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2019 (12) TMI 1245
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...., 1988 (hereinafter referred to as 'PC Act' for short). 2. Brief facts of the prosecution case are as under : Smt. Simar Singh Negi, Additional Commissioner of Income Tax (Vigilance), Mumbai placed complaint dated 12.04.1999 to Superintendent of Police, CBI, EOW, Mumbai, wherein it is alleged that accused No.1 to 8 viz. accused No.1 Devendra Ranganath Chaturvedi, accused No.2 Hoor C. Jhurani, accused No.3 Sayaji L. Sangle, accused No.4 G. Chokkalingam, accused No.5 Nirmal Chetandas Jhurani, accused No.6 Ajit Meghnath Chachad, accused No.7 Ashok Kalidas Patel and accused No.8 John R. Soares with the aid of accused No.9 Sharad Kumar Shrinivas Gambhir, public servant obtained refunds fraudulently and have thereby, caused grave loss to the Revenue Income Tax Department. A well planned income tax refund fraud has been perpetrated, wherein accused No.1 Devendra Chaturvedi, Chaterted Accountant of having address at 405, Rajshila, 577, JSS road, Mumbai, his assistant Ms. Hoor Jhurani, resident of 38 B­Building, Shiv Society, Kopari Colony, Thane (E) actively participated to the conspiracy. Accused No.1 Devendra Chaturvedi filed many of the returns of income claiming bogus income ....
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....e Tax Refunds worth Rs. 1,50,833/­ paid. Further, accused No.9 handed over the Income Tax Refund orders to accused No.2 in contravention of rules of Income Tax Department laid down for dispatch of Income Tax Refund Orders and thus facilitated the said criminal acts. Accordingly, investigating officer placed charge-sheet against accused No.1 to 9. Some of the accused were not charge-sheeted and against some of the accused investigation was kept open. 4. The charge for the offence punishable under Section 120­B r/w 420, 467, 468 and 471 of IPC is framed against accused No.1 to 9 and Section 13(1)(d) r/w 13(2) of PC Act was also framed against accused No.9 vide Exh.26. Same was read over and explained to all the accused in vernacular, to which they pleaded not guilty and claimed to be tried. Their defence is of total denial. 5. The prosecution examined in all 41 witnesses and placed reliance of several documents. The statement of accused persons under Section 313 of Criminal Procedure Code are recorded during the trial. Accused No.1 to 7 and 9 have not preferred to lead evidence in their defence. Accused No.8 placed evidence on defence witness DW­1 Virochan Desai.....
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....period 1996 to 1998 at Mumbai, accused No.9 being the public servant while working as a Tax Assistant, Income Tax Department, Mumbai committed criminal misconduct by abusing his official position as a public servant, thereby allowed to accused No.1 to 8 pecuniary advantage by way of refund of income tax and thereby committed an offence punishable U/s 13 (1)(d) r/w 13(2) of PC Act ? No 7 What order ? As per final order REASONS Point Nos. 1 to 6 :­ 7. It is admitted fact that accused No.9 Sharad Kumar Gambhir was working as a Tax Assistant in the office of ITO, Ward No.12(5), Range 12, Income Tax Department, Mumbai during the period August 1996 to July 1998 and was a public servant as defined under Section 2(c) of the PC Act. In the present case the sanction is accorded by PW­41 Navin Chandra Ramnarayan Tiwari on 15.12.2000. He accorded sanction as a Commissioner of Income Tax Department, representative at Income Tax Appellate Tribunal, Mumbai. At the relevant time in the year 2000 the accused was under his administrative control. It is to be considered, whether PW­41 Navin Chandra Tiwari is the competent authority to accord sanction against acc....
