In the case of Emperor vs. Bankatram
Lachiram, reported in (1904) 6 Bom. L.R. 379, it is observed as under:
“... It is a well known rule of law applied by eminent Judges to
cases of perjury arising out of contradictory statements, that the
Court dealing with them should not convict unless fully satisfied
that the statements are from every point of view irreconcilable,
and if the contradiction consists in two statements opposed to
each other as to matters of inference or opinion on which a man
may take one view at one time and a contrary view at another,
there can be no perjury, unless he has on oath stated facts on
which his first statement was based and then denied those facts
on oath on a subsequent occasion.”
Thus, if at all two contrary statements do not plug in inference leading
third possibility, then the statements remain contrary only and neither
of the statements be said as false.
CRIMINAL APPEAL NO. 363 OF 1994
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
K.K. Gupta
Incometax Officer,
AII Ward,
Mumbai.
vs.
Dev Kumar Agarwal
CORAM : MRS. MRIDULA BHATKAR, J.
.
PRONOUNCED ON : 24th July, 2014.
Citation; 2014 ALLMR(cri)3869
This Appeal is directed against the judgment and order dated
22nd February, 1993 passed by the Additional Sessions Judge, Greater
Bombay thereby setting aside the judgment of Additional Chief
Metropolitan Magistrate, 19th Court, Esplanade, Mumbai and acquitting
respondent no. 1 from the charges under section 193 read with 191 of
the Indian Penal Code.
2.
The appellant is an Incometax Officer through whom the
incometax department has filed this Appeal. One K.K. Gupta, 1 st
Incometax Officer of AII Ward, Mumbai had lodged the complaint
against the respondent for committing offence of perjury under section
193 r/w. 191 of the Indian Penal Code. On 8 th January, 1975 said
Incometax officer along with his staff had searched the residential
premises of respondent no. 1 at Ocean View, Warden Road, Mumbai.
During the search, they found huge quantity of silver and gold coins,
miniature paintings, foreign currency notes. The coins were valued
Rs.2,67,000/. The miniature paintings were valued Rs.40,000/. At
the relevant time, the Incometax officer recorded his statement under
section 132(4) of the Incometax Act, 1961 (hereinafter referred to as
“The Act”). Under the said section, he was legally bound to state on
oath True facts. The respondent no. 1 stated on oath that these
miniature paintings and gold & silver coins did not belong to him but it
belonged to one Mr. Kalyanmal. The said statement was accepted by
the Incometax Officer at the time of search. Subsequently, on 29 th
September, 1975 respondent no. 1 submitted the Incometax returns of
the A.Y. 197576. disclosing the income of Rs.9,21,350/. In the said
incometax return, respondent no. 1 disclosed the value of gold & silver
coins as Rs.2,67,000/, value of foreign currency notes as Rs.5,000/
and value of miniature paintings as Rs.40,000/ as belonged to him, so
he paid incometax on value of these articles. The Incometax
authority, therefore, found that as he has paid incometax on the value
of these articles and thus claimed ownership, his previous statement
made on 10th January, 1975 is false and therefore, a private complaint
was filed before the learned Magistrate for perjury. The Incometax
officer Mr. K.K. Gupta and other witnesses were examined by the
prosecution and after assessing the documentary as well as oral
evidence, the learned Chief Metropolitan Magistrate convicted the
accused for the offence punishable under section 193 r/w. 191 of the
Incometax Act and thereby sentenced him to suffer S.I. till rising of the
Court and to pay fine of Rs.25,000/. i/d. to suffer further R.I. for 6
months. The said judgment of conviction was challenged before the
Sessions Court, Greater Mumbai in Criminal Appeal No. 103 of 1991.
The Sessions Judge accepted the defence of the appellant and set aside
the said judgment. Being aggrieved by the said decision of the Sessions
Court, this Appeal against the acquittal is filed by the Incometax
Department.
3.
The offence in question is of perjury and therefore, the issue
before the Court is whether a statement made by the respondent dated
9th January, 1975 which is marked as Exhibit P7 is a false statement or
not? It is an admitted fact that Incometax department while searching
the premises on the night intervening 9 th January and 10th January,
1975, gold & silver coins, foreign currency notes and miniature
paintings were found at the residence of respondent no. 1. At that
time, The respondent made a statement on oath under section 132(4)
of the Incometax Act before the Authority that the articles belonged to
Mr. Kalyanmal and thereafter while filing the returns in the month of
September, 1975, he paid the income tax on the value of the said
articles is not disputed under section 132(4). A person is legally bound
to make a true statement before the incometax authority, is also
accepted by both the parties.
