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TMI Blog2025 (4) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... igence Inspectors, Commercial Taxes, Thrissur. They entered into a conspiracy with other accused for reducing tax rate from 12.5% to 4% of the tax due from M/s. Nano Excel Enterprises Pvt. Ltd to which accused No.5 was the Managing Director and accused No. 7, the Director. In furtherance of the said conspiracy, the compounding tax liable to be paid by the said company of Rs. 13,06,29,613/- was reduced to Rs.7,00,68,469/-. Thereby the company had a pecuniary advantage of Rs. 6,05,61,144/- during the year 2009-2010. In consideration of the same an illegal gratification of Rs. 1.5 crores was paid to accused Nos. 1 to 4 Which they had shared. Accused Nos.6 and 8 facilitated the transaction. The car provided by accused No.8 was used to take the said amount of bribe from the company of accused Nos.5 and 7 to the hotel where the money was transferred. Accordingly, the accused had committed offences punishable under Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (PC Act) and Section 120B of the Indian Penal Code, 1860 (IPC). The petitioners would contend that there is not enough materials to prosecute them and the final report as against them is liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 4829 of 2011, the Apex Court dehors refusing leave, left open all the contentions. It is therefore contented that the 1st accused is entitled to raise the very same contentions in support of his plea for quashing the final report. It may be noted that the materials based on which the aforementioned questions could be considered at that stage and now are the same. Perhaps, after trial the accused may be able to raise at least a few of the said contentions with reference to the evidence that would come on record. Therefore, I hold that it is not possible for considering any of the contentions which are enumerated in paragraph No. 4 above, at this stage. 7. The contention next raised is that the materials produced by the prosecution are insufficient to make out a prima facie case against accused Nos. 1 and 8 and therefore proceeding against them will be a travesty of justice. No doubt, if the materials produced by the prosecution are insufficient to constitute any offence, continuance of the prosecution against the accused can have no justification. 8. The Apex Court, in State of Haryana and Others v. Bhajan Lal and Others [1992 Supp (1) SCC 335], after considering the earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." The Apex court reiterated the aforementioned propositions in a slew of judgements and recently in Digambar v. State of Maharashtra [2024 KLT OnLine 3042]. 9. The learned counsel appearing for the 1st accused would submit that no witness has been cited by the prosecution to prove either the demand or receipt of gratification by him. It is trite that not only acceptance but also demand for material thing or pecuniary advantage by the public servant should be proved to establish an offence under Section 13 (1) (d) of the PC Act. (See P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh [(2015) 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 Salim that it was the first accused who was settling the issue concerning the tax assessment. Involvement of accused No. 5 in the transaction has also been stated by this witness. 13. The prosecution has a definite allegation that following payment of such an illegal gratification the compounding tax of Rs. 13,06,29,613/- was reduced to Rs.7,00,68,469/-. More conspicuously on payment of that amount all documents and the account statements pertaining to the transactions of M/s. Nano Excel company were returned to the company without retaining even copies. When the prosecution alleges that such an act disabled the department from checking even the correctness of the action of fixing the compounding tax that certainly is another circumstance pointing to the conspiracy. 14. It is true the prosecution did not bring forth any direct evidence to prove handing over of bribe money to accused No. 1 or any other official of the commercial tax department. The 1st accused has a contention that he imposed the maximum possible compounding tax and without understanding the requirements of the provisions in the Kerala Value Added Tax Act allegations are hurled against him. 15. When the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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