Jharkhand High Court
Reena Roy Wife Of Tapas Kumar Roy vs The State Of Jharkhand on 13 September, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1401 of 2016
Reena Roy wife of Tapas Kumar Roy, resident of Village and P.O.
Chirkunda, Police Station- Chirkunda, District- Dhanbad
... ... Petitioner
Versus
1. The State of Jharkhand
2. Income Tax Department through complainant Vijay Bhaskar son
of Lala Ashutosh Kumar Sharan, Income Tax Officer, Ward II (3),
Income Tax Office, Mada Building. P.O. and Police Station
Dhanbad, District-Dhanbad.
... ... Opposite Parties
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Rahul Kumar, Advocate
For the Income Tax Department: Mr. Anurag Vijay, Advocate
: Mr. Omprakash, Advocate
For the State : Mr. Rajneesh Vardhan, APP
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11/13.09.2024
1. Heard the learned counsel for the parties.
2. This revision petition has been filed challenging the judgment
dated 18.07.2016 passed by the Additional Sessions Judge X Dhanbad
in Cr. Appeal No. 93 of 2015 whereby the appeal has been dismissed.
The petitioner has been convicted vide judgement dated 28.05.2015 by
Special Judge Economic Offence Dhanbad in C.O. case No. 28 of
2004 under sections 277 of Income Tax Act and sentenced to undergo
rigorous imprisonment for three months and to pay fine of Rs. 2500/-
and in case of default further sentenced to undergo simple
imprisonment for one month.
Argument of the petitioner.
3. The learned counsel for the petitioner while assailing the
impugned judgments has submitted that the impugned judgments are
perverse and call for interference. He has submitted that his argument
is confined to two points:
(A) Whether there is a mental intent on the part of the
petitioner within the meaning of section 278(E) of the
Income Tax Act?
(B) Whether the signature of the petitioner on the verification
form of the income tax return has been proved or not?
4. The learned counsel has referred to paragraph 8 of the trial
court's judgement to submit that the specific case of the petitioner was
that the petitioner does not know English and could only sign in
Bangla and was not aware about the provisions of Income Tax. He
submits that there were contradictions in the testimony of the
witnesses. The learned counsel appearing on behalf of the petitioner
has also submitted that the petitioner having completely denied her
signature on the return, therefore her signature itself could not be
proved.
Argument of the Income tax department (complainant)
5. The learned counsel appearing on behalf of the Income Tax
Department has opposed the prayer and has submitted that every
aspect of the matter has been taken care of by the learned courts while
convicting the petitioner. He submits that the petitioner had filed
returns and the verification clause was signed by the petitioner. The
return was marked as exhibit 2 and the petitioner claimed refund of
Rs. 52,680/- on account of some claim under housing loan and some
TDS certificate on the basis of income derived from LIC. The learned
counsel has submitted that the reply filed by the petitioner pursuant to
the notice issued by the Income Tax Department was marked as
Exhibit 5 which is an admitted document from the side of the
petitioner. The petitioner took a stand that she had put her signature
though on blank return form. The learned counsel has also submitted
that in the reply to the show cause the petitioner had taken a stand that
she had done so at the instance of one Satyaban Roy. The learned
counsel submits that the signature in the return form stands admitted
in the show cause reply (exhibit-5).
6. The learned counsel has further referred to the provisions of
section 278E of Income Tax Act and has submitted that said provision
has been taken into consideration. There is presumption in connection
with the mens rea in the matter involving prosecution under Income
Tax Act and the petitioner has failed to rebut the presumption. The
petitioner did not lead any defence evidence. The learned counsel has
submitted that no material was put forwarded by the petitioner to
dislodge the said presumption. Rather the petitioner was in a state of
complete denial before the learned court although in the show cause
reply the petitioner did not disown the filing of the return and the
petitioner did not deny signature in the verification form.
Findings of this Court.
