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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 ..... 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 ₹ 5 lakhs as illegal gratification and that ₹ 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. It is crystal clear that after issuance of the GC note and after expiry of ten days, if no documents are furnished as is required under Ex.P-31, then only, initiation of the penalty proceedings would commence. In other words, GC note came to be issued on 7.12.2008 and thereafter, upto 17.12.2008, there could not have been any penalty proceedings at all. Further, even after 17.12.2008, having regard to the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s minimum punishment available for Section 7 of the Prevention of Corruption Act is three years. State has not preferred any appeal against the inadequacy of the sentence. Therefore, hands of this court are tied in enhancing the imprisonment period in the appeal filed by the accused - Further, for the offence under Section 13(1)(d) of the Prevention of Corruption Act, the Trial Court has sentenced the accused to undergo simple imprisonment for four years and imposed fine of ₹ 1,50,000/-. Since both the sentences are ordered to run concurrently, the mistake crept in while passing the inadequate sentence for the offence punishable under Section 7 of the Act would get into insignificance would only remain on record as an academic in nature. The Criminal Appeal is dismissed. - CRIMINAL APPEAL NO.200043/2015 - - - Dated:- 9-2-2022 - HON BLE MR. JUSTICE V. SRISHANANDA Appellant (By Sri Anil Kumar Navadagi, Advocate) Respondent (BY Sri Subhash Mallapur, Spl. PP. For Lokayukta) J U D G M E N T 1. Heard Sri Anil Kumar Navadagi, learned counsel for the appellant and Sri Subhash Mallapur, learned Special PP for Lokayuktha - respondent herein. 2. The presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bir Huseni replied that he has arranged ₹ 3 lakhs and another ₹ 2 lakhs he would arrange and pay the same. The accused replied that the amount is to be paid before morning otherwise, things would be different. 4. Since the complainant was not interested in parting away illegal gratification of ₹ 5 lakhs, he lodged a complaint initially with Bagalkot Lokayuktha police, which was then transferred to Vijayapur Lokayuktha Police. After understanding the genuineness of the complaint averments, the Lokayuktha Police arranged for the trap. The police secured two independent witnesses for the purpose of trap and explained the contents of the complaint and collected ₹ 5 lakhs, the currency notes consisting of ₹ 500/- and ₹ 1,000/- and smeared the phynopthelene powder and explained the panch witnesses about the intended trap and also shown the reaction of the phynopthele powder with the colour less sodium corborate solution. Experimental mahazar was drafted and thereafter, the complainant and shadow witness were sent to the office of the accused. 5. On 10.12.2008 at about 5.00 a.m., the raid party along with complainant and shadow witness were sent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on duty on 07/12/2008 and 08/12/2008. He had detained one vehicle bearing No.CG-04/DA-2645 by issuing GC Endorsement bearing No. CTO/STCP/KGA-824/2008-09, dated: 07/12/2008. The said officer has sought Certain clarification and confirmation from the consignee. Sri. K.G. Ananthanarayana, CTO was on duty on 07/12/2008 and 08/12/2008 and notice was issued by him and I am not aware as to what went on between him, the lorry driver and Sri. K. Mani, Project Engineer who had met Sri. K.G. Ananthanarayan on 07/12/2008 and 08/12/2008. The reason for demanding ₹ 15,00,000/- or ₹ 5,00,000/- is not known to me, since the notice issued by him and I am in no way connected in this case. I was on duty on 09/12/2008 and 10/12/2008 and as an officer on duty I was bound to Clear pending cases as per instructions of my colleague officers and collect penalty and release vehicles accordingly. The brief facts of the present case are as under: Every dealer or every non-resident dealer who is willing to carry on business or works contract is required to obtain registration under section 22 of the Karnataka Value Added Tax Act, 2003 and file returns and pay taxes accordingly. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,00,000/- was to be collected when the liability was ₹ 10,20,000/-. The complainant came to the check post in the early hours of morning on 11.12.2008 and requested me to release the vehicle after collecting ₹ 5,00,000/-. I asked him if they are filing any objections to the notice issued by Sri. K.G. Ananthanarayana CTO and he replied that, they have already filed papers. I checked the file and found no papers filed. At this juncture the complainant kept the money on the table and ran away outside for the reasons best known to him and I was forced to keep the amount of ₹ 5,00,000/- in the Amirah, for safe custody since the Sales Tax check post, Dhoolked is an open check post and any amount kept on the open table is likely to be taken away very easily. Therefore, in the interest of safe guarding Government money it was kept in the almirah. After this the Lokayuktha authorities came to the check post and informed me that, I was trapped in anti corruption case against the complaint filed by one Mr. Subramanya and proceeded to