradesh, Bhopal and Nagpur. On 24-1-1952, the applicant furnished the information on the required form (Ex. P. 2). Not being satisfied with his eligibility, he was informed that if he did not produce evidence in support of his entry in column 2 of Ex. P-2, (e. g., that he was qualified under Section 61(2)(iv) of the Income-tax Act as amended uptodate), his name would be removed from the list of Income-tax Practitioners. In reply, on 13-5-1952, he filed a certificate from the Income-tax Officer, Bhopal, (Ex. P-4), with a covering letter (Ex. P-3).

As this certificate (Ex. P-1) was undated, the applicant was asked, vide Ex. P-5, to inform the Income-tax Officer 'when it was signed' and 'to file it after getting date written by the signatory'. On 24-5-1952. the applicant wrote to say (vide Ex. P-6) that he had dot two original certificates from the Income-tax Officer, Bhopal, on 14-4-1949, of which one was undated through oversight of the signatory and the typist. He sent both of them to the Income-tax Officer with a request to get them verified and to register his name. The fresh certificate bearing date 12-4-1949, which he then filed, is Ex. P-7. Shri Rawal (P. W. 10) sent thc.se certificates to Shri Pradhan for verification. By his letters, dated 9-6-1952, (Exhibits P-21 and P-22), Shri Pradhan denied his signatures on both these documents and also stated that he did not remember whether the applicant appeared before him in the pre-merger days of the Bhopal State as an Income-tax Practitioner.

Enquiries were, therefore, instituted by the Inspecting Assistant Commissioner and on his instruction Shri Rawal (P. W. 10) asked the applicant to furnish a list of cases in which he had appeared before the Income-tax Officer, Bhopal. The applicant furnished a list (Ex. P-9), as required, but it was found that the order-sheets of the cases mentioned by him did not record the fact that the applicant had appeared for the assessees as claimed by him. On these facts, the applicant was charged with an offence punishable under Section 471 read with Section 466 of the Indian Penal Code and convicted as stated earlier.

4. The defence of the applicant was that the certificates (Exhibits P-4 and P-7) were not forged and bore the signatures of Shri Pradhan, that he had sent a man to bring both the certificates from him, that he never doubted their genuineness nor could he believe them to be false or forged. He, therefore, pleaded that he neither knew, nor had reason to believe, that the certificates were forged documents. He also examined witnesses in his defence.

5. The first contention on behalf of the applicant is that without a complaint from the Income-Tax Officer under Section 195(1)(c) of the Code of Criminal Procedure, the trial Court could not take cognizance of the offence against him. The contention has no force. The Income-tax Officer, Jabalpur, in requiring Income-tax Practitioners to furnish evidence of their eligibility to practise as Income-tax Practitioners under Section 61 of the Income-tax Act was not acting as a Court but only administratively. As the notice (Ex. P-1) itself showed, the information was being collected for being communicated to the Income-tax Commissioner, Madhya Pradesh, Bhopal and Nagpur, and the material on record does, not establish that he was acting as a 'Court' or that the proceedings before him were proceedings in a Court. (See also note 622, Mitra's Code of Criminal Procedure, Twelfth Edition).

6. It is next contended that the documents in question are not forged documents, but I have no doubt that they are forged and do not bear the signatures of Shri P. D. Pradhan, the then Income-tax Officer, Bhopal. The learned Additional Sessions Judge has given good and cogent reasons for his conclusions on the point and, in my opinion, they correctly answer all the criticism of the applicant in this behalf. (After giving the reasons' briefly, the judgment proceeded:)

7. The conviction of the applicant is under Section 471 of the Indian Penal Code, and consequently it is contended that the circumstances established in the case do not establish that the applicant knew or had reason to believe that the documents, which he was fraudulently or dishonestly using, were forged documents. The mere fact that the documents were forged would not conclude the matter, unless it were also established that he was a party to the forgery, which is not the case of the prosecution in the instant case.