7. After hearing the learned counsel of the parties and considering
the facts and circumstances of this case, this Court finds that as per the
prosecution case the petitioner had filed false income tax return and
wrongly claimed refund of Rs. 52,680/- for the assessment year 2002-
03 by showing that the petitioner was having income from LIC and
furnished TDS certificate and that the petitioner had taken housing
loan for which deduction was claimed and such documents to claim
refund were found to be forged and fabricated upon verification.
8. After verification that the documents used for seeking refund
were forged, a show cause notice was issued to the petitioner and in
response, the petitioner did not deny filing of the return and the
signature in the verification form but stated that the petitioner had
signed on blank verification form at the instance of two persons
Satyaban Roy and one A.K. Chatterjee; Satyaban Roy had approached
her to file returns as normally done and assured her that he would
show her income out of sewing, embroidery etc. and with that hope
that Satyaban Roy will submit the return and other documents
correctly, the petitioner had put her signature in blank form. She
alleged that the entire false and fabricated documents were created by
Satyaban Roy to create refund about which she had neither any
knowledge nor she had advised Mr. Satyaban Roy to do such illegal
things.
9. However, being dis-satisfied with the show cause reply filed by
the petitioner, the prosecution was launched and before the court the
prosecution led both oral and documentary evidence to prove their
case and the defence did not lead any evidence, either oral or
documentary. The learned court had scrutinized and materials on
record and recorded finding against the petitioner and held the
petitioner guilty under section 277 of the Income Tax Act. The learned
court has also relied upon section 278E of the Income Tax Act with
respect to 'culpable mental state' while convicting the petitioner.
10. Before the learned Trial Court, interalia, the return in SARAL
form (Exhibit-2), the show-cause notice issued by the income tax
department (Exhibit-4) and also the show cause reply filed by the
petitioner (Exhibit-5) have been marked exhibits without any
objection from the side of the petitioner. The filing of return is not in
dispute. Further, in the show-cause reply, the petitioner had not
disputed about her signature in the SARAL form and filing of return
although she stated that she had signed on blank form with a hope that
Satyaban Roy would file her correct returns and Satyaban Roy was the
actual culprit. In the light of the aforesaid proved facts, the argument
of the petitioner that she only knows bangla and no other language has
rightly been rejected by both the courts and this court also finds no
merits in such arguments. The petitioner, in the statement before the
court examination under section 313 of Code of Criminal Procedure,
has admitted that she had filed the return. In view of the
aforesaid facts and circumstances there is no scope for the petitioner to
contend that the signature on the verification of SARAL form was not
proved.
11. This court finds that the prosecution had proved the required
facts to hold the petitioner guilty of offence under section 277 of the
Income Tax Act and so far as mens rea i.e 'culpable mental state' is
concerned that is certainly required to be dealt with in accordance with
section 278 E of the Income Tax Act.
12. Section 278 E of the income tax Act is quoted as under: -
"278E. Presumption as to culpable mental state.--(1) In any
prosecution for any offence under this Act which requires a
culpable mental state on the part of the accused, the court shall
presume the existence of such mental state but it shall be a
defence for the accused to prove the fact that he had no such
mental state with respect to the act charged as an offence in that
prosecution.
Explanation. --In this sub-section, "culpable mental state"
includes intention, motive or knowledge of a fact or belief in, or
reason to believe, a fact.
(2) For the purposes of this section, a fact is said to be proved
only when the court believes it to exist beyond reasonable doubt
and not merely when its existence is established by a
preponderance of probability."
13. The aforesaid section 278E clearly provides that in any
prosecution under the Income Tax Act, which requires a 'culpable
mental state' on the part of the accused, the court shall presume the
existence of such 'culpable mental state' but it shall be a defence for
the accused to prove the fact that the accused had no such 'culpable
mental state' with respect to the act charged as an offence in that
prosecution. The explanation provides that "culpable mental state"
includes intention, motive or knowledge of a fact or belief in, or
reason to believe, a fact. Sub-section (2) provides the way and the
extent to which the fact is to be proved by the accused for the
purposes of rebuttal the presumption under section 278E. It provides
that a fact is said to be proved only when the court believes it to exist
beyond reasonable doubt and not when its existence is merely
established by 'preponderance of probability'.