The learned counsel Mr. Suresh Kumar has submitted that as per
4.
the procedure followed under the Incometax Act, a person in whose
custody the amount/articles are found, is required to disclose whether
it belongs to him or the name of the person who is the owner of the
said property. In the present case, the respondent earlier had informed
the officer that the property belonged to one Mr. Kalyanmal and the
said statement was accepted as true. However, when he filed the
returns after 9 months, he made a different statement and paid the
incometax on the said property. He informed that he is not aware of
the address of Kalyanmal, as Kalyanmal had come to him through some
dealer and left the articles with him for his approval. The learned
counsel has submitted that it was the responsibility of the respondent
to produce Kalyanmal or give the address of Kalyanmal to enable the
authority to search for Kalyanmal and the authority could have
imposed the incometax of the said property on Kalyanmal. However,
respondent no. 1 paid the incometax on the said property and thus, he
accepted that he is the owner of those valuables. The learned counsel
argued that it is the responsibility of the prosecution to prove the case
and thus with the help of the witnesses especially PW1 K.K. Gupta and
also on the basis of documents such as Incometax returns (P1) &
statement dated 10th January, 1975 (P7), the prosecution has proved
the case on all counts against respondent no. 1. He submitted that the
judgment given by the learned Sessions Judge is illegal and not
consistent with the legal provisions of criminal law as well as the
5.
Incometax Act, therefore,it is to be set aside.
The learned senior counsel Mr. Jagtiani has supported the
judgment of the Sessions Court and submitted that respondent no. 1 is
innocent and he has not made any false statement. He relied on the
admission given by PW1 in paragraph 5 of the deposition. The officer
has stated that he came to the conclusion that the statement of the
appellant dated 10th January, 1975 regarding coins, miniature paintings
and foreign currency notes is false in view of the return for the A.Y.
197576 filed by the appellant on 29th September, 1975 i.e. Exhibit P1.
He further admitted that it is true that there is no other basis to come
to the conclusion that the statement dated 10 th January, 1975 given by
the appellant before him was false except the return filed by the
accused Exhibit P1. The learned counsel submitted that there is no
other basis for the incometax authority to come a conclusion
about the falsity of the previous statement. He also read over the
relevant portion in respect of assessment order of PW2 Incometax
Officer Mr. V . Padode. He pointed out that out of the value of gold &
.V
silver coins of Rs.2,67,000/, coins valued Rs.81,600/ belonged to his
four brothers and accordingly he had filed affidavit of his four brothers.
He submitted that those brothers are not examined by the Incometax
department. He further argued that section 69 of the I.T. Act, lays
down a deeming provision that a person in whose possession a
property found is accountable and if he cannot tell the name of the
owner of property, then he is deemed to be the owner of the said
property. The learned counsel submitted that the Chartered
Accountant of respondent no. 1 Mr. R.C. Jain has therefore adviced him
to pay the incometax on this property as Mr. Kalyanmal was not found
and therefore his Chartered Accountant wrote letter to Incometax
Department that in order to avoid the multiple legal proceedings,
respondent no. 1 wanted to buy peace and wanted to cooperate the
incometax department, therefore, he offered the incometax on the
said property. The learned counsel submitted that in view of this, the
judgment of the trial Court was illegal and it was rightly set aside by
the Sessions Court. He submitted that the Appeal therefore be
dismissed.
6.
Whether the Statement (Exhibit P7) dated 10 th January, 1975
made before the Incometax authority by respondent no. 1 is false or
not is to be answered. It is a case of perjury. Section 191 of IPC
defines perjury as follows:
“191. Giving false evidence.—Whoever, being legally bound by an oath
or by an express provision of law to state the truth, or being bound by
law to make a declaration upon any subject, makes any statement which
is false, and which he either knows or believes to be false or does not
believe to be true, is said to give false evidence. Explanation 1.—A
statement is within the meaning of this section, whether it is made
verbally or otherwise. Explanation 2.—A false statement as to the belief
of the person attesting is within the meaning of this section, and a person
may be guilty of giving false evidence by stating that he believes a thing
which he does not believe, as well as by stating that he knows a thing
which he does not know.”
