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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 ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Corruption Act, 1988 which has been forwarded by I.O., ACB, CBI, Ghaziabad in CBI RC1202019A0004 dated 4.7.2019. iii. To grant Ad-interim ex-parte stay of proceedings in CBI RC No. 1202019A0004 dated 4.7.2019 u/s 120B 420 IPC, 1860 Section 7 of P.C. Act, 1988 to further grant Ad-interim Ex-parte stay on all the consequential proceedings initiated or bring initiated based upon CBI RC No. 1202019A0004 dated 4.7.2019 Chargesheet. iv. To summon the records of the Trial Court of the present case. 6. The applicant/accused is challenging the charge-sheet, cognizance order and the consequential proceedings arising therefrom. 7. The facts, for the purposes of the case, briefly stated, is that the C.B.I. registered a regular case on the written complaint of Director General of Income Tax (Vigilance) on directions of the Commissioner, Central Vigilance Commission, New Delhi, dated 1 July 2019. The allegation against the applicant, a (compulsory) retired officia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 power of the Court under Section 482 Cr.P.C. is limited, the Court would not enter into the merit or consider the defence being raised by the applicant; it is urged that only a, prima facie, case linking the applicant to the offence has to be examined at the stage of framing of charge. 11. I have heard Shri V.P. Srivastava, learned Senior Counsel, assisted by Shri Shashi Dhar Shukla, learned counsel for the applicant and Shri Ravi Prakash, learned counsel appearing for the C.B.I. and perused the record. 12. In nutshell, 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. The assessment orders in all the appeals was passed by the concerned Income Tax Officer of Ghaziabad. The aggrieved assessees were required to file the appeals within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an opportunity to the applicant to antedate such orders, which were uploaded after demitting office. It is alleged that in the 13 appeals applicant caused wrongful loss at ₹ 7.26 crores to the revenue and commensurate wrongful gain to the assessee, co-accused and himself. 16. The record further reveals that during course of investigation on search of the residential premises of the applicant on 5 July 2019 Indian currency at ₹ 16,44,970/- was found from the possession of the applicant which is alleged to be part of the undue financial gain obtained by the accused. 17. The allegations and the material/evidence placed on record, taken on face value, prima facie, make out the ingredients of the offence of criminal conspiracy, cheating and abuse of his position as public servant obtaining undue advantage for wrongful gains and causing wrongful loss to the revenue. 18. The investigation further reveals the circumstances a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. 22. Section 120B I.P.C. deals with the punishment for criminal conspiracy. The offence of criminal conspiracy is defined under Section 120A I.P.C. The most important ingredient of the offence criminal conspiracy is the agreement between two or more persons to do an illegal act or an act not illegal by illegal means. (Refer: Kehar Singh Vs. State (Delhi Administration), (1988) 3 SCC 609). The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established. In Noor Mohammad Mohd. Yusuf Momin Vs. State of Maharashtra, 1971 AIR 885, the Supreme Court considered and laid down the distinction between Section 34, Section 109 and Section 120B I.P.C. Section 34 embodies the joint liability in doing a criminal act, the essence of the act being the existence of common intention, participation in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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