Bangalore District Court
Central Bureau Of Investigation vs Sri.V.P.Shamsuddin on 25 November, 2016
IN THE COURT OF THE XLVII ADDITIONAL CITY
CIVIL & SESSIONS JUDGE AND SPECIAL JUDGE
FOR CBI CASES (CCH-48) AT BENGALURU
Dated this the 25th day of November 2016
PRESENT:
SRI.ASWATHA NARAYANA, B.Sc., LL.M.,
XLVII Additional City Civil & Sessions Judge
and Special Judge for C.B.I. Cases,
Bengaluru.
SPECIAL CRIMINAL CASE No.115/2001
COMPLAINANT: Central Bureau of Investigation,
Represented by Inspector of
Police, Anticorruption Branch,
Bengaluru.
(By Smt.K.S.Hema, Public Prosecutor.)
-Vs-
ACCUSED-1: Sri.V.P.Shamsuddin,
S/o.Late V.P.Perumal,
Aged about 63 years,
R/o.No.A-6/2, Vijay Kiran
Apartments, Victoria Road,
Bengaluru-47.
(By Sri.Rajesh Chander Kumar &
Smt.Yovini Rajesh, Advocates.)
ACCUSED-2: Sri.Jose Alexander,
S/o.Sri.J.Alexander,
Aged 35 years,
R/o.No.507, CMH Road,
Indira Nagar, 1st Stage,
Bengaluru-560 038. ... (Discharged.)
ACCUSED-3: Sri.Johnson Alexander,
S/o.J.Alexander,
Aged 31 years,
R/o.No.507, CMH Road,
Indira Nagar, 1st Stage,
Bengaluru-38. ... (Proceedings
Quashed by the Hon'ble Supreme Court.)
2 [Spl.C.C.115/2001-J]
ACCUSED-4: Sri.K.R.Pradeep,
S/o.Late Rama Narasimha Shetty,
Aged 40 years,
Chartered Accountant,
R/o.No.A-4, Hulkul Residency,
Lavelle Road,
Bengaluru-1. ... (Proceedings
Quashed by the Hon'ble High Court.)
1. Nature of Offence: Offence punishable under
Section 120-B of the
Indian Penal Code, 1860,
r/w. Section 13(2) r/w.
Section 13(1)(d) of the
Prevention of Corruption
Act, 1988 and substantive
offence thereof.
2. Date of Commission of
Offence: During the year 1995.
3. Date of First Information
Report: 21.09.1999.
4. Date of Arrest of
the Accused-1: Not Arrested.
5. Date of Commencement
of Evidence: 08.02.2016.
6. Date of Closure of
Evidence: 17.06.2016.
7. Date of Pronouncement
25.11.2016.
of Judgment:
8. Result of the Case : Convicted.
(ASWATHA NARAYANA)
XLVII Additional City Civil & Sessions Judge
and Special Judge for CBI Cases,
Bengaluru.
-o0o-
3 [Spl.C.C.115/2001-J]
JUDGMENT
The Complainant has filed this case alleging that during the year 1995, while functioning as a Public Servant in the capacity of Commissioner of Income Tax (Appeals)- II, Bengaluru (for short, 'CITA-II'), the Accused-1 entered into a Criminal Conspiracy with the Accused-2 to 4 in the matter of passing Orders in favour of the Accused-2 and 3; in furtherance of the said Criminal Conspiracy, the Accused-4 filed Appeals No.24(b) and 30(a) relating to the Accused-2 and 3 respectively for the Assessment Years 1991-92 by pre-dating as '27.04.1995' and by altering the original date '09.10.1995'; then the Accused-1 incorporated those Appeals in the Appeal Register purportedly on '27.04.1995' as he was going to loose the jurisdiction to decide those Appeals from 09.10.1995 onwards; the Accused-1 committed Criminal Misconduct by passing 2 consolidated Appellate Orders dated 27.09.1995 in favour of the Accused-2 and 3 in respect of 11 Appeals without hearing the Assessing Officer for the hearing purportedly held on 22.09.1995 and obtained the signature of the Accused-4 alone as if the Accused-1 conducted hearing on 22.09.1995 and allowed tax relief of Rs.1,53,508/- to the Accused-2 and Rs.1,60,197/- to the Accused-3 in respect of those Appeals by abusing his position as a Public Servant and that thereby, the Accused-1 to 4 have committed the offences punishable under Section 120-B of the Indian Penal Code, 1860 (for short, 'the IPC') r/w. Section 13(2) r/w. Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'the PC Act').
4 [Spl.C.C.115/2001-J]
2. On 21.06.2001, the then Presiding Officer of this Court took cognizance for the offence punishable under Section 120-B of the IPC r/w. Section 13(2) r/w. Section 13(1)(d) of the PC Act. After appearance of the Accused-1 to 4 before the Court, Copies of Charge Sheet and other documents relied upon by the Complainant were furnished to them.
3. By an Order dated 26.02.2015 in Criminal Appeal No.1498/2010, the Hon'ble Supreme Court of India quashed the Proceedings against the Accused-3. By an Order dated 09.12.2009 in Criminal Petition No.5345/2009, the Hon'ble High Court of Karnataka quashed the Proceedings against the Accused-4.
4. After hearing the learned Public Prosecutor on behalf of the Complainant and the learned Counsels appearing on behalf of the Accused-1 and 2, on 11.12.2015, this Court discharged the Accused-2 from the case for the offence punishable under Section 120-B of the IPC r/w. Section 13(2) r/w. Section 13(1)(d) of the PC Act and framed Charge against the Accused-1 for the offence punishable under Section 120-B of the IPC r/w. Section 13(2) r/w. Section 13(1)(d) of the PC Act and also for the substantive offence punishable under Sections 13(2) r/w. 13(1)(d) of the PC Act. When the Charge against the Accused-1 was read over and explained to him, he pleaded not guilty to the same and claimed to be tried.
5. During trial, the Complainant got examined 11 Witnesses as P.W.1 to P.W.11 and got marked 55 5 [Spl.C.C.115/2001-J] Documents as Ex.P.1 to Ex.P.55 on his behalf. With that evidence, the Complainant closed his side.
6. On examination of the Accused-1 under Section 313 of the Criminal Procedure Code, 1973 (for short, 'the Cr.P.C.'), he did not admit the incriminating evidence against him and he closed his side without examining any witnesses on his behalf. However, he got marked 2 documents as Ex.D.1 and Ex.D.2 on his behalf with the consent of the Public Prosecutor.
7. Heard arguments of both the sides. Perused the records, including the Written Arguments filed by the learned Public Prosecutor.
8. On considering the rival contentions of the parties, the Points that arise for determination in this case are as follows:
1. Whether Sanction from the Competent Authority is required to prosecute the Accused-1? If so, whether there is such Sanction in accordance with law?
2. Whether the Accused-1 committed Criminal Conspiracy by entering into an agreement with the Accused-2 to 4 to commit the offence of Criminal Misconduct in the matter of passing Orders in the Appeals in favour of the Accused-2 and 3 and thereby committed an offence punishable under Section 120-B of the IPC r/w.
Section 13(2) r/w. Section 13(1)(d) of the PC Act, as alleged?
6 [Spl.C.C.115/2001-J]
3. Whether the Accused-1 abused his position as a Public Servant and obtained pecuniary advantage for the Accused-2 and 3 by passing Orders in the Appeals in favour of the Accused-2 and 3 and thereby committed an offence of Criminal Misconduct punishable under Section 13(2) r/w. Section 13(1)(d) of the PC Act, as alleged?
4. What Order?
9. Findings of this Court on the above Points are as follows:
Point-1: Partly in the Affirmative;
Point-2: Negative;
Point-3: Affirmative;
Point-4: See final portion of this
Judgment.
REASONS
UNDISPUTED FACTS
10. The Accused-1 was a Public Servant working in the capacity of Commissioner of Income Tax (Appeals)-II i.e., CITA-II at Bengaluru, from 17.01.1994 to 09.10.1995.
He retired from the service even prior to filing of Charge Sheet in this case.
11. Section 120(2) of the Income Tax Act, 1961 (for short, 'the IT Act') empowers the Chief Commissioner of Income Tax to fix the jurisdiction of the Commissioners of 7 [Spl.C.C.115/2001-J] Income Tax (for short, 'CIT') to decide the Appeals. The jurisdiction to decide the Appeals against the Assessment Orders passed by the Assessing Officer, Central Range, Bengaluru, including the Appeals from all the Assessing Officers under the control of the Deputy Commissioner of Income Tax (for short, 'DCIT'), Central Range, Bengaluru, were under the jurisdiction of CITA-II from 17.01.1994 to 08.10.1995. Ex.P.1 is the Copy of Notification dated 13.01.1994 issued by the Chief Commissioner of Income Tax in this regard. From 09.10.1995, the said jurisdiction was transferred to CITA-I. Ex.P.2 is the Copy of Notification dated 28.09.1995 issued by the Chief Commissioner of Income Tax in this regard.
12. P.W.2-Sri.H.N.Marappa was working as Assistant Commissioner of Income Tax (for short, 'ACIT'), Central Circle-III, Bengaluru, from 1991 to 1996. He passed Assessment Orders relating to the Income Tax of the Accused-2 for the Assessment Years 1986-87, 1987-88, 1988-89, 1989-90, 1990-91 and 1991-92. Ex.P.3, Ex.P.5, Ex.P.7, Ex.P.9, Ex.P.11 and Ex.P.13 are the Files relating to those Assessment Orders. He also passed Assessment Orders relating to the Income Tax of the Accused-3 for the Assessment Years 1987-88, 1988-89, 1989-90, 1990-91 and 1991-92. Ex.P.15, Ex.P.17, Ex.P.19, Ex.P.21 and Ex.P.23 are the Files relating to those Assessment Orders.
13. Aggrieved by the said Assessment Orders, the Accused-2 and 3 filed Appeals before the Accused-1 in the 8 [Spl.C.C.115/2001-J] capacity of CITA-II through the Accused-4, who is a Chartered Accountant. The Appeals of the Accused-2 were registered in No.ITA.10/CC-III/CIT(A)-II/94-95 to ITA.13/CC-III/CIT(A)-II/94-95, No.ITA.4/CC-III/CIT(A)-II/ 93-94 and No.ITA.30(a)/CC-III/CIT(A)-II/95-96. The Appeals of the Accused-3 were registered in No.ITA.3/CC- III/CIT(A)-II/93-94, No.ITA.24(b)/CC-III/CIT(A)-II/93-94, No.ITA.22/CC-III/CIT(A)-II/94-95, No.ITA.23/CC-II/CIT(A)
-II/94-95 and No.ITA.24/CC-III/CIT(A)-II/94-95. All these Appeals were disposed by the Accused-1 in the capacity of CITA-II. Ex.P.4, Ex.P.6, Ex.P.8, Ex.P.10, Ex.P.12, Ex.P.14, Ex.P.16, Ex.P.18, Ex.P.20, Ex.P.22 and Ex.P.24 are the Files relating to those Appeals.