Meaning thereby, if the accused has to prove a fact to dislodge the
presumption under section 278E, the accused has to prove the fact in
such a manner that the court believes it to exist beyond reasonable
doubt and such a presumption of culpable mental state cannot be
dislodged by mere 'preponderance of probability' but the accused has
to prove the existence of the fact on the basis of which the accused
claims to shift the onus to the prosecution so as to enable the court to
prove such fact relied upon by the accused beyond reasonable doubts.
14. In the judgment passed by the Hon'ble Supreme Court reported
in (2011) 14 SCC 644 (Income Tax Officer, Jind Vs. Mangat Ram
Norata Ram Narwana and Another), the Hon'ble Supreme Court has,
inter alia, considered the provisions of section 278 of Income Tax Act
while dealing with conviction under section 276-C(1)(i) and section
277 of Income Tax Act and has dealt with the burden or onus of proof
in connection with prosecution under Income Tax Act. In the said
case, the accused did not raise any objection that he had not signed
and filed the returns in question and his conduct proved that he did not
raise any dispute at any point of time and had paid the penalty also.
The Hon'ble Supreme Court held that the prosecution had proved
regarding admission of filing and signing the returns by the accused
and held that once prosecution has proved this fact, it was for the
accused to demonstrate that he did not sign the return which the
accused in the said case did not do. The Hon'ble Supreme Court
ultimately held in paragraph 11 of the said judgment that there is no
statutory requirement that the signature on the return is to be made in
presence of the Income Tax Authority and nothing was brought in
evidence by the accused that the signature did not belong to him on
the return and the penalty was paid mistakenly.
15. This Court finds that the present case is squarely covered by the
ratio of aforesaid judgment relied upon by the learned counsel for the
income tax department. As discussed above, in the present case also
the foundational facts to convict the petitioner were duly proved by
the prosecution and nothing was brought in evidence by the accused to
dislodge the presumption of 'culpable mental state' and shift the
burden upon the prosecution in terms of section 278 E. Nothing has
been brought in evidence by the petitioner to disbelieve that the
petitioner had signed the verification form on the face of admission
about filing of the return.
16. This court is of the considered view that once the aforesaid
facts were proved by the prosecution, the actus reus to constitute an
offence under section 277 of the Income Tax Act was duly proved.
With regards to mens rea, Section 278 E providing for presumption of
'culpable mental state' comes into play and as per sub-section 2 of
section 278 E the onus does not shift to the prosecution on the
principles of 'preponderance of probabilities' but the fact asserted by
the petitioner was required to be proved by cogent evidence beyond
reasonable doubts up to the satisfaction of the court in order to shift
the onus to prove the element of mens rea upon the prosecution. Mere
denial or mere passing on the blame of filing false return to a third
person is not sufficient. This court finds that the petitioner has not
been able to discharge the onus with regards to presumption of
'culpable mental state' under Income Tax Act. This court is of the
considered view that both the learned courts have fully considered the
materials on record and rightly convicted the petitioner for offence
under section 277 of the Income Tax Act and rightly relied upon the
legal presumption of 'culpable mental state' on the part of the
petitioner in terms of section 278 E of the Income Tax Act.
17. Both the points argued by the learned counsel for the petitioner,
that is, regarding denial of signature on the verification form on the
ground that the petitioner does not know any other language other than
bangla and absence of 'culpable mental state' are devoid of any merits
and are rejected in view of the aforesaid findings/discussions.
18. The learned counsel for the petitioner has not been able to
demonstrate any perversity, illegality or material irregularity in the
impugned judgments as all the materials and attending facts and also
the provision of law has been duly taken into consideration while
convicting the petitioner by the learned trial court and/or upholding
the conviction of the petitioner by the learned appellate court. The
impugned judgements of conviction and sentence do not call for any
interference in revisional jurisdiction of this court.
19. The criminal revision petition is accordingly dismissed.
20. Bail bond furnished by the petitioner is cancelled.
21. Let a copy of this order be communicated to the court
concerned through 'FAX/E-mail'.
(Anubha Rawat Choudhary, J.)
Rakesh/-