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....ty. It is to the noted that in his oral testimony he has not made any whisper that he is the authority having power to remove the public servant from his services at the time, when offence was alleged to have been committed. It is to be noted that his evidence itself indicates that he is a departmental representative at Income Tax Appellate Tribunal, Mumbai in the year 2000. At that time accused Gambhir was under his administrative control. In his cross examination he conceded that he was not working as a Commissioner of Income Tax Department over accused Gambhir at the time when Gambhir was working in Income Tax Department office, Ward No.12(5). It is to be noted that offence alleged to be committed by accused Gambhir in Ward No.12(5) during the year 1996­1998. Thus, this evidence is sufficient to infer that PW­41 was not competent authority to remove the public servant accused Gambhir from his service at the time the offence was alleged to have been committed while he was working Income Tax office, Ward 12(5), Mumbai. The another material aspect to be considered is that, the competent authority while according the sanction it is required to peruse the material collected d....
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....s PW­40 Shukla, Panch witness PW­7 Pravin Tambe, PW­8 Rajesh Dharpe. Their evidence indicate that during investigation investigating officer obtained specimen signature and handwriting of accused No.1, 2, 3, 4, 6 and 7. Thereafter, investigating officer has send specimen signature and handwriting alongwith disputed document to GEQD, Hyderabad for comparison. 12. Pursuant to it, the GEQD, Hyderabad made comparison of specimen signature and handwriting with dispute documents and sent opinion pertaining to it. Prosecution placed reliance on the evidence of PW­39 handwriting expert C.H. Gandhi (Exh. 385). He testified that he joined in the year 1971 as a Assistant Central Intelligence Officer. He received 3 years training in forensic documents, subsequently he was promoted as Assistant examiner thereafter Deputy Govt. Examiner and thereafter Director, GEQD. He hold 37 years experience in the said field. He received the specimen signature and handwriting alongwith disputed documents for comparison from CBI, EOW. He made careful and through examination of the questions writing, specimen writing and thereby arrived to an opinion, accordingly, he proved opinion Exh. 338 ....
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....nt for life. So in this scenario said dicta is not applicable to the present case. 15. Prosecution placed reliance on the evidence of witnesses to substantiate the fraud in question. In nutshell I would like to refer relevant documents proved by the prosecution witnesses pertaining to each accused from the submission of Income Tax Returns till the withdrawal of alleged crime proceeds from their account. 16. In regard to accused No.3 Sayaji Sangale prosecution witness PW14 proved the factum that accused No.3 filed Income Tax Returns for the Assessment Year 1996­1997 (Exh.163) prepared by accused No.1 Chaturvedi Chartered Accountant, wherein refund is claimed, thereby Income Tax Department allowed the refund of Rs. 59,864/­ and same was paid by cheque. Alongwith this ITR the Statement of Income, Balance Sheet, Income and Expenditure Account was attached. Further TDS Certificate in Form No.16A is issued in favour of M/s Mangalam Transport, 116/118, Maniyar Building, No.1, Carnak Bunder, Bombay - 400 009, to whom payment made by the deductor firm Darabshaw B. Cursetjee's Sons Bombay Pvt. Ltd., Darabshaw House, Ballard Estate, Mumbai - 400 038, which was responsible for th....
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....y;148, Q­150 and Q­152 on 3 TDS Certificates issued by M/s Link International (Exh.260). He opined that the disputed handwriting on TDS Certificates and specimen handwriting is of same person (i.e. accused No.4). It is to be noted that prosecution has placed the evidence of PW­28 Krishnashankar Trivedi, who is connected with the deductor firm M/s Speedy Transport Pvt. Ltd. Further PW­15 Shubhangi Salkar, who is connected with the deductor firm M/s Link International. Both of them testified that TDS Certificate (relied by accused No.3) is not issued by their respective firms. On the strength of it the ITR form was submitted and refund is claimed by accused No.3. Further prosecution placed reliance on the evidence of PW­9, who is the employee of Canara Bank. It is to be noted that he proved the statement of account of accused No.3 for the period 01.03.1997 to 02.09.1999, which indicates that the refund cheque issued by Income Tax office for Rs. 59,864/­ and Rs. 53,846/­ is credited in the account of accused No.3. Further Statement as well cheques proved by the witness indicates that out of the account maintained by accused No.3 and amount of Rs. 44,000/&sh....
