Rengasamy, J.
1. This revision is against the order of the learned Principal Sessions Judge, Madras, in Crl. R.C. No : 7 of 1986 reversing the order of the learned Additional Chief Metropolitan Magistrate (E.O. II) , Madras, in E.O.C.C. No. 634 of 1985, discharging the petitioners herein under section 245(1), Code of Criminal Procedure, holding that no case is made out against the accused. The learned Principal Sessions Judge in his order has given the reasons for framing the charges against these petitioners for the offences under sections 34, 37, 114, 120B, 177, 193, 196, 199 and 200 of the Indian Penal Code and under sections 276C(1), 277 and 278 of the Income-tax Act, 1961.
2. The facts of the case set out in the complaint of the respondent-Income-tax Officer are almost admitted by the petitioners. The petitioners are husband and wife and they are income-tax assessees. On November 17, 1984, the officials of the Income-tax Department made a search in their house and seized a sale agreement dated October 27, 1984, between the second petitioner and one M. Lakshmanan, the owner of 8.37 acres of agricultural lands situated in Thirupporur, for the sale of those lands to the second petitioner for a sum of Rs. 2,75,000. Subsequently, the said Lakshmanan had executed a registered sale deed dated December 17, 1984, in respect of the same lands in favour of the first petitioner for a consideration of Rs. 45,000 only. The enquiry by the Income-tax Department revealed that though the seller, M. Lakshmanan, had received the sale consideration of Rs. 2,75,000 and this amount was deposited by the second petitioner in the names of the family members of the said Lakshmanan in Indian Overseas Bank, West Mambalam branch, in the sale deed only Rs. 45,000 was shown as sale consideration suppressing the real consideration and undervaluing the sale deed. Therefore, the respondent-Income-tax Department filed a complaint under the abovementioned sections for dealing with these petitioners according to law.
3. The prosecution examined five witnesses to show the prima facie case against the petitioners and the learned Additional Chief Metropolitan Magistrate was not satisfied with the evidence of these witnesses to accept that there is prima facie a case against these petitioners for framing the charges against them. Hence, he discharged the petitioners under section 255(1), Code of Criminal procedure.
4. The learned Additional Chief Metropolitan Magistrate completely agreed with the contention of the petitioners that the registration of a document before the Sub-Registrar is not a judicial proceeding or a proceeding taken by law as such and, therefore, section 192; Indian Penal Code, is not attracted to prosecute these petitioners for their false statement before the Sub-Registrar undervaluing the sale deed. According to the learned Additional Chief Metropolitan Magistrate, when the action of the petitioners does not fall under section 192, Indian Penal Code, they cannot be convicted under section 193, Indian Penal Code. He has also found that under section 195(1)(b)(i), Code of Criminal Procedure, when the offence was committed against the lawful authority of public servants, for offences against public justice or for offences relating to documents given in evidence, the court shall not take cognizance of such offences unless the complaint was filed by the public servant concerned or some other public servant subordinate to him before the court and in this case as the Sub-Registrar, before whom the document was registered, had not filed any complaint before the court, this complaint for false statement at the time of registration of the document, is not cognizable by this court. So far as offences under sections 276C, 277 and 278 of the Income-tax Act are concerned, the learned Additional Chief Metropolitan Magistrate has found that there was no attempt at or actual evasion of tax payable on the income of the petitioners because the time to submit the return was till June 30, 1985, before which date the complaint had been filed and, therefore, section 276C also is not attracted. The learned Magistrate has also held that exhibit P-9 which is Form No. 37G as prescribed under the Income-tax Rules, though filed with a verification, was an innocuous document as the Income-tax Department did not rely upon this document for the purpose of working out the assessment and, therefore, section 277, Income-tax Act, is not attracted. So far as the allegation under section 278, Income-tax Act is concerned, for abatement by the second accused for making the first accused give a false declaration in exhibit P-9, the learned Magistrate has found that as the first accused had not committed the offence under section 276C, the second accused cannot be convicted for abetment and, therefore, section 278, Income-tax Act, also was not attracted in this case.
