Kerala High Court
N.N.Dikshit vs Superintendent Sbi on 15 July, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY,THE 29TH DAY OF FEBRUARY 2016/10TH PHALGUNA, 1937
CRL.A.No. 1255 of 2005
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CC 17/2003 OF SPECIAL COURT, CBI-I, ERNAKULAM, DATED 15-07-2005
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APPELLANT(S)/ACCUSED:
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N.N.DIKSHIT,
COMMISSIONER OF INCOME TAX,
APPEALS - 5, INCOME TAX BUILDING,
I.S.PRESS ROAD, ERNAKULAM, NOW RESIDING AT
A-5B/349, PASELIM VIHAR, NEW DELHI.
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
RESPONDENT(S)/COMPLAINANT.:
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SUPERINTENDENT SBI,
TRIVANDRUM.
BY ADV. SRI.P.CHANDRASEKHARA PILLAI, SC
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2015 THE
COURT ON 29-02-2016, THE SAME DAY DELIVERED THE FOLLOWING:
PJ
"C.R"
P.UBAID, J.
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Crl.A No.1255 of 2005
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Dated this the 29th February, 2016
J U D G M E N T
The appellant herein was the Commissioner of Income Tax (Appeals)-V, Ernakulam during 2000-2002. On the allegation that he received an amount of 10,000/- as illegal gratification from one Johny on 31.7.2002 at about 4 p.m, as a reward for passing favourable orders in the appeal brought by the said Johny against the assessment order passed and penalty imposed, by the Assistant Commissioner of Income tax, Thrissur, the appellant faced prosecution before the learned Special Judge (SPE/CBI)-I, Ernakulam in C.C 17/2003. The said said Johny is a businessman having some share trading business and other business activities and he has a company by-name 'Johny & Company', started in 1988. On the ground of failure on his part to submit income tax returns in time, the Income Tax Authorities conducted a raid at his office and his residence on 2.2.1994 and seized some documents. Proceeding under the Income Tax Act was initiated against Crl.A No.1255 of 2005 2 him and in the said proceeding, the Income Tax Commissioner (Investigation), Thrissur passed orders directing him to pay the amount of tax due and also imposing a penalty of 22703/- under Section 271B of the Income Tax Act (for short "I.T Act"). He remitted the amount of tax and paid the amount of penalty, and preferred an appeal against the order before the Income Tax Commissioner. The said appeal came up for hearing before the appellant herein.
2. On getting notice dated 11.6.2002, the complainant Johny appeared before the accused on 27.6.2002, and submitted his hearing notes. Hearing of the appeal was adjourned to 1.7.2002. On the said day, a Chartered Accountant appeared before the accused on behalf of the complainant Johny on authorisation, and made arguments. Later, Johny received a notice from the office of the Commissioner of Income Tax in a proceeding under Section 271A of the I.T Act. The complainant was earlier told that on the given allegations only a proceeding under Section 271A of the I.T Act is possible, and that the Crl.A No.1255 of 2005 3 proceedings brought under Section 271B of the I.T Act could be closed. On 22.7.2002, the complaint appeared before the Income Tax Commissioner. It is alleged that on the said day, the complainant was told by the accused that some amount of penalty from 2000/- to 1,00,000/- could be imposed on him under Section 271A of the I.T Act, though the proceeding under Section 271B can be closed, and the hearing of the appeal was adjourned to 29.7.2002. The grievance of the complainant is that, when he appeared before the Income Tax Commissioner on 29.7.2002 to make submissions on his appeal, the accused demanded an amount of 10,000/- as illegal gratification for passing favourable orders on his appeal under Section 271B of the I.T Act, and for imposing only a nominal penalty under Section 271A of the I.T Act. It is alleged that the complainant was asked by the Income Tax Commissioner to come on the next day with the amount and he was assured that on payment of 10,000/- favourable orders would be passed on 31.7.2002. As the complainant Johny was not inclined to make payment of bribe, he approached the C.B.I Crl.A No.1255 of 2005 4 and made a complaint. On his complaint, the Assistant Superintendent of Police, CBI, Kochi directed registration of a crime and authorised the Inspector of Police, C.B.I to arrange a trap. Accordingly, a crime was registered on the complaint of Johny, and the Inspector of C.B.I arranged a trap. He arranged two officials as trap witnesses, demonstrated phenolphthalein test to the complainant and the witnesses and proceeded to trap the accused. The amount of 10,000/- brought by the complainant was received as per mahazar, it was treated with phenolphthalein, and the complainant was instructed to approach the accused at his office in the afternoon and make payment on demand. Accordingly, the complainant and the trap team proceeded to the office of the accused. The C.B.I Officers and the trap witnesses remained outside at different places, and the complainant approached the accused at his office. After payment of the illegal gratification on demand, at the office of the accused, the complainant came out and gave the pre-arranged signal. On getting signal, the C.B.I team entered the office of the Crl.A No.1255 of 2005 5 accused, seized the phenolphthalein tainted currency accepted by him as illegal gratification, and arrested the accused on the spot. After due investigation, and obtaining necessary sanction, the C.B.I filed final report against the accused before the trial court.
