Bangalore District Court
State By Economic Ofences vs Nos.1 To 3 Have Played A Fraud On The on 2 December, 2019
IN THE COURT OF THE I ADDL.CMM: BENGALURU
Dated this the 2nd day of December 2019.
Present: Shri V.Jagadeesh, B.Sc., LL.M.
I Addl. C.M.M BENGALURU.
JUDGMENT U/s.355 Cr.P.C.,
Case No. : C.C.No.13668/2016
Date of Ofence : 5-11-2009 to 31-12-2011
Name of complainant : State by Economic Ofences
Division, C.I.D,
Bengaluru.
Name of accused : 1. Asgar Sharif
s/o Muneer Sharif,
aged 39 years,
r/o No.35/4
Between Haris road and cols
Park road of Spensor road,
Frazer town, Bengaluru,
2. Smt. Saroja Agarwal
w/o Trilok Chand Agarwal,
aged 51 years,
3. Trilok Chand Agarwal
s/o R.S.Agarwal,
aged 54 years,
both are r/o Mohan Steel
Supplies Building, 2nd foor,
opp. Masjid, V.V.Extension,
2 C.C.No.13668/2016
Hosakote,
Bengaluru rural district.
Ofences complained of: U/s.465, 468 & 4711 r/w Sec.34
of IPC
Plea of accused : Pleaded not guilty
Final Order : Accused are acquitted
Date of Order : 2-12-2019.
JUDGMENT
The Inspector of Police, Economic Ofences Division,C.I.D. Bengaluru has fled the charge sheet against the accused Nos.1 to 3 for the ofences punishable under Sections 465, 468 and 4711 r/w Section 371 of IPC.
2. It is the case of the prosecution that, the accused No.1 has established a shop in the name of Zed link Enterprises at No.34, 8th main road, Ganganagar, Bengaluru and obtained TIN No.296307198024 on 24-4-2008 by furnishing created and false voter ID 3 C.C.No.13668/2016 card, birth certifcate and rental agreement for dealing in hardware, pipes, PVC pipes, Acrylic sheets, aluminum and copper materials and changed the name of the shop into Bengaluru Enterprises on 14-5-2008 and without carrying any such commercial business in the said articles and without using the E-sugams, he has entered into a transaction with accused No.2 in respect of frm called Sree Sham Traders bearing Tin No.2971107180423 between 18-71-2008 to 26-3-2009 to the tune of Rs.1,34,92,658/- in iron and steel and liable to pay tax of Rs.5,18,920/- and accused No.2 entered into transaction with accused No.3 between 5-11-2009 to 31-12-2011 to the tune of Rs.25,18,82,368/- and liable to pay tax of Rs.96,871,810/- and thereby the accused Nos.1 to 3 have played a fraud on the Government and failed to pay the tax. Under such circumstances, a case has been registered against the accused Nos.1 to 3 before the jurisdictional police. 4 C.C.No.13668/2016 Accordingly, R.T.Nagar Police have registered a case against the accused Nos.1 to 3 for the ofences punishable under Sections 465, 468 and 4711 r/w Section 371 of IPC in Crime No.58/2012. Thereafter, as per the order of the Commissioner of police, case records have been transferred to C.I.D E.O.D, Bengaluru for investigation. The Investigating Ofcer, after completion of investigation, has fled the charge sheet against the accused Nos.1 to 3 for the alleged ofences.
3. After appearance of the accused Nos.1 to 3, necessary documents, as relied on by the prosecution, are furnished to the accused Nos.1 to 3, as provided under Section 2071 of Cr.P.C. Charge has been framed and same is read over and explained to the accused Nos.1 to 3. The accused Nos.1 to 3 pleaded not guilty 5 C.C.No.13668/2016 and claims to be tried. Therefore, the case was posted for prosecution evidence.
4. C.Ws.1 to 26 have been cited as charge sheet witnesses. In order to prove the guilt of the accused No.21, during the course of trial, C.Ws.3, 12 and 26 are examined as P.Ws.1 to 3 respectively and got marked Exs.P1 to P94. So far as other charge sheet witnesses are concerned, their presence is not secured, inspite of sufcient time and repeated issuance of summons and warrants and proclamation. Therefore, they are dropped.
5. After completion of prosecution evidence, the statement of the accused Nos.1 to 3 was recorded under Section 313 of Cr.P.C. The accused Nos.1 to 3 have not adduced any defence evidence on their 6 C.C.No.13668/2016 behalf. Therefore, there is no defence evidence on behalf of the accused Nos.1 to 3.
6. Heard the arguments of learned Senior A.P.P. and counsel appearing for accused Nos.1 to 3. The points that would arise for my consideration are as under:
1. Whether the prosecution proves beyond all reasonable doubt that, the accused Nos.1 to 3 have committed the ofences punishable under Sections 465, 468 and 4711 r/w Section 34 of IPC?
2. What order ?
71. My answer to the above points are as under:
Point No.1: In the Negative.