8. 'Knowledge', says Kinkhede, A. J. C. in Abdul Rahim, v. Emperor, AIR 1927 Nag 40 means: 'a mental cognition and not necessarily visual perception'. In Emperor v. Latoor, AIR 1930 All 33 at p. 34 Young and Sen, JJ. said :

'A person can be supposed to 'know' where there is a direct appeal to his senses. A person 'has reason to believe' under Section 26 of the Indian Penal Code if he has sufficient cause to believe the thing but not otherwise.'

In Empress v. Rango Timaji, ILR 6 Bom 402, Melvill, J. pointed out that

'it was not sufficient to show that the accused was careless or that he had reason to suspect that the property was stolen, or that he did not make sufficient enquiry to ascertain whether it had been honestly acquired'.

Niyogi, J. in Abdul Rahim Khan v. Emperor, AIR 1940 Nag 360 at p. 362 observed:

'Even on the assumption that the applicant had obvious reasons to suspect the genuineness of the receipt, that would not establish his knowledge of the foregery which is the essential ingredient of the offence. In In re Ranchhoddas, ILR 22 Bom 317, the Sessions Judge there had ordered prosecution of a pleader-

'on the ground that the document in question bears on its face such marks of concoction that the pleader's suspicion must have been aroused at the first sight of it and that he ought to have strictly examined it and had he done so, he would have either rejected it or advised his client to produce it in Court on his own risk or responsibility'. The matter came before a Bench of two Judges of that Court and the order was pronounced by Parsons, J., with the concurrence of Ranade, J. The learned Judges observed that a pleader was under no higher obligation than any other agent would be and that to justify his prosecution it should be shown that he had been a party (principal or accessory) to the concoction of the document or that he had the knowledge that it was concocted. They overruled the argument that the mere fact that the suspicions of a pleader ought to have been aroused by the sight of the document was not prima facie evidence that he knew or had reason to believe the document to be forged.'

It was, therefore, incumbent on the prosecution to establish beyond reasonable doubt that the apr plicant knew or had reason to believe that the certificates were forged.

9. There is no affirmative evidence to establish this, and the prosecution seeks to prove, it as a necessary reasonable inference from the following circumstances:

(1) That the applicant took a long! time in filing the certificates before the Income-tax Officer Rawal (P. W. 10).

(2) That the applicant had written a letter (Ex. P-28) to Shri Rawal (P. W, 10) and sent it to him along with Ex. P-9 in an envelope (Ex. P-29) on or about 29th August 1952.

(3) That the applicant could not give satisfactory proof of his having practised at the Income Tax Tribunal, Bhopal, prior to the merger.

10. Regarding the first circumstance, the fact is that the certificate (Ex. P-4) was filed on or about 13th May 1952, even though the applicant admits that he was informed by the head clerk on 24th January 1952 to furnish proof of his eligibility to practise under Section 61 of the Income Tax Act. The second certificate (Ex. P-7) was filed by the applicant on or about 24th May 1952. No explanation was asked from the applicant for the delay and consequently the circumstance cannot be used against him. It appears that the suggestion at the bar was that the certificates were misplaced find it was sometime before they could be searched out. The explanation has been discarded because the learned Additional Sessions Judge says that it was not offered at the earliest opportunity.

From Ex. P-2 it does not appear that the evidence in support of the applicant's eligibility to practise under Section 61 (2) (iv) of the Income Tax Act had to be furnished within a particular time, and under the circumstances of the case, in my opinion, the Courts would not be justified in considering the so-called delay in the filing of the certificate (Ex. P-4) as a circumstance against the applicant. So far as Ex. P-7 is concerned, it was filed within about ten days of his being given Ex. P-4 and this period cannot be said to be a delay requiring any explanation whatsoever.

11. Regarding the second circumstance, I feel convinced that the applicant did send the typed chit (Ex. P-28) to Shri Rawal along with Ex. P-9 in the envelope (Ex. P-29). The evidence of Shri Rawal (P. W. 10) along with his endorsement on Ex. P-29 establishes this. The evidence of Damle (P. W. 5) also lends support to the evidence of Shri Rawal (P. W. 10) on the point. The chit (Ex, P-28) says:

'My respected Shri Rawal Saheb, Thin will serve my purpose, I have high hope in you. I have full trust in vou and hope you would not spoil my life by making an exhaustive enquiry.'

