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TMI Blog2022 (3) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... .13/2008. In the complaint, it is contended that complainant is the resident of Seetha Vihar in Chattisgad State and he is working in M/s.KMMI ISPAT Private Limited and incharge of Halavarthi, Koppal. On 2.12.2008, he had purchased equipments for KMMI Ispat factory for a sum of Rs. 40 lakhs and he has paid Rs. 80,000/- as tax and he was transporting the said equipment from Raipura to Koppal in a lorry bearing CG-04/DA-2645. The lorry reached Dhulkhed commercial tax check post on 7.12.2008 at about 2.00 p.m., The officers of the check post intercepted the vehicle and asked for illegal gratification which was intimated by the driver of the lorry to him. He has told the driver to settle with the officers by paying Rs. 1,000/- or Rs. 2,000/-. But, the driver replied that the officers are not agreeing for the small sum and they have told him to visit the check post. Accordingly, the complainant along with the Product Engineer Sri K. Mani visited the check post on 8.12.2008 and met Sri Ananthanarayana. He requested Sri Ananthanarayana but he demanded a sum of Rs. 15 lakhs. Negotiations took place and the Commercial Tax Officer demanded minimum of Rs. 5 lakhs and he was not agreeable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collected and tainted money was seized and it was compared with the details mentioned in the experimental/entrustment panchnama and accused was arrested. Accused gave an explanation on the spot itself in writing, stating that the said money was collected by him towards the part penalty levied in respect of the equipment being carried in the lorry. Raid party was not satisfied with the explanation. 6. Police thereafter, produced the accused before the jurisdictional Special Judge and conducted detailed investigation. After thorough investigation the police laid charge sheet against the accused for the aforesaid offences. 7. Presence of the accused was secured by the Special Judge and necessary charges were framed. The accused having understood the substance of the charge, denied the charge and pleaded not guilty. Therefore, trial was held. In order to establish the case of the prosecution, in all 8 witnesses were examined as PWs.1 to 8. 35 documents were relied on by the prosecution which were exhibited and marked as Exs.P-1 to P-35. 13 Material objects were also marked on behalf of the prosecution as MOs.1 to 13. 8. On conclusion of the prosecution evidence, accused statement as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But, they have failed to do so, in the context of which GC endorsement referred above was issued by Sri. K.G. Ananthanarayana, CTO for seeking conformation either by the consignor M/s. Industrial Technical Consultancy or consignee M/s. KMM Ispat, Halavarti. But, none of them came forward to confirm the transaction and to admit tax liability by producing relevant document. On the contrary the driver of the vehicle and Sri Subramanyan project Engineer sought to solve the problem and in trying to bribe the officers working in the check post and they have tried to evade payment of taxes due to the State of Karnataka. In the instant case, as per Section 53(12) of the KVAT Act, 2003, penalty at double the rate of tax was payable on the value of the goods in the event of failure to confirm the transaction as detailed below: a) Value of the goods .... Rs. 40,80,000=00 b) Penalty (@ 12.5 X 2 = 25% ..... Rs. 10,20,000=00 I have told this amount to be paid as per law if the consignee fails to confirm the transaction by producing relevant documents. It may kindly be noted that, the amount of Rs. 10,20,000/- was proposed to be paid as penalty only and not otherwise ad it was left to Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of my knowledge and belief and understanding the correctness of my statement I have signed below." 9. The learned trial judge heard the parties in detail and considering the oral and documentary evidence on record and also the explanation offered by the accused referred to supra passed an order of conviction. 10. Being aggrieved by the same, the accused has preferred this appeal. 11. In the appeal memorandum, following grounds have been raised: "GROUNDS * The impugned Judgment of conviction and order of sentence passed by the trial court for offences U/Sec. 7 and 13(2) of P.C. Act is manifestly illegal, arbitrary and against the facts and evidence on record and also against the well established principles governing the P.C. Act and the code of Criminal procedure hence deserves to be set aside. * The court below has failed to appreciate that, the prosecution case and the evidence adduced on behalf of it is riddled with bristling inconsistencies, discrepancies and contradictions. In fact, there is not even an iota of evidence, let alone prima-facie evidence to connect the appellant with the alleged incident and the trial court has failed to appreciate the evidence in its righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents cast's a serious doubt regarding the credibility of the prosecution case as regards to the recovery of alleged tainted currency notes from the office of accused. Furthermore, the trial court infact in one breath says that the PW1 and PW2 are credible witnesses and in another breath says that the major contradictions appearing in their evidence is because of the fact that the accused had won over these witnesses. In fact the very presence of PW2 at the time of alleged trap is highly doubtful and there is nothing on record to show that notice /letter was issued to their office to depute them for such purpose. Under the Circumstances and in the absence of the crucial witnesses PW2 admitting that PW1 not producing notes, the say of PW1 & PW2, the panch witness as well as statement in Panchanama regarding production of such notes and washing of hands of the complainant and others cannot be believed and acted upon. The trial court ought to have rejected the testimonies of PW1 and PW2 and given a clean chit to the accused as these two witnesses destroy the entire fabric of the prosecution case. * It is very pertinent to mention here that the ExP25 the so called sanction order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e equipment mentioned in the complaint was actually intercepted by Sri Ananthanarayana, who was in-charge of the check post. Though Dalwai and Ananthanarayana were also initially shown as accused persons in the FIR, the Lokayuktha Police have dropped the names of Dalwai and Ananthanarayana and charge sheet came to be filed only against this accused who had no role in intercepting the lorry. Actually, he has been made as scapegoat in the whole incident though he is no way connected with the incident or issuance of Ex.P-31 notice and as a dutiful officer, he only collected the part of penalty amount from the complainant and sought for allowing the appeal. 