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2016 (7) TMI 1194 - DELHI HIGH COURT

2016 (7) TMI 1194 - DELHI HIGH COURT - TMI - Issuance of duplicate and forged ST-35 forms and C-Form - irregularity - offence punishable under Section 420/34 IPC - respondent No.2 claimed that he had already furnished Forms ST-35 to the Accountant of the appellant who had put his signature and affixed seals on the reverse side of the counter-foils. The appellant was called by the Sales-Tax Officer (STO) and shown the counter-foils of the Forms ST-35 bearing the seals of his sole proprietorship c .....

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- Similarly in respect of second incident pertaining to one out of ten C Forms supplied, the mistake was pleaded to be inadvertent and the said mistake was only an irregularity and not an illegality so as to make it culpable. This fact was confirmed even by the Sales Tax Department, Goa and the mistake was also rectified. - The learned Trial Court has rightly come to the conclusion that while supplying ten C-Forms one out of that for the year 1996-1997, 1997-1998 was for two financial years .....

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nt in person. Respondents Through: Mr.Rajesh Mahajan, ASC for the State/R-1 with Ms.Parul Jamwal, Advocate with SI Kishan Lal, PS Tilak Marg. Mr.Manjeet Singh, Senior Advocate instructed by Mr.Tarjeet Singh and Mr. Yogendra Kumar Verma, Advocates for R-2 to R-4. PRATIBHA RANI, J. Crl.M.A.No.10612/2013 1. Exemption allowed, subject to all just exceptions. 2. Application stands disposed of. Crl.M.A. Nos.10609/2013 & 9287/2014 (preponement of hearing) 1. Appellant states that as the matter had .....

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he facts of the two criminal cases, has also made reference to the civil suit wherein a decree has been passed in his favour but not executed. 3. The ground on which direction to take respondents No.2 to 4 in custody has been sought is on their alleged wilful disobedience to furnish the bail bond as directed by this Court on 18.02.2013 while granting leave to appeal. 4. Perusal of the proceedings reveal that on 18.02.2013 in Crl.L.P. No.329/2010, following order was passed:- This leave to appeal .....

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ent of the Code of Criminal Procedure which came into effect on 31.12.2009. In view of the above, the impugned order dated 16.9.2010 passed by the High Court is hereby set aside and the appeal filed by the complainant is restored to its original number to be decided on merits by the High Court. The appeal is allowed accordingly. Thus, the appeal is now required to be decided on merits. Leave is granted. Petition is disposed of. Crl.A. No…………../2013 (On registration, t .....

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Court modified the bail order dated 18.02.2013 by directing reduction of surety from two to one. The bail bonds thereafter have been furnished and accepted by the Registrar General. 6. Since the respondents No.2 to 4 herein were acquitted by learned Trial Court, while granting leave to appeal, the bail order was passed on 18.02.2013 which was subsequently modified on 17.07.2013. 7. The order granting bail stands complied with. Hence, the instant application deserves dismissal. 8. The applicatio .....

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sion of which was repeatedly admitted by the accused persons through their learned counsel before ld. A.S.J. on 13.08.2002 and 16.08.2002 as its non-recovery alone had become a reason for their acquittal under benefit of doubt. 3. Crl.M.A No.12540/2014 has been filed by the petitioner for summoning the respondents No.2 to 4 for recovery of forged seals as well as for disposal of Crl.M.A. Nos.10610-10611 of 2013 in view of the directions dated 27.07.2012 of Hon'ble Supreme Court. The prayer c .....

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t of hearing the appeal on merits. 5. Perusal of the appeal file shows that on 15.01.2014 the appeal was directed to be listed for hearing in due course at its turn. Thereafter on 30.05.2014 Crl.M.A.Nos.9287/2014, 10610/2013 & 10611/2013 were listed for 19.08.2014 for disposal when bailable warrants in the sum of ₹5000/- were issued against respondents No.2 to 4 returnable for 18.11.2014. Respondents No.2 to 4 appeared the Court on 18.11.2014 alongwith their counsel. Appellant though p .....

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ollowing effect:- 13.8.02 Present : Sh.Ghanshyam Sharma adv. for applicant. Addl. PP for State alongwith SI R.S.Meena. Arguments heard. Sh.Sharma submits that the applicant is ready to join the investigation and would get seal and counterfoils S.T.Forms recovered. Considering the submissions made, it is ordered that the applicant shall join the investigation as and when called to by the I.O. and shall co-operate in the recovery of aforesaid articles/objects. Adjourned for recovery of components/ .....

