HC set-aside conviction of Income Tax Official, Ors

26/09/2018

JAMMU, Sept 25: In an appeal filed by against the judgment of CBI court whereby CBI Court convicted 10 accused including income tax official, Justice MK Hanjura after hearing Sr. Adv Sunil Sethi with Adv Veenu Gupta appearing for the appeal, set-aside the judgment and acquitted the appellant namely Sudershan Kumar s/o Dhanpat Lower Division Clerk in CIT Jammu, Kishore Sharma s/o Diwan Chand, R S Mehta s/o Sh. Roop Singh, Sohan Singh s/o Sh. Ranjit Singh, Rajesh Kumar Sharma s/o Sansar Chand Sharma, Tilak Raj Sharma s/o Onkar Chand Sharma, Raj Kumar Dogra s/o Sanjhi Ram Dogra, Amit Pal Singh s/o Suraj Pal Singh, Shekhar Dhar s/o M K Dhar and Tulsi Thakur s/o Shiv Lal Thakur.
According to the CBI case On the basis of reliable information received by the CBI FIR No: RC0042003/A003 was registered on 23.6.2003 against accused Sh. Sudershan Kumar (A1), LDC, Office of Commissioner Income Tax Jammu, Jia Lal (A4) Peon, Rajesh Kumar (A6) alias Raju Chowkidar of the Income Tax Office, Jammu, Rajinder Singh Mehta (A3) and Sh. Kishore Sharma s/o Dewan Singh(A2) and others not named for the offences punishable under section 467, 468, 471,409, 419, r/w Section 120 B RPC & 5(2) r/w 5(1)(c) & (d) of J & K PC Act 2006. As per the said FIR the information which was received from the reliable source was to the effect that the accused Sudershan Kumar, Jia Lal and Rajesh Kumar had entered into criminal conspiracy with accused Rajinder Singh Mehta, Kishore Sharma and others at Jammu during the year 2002-03 and misappropriated the refund amount which was due to various income Tax Assesses by opening fictitious bank accounts on the basis of forged documents and in pursuance of the said criminal conspiracy accused A1, A4 & A6 by abusing their official positions as public servants handed over undelivered income tax refund orders and cheques to A3 and A2 who got opened fictitious bank accounts in the names of said Income Tax Assesses in various banks and got the amount of such Income Tax refund orders/cheques encashed. The amounts so encashed was 1,57,988/- . The undelivered refund orders/cheques were collected from the receipt counter of the Income Tax department by A4 & A6 and were handed over to A1 by A4 & A6. A1 distributed the shares received by him from A3 and A2 to A4 and A6 for their service. The said amount of refund cheques was misappropriated by opening fake accounts in the name of the refund assesses by A3 and A2 in different banks. A3 and his associates encashed on the basis of such bogus account an amount of Rs. 84,188/-. A2 and his associates encashed Rs. 73,800/- and the total amount which was encashed was Rs. 1,57,988/-. The investigation was entrusted to Sh. S.K.Peshin Addl. Superintendent of Police, CBI and during the course of investigation it was found that accused was working as LDC in the office of Commissioner of Income Tax in 2002 and was known to other accused who used to visit him for getting the refund of income tax return filed by him on account of excess tax deducted from him by M/s M Way Corporation. During his meeting with A1 he was told that large number of income tax vouchers are being received in the income tax department undelivered and no action was required to be taken as the said income tax vouchers pertained to Assesses who were no longer posted in J&K and said vouchers were like cheques which could be encashed after opening forged account. Sudershan Kumar, agreed to the said proposal and A3 also agreed to the proposal of Sudershan Kumar.As per the procedure the Income Tax refund vouchers were being sent to the assessees on the addresses mentioned in the Income tax return out of which some were returned back because of incomplete address. Out of twenty vouchers four Income Tax Refund Vouchers were received by accused Sudershan Kumar directly from the Postal Authorities and the remaining 16 were received by Rattan Chand Khajuria, Govind Ram, Girdhari Lal and others and no account was kept in respect of these vouchers received back as undelivered. A1, Sudershan Kumar was also receiving Income Tax Vouchers from the office of Girdhari Lal. After completion of investigation challan was presented. Justice MK Hanjura after hearing both the sides observed that the specimen handwritings/signatures of the accused/appellants in this case are alleged to have been obtained in the presence of civilians, who as is repeated here were the employees of banks/Insurance Companies. In this behalf, reference can usefully be made to the provisions of Sections 47 and 73 of the Evidence Act. It has to be viewed and judged as to who can take the specimen handwriting/signatures for making comparison between the admitted and the questioned ones. The specimen handwriting/ signatures can be obtained by the Court when some proceedings are pending before it. However, when no proceedings were pending before the Court and the case was still under investigation and, therefore, the same could have been obtained in the presence of the Magistrate or at least in presence of a Gazetted Officer, so as to lend credence and credibility to the proceedings but this has not been done by the Investigating Agency. Therefore, the process of obtaining specimen handwritings/ signatures of the accused/appellants by the investigating agency in the instant case is inappropriate and reflects adversely upon the manner in which the investigation of the case has been conducted which appears to be shabby and slippery. The very manner in which the specimen handwritings/signatures of the appellants/accused have been taken is questionable, and therefore the opinion of the handwriting expert with regard to these specimen handwritings/signatures cannot be relied upon and pales into insignificance. Looking at the quality of the evidence led by the prosecution for connecting the appellants/accused with the opening of the fake accounts, it cannot be stated that the accused/appellants were responsible for opening of these accounts. From the foregoing discussion, it is absolutely clear that the prosecution has failed to prove not only the charge that the main accused Sudershan Kumar had received the Income Tax Refund Vouchers that are the subject matter of the instant case but also that it has failed to prove its case by any cogent, convincing, credible and reliable evidence to the effect that the other accused/appellants were responsible for opening of the fake accounts. For these reasons, the conclusion arrived at by the trial Court appears to be based upon insufficient and unreliable evidence. The impugned judgment of the trial Court, therefore, deserves to be set aside. The same is, accordingly, set aside and the appeals are accepted. The appellants/accused are acquitted of the charges for which they were tried by the trial Court. JNF

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