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TMI Blog2003 (4) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... ship firm while the other three accused, namely, Vinod Kumar Jain, Kala Wati Jain and Ravi Kanta Jain, were its partners and they were carrying on the business of sale and purchase of cement. It was further alleged that on December 14, 1982, a survey under section 133A of the Income-tax Act was carried out at the business premises of the respondents. It was found that the respondents had maintained two godowns and had further maintained the stock register, cash book and ledger, etc. According to the stock register, the opening balance as on December 13, 1982, was shown to be 899 bags of cement but on physical verification, it was found short by 561 bags of cement which shows that those bags had been sold and had not been accounted for in the books of account and entries were not made with respect to the sale of 561 bags of cement in the cash book. It was further alleged that Vinod Kumar Jain, the respondent, was asked to explain the shortage of 561 bags of cement and he made statement on December 14, 1982, that those bags were sold to one Lala Hukum Chand Jain, the trustee of Gaushala, G.T. Road, Panipat, but the cash memos had not been issued as the sale was made on credit. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly which they have not done and, as such, have committed the offence punishable under section 276C of the Income-tax Act and also that the respondent had made false statement knowing it to be false and, as such, have committed the offence under section 277 of the Income-tax Act. It was next alleged that the respondents have forged the books of account, cash memos, etc., and fraudulently, dishonestly and have also used the same as true knowing or having reason to believe the same to be forged and, as such, committed an offence punishable under section 465/467/471 of the Indian Penal Code. After recording preliminary evidence, the learned magistrate summoned the respondents vide order dated March 30, 1983. In the presence of the respondents, pre-charge evidence was recorded which was closed on March 13, 1989. After hearing learned counsel for the parties, the learned magistrate charged Janta Trading Co. and Vinod Kumar Jain under sections 276C and 277 of the Income-tax Act and under section 465/467/471 of the Indian Penal Code, vide order dated March 13, 1989, to which they pleaded not guilty and claimed trial. However, the remaining accused were discharged. Aggrieved by the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ledger book. It is true that Vinod Kumar Jain had initially stated that 561 bags of cement had been sold to Lala Hukam Chand Jain of Panipat for Gaushala but when enquiries were made from him it was found that he had not purchased any cement and when Vinod Kumar Jain was confronted about his statement, he again stated that in fact 140 bags of cement were sold to Lala Hukam Chand Jain, 140 bags to Gopi Ram and the remaining 281 bags of cement had been sold to Ram Sarup. Again Lala Hukam Chand Jain was confronted but he stated that he or the Gaushala had not purchased any cement from Janta Trading Co. It was alleged that the signatures of Lala Hukam Chand Jain on the statement did not tally with his signatures appended on the goods receipt. This shows that officers of the Income-tax Department did not record the statement of Lala Hukam Chand Jain to whom cement bags were actually sold but they recorded the statement of some other Hukum Chand Jain. Lala Hukam Chand Jain and Vinod Kumar Jain, the respondent, were not confronted with each other. Unfortunately, the statement of Lala Hukum Chand Jain was not recorded either at the time of preliminary evidence or after the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framing of charge under section 245(1) of the Criminal Procedure Code, is a preliminary one and the test of "prima facie" case has to be applied. A prima facie case is not made out where the evidence is totally unworthy of credit or the same is patently absurd or inherently improbable. He has also placed reliance on an authority of the apex court in R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045, in which regarding the meaning of "prima facie" case is was observed as under: "In R.S. Nayak's case, AIR 1986 SC 2045, the Supreme Court gave an illustration to bring out the meaning of the expression 'prima facie case'. It was stated that if the scales of a pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then, in such a situation, ordinarily and generally, the order which will have to be made will be one under section 228 (charge to be framed) and not under section 227 (of discharge). Making a reference to Superintendent and Remembrancer of Legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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