In Re: D.B. Kania

K.N. Mudaliar, J.—The accused-Petitioner is a dealer. His shop was inspected by the Deputy Commercial Tax Officer, R.S. Puram Division on 24th May, 1968 at 6-20 p.m. He did not find the Day Book written upto date. On the contrary, he found the Stock Book and the Day Book written upto 1st May, 1968. Therefore, it follows that from 1st May, 1968 to 24th May, 1968, this dealer did not write the books. This is characterized as failure to keep and maintain a true and correct account on the part of the accused-Petitioner. It is the gravamen of the charge against him. On 24th May, 1968, the Deputy Commercial Tax Officer obtained a statement marked Ex. P-1 from the cashier of the accused, wherein he has stated that the accused-Petitioner has gone on his business trip from 1st May, 1968. From Ex. D-1, it can be inferred that the accused was available in Coimbatore on 15th May, 1968 and he has written a document Ex. D-1 wherein he has indicated his projected trip to Salem, Bangalore, Sholapur, Poona and other places for his business. It is also very clear from the entire records that the accused dealer was not available on 24th May, 1968. On his return from his business trip, it appears that he seems to have received a notice from the Deputy Commercial Tax Officer on 2nd July, 1968 evening. In reply to that he has stated that he was arranging for his business tour on and from 1st May, 1968. This averment in Ex. P-3 is quite consistent with the statement of the cashier in Ex. P-1. No doubt, there is an omission in Ex. P- 3 about his stay on the 15th but it does not really matter for the purpose of this case. On 5th July, 1968, the accused submits an explanation to the Deputy Commercial Tax Officer, which is marked as Ex.P-3, in reply to the notice received on his behalf on 2nd July, 1968 evening.

When examined u/s 342 of the Code of Criminal Procedure the explanation of the accused is that on account of his business tour, he could not write the Day Book and the Stock Book, which he himself would maintain in Gujarathi language, but under his instructions, his clerk Krishnaswamy bad maintained a temporary note-book in Tamil marked as Ex. P-4 regarding all the transactions and that subsequently, he copied those in the regular account books with the assistance of his clerk. No doubt, ''Ex. P-4 was not produced by the cashier D 1 before P. W. 1, the Deputy Commercial Tax Officer, but in his explanation dated 5th July. 1968, there is definitely an averment to the effect that his clerk has been keeping the temporary cash book in tamil and properly maintaining it daily. After returning from the journey, the accused copied the same in Day-Book in Gujarathi with the help of his clerk. It is not disputed by the prosecution that the maintenance of the accounts is only in the Gujarathi Language.

Rule 26(1) of the Madras General Sales Tax Rules, 1959, reads as follows:

Every person registered under the Act, every dealer liable to get himself registered under the Act and every other dealer who is so required by an assessing authority by notice served in the prescribed manner shall keep and maintain a true and correct account in any of the languages specified In the eighth schedule to the Constitution or in English showing the goods produced, manufactured, bought or sold or supplied or distributed by him, and the value thereof separately together with the voucher.

In this context, it is worthwhile to reproduce Section 40 of the Madras General Sales Tax Act (1 of 1959) which reads as follows:

Every person registered under this Act, every dealer liable to get himself registered under this Act, and every other dealer who is required so to do by the prescribed authority by notice served in the prescribed manner, shall keep and maintain a true and correct account in any of the languages specified in the Eighth Schedule to the Constitution or in English, showing such particulars as may be prescribed; and different particulars may be prescribed for different classes of dealers.

The, said rule is in conformity with Section 40 of the Act. All that the Act and the Rule enjoined on the dealer is that he should keep and maintain a true and correct account in any of the languages specified in the Eighth Schedule to the Constitution or in English. The question that arises for consideration is whether the dealer is bound to maintain the accounts upto date under this section and rule. It is not the case of the prosecution that the Petitioner has maintained either untrue accounts or incorrect accounts. As I have already noticed earlier, the heart of the complaint is that the accounts were not maintained upto date. It is certainly enjoined on the dealer to keep and maintain true and correct account which is, or ought to be related to the purposes and objects of the Act. From the language of either the Section or the rule in question, I am not able to place the construction that the account ought to be written upto date.

There is no doubt in my mind that the dealer is bound to keep and maintain true and correct account for the purposes of this Act. But the language of either the section of the rule is not necessarily susceptible of the narrow construction that the account ought to be up to date.

In the peculiar circumstances of this case, I consider that the Petitioner is not guilty of the offence of contravening Rule 26(1) read with Rule 56 of the Madras General Sales Tax Rules, 1959. The Petitioner is acquitted. The revision is allowed. The fine amount, if paid, will be refunded to the Petitioner.