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TMI Blog2013 (10) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... . Maa Durga Edible Products Pvt. Ltd, Chiranjilal Satya Narayan and Kedarnath Hariram, all of Uttar Pradesh. M/s. Bondia Flour and Oil Mills Pvt. Ltd. had paid a sum of Rs.85,02,883/- (rupees eighty-five lakh two thousand eight hundred eightythree) to the above firms vide Demand Drafts issued at Punjab National Bank, Jharsuguda Branch. On 28.09.2004, the F.I.R. was lodged by Inspector Vigilance, Jharsuguda alleging therein that M/s. Bondia Flour and Oil Mills, Jharsuguda did not pay Sales Tax of Rs.3,40,115/-(rupees three lakh forty thousand one hundred fifteen) nor reflected any payment of Sales Tax towards wheat in the Sales Tax Return filed in the said period. It is also alleged that some of the officials such as the Assistant Commercial Tax Officer, Inspector of Commercial Tax and a Peon of the department along with the present petitioner hatched a criminal conspiracy for evasion of tax and thereby misconducted themselves as public servant. On the basis of the aforesaid F.I.R., Sambalpur Vigilance P.S. Case No.37 of 2004 was registered for alleged offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, Section 120-B, I.P.C. and Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of the petitioner being an offence under Section 16-B of the Orissa Sales Tax Act, 1947 read with Rule 94-B of the Orissa Sales Tax Rules and Section 25 of the Orissa Sales Tax Act, the petitioner is the only private person criminally liable. 5. Learned Addl. Standing Counsel for the Vigilance Department having relied on the Explanation to Section 8 of the Orissa Sales Tax Act, 1947 to substance his contention that, on receipt of the consignment of wheat in the State of Odisha, M/s. Bondia Flour and Oil Mills is deemed to have received the goods on sale in the first point and he is therefore liable to pay tax, it is apposite to reproduce the explanation for ready reference, which reads as follows : "Explanation- Where in a series of sales, tax is notified to be levied at the first point, such point, in respect of goods dispatched from outside the State of Orissa shall mean and shall always be deemed to have meant the first of such sales effected by a dealer liable under the Act after the goods are actually taken delivery of by him inside the State of Orissa." Section 8 deals with powers of the State Government to notify points at which goods may be taxed or exempted. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the aforesaid perspective, it is clear that the Vigilance Department labouring under misconception has built the edifice of the prosecution case on the basis that, as M/s. Bondia Flour and Oil Mills, Jharsuguda did not pay sales tax of Rs.3,40,115/- nor reflected any payment of sales tax towards wheat in the said period in the return filed by it, has evaded the tax. In view of such fact, the very basis of accusation therefore is misconceived and the prosecution lunched has no legs to stand. 7. It is strenuously submitted by Mr. Pani, learned Additional Standing Counsel (Vigilance Department) that the petitioner having contravened Section 16-B of the Orissa Sales Tax Act, 1947 and Rule 94-B of the Rules made thereunder, he is to be held to have conspired with the Sales Tax Officials to take the consignment of wheat from the railway goods shed without paying any tax and it is to be further held that by the conspiracy between the Sales Tax Officials and the petitioner, the tax having been evaded, they must be held to have put the state to loss. Learned counsel for the petitioner, on the other hand, submits that the petitioner having received the goods on behalf of M/s. Bondia Fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Sales Tax Department by taking resort to provision for penalty in Section 16-C of the Act or by taking resort to lunching of prosecution under Section 25 of the Act or the Officers concerned could have been proceeded with departmentally. But no case for prosecution under the Prevention of Corruption Act is made out for such contravention on the misconceived ground that there was conspiracy to evade tax. 10. Coming to the last contention, it is submitted by Mr. Pani, learned Addl. Standing Counsel (Vigilance Department) that, during investigation, evidence came out that Sri Kamal Prasad Bondia (present petitioner) was the representative / agent of Radhakrishna Bondia, the proprietor of M/s Bondia Flour and Oil Mills Pvt. Ltd., Jharsuguda, and all the payments made against the consignment in question was arranged by the present petitioner through Drafts of Punjab National Bank, Jharsuguda. Further, it came to light and an admitted fact that the present petitioner had received all the 21 wagons of wheat from Mr. A. Narayan Rao, the Chief Goods Supervisor, Railway Receipt Unit, Jharsuguda on 02.08.2000 and 03.08.2000, as revealed from the statements given by Mr. A. Narayan Rao. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police & Ors., (2010) 46 OCR (SC) 75 has held that, while considering the application for quashing of charge-sheet, the allegations made in the F.I.R. and the materials collected during the course of investigation are required to be considered. Truthfulness or otherwise of the allegation is not fit to be gone into at this stage, as it is always a matter of trial. Considered in the light of the aforesaid dictum of the Hon'ble Supreme Court, the entire facts on record makes it clear, as discussed supra, that the prosecution has been launched against the petitioner on the misconceived notion that M/s. Bondia Flour and Oil Mills was liable to pay sales tax on receipt of 21 wagons of wheat, and the petitioner being the agent had conspired to evade tax. 14. Taking into consideration the materials on record in its entirety and the discussion supra, I am of the considered view that, no offence under Section 120-B, I.P.C. is made out against the petitioner, and for that matter no offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 is also made out against the petitioner. Accordingly, the proceeding so far as the present petitioner is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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