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....nt of Income, Balance Sheet, Income and Expenditure Account was attached. Further TDS Certificate in Form No.16A is issued in favour of M/s Harbour Lords, Maniyar Building, Carnak Bunder, Mumbai, to whom payment made by the deductor firm Darabshaw B. Cursetjee's Sons Bombay Pvt. Ltd., Darabshaw House, Ballard Estate, Mumbai - 400 038, which was responsible for the deduction of tax. Thus, certificate indicates that TDS of Rs. 42,166/­ was deducted towards the contract price paid to the said Transport firm. It is to be noted that prosecution has placed the evidence of PW­2 Viraf Irani who is connected with the deductor firm. The witness specifically narrated that the deductor firm has not issued the TDS Certificate Exh­332 (colly.). The signature purportedly did by the connected persons of the said firm is not of himself or any connected person of the firm. On the strength of TDS certificate the ITR form was submitted and refund is claimed by accused No.6. Further prosecution placed reliance on the evidence of PW­19, who is the employee of UCO Bank, who proved Statement of Account of accused No.6 Ajit Chachad. Same indicates his address as Pandit House, Kandivali West....
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....d to ITR form indicate that accused No.7 is the proprietor of these 4 firms cited in TDS Certificates. It is to be noted that prosecution has placed the evidence of PW­21 Anil Bhadra, who is connected with firm Bhadra Brothers, PW­22 Premji Bhadra, who is connected with Shivji Kanji and Co., PW­24 Indrajit Ray, who is connected with Transworld Shipping Services and PW­3 Deepak Gangan, who is connected with Lupin Agro Chemicals India Ltd. These witnesses specifically narrated that the deductor firms have not issued the TDS Certificates, (those certificates are attached with the ITR form of accused No.7). The signature purportedly did by the connected persons of the said firm is not of themselves or any connected person of the firm. On the strength of TDS certificate the ITR form was submitted and refund is claimed by accused No.7. 22. Further prosecution placed reliance on the evidence of PW­11 Nitin Atre, who is the employee of Jana Seva Sahakari Bank. It is to be noted that he proved the statement of account of accused No.7 for the period 27.02.1998 to 01.09.1998, which indicates that the refund cheque for Rs. 67,798/­ arising out of ITR Exh.330 (Colly.)....
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....500/­ and Rs. 33,000/­ (Exh.63/B & 63C). Accordingly, same was credited to the account of accused No.2. The evidence of PW39 handwriting expert indicates that he compared specimen signature, handwriting S­120 to S­283 & S­472 to S­481 (which is of accused No.2) is compared with disputed writing on pay-­in­-slip as well as cheque Exh.63B. He opined that the disputed handwriting on cheque as well as pay-­in­-slip and specimen handwriting is of same person (i.e. accused No.2). 24. Ld. PP for the CBI submits that from the purport of the testimonies of prosecution witnesses it is established that the accused No.1 in pursuance of criminal conspiracy alongwith accused No.2 at the behest of accused No.3 to 8 and alongwith public servant accused No.9 availed income tax refund amount and siphoned off the same resulting into causing loss to the Income Tax Department. Further from the conduct of accused persons in series of instances is sufficient to infer that it is established that they have committed the offence with criminal intention resulting in the financial loss to the government ex­chequer. Furthermore, he also made submission pertaining ....
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.... or documentary to prove that accused put his signature on the ITR form or connected documents relating to it, whereby refund of income tax is obtained by him. Further he submits that pertaining to the Account Opening Form and alleged transaction made by accused No.7 in the Jana Seva Sahakari Bank that accused has not did any transaction in the said bank. No evidence is forthcoming to show that signature of alleged transaction belongs to the accused No.7. Handwriting expert also not given definite opinion. The alleged ITR Exh. 330 with document is not filed by him. There is no signature of accused on it. The prosecution has not brought on record any particulars of the firm that the accused No.1 and 2 are the main culprits behind the fraud in question. Further he submits that the evidence led by PW­11 Branch Manager of Jana Seva Sahakari Bank, who proved the statement of Account, Account Opening Form and alleged transaction in the name of accused No.7 is not did by him as at the relevant time when transaction took place. The handwriting, signature on cheque were not proved through the evidence of handwriting expert. 28. The import of the arguments advanced on behalf of accuse....
