CBI Vs. Devendra Chaturvedi (Special Court for CBI at Greater Bombay)
In nutshell, it is the allegation against accused that they conspired to cheat the Income Tax Department and in collusion with each other during the relevant period accused No.1 prepared income tax returns with the assistance of accused No.2 in the name of accused No.3, 6 to 8 and one Shri Haresh Dhameja and submitted to the Income Tax office in Ward No.12(5), Income Tax Office, Mumbai. Accused No.4 prepared forged TDS certificate and he is one of the beneficiary of crime proceeds. Further, the basic claim of income tax refunds was based on TDS Certificate alleged to be issued by deductor concerned firms. In the present case, the almost all TDS certificates were alleged to be issued in the name of transport companies. It is alleged that the accused No.3, 5 to 8 shown as a fictitious proprietor of said transport firms in whose favour TDS Certificates were came to be issued. Thus, accused No.3, 5 to 8 claimed Income tax refunds, which were credited in their bank accounts. In furtherance of said conspiracy, the bank account in the name of fictitious person one Shri Haresh Dhameja is opened to credit the income tax refund.+
On perusal of the ingredients of offence punishable under Section 420, the prosecution has proved that the Income Tax Department complainant parted with his property i.e. refund amount acting on a representation, which was false to the knowledge of accused. The accused had dishonest intention from the outset that the refund amount in the hands of Income Tax office must have passed on them. Thus, there is a satisfactory evidence on record to prove that accused No.1 to 4 and 6 to 8 cheated Income Tax Department by dishonestly inducing the said department to deliver the refund orders to the tune of Rs.3,00,000/.
Furthermore, the evidence on record clear cut indicates that the TDS certificates attached to the ITR are forged by the accused with dishonest intention to cheat the Income Tax Department. The evidence further indicates that accused No.1, 2 and 4 did the act of forgery in respect of TDS Certificates as well as Income Statement, Balance Sheet attached to the ITR Forms. The Income Tax Returns were prepared and submitted in the name of accused No.3, 6 to 8 and Haresh Dhameja. The income tax refund amount is credited in the account of accused. TDS Certificates and documents attached to Income Tax Returns are forged one, used for the purpose of cheating and used those documents as a genuine, which they knew that at the time when used by them to be a forged documents. Further forged TDS certificates and balance sheets purported to be a valuable security, so accused committed forgery of valuable security. Thus, ingredients to constitute offence punishable under Section 120B of IPC, 420, 467, 468, 471 r/w 120B of IPC are made out against accused No.1 to 4 and 6 to 8.
Thus, in the light of above discussion the evidence led on behalf of prosecution is consistent and sufficient to prove the ingredients of offence punishable under Section 120B of IPC, 420, 467, 498 and 471 r/w 120B of IPC against accused No.1 to 4 and 6 to 8. So they are liable to be convicted for the said offences. The prosecution failed to prove the guilt of the accused No.9, so he is liable to be acquitted. At this stage, it is required to take pause and proposed to give hearing against accused on the point of sentence.
In the instant case, accused No.1 being the chartered accountant with the aid and assistance of accused No.2 committed the offence in league with accused No.3, 4, 6 to 8 as an instrumental and thereby cheated to the Income Tax Department. It is also to be mentioned that accused No.3, 4, and 6 to 8 having minimal beneficiary of the fraud amount, but the fact remains that the entire conspiracy hatched by accused No.1 and accused No.2 and they are the ultimate beneficiary of crime proceeds . HC sentences accused based on their involvement in crime.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
Accused No.1, 2, 3, 4, 6, 7, 8 and 9 are charged and tried for the offence punishable under Section 120B of Indian Penal Code,1860, 420, 467, 468 and 471 r/w 120B of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’ for short). Further accused No.9 is charged and tried for Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as ‘PC Act’ for short).