Point No.2: As per fnal order, for the following: 7 C.C.No.13668/2016
REASONS
8. Point No.1:- The contention of the prosecution is that the accused No.1 has established a shop in the in the name of the Zed Link Enterprises at No.34, 8 th main road, Ganganagar, Bengaluru and obtained TIN No.296307198024 on 24-4-2008 by furnishing created and false voter ID card, birth certifcate and rental agreement for dealing in hardware, pipes, PVC pipes, Acrylic sheets, aluminum and copper materials and changed the name of the shop into Bengaluru Enterprises on 14-5-2008 and without carrying any such commercial business in the said articles and without using the E-sugams, he has entered into a transaction with accused No.2 in respect of frm called Sree Sham Traders bearing Tin No.2971107180423 between 18-71-2008 to 26-3-2009 to the tune of Rs.1,34,92,658/- in iron and steel and liable to pay tax of Rs.5,18,920/- and accused No.2 entered into 8 C.C.No.13668/2016 transaction with accused No.3 between 5-11-2009 to 31-12-2011 to the tune of Rs.25,18,82,368/- and liable to pay tax of Rs.96,871,810/- and thereby the accused Nos.1 to 3 have played a fraud on the Government and failed to pay the tax and thereby the accused Nos.1 to 3 have committed the ofences punishable under Sections 465, 468 and 4711 r/w Section 34 of IPC.
9. In order to prove the guilt of the accused Nos.1 to 3 for the ofences punishable under Sections 465, 468 and 4711 r/w Section 34 of IPC, C.W.3 is examined as P.W.1. P.W.1 has deposed in chief-examination that he was working as an Assistant Commissioner of Commercial Taxes in LVO -150, Bengaluru. It is further deposed by him that one Iqbal Ahamed has presented the application in the name of Asgar Sharief i.e, the accused No.1 to obtain VAT certifcate and TIN number, for dealing with hardware materials in the name of 9 C.C.No.13668/2016 Zed Link Enterprises. Accordingly his ofcial has visited the spot and submitted the report. On the basis of the report, they have issued VAT registration certifcate and also allotted TIN number and got marked certain documents as Exs.P1 to P12.
10. The learned counsel for accused has cross-examined P.W.1 in brief. In the course of course-examination, P.W.1 has deposed to the following efect:
CfðzÁgÀ£ÀÄ ºÁdgÀÄ¥Àr¹zÀ J¯Áè zÁR¯ÉUÀ¼À£ÀÄß ¥Àj²Ã°¹ ªÁåmï ¸ÀASÉåAiÀÄ£ÀÄß ¤ÃrgÀÄvÉÛêÉ. CfðzÁgÀ¤UÉ £ÉÆAzÀtô ¥ÀvÀæ ªÀÄAdÆgÀÄ ªÀiÁqÀĪÀÅzÀPÉÌ ªÀÄAZÉ CªÀgÀÄ ªÁå¥ÁgÀ ªÀiÁqÀĪÀ ¸ÀܼÀ PÉÆlÖAvÀºÀ «¼Á¸ÀPÉÌ ¨ÀsÉÃn PÉÆlÄÖ £ÀAvÀgÀ £ÉÆAzÀtô ¥ÀvÀæªÀ£ÀÄß PÉÆqÀÄvÉÛêÉ. ¢B 17.01.2012 gÀ°è ¸ÀA§AzÀs¥ÀlÖ ªÀÈvÀÛzÀ°è 10 C.C.No.13668/2016 £Á£ÀÄ PÉ®¸ÀªÀ£ÀÄß ªÀiÁqÀÄwÛgÀ°®è JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸Àj.
The evidence of P.W.1 as above is sufcient to establish that before issuing VAT certifcate and allotting TIN number, the procedure prescribed, have been followed by making spot mahazar and also by inquiring with regard to existence of the frm. When that being the case, the allegations made against the accused that he has obtained VAT certifcate and TIN number on the basis of false document, is totally unsustainable. In fact P.W.1 has deposed that one Iqbal Ahamed has fled an application, but not the accused. Hence, his evidence is also not sufcient to prove the guilt of the accused Nos.1 to 3 for the alleged ofences.
11 C.C.No.13668/2016
11. C.W.12 is examined as P.W.2 P.W.2 has deposed that he was an Accountant in M/s Zed Link Enterprises and used to submit monthly and annual returns to the concerned Commercial Tax Department in prescribed form. Except this, he does not know anything about the said frm.
12. Similarly in cross-examination P.W.2 has deposed to the following efect:
¸ÀA¸ÉÜUÉ ¸ÀA§AzÀs¥ÀlÖAvÉ ªÁåmï ¸ÀASÉåAiÀÄ£ÀÄß vÉUÉzÀÄPÉÆArgÀÄvÉÛãÉ. CzÀ£ÀÄß ©lÄÖ ¨ÉÃgÉ «µÀAiÀÄ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è.
