K. GANESH v. NARAYANA IYER — 1973 DIGILAW 330 (KAR)

( 1 ) THE petitioner in Crl. R. P. Nos. 211 to 213 of 1973 was the accused in C. C. Nos. 103 to 105 of 1971 in the Court of the Munsiff-Magistrate, channarayapatna. He was prosecuted for having committed the offences under 5. 277 of the Income Tax Act, 1961. The accused pleaded guilty to the charges framed against him and the trial Co,urt released him under s. 3 cf the Probation of Offenders Act, after admonishing him. This order passed by the trial Court was challenged by the] Income Tax Department before this Court. With regard to the first charge of sending a, false report of the year 1961-62, this Court dismissed the petition of the Department, thus confirming the order passed by the Trial Court, releasing the accused under S. 3 of the Probation of Offenders Act. With regard tp other three charges,, relating to the returns of the year 1964-65, 1965-66 and 1966-67, this Court admitted the revision petitions. After hearing the arguments, this Court remanded the, three cases back to the trial Court for fresh disposal according tp law and directed the learned Magistrate to consider the applications filed by the accused under S. 4 read with S. 11 (1) of the probation of Offenders Act. ( 2 ) AFTER the remand, the learned Magistrate, without cabling for a report from the Probation Officer as required under sub-sec. (2) of S. 4 of probation of Offenders Act, decided the question and held that the accused was not entitled to the benefit of S. 4 (l) of the Probation of Offenders act, which will, hereinafter be referred to as 'the Act'. He sentenced the accused for six months rigorous imprisonment on each count. The appeal preferred by the accused was dismissed by the learned Sessions Judge of hasssn with the modification in the sentence. The learned Sessions Judge, sentenced the accused to six months simple imprisonment instead of rigorous imprisonment and directed that the sentences should run concurrently. This order passed by the Courts below, have been challenged by the petitioner-accused in Crl. R. P. Nos. . 211 to 213 of 1973. ( 3 ) CR. E. P. Nos. 307 to 309 of 1973 are filed by the Income Tax department praying that the six months simple imprisonment parsed on the accused by the learned Sessions Judge, be modified to six months rigorous imprisonment. R. P. Nos. . 211 to 213 of 1973. ( 3 ) CR. E. P. Nos. 307 to 309 of 1973 are filed by the Income Tax department praying that the six months simple imprisonment parsed on the accused by the learned Sessions Judge, be modified to six months rigorous imprisonment. ( 4 ) WHEN the, matter came up for hearing before this Court, after hearing the parties, this Court, by its order dt. 21st September 1973, called for a, report from the Probation Officer whether this is a fit case for release of the accused under S. 40 (1) of the Act. The repqrt of the Probation Officer has now been received. ( 5 ) THE Probation Officer in his report has stated that the accused ganesn is a Medical Practitioner and is running a, clinic in the Town of sakaleshpura. The accused has obtained a certificate in Vaidya Praveen in ayurveda and has been practising in Sakaleshpura for about 17 years. The Probation Officer has stated that the a. ccused conies from a, very respectable agriculturist family and is having a wife and three sons aged about 16, 14 and 12 years. He has reported that the antecedents of the accused are satisfactory and there are no bad reports against him. He has stated that the accused is a, benevolent and pious man and that he is rendering help to the poor people by his profession. The accused has no previous conviction and there are no criminal records against him. The Probation officer has contacted some of the local people such as TDB President, Sakaleshpura,, ex. President of Town Municipality, Sakaleshpura etc. All of them have expressed good opinion about the antecedents and character and conduct of the accused and they have stated that the, accused has been rendering much help to the people in and around Sakaleshpura and that he has been leading respectable life in the town for the last 17 years. The Probation Officer has recommended that the benefit of S. 4 (1) and (2) of the Act may be given to the accused. ( 6 ) IT has not been disputed that this Court has got powers to release a, person who has committed an offence under the I. T. Act under the Probation of Offenders Act, in appropriate case. The Probation Officer has recommended that the benefit of S. 4 (1) and (2) of the Act may be given to the accused. ( 6 ) IT has not been disputed that this Court has got powers to release a, person who has committed an offence under the I. T. Act under the Probation of Offenders Act, in appropriate case. S. 18 of the Act has specifically stated that the said Act is not applicable to the offences committed under the Acts referred to therein such as, Prevention of Corruption Act or the Suppression of Immoral Traffic in Women and Girls Act. Income tax Act is not one of the Acts referred to in Section 18 and therefore, there is no prohibition for the application of the Probation of Offenders act to the offences committed under the Income Tax Act. The Supreme court and the High Courts in a number of decisions have held that in appropriate cases, the Court