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1996 DIGILAW 99 (MP)

Fatehchand Moonat v. Union Of India

1996-01-19

N.K.JAIN

body1996
JUDGMENT N.K. Jain, J. 1. This order shall dispose of all the aforesaid three revisions as the facts of the cases giving rise to these revisions are similar and the parties are also common. 2. The applicant is the "karta" of his Hindu undivided family carrying on business in the name and style "Fatehchand Moonat". During the assessment years 1974-75, 1975-76 and 1976-77, the applicant fell into arrears of income-tax to the tune of Rs. 48,739 plus interest. While these arrears were still outstanding the applicant sold away a plot of land measuring 19,000 sq. ft. to one Mahaveer Plastic Industries for a sum of Rs; 45,000 on March 27, 1980. Admittedly, the sale proceeds were not utilised for making the payment of tax. The income-tax authorities treating the sale as not being made for the "fair market value" started acquisition proceedings under Chapter XX-A of the Income-tax Act, 1961. After enquiry, the proceedings were however, dropped on July 21, 1986. The authorities then filed three complaints (vide Criminal Cases Nos. 15 of 1987, 16 of 1987 and 17 of 1987) against the applicant accused on March 23, 1987, under Section 276C of the Act before the Chief Judicial Magistrate (Economic Offences), Indore, alleging that the applicant accused has wilfully attempted to evade payment of income-tax and interest under the Act, due for the aforesaid three assessment years. A separate complaint has been filed for each year. The learned C. J. M. after recording evidence before charge has on September 15, 1994, framed charges under Sections 276C(2) and 230(1) (sic) read with Section 278C of the Income-tax Act. Feeling aggrieved by the orders framing the charges against him, the applicant has come in revision before this court under Section 397, Criminal Procedure Code. 3. Learned counsel for the applicant has taken me through the evidence recorded before charge and other documents filed on the records of all these three cases and contended that it was a case of delayed payment or at best of non-payment which according to learned counsel, by itself, could not and did not constitute the offence under the Act. There was no "mens rea" an essential ingredient of every criminal offence, in the instant case inasmuch as, counsel pointed out, the applicant accused was always willing to make and was making payment though in phases as per availability of the funds. There was no "mens rea" an essential ingredient of every criminal offence, in the instant case inasmuch as, counsel pointed out, the applicant accused was always willing to make and was making payment though in phases as per availability of the funds. The entire arrears of tax with interest, it was further pointed out, have been now paid off by the applicant before the expiry of the financial year ending March 31, 1994. 4. As against it, learned counsel for the respondent-Union of India has strongly supported the impugned orders. 5. These revisions must fail. At the outset, it may be observed that this court cannot in exercise of its revisional jurisdiction reappraise the evidence for itself as if it is acting as a court of appeal and come to a different conclusion than that of the trial court. The revisional powers though very wide cannot be exercised in such a way as to give a right of appeal in cases excluded expressly by the Code of Criminal Procedure. It is normally to be exercised in exceptional cases where there is a clear defect in procedure or there is manifest error in point of law and consequent miscarriage of justice (see Amar Chand Agarwala v. Shanti Bose, AIR 1973 SC 799 ). 6. In the case on hand while there is absolutely no procedural defect or error on point of law, on facts also the order of the learned C. J. M. cannot be termed as groundless or perverse. Admittedly, there has been continuous default for more than ten years on the part of the applicant accused in payment of his tax dues. He further disposed of his property while the tax was still due and did not utilise the sale proceeds in clearing the arrears. That he needed the funds for some other and more urgent purpose is a matter of evidence yet to be recorded and appreciated by the trial court. This court cannot prejudge the issue and come to its own conclusions. As already pointed out the court below in framing the charges does not seem to have acted without any material or committed any manifest error on the point of law leading to miscarriage of justice. 7. This court cannot prejudge the issue and come to its own conclusions. As already pointed out the court below in framing the charges does not seem to have acted without any material or committed any manifest error on the point of law leading to miscarriage of justice. 7. That the entire tax has been paid off with interest, is again no ground to quash the charges inasmuch as the major part of the tax dues were cleared much after filing of the complaints. It is, however, for the respondent, the Union of India, to consider whether it is still expedient in the interest of justice to pursue the prosecutions or to withdraw the complaints as not only the entire tax with interest has been paid off but also the notice of acquisition given under Chapter XX-A of the Act has been discharged. With this observation the revision petitions are dismissed.