Criminal Writ Petition No.71 of 2010,AND Criminal Writ Petition No.72 of 2010

12th October, 2010

Petitioner Counsel: Mr. SUDESH USGAONKAR
Respondent Counsel: Ms. ASHA DESSAI

Cases Cited:
R. R. Gavit Vs. Smt. Sherbanoo Hasan Daya, 1986(2) Bom.C.R. 293 [Para 13,15]

JUDGMENT

JUDGMENT:- These petitions can be considered under Section 482 of the Code (Code of Criminal Procedure, 1973).

2. The petitions are directed against orders dated 7/04/2010 of the learned Additional Sessions Judge, Panaji upholding the orders dated 24/09/2009 of the learned JMFC, Margao, refusing to discharge the petitioners/accused under Section 181, 201 and 204, IPC and framing charge against the petitioners for offences under said sections.

3. The petitions can be conveniently disposed of by this common judgment. The petitioners are husband and wife and are Directors of Companies mentioned in para 2 of the complaint. The respondent is the complainant and at the relevant time was Deputy Director of Income Tax (Investigations). Both the accused are income tax assesses.

4. Before proceeding further, note is required to be taken of two provisions of the Income Tax Act, 1961.

"Section 136 provides that any proceedings under this Act (Income Tax Act, 1961) before an income-tax authority shall be deemed to be judicial proceeding within the meaning of section 193 (giving false evidence) and 228 (intentionally insulting or interrupting a public servant sitting in judicial proceeding) and for the purpose of section 196 (giving or fabricating false evidence) of the Indian Penal Code (45 of 1860) and every income-tax authority shall be deemed to be a Civil Court for the purposes of section 195, but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 132 deals with search and seizure and sub-section 4 of Section 132 provides that the authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act.

The explanation below sub-section 4 provides that for the removal of doubts, it is hereby declared that the examination of any person under this sub-section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act."

5. The case of the complainant is that having received reliable information and having found reasonable belief that the accused (petitioners herein) had suppressed substantial income and evaded income tax payable under the provisions of the Income Tax Act, 1961, they searched the residential premises of the accused under the provisions of Section 132 of the Income Tax Act, 1961 on 16/12/1988 and again on 18/12/1988 and recorded their statements on oath and at that time the petitioners-accused failed to disclose the existence of two lockers bearing no.1007-L at Union Bank of India at Napean Sea Road, Mumbai and No.714 at Dena Bank at the Napean Sea Road, Mumbai.

6. The case of the complainant is that a notice was served on petitioner Pravinkumar Gosalia to reach Mumbai to open the Bank locker at Hongkong Bank on 24/12/1988, but the said Pravinkumar Gosalia expressed his inability and sought an adjournment and, as such, the opening of bank locker and completion of search proceedings was posted on 7/01/1999 and 8/01/1999. It is the case of the complainant that the statement of the accused was also adjourned for being recorded upon opening of a locker no.2399 in Hongkong Bank and when the said locker was opened the locker was found empty. The said lockers at Union Bank and Dena Bank were opened by the accused or at their instance on 8/01/1999 and this was admitted by the petitioners-accused in their further statement recorded on 9/02/1999. The entire case of the complainant is that the accused made a false statement on 16/12/1998 inspite being made aware of the nature of the statement and, therefore, the petitioners-accused by making false statements about the existence of the lockers at the Union Bank of India and Dena Bank at Napean Sea Road, Mumbai and thereafter having proceeded to empty the contents thereof have committed offence punishable under Section 277 of the Income Tax Act, 1961 r/w Section 181, 201 & 204 of Indian Penal Code. The complainant also stated that the offence of giving false evidence was committed by the accused at Margao on 16/12/1998. Complainant has made no mention of Section 193, IPC and no charge has been framed under the said Section.

7. The complainant was examined, in the inquiry before framing of charge against the petitioners-accused. The first contention of Shri Usgaonkar, the learned Counsel appearing on behalf of the petitioners is that Sections 201 and 204, IPC were not at all attracted for the petitioners to be charged under the said sections and I am inclined to accept the said contention made on behalf of the petitioners, though this aspect does not appear to have been clearly put forward before the Courts below.

8. Section 201, IPC deals with causing disappearance of evidence of offence, or giving false information to screen offender and, inter alia, provides that:

"Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false."

Different punishment is provided, depending upon if the offence is a capital offence or punishable with imprisonment for life or imprisonment for less than ten years.

Section 203, IPC deals with giving false information respecting an offence committed and, inter alia, provides that:

"Whoever, knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

Section 204 IPC deals with destruction of document or electronic record to prevent its production as evidence, and, it provides that:

"Whoever secrets or destroys any document or electronic record which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant, as such, or obliterates or renders illegible the whole or any part of such document or electronic record with the intention of preventing the same from being produced or used as evidence before such Court or public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

9. The gravamen of offence against the petitioners is that they made a false statement or gave false evidence as regards the existence of the two lockers in their joint name in Union Bank of India and Dena Bank at Mumbai. The submission made on behalf of the petitioners is that the locker in Honkong Bank was found empty and so also the other two lockers in the said two banks. Complainant's suspicion is that by suppressing the existence of the said lockers the petitioners got them emptied on 8/01/1998 and their suspicion is based on certain statements made by the employees of Union Bank that petitioner Pravinkumar Gosalia who had come to open the same, had become restless because of the delay.