14. Ex.P.4(b) is the Common Order dated 27.09.1995 passed by the Accused-1 relating to the Appeals of the Accused-2. Ex.P.16(b) is the Common Order dated 27.09.1995 passed by the Accused-1 relating to the Appeals of the Accused-3. After receipt of the said Orders, P.W.2 submitted Scrutiny Report to his superiors as per Ex.P.3(b) relating to the Appeals of the Accused-2 and as per Ex.P.15(a) relating to the Appeals of the Accused-3 and he recommended to file Appeals challenging the Orders passed by the Accused-1.
15. Except against the Orders passed by the Accused-1 relating to the Assessment Year of 1991-92, the ACIT i.e., P.W.2 filed Appeals before the Income Tax Appellate Tribunal, Bengaluru Bench, against the Orders 9 [Spl.C.C.115/2001-J] relating to the remaining Assessment Years passed by the Accused-1. Appeals pertaining to the Accused-2 were registered in ITA Nos.1037/95, 1038/95, 1039/95, 1040/95 and 1041/95 and those of the Accused-3 were registered in ITA No.1042/95, 1043/95, 1044/95 and 1045/95. As per the Order dated 21.02.2003, those Appeals were dismissed. Ex.D.1 is the Copy of the said Order relating to the Accused-2 and Ex.D.2 is that of the Accused-3.
16. Aggrieved by the said dismissal Orders, the CIT and the ACIT filed Appeals before the Hon'ble High Court of Karnataka, Bengaluru. Appeals relating to the Accused- 2 were registered in ITA No.167/2004, 169/2004, 171/2004, 172/2004 and 181/2004 and those of the Accused-3 were registered in ITA No.174/2004, 176/2004, 178/2004 and 179/2004. Appeals in ITA No.167/2004, 169/2004 and 178/2004 were dismissed on 09.03.2010, 03.12.2009 and 04.12.2009 respectively. Other Appeals were partly allowed and the cases were remanded to the Assessing Officer for fresh consideration on some points. Ex.P.47 to Ex.P.55 are the Copies of Orders passed in this regard. Those remanded cases are still pending with the Assessing Officer and so far, he has not passed any Order in those cases.
17. P.W.8-Sri.T.V.Sasikumar was working as Inspector of Police, CBI, ACB, Bengaluru, from 1996 to June 2001. As per the Orders of the Superintendent of 10 [Spl.C.C.115/2001-J] Police, CBI, ACB, Bengaluru, he registered FIR relating to RC.08(A)/99 on 21.09.1999 based on 'source information'. Ex.P.37 is the said FIR. Ex.P.38 is the Copy of Notification dated 07.09.1999 issued by the Government of Karnataka under Section 6 of the Delhi Special Police Establishment Act, 1946, according consent to investigate this case by the Complainant. On 03.03.2000, he received Ex.P.3 to Ex.P.24 and also Appeal Orders Register-Ex.P.32 from C.W.8-Mrs.J.H.Mulki, the then DCIT, under a Letter- Ex.P.31. He also received Register of Appeals-Ex.P.34 and Ex.P.35 from her through a Letter-Ex.P.33. On 20.03.2000, he collected Ex.P.1, Ex.P.2, Copy of Appeal Fixation Register-Ex.P.39 and Copy of Visitors' Register- Ex.P.40 from the Investigating Officer relating to RC.7/1999. On 27.03.2000, he received Ex.P.41-Copy of Hearing Register of Appeals of CITA-II from DCIT. On 27.04.2000, P.W.8 collected Ex.P.29 & 30-Dispatch Registers through Letter-Ex.P.28 from P.W.5- Sri.A.P.Muralidharan, who was the DCIT during 2000. On 04.05.2000, P.W.8 collected Ex.P.26 and Ex.P.27-Files relating to M/s.United Breweries and M/s.McDowell Company through Letter-Ex.P.25. On his repatriation to his original Office, P.W.8 handed over the further investigation to P.W.7-Sri.M.Jayachandra Raju, who was the Police Inspector, CBI, ACB, Bengaluru.
18. Meanwhile, P.W.6-Sri.Ramakrishna, who was the Inspector of Police, CBI, ACB, Bengaluru, partly investigated this case from 13.06.2000 to 11.07.2000. On 28.06.2000, he collected Ex.P.36-Attendance Register 11 [Spl.C.C.115/2001-J] from DCIT (Vigilance). After completing investigation, P.W.7 filed Charge Sheet.
POINT-1
19. As observed above, it is not in dispute that the Accused-1 was a Central Government Public Servant working in the capacity of CITA-II and that he retired from service prior to filing of Charge Sheet and taking of cognizance by this Court in this case. The offences alleged to have been committed by the Accused-1 are punishable under Sections 120-B of the IPC r/w. 13(2) r/w. 13(1)(d) of the PC Act and also the substantive offence punishable under Sections 13(2) r/w. 13(1)(d) of the PC Act.
20. Though Sanction from a Competent Authority is required under Section 19 of the PC Act to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the PC Act alleged to have been committed by a Public Servant, such Sanction is not necessary in case of a Public Servant, who is retired from the service. In the case on hand, as the Accused-1 retired from the service long prior to filing of Charge Sheet and taking of cognizance by this Court, Sanction under Section 19 of the PC Act is not required for taking cognizance and to prosecute the Accused-1 for the offence punishable under Sections 13(2) r/w. 13(1)(d) of the PC Act. The Accused-1 has also not disputed this aspect.
21. But, as per Section 197(1) of the Cr.P.C., without previous Sanction of the Competent Authority, the Court 12 [Spl.C.C.115/2001-J] shall not take cognizance of any offence alleged to have been committed by a person, who is or was a Public Servant, while acting or purporting to act in the discharge of his official duty.
(Underlined by this Court.) This Court noticed a decision of the Hon'ble Supreme Court of India in Criminal Appeal No.2168/2010 (State of Punjab -Vs- Labh Singh), which was disposed on 17.12.2014 and ordered as 'Reportable'. As per facts of that case, though the Competent Authority relating to the Accused-Public Servants had refused to accord Sanction to prosecute the Accused, Charge Sheet was filed against those Accused on the premise that no Sanction was required after retirement of those Accused-Public Servants. In respect of that Charge Sheet, the Trial Court framed Charge against those Accused for the offence punishable under Section 13 of the PC Act as well as for the offences punishable under the IPC also. Aggrieved by the said Order, those Accused approached the Hon'ble High Court of Punjab and Haryana, which quashed the Charge framed against the Public Servants, by observing as follows:
"These Petitioners and others have been charged for the offence under the Prevention of Corruption Act and also for the offences under the Indian Penal Code. Section 197 Cr.P.C., bars cognizance by the Court of an offence by a Public Servant even after retirement."
13 [Spl.C.C.115/2001-J] In the Appeal filed against the said Order of the Hon'ble High Court, the Hon'ble Supreme Court of India upheld the Order of the Hon'ble High Court so far as the IPC offences are concerned, by observing as under:
"However, as regards Charges for the offences punishable under the IPC concerned, the High Court was absolutely right in setting aside the Order of the Special Judge. Unlike Section 19 of the POC Act, the protection under Section 197 of the Cr.P.C., is available to the concerned Public Servant even after retirement."
Thus, it is clear that so far as the offences punishable under the IPC are concerned, which are alleged to have been committed by a Public Servant while acting or purporting to act in the discharge of his official duty, Sanction under Section 197 of the Cr.P.C., is necessary to take cognizance and prosecute him, irrespective of his retirement from the service.
22. In the case on hand, the Complainant has alleged that the Accused-1 has committed the offence punishable under Section 120-B of the IPC while acting or purporting to act in the discharge of his official duty. As such, Sanction under Section 197 of the Cr.P.C., from the Competent Authority i.e., Central Government is required to take cognizance of the said offence against the Accused- 1 and to prosecute him irrespective of his retirement from 14 [Spl.C.C.115/2001-J] the service. But, such Sanction under Section 197 of the Cr.P.C., is not obtained from the Competent Authority to prosecute the Accused-1 for the offence punishable under Section 120-B of the IPC.
23. For all the above reasons, it is held that Sanction is not required to take cognizance and to prosecute the Accused-1 for the offence punishable under Sections 13(2) r/w. 13(1)(d) of the PC Act, but, Sanction under Section 197 of the Cr.P.C., is required to take cognizance and to prosecute the Accused-1 for the offence punishable under Section 120-B of the IPC and that no such Sanction is obtained by the Complainant. Accordingly, Point-1 is answered Partly in the Affirmative.
POINTS-2 & 3
24. As both these Points are interlinked to each other, in order to avoid repetition of facts, evidence and contentions, it is just, proper and convenient to determine both these Points by considering together. On considering the rival contentions of both the parties, it appears just, proper and convenient to determine these Points under the following Heads:
1. Pre-dating, Altering & Insertion;
2. Non-Issue of Notice & Non-Hearing:
a) ITNS-51 Notices;
b) ITNS-37 Notices;
c) Hearing on 22.09.1995;
d) Conclusion.
15 [Spl.C.C.115/2001-J]
3. Pecuniary Advantage;
4. Conclusion.
1. Pre-dating, Altering & Insertion
25. It is not in dispute that the Appeal of the Accused- 2 bearing No.ITA-4/93-94 and that of the Accused-3 bearing No.ITA-3/93-94 were filed before the CITA-II on 26.04.1993. So also, it is not in dispute that the Appeals of the Accused-2 in No.ITA-10/94-95, No.ITA-11/94-95, No.ITA-12/94-95 and No.ITA-13/94-95 and that those of the Accused-3 in No.ITA-22/94-95, No.ITA-23/94-95 and No.ITA-24/94-95 were filed before the CITA-II on 13.04.1994. Endorsement on the Appeal Memos of those Appeals as well as the entries in the Register of Appeals- Ex.P.34 and Ex.P.46 also show the said fact.
26. Ex.P.14(i) is the Appeal Memo relating to Appeal No.ITA-30(a)/95-96 filed by the Accused-2 before the CITA-II. Ex.P.24(i) is the Appeal Memo relating to Appeal No.ITA-24(b)/95-96 filed by the Accused-3 before the CITA-II. Ex.P.14(e) and Ex.P.24(e) are the Letters of the Accused-4 filed in those Appeals seeking condonation of delay in filing those Appeals. Seals on those Appeal Memos and Letters indicate that the said Appeals were filed on 27.04.1995. But, according to the Complainant, those Appeals were not at all filed on 27.04.1995 and on the other hand, those Appeals were filed in the month of October 1995. According to the Complainant, those 16 [Spl.C.C.115/2001-J] Appeals were pre-dated as '27.04.1995' by altering the original date as '9.10.1995' by the Accused-4 and the Accused-1 got inserted these Appeals in the Appeal Register purportedly on '27.04.1995'. The Accused-1 has denied the said contention of the Complainant. As such, it is necessary to ascertain as to whether there is such pre- dating, alteration and insertion.