could apply the provisions of the Probation of offenders Act even in cases where the offences committed are anti-social, such as the Food Adulteration Act, Customs Act etc. A Division Bench of this Court in Asst. Collr. of Central Excise v. Basiklal Chandmal Bora, (1972) 2 Mys. L. J. 189 has held that in view of the judgment of the Supreme Court in Ishar Das v. State of Punjab ,air. 1972 SC. 1295, it is "not now open to contend that the provisions of the Probation of Offenders Act would not be applicable to the offences under the Defence of India Rules. It may also be mentioned that in Crl. A. No. 17 of 1969 decided on 23-7-1971, a Division Bench of this Court, after calling for the report of the Probation Officer, released the accused under s. 4 (1) of thei Act, who had been convicted for the offence of smuggling gold. Hence there cannpt be any doubt that in appropriate cases, this court, while exercising the revisional powprs, can release the accused under the Probation of Offenders Act. ( 7 ) THE important question for consideration in this case is, whether it is an appropriate case for the application of S. 4 (1) of the Probation of offenders Act. Hence there cannpt be any doubt that in appropriate cases, this court, while exercising the revisional powprs, can release the accused under the Probation of Offenders Act. ( 7 ) THE important question for consideration in this case is, whether it is an appropriate case for the application of S. 4 (1) of the Probation of offenders Act. ( 8 ) SHRI B P Karunakar, learned Counsel appearing on behalf of the accused has argued that in all these cases, the accused has not deliberately made any false statement, and tha the statements made by him were bona fide after consulting an Auditor It is also pointed out that the revised returns in all these cases were filed on the same day i. e. , 26-3-68. The accused in good faih thought that it was not necessary to show in the income tax returns submitted by him, the properties purchased in the name of his wife and bank deposits in the name of his minor children. Immediately, when it was brought to his notice by the Department that he should have disclosed the properties standing in the name oi his wife and children, he filed revised statements setting out all the properties and thereafter paid difference of lax of Rs. 7,350 and also the penalty of Rs. 2,850 levied on him. It was also stressed before me that the accused pleaded guilty to all the, charges. ( 9 ) IT has been pointed out by Shri Karunakaran that in the application made by the accused for release under S. 3 of the Act, the accused has clearly staged that he has submitted the income-tax returns through his Audtior Shri S. V. Gundurao of Hassan, as the accused did not know the procedure of submitting income-tax returns. Since the properties were in the name of his Wife and minor children, the accused in good faith thought that there was no need for him to show this in the income-tax returns submitted by him. Since the properties were in the name of his Wife and minor children, the accused in good faith thought that there was no need for him to show this in the income-tax returns submitted by him. The Auditor also did not question about the above-mentioned particulars and the returns were filed by his Auditor and the accused was only asked to sign them by his Auditor When the Income-tax department, subsequently issued notices calling upon him to furnish all the details, the accused voluntarily submitted a list of all the, properties of assets including the bank do , suit and furnished the revised income- tax statement. It is pointed out by the learned Counsel that this revised income-tax statement filed by the accused have been accepted by the department. The learned Counsel has stressed that this-submission made by the accused that he has submitted the returns in good faith, has not been controverted by the Department in the objections filed by them. The learned Counsel has pointed out that in a number of decisions, bqth the Supreme Court and other High Courts, including this Court, have applied the provisions of the Act to anti-social offences committed under the various Acts, such as, Customs Act, Opium Act, Prevention of Food Adulteration Act etc. The learned Counsel has stressed that the report of the probation Officer clearly shows that the character and antecedents of the accused are very good and the Probation Officer himself has recommended that the accused may be released under S. 4 (1) of the Act. The learne' counsel has stressed that the offences committed by the accused are no, serious offences and the maximum punishment a Court could give, is only two years rigorous imprisonment. The Courts have got power under the provisions of Probation of Offenders Act to apply the Act to, all offences except offences punishable with transportation for life. It is pointed out by the learned Counsel that under sub-clause (2) of S. 279 of Income Tax act, it is open to the Commissioner, to compound any offence committed under S. 277 of the Act. It is. therefore, stressed that the legislature itself 'does not consider this offence as a serious one as it gives powers to the commissioner to compound such offence even though a, prosecution has been launched against the accused. It is. therefore, stressed