CRM No.A-1828-MA of 2014 along with 10 connected matters 1 IN HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM Nos. A-1828, 1830, 1831, 1833, 1842, 1844, 1873 to 1875, 1905- MA of 2014 and 70-MA of 2015 T.D.Gandhi, Income Tax Officer ...Petitioner Versus Sudesh Sharma ...Respondent Date of Decision:-9.2.2015 CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Yogesh Putney, Advocate for petitioner. Mehinder Singh Sullar, J. (Oral) As identical questions of law and facts are involved, therefore, I propose to dispose of indicated petitions for leave to appeal, arising out of similar impugned judgments of acquittal of same date between same parties, vide this common order to avoid repetition. However, conspectus of facts, which needs necessary mention for deciding core controversy, involved in present petitions, has been extracted from (1) CRM No.A-1828-MA of 2014 titled as T.D.Gandhi Income Tax Officer Vs. Sudesh Sharma for ready reference in this context. 2. epitome of facts and evidence, unfolded during course of trial, culminating in commencement, relevant for disposal of instant petitions for leave to appeal and emanating from record, is that Sudesh Sharma, Advocate respondent-accused was practicing on income tax side. main assessee Ashok Kumar Sharma, Railway contractor (for brevity main assessee ) had engaged him for purpose of submission of his income tax returns for assessment year 1988-89, supplied him requisite documents, including TDS certificates 1 of 6 ::: Downloaded on - 01-01-2019 10:11:33 ::: CRM No.A-1828-MA of 2014 along with 10 connected matters 2 in this regard. Consequently, respondent had filled income tax return on behalf of main assessee and claimed refund of Rs.3497/- on basis of TDS certificates purported to have been issued by Senior Divisional Accounts Officer, Northern Railway, New Delhi. complainant-Income Tax Officer (for short ITO ) claimed that in wake of verification, TDS certificates were found not to be genuine and refund was wrongly claimed by main assessee. 3. Leveling variety of allegations and narrating sequence of events in detail, in all, according to complainant, main assessee has wrongly claimed refund of Rs.3497/- on basis of wrong TDS certificates submitted in his income tax return, through respondent-accused Sudesh Kumar, Advocate. In background of these allegations, complainant ITO had instituted different complaints, not against main assessee, but against Sudesh Sharma, Advocate in manner described here-in-above. Similar complaints were also filed by complainant-ITO against respondent-accused with respect to different returns of relevant assessment years of main assessees, in other connected matters. 4. Having completed all statutory formalities, ultimately, respondent-accused was ordered to be summoned, by virtue of summoning order dated 29.3.1993 by trial Court. Consequently, he was charge sheeted for commission of offences punishable u/ss 418, 465, 468 & 471 IPC. contents of charge sheets were read over and explained to respondent, to which, he pleaded not guilty and claimed trial. Thereafter, case was slated for evidence of complainant by trial court. 5. Having closed evidence of complainant, statement of respondent-accused was recorded as contemplated under Section 313 2 of 6 ::: Downloaded on - 01-01-2019 10:11:33 ::: CRM No.A-1828-MA of 2014 along with 10 connected matters 3 Cr.P.C. entire incriminating evidence was put to enable him to explain any circumstances appearing on record against him. However, he had stoutly denied evidence of complainant in its totality and pleaded false implication. He has also tendered into defence evidence copy of plaint (Ex.D1). 6. Sequelly, taking into consideration totality of peculiar facts & evidence on record, respondent-accused was acquitted, by means of impugned judgments of acquittal dated 16.8.2014 by trial Court. 7. Likewise, complainant-ITO did not feel satisfied and preferred instant petitions for leave to appeal against impugned judgments of acquittal, invoking provisions of section 378(4) Cr.PC. That is how I am seized of matter. 8. After hearing learned counsel for petitioner, going through record with his valuable help and after deep consideration over entire matter, to my mind, there is no merit and present petitions for leave to appeal deserve to be dismissed in this respect. 9. Ex facie argument of learned counsel that since there was sufficient evidence on record, so, trial Court has committed legal mistake to acquit respondent-accused, by way of impugned judgments of acquittal, sans merit. 