27. P.W.9-Smt.Saraswathi was working as Lower Division Clerk at CITA-II Office, during the period when the Accused-1 was working as CITA-II. She used to deal with Inward and Outward Register, Appeal Hearing Fixation Register, Receiving of Appeals and other works entrusted by her higher authorities. She has deposed that she used to receive Appeals, make entries in the Receipt Book, issue acknowledgements to the Appellants or their representatives and send Appeals to CITA-II. She has further deposed that after initials of CITA-II, those Appeals were being sent to the Supervisor, that Supervisor used to enter about those Appeals in the Appeal Register and that after making entries, Supervisor used to send Files to her and that then she used to open Folders for each Appeal, send ITNS-51 Notices etc. In the Cross-examination, she has stated that she used to issue acknowledgment in respect of filing of the Appeals by tearing receipt from the Receipt Book. She has further stated that if she used to acknowledge the receipt of Appeal in the Office Copy of the Appeals brought by the Appellants or their representatives, she was not issuing separate receipts.
17 [Spl.C.C.115/2001-J]
28. P.W.10-Smt.Rajeshwari Ramalingam was the Supervisor at CITA-II Office during the tenure of the Accused-1. She has deposed that she was maintaining Statistical Reports, Appeal Register and Disposal Register and that she was attending miscellaneous work entrusted to her by CITA-II. She has further deposed that when an Appeal was filed, it was going to CITA-II from dispatch and that after the initials of the CITA-II, it was coming to her and that she used to give number to that Appeal and that she was entering the same in the Appeal Register and that thereafter, she was giving that File to P.W.9. This evidence of P.W.10 corroborates the evidence of P.W.9. The Accused-1 has not seriously disputed the said evidence of P.W.9 and 10.
29. In the Cross-examination, P.W.9 has stated that sometimes, some Appellants used to file Appeals directly to CITA-II. P.W.10 has deposed that the Accused-1 has directly received Condonation of Delay Letters-Ex.P.14(e) and Ex.P.24(e) and also Appeals-Ex.P.14(i) and Ex.P.24(i). She has further stated that if those documents had been sent in the normal course through dispatch, Seal and Initials of the LDC would have been there in those documents, but, there are no such Seal and Initials. P.W.9 has also stated that she did not receive Files in respect of Appeal Nos.24(b) and 30(a). This evidence of P.W.9 fortifies the evidence of P.W.10.
30. P.W.4-Sri.Kalyana Sundaram was the Stenographer working under the Accused-1 during his tenure as CITA-II.
18 [Spl.C.C.115/2001-J] He has also deposed that the Accused-1 received Ex.P.14(e) and Ex.P.24(e) personally. He has identified the Initials of the Accused-1 in those documents as per Ex.P.14(g) and Ex.P.24(g). This evidence corroborates the evidence of P.W.9 and P.W.10. In his Examination under Section 313 of the Cr.P.C., the Accused-1 has also admitted that he received Ex.P.14(e), Ex.P.14(i), Ex.P.24(e) and Ex.P.24(i) directly. This admission of the Accused-1 fully corroborates the evidence of P.W.4, P.W.9 and P.W.10.
31. Thus, it is clear that the Appeal No.ITA-30(a)/95- 96 of the Accused-2 and the Appeal No.ITA-24(b)/95-96 of the Accused-3 were received directly by the Accused-1 along with Condonation of Delay Letters-Ex.P.14(e) and Ex.P.24(e). As Ex.P.14(e) and Ex.P.24(e) are signed and filed by the Accused-4 representing the Accused-2 and 3 in the capacity of the Chartered Accountant, it has to be inferred that the Accused-4 presented those Appeals along with Condonation of Delay Letters before the Accused-1 personally.
32. P.W.10 has further deposed that the Accused-1 gave Ex.P.14(e), Ex.P.14(i), Ex.P.24(e) and Ex.P.24(i) to her for giving Appeal Number and to make entries in the Appeal Register. She has further deposed that after receiving those documents, she made entry in the Appeal Register-Ex.P.46 as per Ex.P.46(a) and Ex.P.46(b). Ex.P.41 is the Copy of relevant Page marked in Ex.P.46. In Ex.P.46(a), it is shown that Appeal No.24(b) of the 19 [Spl.C.C.115/2001-J] Accused-3 was filed on 27.04.1995 and that Appeal No.30(a) of the Accused-2 was filed on 25.04.1995. As per the entries in that Register, Appeal No.24(a) pertains to Sri.J.Alexander, which is said to have been filed on 27.04.1995. As per those entries, Appeals prior to 24(a) and 24(b) were filed on 21.04.1995 and even Appeals subsequent to 24(a) and 24(b) i.e., Appeal Nos.25 to 27 were filed on 21.04.1995, Appeal Nos.28 and 29 were filed on 24.04.1995 and Appeal No.30 was filed on 25.04.1995. As per the entries in that Register, after the Appeal No.30(a) of the Accused-2, entry of Appeal No.30(b) of Smt.Delphine Alexander and Appeal No.31 of Sri.M.K.Prasad are found. All these Appeals are said to have been filed on 25.04.1995. There is overwriting and correction in respect of the date of filing of Appeal No.30(a). As per the entries in the Register of Appeals, after Appeal No.31, entries of Appeal No.32 and 33, which are said to have been filed on 26.04.1995 and the entries of Appeal No.34, 35 and 36, which are said to have been filed on 27.04.1995 are found. Thus, it is clear that continuous numbers in the chronological order in the usual course are not given in respect of the Appeals of the Accused-2 and 3. On careful scrutiny of the entries relating to Appeal Nos.24(a), 24(b), 30(a), 30(b) and other entries, it is clear that entries in respect of Appeal Nos.24(b) and 30(a) are subsequent insertions.
33. P.W.3-Sri.P.J.Thomas Kutty was working as CITA-I at Bengaluru from 17.05.1995 till 27.04.2001. He 20 [Spl.C.C.115/2001-J] has deposed that, whenever Appeals are filed, they are entered in Appeal Register, numbers will be given chronologically, usually sub-numbers will not be given and that very rarely sub-numbers will be given if the concerned forgets to mention number to any case, when such a case was filed along with bunch of cases. In the Cross- examination, P.W.9 has also stated that if a batch of Appeals are filed on one day, Appeal Numbers will be given chronologically and continuously. The evidence of P.W.10 also shows that Appeal Numbers will be given chronologically. Thus, it is clear that when the Appeals are filed, number to those Appeals will be given chronologically and that very rarely, sub-numbers as '(a)', '(b)'...... will be given, in case, the concerned person forgets to mention number to any Appeal, when such Appeal was filed along with batch of Appeals. The Accused-1 has not disputed this procedure of giving numbers to the Appeals chronologically.
34. P.W.10 has deposed that as the Accused-1 has instructed her to give Appeal Numbers as '24(b) and 30(a)', she gave those numbers, otherwise, she would have given continuous numbers. She has specifically stated that the Accused-1 did not give those papers on 27.04.1995 and 25.04.1995 as shown in Ex.P.46(a) and Ex.P.46(b) respectively and that if he had given those papers on 27.04.1995 or 25.04.1995 itself, she would not have given those numbers as '24(b) and 30(a)' instead of serial numbers. She has further deposed that the Appeals 21 [Spl.C.C.115/2001-J] prior and subsequent to '24(b) and 30(a)' do not belong to the Accused-2 and 3 and that they belong to some other persons. In the Cross-examination, she has denied that she received Appeal No.24(b) on 27.04.1995 itself. She has stated that she received those 2 Appeals '24(b) and 30(a)', after she made entries with regard to Appeals-25 to
30. She has further stated that as per the instructions of the Accused-1, she has given sub-numbers as 'a', 'b' etc., to some other Appeals also filed by the Appellants other than the Accused-2 and 3. She has stated that she does not know the reason as to why the Accused-1 told her to give the Appeal Numbers as 'a' and 'b' instead of continuous numbers. As per the said evidence of P.W.10, she gave Appeal Numbers as '24(b) and 30(a)' to the Appeals of the Accused-2 and 3 on the directions of the Accused-1 and that she did not receive those Appeals on 27.04.1995 and 25.04.1995 as shown in Ex.P.46(a) and Ex.P.46(b) respectively. This witness has stood well in the test of Cross-examination and there is no reason to disbelieve her evidence. From this evidence, it is clear that though the Appeals-30(a) and 24(b) of the Accused-2 and 3 were not filed on 27.04.1995 and 25.04.1995 as shown in Ex.P.46(a) and Ex.P.46(b) respectively, as per the directions of the Accused-1, P.W.10 has made those entries by way of subsequent insertions.
35. As observed above, Ex.P.14(e) and Ex.P.24(e), which are the Condonation of Delay Letters filed by the Accused-4, bear date as '27.4.95'. The said date portion shows that by applying white fluid to original typed date 22 [Spl.C.C.115/2001-J] figure, the said dates-'27.4.95' are over-written. Reverse side of that portion of the Page clearly shows even for bare eyes that the original date typed was '9.10.95' in those documents and that subsequently, the date '9' has been altered in the pen as '3'.
36. P.W.8 has deposed that on 11.07.2000, he sent Ex.P.14(e) and Ex.P.24(e) to GEQD for his Opinion and that on 21.08.2000, he received GEQD Opinion as per Ex.P.42. P.W.11-Sri.D.D.Goel was working as GEQD in the Office of GEQD at Hyderabad during 2000. He also states about receipt of Ex.P.14(e) and Ex.P.24(e) by his Office from CBI, ACB, Bengaluru, for examination and sending of Opinion as per Ex.P.42 after examination.
37. P.W.11 has further deposed that Ex.P.14(e) and Ex.P.24(e) were entrusted to Sri.A.K.Singh for examination and Opinion, Sri.A.K.Singh examined those documents and that he gave his Opinion as per Ex.P.42. He has further deposed that as Head of Office, he also examined those documents and verified that Opinion and that he found that the said Opinion is correct. He has further deposed that portions examined in Ex.P.14(e) and Ex.P.24(e) are marked as 'Q.1 and Q.2'. He has identified Ex.P.42(d) and Ex.P.42(e) as the enlarged photographs of Q.1 and Q.2. Said Q.1 and Q.2 are the date portions of Ex.P.14(e) and Ex.P.24(e). P.W.11 has deposed that as per his examination and examination of Sri.A.K.Singh, the original figures of Q.1 an Q.2 when deciphered, read as '09' and that the original typed figure-'9' of the figure '09' was 23 [Spl.C.C.115/2001-J] subsequently over written by overwriting the figure-'3'. On examination of Ex.P.14(e) and Ex.P.24(e) along with Ex.P.42(d) and Ex.P.42(e), the said over writings are clearly visible. This circumstance fortifies the evidence of P.W.11, which is well corroborated by Opinion-Ex.P.42.