3. The accused pleaded not guilty to the charge framed against him under Sections 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act (for short "the P.C Act") and claimed to be tried. The prosecution examined 13 witnesses in the trial court and proved Exts.P1 to P34 documents. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and submitted that he had not in fact demanded or accepted any illegal gratification from the complainant, and that he was viciously and illegally trapped only because he was not inclined to pass orders in favour of the complainant as requested by him. His further explanation is that while he was searching for some decisions pointed out by the complainant during arguments, the complainant who was present at his office stealthily and Crl.A No.1255 of 2005 6 without his knowledge, put the tainted money in his table drawer with the object of trapping him, and the said amount was seized by the C.B.I. He further submitted that all through out his career, he has been a very honest and sincere officer without any blemish or stigma, and that he had no necessity of accepting anything illegally from anybody. In defence, the accused examined DW1 and marked Exts.D1 to D4 documents.
4. On an appreciation of the evidence adduced on both sides, the learned trial Judge found the accused guilty, that he had accepted an amount of 10,000/- from the complainant as illegal gratification as a reward for passing orders in his favour in the appeal brought by him before the accused as Income Tax Commissioner.
5. On conviction, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of 15,000/- under Section 7 of the P.C Act, and to undergo rigorous imprisonment for three years, and to pay a fine of 25,000/- under Section 13 (2) read with Section 13 (1) (d) of the P.C Act Act by judgment dated 15.7.2005. Aggrieved by Crl.A No.1255 of 2005 7 the said judgment of conviction, the accused has come up in appeal.
6. When this appeal came up for hearing, the learned counsel for the appellant submitted that the whole prosecution case is suspicious, that the accused had no reason at all to accept illegal gratification, because prior to the date of trap itself, he had passed orders cancelling the proceedings initiated against the appellant under Section 271B of the Income Tax Act, and that a vicious trap was arranged by the C.B.I on a mischievous complaint filed by the complainant Johny for the reason that the accused was not inclined to pass orders in his favour in view of clear violations of law. The learned counsel also submitted that the prosecution sanction in this case stands not properly proved, and that the whole prosecution is barred under Section 19 of the P.C Act. On the other hand, the learned standing counsel for the C.B.I submitted that there is absolutely nothing to suspect the truth or genuineness of the prosecution case, or the complaint made by PW2, and that the accused had in fact demanded and accepted Crl.A No.1255 of 2005 8 money from the complainant without disclosing the earlier orders passed by him, and on a promise that even under Section 271A of the Income Tax Act, he would impose a very lesser amount of fine. The learned standing counsel also submitted that the Government Secretary, who issued the sanction is the person authorised to authenticate the sanction under the law, and that the sanction stands well proved by the very same officer who issued the sanction.
7. Of the 13 witnesses examined by the prosecution, PW2 is the complainant, PW1 is the C.B.I Inspector, who registered the F.I.R and laid the trap, and PW4 and PW5 are the trap witnesses arranged by the C.B.I. All these witnesses gave clear and consistent evidence proving the trap procedure and also the recovery of the tainted money from the possession of the accused. PW3 is the Under Secretary to the Government of India, examined to prove Ext.P17 prosecution sanction, PW6 to 10 are the Income Tax Officers and Commissioners, PW11 is the Chartered Accountant who had represented the complainant before the accused, PW12 is the C.B.I. Inspector who Crl.A No.1255 of 2005 9 conducted investigation, and PW13 is the Inspector who laid charge. DW1 examined on the side of the accused is a former Sweeper in the office of the Commissioner of Income Tax, Ernakulam. MO1 to MO14 series material objects including the tainted money were identified by the witnesses during trial.
