P.R. Gokulakrishnan, J.
1. The appellant herein has been convicted under Section 420, Indian Penal Code, and sentenced to undergo regorious imprisonment for one year.
2. The ease of the prosecution is that the appellant herein filed Exhibit P-1 before the Income-tax Officer and induced him, on the strength of Exhibit P-1 to issue an income-tax clearance certificate, dated 30th December, 1967. The said certificate is marked as Exhibit P-2. But for the suppression of the fact that the appellant had no contract business at all, P.W. 1, would not have issued the certificate. Hence, the prosecution has filed the charge sheet under Section 420, Indian Penal Code.
3. P.W. 1 who issued the Income-tax Clearance Certificate has categorically stated in the box as follows:
Had I known, that the contract amount of the accused for the above years (63 to 68) is four or five lakhs, I would not have issued the income-tax clearance certificate.
4. I do not think that there is any difficulty in coming to the conclusion that the appellant herein has fradulently induced P.W. 1 to issue the Income-tax Clearance Certificate Exhibit P-2. From the admitted facts of the case, there is no difficulty in coming to the conclusion that an offence under Section 420, Indian Penal Code, i.e., cheating and dishonestly inducing delivery of property, has been committed by the appellant herein.
5. The appellant who has been convicted has preferred this appeal. Mr. Panchapagesan, the learned Counsel for the appellant no doubt tried to argue that an offence under Section 420, Indian Penal Code, is not made out in this case. From the evidence given by P.W. 1, which I have extracted above, and also from the documents Exhibits P-1 and P-2, it is clear that the appellant has committed an offence punishable under Section 420, Indian Penal Code. Mr. Panchapagesan, the learned Counsel for the appellant put forth an argument to the effect that the complaint itself is not maintainable since the procedure prescribed under Section 195 (1) (b), Criminal Procedure Code, was not followed. The lower court has mentioned in its judgment that the proceedings before P.W. 1 cannot be construed as judicial proceedings. This, I am of the view, is completely wrong since Section 136 of the Income-tax Act clearly states:
Any proceeding under this Act before an Income-tax authority shall be deemed to be a judicial proceeding with-in the meaning of Sections 193 and 228 and for the purposes of Section 196 of the Indian Penal Code (XLV of 1860).
6. Thus, it is clear that the filing of an affidavit by the appellant herein for the purpose of getting Income-tax Clearance Certificate before P.W. 1 can be clearly taken as proceedings coming under Section 136 of the Income-tax Act.
7. Mr. Panchapagesan cited the decisions in Chinnayya Goundan v. Emperor : (1948)1MLJ448 , and In re V.V. L. Narasimhamurthy : AIR1955Mad237 , for the purpose of showing that the offence committed can be construed only as an offence during the judicial proceedings by giving false evidence and as such, the complaint will be clearly hit by Section 195 (1) (b), Criminal Procedure Code. No doubt the reasoning in these decisions can in a way support the contention put forward by Mr. Panchapagesan ; but I do not think that the decisions rendered in these judgments can be taken as squarely applicable to the facts and circumstances that arise in this case. Mr. Rajamanickam, the learned Additional Public Prosecutor clearly brought out the distinction in this case and argued that this is a distinct offence and it cannot be construed as an offence coming under Section 195 (1) (b), Criminal Procedure Code. For this proposition, the learned Additional Public Prosecutor cited the decision in Slate of Punjab v. Brij Lal : 1969CriLJ645 . In paragraph 10 of its judgment, the Supreme Court has observed as follows:.It is well fettled by new that while investigating the commission of a cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence.... There can be no objection therefore to the continuance of proceedings relating to offences alleged against the respondent other then those covered by Sections 182, 211 and 193 of the Penal Code.
From the last sentence stated by the Supreme Court, the learned Additional Public Prosecutor states that there cannot be any objection for proceeding independently with the offence under Section 420, Indian Penal Code, which is completely different and distinct from an offence that may require a sanction under Section 195 (1) (b), Criminal Procedure Code. The learned Additional Public Prosecutor also cited the decision in Ramakrishna Pillai, In re (1971) L.W. (Cri.) 109, wherein Somasundaram, J., has held:
Section 195 of the Criminal Procedure Code provides that without the complaint of the Public Servant concerned no prosecution for an offence under Section 186 can be taken cognizance of. It does not further provide that if in the course of the commission of the offence, other distinct offences are committed, the Magistrate is debarred from taking cognizance respect of there offences as well....
8. In the decision in Durgachandran Naick v. Slate of Orissa : 1966CriLJ1491 , the Supreme Court also made the observation that Section 195, Criminal Procedure Code, does not bar the trial of the appellants therein for the distinct offence under Section 353 of the Indian Penal Code though it is practically based on the same facts as for the prosecution under Section 186,Indian Penal Code, is concerned.:
9. Thus, from the various decisions cited by the learned Additional) Public Prosecutor, it is clear that if a distinct offence is made out, the accused is not entitled to put forth the defence that Section 195 (1) Criminal Procedure Code has not been complied with. As far as the present case is concerned, it is clear that the offence of cheating is a distinct offence and the prosecution has made out the said offence, independent of any other offence committed during the judicial proceedings, as alleged by the appellant herein. But for the fact that the appellant had made a declaration, P.W. 1 would not have granted the Income-tax Clearance certificate Exhibit P-2. Hence, I am of the view that the prosecution has made out a clear case of cheating, which is a distinct offence, and the contention that the complaint must be filed by the official concerned under Section 195 (1) (b),Criminal Procedure Code, cannot have any substance in view of the principles laid down in the cases cited supra. In these circumstances, the conviction is confirmed.
10. Mr. Panchapagesan, the learned Counsel for the appellant submits that the appellant is a first offender, and the prosecution, while unearthing some other case, was able to pitch upon this document, which no doubt makes a distinct offence, but the appellant who is aged about 50 years can be let off under Section 4 (1) of the Probation of Offenders Act (XX of 1958). Taking into consideration the circumstances under which the offences have been committed and also the age of the appellant herein, I am of the view that the ends of justice would be served if the appellant is released under Section 4 (1) of the Probation of Offenders Act (XX of 1958). Accordingly the appellant is released under Section 4 (1) of the Probation of Offenders Act on his executing a personal bond for Rs. 250 to the satisfaction of the Fourth Presidency Magistrate, George Town, Madras, undertaking to be of good behaviour for a period of six months.
11. The appeal is dismissed with the modification menitoned above.