TaxTMI 
TaxTMI 
TaxTMI 
2021 (1) TMI 859
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....riod of one year and to pay fine in sum of Rs. 5,000/- in default to suffer further rigorous imprisonment for six months. (ii) convicted for the offence punishable under-Section 409 of Indian Penal Code and sentenced to suffer rigorous imprisonment for the period of one and half year and to pay fine in sum of Rs. 7,500/- in default to suffer further rigorous imprisonment for nine months. (iii) convicted for the offence punishable under Section 420 of the IPC and sentenced to suffer rigorous imprisonment for the period of one and half year and to pay fine of Rs. 7,500/-, in default to suffer further rigorous imprisonment for nine months. (iv) convicted for the offences punishable under Sections 468, 471, 477-A read with Section 109 of ....
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....efore adverting to the arguments advanced by the learned Counsel, it may be stated that, Suresh Kagane-accused no.1 was tried alongwith accused nos.2, 3, 4 and 5. Accused no.2 was a Sales Tax Officer; accused no.3-Sales Tax Inspector, accused no.5 was a registered 'dealer' within the meaning of the Bombay Sales Tax Act and accused no.4 is the son of accused no.5. 6. Gist of prosecution's case unfolded in evidence is; that, Suresh Kagane (hereinafter called as "the deceased") and co-accused in connivance, made a false claim for set-off (refund of sales tax) admissible to dealers, engaged in the business of extracting oil from power oil ghanas, whose sales were exempted under Entry No.39, Schedule 'A' appended to the Bombay Sales Tax Act. Ac....
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....der the Sales Tax Act, when noticed this fact, initially had decided to revise the assessment orders passed by Suresh Kagane. However, later department had directed Kagane to re-open the original assessment orders and re-assess both the entities i.e. M/s. M.C. Dhangapure (accused no.5) and M/s. V.S. Kalshetti to whom the refund orders were issued pursuance to assessment orders passed by him. It appears, Mr. Kangane had passed the re-assessment orders for the period 8th November, 1980 to 27th October, 1981. It is further unfolded in evidence that, for this period, Rs. 61,000/- were refunded to accused no.5, M/s. M.C. Dhangapure and Rs. 60,000/- to Mr. Kalshetti. 7. Sales Tax Department, held enquiry which culminated into First Information R....
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....duced by the dealers for claiming the set-off. The tenor of the evidence of this witness, therefore suggests that Mr. Kagane had overlooked the norms while issuing refund orders. Suffice to say, Sales Tax Department did not deliberate on issue whether Mr. Kagane and other public servants, knowingly overlooked and jumped the procedure and norms while granting set-off claim. 11. Faced with this kind of evidence, after examining 92 witnesses, pardon was tendered to the accused no.4 and he was examined as a 'prosecution witness'. Though, order granting pardon was challenged before this Court and the Apex Court, the challenge was not entertained. 12. Be that as it may, fact remains that, the learned trial Court relied on the evidence of approv....
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....atement of the accused under Section 313 of Cr.P.C. 16. It is possible that P.W.93 might have accepted tender of pardon when he realised that some heat may also turn upon him. In my opinion, it was highly risky to rely upon such a witness. The learned trial Court should not have believed evidence of such a witness particularly when almost all prosecution witness were cross-examined on behalf of him when he was sitting in the dock of the accused. Learned counsel for the appellants have rightly criticised that the pardon should not have been tendered to P.W.93 when the case was about to be closed. The criticism on behalf of the appellants is well founded in as much as P.W.93 has filled up the wide gap in the prosecution case. The ultimate a....
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....icism that pardon was tendered to one of the accused at the fag end of the trial in an effort to fill up the lacunae in its case." In the case in hand, approver tendered pardon after examining 93 witnesses, i.e. at the fag end of the trial, obviously to fill up the lacunae in this case. 16. Learned Counsel, has taken me through the impugned judgment to contend that the trial Court to great extent, relied on the testimony/evidence of the approver to conclude the guilt of accused, but since now, approver's evidence has been discarded, being worthless by this Court in the appeal filed by the co-accused, approver's evidence is to be kept out of consideration even while deciding this Appeal. 17. I have no reason to reject this contention of t....