8. Before discussing the evidence given by PW1, the trap laying officer, let me see what is the evidence given by the complainant in this case. Ext.P2 is the complaint made by PW2. In the Ext.P2 complaint, his case is that when he approached the accused on 29.7.2002 in connection with the appeal preferred by him against the order of the Assistant Commissioner of Income Tax, Thrissur, imposing penalty on him, the accused demanded an amount of 10,000/-, saying that a penalty of 1 lakh is leviable, but he would pass orders favourably, imposing a very lesser amount of penalty, if he paid 10,000/-. The complaint shows that the complainant had attended appeal hearing before the accused on three prior dates, but the accused prolonged the matter without taking any decision. The Crl.A No.1255 of 2005 10 complaint alleges that the accused had promised that he would cancel the order against him under Section 271B of the I.T Act, because only a proceeding under Section 271A of the Act is possible on his failure to submit income tax returns in time, and that he would pass orders under Section 271A of the I.T Act, and impose a nominal amount of penalty, if he paid 10,000/-. The complainant is definite that demand for illegal gratification was made by the accused on 29.7.2002, and he was also told that, if the money demanded by him is not paid, he would impose a penalty of 50,000/-. The complainant was asked by the accused to come on the next day at his office with the amount, and he told that he would hold the file with him without passing orders upto the afternoon of 31.7.2002.
9. PW2, the complainant has given definite and consistent evidence proving the allegations made by him in the Ext.P2 complaint. He is definite that when he approached the accused on 29.7.2002, in connection with the appeal filed by him, the accused demanded 10,000/- as illegal gratification for passing orders in his favour under Crl.A No.1255 of 2005 11 Section 271A of the I.T Act, and that on previous occasions, when he appeared before the accused, he just adjourned the hearing. The complainant believes that the accused did so with the object of getting money from him. Anyway, demand was made by the accused for 10,000/- on 29.7.2002 and he was asked to come on the next day with the amount. On 31.7.2009, he approached the C.B.I and made complaint. The complaint was received by PW1, and a crime was registered on his complaint by PW1. Some officials were arranged by PW1 to witness the trap, and after demonstrating the required phenolphthalein test, he was instructed by the C.B.I. Officer to approach the accused and make payment of the phenolphthalein tainted currency of 10,000/- brought by him. He says that the amount was received by the C.B.I Inspector as per a mahazar, and thereafter the pre-trap formalities were demonstrated to him and the trap witnesses. After demonstration of the phenolphthalein test, he and the C.B.I Officers along with the trap witnesses, proceeded to the office of the accused. The C.B.I Officers and the trap witnesess remained outside Crl.A No.1255 of 2005 12 at different places, and he approached the accused after making necessary entries in the visitors register kept outside the chamber of the accused. When he entered the chamber, the accused asked whether he had brought the required amount. Then he made payment of the phenolphthalein tainted currency of 10,000/-, the accused received it in his right hand, and put it in his table drawer. Immediately he came out and passed the pre-arranged signal. Within no time, the C.B.I officers and the others entered the chamber of the accused, recovered the tainted money from the table drawer as pointed out by the accused, conducted phenolphthalein test, which turned positive, and arrested the accused on the spot. The defence could not bring out anything to discredit the evidence of PW2 on the material aspects regarding acceptance of illegal gratification, and recovery of the tainted money from the table drawer of the accused as pointed out by him. One inconsistency pointed out by the defence is that there is some confusion, as to how or where the tainted money was in fact held by the complainant. It is stated that the tainted Crl.A No.1255 of 2005 13 money was kept by him in a pouch inside the brief case, but this is not specifically mentioned in any document including mahazar. This is in fact not material at all. It is not material where or how the complainant carried the phenolphthalein tainted currency. What is material is whether the phenolphthalein tainted currency paid by the complainant was accepted by the accused, whether the phenolphthalein test turned positive, and whether the very same phenolphthalein tainted currency was recovered from his possession by the C.B.I. If these very material aspects are well proved, it is quite immaterial and insignificant as to where exactly or how exactly the tainted money was held by the complainant, as to whether it was in his pocket or in the pouch inside the brief case. This aspect does not require any further discussion. I find that the complainant is definite and consistent in his evidence regarding the essentials like demand and acceptance, and also regarding the recovery of the tainted money from the possession of the accused. His evidence is fully consistent with the statements and allegations in the Ext.P2 complaint made by Crl.A No.1255 of 2005 14 him.