38. In his Cross-examination, P.W.11 has stated that he made independent examination of those documents with the help of Stereo Microscope and Transmitting Light. He has stated that he was not asked to examine the age of alteration. He has further stated that though he has no knowledge about the existing writing on Q.1 and Q.2 as '27.04.1995', he has stated that those handwritings regarding date as '27.04.1995' were existing as on the date of his examination also. He has stated that the only alteration, which he found in Q.1 and Q.2, is change of figure-'9' as '3' and nothing else. On the basis of this answer, the learned Advocate appearing on behalf of the Accused-4 has contended that there is no alteration of figure-'27.4.1995' in Ex.P.14(e) and Ex.P.24(e) and that as such, it has to be inferred that the said Letters and Appeals were filed on '27.4.95' only. But, as observed above, the said dates-'27.4.95' in Ex.P.14(e) and Ex.P.24(e) are over written by applying white fluid on the original typed date as '9.10.1995', which was subsequently altered as '03.10.1995'. Said writing of the date- '27.04.1995' by applying white fluid on the original typed figures is nothing but alteration of the original date. As such, it is not fit to accept the bare argument of the learned Advocate appearing on behalf of the Accused-1, 24 [Spl.C.C.115/2001-J] that there is no such alteration of date, as it is untenable. As the original date mentioned in Ex.P.14(e) and Ex.P.24(e) was '09.10.1995', it has to be inferred that the said Letters were prepared and filed on 09.10.1995 only. As the said Appeals-24(b) and 30(a) were presented along with Ex.P.14(e) and Ex.P.24(e), it has to be inferred that those 2 Appeals were also prepared and filed on '09.10.1995' and that they were not filed on '27.04.1995' as shown in Ex.P.14 and Ex.P.24 and as well as in Ex.P.46(a) and Ex.P.46(b). Alterations and insertions in Ex.P.14(a) and Ex.P.42(b) also fortify the view that those 2 Appeals were not filed on 27.04.1995 and that they were filed on 09.10.1995.
39. The learned Counsel appearing on behalf of the Accused-1 argued that as there are date Seals of '27 APR 1995' on the Appeal Memo as well as on the Condonation of Delay Letter of the Appeals-ITA No.30(a) and ITA No.24(b)/95-96, on which, the Accused-1 has made his initials, it has to be inferred that those Appeals were filed on 27.04.1995 only. It is true that there are such date Seals and initials of the Accused-1 on Ex.P.14(e) and (i) and Ex.P.24(e) and (i). As observed above, those papers were not filed before P.W.9, they did not pass through Dispatch Section and on the other hand, the Accused-1 received those papers directly and he handed over those papers to P.W.10 subsequent to 27.04.1995 directing her to give sub-numbers to those Appeals. The reason for giving sub-numbers is not that those 2 Appeals were filed along with bunch or batch of other Appeals and that it was 25 [Spl.C.C.115/2001-J] forgotten to give continuous numbers to those Appeals earlier. Appeals prior to ITA No.24(b) and ITA No.30(a) are no way connected to the other Appeals of the Accused-2 and 3. Alteration in the date of Condonation of Delay Letters and insertion of entries in Ex.P.46(a) and Ex.P.46(b) clearly show that those 2 Appeals were not filed on 27.04.1995 and that they were filed on 09.10.1995. P.W.10 has deposed that the Accused-1 being the Head of Office of CITA-II was accessible to all the Office Files and Seals. This evidence is not disputed by the Accused-1. As the Accused-1 was accessible to the Office Seals as a Head of CITA-II and as he received those 2 Appeals personally, putting of date Seal by him on the papers of those 2 Appeals by ante-dating them cannot be ruled out. As he himself directed P.W.10, who is his sub-ordinate, to give such sub-numbers and make insertions in the Register of Appeals, it is clear that to suit to his convenience, he has put those Seals on the papers of those 2 Appeals. Thus, he has clearly abused his official position as CITA-II. As such, merely because there is date Seal of 27.04.1995 on the Appeal Memo and Condonation of Delay Letter of those 2 Appeals, it is not possible to infer or conclude that those Appeals were filed on 27.04.1995. Hence, it is not fit to accept the argument of the learned Counsel appearing on behalf of the Accused-1.
40. On considering all the facts, circumstances and the evidence, referred to above, it is clear that the Appeals-30(a) and 24(b) of the Accused-2 and 3 were not at all filed on 27.04.1995, but, they were filed only on 26 [Spl.C.C.115/2001-J] 09.10.1995 by pre-dating as '27.4.1995' and that the Accused-1 got inserted entries of those Appeals in the Appeal Register to make them to appear as if those Appeals were filed on 27.04.1995 to suit his convenience by abusing his official position as CITA-II.
2. Non-Issue of Notice & Non-Hearing
41. In the Orders relating to all the 11 Appeals pertaining to the Accused-2 and 3, it is shown by the Accused-1 that he heard the arguments of the representatives of the Accused-2 and 3 and also that of P.W.2 on 22.09.1995 and that, Order in those Appeals were passed on 27.09.1995. But, according to the Complainant, Notices were not given to P.W.2 in respect of those Appeals, P.W.2 was not heard in those Appeals, hearing date was not at all fixed on 22.09.1995 and that though P.W.2 was not at all present and heard on 22.09.1995, the Accused-1 has falsely mentioned that he heard P.W.2 on that day. The Accused-1 has denied the said contention of the Complainant. As such, it has to be seen now as to whether the Accused-1 heard P.W.2 in respect of the Appeals of the Accused-2 and 3 on 22.09.1995.
a) ITNS-51 Notice:
42. Soon after giving number to the Appeal in the CITA-II Office, ITNS-51 Notice will be issued to the concerned Assessing Officer, whose Assessment Order is challenged in the Appeal, to express his willingness to be 27 [Spl.C.C.115/2001-J] heard in person by the CITA-2 at the time of hearing. The Assessing Officer, who wants to be heard in the Appeal in person, makes endorsement accordingly in that Notice.
Subsequently, after fixing the hearing date, Hearing Notice in ITNS-37 will be issued to the Appellant and also to the Assessing Officer directing them to appear for hearing and hearing date will be entered in the Fixation Register. After fixing of such date of hearing, the Appeal File will go to the CITA-II for disposal. In the Office of CITA-II, P.W.9 used to send ITNS-51 Notices, fix the hearing dates, send ITNS-37 Notices and send the Appeal Files to CITA-II for disposal. P.W.9 has deposed about the said procedure. P.W.4 has also deposed about such procedure. The Accused-1 has not disputed about the said procedure adopted in respect of the Appeals.
43. P.W.9 has deposed that she issued ITNS-51 Notices in respect of the Appeals relating to Ex.P.4, Ex.P.6, Ex.P.8, Ex.P.10, Ex.P.16, Ex.P.18 and Ex.P.20. She has identified Ex.P.4(a), Ex.P.6(a), Ex.P.8(a), Ex.P.10(a), Ex.P.16(a), Ex.P.18(a) and Ex.P.20(a) are the said Notices. P.W.2 has also deposed that he received those ITNS-51 Notices and noted his desire to be present at the hearing by mentioning as 'Yes'. Contents of those Notices fortify the evidence of P.W.2 and P.W.9. The Accused-1 has not disputed the said evidence. As such, it is clear that ITNS- 51 Notices were issued in respect of the Appeals bearing No.ITA-10/94-95, No.ITA-11/94-95, No.ITA-12/94-95, No.ITA-13/94-95, No.ITA-22/94-95, No.ITA-23/94-95 and 28 [Spl.C.C.115/2001-J] No.ITA-24/94-95 and that P.W.2 noted on them about his desire to be present at the hearing of those Appeals.
44. P.W.2 has deposed that in respect of the Appeals pertaining to Ex.P.12, Ex.P.14, Ex.P.22 and Ex.P.24, ITNS- 51 Notices were not issued to him. The said Files relate to Appeals bearing No.ITA-4/93-94, No.ITA-30(a)/95-96, No.ITA-3/93-94 and No.ITA-24(b)/95-96. P.W.9 has deposed that she did not receive Files in respect of the Appeals No.24(b)/95-96 and No.30(a)/95-96 pertaining to Ex.P.14 and Ex.P.24 and that she did not issue ITNS-51 Notices in respect of those Appeals. It is not her evidence also that she issued ITNS-51 Notices in respect of the Appeals No.ITA-4/93-94 and No.ITA-3/93-94. In the Files relating to those 4 Appeals, there are no such ITNS-51 Notices. Ex.P.29 and Ex.P.30 are the Dispatch Registers. These documents also do not show issue and dispatch of ITNS-51 Notices in respect of those 4 Appeals. In Ex.P.12(a) and Ex.P.24(a), which are the Order Sheets relating to Appeals No.ITA-4/93-94 and No.ITA-24(b)/95- 96 respectively, it is not even mentioned that such ITNS- 51 Notices were issued in respect of those Appeals.
45. In Ex.P.22(a), which is the Order Sheet of the Appeal No.ITA-3/93-94, though a Seal 'ITNS-51 issued on _______' is put, it is not shown as to when that Notice was issued. In Ex.P.14(a), which is the Order Sheet of the Appeal No.ITA-30(a)/95-96, it is mentioned as 'ITNS-51 issued on 27.4.95'. But, nothing is available in that File to show that such a Notice was issued. As observed above, 29 [Spl.C.C.115/2001-J] the evidence on record shows that the said Appeal was filed on 09.10.1995. As such, question of issuing ITNS-51 Notice on 27.04.1995 itself does not arise at all. In Ex.P.12, Ex.P.14, Ex.P.22 and Ex.P.24, there is nothing to show that ITNS-51 Notices were issued to P.W.2. All these circumstances coupled with the evidence of P.W.9 fortify the evidence of P.W.2 that ITNS-51 Notices were not issued to him in respect of those 4 Appeals. The said evidence of P.W.2 remained unchallenged as no Cross- examination is made in respect of that evidence. In his Examination under Section 313 of the Cr.P.C., though the Accused-1 stated as 'Nothing to say' regarding the evidence of P.W.2 about non-issue of ITNS-51 Notices in respect of Appeals No.ITA-4/93-94 and No.ITA-30(a)/95- 96, he has stated as 'False' in respect of other 2 Appeals. However, there is no explanation of the Accused-1 about absence of issue of ITNS-51 Notices to P.W.2 in respect of those 4 Appeals. There is no reason at all to disbelieve the evidence of P.W.2, which is well supported by the evidence of P.W.9 as well as the documentary evidence and the circumstances referred to above. On considering the said evidence, it is clear that ITNS-51 Notices were not issued to P.W.2 in respect of the Appeals No.ITA-4/93-94, No.ITA-30(a)/95-96, No.ITA-3/93-94 and No.ITA-24(b)/ 95- 96.
