2020 (11) TMI 426 - HC - Indian Laws

Criminal Conspiracy - allegation against the applicant is that by virtue of his position as appellate authority he dishonestly and fraudulently adjudicated 13 appeals outside his jurisdiction conspiring with the co-accused, thereby, causing wrongful loss at ₹ 7.26 crores to the revenue - HELD THAT - The acts of commission and omission on the part of the applicant in respect of the appeals is that the applicant in connivance with co-accused Anil Kumar, (Chartered Accountant)/assessee entertained and adjudicated the appeals without having jurisdiction; no order-sheet and other records indicating the date of submission of appeal, date of hearings, date of final order and nature of final order in respect of appeals was prepared; the applicant without mandatory intimation to the Assessing Officer and without receipt of ITNS-51, duly filled by the Assessing Officer, the appeals were heard; the assessment records pertaining to the appeals was not summoned from the concerned Assessing Officers; false and manufactured records was created in respect of the appeals to indicate the hearing and 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. 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. 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. There is prima facie evidence in support of the charges. The submission of the learned counsel for the applicant that the criminal prosecution does not constitute the ingredients of the offence against the applicant, lacks substance - applicant failed to point out any illegality, infirmity or jurisdictional error in the impugned order - Petition dismissed.

Issues Involved:
1. Dismissal of applications filed under Chapter XXII Rule 1 of High Court Rules.
2. Allegations of scandalous and contemptuous pleadings.
3. Application under Section 482 Cr.P.C. challenging charge-sheet and cognizance order.
4. Examination of prima facie evidence for charges under Sections 120B, 420 IPC, and Section 7 of the Prevention of Corruption Act, 1988.

Issue-Wise Detailed Analysis:

1. Dismissal of Applications Filed Under Chapter XXII Rule 1 of High Court Rules:
During the course of arguments, the applications filed under Chapter XXII Rule 1 of High Court Rules were not pressed by the learned counsel for the applicant. Consequently, these applications were dismissed as not pressed.

2. Allegations of Scandalous and Contemptuous Pleadings:
The learned counsel for the C.B.I. submitted that the petition and the rejoinder affidavit filed by the applicant contained baseless and derogatory allegations against several persons, including himself. He urged that these allegations, taken at face value, were scandalous and contemptuous, and requested the court to initiate contempt proceedings against the applicant. However, no formal application for contempt proceedings was filed. The court decided not to enter into this controversy without a formal application but left the matter open for the C.B.I. or any other aggrieved person to seek remedy in appropriate proceedings in accordance with law.

3. Application Under Section 482 Cr.P.C. Challenging Charge-Sheet and Cognizance Order:
The applicant sought to quash the order dated 14.02.2020 by the Special Judge, Anti-Corruption, CBI, Ghaziabad, which took cognizance of the CBI RC 1202019A0004 dated 04.07.2019. The applicant also sought to quash the charge-sheet dated 14.02.2020 under Sections 120B and 420 IPC, 1860 read with Section 7 of the Prevention of Corruption Act, 1988, and requested an ad-interim ex-parte stay on the proceedings and all consequential actions based on the said CBI RC and charge-sheet.

The applicant, a retired Commissioner of Income Tax (Appeals), was accused of adjudicating 13 appeals outside his jurisdiction in conspiracy with a co-accused Chartered Accountant, causing a wrongful loss of ?7.26 crores to the revenue. The applicant argued that he was competent to decide the appeals and that there was no evidence of extraneous considerations. He claimed that the prosecution was malicious and an abuse of the court process.

4. Examination of Prima Facie Evidence for Charges:
The court examined the allegations and evidence presented, which included:
- The applicant adjudicated appeals beyond his jurisdiction.
- Orders were antedated and uploaded after retirement.
- No mandatory notices were sent to the concerned Assessing Officer.
- False records were created to indicate hearings.
- Undue financial gain was obtained, evidenced by the recovery of ?16,44,970/- from the applicant's residence.

The court found that the evidence, taken at face value, prima facie established the ingredients of criminal conspiracy, cheating, and abuse of position as a public servant for wrongful gains. The court referred to legal precedents, emphasizing that at the stage of framing charges, it is not appropriate to assess the sufficiency of evidence or enter into the merits of the defense.

The court concluded that there was prima facie evidence supporting the charges under Sections 120B, 420 IPC, and Section 7 of the Prevention of Corruption Act, 1988. The applicant's submission that the prosecution did not constitute the ingredients of the offense lacked substance. The petition was dismissed, and the trial court was directed to proceed in accordance with law, uninfluenced by the observations made in the order.

Conclusion:
The court dismissed the applications under Chapter XXII Rule 1 as not pressed and left the issue of contempt open for appropriate proceedings. The application under Section 482 Cr.P.C. was dismissed, finding prima facie evidence supporting the charges against the applicant. The trial court was instructed to continue proceedings in accordance with law.

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