10. PW4 is the trap witness arranged by the detecting officer. He was the Administrative Officer in the regional office of the United India Insurance Company, Ernakulam. He has given consistent evidence corroborating that of PW1, proving all the pre-trap and post-trap procedures, and also recovery of the tainted money from the possession of the accused. He is definite that the tainted money identified during trial was seized from the table drawer of the accused in the afternoon of 31.7.2002. His evidence is that after demonstrating the required phenolphthalein test, PW1 instructed the complainant to go to the office of the accused, and make payment of the tainted money, on demand. He was also directed to give the pre-arranged signal after acceptance of money by the accused. Accordingly, after a few minutes, the complainant gave the pre-arranged signal, and within no time, the C.B.I team led by PW1 reached at the office of the accused, seized the tainted money, conducted phenolphthalein test which turned positive, and arrested the accused on the spot. Crl.A No.1255 of 2005 15 He has also attested the Ext.P3 seizure mahazar. I find no reason to disbelieve the evidence given by PW4. He is well consistent on all material particulars and he fully supports PW1 regarding the process of recovery.
11. PW5 was the Sweeper-cum-Watchman in the office of the accused at the relevant time. He has given evidence that PW2 had visited the accused on 31.7.2002 and he also identified the entry made by PW2 in the Ext.P8 visitors register. He also stated that after PW2 visited the accused, C.B.I team reached there within no time, and arrested the commissioner. The defence examined DW1 who claims that he had door duty at the office of the accused on 29.7.2002. He says that he was a sweeper in the office. It is not known how a mere Sweeper was given the duty of watchman or office attendant. He claims that he had duty from March 2002, till the arrest of the accused. This cannot at all be believed in view of the evidence given by PW5. He was examined to prove a negative that PW2 had not visited the accused on 29.7.2002 though he made an entry in the visitors book kept outside the chamber. I Crl.A No.1255 of 2005 16 find that the evidence of DW1 is really artificial when the evidence given by PW5 is considered. There is nothing to show that anybody other than PW5 had door duty at the office of the accused at the relevant time. DW1, a mere Sweeper comes and claims that he was assigned the office duty as Office Attendant/Watchman on 29.7.2002. His evidence is not supported by any other material.
12. PW6, is the Administrative Officer of the Income Tax Office, Ernakulam. He has given evidence regarding the procedure for hearing of appeals. He has also identified the documents produced by him before the Investigating Officer. PW7 was the notice server in the office of the Income Tax Commissioner at the relevant time. He says that copy of the order passed by the accused closing the assessment proceedings under Section 271B of the I.T Act was entrusted with him for service to the complainant on 23.7.2002, but he could not serve it promptly within the given time. When direct service could not be made, it was sent to the complainant by post on 5.8.2002. This is well corroborated by the evidence of PW2 that he received the Crl.A No.1255 of 2005 17 copy of order only on 7.8.2002 by post. He has also produced copy of the said order along with the cover in which he received it,. This evidence given by PW7 makes the evidence given by the complainant believable, that when he visited the accused on 31.7.2002 he had no notice of the order by which the assessment under Section 271B of the I.T Act was cancelled by the Commissioner. PW8 was L.D.Clerk in the office of the Income Tax Office. His evidence is not very material in this case. PW9 was the Commissioner of Income Tax in the Income Tax Office, Ernakulam dealing with another section of appeals. He proved Ext.P26 order of the Central Board of Direct Taxes, New Delhi positing the accused as Commissioner of Income Tax at Ernakulam. He also proved some other documents seized by the Investigating Officer.