that the legislature itself 'does not consider this offence as a serious one as it gives powers to the commissioner to compound such offence even though a, prosecution has been launched against the accused. The learned Counsel has also stressed that the accused has got a wife and three minor children depending upon him and if he is sentenced to imprisonment, it will ruin his career. , The learned Counsel has also, pointed out that if a sentence of imprisonment is passed, the accused is liable to be debarred from practising. as a doctor. Under S. 16 of Mysore Ayurvedic and Unani Practitioners' Registration act, a person who has been registered as a Doctor under the Act, is liable to be removed for his misconduct and under the said Act, misconduct shall mean conviction of a practitioner by a criminal court for an offence which involves moral turpitude. It is, therefore, stressed, that if the accused as sent to jail it would mean debarring him from practice and would ruin his entire career ( 10 ) SHRI G. Chandrakumar, learned Counsel appearing on behalf of the Department, contended that deliberately making a false statement in a declaration made before the Income Tax Authority, is anti-social act and deprives the State of its lawful dues and is a serious matter and the court should not release such persons under the Probation of Offenders act. While considering whether it is a, fit case for release, the Court should consider the nature of the offence. In the instant case, as the nature of the offence is a serious one and anti-social, Probation of Offenders Act, should not be applied. It is also pointed out by the learned Counsel, that the punishment of imprisonment is mandatory for the offence under Sec tion 277 of the Income Tax Act, and the Court should sentence the aceused for a minimum period of six months rigorous imprisonment. It is also pointed out that the accused is an educated person and he has deliberately not disclosed his assets and it is not correct to contend that the accused voluntarily gave information. It is only after the' Department brought to the notice of the accused, that he had furnished a false return, that the accused came out with truth. It is also pointed out that the accused is an educated person and he has deliberately not disclosed his assets and it is not correct to contend that the accused voluntarily gave information. It is only after the' Department brought to the notice of the accused, that he had furnished a false return, that the accused came out with truth. The learned Counsel has also stressed that the learned Sessions Judge has fully gone into the question whether it was a fit case for the application of S. 4 (1) of the Act and after considering all the facts and circumstances of the case, came to the conclusion that it was not a, fit case for the application of the abovementioned section. It is argued that this is a matter within the discretion of the learned sessions Judge and unless it is shown that the learned Sessions' Judge has exercised the discretion arbitrarily or in perverse manner, this Court should not interfere with his order. ( 11 ) I have already referred to the report of the Probation Officer in his leport, the Probation Officer has stated that the character and antecedents of the accused are not only good, but he is a benevolent and pious man and has been rendering lot of help to the poor people by his profession. He has stated that from the enquiries made by him from local people, they have expressed good opinion about the antecedents, character. and conduct of the accused. He has also pointed out that the. accused has been practising as doctor for about 17 years in Sakaleshpur, and the accused comes from a respectable agriculturist family. The Probation Officer has expressed the opinion that the accused may be given the, benefit of section 4 (1) of the Act. ( 12 ) IN the application under S. 3 of the Act made by the accused before the trial court, he has specifically stated that he has submitted' his income-tax returns through his Audtor as he did not know the procedure of submitting the income-tax returns. He has also stated that he, in good faith, bought that there was no need for him to show in the income tax return, properties standing in the names of his wife, and minor children. The Auditor did not question him with regard to, this and the return was filed by the Auditor. He has also stated that he, in good faith, bought that there was no need for him to show in the income tax return, properties standing in the names of his wife, and minor children. The Auditor did not question him with regard to, this and the return was filed by the Auditor. He has stated therein that immediately, when the income Tax; Department issued a notice calling upon him to, furnish all details with regard to the properties and assets including the bank deports, standing in the name of his wife a'nd children he filed a revised income-tax return disclosing full facts for the abovementioned years. He has also stated that the omission to mention the properties and bank deposits standing in the name of his wife and minor children is not deliberate with view to circumvent the law. The accused was not advised by his Auditor with regard to the requirements of the returns. He has also pointed out that