5. Learned counsel appearing for the revision petitioner, Mr. Panchapagesan, would submit that the view taken by the Additional Chief Metropolitan Magistrate is correct as the evidence discloses that these petitioners have undervalued the sale consideration before the registering authorities only for the purpose of reducing the stamp duty and at the most, they can be tried only for evading the stamp duty but they cannot be punished for the offences mentioned in the complaint of the respondent and, therefore, the charges cannot be framed for these offences against the petitioners. Learned counsel further submitted that even though the first petitioner had filed exhibit P-9, Form No. 37G prescribed under rule 48G of the Income-tax Rules, which gives the value of the property conveyed at Rs. 45,000, under section 269P of the Income-tax Act, the proviso reads that this statement under Form No. 37G should be filed only in respect of the documents which purported to transfer any immovable property for an apparent consideration exceeding Rs. 50,000 and the Explanation to section 269P of the Income-tax Act clarifies that the word 'apparent consideration' shall have the meaning as given in clause (a) of section 269A which reads that 'if the transfer is by way of sale, the consideration for such transfer as specified in the instrument of transfer' indicating that the consideration mentioned in the sale deed has to be taken as the apparent consideration and as the sale deed executed by the first petitioner recites that the consideration was only Rs. 45,000, it was the apparent consideration as described in sections 269A and 269P and, therefore, when the sale was for a consideration less than Rs. 50,000 there was no necessity for filing the statement under section 269P of the Income-tax Act in Form No. 37G though in this case the first petitioner has wrongly filed such statement in Form No. 37G for which the first petitioner cannot be penalised. As rightly contended by Mr. K. Ramaswamy, learned Special Public Prosecutor, appearing for the respondent-Department, Form No. 37G prescribed under section 269P, Income-tax Act, is intended to prevent evasion of income-tax and it is not a formality at the time of registering a sale deed to file Form No. 37G giving the value of the property intended to be sold according to the discretion of the parties, but the parties are expected to give the real sale price in the sale deed and when the sale price exceeds Rs. 50,000 the source of income must be known to the Income-tax Department for the purpose of assessing the income-tax. In this case, the sale agreement between the vendor and the second petitioner was for Rs. 2,75,000 and, therefore, that must be the consideration that ought to have been reflected in the sale deed also. At the time of the registration of the sale deed in favour of the first petitioner, Form No. 37G ought to have been filed as required under section 269P of the Act for the sale transaction in this case. Column No. 9 in Form No. 37G requires the estimated fair market value of the property and column No. 12 reads 'if the sale consideration for the transfer is less than the estimated fair market value, the relationship of the parties and the reason for reducing the value of consideration on account of natural love and affection'. From these details what was required in Form No. 37G, exhibit P-9 was that the first petitioner-transferee should have given the correct market price of the property, namely, Rs. 2,75,000, but she has falsely stated in this form that the estimated market value of the property was only Rs. 45,000 and, therefore, she has not explained anything in column No. 12 also. When the value of the property exceeds Rs. 50,000, Form No. 37G should be forwarded by the Registering Officer to the Income-tax Department so that they would take up the task of verifying the source of income of the transferee of the property. As the real sale consideration is suppressed in Form Nc. 37G (exhibit P-9) the normal presumption would be that the petitioners attempted to evade the tax payable to the Income-tax Department by giving a false statement in exhibit P-9. Again, it should be borne in mind that Form No. 37G is a form to be sent to the Income-tax Department in relation to the income-tax payable by the parties.
6. Learned counsel for the petitioners, Mr. Panchapagesan, would argue that the petitioners have paid tax on their income and even before the expiry of the period provided to them to submit the income-tax return, that is, up to June 31, 1985, the complaint has been filed as though they have evaded the tax and, therefore, section 276C, Income-tax Act is not attracted. It is held in Hakam Singh v. CIT : [1980]124ITR228(All) that after the seizure of the records under search a return filed under the constraint of exposure to adverse action by the Income-tax Department will not be voluntary within the meaning of section 273A of the Income-tax Act as the assessee would be impelled by the compelling circumstances to file the return. Section 276C of the Act deals with the attempt of a person to evade tax and, therefore, it need not be an actual evasion of tax. Further, the language of the section is that 'if a person wilfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under the Act' indicating that even if the tax chargeable or imposable is at a future date, when there is an attempt to evade the tax payable at a future date, it is punishable under section 276C of the Income-tax Act. Therefore, the requirement of the section is that there was an attempt to evade tax. As the first petitioner has deliberately given a false statement in exhibit P-9, Form No. 37G which is to be forwarded to the Income-tax Department, there is scope to argue that it will amount to an attempt on the part of the first petitioner. Hence, it cannot be stated that there is no prima facie case for framing the charges for the abovesaid offences.
7. As this proceeding was in the stage of framing charges against the petitioners and I have found above that the charge is maintainable for section 276C of the Income-tax Act, naturally this case has to go back to the learned Additional Chief Metropolitan Magistrate for framing the charges. There are other allegations of offences both under the Indian Penal Code and the Income-tax Act. Though I am bound to refer to the evidence in respect of those offences also, I feel that I should not deal with them in detail as sometimes, it may prejudice either of these parties as the matter has to be taken up by the learned Additional Chief Metropolitan Magistrate for further proceedings in this case. Therefore, I shall refer to whether there is prima facie evidence for those offences.
