TaxTMI 
TaxTMI 
2021 (3) TMI 432
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....ted (hereinafter referred to as 'the company'). During the inspection, they seized Rs. 36,00,000/- of cash and the records of the company. The sales turnover of the company showed that it had evaded tax to the tune of Rs. 11,01,84,176/- and it was liable to remit double that amount under Section 67 of the Kerala Value Added Tax Act, 2003 (for short 'the KVAT Act'). The second accused, a lawyer, appeared before the petitioner on behalf of the company and he persuaded the petitioner for an amicable settlement of the matter. The third accused was the Director of the company. Accused 1 to 3 entered into a conspiracy and pursuant to such conspiracy, an amicable settlement was fixed on 09.02.2010. On that day, at Hotel Pearl Regency in Thrissur, the second and the third accused gave the petitioner one and a half crore rupees as bribe. Accordingly, the maximum compounding tax which could have been collected was not levied from the company and as a result, the company obtained pecuniary advantage. The petitioner also returned the records to the company without proper verification of the accounts. Thus, the petitioner abused his official position and conspired with the secon....
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....tion report are the same, whether it is a writ petition filed under Article 226 of the Constitution of India or an application filed under Section 482 of the Code. 9. The main principle is that, where the allegations made in the first information report, prima facie, disclose the commission of any cognizable offence, the court shall be extremely reluctant to quash the report, thereby preventing the investigating agency from exercising the statutory power of investigation. The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the first information report. But, if the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied, then the court may interfere. 10. In Bhajan Lal (supra), the following conditions/circumstances are mentioned as illustrations as to when FIR can be quashed by the Court. "1. Where the allegat....
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....valuable thing or pecuniary advantage without any public interest. 12. Insofar as Section 13(1)(d) of the Act is concerned, its essential ingredients are: (i) that the accused should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 13. Ext.P1 FIR contains a specific allegation that the petitioner obtained one and a half crore rupees as bribe from the second and the third accused as a reward for levying reduced amount as tax from the company. If this allegation made in the FIR is taken at its face value and accepted in its entirety, it prima facie, constitutes an offence punishable under Section 13(1)(d) read with 13(2) of the Act. 14. It cannot also be found that the allegations made in Ext.P1 FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. There is also no sufficient material to find that the initiation of th....
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....s as a public servant to reduce the tax liability of the company. Prima facie, this allegation discloses commission of an offence under Section 13(1)(d) of the Act. As held in Amish Devgan (supra), truthfulness or otherwise of this allegation/information is a matter of investigation. Therefore, Ext.P1 FIR cannot be quashed on any factual grounds. 17. Now, the legal grounds raised by the learned counsel for the petitioner to challenge Ext.P1 FIR shall be examined. The question is, whether initiation of the criminal proceedings against the petitioner on the basis of Ext.P1 FIR, is barred under law, either expressly or impliedly. 18. Learned counsel for the petitioner has contended that, initiation of the criminal proceedings against the petitioner by registering Ext.P1 FIR, is barred for the following reasons: (1) The prosecution initiated against the petitioner as per Ext.P1 FIR is barred under Section 79 of the KVAT Act. (2) The institution of the proceedings against the petitioner as per Ext.P1 FIR is barred by limitation under Section 80 of the KVAT Act. (3) Earlier, another FIR had been registered against the petitioner as Crime No. 500/2011 of W....
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.... therein is only in respect of any act done or purported to be done in good faith, in the course of execution of duties or the discharge of functions imposed by or under the KVAT Act. Therefore, the petitioner is also not entitled to get the protection envisaged under Section 79(2) of the KVAT Act. 22. Moreover, in Sivadasan Pillai v. State of Kerala : 2019 (4) KHC 529, this Court has held that, prosecution under the provisions of the PC Act must be governed by the PC Act itself, and such a prosecution cannot be, in any manner, controlled by the provisions of any special or local law by way of protection from prosecution, or immunity from prosecution. It has been held that a public servant facing proceedings or prosecution under the PC Act cannot avail any other protection under any special or local law than what is provided to him under the PC Act. 23. Learned counsel for the petitioner has placed heavy reliance upon the decision of this Court in Pavithran v. Poulose (1978 KLT 431) to substantiate his contention that the petitioner is entitled to get immunity from prosecution by virtue of Section 79(1) of the KVAT Act. The decision in Pavithran (supra) has no application to ....