13. PW10 is the Assistant Commissioner of Income Tax, Thrissur who passed the Ext.29(c) order against PW2 imposing a penalty of 22,703/- under Section 271B of the I.T Act. He identified Ext.P29(a) as the return submitted by the complainant for the assessment year 1993-94. Ext.P29 Crl.A No.1255 of 2005 18
(c) order was cancelled by the accused as appellate authority and notice was given to the complainant to show cause against the proceeding under Section 271A of the I.T Act.
14. PW11 is the Chartered Accountant who had represented PW2 before the accused in the appeal filed by PW2. He says that the complainant's appeal against Ext.P29
(c) order was filed by him before the Commissioner, and he had appeared before the Commissioner for hearing in the matter on 1.7.2002. His evidence is that on 1.7.2002 itself, the commissioner had told him that the order passed by the Assistant Commissioner under Section 271B of the I.T Act cannot be sustained, and that penalty will have to be imposed under Section 271A of the Act. He stated that the accused had not dictated any order in his presence cancelling the Ext.P29(c) order. The defence case is that, much prior to the date of trap, the accused had cancelled Ext.P29(c) order passed by the Assistant Commissioner, a copy of which was served on the complainant, and he had initiated proceedings under Section 271A of the I.T Act. Crl.A No.1255 of 2005 19 Further defence case is that the said order was dictated in the presence of the Chartered Accountant. But this is stoutly denied by PW11.
15. PW12 is the Deputy Superintendent of Police, who investigated the case, and PW13 is the C.B.I Inspector who submitted final report in the case. The evidence given by these two witnesses well convinces the court that the investigation was properly and legally conducted by PW12, without causing any sort of prejudice to the accused, PW12 had seized the necessary documents, and all material witnesses were effectively questioned during investigation to collect necessary information. There is absolutely nothing to show that there was any flaw or illegality or irregularity in the investigation conducted by PW12.
16. The definite case of the complainant through out is that the accused had demanded and accepted 10,000/- as illegal gratification as a reward for imposing a lesser amount of penalty under Section 271A of the I.T Act. The prosecution case is not in fact, that the complainant paid an amount of 10,000/- as a reward for cancelling the Ext.P29 Crl.A No.1255 of 2005 20
(c) order passed against him by the Assistant Commissioner of Income Tax. One improbability argued by the defence is that the accused would not have and could not have demanded or accepted 10,000/- on 31.7.2002 as a reward for cancelling the Ext.P29(c) order passed under Section 271B of the I.T Act, because the accused had in fact cancelled the said order on 1.7.2002 itself, and copy of the said order was also given to the complainant in time. Ext.P20 is the order passed by the accused on 1.7.2002 cancelling the Ext.P29(c) order passed by the Assistant Commissioner and initiating proceedings for imposition of penalty under Section 271A of the I.T Act . The definite case of the complainant, and also that of PW11 is that no such order was intimated to them on 1.7.2002, or at any time before 31.7.2002. The complainant is definite that he had not received copy of the Ext.P20 order at any time prior to 31.7.2002 and he was also not informed of any such order till 31.7.2002. The definite evidence given by the notice server attached to the office of the accused is that, copy of the order was entrusted with him only on 22.7.2002 for Crl.A No.1255 of 2005 21 service, but he could not effect direct service till 5.8.2002. On 5.8.2002, the notice was sent by him by post. The evidence of the complainant is that he received the notice only on 7.8.2002. The copy received by him along with the postal cover was produced and marked during trial. It is true that Ext.P14 notice dated 1.7.2002 was despatched promptly from the office of the accused. The complainant has also given a reply to the notice. Ext.P15 is the reply given by the complainant. It is pertinent to note that Ext.P14 notice does not contain anything to show that Ext.P29 (c) order was cancelled by the Commissioner on 1.7.2002. Ext.P14 is only a notice to show cause against initiation of proceeding under Section 271A of the I.T Act. These two documents will not show that the complainant had notice or knowledge of the Ext.P20 order passed by the accused on 1.7.2002. There is reason to believe Ext.P20 order was kept secret by the accused till 31.7.2002 with the object of accepting illegal gratification from the complainant. The defence case that Ext.P20 order dated 1.7.2002 was communicated to the complainant