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gwith IO SI Manoj Kumar. Complainant Ravinder P.Kumar is present in person. Sh.G.S.Sharma Adv. for applicant. Heard. On facts as submitted, there is no ground for anticipatory bail. The application is dismissed. 8. The submissions made by learned counsel for the petitioner while arguing on the application seeking anticipatory bail cannot be treated as confession by the accused persons. The recovery, if any, of the case property could be at the stage of investigation. After completion of investig .....

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of investigation carried out fourteen years ago. 9. Both the applications are hereby dismissed. Crl.A. No.240/2013 1. The appellant Ravinder P.Kumar has impugned the judgment dated 4th August, 2009 in case FIR No.240/2002 PS Patel Nagar by virtue of the newly amended provision i.e. proviso to Section 372 Cr.P.C. 2. The appellant herein was complainant in case FIR No. 240/2002, registered at PS Patel Nagar. Initially he filed a criminal complaint wherein, in exercise of the power under Section 15 .....

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nder Section 313 Cr.P.C. DW-1 Ashok Kumar Gupta was also examined by the accused persons in their defence. 4. After trial all the accused persons have been acquitted by the learned Trial Court observing that the prosecution had failed to prove its case beyond reasonable doubt. 5. The complainant filed Criminal Leave Petition No.329/2010 with application seeking condonation of delay in filing the leave petition. Vide order dated 16th September, 2010 the prayer of the petitioner for condonation of .....

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ed 16.9.2010 passed by the High Court is hereby set aside and the appeal filed by the complainant is restored to its original number to be decided on merits by the High Court. The appeal is allowed accordingly. 6. Thereafter leave to appeal was granted by this Court on 18th February, 2013 and the leave petition was registered as Criminal Appeal 240/2013. 7. LCR has also been requisitioned and perused. The appellants and the respondents in addition to their oral submissions have filed written syn .....

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enalty to the Sales-Tax Department as by that time duplicate C Forms were issued, the same had become time barred. (iv) The learned Trial Court despite noting that wrongful loss to the tune of ₹18,300 was suffered by the complainant, preferred to acquit them which is contrary to law. (v) Despite his appeal being admitted by order of the Supreme Court, his prayer for recovery of the admitted case property vide C.M. No. 1061112/2013 remains pending for one reason or the other on flimsy groun .....

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admitted during his crossexamination but without giving any explanation as to why she was not implicated as an accused in respect of Ex. PW-1/1 to Ex. PW-1/8 i.e. the counter foils. (iii) Forms ST-35 may be valuable securities but not counter foils as it neither creates any right nor liability. (iv) No complaint regarding forgery of Forms ST-35 or false claim of sales tax credit either by the accused persons or by the company i.e. M/s Adige Computers Pvt. Ltd. was made to Sales Tax Department w .....

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for two years i.e. 1996-1997 and 1997-1998. (viii) PW-8 SI Manoj Kumar visited Goa and met Additional Commissioner, Sales Tax in connected with investigation of this case. Sales Tax officials confirmed issues of C-Forms in a jumbled form which was modified by them as the same was issued inadvertently. The investigating officer (PW-8) also received a letter dated January 22, 2003 from Goa Sales Tax Commissioner to this effect. (ix) The letters Ex. PW-1/D and Ex. PW-1/E dated 1st July, 2001 writte .....

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respondents herein were common Directors in the companies namely M/s Adige Computer Services Pvt. Ltd., M/s Sparrow Technologies Pvt. Ltd. and M/s Sparrow Micro Electronics Pvt. Ltd. During business transactions it was agreed that the appellant herein would be provided Forms ST-35 and C Forms in respect of the supplies made to the respondents. 13. The grievance of the appellant is that Forms ST-35 and valid C Forms were not furnished hence he approached the Sales-Tax office where respondent No.2 .....

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office of the company was at East-Patel Nagar, the seal on the counter-foils were of the address at Manak Vihar, Delhi. 14. The respondent No.2 agreed to furnish duplicate ST-35 Form and for that purpose the appellant was asked to make a formal request. Thus a letter dated 7th December, 2001 was written by the complainant, which was received by respondent No.2 in presence of the STO. Thereafter on 7th December, 2001, respondent No.2 got recorded DD No. 38B at PS Naraina Vihar and a Non-Cognizabl .....

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ax Department. 16. The appellant also claimed that despite request being made to issue C Forms financial year-wise, needful was not done as a result of which the complainant had to pay the penalty and the Sales-Tax due, thus causing huge financial loss to him. 17. After the matter was investigated, charges against the accused persons were framed on 16th August, 2005 for committing the offences punishable under Sections 467/468/471/420 IPC read with Sections 120B/34 IPC in respect of Forms ST-35. .....