15. He also pointed out that when there is no demand made by the accused in a sum of Rs. 5 lakhs, the question of acceptance of Rs. 5 lakhs by the accused would not arise at all. Therefore, the prosecution has not established the demand and acceptance of the illegal gratification which is a sine qua non for convicting the accused for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sought for allowing the appeal. 16. Per contra Sri Subhash Mallapur, learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 53 yrs, Occ: Commercial Tax Officer Dhulkhed Check Post, Vijapur District. As follows: That, you accused Padmanabha, on 10.12.2008 being a public servant, while working as the Comnercial Tax Officer in Dhulkhed Check Post, Bijapur District demanded bribe of Rs. 5.00 Lakhs from the complainant for releasing the KMMI Ispat loaded lorry bearing No.CG-04/DA-2645 stopped by you in the said check post and on 11.12.2008 at 5.20 pm., you have received the said bribe amount of Rs. 5.00 lakhs from the complainant as gratification other than legal remuneration as a motive of reward for doing the said official favour and thereby committed an offence punishable u/s. 7 of the Prevention of Corruption Act, 1988 and within my cognizance. That, you on the above said date, time and place, being a public servant committed criminal misconduct by abusing your position as the Commercial Tax Officer in Dhulkhed Check Post, Bijapur District and obtained pecuniary advantage of bribe amount of Rs. 5.00 Lakhs from the complainant for releasing the KMMI Ispat loaded lorry bearing No. CG-04/DA-2645 and you thereby committed an offence punishable 13 (1) (d) read with Section 13(2) of the Prevention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old him to pay Rs. 10,20,000/- as the penalty. He admits that in this regard, he has spoken to his higher officials, but the higher officials told that there is a valid TIN number to the factory, there is no need to pay Rs. 10,20,000/-. He admits having received Ex.P-31 through the driver. He also admits that on the date, when he visited the Commercial Tax Office accused was not present. He admits that he has not spoken to the accused face to face and he has only conversed with the accused over telephone. He admits that he did not know that there was a Lokayuktha office in Vijayapur. He admits that he has met the Lokayuktha office in Koppal and visited Bagalkote Lokayuktha office on the same day at about 4.30 p.m. He admits that Mani is the scribe of the complaint. He admits that he has given a complaint against Padmanabha, Dalwai and Ananthanarayana. He also admits charge sheet is not filed against Ananthanarayana and Dalwai. Further suggestions are denied by him. He also denied the suggestion that a false complaint has been lodged against the accused. 24. PW-2 Sangamesh is te shadow witness, who has accompanied the complainant at the time of handing over the tainted money to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a separate locker. 28. The Lokayuktha Police collected the attendance register and GC register and other documents and he identified the same and they were marked as Exs.P-20 and P-21. 29. In his cross examination, he admits that his name and the name of Sri Ananthanarayana were also included in the FIR and both of them have obtained bail from the court. He admits that Ex.P-31 is under the signature of Ananthanarayana. He admits that the police have recorded his statement and there is a separate almirah for each of the Commercial Tax Officer in the office. He denies the suggestion that accused has not kept Rs. 1,15,815/- in his locker. He denied the suggestions that the penalty amount would not be kept in a safe locker. 30. Sri Sangappa Ramanna Poojari is examined as PW-4. He has deposed that he was worked as Commercial Tax Officer between 13.1.2009 to 26.7.2011 and at the request of the Lokayuktha police, he has handed over the attendance register for the period of 7.12.2008 to 11.12.2008 and he identified the same as Ex.P-22 and P-24. His evidence is formal in nature. 31. Sri M.R.Chandrashekara Aradhya, Retired Under Secretary to Finance Department (Commercial Tax) is exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narayana who issued the GC notice vide Ex.P-31. It is also elicited that initially, case came to be registered by Bagalkote Lokayuktha Police and on the same day and at the same time, there was no case registered by Vijayapur police. He denied the suggestion that the raid and trap was a mock raid and trap and a false charge sheet has been filed against the accused. The above evidence on record is sought to be re-appreciated by the learned counsel for the appellant. 37. This Court considered the above material evidence on record meticulously in order to re-appreciate the same. As could be seen from the above material evidence on record, the prosecution case mainly hinges on the oral testimony of the complainant and shadow witness. It is now well settled principles of law and requires no emphasis that in order to establish an offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act, prosecution has to establish the following ingredients: * Demand and acceptance of bribe money; * Handling of tainted money by the accused on the day of trap (colour test); * Work of the complainant must be pending as on the date of trap with the accused. 