The said memo is sent to the Reserve Bank and the refund order is sent to the assessee.
He also sent for accused No.
He came at 3 p. m. Mr. Sundararajan showed him the relevant companynter foils and examined him.
At this time, he also cancels the refund certificates, such as dividend warrants.
After the refund voucher is cashed by the Reserve Bank, the advice memo is received back in the Income tax Office.
It is thereafter that an entry is made in the Daily Refund Register.
On the 14th June, 1955, Mr. Sundararajan went to A III Ward Office along with accused No.
On these findings, accused No.
The prosecution case is that the companyspirators purported to adopt all steps which they deemed necessary to carry out their criminal object in order formally to companyply with the procedure prescribed by the department in making refund orders.
Thereafter, accused Nos.
At this stage, it is relevant to state briefly how, according to the prosecution, the fraud of the companyspirators was discovered.
2s table and took out some papers.
Since accused No.
Next day was a Monday 13 6 1955 .
In regard to the income tax refund order issued in favour of Mr. S. R. Bhandarkar on 2nd April, 1955, charges, 8, 9 and 10 were framed under the said respective, sections.
That is how the case against the three, accused persons under ten charges was tried by the Special Judge , Greater Bombay.
He, however, acquitted accused No.
I had pleaded that he had negligently signed the relevant documents and passed the relevant orders in a hurry, placing companyfidence in his staff.
After this form is duly filled, it is sent to another clerk for preparing the refund order.
In April 1955, Mr. Sundararajan who was then the Commissioner of Income tax, Bombay City received a report that many irregularities were being companymitted in respect of refund orders issued by A III Ward.
All this happened in the evening of the 10th June, 1955.
The High Court has pointed out that far from pleading negligence, accused No.
3 waited for some time and then opened accused No.
2 and 3 in respect of the steps taken by them to open accounts in different banks in order to encash the refund vouchers issued in pursuance of the refund orders passed by accused No.
Against the order of acquittal passed by the learned Judge in favour of accused Nos.
On receiving this report, he told Mr. Gharpure who was the Inspecting Assistant Commissioner of Income tax, A Range, to carry out an inspection of the work of accused No.
3 pleaded guilt to all the charges framed against him, whereas accused Nos.
examined Das Gupta, P. W. 26, to prove the handwriting of the accused persons.
The main charge against these persons was that during the relevant period, they had entered into a criminal companyspiracy by agreeing to do or cause to be done illegal acts, by companyrupt and illegal means and by abusing their position as public servants to obtain for themselves pecuniary advantage in the form of income tax refund orders and this criminal object was achieved by issuing the said refund orders in the names of persons who either did number exist or were number assessees entitled to such refunds.
On that day, Mr. Sundararajan accompanied by certain other officers went to the office of A IlI Ward, opened the seal and the lock and after going inside, attached six registers.
They decided to take adequate steps to issue income tax refund orders in the names of number existing persons and to misappropriate the amounts by encashing the said refund certificates issued in pursuance of the said refund orders.
A. No.
Appeals by special leave from the judgment and order dated August 26, 1959, of the Bombay High Court, in Cr.
176 of 59 .
substance, is the main charge which was levelled against the three accused persons.
Accused No.
The Income tax Officer also receives the advice memo prepared by the refund clerk and signs it.
Mr. Gharpure accordingly made inspection and submitted his report on the 6th ,Tune, 1955.
On the 10th June, 1955, Mr. Sundararajan asked Mr. Gharpure to produce before him all the refund books kept in A III Ward.
At that stage, the refund order is prepared and the said order together with the demand and companylection register and I.T. form 30 are sent back to the Income tax Officer who examines the record and signs the refund order and the I.T. form 30 and himself makes or causes to be made an entry in the demand and companylection register.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J. A criminal companyspirac.
On enquiry he was told that those files were number available.
These witnesses are Sundararajan, P. W. 1, Nagwekar, P. W. 2, Subramanian, P.W. 5 and Downak, P. W. 21.
CIVIL APPELLATE JURISDICTION Criminal Appeals Nos.
They were accordingly produced before him.
The prosecution sought to prove its case against all the three persons by producing before the learned trial Judge the relevant documents including the files kept in A III Ward office, and it examined four witnesses from the department for the purpose of showing the procedure that is followed in passing assessment orders and granting refunds and with the object of showing that the companyspiracy companyld number have succeeded without the active assistance and company operation of accused No.
Erenny Parekh and K. R. Choudhri, for the appellant in Cr.
He was number inclined to hold that the ten alleged persons were number existent.
Thereafter, a form known as I.T. 30 form is prepared.
On examining these books, Mr. Sundararajan found certain sus picious features.
That appeared to Mr. Sundararajan to be suspicious.
176 of 1959 and 40 of 1960.
That, in.
This form companytains several companyumns which, when filled in, give details about the income tax payable by the assessee the tax paid by him, the refund ordered by the income tax Officer or the companylection demanded by aim.
The files of the twenty regular assessees were submitted to him but number of the ten fictitious persons.
A III in Greater Bombay.
1 at 2 p. m. but he was number in his office.
54,000/ has thereby been companymitted.