promptly, Crl.A No.1255 of 2005 22 or that the complainant was given copy of the order on 1.7.2002 itself, is quite unacceptable. Had the accused stated in Ext.P14 notice about the cancellation of Ext.P29(c) order, the defence could have very well contended that the story of acceptance of illegal gratification on 31.7.2002 as a reward for cancelling the Ext.P29(c) order is unbelievable. But here, the defence case cannot at all be accepted. The explanation given by the complainant on this aspect is quite convincing. The complainant is definite that till 31.7.2002 he had not received any notice or communication regarding the Ext.P20 order cancelling the Ext.P29(c) order. By Ext.P14 notice, he was only required to show cause against initiation of proceeding under Section 271A of the I.T Act. The accused has no explanation why the fact of cancellation of the Ext.P29(c) order by the Ext.P20 order was not mentioned in the Ext.P14 notice. There is reason to believe that the said fact was suppressed by the accused till 31.7.2002 without mentioning it anywhere, and without intimating the complainant about such an order, with the object of accepting money from him as a reward saying Crl.A No.1255 of 2005 23 that he would cancel the earlier order, and impose a lesser amount of penalty under Section 271A of the I.T Act. As already stated, the case of the prosecution, or the complaint of the PW2, is not that money was demanded and accepted by the accused merely for cancellation of the Ext.P29(c) assessment order, but as a reward for imposing a lesser amount of penalty under Section 271A of the I.T Act. This case of the prosecution, or this explanation given by the complainant is, well acceptable in view of the documents discussed above. I find that there is absolutely no improbability in the prosecution case as the defence would contend.
17. On an appreciation of the evidence given by the material witnesses including the complainant, the trap witness and the detecting officer, I find that their evidence is fully satisfactory and convincing to prove the essentials and also recovery of the tainted money from the possession of the accused. Demand stands well proved by the evidence of the complainant. Though the defence projected some circumstances to make the case of demand suspicious, Crl.A No.1255 of 2005 24 what is emerged on an appreciation of the entire evidence is that till 31.7.2002, the Ext.P20 order made by him on 1.7.2002 was suppressed by him, and even in the Ext.P14 notice dated 1.7.2002 requiring the complainant to show cause against the proceeding under Section 271A of the I.T Act, the fact of such order was not mentioned by the accused. Ext.P18 proceeding also will not show that such an order was passed by the accused on 1.7.2002. What is recorded on 1.7.2002 as the proceeding on the day as revealed by Ext.P18 is as follows:
"Denny.P.O. Attends. States that no penalty under Section 271A was initiated."The next posting was on 22.7.2002. The proceeding recorded on the said day is as follows:
"Sri.Johny.K. appears. Written submission filed". Thus, I find that the accused had not recorded anything in the proceedings on 1.7.2002 or on 22.7.2002 regarding the Ext.P20 order passed by him on 1.7.2002. I find that the case of the complainant is well acceptable that he came to know of the said order only after 31.7.2002, and that the Crl.A No.1255 of 2005 25 accused suppressed the said order till 31.7.2002 with the object of receiving money illegally from the complainant. Acceptance of the amount also stands well proved by the evidence of the complainant, corroborated by the evidence regarding recovery given by PW1 and PW4. All the witnesses are consistent regarding the pre-trap and post- trap procedures and also the recovery of the tainted money from the possession of the accused. I find nothing to disbelieve the evidence given by the complainant, the trap witness and the detecting officer. The essentials stand well proved by the evidence of the complainant, supported by that of the other witnesses.
18. It is well settled that a conviction under Sections7 and 13 (2) read with 13 (1) (d) of the P.C Act is not possible in the absence of evidence proving demand and acceptance. The Hon'ble Supreme Court has laid down this aspect in many decisions including Selvaraj v. State of Karnataka [(2015) 10 SCC 230] and P.Sathya Narayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another [ (2015) 10 SCC 152]. Crl.A No.1255 of 2005 26 Here I find that the two important essentials are well proved by evidence, and the prosecution has succeeded in proving that the accused/appellant herein had demanded and accepted an amount of 10,000/- as illegal gratification from PW2 for passing favourable orders in the Income Tax Appeal brought by the complainant before the accused.
