TaxTMI 
TaxTMI 
2017 (1) TMI 824
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....nant paid a sum of Rs. 15,000/- to the A1, inturn the petitioner counted the currency and handed over the same to A2, A2 also counted the currency and kept the notes in his table locker, at that time the respondent police came into the office of the petitioner and caught red handed the petitioner/A1 and A2 and seized the currency notes from A2 and arrested the petitioner/A1 and A2 at 8.10pm and they were remanded to judicial custody. Subsequently, the Inspector of police, Vigilance and Anti Corruption recorded 161 statement and forwarded the MOs to Forensic Department Lab and the Deputy Superintendent of Police, obtained sanction and filed final report before the Special Court for V&AC on 03.03.2013 against A1 and A2 under Section 7, 13(2) r/w.13(1) (d) of Prevention of Corruption Act, 1988. 3. The main grounds raised by the petitioner is that the respondent police without any evidence implicated the petitioner/A1. The sanctioning authority who accorded sanction against the petitioner has not verified the basic aspects and fundamental principals, mechanically granted sanction against the petitioner. The petitioner has become scapegoat and victim to the circumstances and therefor....
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....ilance and Anti-corruption. Even if the case goes for trial the prosecution will be vitiated and the petitioner is entitled for discharge. 5. The learned Additional Public Prosecutor filed its counter, the averments made in the counter is as follows : - In this case, on 02.06.2011, the defacto complainant for the purpose of getting assessment order and the purpose of paying sales tax arrears went to the office of A1 and A2 at 3.00pm and insisted to A2 to issue the assessment orders for the years 2008-2009 and 2009-2010. A2 demanded Rs. 15,000/- from the complainant as bribe and directed the defacto complainant to approach A1 by stating that you have come late. Hence, the defacto complainant approached A1 as directed by A2 and requested him to hand over the assessment orders for 2008-2009 and 2009-2010 and further requested to receive the sale tax arrears due for four months. While he met A1, A1 also demanded an amount of Rs. 15,000/- as illegal gratification for himself and also for A2 to close the file, failing which a notice would be issued to take further action. The defacto complainant again met A1 in his office on 06.06.2011 at about 3.00pm and A1 again demanded Rs....
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....fore the investigating officer. The respondent/police has collected concrete reliable, trustworthy, unimpeachable evidence against the petitioner and the present petition is not sustainable in law. 7. As per the charge sheet, the prosecution case before the Special Court is as follows :- The complainant namely Tr.Abubacker is the owner of Medical Store named as Maasa Medicals which is situated at No.82/142, Portuguese Street, Seven Wells, Chennai 1. The complainant went to the office of A-1 and A-2 on 02.06.2011 for the purpose of getting Assessment orders and for the purpose of paying Sales Tax arrears. The complainant met A-2 in the office of the Assistant Commissioner of Commercial Tax, Mannady East Assessment Circle, Wavoo complex, No.191, N.S.C.Bose Road, Chennai 1 at 3.00 P.M. and insisted A-2 to issue the Assessment Orders for the years 2008-09 and 2009-10. A2 demanded Rs. 15000/- from the complainant as bribe and directed the complainant to approach A-1 by stating that you have come late. Accordingly the complainant approached A-1 as directed by A-2 and requested him to hand over the Assessment Orders for 2008-09, 2009-10 and further request....
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....r, the petitioner arrayed as A1 in the charge sheet, the petitioner along with A2 is facing trial for the offences punishable under Section 7, 13(2) r/w.13(1) (d) of Prevention of Corruption Act, 1988. The allegations against the petitioner/A1 and A2 that the defacto complainant went to the office of the petitioner on 02.06.2011 to obtain assessment order for the years 2008-2009 and 2009-2010, the defacto complainant handed over a sum of Rs. 15,000/- to the petitioner/A1 who inturn handed over the said amount to A2 and A2 kept the said amount in his table drawer. The respondent has not proved demand, acceptance and recovery of the bribe. This petitioner has no role in passing the assessment order to the defacto complainant, no amount was recovered from the petitioner, the money was recovered only from the A2. Before, during and after the trapping proceedings, the respondent have violated the Rules 42, 43, 45, 47(2), 49, 51 and 54 of the Manual of Directorate of Vigilance and Anti-corruption, prima facie there is no materials available against the petitioner to proceed further and the prosecution will not be in a position to establish their case against the petitioner from the avail....