conduct the other procedures. It may kindly be noted that, in this case notice was issued by Sri. K.G. Ananthanarayana, CT0 and vehi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onviction and sentence cannot be sustained. It is humbly submitted that it is a definite case of the prosecution that it was one Narayan CTO who intercepted the vehicle that was carrying the equipment's of the complainant and it was he who put a demand of ₹ 10,20,000/- to the driver of the said vehicle and he was infact insisting to talk to PW1. It is borne out from the records that on that date i.e., on 08-12-2008, the present appellant was not on duty at Dhulkhed Check Post, so the question of demanding bribe by the present appellant herein in the first place doesn't arise at all and secondly it is the version of the prosecution that it was one Shabbir Hussain who talked to the accused on phone on behalf of PW1 for the release of the vehicle that was seized and the accused demanded ₹ 5 lakhs as bribe to the said Shabbir Hussain. Very shockingly the trial court has neither examined Shabbir Hussain nor the investigating authority produced any telephonic records to prove the said conversation between Shabbir Hussain and the accused and the prosecution has not produced even iota of material let alone credible to substantiate that accused at ay point of time put a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could very easily made out that PW5 a senior most officer of the Department who was given the responsibility of a sanction authority was acting at the peck and call of the investigation officer of this case and thus ExP-25, the sanction order ought to have been thrown out of the court at the very out Set and it is crystal clear that a concerted effort was made by PW8 Somappa Kumbar, the IO to some how fix up this accused by dropping the other two officers who demanded the bribe and who were named as prime accused in the FIR and thus the Judgment of the trial court on all counts is vitiated and liable to be set aside. That, the trial court has proceeded on assumptions, surmises and conjectures to base its judgment and the court below has given a complete goby to the basic concept of proof beyond the reasonable doubt and this has resulted in grave miscarriage of justice. That, viewed from any angle, the impugned Judgment and order of sentence recorded by the Spl. Judge /Prl. Sessions Judge Vijayapur in Spl. Case (LOK) No.11/2010 convicting the appellant for the offences with which he was charged, is even otherwise illegal, improper and deserves to be set aside. 12. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Koppal, why did he deal with the said file, which was actually dealt by Sri Ananthanarayana, is a question that remains unanswered by the defence. 17. Further, Sri Mallapur contended that the explanation offered by the accused cannot be countenanced in law as there was no initiation of penalty proceedings at all under the KVAT Act, 2003 and when there is no proceedings at all, the question of complainant paying penalty would not arise at all and therefore, the explanation is not only illusory, but to be treated as self serving statement, which is made with an intention to escape away from the clutches of law. 18. He further argued that the learned trial judge considered the explanation offered and assailed appropriate reasons in rejecting the explanation offered by the accused and tainted money having been seized from the custody of the accused and colour test having stood positive, and the work of the complainant was very much pending in the office of the Commercial Tax, all ingredients to attract the offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, has been established by the prosecution by placing cogent and convincing evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental/entrustment mahazar and Trap mahazar, with graphic details as to how the incident has occurred. He has also deposed that the lorry bearing No.CG-04/DA-2645 was carrying the equipment to be delivered at Koppal from Raipura. The lorry was intercepted on 7.12.2008 by Ananthanarayana which was intimated by the driver of the lorry. Initially he was not interested in getting into any hassles. Therefore, he has told the driver to settle the matter amicably with the office by paying ₹ 1,000/- or ₹ 2,000/-. However, the matter did not resolved and the driver intimated the complainant to visit the check post and resolve the matter. Accordingly, the complainant along with Sri Mani visited the check post on 8.12.2008 and requested the officers to release the vehicle. However, the request was not heeded to. Subsequently, the complainant took the help of Sri Shabbir Huseni from Koppal in getting the vehicle released from the check post. When all their attempts failed and when the accused insisted that a sum of ₹ 5 lakhs is to be paid as illegal gratification, the complainant approached the Lokayuktha Police and lodged the complaint. These aspects of the matter are borne o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a cane chair, on which the accused sat in the room and the complainant, Mani and Shabbir Huseni were sitting on a cot which was there in the said room and he stood near the door. The complainant again requested the accused to release the lorry, at that juncture, the accused demanded ₹ 5 lakhs and the complainant handed over the tainted currency notes to the accused. Accused took the same and kept the same in the second shelf of the almirah. Thereafter, the complainant came out and gave a pre-designated signal to the raid party. Raid Party immediately came inside the office along with another co-pancha - Shankar Matt and accused was apprehended and tainted currency notes were recovered from the accused and seized the same. 25. Colour test was conducted and colour less liquid turned into pink as is demonstrated during entrustment mahazar and police seized the same and drafted Trap mahazar. 