b) ITNS-37 Notice:
46. P.W.2 has further deposed that in all the 11 Appeals, hearing dates were not informed to him and that
30 [Spl.C.C.115/2001-J] as such, he could not attend the hearing in all those Appeals. P.W.9 has deposed that she did not issue ITNS- 37 Notices in respect of the Appeals-ITA-30(a)/95-96 and ITA-24(b)/95-96 as she did not receive those Files. She has not stated that she issued ITNS-37 Notices in respect of other Appeals. However, P.W.9 has identified Ex.P.12(b) as the ITNS-37 Notice in respect of the Appeal-ITA-4/93-
94. She has also identified Ex.P.22(e) as the ITNS-37 Notice of Appeal No.ITA-3/93-94.
47. Ex.P.12(b) consists of 6 ITNS-37 Notices and 1 Postal Acknowledgment. As per those documents, ITNS- 37 Notices were said to have been issued on 22.06.1993, 02.08.1993, 11.08.1993, 30.08.1993, 03.01.1994 and 11.01.1994 to the Accused-2 with a Copy to the Assistant Commissioner, Central Circle-III, Bengaluru, for their appearance on 05.07.1993, 11.08.1993, 24.08.1993, 14.09.1993, 18.01.1994 and 02.02.1994 respectively relating to Appeal No.ITA-4/93-94. Postal Acknowledgment indicates that Notice dated 30.08.1993 regarding hearing date 14.09.1993 was served on the Accused-2. However, there is nothing in those 6 Notices or in Ex.P.12 to show service of those Notices on the Assistant Commissioner, Central Circle-III, Bengaluru, or his representative or P.W.2. In Ex.P.12(a), though it is mentioned by putting Seal about issue of ITNS-37 Notice in respect of those hearing dates, it is not mentioned about service of those Notices on P.W.2 or his representative. In fact, except putting that date Seal, nothing is mentioned about 31 [Spl.C.C.115/2001-J] proceedings of those hearing dates or about presence or absence of parties on those dates, which indicate that no proceedings were held on those hearing dates.
48. Ex.P.22(e) consists of 6 ITNS-37 Notices and 1 Postal Acknowledgment. As per those documents, ITNS-37 Notices were said to have been issued on 22.06.1993, 02.08.1993, 11.08.1993, 30.08.1993, 03.01.1994 and 11.01.1994 to the Accused-3 with a Copy to the Assistant Commissioner, Central Circle-III, Bengaluru, for their appearance on 05.07.1993, 11.08.1993, 24.08.1993, 14.09.1993, 18.01.1994 and 02.02.1994 respectively in respect of Appeal No.ITA-3/93-94. Postal Acknowledgment indicates that Notice dated 30.08.1993 regarding hearing date 14.09.1993 was served on the Accused-3. However, there is nothing in those 6 Notices or in Ex.P.12 to show service of those Notices on the Assistant Commissioner, Central Circle-III, Bengaluru, or his representative or P.W.2. In Ex.P.22(a), it is not mentioned anything about ITNS-37 Notices referred to in Ex.P.22(e) or service of those Notices on P.W.2 or his representative or proceedings in respect of those dates or about presence or absence of parties on those dates. As such, it is clear that no proceedings were held on 05.07.1993, 11.08.1993, 24.08.1993, 14.09.1993, 18.01.1994 and 02.02.1994.
49. However, in Ex.P.22(a), it is mentioned about issue of ITNS-37 Notice for the hearing date on 22.09.1995. But, it is not stated as to when actually that Notice was issued. It is also not mentioned that the said 32 [Spl.C.C.115/2001-J] Notice was served on P.W.2 or his representative. Copy of the said Notice relating to hearing on 22.09.1995 is not available in Ex.P.22. There is nothing in Ex.P.22 to show about issue of such a Notice for the hearing date on 22.09.1995.
50. Ex.P.4(c), Ex.P.6(b), Ex.P.8(b), Ex.P.10(b), Ex.P.14(a), Ex.P.16(c), Ex.P.18(b), Ex.P.20(b) and Ex.P.24(a), which are the Order Sheets of the Appeals No. ITA-10/94-95, No.ITA-11/94-95, No.ITA-12/94-95, No.ITA- 13/94-95, No.ITA-30(a)/95-96, No.ITA-22/94-95, No.ITA- 23/94-95, No.ITA-24/94-95 and No.ITA-24(b)/95-96, indicate that first hearing of all those Appeals was on 22.09.1995. As observed above, though Ex.P.12(a) indicates about issue of ITNS-37 Notices in respect of the Appeal No.ITA-4/93-94 for hearing dates on 05.07.1993, 11.08.1993, 24.08.1993, 14.09.1993, 18.01.1994, 02.02.1994, no proceedings were held on those dates. Ex.P.12(a) indicates about the hearing date on 22.09.1995 in respect of that Appeal. But, in that Order Sheet and in Ex.P.4(c), Ex.P.6(b), Ex.P.8(b), Ex.P.10(b), Ex.P.14(a), Ex.P.16(c), Ex.P.18(b), Ex.P.20(b) and Ex.P.24(a), it is not mentioned about issue of ITNS-37 Notices and service of those Notices to the Accused-2 and 3 or their representatives and also to P.W.2 or his representative for their appearance. There is nothing in Ex.P.4, Ex.P.6, Ex.P.8, Ex.P.10, Ex.P.12, Ex.P.14, Ex.P.16, Ex.P.18, Ex.P.20 and Ex.P.24 to show about issue of such ITNS-37 Notices either to the Accused-2 and 3 or to their 33 [Spl.C.C.115/2001-J] representative and also to P.W.2 or his representative for their appearance on 22.09.1995. Ex.P.29 and Ex.P.30 also do not show anything about issue of such ITNS-37 Notices.
51. As observed above, after fixing of hearing date, P.W.9 used to enter the same in Fixation Register and thereafter, she used to send ITNS-37 Notices for the appearance of the Appellants and the Assessing Officers. She has deposed that no hearing date was fixed on 22.09.1995 for hearing the Appeals. In fact, she has stated that from 01.09.1995 to 15.11.1995, no hearing date was fixed for hearing the Appeals. Ex.P.43(a) and Ex.P.43(b) show that some Appeals pertain to others were fixed for hearing on 31.08.1995 and that after that date, some Appeals of others were fixed for hearing on 16.11.1995 and that in between 31.08.1995 and 16.11.1995 and much less on 22.09.1995, no Appeals including the Appeals of the Accused-2 and 3 were fixed for hearing. As such, contents of Ex.P.43(a) and Ex.P.43(b) corroborate the evidence of P.W.9, which supports the evidence of P.W.2. As hearing dates were not fixed on 22.09.1995, question of sending ITNS-37 Notices for that hearing date does not arise.
52. The learned Advocate appearing on behalf of the Accused-1 has contended that in all the 11 Appeals, ITNS- 37 Notices were served on P.W.2 for the first hearing date and that on all the subsequent dates, hearing Notices were served on P.W.2 through Telephone. But, there is nothing either in the Appeal Files or in the Order Sheets of those 34 [Spl.C.C.115/2001-J] Appeals to substantiate the said argument. P.W.2 has categorically denied the said contention raised on behalf of the Accused-1. He has stood well in the test of Cross- examination and there is no reason to disbelieve his evidence. As observed above, Order Sheets of the Appeals indicate that no proceedings were held prior to 22.09.1995 and no hearing date was fixed on 22.09.1995. As such, question of issuing ITNS-37 Notices either in writing or through Telephone does not arise. Hence, it is not fit to accept the bare argument of the learned Advocate appearing on behalf of the Accused-1. On the other hand, on considering the undisturbed evidence of P.W.2 and P.W.9 and also the documentary evidence, referred to above, it is clear that hearing date was not fixed on 22.09.1995 and that ITNS-37 Notices were not issued for such hearing date for appearance of the parties much less to P.W.2 or his representative.
c) Hearing on 22.09.1995:
53. As observed above, in the Orders relating to all the 11 Appeals pertaining to the Accused-2 and 3, it is shown by the Accused-1 that he heard the arguments of the representatives of the Accused-2 and 3 and also that of P.W.2 on 22.09.1995 and that, Order in those Appeals were passed on 27.09.1995.
54. In the Order Sheet-Ex.P.4(c), in the proceedings dated 22.09.1995, it is mentioned as follows:
"Shri.Shivagangappa, adv. & 35 [Spl.C.C.115/2001-J] Shri.K.R.Pradeep, CA appeared. Case discussed with them.
Dictated."
In that Order Sheet, in the proceedings dated 27.09.1995, it is mentioned as follows:
"Consolidated Order for 86-87 to 91-92 sub. for sig."
In Ex.P.6(b), in the proceedings dated 22.09.1995, it is mentioned as follows:
"Shri.Shivagangappa, Adv. & Shri.K.R.Pradeep, CA appeared. Case discussed.
Dictated."
In that Order Sheet, in the proceedings dated 27.09.1995, it is mentioned as follows:
"Consolidated Order typed and sub. for sig."
In the Order Sheets-Ex.P.8(b), Ex.P.10(b) and Ex.P.14(a), in the proceedings dated 22.09.1995, it is mentioned as follows:
"Kindly see the folder for 86-87."
In the Order Sheet-Ex.P.12(a), in the proceedings dated 22.09.1995, it is mentioned as follows:
36 [Spl.C.C.115/2001-J] "Consolidated folder for 86-87. Please see.
Dictated."
Folder for 86-87 referred to above is Ex.P.4. In the Order Sheets-Ex.P.8(b), Ex.P.10(b), Ex.P.12(a) and Ex.P.14(a), in the proceedings dated 27.09.1995, it is mentioned as follows:
"Consolidated Order typed & sub. for sig."
In the Order Sheet-Ex.P.16(c), in the proceedings dated 22.09.1995, it is mentioned as follows:
"Shri Shivagangappa adv and Shri K.R.Pradeep, CA appeared.
Case discussed with them."
In that Order Sheet, in the proceedings dated 27.09.1995, it is mentioned as follows:
"Consolidated Order for 87-88 to 91-92 sub.
for sig."
In the Order Sheet-Ex.P.22(a), in the proceedings dated 22.09.1995, it is mentioned as follows:
"Shri Shivagangappa, adv.
and Shri K.R.Pradeep appeared. Case discussed.
dictated."
37 [Spl.C.C.115/2001-J] In that Order Sheet, in the proceedings dated 27.09.1995, it is mentioned as follows:
"A.O typed & sub.
for sig."
In the Order Sheet-Ex.P.18(b), in the proceedings dated 22.09.1995, it is mentioned as follows:
"Kindly see folder for 87-88."
In that Order Sheet, in the proceedings dated 27.09.1995, it is mentioned as follows:
"Pl. see folder for 87-88 Consolidated Order sub.
For sig."
In the Order Sheet-Ex.P.20(b), in the proceedings dated 22.09.1995, it is mentioned as follows:
"Kindly see the folder for 1987-88."
In that Order Sheet, in the proceedings dated 27.09.1995, it is mentioned as follows:
"Consolidated Order typed & sub. for sig."
In the Order Sheet-Ex.P.24(a), in the proceedings dated 22.09.1995, it is mentioned as follows:
"Kindly see the folder for 87-88."