2. Brief facts of the prosecution case are as under :
Smt. Simar Singh Negi, Additional Commissioner of Income Tax (Vigilance), Mumbai placed complaint dated 12.04.1999 to Superintendent of Police, CBI, EOW, Mumbai, wherein it is alleged that accused No.1 to 8 viz. accused No.1 Devendra Ranganath Chaturvedi, accused No.2 Hoor C. Jhurani, accused No.3 Sayaji L. Sangle, accused No.4 G. Chokkalingam, accused No.5 Nirmal Chetandas Jhurani, accused No.6 Ajit Meghnath Chachad, accused No.7 Ashok Kalidas Patel and accused No.8 John R. Soares with the aid of accused No.9 Sharad Kumar Shrinivas Gambhir, public servant obtained refunds fraudulently and have thereby, caused grave loss to the Revenue Income Tax Department. A well planned income tax refund fraud has been perpetrated, wherein accused No.1 Devendra Chaturvedi, Chaterted Accountant of having address at 405, Rajshila, 577, JSS road, Mumbai, his assistant Ms. Hoor Jhurani, resident of 38 BBuilding, Shiv Society, Kopari Colony, Thane (E) actively participated to the conspiracy. Accused No.1 Devendra Chaturvedi filed many of the returns of income claiming bogus income tax refunds. He gave false audit report / certificates to the assesses to facilitate the frauds. All the Tax Returns filed from the office of Shri Chaturvedi were physically handled by accused No.2 Hoor Jhurani, who helped in opening bank account in the names of accused, in which refund cheques have been deposited. The bank accounts were opened by the accused for clearing the refund orders. Further it is alleged that there is a prima facie case of forgery, cheating and criminal conspiracy involving various persons, non departmental and departmental, which require extensive investigation from criminal angle. Accordingly, on the basis of written complaint First Information Report is came to be registered by CBI, EOW, which bears RC No. 3/E/2009/CBI/EOW/Mumbai on 12.04.1999 against 89 persons including accused No.1 to 9 and investigation was carried out.
3. The investigating officer during investigation recorded the statement of witnesses, collected documents and it is transpired that accused No.1, who is a practicing Chartered Accountant, accused No.2 Hoor Jhurani, who is Assistant of accused No.1 and accused No.3 to 9 during the period 1996 to 1998 entered into criminal conspiracy at Mumbai with the object of committing illegal acts dishonestly and fraudulently. In pursuance of the same, they submitted Income Tax Returns enclosing false and forged TDS Certificates and later on, processed by the Income Tax authorities and unauthorisedly claimed, obtained and misappropriated income tax refunds to the tune of Rs.4,25,894/ and thereby caused pecuniary loss to the Government. In pursuance of said criminal conspiracy accused No.2 Hoor Jhurani introduced Bank A/c in various banks in the name of accused and obtained cheque book of the same to utilize income tax refunds.
Accused No.9 Sharad Kumar Gambhir had criminal conspiracy with accused No.1 to 8 and by abusing his official position as a public servant, while functioning as a Tax Assistant in the office of ITO, Ward 12(5), he dishonestly accepted income tax returns of accused No.6, accused No.7 and accused No.8 directly from accused No.2 Hoor Jhurani circumventing the procedure of Income Tax Department for receipt of Income Tax Returns through Return Receipt Register, thereby dishonestly processed Income Tax Returns from accused No.6 to 9 containing forged TDS Certificates on the basis of which Income Tax Refunds worth Rs.1,50,833/ paid. Further, accused No.9 handed over the Income Tax Refund orders to accused No.2 in contravention of rules of Income Tax Department laid down for dispatch of Income Tax Refund Orders and thus facilitated the said criminal acts. Accordingly, investigating officer placed chargesheet against accused No.1 to 9. Some of the accused were not chargesheeted and against some of the accused investigation was kept open.
4. The charge for the offence punishable under Section 120B r/w 420, 467, 468 and 471 of IPC is framed against accused No.1 to 9 and Section 13(1)(d) r/w 13(2) of PC Act was also framed against accused No.9 vide Exh.26. Same was read over and explained to all the accused in vernacular, to which they pleaded not guilty and claimed to be tried. Their defence is of total denial.
5. The prosecution examined in all 41 witnesses and placed reliance of several documents. The statement of accused persons under Section 313 of Criminal Procedure Code are recorded during the trial. Accused No.1 to 7 and 9 have not preferred to lead evidence in their defence. Accused No.8 placed evidence on defence witness DW-1 Virochan Desai. The defence of the accused is of total denial.
6. Having gone through the evidence on record and submissions made on behalf of both the parties as well as written notes of arguments placed by them, following points arose for my determination and I have recorded my findings thereon for the reasons given below :
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