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ally PW-1 Ravinder P. Kumar, PW-3 R.P. Sharma who was the Sales-Tax Officer at the relevant time, PW-5 Anuj Garg, Charted Accountant of the company, PW-6 Dayatri Dass, Accountant of the complainant, the learned MM had acquitted inter alia on following grounds: In respect of first incident i.e. charge pertaining to forged seals and signature on the counter foil of Forms ST-35, the learned Trial Court noted as under:- (i) PW-1, Sh.Ravinder P.Kumar, the complainant was having office at C-3, Manak V .....

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expert was to the effect that it could not be conclusively said that the signatures on the questioned documents belonged to either accused No.1 T.R. Biyani or PW-6 Daitari Dass. (iii) The forged seals were not recovered. (iv) At the stage of grant of anticipatory bail, although submission was made by counsel for the respondent No.2 that petitioner would be for joining the investigation and cooperating in recovery of Forms ST-35 and the seals but seals were not recovered. Some seals produced by t .....

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estioned about the stamps of the Company, he gave an evasive reply that he did not remember of having any stamp (seal) with Manak Vihar address. He even did not remember having ever seen the stamps (seals) of the business concern of the complainant of Manak Vihar. All the respondents were well aware of the business address of PW-1 and if they wanted to forge the seal, it could have been with the address of the registered office rather than the branch office. (vii) The handwriting comparison did .....

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alities were completed by the parties to resolve the issues. (ix) Lodging of non-cognizable report on 7th December, 2001 and publication in newspaper Punjab Kesri on 9th December, 2001 were made by the respondent/accused persons to resolve the issue of Forms ST-35 with a view to obtain duplicate form and not with any intention to commit cheating or forgery. These steps were taken consequent and subsequent to the request received vide communication dated 7th December, 2001. (x) The fact that PW-2 .....

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chequer. Thus, giving benefit of doubt all the respondents were acquitted of the charges under Sections 467/468/471/420 IPC read with Section 120-B/34 IPC relating to counter foils of Forms ST-35 observing that conclusively it cannot be said that stamp and signature were forged. 20. In respect of the charge referred to as second incident relating to issuance of invalid C-forms, learned Trial Court has acquitted for the following reasons:- (i) The parties were having business dealings with each o .....

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tering into business transactions except that the appellant/complainant was persuaded to set up a plant in Goa by the accused persons whereas the offence of cheating relates to supply of one C-form for two financial years i.e. 1996-1997, 19971998. (v) It is admitted case of prosecution that accused Nos.2 and 3 supplied ten C-forms at the same time out of which only one form showing the sales for the period 1996-97 and 1997-98 was found invalid as it was pertaining to two financial years. (vi) It .....

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tion by the Sale Tax Office, Goa about issuance of one C-forms in jumbled form which were rectified by them as the same were issued inadvertently. He also deposed about receipt of letter dated 22nd March, 2003 to this effect from the Goa Sales Tax Commissioner. (ix) Inadvertent mistakes in one out of ten C-forms would not amount to cheating and could not have the effect of ruining the business of the complainant. 21. On the basis of above reasoning, the learned Trial Court arrived at the conclus .....

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acquittal has been examined by the Hon'ble Supreme Court in catena of judgments. In Muralidhar @ Gidda and Anr. Vs. State of Karnataka, MANU/SC/0494/2016 noting the principals laid down in earlier decisions as early as 1951, in para no. 12 it was held as under: 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu v. State [MANU/SC/0076/1951 : AIR 1954 SC 1], Madan Mohan Singh v. State of U.P. [MANU/SC/0162/1954 : AIR 1954 .....

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/1973 : (1973) 2 SCC 793], Lekha Yadav v. State of Bihar [MANU/SC/0131/1973 : (1973) 2 SCC 424], Khem Karan v. State of U.P. [MANU/SC/0158/1974 : (1974) 4 SCC 603], Bishan Singh v. State of Punjab [MANU/SC/0090/1973 : (1974) 3 SCC 288], Umedbhai Jadavbhai v. State of Gujarat [MANU/SC/0164/1977 : (1978) 1 SCC 228], K. Gopal Reddy v. State of A.P. [MANU/SC/0104/1978 : (1979) 1 SCC 355], Tota Singh v. State of Punjab [MANU/SC/0320/1987 : (1987) 2 SCC 529], Ram Kumar v. State of Haryana [MANU/SC/005 .....