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.... and the petitioner was Accused No.65. After completing the investigation, final report in that case was filed and cognizance of the offences was taken by the learned Chief Judicial Magistrate, Thrissur on the basis of the final report and the case was numbered as C.C. 23/2012 of that court. 29. Accused 1 to 7 in the aforesaid case were the Managing Director and the Directors of the company M/s. Nano Excel Enterprises. Accused 8 to 64 were the promoters and agents of the company. The allegation against them was that they deceived many persons by making misrepresentation to them that if money was deposited in the company, it would be returned with high profits. It was alleged that many persons deposited money in the company but the accused did not repay the amount. The offence alleged against the petitioner herein, who was Accused No.65 in that case, was under Section 109 of 420 IPC. The allegation against him was that he received illegal gratification of one and a half crore rupees from the company and he assisted the company to continue its activities and thereby, he abetted the act of cheating persons who had deposited money in the company. 30. The petitioner filed an appli....
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....facts and whether its scope of investigation is entirely different or not. The Court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted (See Babubhai v. State of Gujarat : (2010) 12 SCC 254). 35. Only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. Thus, there can be no second FIR and consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence o....
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.... of investigation of that case was not with regard to receiving such illegal gratification by the petitioner. The scope of the investigation of that case was the act of cheating committed by the company against the persons who deposited money in it. There is no material to show that the FIR in Crime No.500/2011 of Wadakkanchery police station was registered on the basis of the incident that took place on 9.2.2010 in Hotel Pearl Regency in Thrissur where the petitioner had allegedly taken bribe from the company. Therefore, it cannot be found that the registration of Ext.P1 FIR for an offence under the Prevention of Corruption Act was not permissible in law. 40. Learned counsel for the petitioner has placed strong reliance upon the decision of the Apex Court in Amitbhai Anilchandra Shah v. Central Bureau of Investigation (AIR 2013 SC 3794) in support of his plea that Ext.P1 FIR is a second FIR based on the same incident. It was a case in which the investigation of the case which was conducted by the State police was taken over by the CBI as per the order of the Apex Court. The CBI registered a second FIR with regard to the same incident on the basis that a larger conspiracy was in....
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.... and allegations. 45. Article 20(2) of the Constitution of India states that, no person shall be prosecuted and punished for the same offence more than once. In order to operate the bar under Article 20(2) of the Constitution, the second prosecution and the consequential punishment thereunder, must be for "same offence", that is, an offence whose ingredients are the same. The application of this provision is conditioned by the identity of the two offences which form the subject of the prosecutions. The crucial requirement for attracting Article 20(2) is that the offences are the same, that is, they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the bar under Article 20(2) of the Constitution would not be available (See State of Bombay v. S. L. Apte : AIR 1961 SC 578). 46. Article 20(2) of the Constitution postulates the doctrine of double jeopardy. The objective of this Article is to avoid harassment, which may be caused by successive criminal proceedings, where the person has committed only one crime. The principle is that no man shall be ....
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....sistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same but also, the fact in issue, proved or not, as present in the earlier trial, must be identical to what is sought to be re-agitated in the subsequent trial (See Ravinder Singh v. Sukhbir Singh: AIR 2013 SC 1048). 51. In Masud Khan v. State of Uttar Pradesh : AIR 1974 SC 28, it is stated as follows: "The principle of issue estoppel is simply this : that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently, even for a different offence which might be permitted by law". 52. The principle of issue estoppel has no application here. The doctrine is only concerned with the admissibility of evidenc....