26. In his cross examination, he has denied that he has given a false evidence as per the instructions of the Lokayuktha Police. 27. Sri Chandrashekar Dalwai another officer of the Commercial Tax, who is one of the FIR named accused, is examined by the prosecution as PW-3. He has d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining to the case and initially, the FIR contained the names of three officers and as per the Government order, the office has kept all the three officers under suspension. He also answered that he gave the sanction order to Lokayuktha to prosecute the accused alone. He admits that he does not know the administrative matters of commercial tax offices. He has answered that he has read the FIR, mahazar and thereafter, accorded sanction. 33. Sri Jagadish Shivaji Narayankar, is examined as PW-6. He is the PWD engineer, who has prepared the spot sketch vide as Ex.P-26. His evidence is formal in nature. 34. Sri B. Balaraj is examined as PW-7. He is the Police Inspector, who received the complaint, registered a case in Crime No. 14/2008 of Bagalkot Lokayuktha Police with a memo and based on the said memo he registered a case in Crime No. 13/2008 in Lokayuktha office, Vijayapur. His evidence is also formal in nature. 35. Sri Somappa Kambar is examined as PW-8. He is the retired Superintendent of Police and head of the raid party. He deposed about trapping of the accused. He further deposed that after receipt of the complaint, he verified the genuineness of the complaint and therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erments coupled with the oral testimony of the complainant. In the case on hand, admittedly, the lorry bearing No. CG-04/DA-2645 was intercepted at Dhulked check post on 7.12.2008 as a routine checkup. The driver of the lorry was required to furnish necessary documents in respect of the equipment carried in the said lorry which was being transported from Raibagh to Koppal. The driver of the lorry could not furnish necessary document/s. Immediately, the driver of the lorry telephoned to the complainant. The complainant told the driver of the lorry to arrive at an amicable settlement with the Commercial Tax Officer by paying ₹ 1,000 or ₹ 2,000/-. The driver tried to amicably settle the issue, but the Commercial Tax Officers insisted that the complainant should visit the place and get the lorry released. Accordingly, the driver telephoned to the complainant. The complainant along with Mani visited the Commercial Tax Office on 8.12.2008. He had a discussion with the Commercial Tax Officer. On record, it is elicited that it is the Ananthanarayana, who is the person, who intercepted the lorry and demanded for illegal gratification in a sum of ₹ 15 lakhs at the first ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entrustment mahazar. Thereafter, the chemical reaction of phenolphthalein powder with the sodium carbonate solution was demonstrated in the Lokayuktha office in the presence of panch witnesses. Thereafter, trap was arranged and the complainant and Shabbir huseni, Mani and shadow witness visited the office of the accused on 11.12.2008 at about 5.00 a.m., After going to the office, the complainant again requested for release of the lorry. At that juncture, accused again demanded a sum of ₹ 5 lakhs as illegal gratification. The tainted money was then handed over comprising of totally four bundles to the hands of the accused. Accused after receiving the tainted money, kept the same in the second shelf of the almirah, kept in his office. Complainant came out and gave a pre-designated signal to the raid party. Immediately, raid party arrived on the spot and told the accused to handover the tainted money. Accused then took out the tainted money from the almirah and then handed it over to the police and police received the same and conducted colour test. Colour test stood positive as the colour less liquid turned into pink. The Police after collecting samples and coloured liquid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds under transport .1[Provided that in respect of any goods on which the rate of tax leviable is less than four per cent, the penalty leviable under sub-clause (ii) shall be equivalent to five times the amount of tax leviable.] (b) Where the amount of penalty leviable is more than the value of the goods, the amount of penalty leviable shall be restricted to such value. (c) In proceedings under sub-section (10), where the penalty levied is not paid, the carrier or bailee or person-in-charge of the goods vehicle shall jointly and severally be liable to pay such penalty. (d) Before levying any penalty under this sub-section, the officer shall give the person-in-charge of the goods vehicle or boat, ship or similar vessel, the carrier, the bailee, or dealer registered under the Act, as the case may be, a reasonable opportunity of being heard. 