TaxTMI 
TaxTMI 
2026 (2) TMI 1105
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....and style 'Kiran Industries' standing in the name of his mother-Smt. Surekha, whereunder vehicle spare parts are being manufactured. The Industry was situated at plot No.12, Lakamanahalli Industrial Area, Dharwad. There are seven workers working in the industry. 2.2 It is his further case that on 06.11.2012, when the complainant was in the industry, Sri Balaswamy who is the Commercial Tax Assistant Commissioner and his assistant-Sri Basheerahamad, S/o Maktumsab Mulla (respondent/accused) visited the industry and demanded the books of accounts for the year 2011-2012 and 2012-2013 for inspection. Complainant furnished the necessary instructions by taking the print out from the computer and assured to furnish the account books and balance sheets as the same were with the Chartered Accountant and sought for about 2 to 3 days' time. 2.3 At that juncture, it is the respondent who said that Rs.5,000/- to Rs.10,000/- would be charged per visit to the industry and demanded the said money. When the complainant refused to pay the same, he was instructed to visit the office of the Assistant Commissioner of Commercial Tax along with the necessary records. About 2 to 3 days later complaina....
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....e tainted currency notes which the accused took it from his right hand and kept it in his shirt pocket and went to the office. 6. Thereafter, raid team followed the complainant inside the office of the accused. At about 03.50 p.m., accused was identified by the complainant and accused has been apprehended by showing the identity card. 7. Accused revealed his name as Basheerahamad Maktumsab Mulla and told that he has kept the money in the almirah and took out the same. Ten currency notes of Rs.500/- denomination were seized from the accused and serial numbers of the said currency notes were compared with the serial numbers noted in the experimental mahazar. The colour test stood positive and accused was arrested. 8. After thorough investigation by the Lokayukta Police, a charge sheet came to be filed. 9. Presence of the accused was secured and thereafter, charges were framed. Accused pleaded not guilty and therefore, Trial was held. 10. In order to prove the case of the prosecution, in all twelve witnesses were examined as P.Ws.1 to 12 and, 29 documentary evidence were placed on record which were exhibited and marked as Exs.P.1 to P.29 besides 14 material objects, mar....
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....ective and wrongly acquitted the accused. 15. He would further contend that the material evidence placed on record through oral testimony of PWs-1 and 2 clearly discloses the demand of illegal gratification by the accused for issue of clearance certificate to the complainant. 16. He further argued that PW-2 has specifically deposed that on 23.02.2013 he has witnessed the demand made by the accused and then the tainted currency was handed over to the accused which was kept in his shirt pocket and recovered from the almirah which would make it clear that the prosecution has been successful in establishing all the ingredients to attract the offence under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act. Therefore, the Order of acquittal is incorrect. 17. Since there was no representation on behalf of the respondent, Ms. Vaishali K. Kaladagi, learned counsel was appointed as amicus curiae to represent the respondent/ accused in the present appeal. 18. Learned amicus curiae would contend that the complainant has not supported the case of the prosecution and he has turned hostile. Therefore, complainant has been treated as partly hostile witness and ....
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....s signature on the mahazar. In his cross-examination by prosecution, he admits the contents of trap mahazar. 25. In his cross-examination on behalf of accused, he admits that his industry would be covered by Value Added Tax and he would get the notice from the Value Added Tax Department. He admits that on 06.11.2012, Balaswamy had visited the industry for the first time. He deposes that he does not know whether Balaswamy or the accused had the right to inspect the office. He admits that for obtaining the clearance certificate, a specific form needs to be furnished and he did not furnish the same. 26. He admits that he did not complain to the higher officials of the Department with regard to the demand made by the accused. He further admits that, when Lokayukta police made a search of the accused, tainted currency was not found in the shirt or the pant pocket of the accused. He also admits that he has not given any requisition for issue of clearance certificate to the office of the accused. 27. PW-2 is the shadow witness. He has supported the case of the prosecution by deposing in line with experimental mahazar and trap mahazar. 28. He has however answered in the examina....
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.... nature is coming from the side of the prosecution regarding such deliberate silence of complainant for a long period till February-2013. This is one aspect. 17. As per the complaint allegations itself the complainant has given up the first allegation of demanding of bribe by the accused in respect of his visit to industry and by changing this version he contends that the accused has demanded the bribe in connection of issuance of clearance certificate. According to the complainant on 20.12.2012 he had received a notice from Commercial Tax Office wherein the office has directed him to produce the accounts for verification of payment of VAT. The complainant has produced the documents along with his clerk Sri. Goddemmi. The accused did not verify the records and demanded the bribe once again. This is the 2nd story made out by the complainant in his complaint in respect of demand of bribe by accused. 18. It is contended by the complainant that, on 20.2.2013 he approached the Lokayukta Police and intimated this fact of demand of bribe by the accused to said Lokayukta Police. On that day the I.O. gave a voice recorder with an instruction to the complainant to record th....
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....has stated that, he never witnessed the demand of bribe by the accused from the complainant near at canteen on the previous day of trap." 32. In other words, when no application was given for the purpose of issue of clearance certificate and, when accused and Balaswamy were not competent for issue of clearance certificate, the complaint averments and oral testimony of the complainant that accused demanded illegal identification for issue of clearance certificate cannot be countenanced in law. 33. Moreover, it has been admitted by PW-1 that the first visit took place in the month of November 2012 and the demand was in the month of February 2013. 34. Why would the complainant keep quiet without complaining to the higher authorities regarding the illegal gratification demanded by the accused is a question that remains unanswered on behalf of prosecution. 35. Complainant has also categorically admitted that his industry is covered by Value Added Tax. How accused and his assistant namely Balaswamy were involved in issuance of the clearance certificate is not properly established by the prosecution. 36. Taking note of these aspects of the matter, merely on the ground that ....