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TMI Blog2020 (11) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... that contempt proceedings be initiated against the applicant. 3. On specific query, learned counsel submits that no application for drawing contempt proceedings against the applicant has been filed, but submits that the Court suo moto take notice of the scandalous pleadings. 4. Be that as it may, the Court is not inclined to enter into the controversy without there being a formal application to that effect. However, disposal of the instant petition would not preclude the learned counsel for the C.B.I. or any other aggrieved person from raising the issue and seeking remedy in an appropriate proceedings in accordance with law. The matter is kept open. 5. By the instant application filed under Section 482 of Code of Criminal Procedure (for short ''Cr.P.C.'), the applicant seeks the following reliefs: "i. To set aside & quash the order dated 14.2.2020 of learned Special Judge, Anti Corruption, CBII, Ghaziabad by which the cognizance has been taken by the Court in the matter of CBI RC 1202019A0004 dated 4.7.2019 filed by the CBI. ii. To also set aside & quash the Chargesheet dated 14.2.2020 under Section 120B & 420 IPC, 1860 r.w. Section 7 of the Prevention of Corrup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the appeals, the notices have been brought on record; the appeals were decided on merit after due notice to the concerned official of the department. The learned counsel has drawn the attention of the Court to various orders and circulars of the department in particular circulars dated 30 December 2019 and 31 December 2019 to submit that applicant had jurisdiction to hear and decide the alleged appeals. It is further urged that allegation of calling for records and deciding the appeals is not borne out from the material or any evidence. The appeals were filed through the e-filing system. 9. It is further urged by learned counsel for the applicant that it is a case of malicious prosecution to harass the applicant; taking the allegations and evidence on face value, the ingredients of the offence against the applicant is not made out. He submits that the proceeding is liable to be quashed being abuse of the process of the Court. 10. In rebuttal, learned counsel appearing for the CBI submits that the ingredients of the offence of cheating, criminal conspiracy and under Section 7 of the Prevention of Corruption Act, 1988, is made out; he further submits that exercise of inherent pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t records with an intent to cheat the department to give an impression that hearing had taken place in at least 6 out of 13 appeals. In some of the appeals (viz. assessee Sanjay Mittal), the notice for hearing was sent by speed post on 30 January 2018 fixing 7 January 2019 for hearing. The record of the post office Moradnagar shows that the speed post was served on 3 January 2019. However, the orders on the said appeal came to be passed on 31 December 2018. It is alleged that acknowledgement slip was not sent with the notice. The appeal of the assessee Sanjay Mittal came to be allowed and disposed of in his favour which was done dishonestly by the applicant. Tax liability at Rs. 67,82,836/- was allowed in favour of the assessee and against the revenue. 15. Further, it is alleged that the circulars of the Central Board of Direct Taxes, New Delhi, was not complied by the applicant by not issuing the appellate orders within 15 days of the order by registered post or through service/circulation without requiring the assessee/appellant to file an application in that regard. The date of hearing was deliberately not mentioned in the order-sheets of any of the 13 appeals, thereby, giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposal of the appeal of the assessees noted therein; some of the appeals has been shown to have been allowed and disposed of in favour of the assessee when it was not at the hearing stage; appellate orders are antedated having passed after the applicant demitting office. 20. In Anil Mahajan vs. Bhor Industries Ltd. And others 2005 (10) SCC 228, the Supreme Court observed as under: "The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence." 21. The evidence and the material brought on record, prima facie, establishes that applicant abusing his position as Commissioner (Appeals) entered into criminal conspiracy with co-accused Anil Kumar (Chartered Accountant) as a public servant, obtained undue advantage for extraneous considerations, committed acts of commission and omission with mala fide intentions thereby causing wrongful loss to the department and wrongful gain to the assessees and himself. The evidence and the surrounding circumstances taken on face value constitute commission of the offence under Section 120B, 420 IPC and Section 7 of Prevention of Corruption Act, 1988, against the applicant and co-accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of law that at the stage of framing of charge, in proceedings under Section 482 Cr.P.C., it is not open for the Court to enter into the sufficiency of the evidence in order to appreciate the documents and the statements in support of the charge. (Vide Mohd. Akbar Dar vs. State of Jammu & Kashmir, AIR 1981 SC 1548 & Radhey Shyam vs. Kunj Behari & others AIR 1990 SC 121) 25. It is not a case where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. Further, the criminal proceedings is not manifestly attended with mala fide and/or the proceedings maliciously instituted with an ulterior motive against the applicant merely performing appellate power in the backdrop of the allegations and evidences. 26. It is well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not suffer on account of mala fide or vendetta of the complainant. (Refer: State of Haryana and others vs. Ch. Bhajan Lal and others 1992 AIR 604) 27. Having regard to the facts and circumstances and the mater ..... 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