38. With the above leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier i.e., the complainant company was also requested by the Commercial Tax Office at Dhulked check post. The demand of Rs. 15 lakhs was intimated to the higher officials of the supplier i.e., the official superiors of the complainant on the ground that the TIN number is not furnished. The superior officials of the complainant specifically told that since the supplier is having a valid TIN Number, the amount of Rs. 15 lakhs need not be paid. After thorough negotiations with the accused by Shabbir Huseni, in respect of releasing of the lorry, it was agreed that if a sum of Rs. 5 lakhs, as against the penalty amount of Rs. 10,20,000/- as per the Act, is paid the lorry would be released. 41. The complainant was not interested in parting with the said amount of Rs. 5 lakhs and therefore, they approached initially Bagalkot Lokayuktha Police and then lodged a complaint vide Ex.P-28. After registering the case, Bagalkot police found that Dhulked checkpost comes under the jurisdiction of Vijayapur Lokayuktha Police and accordingly, they transferred the complaint from Bagalkot to Vijayapur Lokayuktha Police Station. Vijapura Lokayuktha Police thereafter, re-registered the case in Crime No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of receipt of Rs. 5 lakhs on the spot, the accused gave an explanation which is practically similar to the statement made by him under Section 313(5) Cr.PC. referred to supra. 45. In other words, the accused tried to explain the handling of the tainted money by stating that he presumed that the amount of Rs. 5 lakhs is the part penalty amount and kept it in the almirah. 46. In order to appreciate the said defence, it is necessary for this court to refer to Section 53 of the KVAT Act, 2003 more particularly Section 53(12)(a) to (d) which, for ready reference, the said provision is culled out hereunder: "53(12)(a) The officer in charge of a check post or a barrier or any other officer in respect of any contravention of, or noncompliance with, the provisions of subsection (2), for which sufficient cause is not furnished, levy a penalty which, - (i) shall not be less than the amount of tax leviable but shall not exceed one and half of the amount of tax leviable in respect of the goods under transport in contravention of 1[clause (c) or] clause (d) of sub-section (2), if a dealer registered under the Act accepts that he is the consignor or consignee of the goods, (ii) in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier is unable to furnish satisfactory documents to show that the tax has not been paid in respect of the goods that has been carried in the lorry, ship, vessel or the boat, the customs authority or the Commercial Tax Officer has got the authority to initiate penalty proceedings. 49. In the case on hand, the GC note, which is marked at Ex.P-31 is issued by Ananthanarayana. It was he, who has been authorised to deal with the said case further. To that extent, there is some force in the arguments put forth on behalf of the accused/appellant that he is no way connected with the intercepting of the lorry and initiating proceedings. But, if that were to be so, why did he negotiate with Shabbir Huseni over telephone and arrived at a sum of Rs. 5 lakhs as illegal gratification and that Rs. 5 lakhs would be shared among himself, Ananthanarayana and Chandrashekar Dalwai is a question that remains un-answered. Shabbir Huseni is not possessing any previous enmity or animosity against the accused to depose falsely against him. Further, without initiating any penalty proceedings, there was no occasion for the accused or for that matter, Ananthanarayana to receive any money towards the penalty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn." 53. On careful perusal of the above provision, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses of the raiding party must be discarded in the absence of any independent corroboration. Their Lordships opined that: "if any of the witnesses are accomplices who are particeps criminis in respect of the crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person". 9. It would therefore be a derogation and perversion of the purpose and object of anticorruption law to invariably presuppose that a trap/decoy witness is an "interested witness", with an ulterior or other than ordinary motive for ensuring the inculpation and punishment of the accused. The burden unquestionably is on the defence to rattle the credibility and trustworthiness of the trap witness' testimony, thereby bringing him under the doubtful glare of the Court as an interested witness. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Prevention of Corruption Act disappointing. Reasons may be many. While an innocent needs to be protected by the court of law, it is the equal duty and responsibility of the court of law to punish a culprit. All efforts must be made that real culprit does not escape from the rigors of law. 61. Corruption is a distinct type of offence. It is like a cancer to the society. It eats the social and economical health every second resulting in unimaginable consequences. It is only few officers of the Government misuse their official position forgetting their duty and loyalty to the State, resulting in eroding the economy of the country at large. It is often said that world is not suffering from 'violence of many'; but is suffering from 'silence of many'. Therefore, when a true complainant has taken recourse to the legal battle, his testimony cannot be disbelieved on flimsy reasons. The court has to take a pragmatic approach in appreciating the material evidence on record in a particular case. 62. Keeping this in the background when the material evidence on record is analyzed, the prosecution having established that the accused demanded illegal gratification in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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