10. As said before, the petitioners/accused have been prosecuted under Section 181, IPC only and not under Section 193, IPC. Section 181, IPC deals with making a false statement on oath or affirmation to a public servant or person authorised to administer an oath or affirmation. Section 193 deals with giving false evidence.

11. The essential ingredients of Section 201, IPC are that:

(a) an offence has been committed;

(b) that the accused knew or had reason to believe that such an offence has been committed;

(c) that the accused caused evidence thereof to disappear; and

(d) that the accused caused disappearance of the evidence with the intention of screening the offender from legal punishment.

One of the main ingredients of Section 203, IPC is that false information should be given in respect of an offence committed. Sections 201 and 203 both contemplate giving information respecting an offence which the accused person knows or believes to be false. As already seen, one of the requirements of Section 201 is that the accused caused evidence of the offence to disappear.

12. In the case at hand, the offence is one of making a false statement on oath or giving false evidence. That the accused subsequently cleared the said two lockers of any documents, etc, has nothing to do with the offence under Section 181, IPC or 193, IPC and therefore that would not amount to a commission of an offence either under Section 201 or 203, since thereby nothing was lost in relation to the main offence committed by the petitioners under Section 181, IPC i.e. of making a false statement on oath or affirmation to a public servant or Section 193, IPC. The disappearance of evidence has got to be in connection with the offence committed and not in relation to other offences, which might have been committed under the Income Tax Act. This aspect of the case has not been considered by both the Courts below and in my view considering the gravamen of charge against the petitioners/accused under Section 181, IPC or Section 193, IPC no offences were made out under Section 201. Offence under Section 204, IPC was based only on suspicion.

13. The next submission of Shri. Usgaonkar is that there was no evidence that oath was taken by any of the accused and in this context Shri Usgaonkar has placed reliance on a decision of this Court in the case of R. R. Gavit Vs. Smt. Sherbanoo Hasan Daya & Anr. (1986(2) Bom.C.R. 293) wherein this Court observed as follows:

"5. There is also another important point to be noted in connection with the original statement recorded. The caption of the statement reads "On Oath Solemnly affirmed". Neither of the two has been struck off and there is every possibility of the accused not being examined on Oath. There is further no other record to how that an Oath was administered to the accused by the complainant. Therefore, it is doubtful whether the impugned statement was at all given by the accused on Oath. I have also perused her statement recorded on the 8th November, 1983 under Section 131 of the Act where it is mentioned that the "Oath was administered". It must be remembered that in the present case, the accused is being prosecuted for giving a false statement on Oath. Hence, it is necessary to prove beyond doubt that the statement was given on Oath. On the basis of the record as it stands, it is very difficult for me to draw an inference that the accused has made a false statement on Oath. I am, therefore, of the opinion that no prima facie case has been made out against the accused. Hence, the Criminal Revision application fails and the Rule is discharged."

14. Learned Counsel has also referred to the forms of oaths and affirmations in the schedule annexed to The Oaths Act, 1969 and has submitted that any oath had to be given in the said manner.

15. I am not inclined to accept this submission of learned Counsel. The case of R. R. Gavit (supra) is not be attracted to the facts of this case. That case appears to have been decided on the basis of the caption on the statement recorded, which caption reads:

"On oath solemnly affirmed."

In the case at hand, we have the statement of the complainant made on oath in his evidence recorded before framing of charge wherein the complainant has categorically stated that the statement on oath under Section 132(4) of the Income Tax Act, 1961 was recorded of the accused by him after administering the oath, in his presence as Deputy Director of Income Tax for Belgaum and Goa which position he was holding previously. That statement has got to be accepted as prima facie evidence that the statements of the accused were recorded on oath as required under Section 132(4) of the Income Tax Act, 1961. Another related submission made by Shri. Usgaonkar is that a statement recorded on oath under Section 132(4) cannot be used for any purpose except in proceedings taken under the Indian Income Tax Act. This submission, in my view, also cannot be accepted. Once it is held that the proceedings under the Income Tax Act are held to be judicial proceedings a false statement made in the course of such proceedings would certainly attract the penal provisions of Section 181, IPC or 193, IPC.

16. For reasons stated herein above, the petitions are partly allowed. The petitioners-accused shall stand discharged under Section 201 and 204, IPC. Trial against petitioner-accused shall proceed under Section 181, IPC. No order as to costs. Parties to appear before the learned JMFC, Margao on 30/10/2010 at 10.00 a.m.

Petitions partly allowed