TaxTMI 
TaxTMI 
2024 (6) TMI 35
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....Chittaranjan Nath, on personal grudge and vengeance. 3. The background facts, leading to filing of the present petition, is briefly stated as under:- "The complainant/respondent No. 2, Shri Chittaranjan Nath, being the proprietor of Pawan Enterprise, Tezpur had executed construction works in (i) NF Railway, Maligaon, (ii) Central Assam Electricity Distribution Company, (iii) Assam Power Distribution Company,(iv) Tezpur Municipality Board, (v) Apeejay Tea Limited, during the year 2013 to 2017, and for the same he raised bills from the said establishments and also received payment. Thereafter, on the basis of receipt of payment, the Additional Commissioner, Central Goods and Service Tax, Dibrugarh raised a demand of service tax, amounting Rs. 48,43,034/, vide adjudication order No. 02/ADC/ ADJ/ST/COMMR/DIB/18/2021-22, dated 23.07.2021. Being aggrieved by the said order, the complainant/respondent No. 2 had filed one appeal before present petitioner, the then Commissioner (Appeals), CGST, Central Excise & Customs, Guwahati on 19.10.2021. Hearing of the said appeal took place before the petitioner, but, he did not pass any order and demanded an illegal gratification of Rs. 4,50,0....
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....n such count it falls in the category No. 5 of the decision in the case of State of Haryana vs. Bhajanlal reported in 1992 Supp. (1) SCC 335, and it is an abuse of the process of law by the respondent No. 2; (ii) That, the respondent No. 2 had ulterior motive to falsely drag the petitioner as he was already facing tax liability of Rs. 1,55,77,366 and 20% interest thereon and he had received show cause notice dated 24.08.2013 originally proposing a service tax liability of Rs. 77,88,683 along with 124% mandatory penalty and he had suppressed this fact deliberately and hoodwink the respondent No. 1 into an illusion; and the tax evading antecedent of the respondent No. 2 cast a doubt about the veracity of allegations leveled by him against the petitioner; (iii) That, the respondent No. 1 had violated almost all the relevant provision of law relating to filing of FIR, arrest, personnel search, pre-trap and post trap proceeding. There is delay in lodging the FIR and while the first demand of bribe was made on 24.08.2022, the FIR was lodged on 14.09.2022, after a period of 20 days and reason for delay was not mentioned in the FIR and the respondent No. 1 had failed to e....
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.... without any prima-facie material evidence relating to demand and acceptance of bribe and he had no acquaintance with the so called courier agent and other persons arrayed in the FIR and that section 120B IPC is not attracted herein this case. Besides, there is no iota of evidence to show that the so called recovery is attributable to any demand or acceptances, which are the twin requirement to attract section 7 of the Prevention of Corruption Act, made by the petitioner; and that no prima-facie offence is made out or disclosed against the petitioner for the offence u/s 120B IPC and section 7 or 7A of Prevention of Corruption Act; (vii) That, the case of the petitioner falls in the category of rarest of the rare cases as it involves the personal liberty and dignity of the petitioner as provided in Article 21 of the Constitution of India, which needs to be restored; (viii) That, the inherent power of this court under section 482 Cr.P.C. has to be exercised to prevent abuse of the process of the court and to ensure justice; 5. The respondent CBI has filed objection petition wherein it is stated that as per Memo of Arrest the petitioner was arrested on 29.09.2022 ....
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....ner and as such no demand can be raised; (ii) No preliminary enquiry was conducted as required under section 17-A of the Prevention of Corruption Act and the circumstance of the case requires prior approval; (iii) That section 41A Cr.P.C. has not been complied with and as such it is an abuse of the process of law; (iv) That, there is delay in granting prosecution sanction under section 19 of the P.C. Act, and the sanction order was issued in the month of August 2023 whereas time line is only four months in view of decision of Hon'ble Supreme Court in Vineet Narain & Others vs. Union Of India & Another reported in 1998 (1) SCC 226; (v) That foundational facts are necessary to establish a prima facie case and in the case in hand the same are shaky and the complaint has been filed on personal grudge; (vi) That, the present case is false and fabricated and it falls in the category of cases mentioned in 1,2,3,6 & 7 of paragraph No. 102 of the decision in Bhajanlal (supra); 6.1. Ms. Bordoloi, learned counsel for the petitioner, has also referred following case laws to bolster her submission:- (i) State of U.P. Through CBI SPE, Luck....
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.... of the Prevention of Corruption Act, is made out and as such none of the grounds mentioned in paragraph No. 102, in the case of Bhajanlal (supra) is attracted herein this case; (ii) That, there was clear demand of Rs. 4,50,000/ from the complainant by the accused/petitioner; (iii) That, approval for investigation under section 17-A is not required as demanding of bribe by the accused/petitioner is not at all related to discharging of official duty; (iv) That, no preliminary enquiry is required to be conducted and the same is not mandatory in view of already settled principles of law so laid down in the case of Central Bureau Of Investigation (CBI) vs. Thommandru Hannah Vijayalakshmi @ T.H., 2021 AIR OnLine 2021 SC 869 (v) That, sanction to prosecute the accused/petitioner was granted by the President; (vi) That, some of the accused namely, Rajendra is a hawala agent and he was arrested in this case; (vii) That, there is no merit in this petition and the same has to be dismissed; 8. In her reply to above, Ms. Bordoloi submits that the informant was not present at the time of hearing of the appeal preferred by him and that the....
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....her to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. 27. This Court then carved out some exceptions to the above stated rule. These are: (i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings in respect of the offences alleged. Absence of the requisite sanction may, for instance, furnish cases under this category; (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not;....