38 [Spl.C.C.115/2001-J] In that Order Sheet, in the proceedings dated 27.09.1995, it is mentioned as follows:
"Consolidated Order sub.
for sig."
Folder for 87-88 referred to above is Ex.P.16.
55. P.W.2 has deposed that in all the Appeals, hearing dates were not informed to him and that as such, he could not attend the hearings in all those Appeals. He has further deposed that the Accused-1 did not hear him before passing the Consolidated Appellate Orders, but, he has falsely mentioned in those Orders that he has heard him in all those Appeals. He has further deposed that, if he had attended on the dates of hearing in those Appeals and that if the Accused-1 had heard him in those Appeals, the Accused-1 should have mentioned the same in the Order Sheet and that the Accused-1 should have taken his signatures in the Order Sheet regarding his presence, but, he has not done so. He has further deposed that in the Order Sheets of all those Appeals, his signatures are not obtained. Contents of the Order Sheets dated 22.09.1995 of all the 11 Appeals, referred to above, though indicate the presence of Advocate-Sri.Shivagangappa and Chartered Accountant-Sri.K.R.Pradeep on behalf of the Accused-2 and 3, their signatures and discussion of case with them by the Accused-1, they do not show the presence of P.W.2, his signature and discussion or hearing by the Accused-1 with P.W.2. As such, contents of the said Order Sheets fortify the evidence of P.W.2.
39 [Spl.C.C.115/2001-J]
56. It is the argument of the learned Counsel appearing on behalf of the Accused-1 that, it is not required to note the presence of parties or their representatives and to obtain signatures of those persons in the Order Sheet. P.W.3 has deposed that he used to record the presence of the Assessee, his Authorised Representative and the Assessing Officer and that he used to take their signatures also in the Order Sheet. The Accused-1 has not disputed this evidence in his Examination under Section 313 of the Cr.P.C. Ex.P.26 and Ex.P.27 are the Files relating to the Appeals of M/s.United Breweries and M/s.McDowell & Company decided by the Accused-1. Ex.P.26(a) and Ex.P.27(a) are the Order Sheets of those Files. P.W.2 has deposed that Sri.D.Vishnuvardhana Reddy was the Assessment Officer pertaining to those Appeals and that the Accused-1 has mentioned in the Order Sheets of those Appeals about the presence of both the parties at the hearing. Contents of Ex.P.26(a) and Ex.P.27(a) corroborate the said evidence of P.W.2. Those contents also show that the Accused-1 has obtained the signatures of the parties including those of the Assessment Officer to the Order Sheet. In his Examination under Section 313 of the Cr.P.C., the Accused-1 has admitted the said fact. As such, it is clear that the Accused-1 was also following the procedure of mentioning the presence of the parties including the Assessment Officer and taking their signatures in the Order Sheets on the hearing dates. But, in the case on hand, though he mentioned about the presence of and discussion 40 [Spl.C.C.115/2001-J] with the representatives of the Accused-2 and 3 and obtained their signatures in the Order Sheets dated 22.09.1995, he has not mentioned about the presence of P.W.2 and hearing him, and his signature is not taken to the Order Sheets relating to that hearing. There is no explanation at all on behalf of the Accused-1 in this regard. Absence of such mention about P.W.2 and absence of signature of P.W.2 in the Order Sheets and also absence of explanation on behalf of the Accused-1 in this regard, though he used to do in other cases, speak volumes about the conduct of the Accused-1 relating to disposal of the Appeals pertaining to this case. This evidence and circumstance also support the evidence of P.W.2 that he was not present and that he was not heard on 22.09.1995 in all the Appeals.
57. In his Cross-examination, P.W.2 has denied that he appeared before the Accused-1 on 22.9.1995 and that he urged his grounds before him in all other Appeals. He has also denied that Officers like him were not in the habit of putting signatures in the Order Sheet of CITA-II. He has also denied that in the normal course, he appeared before the Accused-1, discussed with him about all other Appeals, told him not to give any relief to the Accused-2 and 3 and that the Accused-1 made a note in this regard in the Slip-Ex.P.4(d), which is common to all the Appeals, and that the Accused-1 has attached that Slip in the main File. Ex.P.4(d) is the Slip kept behind the Common Order passed as per Ex.P.4(b) and above ITNS-51 Notice-
41 [Spl.C.C.115/2001-J] Ex.P.4(a). In his Cross-examination, P.W.4 has admitted that Ex.P.4(d) is in his handwriting and that contents of Ex.P.4(d) might have been dictated by the Accused-1 to him not to forget about the same while preparing the Orders. In Ex.P.4(d), it is noted as follows:
"because there is evidence for earned income from M/s.Auto Consultancy Services situated."
In the said note, there is nothing to show that there was hearing on 22.09.1995, P.W.2 was present at the time of hearing and that he was heard by the Accused-1. On the other hand, as the said note indicates about the evidence regarding earned income from M/s.Auto Consultancy Services, it is clear on considering the contentions of the Accused-2 and 3 in their Appeals that the said note may be a ground said to have been urged on behalf of the Accused-2 and 3. As such, Ex.P.4(d) does not in any way assist the Accused-1 to substantiate his contention that he heard P.W.2 on 22.09.1995. P.W.2 has further denied that due to animosity and vengeance against the Accused-1 and 4 and that as his Assessment Orders were set aside by the Accused-1, he has deposed falsely against the Accused-1. There is nothing to show that P.W.2 has any animosity or vengeance against the Accused-1 and 4. This witness has stood well in the test of Cross-examination and there is no reason to disbelieve his evidence, which shows that he was not present on 22.09.1995 before the Accused-1 and that he was not heard by the Accused-1 on that day in the Appeals.
42 [Spl.C.C.115/2001-J]
58. P.W.4 has deposed that proceedings of 22.09.1995 and 27.09.1995 in the Order Sheets of all the Appeals are written by him as per the dictation of the Accused-1. He has further deposed that those proceedings were not written on those dates, but, they were written subsequent to those dates and that even dictation of those proceedings was not given to him by the Accused-1 on those dates and that dictation was given subsequently. He has further deposed that on the date of dictation itself, he noted those proceedings and that at present, he does not remember the exact date of dictation of the same. However, he has stated that the said dictation and noting of the proceedings was prior to 13.10.1995. He has further deposed that after noting those proceedings, he has made his initials in the Order Sheets. He has identified his initials as well as the initials of the Accused-1 relating to those proceedings. He has further deposed that he was knowing the Authorized Representative-Sri.K.R.Pradeep and Advocate-Sri.Shivagangappa, who appeared on behalf of the Accused-2 and 3, and that he can identify their signatures and that when dictation was given and that when he wrote those proceedings, signatures of the Authorized Representative and Advocate were not there in the Order Sheets and that those signatures were taken subsequently. He has further deposed that the reason for giving dictation on subsequent dates by the Accused-1 may be due to change of his jurisdiction with effect from 09.10.1995.
43 [Spl.C.C.115/2001-J]
59. In his Cross-examination, P.W.4 has stated that the Accused-1 directed him to take down the Order Sheet portion as he told him that his right hand was un- intentional (shaking) and that as such, his handwriting will be illegible. He has further deposed that he used to take dictation of Orders and Letters, he used to type the said dictation matter in the Typewriter and hand over the same to CITA-II for corrections if any. He has further deposed that the Accused-1 used to tell the date of Order of the Appeal and that accordingly, he used to type that date in the Order. He has further deposed that because of backlog of cases, if he could not have finished typing work on the same day, he was unable to mention the date of dictation on the date of Order and that however, he used to put the date of the Order as per the directions of the Accused-1. He has further deposed that during the regime of the Accused-1, after hearing the Appeal, 3 to 15 days were consumed for dictation, typing, corrections, signatures etc., depending upon the nature and volume of the case. He has further deposed that he has no personal knowledge about the hearing on 22.09.1995, he has typed the date of Order as "27.09.1995" in Ex.P.4(b) and Ex.P.16(b) and that in both those Orders, the Accused-1 might have signed subsequent to 27.09.1995 only. He has further deposed that, if the Appeals were not disposed before 09.10.1995, those Files had to be transferred to the jurisdictional CITA-I.
60. As per the said evidence of P.W.4, the Accused-1 dictated the proceedings of 22.09.1995 and 27.09.1995 to 44 [Spl.C.C.115/2001-J] P.W.4 subsequent to those 2 dates, P.W.4 has noted those proceedings also subsequent to those 2 dates and signatures of Authorized Representative-Sri.K.R.Pradeep and Advocate-Sri.Shivagangappa, who represented the Accused-2 and 3, were not in the Order Sheets when dictation was given by the Accused-1 and when P.W.4 wrote those proceedings, and that those signatures have been taken subsequent to 27.09.1995. From the said evidence of P.W.4, it is also clear that as per the directions of the Accused-1 only, P.W.4 was mentioning the date of Orders and that the reason for giving dictation on subsequent dates by the Accused-1 was due to change of his jurisdiction to decide those Appeals with effect from 09.10.1995. As observed above, as per Ex.P.2, the Accused-1 was losing jurisdiction to decide the Appeals of the Accused-2 and 3 from 09.10.1995. This witness has also stood well in the test of Cross-examination and there is no reason to disbelieve his evidence. This evidence of P.W.4 also supports the evidence of P.W.2, which fortifies the contention of the Complainant that proceedings were not held on 22.09.1995 and the Order was not passed on 27.09.1995 as mentioned in the Order Sheets and Order of the Appeals.
61. P.W.9 has deposed that Ex.P.44 is the Visitors' Book maintained in her Office during the period from 28.07.1995 to 19.01.1999 and that the Appellants, their Representatives and other Visitors used to sign in that Book, whenever they were visiting the Office. She has further deposed that as per Ex.P.44, none of the 45 [Spl.C.C.115/2001-J] Appellants or their Representatives visited the Office on 22.09.1995. She has further deposed that from 31.07.1995 to 20.11.1995, none of the Appellants or Representatives visited the Office as there was no date of hearing in between the said dates. Contents of Ex.P.44 fortify the evidence of P.W.9. But, in her Cross- examination, she has stated that she does not know as to each and every person, who visits the Office used to make entries in the Visitors' Book. However, it is not the evidence of P.W.9 that the Accused-2 and 3 or their Representatives were not making entries in the Visitors' Book, when they used to appear before the Accused-1 relating to hearing of the Appeals. If at all, there was hearing on 22.09.1995 of all the 11 Appeals of the Accused-2 and 3 and if at all the Representatives of the Accused-2 and 3 and P.W.2 had appeared on 22.09.1995 as contended by the Accused-1, they would have made entries in Ex.P.44 about their visit. But, there are no such entries in Ex.P.44 and as observed above, the evidence on record shows that hearing date was not at all fixed on 22.09.1995. All these circumstances negative the contention of the Accused-1 and support the evidence of P.W.2, which supports the contention of the Complainant.
d) Conclusion:
62. From the facts, circumstances and the evidence available on record, as observed above, it is clear that ITNS-51 Notices were not given to P.W.2 or his Office in respect of Appeals bearing No.ITA-4/93-94 and ITA-
46 [Spl.C.C.115/2001-J] 30(a)/95-96 of the Accused-2 and Appeals bearing No.ITA-
3/93-94 and ITA-24(b)/95-96 of the Accused-3; ITNS-37 Notices were not given to P.W.2 or his Office in respect of any of the 11 Appeals of the Accused-2 and 3; there was no hearing date on 22.09.1995 in respect of those Appeals; the Accused-1 did not hear P.W.2 on that date, he did not prepare Order Sheets on 22.09.1995, he did not prepare the Orders also on 27.09.1995, but, he got prepared Order Sheets and Orders subsequent to 27.09.1995 only by putting ante-dates and that though he did not conduct any proceedings on 22.09.1995, he has falsely shown in the Order Sheets and Orders about conducting of such proceedings and that though he did not hear P.W.2 in respect of those Appeals, he has falsely shown in the Orders that he has heard P.W.2. It is also clear from the evidence available on record that knowing fully well that he was going to lose jurisdiction to decide all those Appeals of the Accused-2 and 3 from 09.10.1995 onwards, he has falsely shown that he heard the Appeals on 22.09.1995 and that he disposed those Appeals on 27.09.1995, even though 2 Appeals among those 11 Appeals were not even filed as on that day. Thus, it is clear that there is clear abuse of his official position as CITA-II by the Accused-1 in disposal of the Appeals of the Accused-2 and 3.