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....id to Rajan Desai in lieu of hand loan amount. 30. According to Ld. advocate for accused No.8, investigating officer also recorded statement of DW­1. On the same footing he deposed before Court. Furthermore, the evidence of PW­30 Rajan Desai, which is relied by the prosecution is supported to the factum that he received amount of Rs. 37,000/­ towards loan, which was given as hand loan through cheque Exh. 147. Thus, Ld. advocate for the accused No.8 submits that no active role or there is any dishonest intention of accused No.8 in the transaction in question. He only did the acts at the behest of his employer DW­1 and accused No.1 Devendra Chaturvedi. He is not the beneficiary of crime proceeds, which is ultimately proved by the evidence of prosecution itself as the cheque amount was transferred in the account of PW­30 Rajan Desai. Thus, there is no satisfactory evidence on record to prove charges leveled against him. 31. The import of arguments advanced on behalf of accused No.8 indicates that on the behest of DW­1 Virochan and accused No.1, accused No.8 has simply put his signature on blank ITR Form. Later on it is forged by accused No.1. Furthermore,....
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.... ITR of himself is incorrect one. He is the resident of Kandivali. Furthermore, Income Tax Ready Reckoner for the year 1997­1998 indicates the taxable income of assessee should be over Rs. 40,000/­ . The Income Tax Returns Exh. 332 filed on behalf of accused No.6 shows that M/s Harbar Lords Company of which accused No.6 is the Proprietor but same fact is not proved by prosecution. No signature of accused No.6 bears on any of the documents relied by the prosecution against him. So, he claimed that there is no iota of evidence to prove the charges against accused. Hence, claimed acquittal of him. 33. The import of argument of accused No.6 is that the handwriting expert has not given opinion to prove the fact that the signature of accused No.6 does not bears on income tax returns. He has not did any bank transaction, so he has no connection with transaction in question. It is admitted by accused No.6 that he has maintained account in UCO Bank, Kandivali West Branch. The prosecution satisfactorily led evidence to show that income tax refund amount of Rs. 46,000/­ is credited to the account of accused No.6 and he by way of self cheque Exh. 179 withdrew it. The handwriting....
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....ents of documents should be proved that calling the executor of document as a witness. It is not enough to merely prove the signature or the handwriting of a person. Proof of signature does not amount to proof of contents. The contents of the document have to be proved. What it states can be so established. The contents of documents must primarily be proved by the production of the document itself for the inspection of Court. The mere marking of an exhibit does not dispense with the proof of the document. Exhibiting a document has nothing to do with the proof, though as a matter of convenience only the proved documents are exhibited. I have gone through the parameters laid down in the above case. Those case are distinguishable from the facts of the present case, as in the present case the documents are the public documents or documents maintained in regular course of business. So, same is not assist to the accused. 36. Another submission advanced on behalf of the accused is that the witnesses, who are connected with the deductor firm, who issued TDS certificates testified that the TDS certificates are fabricate and forged one and those are not issued by their firm or does not be....
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.... 38. It is to be noted that accused No.6, 7 and 8 claim that they were not the proprietor of the firms, of which the alleged ITR forms through them were submitted to Income Tax Department and on the strength of it refund amount is claimed. The accused No.1 and 2 prepared forged documents and behind back of them filed Income Tax Returns in the Income Tax office. They have no idea about it. So they claimed that accused No.1 and 2 are only responsible for the fraud in question. 39. Ld. advocate for the accused No.1 and 2 submits that accused No.1 is the Chartered Accountant and was required to file thousands of Income tax return on behalf of individual, companies, firms and other association. As per the practice the assessee was required to sign at the end of form and on verification. The statements regarding the income and expenditure was to be prepared on the basis of material provided by the respective assessee including TDS certificates. The Chartered Accountant while submitted the Income Tax Returns would not know about the authenticity of the documents submitted by the assessee alongwith the Income Tax Returns. In the present case accused No.1 Chartered Accountant prepared....