10. At very outset, it may be added here that jurisdiction of appellate Court in case of acquittal was determined by Hon'ble Apex Court in celebrated judgment of Ghurey Lal v. State of U.P. 2008(10) SCC 450. Having considered scope of sections 378, 386 Cr.PC and line of various judgments on point, it was ruled as under (Para 75):- 75. In light of above, High Court and other appellate courts should follow well settled principles crystallized by number of judgments if it is going to 3 of 6 ::: Downloaded on - 01-01-2019 10:11:33 ::: CRM No.A-1828-MA of 2014 along with 10 connected matters 4 overrule or otherwise disturb trial court's acquittal: 1. appellate court may only overrule or otherwise disturb trial court's acquittal if it has "very substantial and compelling reasons" for doing so. number of instances arise in which appellate court would have "very substantial and compelling reasons" to discard trial court's decision. "Very substantial and compelling reasons" exist when: i) trial court's conclusion with regard to facts is palpably wrong; ii) trial court's decision was based on erroneous view of law; iii)The trial court's judgment is likely to result in "grave miscarriage of justice"; iv) entire approach of trial court in dealing with evidence was patently illegal; v) trial court's judgment was manifestly unjust and unreasonable; vi) trial court has ignored evidence or misread material evidence or has ignored material documents like dying declarations/ report of Ballistic expert, etc. vii) This list is intended to be illustrative, not exhaustive. 2. Appellate Court must always give proper weight and consideration to findings of trial court. 3. If two reasonable views can be reached - one that leads to acquittal, other to conviction - High Courts/appellate courts must rule in favour of accused. 11. Above being legal position and evidence on record, now short & significant question, though important, which invites immediate attention of this Court and arises for determination in instant petitions is, as to whether trial Court has committed such jurisdictional error or patent illegality to acquit respondent-accused and there are substantial and compelling reasons to set aside impugned judgments of acquittal by this Court or not ? 12. Having regard to contentions of learned counsel for petitioner, to me, answer must obviously be in negative, as complainant-ITO has miserably failed in this relevant connection and present petitions for leave to appeal deserve to be dismissed for reasons mentioned here-in-below. 4 of 6 ::: Downloaded on - 01-01-2019 10:11:33 ::: CRM No.A-1828-MA of 2014 along with 10 connected matters 5 13. As indicated here-in-above, bare perusal of record would reveal that complainant-ITO claimed that main assessee had submitted income tax return for assessment year 1988-89 claiming refund of Rs.3497/- based on false TDS certificate through respondent- accused Sudesh Sharma, Advocate. learned counsel for petitioner has miserably failed to point out that how and in what manner, respondent can be held liable for preparing false documents, which were previously supplied to him by main assessee. mere fact that he had prepared income tax return on behalf of assessee, ipso facto, is not ground, muchless cogent, to hold respondent-accused guilty for commission of pointed offences in absence of main assessee, as contrary urged on behalf of petitioner. 14. Strange enough, complainant ITO had not filed any complaint against main assessee and only arrayed respondent Advocate as accused, who was stated to have submitted income tax returns of relevant years on his behalf, for reasons best known to him (ITO). That means, respondent-accused had only submitted income tax return along with all indicated documents on behalf of main assessee. In other words, all TDS certificates, which were purported to have been issued by Northern Railway, were supplied by main assessee to his Advocate. It was main assessee, who had procured documents from concerned authorities and claimed refund. Not only that, in case, main assessee had claimed refund on basis of forged TDS certificates, then, Income Tax Authorities were competent and well within their jurisdiction to reject his claim of refund and even to impose penalty under relevant provisions of Income Tax Act. Thereafter, 5 of 6 ::: Downloaded on - 01-01-2019 10:11:33 ::: CRM No.A-1828-MA of 2014 along with 10 connected matters 6 aggrieved party had right to file statutory appeal in this relevant connection. Be that as it may, therefore, respondent-accused, who was Advocate, had just submitted income tax return on behalf of main assessee, cannot possibly be and indeed could not legally be held liable for criminal prosecution for procuring documents by main assessee in order to attract penal provisions of offences in question, as contrary urged on behalf of complainant-ITO. 15. There is yet another aspect of matter, which can be viewed entirely from different angle. What cannot possibly be disputed here is that complainant-ITO had earlier filed similar 45 complaints, in which, respondent was acquitted, vide different judgments of acquittal by trial Court. petition for leave to appeal, bearing CRM No.A-959 MA of 2014 and 44 other connected petitions titled as Income Tax Officer & Another V. Sudesh Sharma were dismissed, by means of detailed judgment dated 10.11.2014. Meaning thereby, controversy involved in present petitions is squarely covered and decided by way of earlier judgment dated 10.11.2014 of this Court. Therefore, I see no reason to grant leave to appeal against impugned judgments of acquittal in these cases as well in similar obtaining circumstances of these cases. 16. No other legal point, worth consideration, has either been urged or pressed by learned counsel for petitioner. 17. In light of aforesaid reasons and thus seen from any angle, as there is no merit, therefore, instant petitions for leave to appeal are hereby dismissed as such as well. (Mehinder Singh Sullar) Judge 9.2.2015 AS 6 of 6 ::: Downloaded on - 01-01-2019 10:11:33 ::: T.D.Gandhi, Income-tax Officer v. Sudesh Sharma