immediately thereafter he paid additional tax of Rs. 7,350 and the penalty of Rs. 2,850 without questioning. There is force in the contention of Shri Karunakar that in the objections filed by the Department, the averments made by the accused that he, in good faith made the declaration, has not been controverted. The records disclose that the accused after paying arrears of tax and the penalty, pleaded guilty to the charges. ( 13 ) IT is clear from the decisions of the various Courts, that in appropriate cases, the Courts have applied the provisions of the Probation of offenders Act to cases involving anti social acts and the accused persons who have committed the offences under the Defence of India Rules, Gold control Rules, Food Adulteration Act and Opium Act have been released under the provisions of the Probation of Offenders Act. As pointed out by the learned Counsel for the accused the maximum sentence that can be imposed for an offence under. 277 of the, Income Tax Act is two years and that offences committed under S. 277 of the Act can be compounded by the commissioner of Income Tax. I have already pointed out that the various averments made by the accused that he has not deliberately made false statements, but bona fide and by mistake made these, statements, have not been refuted in the objections filed by the Department. I have already pointed out that the various averments made by the accused that he has not deliberately made false statements, but bona fide and by mistake made these, statements, have not been refuted in the objections filed by the Department. It may be mentioned that in the instant case, the State has not lost any money, as the accused immediately, when it was pointed out to him that he should have disclosed the properties standing in the name of his wife and minor children, had filed a revised return and paid all the dues and the penalty imposed on him. It may also be pointed out that the learned Sessions judge has, in para 15 of his order held that there was a deliberate attempt on the part of the accused to conceal considerable; sums in order to avoid payment pjf taxes. He has also stated that the action of the accused, by no stretch of imagination could be construed as the action of a bona fide tax payer. I have already pointed out the various averments made by the accused in his application under S. 3 of the Act that he, bona, fide committed the, mistake, in thinking that he was not bound to disclose the assets standing in the name of his wife and minor children has not been refuted by the Department in their objections. The learned Sessions Judge has not adverted to this aspect of the case and has assumed that the accused has deliberately made attempts to suppress his income with the object of avoiding payment of tax. It is because of this mistake committed by the learned Sessions Judge, he did not accede to the request made by the accused to release him under S. 4 (1) of the Act. ( 14 ) THERE is also force in the contention urged on behalf of the accused that if he is sentenced to imprisonment, it may ruin his life. As already pointed out, under S. 16 of Mysore Ayurvedic and Vnani Practitioners' registration Act, if the accused is sentenced to imprisonment, he is liable tp be removed from the Register and this would result in rasulting his career. It is also on record that the accused has got a wife and three children depending on him. As already pointed out, under S. 16 of Mysore Ayurvedic and Vnani Practitioners' registration Act, if the accused is sentenced to imprisonment, he is liable tp be removed from the Register and this would result in rasulting his career. It is also on record that the accused has got a wife and three children depending on him. ( 15 ) TAKING into consideration all the facts and circumstances mentioned aboye, i am of opinion that this is pre-eminently a fit case for th. 9 release of the accused under sub-clause (1) of Sec. 4 of the Probation of offenders Act. ( 16 ) IN Crl. R. P. Nos. 307 to 309 of 1973, the Department has prayed that the sentence of six months simple imprisonment passed on the accused, by the learned Sessions Judge may be converted into one of rigorous imprisenment of six months. It is unnecessary to; g0 into this question whether the Court could award simple imprisonment because, even though the accused may be sentenced tc six months rigsrous imprisonment, it is open to the Court to apply the provisions of S 4 (1) of the Act. With this observation Crl. R P. Nos. 307 to 309 of 1973 are dismissed. ( 17 ) FOR the reasons mentioned above, I allow Crl. R. P. Nos. 211 to 213 of 1973 and pass the following order : (1) The accused be released in all the three cases on probation of good conduct for a term of three years. (2) The accused should furnish a bond for a sum of Rs. 1,000 with one surety for the similar amount, in all the three cases to the satisfaction of the Sessions Judge, Hassan; (3) The accused should undertake that he will maintain peace and be of good behaviour during the said period, (4) In case of default, he should appear and receive sentence when called upon by the Court during the said period; and (5) The bond mentioned above, should be executed by the accused before the Sessions Judge, Hassan, on or before the 30th of December 1973. --- *** --- .