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.... made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint 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. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, 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 mot....
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....e statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. In the aforementioned judgment, this Court set aside the order of the Patna High Court and quashed the summons issued by the First Class Judicial Magistrate in Complaint Case No. 1613) of 2002 on the ground that the same was barred by limitation prescribed under Section 468 (2)) Cr.P.C. 30. In Ramesh Chand Sinhas case (supra) this Court quashed the decision of the Chief Judicial Magistrate, Patna to take cognizance of the offence allegedly committed by the appellants by observing that the same....
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....es not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 Cr.P.C." 12. In the case of M/s. Indian Oil Corporation vs. M/s. Nepc India Ltd., & Ors reported in 2006 (6) SCC 736, Hon'ble Supreme Court has culled out the relevant principle for the purpose of quashing complaint as under:- : (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated w....
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.... for to do so would be to trench upon the lawful power to investigate into cognizable offences. 14. Thereafter, in the case of M/s Neeharika Infrastructure Pvt. Ltd. (supra), by a three Judge Bench of Hon'ble Supreme Court has dealt with the issues as under:- ************ *********** (iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; ********** ************* (x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of....
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....when the matter has been taken cognizance of by the competent court, is completely incorrect and uncalled for." 17. The proposition of law, which can be crystallized from the discussion made herein above, is that this court cannot embark on an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. Exercise of the inherent powers to quash the proceedings, when it is instituted on complaint, is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The requirement is that the complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference. If the allegations set out in the complaint do not constitute the offence....
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....he respondent No. 2 to handover the said amount of illegal gratification to him at Mahabir Bhawan, Athgaon, Guwahati (xi) Then accused Mahabir (A-4) demanded a brokerage charge, amounting Rs. 8,000, totaling Rs. 3,83,000/, on 28.09.2022 from the respondent No. 2; (xii) Thereafter, respondent No. 2 had lodged the FIR and upon registration of the same a trap was laid on 28.09.2022, and accused Mahabir (A-4) was caught red handed in his shop No. 29 at Mahabir Bhawan, while demanding and accepting Rs. 3,83,000/ on behalf of the petitioner, from the respondent No. 2; (xiii) Thereafter, having carried out the investigation charge sheet was laid on 25.01.2023, against the present petitioner, Shri Avinash (A-3) and Shri Mahabir Jain Shyamsukha (A-4) to stand trial under section 7 & 7A of Prevention of Corruption Act, 1988 read with section 120 (B) IPC; (xiv) Thereafter, on 17.02.2023, a supplementary charge sheet was filed against accused Shri Rajendra @ Amol D. Medhekar (A-2), to stand trial under section 120-B/419 IPC and under section 7 & 7 A of Prevention of Corruption Act and under section 66B of Information Technology Act, 2000. 20. The scanned ....
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....tances of the case in hand, and as discussed herein above, the said submission left this court unimpressed. Therefore, the ratio laid down in the case of Bhajanlal's (supra), as relied upon by Ms. Bordoloi would not advance the case of the petitioner. 24. It is to be noted here that in the case of P. Chidambaram (supra) it has been held by the Hon'ble Supreme Court that power under section 482 Cr.P.C. is to be exercised in rare cases, where there is a clear abuse of power and non-compliance of the provisions falling under Chapter-XII of the Code of Criminal Procedure. Requirement of Preliminary Enquiry:- 25. The requirement of preliminary enquiry before registration of an FIR has been dealt with by Hon'ble Supreme Court in Thommandru Hannah Vijayalakshmi (supra), wherein it has been held as under:- "In view of the above discussion, we hold that since the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, PC Act or even the CBI Manual, for this Court to issue a direction to that affect will be tantamount to stepping into the legislative domain. Hence, we hold that in case the informati....
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....ney General (AG) or any other law officer in the AG's office." 29. Thus, there appears to be substance in the submission of Ms. Bordoloi, the learned counsel for the petitioner. But, what remains to be seen is what would be the consequence of violation of above timelines and can it be a ground for quashing the proceeding. Be it noted here that the learned counsel for the petitioner has canvassed this issue of violation of timeline as one of the grounds for quashing the petition. This question stands answered by Hon'ble Supreme Court in the case of Vijay Rajmohan v. CBI, reported in (2023) 1 SCC 329, in the following paragraphs:- "30. The intention of Parliament is evident from a combined reading of the first proviso to Section 19, which uses the expression "endeavour" with the subsequent provisions. The third proviso mandates that the extended period can be granted only for one month after reasons are recorded in writing. There is no further extension. The fourth proviso, which empowers the Central Government to prescribe necessary guidelines for ensuring the mandate, may also be noted in this regard. It can thus be concluded that Parliament intended that the pro....
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.... also be non-application of mind in such cases. 33. It is in between these competing interests that the Court must maintain the delicate balance. While arriving at this balance, the Court must keep in mind the duty cast on the competent authority to grant sanction within the stipulated period of time. There must be a consequence of dereliction of duty to giving sanction within the time specified. The way forward is to make the appointing authority accountable for the delay in the grant of sanction." 30. In view of above decision, this court is of the considered opinion that there is no merit in the submission of Ms. Bordoloi, the learned counsel for the petitioner. Accordingly, the same stands repudiated. Mala fides, ulterior motive on the part of the informant to falsely implicate the petitioner:- 31. Though, the learned counsel for the petitioner submits that the complainant/respondent No. 2 had implicated the petitioner falsely as he was already facing tax liability of Rs. 1,55,77,366 and 20% interest, yet, such a plea, which appears to be an ex-facie a defence plea that has to be considered at the stage of trial. It is worth mentioning herein this context that....