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Goa v. Sanjay Thakran [MANU/SC/7187/2007 : (2007) 3 SCC 755] and Chandrappa v. State of Karnataka [MANU/SC/7108/2007 : (2007) 4 SCC 415]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his .....

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witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the .....

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cipatory bail on behalf of the respondent No.2, T.R.Biyani by his counsel that he would get seal and counterfoils, S.T.Forms recovered, claiming it to be an admission on oath and sufficient to convict them. The orders dated 13.08.2002 and 09.12.2002 have been extracted in para 6 while disposing of CM Nos.10611/2013 & 12540/2014 24. Suffice it to record here that submission made by learned counsel for the respondent No.2/accused T.R. Biyani at the stage of anticipatory bail was with a prayer .....

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ordinary course of business with respondents No.2 to 4 so as to mark the distinction between genuine seals and alleged fake seals on the counter foils. The submissions made by learned counsel for the respondent at the stage of anticipatory bail does not amount to confession. It is not the case of the appellant that in the application seeking anticipatory bail any admission about the forged seals being used on the counter foils of Forms ST-35 was made by the accused. Undisputedly wife of the appe .....

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seals recovered. 27. After dealing with the contentions of the petitioner for considering the admission made before learned ASJ at the stage of prayer for release of anticipatory bail by accused T.R.Biyani - respondent No.2 herein, for decision of this appeal it is necessary to re-appreciate the evidence that has been adduced before the learned Trial Court in the form of two letters Ex.PW1/D and PW1/E written by appellant as Managing Director of M/s. Acron Electroplast Pvt. Ltd. and as sole prop .....

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. for attention of Mr. T.R. Biyani, Director, regarding non-receipt of ST-35 forms pertaining to the year 199798 & 1998-99. The relevant contents of letter Ex.PW1/D are extracted as under:- 7/12/01 You have informed us before the STO ward 104 that you have issued the following forms:- Form No. Year Amount 05AA 689785 1997-98 361900/- 05AA 967100 1998-99 397427/- Thanking you, Sd/- Director for M/s Arcon Electroplast Pvt. Ltd. 29. The letter exhibit PW-1/E dated 7.12.01 is on the letter head .....

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ant time, during his cross examination by State on 15th March, 2007 is as under: I have seen the summoned record of Sales Tax office Ward No.104 pertaining to Adige Computer Services (P) Ltd., A-29, Naraina Industrial Area, Phase-I, New Delhi. It is correct that on 29.11.01 I was Sales Tax Officer at Ward No.104, Bikrikar Bhawan, New Delhi. It is correct that on 29.11.01 I received an application EXPW3/A (in the sales tax file) from Shri R.P.Kumar, Proprietor R.K.Enterprises regarding the non is .....

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of R.P.Kumar. It is correct that on the same day the accountant of R.P.Kumar was also present along with him. It is correct that accused T.R.Biyani produced the counterfoil 8 ST-35 forms on which according to him he had got the signatures of the dealer/accountant on the back side of the said forms. (The said 8 ST-35 forms are shown to the witness who correctly identifies them to be the same that was produced by the accused T.R.Biyani on the said day before him. They are EXP1 to EXP8). It is cor .....

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complainant. Rather I had suggested the accused T.R.Biyani and the complainant that let duplicate ST-35 forms be got issued so that neither there is revenue loss nor the dealer/complainant will suffer any loss. In respect of utilization of aforesaid 8 ST-35 forms T.R.Biyani Proprietor M/s. Adige Computer Service had given due declaration in form ST-2B EXPW3/B to EXPW3/3. In view of the above said declaration STO office issued fresh ST-35 forms for utilization in the succeeding years. The said fr .....

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by the FSL on the questioned documents marked Q-1 to Q-8 and the specimen writing of T.R.Biyani as well as English signature, S-4 to S-7 of the Daytri Dass, Accountant of the complainant, PW-6 is to the following effect:- Considerable time and labour has been spent for examination of questioned writings, short signatures, marked Q-1 to Q-8 with the specimen writings marked S-1 to S-3 but it has not been possible to express any opinion on Q-1 to Q-8 in comparison with S-1 to S-3. The model and d .....

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The process was initiated on two written requests being made by the complainant vide letters dated 7th December, 2001 to T.R.Biyani - respondent No.2 who thereafter took further steps i.e. lodging of non-cognizable report on the same date at PS Naraina Vihar vide DD No. 38B and publication in newspaper Punjab Kesari. The purpose behind was to resolve the issue without causing any loss either to the Government or to the concerned party. Admittedly the complainant had given the written requests in .....

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