TMI Blog2001 (8) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Companies Act, 1956, petitioners Nos. 1 and 2 were its directors during the relevant period. The income-tax return of the company, for the assessment year 1990-91 was not filed within the prescribed period, i.e., December 31, 1990. The return could be filed uptil March 31, 1991, under clause (a) of the proviso to section 276CC of the Act to avoid prosecution. It was actually filed on June 17, 1991, the tax and interest thereon was also deposited. On February 20, 1992, notice was issued to the petitioners, by respondent No. 1, to show cause why prosecution under section 276CC of the Act should not be initiated against them. The petitioners in their reply dated February 27, 1992, informed the Department that there was no "deliberat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich by itself substantiates their bona fides. It is thus argued that. there was no "deliberate" or "wilful default" which is an essential ingredient of the offence. It was further argued that the allegations contained in the complaint are vague. From the mere failure to file the income-tax return in time, no presumption that the same was 'wilfully" filed late can be raised. In support of its submission reliance was placed on a decision of the Calcutta High Court in Gopalji Shaw v. ITO [1988] 173 ITR 554, wherein it was observed. 'In a criminal case, it is not for the accused to establish his innocence. The onus is on the prosecution to bring home the guilt of the accused. Mens rea is an essential ingredient of a criminal offence. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78E to the Act with effect from September 10, 1986. It provides that in any prosecution for the offence under this Act which requires a "culpable mental state" on the part of the accused, the court shall presume the existence of such mental state. The bur den is shifted to the accused to prove that he had no such mental state: As per the Explanation, the culpable state would include 'intention", "motive" and "knowledge". It further provides that the absence of such culpable mental state shall have to be proved by the accused in defence beyond reasonable doubt. Section 278E reads: "Presumption as to culpable mental state. -(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond reasonable doubt. This is a question of fact, regarding which no finding can be recorded at the stage of framing the charge. As per the settled law, charge can be framed even on the basis of a strong suspicion. The Supreme Court in the recent decision in Smt. Om Wati v. State [2001] Crl. L. J. 1723, made the following observations: "We would again remind the High Courts of their statutory obligation not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to unca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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