1. By way of present appeal the appellant has challenged the judgment and order of acquittal dated 31.1.1997 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.80 of 1986. The said case was registered against the respondents–original accused for the offences punishable under Sections 276C and 277 of the Incometax Act and under Section 181 of the Indian Penal Code.
2. According to the prosecution case, the accused persons filed incometax return on 25.4.1975 for the assessment year 197576, in which clear profit of Rs.24,247/ was shown instead of Rs.37,937/ and did not show difference of balancesheet amount of Rs.1,11,872/ and thereby the accused persons tried to avoid tax, penalty and interest on the amount of Rs.1,25,562/ and committed offence punishable under Section 276C of the Incometax Act. Hence the complaint came to be lodged.
3. Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused persons were arrested and, ultimately, chargesheet came to be filed against them in the Court of learned Metropolitan Magistrate Court.
4. Thereafter, charge came to be framed and explained to the accused persons, to which the accused persons pleaded not guilty and claimed to be tried.
5. In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence.
6. Thereafter, after filing closing pursis by the prosecution, further statements of the accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.
7. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Magistrate vide impugned Judgment and order, acquitted the respondents – accused.
8. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 31.1.1997 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.80 of 1986, the appellant has preferred the present appeal before this Court.
9. Heard Ms.Mauna Bhatt, learned counsel for the appellant. Notice is served to the other side. Mr.R.C.Jani, learned counsel has appeared for respondent Nos.1 to 3 and Ms.Jirga Jhaveri, learned APP has appeared for respondent No.4 – State.
10. Ms.Mauna Bhatt, learned counsel for the appellant has contended that the trial Court has erred in appreciating that, the prosecution was launched under Section 276 C read with Section 277 of the Income Tax Act. Assuming that Section 276C was not in force in April, 1975, but Section 277 was there for the year under consideration. Language of Section 277 is clear and unambiguous. She has contended that the trial Court has erred in not appreciating the evidence available on record, more particularly, Ex.34 and 35, which goes to show that, the false accounts are verified by the respondent No.2. Lastly, she has read observations of the learned Magistrate and contended that the observations made by the learned Magistrate are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
11. Mr.R.C.Jani, learned counsel appearing for the respondent Nos.1 to 3 has contended that the offence occurred prior to 25.1.1975. Section 276C of the Income Tax Act was amended on 1.10.1975, therefore no retrospective effect is given. Hence no offence is made out under Section 276C of the Income Tax Act. He has contended that the learned Magistrate has rightly considered that the respondents have not committed any wrong, as alleged by the Income Tax Department.
12. I have perused the record and considered the submissions made by the parties. It is true that prosecution was launched under Section 276C read with Section 277 of the Income tax Act. Though Section 276C was not in force in the year April 1975, Section 277 was there for the year under consideration. It is, therefore, apparent that, the learned Magistrate has not considered the said aspect of the matter while deciding the case.
13. In the result, this Appeal is partly allowed. The impugned judgment and order dated 31.1.1997 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.80 of 1986, acquitting the respondents, is hereby quashed and set aside. The case is remanded to the trial Court with a direction to decide the same on merits and in accordance with law. The learned Chief Metropolitan Magistrate, Ahmedabad is directed to notify the said Criminal Case before the concerned court with a direction to decide the case within a period of six months from the date of receipt of the writ of this order. R & P, if received, be sent back to the trial Court, forthwith.
(Z.K. SAIYED, J.) kks