Brief of the Case
Punjab and Haryana High Court held In the case of ADIT vs. Sh. Dhan Singh Sharma that ld counsel for the applicant admitted at the time of arguments that statement was re-started after some time on the same day. It is clear that there was a break in recording the statement and whenever it is to be again recorded, the oath is to be given again to the witness/accused but no such oath has been given second time when the statement was again recorded. Hence, the finding of the learned Magistrate that the relevant statement was recorded after completion of first statement and without recording of oath, is correct, as per law and does not require any interference from this Court.
Facts of the Case
The Deputy Director of Income Tax (Inv.) Ambala filed a complaint against Dhan Singh under Section 181 IPC. As per complainant’s version; statement of accused was recorded on oath under Section 132(4). During the course of search of residence of accused, an incriminating document was found and seized and the said document contained a handwritten account and bears a head ‘D.S.Doors’ on the top. Accused stated that it was rough estimate and did not relate to him and it was left for the department to understand the document in the light of other evidences gathered during the search. The department had seized the computers containing the books of accounts of M/s D.S.Doors Pvt. Ltd. and M/s Woodtech Limited during the search of business premises.
When the entries on the document were co-related with the said purchase accounts of M/s D.S.Doors Pvt. Ltd. and M/s Woodtech Limited, it revealed that documents contains bill number and bill amount of Mango and Shisham wood purchase. Accused knew that the document 69/A was not rough estimate and that it is related to the purchase account of M/s D.S.Doors Pvt. Ltd.and M/s Woodtech Limited. Accused was asked to show cause as to why the prosecution under Section 181 IPC may not be initiated againsthim for making false statement before a public servant. In the reply, the accused remained non-committal.
Learned Judicial Magistrate Ist Class, Faridabad, after appreciating the evidence, dismissed the complaint and acquitted the accused vide impugned judgment dated 22.10.2014.
Contention of the Applicant
The ld counsel of the applicant has not pointed out as to how the reasoning given by the Court below are perverse or against the evidence and law. Learned counsel for the applicant shown the statement of the complainant recorded during the search proceedings. At the start of the statement, the oath was given to respondent-accused Dhan Singh Sharma and even the signatures were obtained regarding oath.
Thereafter, the statement was again recorded by writing about continuity of the statement. No time was mentioned as to when this statement was again started recording i.e. after how much time the statement was again started. Learned counsel for the applicant admitted at the time of arguments that statement was re-started after some time on the same day. There was a break in recording the statement and whenever it is to be again recorded, the oath is to be given again to the witness/accused but no such oath has been given second time when the statement was again recorded.
Held by High Court
High Court held that the Learned Magistrate after discussing the provisions held that relevant question, which was recorded later on, while recording the statement after the completion of first statement, is without oath. The finding of learned Magistrate is correct, as per law and does not require any interference from this Court.
Further ld counsel for the applicant cited judgments passed by the Hon’ble Supreme Court in State of Maharashtra vs. Sujay Mangesh Poyarekar, 2008 (4) RCR (Criminals) 555, Mishrilal and others vs. State of M.P. and others, 2005 SCC (Cri) 1712, State of U.P. vs. Rashid and another, 2010 (1) SCC (Cri) 486 and judgment passed by the Hon’ble Bombay High Court in Yogita P. Gosalia vs. S.B. Morey and another, 2013 (3) Bom. C.R. (Cri) 760, but we found that all the above-cited judgments and the same will not apply in the present case as none of the judgment is on the material point regarding non-administering of oath.
Accordingly appeal of the revenue dismissed.