The evidence of P.W.2 as above is also not sufcient to prove the alleged ofences against the accused Nos.1 to 3.12 C.C.No.13668/2016
13. C.W.26 is examined as P.W.3. P.W.3 is the Investigating Ofcer, who has deposed with regard to investigation concocted by him during the course of investigation. The learned counsel for accused has cross-examined P.W.3 in detail, in which P.W.3 has deposed to the following efect:
1 ºÁUÀÆ 2£Éà DgÉÆæUÀ¼ÀÄ MlÄÖ 96,87,810/- gÀÆ vÉjUÉAiÀÄ£ÀÄß ¸ÀPÁðgÀPÉÌ PÀlÖ¨ÉÃPÁVgÀÄvÀÛzÉ. DzÀgÉ 1 ºÁUÀÆ 2£Éà DgÉÆæUÀ¼ÀÄ JµÀÄÖ vÉjUÉAiÀÄ£ÀÄß ¥ÀævÉåÃPÀªÁV PÀlÖ¨ÉÃPÉAzÀÄ £À£ÀUÉ ºÉüÀ®Ä DUÀĪÀÅ¢®è. CzÀÉà jÃw 1 ºÁUÀÆ 2£Éà DgÉÆæUÀ¼ÀÄ JµÀÄÖ ¨Áj ªÀåªÀºÁgÀ £ÀqɹzÁÝgÉ ºÁUÀÆ CªÀÅUÀ½UÉ ¸ÀA§AzÀs¥ÀlÖ JµÀÄÖ E£ïªÁ¬Ä¸ïUÀ¼ÀÄ ¤ÃqÀ¯ÁVvÀÄÛ JAzÀÄ ºÉüÀ®Ä DUÀĪÀÅ¢®è.
The ignorance pleaded P.W.3 is not sufcient to prove the guilt of the accused Nos.1 to 3 for the alleged 13 C.C.No.13668/2016 ofences. As already discussed above, the Commercial Tax Ofce ofcials have allotted TIN number and issued VAT certifcate after verifying all the details. Therefore, the oral evidence of P.W.1 to 3 is not sufcient to prove the guilt of the accused Nos.1 to 3 for the ofences punishable under Sections 465, 468 and 4711 r/w Section 34 of IPC, beyond all reasonable doubt. Hence, it is held that the accused Nos.1 to 3 are entitled for acquittal for the alleged ofences. Accordingly, I answer point No.1 in the negative.
14. Point No.2:- In view of my answer on the point No.1, I proceed to pass the following:
ORDER The accused Nos.1 to 3 are not found guilty for the ofences punishable under Sections 465, 468 and 4711 r/w Section 34 of IPC. Therefore, they are acquitted for the said ofences under Section 248(1) Cr.P.C.14 C.C.No.13668/2016 The bail bonds of the accused Nos.1 to 3
stands cancelled.
(Dictated to the stenographer, transcribed by her, revised and then corrected by me and then pronounced in open court on this the 2nd day of December 2019).
(V.Jagadeesh) I Addl. CMM., Bengaluru.
ANNEXURE List of witnesses examined on behalf of prosecution:-
P.W.1, Harish Kumar Malhotra, P.W.2, Iqbal Ahamed, P.W.3, Nemiraju;
List of documents marked on behalf of prosecution:-
Ex.P1, Certifed copy of VAT application Ex.P2 to Ex.P5, VAT Form II, III, IV and V, Ex.P6, Application in form NO.II, Ex.P71, VAT certifcate, Ex.P8, Application given by the accused for change of frm name, Ex.P9, VAT certifcate containing change of frm name, Ex.P10, Certifed copy of voter ID card, Ex.P11 & Ex.P12, Rental agreements pertaining to business premises, Ex.P13, Certifed copy of VAT Form 555, Ex.P14, Bank statement, 15 C.C.No.13668/2016 Ex.P14(a), Signature of P.W.3, Ex.P15 to Ex.P171, Requisitions, Ex.P15(a) to Ex.P171(a), Signatures of P.W.3, Ex.P18, Requisition, Ex.P19 to Ex.P718, Cheques, Ex.P719, Report, Ex.P719(a), Signature of P.W.3, Ex.P80 to Ex.P94, VAT and its documents; List of material object: NIL List of witnesses examined on behalf of the defence:- NIL List of documents marked on behalf of the defence:- NIL (V.Jagadeesh) I Addl. CMM., Bengaluru.
16 C.C.No.13668/2016
2/12/2019
State by Sr.APP A1 to 3 present.
Accused No.1 to 3 C/B
For Judgment
(Judgment pronounced in the Open Court) ORDER The accused Nos.1 to 3 are not found guilty for the ofences punishable under Sections 465, 468 and 4711 r/w Section 34 of IPC. Therefore, they are acquitted for the said ofences under Section 248(1) Cr.P.C. The bail bonds of the accused Nos.1 to 3 stands cancelled.
(V.Jagadeesh), I ACMM, Bengaluru.17 C.C.No.13668/2016
18 C.C.No.13668/2016 19 C.C.No.13668/2016