3. Pecuniary Advantage
63. In the Assessment Orders passed by P.W.2, it was held that the Accused-2 was liable to pay tax of 47 [Spl.C.C.115/2001-J] Rs.64,614/-, Rs.2,640/-, Rs.29,699/-, Rs.4,081/-, Rs.1,74,319/- and Rs.3,40,574/- for the Assessment Years 1986-87 to 1991-92 respectively. Similarly, it was held by P.W.2 that the Accused-3 was liable to pay tax of Rs.82,448/-, Rs.23,899/-, Rs.14,186/-, Rs.6,853/- and Rs.2,18,149/- for the Assessment Years 1987-88 to 1991- 92 respectively.
64. As observed above, it is not in dispute that the Accused-1 allowed all the Appeals by setting aside the Assessment Orders passed by P.W.2. According to the Complainant, by allowing the Appeals, the Accused-1 gave tax relief of Rs.1,53,508/- to the Accused-2 and Rs.1,60,197/- to the Accused-3 and thereby, the Income Tax Department sustained corresponding tax loss.
65. P.W.2 has deposed that after receipt of the Appeal Orders passed by the Accused-1, he verified the same, he found that those Orders were not in accordance with law and that, hence, he gave Scrutiny Report as per Ex.P.3(b) and Ex.P.15(a) with a recommendation to prefer Appeal against the Orders of the Accused-1. In his Cross- examination, P.W.2 has admitted that as per Ex.P.3(b), he assessed loss of Rs.1,53,508/- due to the Orders passed by the Accused-1 in the Appeals of the Accused-2. He has also deposed that as per Ex.P.15(a), he assessed loss of Rs.1,60,197/- because of the Orders passed by the Accused-1 in the Appeals of the Accused-3. Contents of Ex.P.3(b) and Ex.P.15(a) fortify the said admissions of P.W.2. P.W.2 has denied that the Accused-1 did not give 48 [Spl.C.C.115/2001-J] any tax relief to the Accused-2 and 3 and that the loss assessed by him was due to non-giving of previous credits properly. P.W.2 has stood well in the test of Cross- examination and there is no reason to disbelieve his evidence.
66. The learned Advocate appearing on behalf of the Accused-1 has argued that subsequently Correction Orders/Revision Orders were passed and that, as per those Correction Orders/Revision Orders, the cases of the Accused-2 and 3 ended in refund of tax, which shows that there was neither loss to the Income Tax Department nor advantage to the Accused-2 and 3. In this regard, she has relied upon Ex.P.3(c), Ex.P.7(b), Ex.P.9(b), Ex.P.11(b), Ex.P.13(b), Ex.P.15(c), Ex.P.15(d), Ex.P.17(b), Ex.P.17(c), Ex.P.19(b), Ex.P.21(b), Ex.P.23(b) and Ex.P.23(c), which are the Revision Orders/Correction Orders. In his Cross- examination, P.W.2 has admitted that, as per the Correction Orders/Revision Orders passed subsequently, the cases of the Accused-2 and 3 ended in refund of tax to them. It is the explanation of P.W.2 that the said Correction Orders were passed obeying the Appellate Orders passed by the Accused-1 and that as per procedure, it was required to give effect to the Appellate Orders first and that then only to prefer Appeal, if necessary, against the Appellate Orders.
67. As observed above, except against the Order passed by the Accused-1 relating to the Assessment Year 49 [Spl.C.C.115/2001-J] 1991-92, Appeals were filed before the Income Tax Appellate Tribunal, Bengaluru Bench by the ACIT and subsequently, Appeals were filed before the Hon'ble High Court of Karnataka also and some of the cases are remanded to the Assessing Officer for fresh consideration and those cases are still pending. As such, it is clear that the said Correction Orders/Revision Orders were passed subject to the Appeals filed by the ACIT. The question involved in this case is as to whether the Accused-1 gave pecuniary advantage by way of tax relief to the Accused-2 and 3 by abusing his position as a Public Servant. As P.W.2 had passed Orders making the Accused-2 and 3 liable to pay tax and as the Accused-1 has set aside those Orders, which reduced the tax liability of the Accused-2 and 3, it is clear that by passing favourable Orders in the Appeals, the Accused-1 gave pecuniary advantage to the Accused-2 and 3 by way of tax relief. The said pecuniary advantage to the Accused-2 and 3 is nothing but causing loss of revenue to the Income Tax Department. Hence, it is not fit to accept the bare argument of the learned Advocate appearing on behalf of the Accused-1 that Orders passed by the Accused-1 did not give any pecuniary advantage to the Accused-2 and 3. For all these reasons, it is held that by passing favourable Orders allowing the Appeals of the Accused-2 and 3, the Accused-1 gave pecuniary advantage to the Accused-2 and 3 to an extent of Rs.1,53,508/- and Rs.1,60,197/- respectively by way of tax relief.
50 [Spl.C.C.115/2001-J]
4. Conclusion
68. On consideration and appreciation of the facts, circumstances and the evidence available on record, as observed above, it is clear that:
Appeals bearing No.ITA-30(a)/95-96 and ITA-24(b)/95-96 of the Accused-2 and 3 respectively were not at all filed on 27.04.1995, but, they were filed only on 09.10.1995 and they were pre-dated as '27.4.1995' by the Accused-2 to 4 and by abusing his official position as a Public Servant, the Accused-1 got falsely inserted entries in respect of those Appeals in the Register of Appeals to make them to appear as if those Appeals were filed on 27.04.1995;
Knowing fully well that the Accused-1 was going to lose jurisdiction to decide all the Appeals of the Accused-2 and 3 from 09.10.1995 onwards, though there was no hearing date on 22.09.1995 in respect of those Appeals and though the Accused-1 did not conduct any proceedings on that day, he has falsely shown in the Order Sheets and Orders about conduct of such proceedings and that though he did not hear P.W.2 in respect of those Appeals on 51 [Spl.C.C.115/2001-J] 22.09.1995 and he did not dispose those Appeals on 27.09.1995, he has falsely shown in the Orders that he heard P.W.2 and disposed those Appeals on 27.09.1995, even though 2 Appeals among those 11 Appeals were not even filed as on that day and thus, he clearly abused his official position as a Public Servant in disposal of the Appeals in favour of the Accused-2 and 3;
By passing such illegal Orders allowing the Appeals of the Accused-2 and 3, the Accused-1 gave pecuniary advantage to the Accused-2 and 3 to an extent of Rs.1,53,508/- & Rs.1,60,197/- respectively by way of tax relief. Except the relationship of CITA-II i.e., Public Servant and Litigants in between the Accused-1 on the one hand and the Accused-2 to 4 on the other hand, there is no other relationship between them. As such and on considering the manner in which the Accused-1 abused his official position, it has to be inferred that except to obtain pecuniary advantage for himself, there could not be any other purpose or motive or intention for the Accused-1 in passing such illegal Orders. Hence, it is clear that the Accused-1 also 52 [Spl.C.C.115/2001-J] obtained pecuniary advantage by misusing or abusing his position as a Public Servant by way of passing Orders illegally in favour of the Accused-2 and 3;
On considering the way in which the Appeals were filed, dealt with and disposed, it is clear that without prior meeting of minds of the Accused-1 to 4, it is impossible to do the illegal acts referred to above. Role played by the Accused-1 to 4 starting from filing of the Appeals, ante-dating of 2 Appeals, receipt of those Appeals by the Accused-1 personally, getting insertion of entries of those 2 Appeals falsely in the Register of Appeals and disposal of those Appeals without conducting any proceedings on 22.09.1995 and passing Orders subsequently by putting ante-date as '27.09.1995' and all other facts and circumstances of the case, as observed above, clearly indicate such a meeting of minds as well as the agreement between the Accused-1 to 4 to obtain pecuniary advantage for themselves and doing of acts in pursuance of such an agreement.
69. By relying upon Ex.D.1 and Ex.D.2, the learned Advocate appearing on behalf of the Accused-1 has seriously contended that as the Orders passed by the 53 [Spl.C.C.115/2001-J] Accused-1 have been upheld by the Income Tax Appellate Tribunal, Bengaluru, in the Appeals filed by the Income Tax Department, it is clear that the Orders passed by the Accused-1 in the Appeals are not illegal and that as such, the Accused-1 cannot be held guilty. As observed above, out of Orders passed by the Accused-1 in 11 Appeals, Income Tax Department filed Appeal in only 9 cases. It is true that as per Ex.D.1 and Ex.D.2, the Income Tax Appellate Tribunal, Bengaluru, dismissed those 9 Appeals of the Income Tax Department by confirming the Orders of the Accused-1. As observed above, aggrieved by the said dismissal Orders, the Income Tax Department filed Appeals before the Hon'ble High Court of Karnataka, Bengaluru and among those 9 Appeals, 3 Appeals were dismissed and other 6 Appeals were partly allowed and remanded to the Assessing Officer for fresh consideration on some points as per Ex.P.47 to Ex.P.55. Though those cases were remanded in the year 2010, so far, the Assessing Officer has not passed any Order in those cases. However, result of proceedings of those Appeals and subsequent proceedings is immaterial to this case as questions involved in those proceedings are altogether different from those of this case. Question involved in this case is commission of offence of Criminal Conspiracy and Criminal Misconduct by the Accused-1 about altering of dates, insertion of false entries in the Register of Appeals, non-conducting of proceedings on 27.04.1995, passing of Orders without hearing P.W.2, making of false entries in the Order Sheet and Order about the proceedings and 54 [Spl.C.C.115/2001-J] disposal of the Appeals, by putting ante-dates, just to overcome losing of jurisdiction to decide the Appeals and also obtaining of pecuniary advantage for himself and the Accused-2 to 4 by abusing his position as a Public Servant. These illegal acts were not the subject matter in the Appeals and subsequent proceedings filed against the Orders of the Accused-1. As such, merely because, the Income Tax Appellate Tribunal has confirmed the Orders passed by the Accused-1, the Hon'ble High Court of Karnataka dismissed 3 Appeals filed against the Orders of the Income Tax Appellate Tribunal and remanded other Appeals for fresh consideration, the Accused-1 cannot escape from the clutches of penal law regarding criminal acts committed by him in disposal of the Appeals. Hence, it is not fit to accept the arguments of the learned Advocate appearing on behalf of the Accused-1.