Thus to prove the offence of perjury, it is necessary for the prosecution
to prove that the statement made before the authority is false and the
maker knows that the statement is not true. Thus, the Section
specifically contemplates a false statement and the knowledge of the
person that it is false. Whether the statement (Exhibit P7) dated 10 th
January, 1975 can be said to be false or not in view of the
circumstances and the second statement made by respondent no. 1?
7.
The facts stated before the Court can be false ipso facto or can
be ascertained on the basis of prevailing circumstances or the statement
can be labelled as false on the basis of other statement made by the
same person. In the present case, two statements were made as
follows:
(i)
In Exhibit P7 respondent no. 1 stated that the property
belongs to Mr. Kalyanmal.
(ii)
In Exhibit P2 a letter written by Chartered Accountant,
through whom respondent no. 1 has made statement that in
order to buy peace and avoid multiplicity of legal
proceedings, he is paying the incometax on the said property.
8.
Had respondent stated that the property belonged to him and
paid incometax, then explanation was required from respondent no.1;
how and when he became the owner of the said property and in the
absence of any explanation, the first statement would have been a false
statement. His previous statement before the incometax authority i.e.
Exhibit P7 is clear. He pointed out his finger to Kalyanmal as the
owner of the property. Whether this statement i.e. P7 is falsified by his
second statement or not is to be verified after analysing his second
statemnet I.e P2. He did not make statement that he is the owner of
the property. He said that he is ready to pay incometax on it because
he wants to avoid multiple legal proceedings and so also he wanted to
buy peace. It is true that to buy a peace is not a concept available in
the criminal law, however, while dealing with a case of perjury, which is
based on the statements made under the Incometax Act, it is necessary
for the Criminal Court to consider the provisions of Incometax Act. If
the prosecution is based on any such Special Act, then those provisions
which may have different repercussion or interpretation cannot be
ignored. While applying the regular yardstick of the criminal
jurisprudence and the aid and assistance of provisions of the said
In the present case, Section 69A is a special provision under
9.
statute is required to be taken.
which property deemed to be of a particular person , if he does not
explain the possession. This is the deeming provision and by virtue of
this deeming provision, a person is held to be liable to pay the income
tax. It fixes a fiscal liability on an individual but it does not decide the
ownership. Those two statements i.e. P7 and P2 are undoubtedly
contrary statements, however, the second statement does not render
the first statement false. The false means not true or invalid or illegal
or intended to deceive and contrary means opposite in nature. In the
offence of perjury, the prosecution has to prove not only a contradiction
in the statement but to prove falsehood in the statement and unless the
falsity of one of the two statements as charged is proved to be so, the
perjury cannot be established. The statement can be contrary but every
contrary statement is not necessarily be false. The Court should be
fully satisfied that two contradictory statements from every point of
view are irreconcilable and then only that statement can be brought
within the ambit of Section 191. In the case of Emperor vs. Bankatram
Lachiram, reported in (1904) 6 Bom. L.R. 379, it is observed as under:
“... It is a well known rule of law applied by eminent Judges to
cases of perjury arising out of contradictory statements, that the
Court dealing with them should not convict unless fully satisfied
that the statements are from every point of view irreconcilable,
and if the contradiction consists in two statements opposed to
each other as to matters of inference or opinion on which a man
may take one view at one time and a contrary view at another,
there can be no perjury, unless he has on oath stated facts on
which his first statement was based and then denied those facts
on oath on a subsequent occasion.”
Thus, if at all two contrary statements do not plug in inference leading
third possibility, then the statements remain contrary only and neither
of the statements be said as false.
In the present case, possibility of Kalyanmal not returning back
10.
due to unavoidable reasons cannot be overruled. Respondent no. 1 has
disclosed after 9 months that his four brothers were the owners of coins
valuing Rs.81,600/ The incometax authorities have neither recorded
the statements of his four brothers nor the brothers were called as
witnesses to ascertain the truth. It is also to be mentioned that in the
beginning along with this criminal case of perjury, the incometax
authorities initiated proceedings under section 277 and 271 of the
Incometax Act before the Magistrate in respect of same returns of
197576, however, he was discharged and the said order of discharge
was maintained by the High Court. In view of this, the judgment
passed by the Sessions Court is found to be correct and legal and
hence no interference is called for.
11.
The Appeal is dismissed.
(MRS. MRIDULA BHATKAR, J.)
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