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....the fictitious persons, so common address is cited in TDS certificates as well as ITR forms. Furthermore, PW­18 K.S. Padmanaman testified that address cited by alleged fictitious person Haresh Dhameja, Room No.39, Maniyar Building, Carnak Bunder, Mumbai is not the resident of the same address, as the said address is of association. Further he testified that no member of association was allowed to use the office address of association to receive their letter of correspondence. 41. It is to be noted that the accused No.1 and 2 are claiming Haresh Dhameja was the existing person. On the other hand, it is the case of prosecution that alleged Dhameja was fictitious and non existing person. On behalf of accused the Death Certificate of Haresh Dhameja is placed on record, which indicates that he was died on 05.10.2006. The Death Certificate is placed on record on 21.09.2019. For the sake of argument though we assumed that he is existed person at the relevant time, but no evidence is forthcoming on behalf of accused No.1 and 2 to show that in fact they have verified the requisite documents for the preparation of ITR form for accused Haresh Dhameja. On the contrary, the prosecution p....
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....facts of the present case would be decided independently. Further Ld. advocate for the accused placed reliance in the case of Rajendra Prasad Vs. C. Sadashiva Reddy, 2004­(110)­CRLJ­0242­AP. It is to be noted that the said case is arising out of fraud on the strength of bogus income tax returns, wherein accused are acquitted. On facts the cites case is distinguishable so same is not assist to the accused. Accordingly, accused could not get the assistance of said judgment to get the acquittal of them. 45. The submissions advanced on behalf of accused No.1 to 4 and 6 to 8 that prosecution has not established any circumstances to show that accused entered into the criminal conspiracy to commit the offence of cheating to the Income Tax Department. In support of their submission they placed reliance in the case of State of Tamilnadu through Superintendent of Police CBI/SIT Vs. Nalini and Ors., AIR 1999 SC 2640 ; Kehar Singh and Ors. Vs. State (Delhi Adminsitration) (1988) 3 SCC 609 ; Prabhakar N. Shetty Vs. State of Maharashtra in Criminal Application No.2769 of 1989 decided by Hon'ble Bombay High Court on 19.12.1989 ; State of Bihar Vs. Ram Kishore Singh @ Rama Singh....
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....nt. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120­B read with the provision to Sub­section (2) of Section 120­A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120­B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in Section 120­B." 49. The dicta indicates that for the purpose of establishing for proving the charge of conspiracy, it is not necessary that there should be knowledge of who are the other conspirators and of the detail stages of conspiracy. The necessary requisite is knowledge of the main object and purpose of conspiracy. It is ....
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....s transferred from the account of accused No.3 on 19.08.1997. Further from the account of one Shri Haresh Dhameja almost all income tax refund amount i.e. Rs. 33,000/­ and Rs. 2,500/­ respectively credited to the account of accused No.2. Not only this the handwriting expert proved the handwriting of accused No.2 on cheques and pay-­in­-slip. So this factum indicates that accused No.2 is the beneficiary of crime proceeds. Ld. advocate for the accused No.2 submits that accused No.3 as well as Haresh Dhameja are the friends of deceased accused No.5. Accused No.3 and Haresh Dhameja might have taken the loan amount from accused No.5. Accused No.3 and 5 returned the said loan in the account of accused No.2. Further when genuinely TDS amount is credited to the account of accused No.3 and Haresh Dhameja then no question arose to whom they transferred the amount. It is to be noted that some general reference that brother of accused No.2 might have given loan amount and in lieu of that they returned to accused No.2 is not sufficient. There must be some probable circumstance should be on record to support this factum. Same is not forthcoming. On the contrary, the evidence indi....