19. The learned counsel for the appellant submitted that the prosecution sanction in this case is not acceptable, and that it is not properly proved. Ext.P17 is the sanction issued by PW3 under Section 19 (1) of the P.C Act in his capacity as Under Secretary to the Government of India. His evidence in court proving the sanction is that the Central Government is the authority competent to remove Commissioners and Assistant Commissioners from service, for and on behalf of the President of India. Such orders will be issued from the concerned Ministry as authorised under the law relating to Transaction of Government business. He explained that under the transaction of Business Rules, the Finance Minister is the authority competent to remove Commissioners and Assistant Commissioners in the Income Crl.A No.1255 of 2005 27 Tax Department. As authorised under the Authorisation of Instruments Act, the Under Secretaries and above of the Government of India are competent to authenticate and issue instruments "by order" in the name of the President of India. PW3 well proved Ext.P17 prosecution sanction issued by him as Under Secretary, in his capacity as authorised under the Authorisation of Instruments Act and the Rules made under Article 77 of the Constitution of India.
20. Of course, it is well settled that a prosecution sanction granted under Section 19 of the P.C Act will have to be proved properly by the person who issued the sanction. Even recently this Court has settled the position on the basis of so many decisions of the Hon'ble Supreme Court and also that of this Court, that only the person who issued the sanction will be competent to prove the sanction, and that the Investigating Officer cannot at all be the competent person to prove such sanction. It is also well settled that the prosecution will have to prove that the prosecution sanction was granted on a consideration of all the relevant aspects and materials and on an independent application of Crl.A No.1255 of 2005 28 mind. In this case, the Under Secretary to the Government of India is authorised under the law to issue prosecution sanction under Section 19 of the P.C Act on behalf of the Government of India, and by order of the President of India. Nobody can say that PW3 who issued Ext.P17 is not the competent person to prove the sanction. As the person who issued the sanction PW3 has well proved the Ext.P17 sanction. Now the question is whether the sanction is acceptable and proper under the law.
21. As regards necessity and acceptability of the prosecution sanction granted under Section 19 of the P.C Act, the Hon'ble Supreme Court laid down the following principles in State of Maharashtra through C.B.I v Mahesh G. Jain [2014 (1) SCC(Cr) 515]
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the sanctioning authority has perused the materials placed before it, and after consideration of the materials and circumstances, the authority granted sanction for prosecution.
Crl.A No.1255 of 2005 29
( c) The prosecution may prove by adducing evidence that necessary materials were placed before the authority by the prosecuting agency, and satisfaction was arrived at by the authority on a perusal of the materials placed before it.
(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that the relevant facts would constitute the offence alleged.
(e) The adequacy of the materials placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order
(f) The order of sanction is a pre-requsite for prosecution as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigations, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its vallidity.
22. In C.B.I v. Asok Kumar Aggarwal (AIR 2014 SC 827], the Hon'ble Supreme Court held as regards prosecution sanction under Section 19 of the P.C Act, that in every individual case, the prosecution has to establish and satisfy the court by leading evidence that the necessary facts had been placed before the sanctioning authority, and the authority granted sanction on an application of mind Crl.A No.1255 of 2005 30 independently. The Hon'ble Supreme Court also held that if the sanction order on its face indicates that all the relevant materials, i.e, F.I.R., disclosure statements, recovery memos, draft charge sheet etc., were placed before the sanctioning authority, and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the materials, an inference may be drawn that the sanction had been granted in accordance with law. On a consideration of the various earlier decisions on the point, the Hon'ble Supreme Court summarised the legal propositions as follows:
(a) The prosecution must send the entire relevant records to the sanctioning authority including the F.I.R., disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant materials. The records so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused, and on the basis of which the competent authority may refuse sanction.
(b) The authority itself has to do Crl.A No.1255 of 2005 31 complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts, before granting sanction, while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts /materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire facts had been placed before the sanctioning authority and the authority had applied its mind on the same, and that the sanction had been granted in Crl.A No.1255 of 2005 32 accordance with law.
