JUDGMENT N.K. Mody, J. 1. Being aggrieved by the judgment dated 1-6-1993 passed by A.C. J. M (Economic Offence), Indore in Cr. Case No. 38 of 1986, present appeal has been filed. 2. Short facts of the case are that a private complaint was filed by the appellant under Section 276CC read with Section 278B of the Income Tax Act, 1961 on 6-8-1986 alleging that complaint was filed by the Income Tax Officer, B-Ward, Itarsi. In the complaint it was alleged that the respondent No. 1 firm M/s Bhavecha Machinery & Electrical Store is the registered firm and is carrying business of machinery, spare parts and electrical goods having its business premises at main market of Itarsi. Further case of the prosecution was that the respondent No. 1 firm filed its return of Income-tax on 30-8-1983 while as per Section 131 of Income Tax Act, it was obligatory on the part of the firm to file its return of income on or before 30-6-1981. It was alleged that thus the return filed by the respondent is delayed by 25 months. It was alleged that assessment order was passed on 13-10-1983 under Section 141 and penalty proceeding has been initiated under Section 271A of the Act. It was also alleged that notice was issued on 2-7-1985 and served on 17-7-1985 but the notice was not complied with by the respondent. It was alleged that since there was default on the part of the respondent, therefore, the respondent are liable to be punished under Section 276CC read with Section 278B of Income Tax Act. It was prayed that after enquiry and giving opportunity of hearing the respondent be punished. After framing of charge and recording of evidence the respondents were acquitted against which the present appeal has been filed. 3. Learned Counsel for the appellant argued at length and submits that learned court below committed an error in accepting the plea that because of sickness of the Munim of the firm there was no deliberate delay in filing the return and was acceptable. Learned Counsel for appellant further submits that non- avail ability of employee cannot relive the assessee of his obligation to file the return. It is submitted that from the evidence adduced by the appellant the offence committed by respondents has been proved. Learned Counsel for appellant further submits that non- avail ability of employee cannot relive the assessee of his obligation to file the return. It is submitted that from the evidence adduced by the appellant the offence committed by respondents has been proved. Learned Counsel submits that in the facts and circumstances of the case the appeal be allowed and the judgment passed by the court below be set aside and the respondents be convicted. 4. Shri H.O. Soni, learned Counsel for the respondent submits that after due application of evidence learned court below has found that explanation of delay in filing the return was satisfactory therefore, no interference can be made by this Court. It is also submitted that impugned order passed by the court below is discretionary therefore, in appeal that cannot be disturbed. It is prayed that the appeal be dismissed; 5. From perusal of the record, it is evident that to prove the case appellant has filed documents Ex. P/l to P/7 and has examined R.C. Sriniwasan PW-1, who was Income Tax Officer, B-Ward, Itarsi at the relevant time and PW-2 Shyamlal, Income Tax Officer, Itarsi, while the respondents have examined Santosh Jain DW-1 6. In the matter of Prem Das v. ITO 1999 (1) Crimes 69 (SC), Honble Supreme Court has held that it is also well settled that the court of appeal must examine the reasons on which an order of acquittal Judge was clearly unreasonable. It has also been held by this Court that if the evaluation of the evidence made by the court below while recording an order of acquittal does not suffer from any illegality or manifest error and the grounds on which the said order of acquittal is based unreasonable, then the High Court should not disturb the said order of acquittal. In the matter of Narayan v. Union of India (1994) JLJ 350 (MP) this Court has held that both the courts have lost sight of the quintessence of the offence under Section 276CC. It lies in the wilfulness of delay in filing return. In other words it is not merely failure to file return in time, which constitutes the offence. The failure to file the return in time must be proved by clear, cogent and reliable evidence to be willful and there should be no plausible doubt of its being willful. It lies in the wilfulness of delay in filing return. In other words it is not merely failure to file return in time, which constitutes the offence. The failure to file the return in time must be proved by clear, cogent and reliable evidence to be willful and there should be no plausible doubt of its being willful. It must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing from them. 7. From perusal of the record it is evident that in the statement of Santosh Jain, it has come that Tarachand Jain, who is father of DW-1 was working as part-time accountant in the respondent firm from 1975 to 1986-87. He has further stated that Tarachand Jain was old man and suffering from number diseases. It was further stated that he has been treated at Itarsi, Harda and Calcutta. Keeping in view the statement of Santosh Jain, the learned court below has held that there was sufficient ground of delay in filing the return in time. In the opinion of this Court no illegality has been committed by the learned court below in acquitting the respondents, which can be corrected by this Court. In view of this appeal has no force. It is accordingly dismissed.