47. It is also necessary for this court to cull out Section 12 and 13 of the KVAT Act: 12. Deduction of input tax in respect of Capital goods.- (1) Deduction of input tax shall be allowed to the registered dealer in respect of the purchase of capital goods [on or after the commencement of this Act] for use in the busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished as is required under Ex.P-31, then only, initiation of the penalty proceedings would commence. In other words, GC note came to be issued on 7.12.2008 and thereafter, upto 17.12.2008, there could not have been any penalty proceedings at all. Further, even after 17.12.2008, having regard to the fact that the end point of supply of the equipment being at Koppal, which is more than 100 kilometers away from Dhulked check post, another show cause notice was required to be issued as per sub section (13) of Section 53 of the KVAT Act, giving ten days time to pay penalty. In other words penalty proceedings would have commenced in the case only on 27.12.2008 that too, only in the event of not furnishing satisfactorily replying to the show cause notice. Further, it is Ananthanarayana would get a right to confiscate the equipment and auction it for the purpose of recovery of the penalty. 51. Further, if the penalty/tax amount is ₹ 10,20,000/- as contended by the accused himself in the statement referred to supra, why he would receive only ₹ 5 lakhs that too at 5.00 a.m., on 11.12.2008 is a question again that remains un-answered by the accused/appellant. 52. On cum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral and documentary evidence on record as discussed supra. Accused knew that it is his responsibility to rebut the said presumption. Accordingly, accused did tried to explain the incident perhaps with an intention to rebut the presumption by submitting the written submissions referred to supra. 54. Though the learned trial judge has not expressed in so many words about the consideration of the explanation in the impugned judgment, this court did consider thoroughly the same in juxtaposition with the provisions of the KVAT Act. On such re-consideration, having regard to the discussions made supra, this court is of the firm opinion that the explanation offered by the accused, is not properly established by placing atleast plausible materials. Therefore, the explanation needs to be termed as not only illusory but also moonshine. Further, MO.10 i.e., ₹ 1,15,805/- recovered from the very same almirah of the accused is ordered to be confiscated by the trial court as there was no proper explanation by the accused. Therefore, there is no proper rebuttal evidence on record to doubt the case of the prosecution. Hence, there is no rebuttal to prosecution evidence. 55. Appreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set, be guarded against and suspicious of the testimony of trap witnesses. We are of the opinion that the law hitherto expressed by this Court upholds precisely this exposition. 58. Applying the legal principles enunciated in the above case to the facts of this case, the complainant at the first instance some how wanted to get rid of the hassles at Dhulkhed check post. Therefore, he directed his driver to pay cash of ₹ 1,000/- or ₹ 2,000/-. However, when the demand made by Ananthanarayana and the Commercial Tax officials was so high, complainant did not want to be a party for such a demand and therefore, sought the help of Shabbir Huseni. When Shabbir Huseni was also unable to sort out the issue amicably and when negotiations failed, complainant decided to teach a lesson to the commercial tax officials and approached the Lokayuktha Police. 59. Thereafter, trap was laid and trap was successful. Shadow witness being a Government employee did not possess any previous enmity or animosity against the accused, nor did have any special affinity to the complainant party so as to falsely implicate the accused in the case. He has acted as per the direction of the head of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted by Ananthanarayana on 7.12.2008 and the tainted money having been recovered from the custody of the accused, colour test having stood positive coupled with the explanation offered by the accused being not capable of believing, this court is of the considered opinion, that prosecution is successful in establishing all ingredients to attract the aforesaid offences. 63. Therefore, the finding recorded by the learned trial judge that accused is guilty of the aforesaid offences is not suffering from legal infirmity or perversity. Accordingly, Point No.1 is answered in the Affirmative and Point No.2 in the negative. 64 . REG. POINT NO.3: Learned trial judge has awarded simple imprisonment for 2 years for Section 7 of the Act and awarded fine of ₹ 1 lakh, with default sentence of simple imprisonment for one year; whereas minimum punishment available for Section 7 of the Prevention of Corruption Act is three years. State has not preferred any appeal against the inadequacy of the sentence. Therefore, hands of this court are tied in enhancing the imprisonment period in the appeal filed by the accused. 65. Further, for the offence under Section 13(1)(d) of the Preventio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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