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TMI Blog1971 (11) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... y stated " the Act ") for the period of default up to April 1, 1968, and thereafter under section 276B of the said Act as amended by the Finance Act, 1968, for the period of default after April 1, 1968. The charge was denied by the accused. He stated that he was not the principal officer of the company at the time and that no deductions were made by him in that capacity. He also denied the letters produced by the prosecution alleged to have been sent by him as principal officer of the company to the Income-tax Officer, Company Circle, Ernakulam. The respondent (accused), Halley Mathew, was the appellant in Criminal Appeal No. 377/70, which arose from S.C. No. 18/70. There also, as in the present case which has arisen from S.C. No. 23/70, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted to him and PW-2 was thus familiar with the handwriting and signature of the accused. The Explanation to section 47 of the Evidence Act is, therefore, attracted and PW-2 must be deemed to be competent to prove the signature and hand-writing of the accused. The relevant documents are exhibits P-3 to P-10 and P-15 to P-17. I accept the finding, therefore, that the documents were submitted by the accused for the company. With regard to the question whether he had done so in his capacity as principal officer, the reasoning adopted by me in my judgment in Criminal Appeal No. 377/70 is applicable here also and I accept the finding that he was the principal officer of the company. From exhibits P-4 and P-5 it is seen that the amounts were pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 78/71. Certain rulings were cited before me by the learned State Prosecutor in support of the position that omission to deduct and pay is a continuing offence. One such decision is State v. Kunja Behari Chanda. There the omission which was the subject-matter of the charge was the omission by the colliery authorities to construct pithead bath and creche as required by the Rules. The Rules provided for the construction of pithead bath and creche within a time specified, but the construction was not made within that time. There the learned judges observed : " The expression 'continuing offence' means that, if an act or omission on the part of an accused constitutes an offence, and if that act or omission continues from day to day, then a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " Had the statute imported any such time element, and made the omission to pay within a particular time the gist of the offence, we would have been inclined to agree with the learned judge. For, the act constituting the offence would have been committed once and for all, and, therefore, the offence once and for all when that time expired. But as it is, we are afraid he was wrong." The Full Bench was considering the observation made by a learned single judge in Muhammad Lubba v. Neelambaran. The learned single judge held in that case that, by reason of article 20(1) of the Constitution, there could be no conviction under section 74 of the Act read with rule 26 of the Rules. In so holding, the learned judge stated that the act constitutin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 51 of the 1922 Act read with rule 10(b) thereunder would show that the failure to deduct and pay the tax within a week's time was an offence punishable with fine and on the expiry of the time prescribed the offence was complete. The 1961 Act came into force on April 1, 1962, only ; but long before that, under the 1922 Act the offence was complete and that did not continue thereafter so as to be treated as an offence under the 1961 Act as well. For the reasons stated above, I agree with the finding of the court below that the offence did, not survive so as to form the subject-matter of a charge under section 276(d) of the Income-tax Act, 1961. The order of acquittal entered by the learned sessions judge is proper and in confirmation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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