8. So far as section 277 of the Income-tax Act is concerned, there is verification in exhibit P-9 and it cannot be denied that this verification is in respect of the false statement with regard to the sale consideration. But the learned Additional Chief Metropolitan Magistrate took the view that under section 277(i) of the Income-tax Act, only when this statement was accepted as true for the purpose of assessing the tax, it becomes an offences punishable and in this case, as the Income-tax Department did not act upon this statement, section 277 of the Income-tax Act is not attracted. Even if the view is accepted, its only under section 277(i) of the Income-tax Act for the purpose of imposing a minimum punishment of six months, that section is attracted whereas under section 277(ii) of the Income-tax Act, there is no such specific clause making it punishable only when the false statement was acted upon by the Income-tax Department. Therefore, prima facie, it cannot be said that section 277 of the Income-tax Act is not applicable to this case.
9. The learned Additional Chief Metropolitan Magistrate took the view that as there was no violation of the provisions of either the Indian Penal Code or the Income-tax Act on the part of the first petitioner; the question of abetment or inducement by the second petitioner will not arise. But when there is prima facie a case for sections 276C and 277 of the Income-tax Act, and the evidence also is to the effect that the second petitioner asked the vendor to execute the sale deed in favour of his wife, the first petitioner, naturally that is prima facie evidence for the offence under section 278, Income-tax Act also.
10. Then coming to the main offences under sections 193, 196 and 199, Indian Penal Code, referred to in the complaint, as mentioned above in exhibit P-9, which statement is in relation to the Income-tax Department, as the statement is a false statement, it will amount to fabrication of false evidence for the purpose of being used by the first petitioner. Even though exhibit P-9 was produced before the registering authority, the Registrar is expected to forward this form to the Income-tax Department for acting upon that document to find out the source of income. Hence, there is scope to argue that exhibit P-9, the document prescribed under the Income-tax Act, was fabricated for being used to evade the tax payable to the Income-tax Department and as the proceedings before the Income-tax Department are judicial proceedings as mentioned in section 136, Income-tax Act, there is prima facie evidence for framing charges under section 193, Indian Penal Code also. In Mahabir Prasad Saraogi v. State of Bihar : [1979]120ITR663(Patna) fabricating false evidence for the purpose of being used in any stage of a judicial proceeding is complete as soon as the fabrication is complete, even if the judicial proceeding in which the document was intended to be used might not have commenced and the offence is complete as soon as the document is fabricated. Under section 195(1)(b)(i) of the Code of Criminal Procedure, no court should take cognizance of the offences punishable under sections 193 to 196, 199, 200, 205 to 211 and 228, Indian Penal Code, when such an offence is alleged to have been committed in, or in relation to, any proceeding in any court. As Form No. 37G is in relation to the income-tax proceedings, which is a judicial proceeding, certainly the complaint is maintainable by the respondent Income-tax Officer for the offence under section 193, Indian Penal Code. Section 196, Indian Penal Code, also deals with the use or attempt to use the false and fabricated evidence. As exhibit P-9 is a fabricated document which, according to the Income-tax Department, was intended to be used to evade tax, even the attempt to use this document before the Income-tax Department is a prima facie evidence for the offence under section 196, Indian Penal Code. In section 199, Indian Penal Code, the false statement or making any statement which is false to the knowledge of the first petitioner is also an offence and the Income-tax Officer is entitled to file this complaint under section 195(1)(b)(i), Code of Criminal Procedure, as mentioned above. Section 200, Indian Penal Code, also relates to the corrupt use or attempt to use any declaration knowing the same to be false. Here also, even the attempt is sufficient to attract punishment under the section. It is needless to repeat that as Form No. 37G prepared by the first petitioner relates to the proceedings of the Income-tax Department, naturally, there is prima facie evidence for these sections also. The other sections, namely, sections 34, 31, 114 and 120B, Indian Penal Code, are for the joint action of the accused persons. As the evidence of the vendor is that on the request of the second petitioner, the sale deed was executed in favour of his wife, the first petitioner, there is prima facie evidence for these sections also. The prosecution itself has conceded that no offence is made out under section 177, Indian Penal Code. Therefore, there cannot be any charge under section 177, Indian Penal Code.
11. This court in Radhakrishnan v. Dinesh [1987] LW (Crl.) 189, has held that when there is prima facie case for the commission of the offence, the court has to frame charges without going into the minor details. From the discussion above, it cannot be stated that there is no prima facie evidence in this case for framing charges against these petitioners for the offences alleged in the complaint. Therefore, the learned Sessions Judge is perfectly correct in setting aside the order of the learned Additional Chief Metropolitan Magistrate and I find no material to interfere with the order of the learned Sessions Judge. Hence, the revision is liable to be dismissed.
12. In the result, the revision is dismissed. The observations above will not in any way prejudice the defence of the petitioner before the learned Additional Chief Metropolitan Magistrate.