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....earned counsel also produced the photocopy of the Circular dated 10.12.1976, the accused should invariably be examined soon after the trap proceedings, an opportunity should have been given to the accused to offer his explanation. If there is any need to examine further in the light of fresh evidence that come up during further examination at a later stage, further statement of the accused should be recorded. Therefore, the failure on the part of the investigating authority denying the opportunity of submitting explanation by the accused after completion of trap proceedings envisaged under Sub Rule 2 of Rule 47 of the DVAC Manual is in utter violation of Article 21 of the Constitution of India. In the absence of one such statement, it has to be necessarily observed that the benefit of doubt has arisen and the same should be taken in favour of the accused. 12. Further, the Hon'ble Supreme Court has time and again in bribe cases, the prosecution has to prove the demand, acceptance and recovery of the bribe money. Admittedly, from the evidence of the official witness recorded under section 161 Cr.PC clearly proves that no amount was recovered from this petitioner during trap pr....
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....0. Thus, the accused have committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988. From the available evidences, it is seen that the involvement of both the accused, the respondent collected concrete reliable, trustworthy, unimpeachable evidence against the petitioner and A2. Therefore, this petition is not sustainable under law. 15. The learned Additional Public Prosecutor has brought to the knowledge of this Court that the petitioner/A1 has filed petition under Section 239 Cr.PC before the Special Judge under PC Act cases, Chennai for discharge on 10.06.2013 in Crl.MP.No.511 of 2013, during the pendency of discharge petition, the petitioner filed the present Crl.OP.No.11171 of 2014 to quash the CC.No.6 of 2013. During the pendency of this criminal original petition, the petitioner withdrawn the discharge petition in Crl.MP.No.511 of 2013 on 09.05.2014. Subsequently, the petitioner filed another petition for discharge before the Special Court on 23.02.2015 in Crl.MP.No.225 of 2015 and the same is still pending, the petitioner is evading the Court proceedings in framing charges stating that this Crl.OP is pending. If there is no alternative or e....
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....uently, the petitioner has filed another petition for discharge on 23.02.2015 in Crl.MP.No.225 of 2015 and the same is still pending, now the petitioner is simultaneously proceeding both the petitions. 18. Though, the petitioner admitted the trap proceedings, his contention is that no recovery was directly made from him during the trap proceedings. The alleged amount was recovered only from the table drawer of A2, further this petitioner has no role in passing the assessment order, the settled proposition of law in bribe cases is demand, acceptance and recovery have to be proved by the prosecution. But, in this case there is no evidence to show that the recovery was made from this petitioner, prima facie, there is no valid material against the petitioner. Before, during and after the trap proceedings, the prosecution has not followed the mandatory rules prescribed under the Manual of Directorate of Vigilance and Anti-corruption. Time and again, the Hon'ble Apex Court and this Court on various occasions have held that the trap laying officer has to follow the procedures contemplated under the DVAC Manual rules, the violation of rules will be viewed seriously. But, in this cas....
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....e specific allegations against the petitioner and prima facie materials are available to proceed the case further. Under Such circumstances, now the point for consideration is whether the non compliance of violation of Manual of Directorate of Vigilance and Anti-corruption Rules would vitiate the proceedings against the petitioner and the same is liable to quashed. 21. In this regard, the learned counsel for the petitioner would finally submit that in very same points earlier two judges of this Court in two different proceedings expressed two different views, therefore prayed to refer this matter to the Division bench for consideration. For which, the learned Additional Public Prosecutor would submit that already a division bench has expressed its view that rules under Manual of Directorate of Vigilance and Anti Corruption are directive and not mandatory and violation of Rules will not vitiate the proceedings. Therefore, there is no need to refer the same before the Division Bench. 22. Considering the submissions made on both sides and on perusal of the records and citations referred on behalf of the counsel for both parties, the contention raised by the learned counsel....