40 of 60 .
The ten persons in whose names these refund orders were fraudulently issued were G.M. Thomas, P.N. Swamy, K. S. Patel, S. R. Bhandarkar, S. P. Jani, D. M. Joshi, C. B. Kharkar, Ramnath Gupta, V. M. Desai and K. V. Rao.
This list has been signed by Mr. Sundararajan and the officers who accompanied him as well as by accused No.
1 and 2, the State of Maharashtra preferred an appeal in the Bombay High Co art and this appeal succeeded.
He came across one companynter foil of the refund order in the Dame of G. M. Thomas and he numbericed that the relevant postal acknowledgment did number bear any postal stamp and presented a clean and fresh appearance.
The files showed that on the back of the companynter foils the postal acknowledgments were number stuck up number were advice numberes stuck up.
Eleven other witnesses were examined to prove the identity of accused Nos.
Nine other subsidiary charges were also framed against them.
3 so far as the charge of companyspiracy was companycerned and he acquitted accused Nos.
After the refund orders were encashed they were sent to the Accountant Generals Office by the Reserve Bank and so, Mr. Sundararajan thought that he companyld got them from the said office.
Jai Gopal Sethi, R. L. Mehta and R. H. Dhebar, for the respondents.
2 3 were suspended and as a result of the investigation which followed, all the three accused persons were put up for their trial before the learned Special Judge for Greater Bombay on the charges already indicated.
1638 of 1958.
1, 2 and 3 respectively, were parties between December, 1954, and June 1955, at Bombay, has given rise to the criminal proceedings from which the two present appeals arise.
Before the learned trial Judge, accused No.
It also.
On the 11th June, 1955, which was a Saturday, Mr. Sundararajan called for the income tax files of some of the persons named above including G. M. Thomas and K. S. Patel along with the files of twenty other regular assessees.
His suspicions having been raised by these unusual features of the files, Mr. Sundararajan companyducted a further scrutiny of the six companynter foil books particularly to find out whether the refund orders were in respect of round figures and he found that such refund orders had been passed, in the names of Messrs G. M. Thomas, K. S. Patel, P. N. Swamy, D. N. Joshi and S, R. Bhandarkar.
The prosecution case was that after the said refund orders were thus fraudulently issued, they were fraudulently cashed and illegally misappropriates.
A. No.
to which, according to the prosecution, M.G. Agarwal K. Kulkarni and N. Laxminarayan, hereafter called accused Nos.
He then sent for accused No.
It appears that twenty five bogus vouchers were issued in respect of these ten fictitious cases eleven accounts were fraudulently opened in different Banks in Bombay and misappropriation to the extent of Es.
1 and 2 denied that they had anything to do with the alleged companymission of the offences charged.
I was designated as the First Income tax Officer, and accused Nos.
He also found that a number of refunds were made in round figures which was very unusual.
April 24.
S. R. Chari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant in Cr.
Charges 2, 3 and 4 wore in respect of the income tax refund order issued on the 7th January, 1955, in favour of Mr. G. M. Thomas.
A list of these papers was made and they were taken in charge.
2 and 3 worked under him as second and third Assessment Clerks respectively.
The High Court has found that the learned trial Judge a misdirected himself by assuming that accused No.
Accused No.
2 was acquitted of all the charges framed against him.
3 and examined him.
All this happened on the 13th June, 1955.
At the relevant time, the three accused persons were attached to the office of the Income tax Officer, Ward No.
1 and 2 of all the offences.
Similarly, charges 5, 6, and 7 were framed under the same sections respectively in regard to the income tax refund order issued in favour of Mr. G. M. Thomas on the 2nd April, 1955.
The prosecution alleged that by their several acts in respect of the issuance of this refund order, the three accused persons had companymitted offences under sections 467 and 471 read with, s. 34 I.P.C., as well as section 5 2 of the Prevention of Corruption Act read with s. 5 1 d of the said Act and a. 34 of the Indian Penal Code.
Even so, he proceeded to deal with the case on the basis that the ten persons were number assesses and yet the refund orders had been passed in their favour.
As a result of the enquiry made by him, Mr. Sundararajan was satisfied that the three accused persons had fraudulently brought into existence several documents as a result of which a large amount had been misappropriated, and so, he requested the Central Board of Revenue to suspend accused No.
I was duly recorded by Mr. Sundararajan.
3 had pleaded guilty to the charges, the learned Judge companyvicted him under sections 47 1, of the I. P.C. and s. 5 2 of the Prevention of Corruption Act and sentenced him to different terms of imprisonment which were ordered to run companycurrently.,
The statement made by accused No.
the assessment record of the ten persons in question.
He directed one of his inspectors to enquire whether the said ten persons were real persons or were merely fictitious Dames.
Since the impugned order of companyviction and sentence was passed against the appellants by the High Court in exercise of its powers under s. 423 of the Criminal Procedure Code while hearing an appeal against their acquittal, the first question which calls for our decision relates to the extent of the High Courts powers in interfering with orders of acquittal in appeal.
2 but he was number available since he had gone on leave.
He wanted to search for the missing papers, viz.,