The sending of the typed chit (Ex. P-28) to Shri Rawal (P. W. 10) is thus established.

12. Regarding the third circumstance, it is true that from the order-sheets of the records of the Income Tax cases given by him it is not established that the applicant had appeared for the assessee in those cases, But the documents filed by him and the oral evidence of the witnesses examined by him do show that he used to practise as an Income Tax Practitioner in the years 1949 to 1952. It is true that this evidence does not conclusively establish that he practised in the premerger Bhopal in the years 1947-48, but the fact that he had failed to prove that he so practisedmay have relevance for the purpose of deciding his eligibility under Section 61 of the Income Tax Act but can have little bearing on the question of his 'knowledge' or 'belief for the purpose of Section 471 of the Indian, Penal Code, where the burden to prove those issues is on the prosecution.

13. Now, even if both the latter circumstances are held established, they do not prove 'knowledge' that the certificates were forged, nor do they lead to the necessary inference that the applicant had sufficient cause to believe that they were forged. The explanation of the applicant is that he got the certificates from one Fida Hussain Shamim (D. W. 5). It was unfortunate that he was not permitted to be cross-examined by the defence when he had obviously turned hostile. As this Court found that refusal was improper, it had remanded the case to the trial Court with a direction to recall Fida Hussain and permit the applicant to cross-examine him and that if, for any reason, he was not available to permit the applicant to adduce evidence to show that the certificates, were brought to him by Fida Hussain from Bhopal.

On remand, it appears that Fida Hussain could not be traced and his whereabouts were unknown. The applicant, therefore, examined Shymasunder Shandle (D. W. 7) who says that Fida Hussain (D. W. 5) had handed over the certificates to the applicant in his presence at the residence of Shri Oza, Income Tax Practitioner, Jabalpur, and had also said that they had been given to him by the Income Tax Officer, Bhopal.

14. This Fida Hussain was known to the applicant for sometime and there is no evidence that he was such a suspicious or shady character that the mere fact that he had brought them should have put the applicant on his guard. The certificates themselves do not bear an obvious stamp of forgery to put any reasonable man on enquiry, and there is also no evidence that the applicant had such intimate knowledge of the signature ot Shri Pradhan as to have at once detected the. forgery.

There was thus nothing, in the circumstances, to excite the suspicion of any reasonable man. It has also to be remembered that the trial court had found that the prosecution had not adduced any evidence which could go to show that the documents were forged by the applicant; and in the absence of evidence to establish that the applicant had reason to believe that the signatures of Shri Pradhan on Exhibits P-4 and P-7 were not genuine, he could not be convicted.

15. The Courts below have made no genuine efforts to examine whether the requisite 'knowledge' or 'belief necessary to bring home the guilt to the applicant under Section 471 of the Indian Penal Code had been established; and, in any opinion, the circumstances established in the case do not lead to the only inference that the applicant either 'knew' or had 'reason to believe' that the documents were forged.

16. The facts that the applicant had a motive to prove his eligibility under Section 61 of the Income Tax Act and that he had failed to establish that he had practised in the pre-merger Bhopal in 1947-48 and had used the documents in support of his eligibility, which I have found to be forged, may create a strong suspicion against his bona fides; but, as is often said, suspicion, however strong, cannot be substituted for proof.

17. The explanation of the applicant that he had received the documents from Fida Hussain and had no reason to suspect that they were not genuine is a reasonable explanation which, under the circumstances established in the case, cannot be said to be palpably false. It is settled law that if an accused offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false: Raja Khima v. State of Saurashtra, (S) AIR 1956 SC 217 at p. 221.

18. The applicant-accused is thus entitled to the benefit of doubt. The application in revision is, therefore, allowed. The conviction and sentence of the applicant are set aside and he is acquitted.

19. In vew of the fact that the applicanthas been acquitted, the reference becomes infructuous and is filed.


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