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....ant Mhatre, who proved the factum that the income tax returns filed pertaining to the accused were not entered in the authentic register of Income Tax office. The numbers which were cited on the ITR forms in question were already taken to another assessee. He further testified that accused No.9 used to process the income tax returns. Accused No.2 Hoor Jhurani used to visit the table of accused No.9 to handover the income tax returns and accused No.9 used to keep it with him. Before evolution of evidence of these witnesses, I would like to refer the evidence of PW­5, which is relied by the prosecution. 55. PW­5 Alexander Chandy, who was working in the Income Tax Department testified procedure of process of Income Tax Returns filed by the assessee. According to him, on the receipt of Income Tax Return in the department the return was processed under Section 143(1)(a) of the Income Tax Act by the concerned Income Tax officer, which bears the signature of himself on it. After processing the return it was given to calculation clerk, who used to work out the tax payable or refund payable. Then it is again put up before Income Tax officer for a signature thereby intimation was ....
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....es by satisfactory evidence that the TDS certificates on the basis of which ITR forms and documents were prepared by accused No.1 are forged one. Further though we assume that TDS certificates are genuine one but the proprietor of firms cited in the TDS Certificates are the fictitious persons. The role played by accused No.1 is that accused No.1 has prepared forged balance sheet and documents and cited false information thereto. The substantial amount of crime proceeds is credited to the account of accused No.2, who is the assistant of accused No.1. Furthermore, an amount of Rs. 1,000/­ is credited to the account of accused No.1 from the account of accused No.3. Further one circumstance is forthcoming on record that accused No.3 has credited Rs. 50,000/­ in the bank account of accused No.1 and his wife on 04.11.1997. Ld. prosecutor submits that the handwriting on the pay-­in­-slip Exh.196 is in the handwriting of accused No.3. So the crime proceeds which is credited in account of accused No.3 is diverted in the bank account of accused No.1. According to the Ld. advocate for accused No.1 the said amount might have given by accused No.1 to accused No.3 to deposit in t....
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.... 60. Furthermore, the evidence on record clear cut indicates that the TDS certificates attached to the ITR are forged by the accused with dishonest intention to cheat the Income Tax Department. The evidence further indicates that accused No.1, 2 and 4 did the act of forgery in respect of TDS Certificates as well as Income Statement, Balance Sheet attached to the ITR Forms. The Income Tax Returns were prepared and submitted in the name of accused No.3, 6 to 8 and Haresh Dhameja. The income tax refund amount is credited in the account of accused. TDS Certificates and documents attached to Income Tax Returns are forged one, used for the purpose of cheating and used those documents as a genuine, which they knew that at the time when used by them to be a forged documents. Further forged TDS certificates and balance sheets purported to be a valuable security, so accused committed forgery of valuable security. Thus, ingredients to constitute offence punishable under Section 120­B of IPC, 420, 467, 468, 471 r/w 120­B of IPC are made out against accused No.1 to 4 and 6 to 8. 61. Thus, in the light of above discussion the evidence led on behalf of prosecution is consistent and suf....
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....oss of approximately Rs. 3 lacs to the Income Tax. The value of it as on today is more than Rs. 20 lacs. 68. Ld. PP for CBI submits that it should be a decisive reflection of social consciousness of the society. The justice demands that the Court should impose sentence befitting the crime so that Courts reflect public abhorrence of the crime. The Court must not only consider the right of accused but also should consider the right of society at large. The accused are convicted for the economic offence which detrimental to the financial health of the country having adverse bearing to the development of the country, so he claimed imposition of maximum sentence as prescribed by the law. 69. In the instant case, accused No.1 being the chartered accountant with the aid and assistance of accused No.2 committed the offence in league with accused No.3, 4, 6 to 8 as an instrumental and thereby cheated to the Income Tax Department. It is also to be mentioned that accused No.3, 4, and 6 to 8 having minimal beneficiary of the fraud amount, but the fact remains that the entire conspiracy hatched by accused No.1 and accused No.2 and they are the ultimate beneficiary of crime proceeds. Consi....