TMI Blog1962 (4) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... these persons was that during the relevant period, they had entered into a criminal conspiracy by agreeing to do or cause to be done illegal acts, by corrupt and illegal means and by abusing their position as public servants to obtain for themselves pecuniary advantage in the form of income-tax refund orders and this criminal object was achieved by issuing the said refund orders in the names of persons who either did not exist or were not assessees entitled to such refunds. The prosecution case was that after the said refund orders were thus fraudulently issued, they were fraudulently cashed and illegally misappropriates. The ten persons in whose names these refund orders were fraudulently issued were G.M. Thomas, P.N. Swamy, K. S. Patel, S. R. Bhandarkar, S. P. Jani, D. M. Joshi, C. B. Kharkar, Ramnath Gupta, V. M. Desai and K. V. Rao. It appears that twenty-five bogus vouchers were issued in respect of these ten fictitious cases ; eleven accounts were fraudulently opened in different Banks in Bombay and misappropriation to-the extent of Es. 54,000/- has thereby been committed. That, in. substance, is the main charge which was levelled against the three accused persons. Nine o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Income-tax Officer. Thereafter, a form known as I.T. 30 form is prepared. This form contains several columns which, when filled in, give details about the income-tax payable by the assessee the tax paid by him, the refund ordered by the income-tax Officer or the collection demanded by aim. After this form is duly filled, it is sent to another clerk for preparing the refund order. At that stage, the refund order is prepared and the said order together with the demand and collection register and I.T. form 30 are sent back to the Income-tax Officer who examines the record and signs the refund order and the I.T. form 30 and himself makes or causes to be made an entry in the demand and collection register. At this time, he also cancels the refund certificates, such as dividend warrants. The Income-tax Officer also receives the advice memo prepared by the refund clerk and signs it. The said memo is sent to the Reserve Bank and the refund order is sent to the assessee. After the refund voucher is cashed by the Reserve Bank, the advice memo is received back in the Income-tax Office. It is thereafter that an entry is made in the Daily Refund Register. The prosecution case is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppened in the evening of the 10th June, 1955. On the 11th June, 1955, which was a Saturday, Mr. Sundararajan called for the income-tax files of some of the persons named above including G. M. Thomas and K. S. Patel along with the files of twenty other regular assessees. The files of the twenty regular assessees were submitted to him but not of the ten fictitious persons. On enquiry he was told that those files were not available. ' The non- production of the said files confirmed his suspicion that something irregular must have happened in respect of them. That is why he sent for accused No. 1 at 2 p. m. but he was not in his office. He came at 3 p. m. Mr. Sundararajan showed him the relevant counter-foils and examined him. The statement made by accused No. I was duly recorded by Mr. Sundararajan. As a result of the enquiry made by him, Mr. Sundararajan was satisfied that the three accused persons had fraudulently brought into existence several documents as a result of which a large amount had been misappropriated, and so, he requested the Central Board of Revenue to suspend accused No. 1. At that stage, Mr. Sundararajan naturally wanted to search the office of A-III Ward, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned trial Judge, accused No. 3 pleaded guilt to all the charges framed against him, whereas accused Nos. 1 and 2 denied that they had anything to do with the alleged commission of the offences charged. The prosecution sought to prove its case against all the three persons by producing before the learned trial Judge the relevant documents including the files kept in A-III Ward office, and it examined four witnesses from the department for the purpose of showing the procedure that is followed in passing assessment orders and granting refunds and with the object of showing that the conspiracy could not have succeeded without the active assistance and co- operation of accused No. 1. These witnesses are Sundararajan, P. W. 1, Nagwekar, P. W. 2, Subramanian, P.W. 5 and Downak, P. W. 21. It also. examined Das Gupta, P. W. 26, to prove the handwriting of the accused persons. Eleven other witnesses were examined to prove the identity of accused Nos. 2 and 3 in respect of the steps taken by them to open accounts in different banks in order to encash the refund vouchers issued in pursuance of the refund orders passed by accused No. 1. The learned trial Judge held that the evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ten cases, be had examined the files containing the supporting documents and had satisfied himself that it was proper to allow the refund in each one of those cases. This position was conceded by the learned Advocate who appeared for accused No. 1 in the High Court. The High Court then examined the question as to whether the ten assessees were existing persons or were fictitious names and it came to the. conclusion that the ten names given for the eleven accounts in which refund orders were passed were fictitious names. The High Court then examined the circumstantial evidence on which the prosecution relied in support and proof of its main charge of conspiracy between the three accused persons and it came to the conclusion that the said charge had been proved against all the three accused persons beyond a reasonable doubt. That is how the High Court partially allowed the appeal preferred by the State and convicted all the three accused persons under section 120-B of the Indian Penal Code. It also convicted accused No. 2 of the offences under ss. 467, 471, I. P. C., and s. 5(2) of the Prevention of Corruption Act. In regard to the other offences charged, the order of acquittal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled to the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in-dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence. Sometimes, the width- of the power is emphasized, while on other occasions, the necessity to adopt a cautious approach in dealing with appeals against acquittals is emphasised, and the emphasis is expressed in diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Punjab (4); and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse. Therefore, the question which we have to ask ourselves in the present appeals is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reason-able doubt, and that the contrary view taken by the trial Court was, erroneous. In answering this question, we would, no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court. But under Art. 136 we would ordinarily be reluctant to interfere with the finding of fact recorded by the High Court particularly where the said findings are based on appreciation of oral evidence. There is another point of law which must be considered before dealing with the evidence in this case. The prosecution case against accused No. 1 rests on circumstantial evidence. The main charge of conspiracy under section 120 B is sought to be established ..... X X X X Extracts X X X X X X X X Extracts X X X X
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