23. Now let me see what is the evidence given by PW3 on the relevant aspects. The above principles laid down by the Hon'ble Supreme Court are regarding the acceptability of prosecution sanction, and the way in which the sanctioning authority must discharge its functions in the matter of granting sanction. On a consideration of all the earlier precedents, this Court has recently settled the position that the sanction granted under Section 19 of the P.C Act will have to be proved by the person who granted the sanction. Here, the Ext.P17 sanction stands well proved by PW3, who issued the sanction order. In examination in chief itself, PW3 has stated that all the necessary materials like F.I.R, mahazars, documents and statements of witnesses were placed before the authority, and as the person who placed those materials, and authenticated the sanction order, he knows well that all the necessary materials and documents were perused and considered by the Minister before according sanction to prosecute the accused.
24. In cross-examination, the witness affirmed that as Crl.A No.1255 of 2005 33 the person who furnished necessary materials before the Minister, and who issued the sanction order or authenticated it as provided and authorised under the law, he knows personally that the Minister had perused all the necessary materials. He denied the suggestion that he issued the sanction order without knowing the fact that the accused had passed an order in favour of the complainant on 1.7.2002. He also stoutly denied the suggestion made by the defence that Ext.P17 sanction order was issued without considering and perusing the necessary materials. Thus, I find that PW3 is definite in evidence that as the person authorised to issue sanction order under Section 19 of the P.C Act, he had placed all the relevant papers and materials before the authority, and he knows very well that all these papers were thoroughly perused and examined by the authority. It was only thereafter sanction was granted and he issued the sanction order. I find that the sanction order in this case issued and proved by PW3 is fully in accordance with the principles and guidelines made by the Hon'ble Supreme Court in the decisions cited supra. On an Crl.A No.1255 of 2005 34 examination of the Ext.P17 sanction, I find that the sanctioning authority had perused and examined all the necessary materials like the complaint, recovery mahazar, statements of witnesses, etc before granting sanction. I find that the sanction order speaks itself as to the satisfaction arrived at by the authority on an independent examination of all the necessary materials. There is nothing in Ext.P17 to show that the sanctioning authority had not perused or examined any relevant or necessary material, or that it was mechanically granted by the authority. I find that all the guidelines made by the Hon'ble Supreme Court are well complied with, and so Ext.P17 sanction is well acceptable under the law. The defence case that it is not acceptable under the law, and that the prosecution is barred under Section 19 of the P.C Act is quite unacceptable. I find nothing wrong in the prosecution sanction, which stands properly proved by the person who issued the sanction.
This is not a case where somebodyelse came and proved the sanction order.
25. As discussed in the foregoing paragraphs, I find Crl.A No.1255 of 2005 35 that the prosecution has well proved the case on facts to the satisfaction of the court. In the above circumstances,this appeal is liable to be dismissed, confirming the conviction against the appellant.
26. Now regarding the sentence. The offence was detected in 2002 and now we are in 2015. The appellant has been facing the trauma of prosecution for the last fifteen years. The trial court pronounced the judgment in 2003, and the appellant had to wait for 13 years for final orders. The appellant cannot be blamed for this. It is true that leniency cannot be mechanically shown or applied in cases like this. However, in appropriate cases, where such a course is justifiable and necessary, the court can extend its lenient hands and modify the sentence. In the particular facts and circumstances, I find that a total substantive sentence of imprisonment for two years besides the fine sentence will be the adequate sentence in this case. Accordingly, the sentence under Section 13(2) read with Section 13(1)(d) of the P.C. Act can be reduced to imprisonment for two years.
Crl.A No.1255 of 2005 36
In the result, this appeal is allowed in part to the very limited extent modifying and reducing the sentence imposed by the trial court under Section 13(2) read with Section13(1)
(d) of the P.C. Act. The conviction made by the court below against the appellant in C.C.No.17/2003 under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C.Act will stand confirmed. The sentence imposed by the court below under Section 7 of the P.C.Act is confirmed, but the sentence imposed under Section 13(2) read with Section 13(1)(d) of the P.C.Act will stand modified and reduced to rigorous imprisonment for two years. The fine sentence imposed by the court below under the two sections is maintained. The substantive sentence will run concurrently, as ordered by the trial court.
P.UBAID JUDGE ma