70. The learned Advocate appearing on behalf of the Accused-1 has also contended that the Accused-1 was entitled to tax benefit as per law and as the Accused-1 has given the same by disposing the Appeals, it cannot be said that the Accused-1 is guilty of Criminal Misconduct. By giving an example, the said contention of the learned Advocate can be answered properly. A customer of the Bank, who has his money in the Bank and who wants to withdraw his money from the Bank, has to withdraw his money by presenting Cheque or Withdrawal Slip as per Banking norms. But, without following such procedure, he cannot directly go to Cash Chest of the Bank and take his 55 [Spl.C.C.115/2001-J] money by saying that he can take his money. So also, Cashier or other Officer of the Bank has to pay money to that customer only by passing the Cheque or Withdrawal Slip in accordance with Banking norms. But, without following such procedure, he also cannot directly pay money to that customer by taking out the money from the Cash Chest and contend that he has paid customer's money to the customer. In the case on hand also, even if the Accused-2 and 3 were entitled to tax relief benefit in the Appeals filed by them, such benefit has to be given to them by disposing the Appeals legally and lawfully and not by doing illegal acts of Criminal Misconduct. But, in the case on hand, the Accused-1 has gone out of the way to give such benefit to the Accused-2 and 3. Hence, it is not fit to accept the arguments of the learned Advocate appearing on behalf of the Accused-1.
71. The learned counsel appearing on behalf of the Accused-1 relied upon a decision in the case of Krishan Chander -V/s- State of Delhi [Criminal Appeal No.14/2016 disposed on 06.01.2016] and contended that the Accused-1 is not guilty of the offence punishable under Section 13(2) of the PC Act as he has not demanded any bribe amount from anybody much less from the Accused-2 to 4 for disposal of the Appeals. That was a case alleging that the Accused of that case had demanded and accepted bribe of Rs.5,000/- from the Complainant for showing official favour. In that case, the Hon'ble Supreme Court of India acquitted the Accused of that case for the offence 56 [Spl.C.C.115/2001-J] punishable under Sections 7 and 13(1)(d) r/w. Section 13(2) of the PC Act on the ground that there was no substantive evidence to show that the Accused demanded and accepted bribe amount by observing that it is well settled position of law that the demand for bribe money is sine qua non to convict the Accused for the offences punishable under Sections 7 and 13(1)(d) r/w. Section 13(2) of the PC Act. Facts, circumstances and the questions involved in that case are entirely different from those of this case. As such, the said decision is of no assistance to the Accused-1 to substantiate his contention in this case.
72. The learned Counsel appearing on behalf of the Accused-1 has contended that the Prosecution has failed to prove its case beyond all reasonable doubts. However, she did not point out specifically as to which are those 'reasonable doubts'. In the case of M.G.Agarwal-Vs- State of Maharashtra, reported in AIR 1963 SC 200, while dealing with the doctrine of 'benefit of doubt', the Constitution Bench of the Hon'ble Supreme Court of India considered the principles of Criminal Jurisprudence and Law of Evidence regarding the manner of proof of 'circumstances' or 'basic facts' and the basis on which circumstantial evidence could lead to the finding of guilt of the Accused and held as follows:-
"....it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be 57 [Spl.C.C.115/2001-J] drawn from them on the other. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of basic or of primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether the evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether the fact leads to an inference of guilt of the Accused person or not and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the Accused and is consistent only with his guilt. It is in the light of this legal position that the evidence in the present case has to be appreciated."
(Underlined by this Court) The said view is endorsed in the cases of G.Parshwanath
-Vs- State of Karnataka reported in AIR 2010 SC 2914, Kishore Chand-Vs-State of Himachal Pradesh, reported in AIR 1990 SC 2140 and Balu Sonba Shinde
-Vs- State of Maharashtra, reported in AIR 2002 SC 3137. Thus, in view of the law laid down by the Apex Court, as observed above, it is clear that the requirement 58 [Spl.C.C.115/2001-J] of 'proof beyond reasonable doubt' does not apply to proof of 'basic or primary facts' in Criminal Cases or to defence in Criminal Cases and that those facts can be proved in the ordinary way as explained in Section 3 of the Indian Evidence Act, 1872. In order to show that the Accused is guilty of an offence, those proved facts must lead to an inference of guilt of the Accused beyond reasonable doubt and while drawing such an inference, the doctrine of benefit of doubt would apply.
73. In the case on hand, from the proved facts, as observed above, the one and only inference that could be drawn is that the Accused-1 entered into an illegal agreement with the Accused-2 to 4 to commit Criminal Misconduct of abusing his official position as a Public Servant for obtaining pecuniary advantage to himself and to the Accused-2 to 4 within the meaning of Criminal Conspiracy defined under Section 120-A of the IPC, which is punishable under Sections 120-B r/w. 13(2) r/w. 13(1)(d)(ii)of the PC Act and that in pursuance of that Criminal Conspiracy, the Accused-1 abused his official position as a Public Servant and obtained pecuniary advantage for himself as well as to the Accused-2 and 3 by disposing the Appeals illegally, within the meaning of Criminal Misconduct defined under Section 13(1)(d)(ii) of the PC Act, which is punishable under Section 13(2) of the PC Act. All the facts, which are proved against the Accused-1, are wholly inconsistent with the innocence of the Accused-1 as contended by him and on the other hand, they are consistent only with his guilt. In the said evidence 59 [Spl.C.C.115/2001-J] placed on record by the Complainant, it is not possible to pin point any doubt, which cuts the root of the case of the Complainant. As such, question of giving benefit of doubt to the Accused-1 does not arise.
74. But, as observed above, as Sanction under Section 197 of the Cr.P.C., is not taken to prosecute the Accused-1 for the IPC offence i.e., Sections 120-B of the IPC r/w. 13(2) r/w. 3(1)(d)(ii) of the PC Act, taking cognizance and prosecution against him for that offence is not maintainable and as such, he cannot be held guilty for the said IPC offence.
75. For all the above reasons, it is clear that the Accused-1 is guilty of the substantive offence punishable under Sections 13(2) r/w. 3(1)(d)(ii) of the PC Act, but, he cannot be held guilty of the offence punishable under Section 120-B of the IPC r/w. Sections 13(2) r/w. 13(1)(d)(ii) of the PC Act. Accordingly, Point-2 is answered in the Negative and Point-3 is answered in the Affirmative.
POINT-4
76. In view of the above findings given on the Points-1 to 3, it is clear that the Accused-1 is not guilty of the offence punishable under Sections 120-B of the Indian Penal Code, 1860 r/w. Sections 13(2) r/w.13(1)(d)(ii) of the Prevention of Corruption Act, 1988 and hence, he is entitled for acquittal for that offence. But, the Accused-1 is guilty of the substantive offence punishable under Sections 13(2) r/w. 13(1)(d)(ii) of the Prevention of 60 [Spl.C.C.115/2001-J] Corruption Act, 1988 and hence, he is liable for conviction and punishment for that offence. In the result, the following Order is passed:
ORDER
1. Under Section 248(1) of the Cr.P.C., 1973, the Accused-1 is acquitted from the Charge for the offence punishable under Sections 120-B of the Indian Penal Code, 1860 r/w. Sections 13(2) r/w.13(1)(d)(ii) of the Prevention of Corruption Act, 1988.
2. Under Section 248(2) of the Cr.P.C., 1973, the Accused-1 is convicted for the substantive offence punishable under Sections 13(2) r/w. 13(1)(d)(ii) of the Prevention of Corruption Act, 1988.
3. Sentence will be passed after hearing the Accused-1 on the question of sentence.
(Some portion of the Judgment has been dictated to the Judgment Writer, transcribed and computerized by her and some portion of the Judgment has been computerized by the Judgment Writer to my dictation online, revised, corrected and then pronounced by me in the open Court on this the 25th day of November 2016.) (ASWATHA NARAYANA) XLVII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru.
61 [Spl.C.C.115/2001-J] Again called. The following Order on the question of sentence is pronounced:
ORDER ON SENTENCE
77. Heard the learned Public Prosecutor, the Accused-1 and his Counsel regarding sentence to be imposed on the Accused-1. Records Perused.
78. The learned Advocate appearing on behalf of the Accused-1 submitted that the Accused-1 is retired from service and that he being a senior citizen is a first offender, he has no criminal background, he is having aged wife, he is suffering from several ailments, he has already suffered punishment by attending the Court since 2001 and that as such, lenient view may be taken while imposing sentence on the Accused-1. The Accused-1 also prayed to take lenient view on the same grounds and also by submitting that his wife is also suffering from Cancer and that except himself, there is no one to look after her.
On the other hand, the learned Public Prosecutor submitted that as the Accused-1, being a Senior Officer of the Income Tax Department discharging his duties similar to that of a Judge in disposal of cases, has committed grave economic offence with high disregard to his office by helping the Accused-2 to 4 in avoiding tax, which has caused huge revenue loss to the Income Tax Department, he is not entitled to any lenience and that maximum punishment provided in the Section has to be imposed on him.
62 [Spl.C.C.115/2001-J]
79. The Hon'ble Supreme Court of India rejected the prayer for leniency in sentence in respect of an offence punishable under the Prevention of Corruption Act, 1988, in the case of State of Madhya Pradesh -Vs- Shambhu Dayal Nagar, reported in (2006) 8 SCC 693, by holding as follows:
"Corruption by public servants has become gigantic problem, large scale of corruption retards the nation building activities and every one has to suffer on that count and that the efficiency in public service would improve only when the public servant does his duty truthfully and honestly".
80. In the present case, the Accused-1 has committed the offence punishable under Sections 13(2) r/w. 13(1)(d)(ii) of the Prevention of Corruption Act, 1988. The Accused-1 was working as Commissioner of Income Tax-Appeals. His nature of job is the same as that of a Judge in the Courts. By abusing his position as Public Servant, he officially favoured the Accused-2 to 4 by giving tax relief to the tune of not less than Rs.3 Lakhs and causing corresponding huge loss to the Income Tax Department by passing Orders unlawfully and illegally. He is also benefited from the said illegal acts. Tax is a main source of income to the Country. Tax collection and prevention of tax evasion are very important in nation building activities. Lapses in this regard affect the nation 63 [Spl.C.C.115/2001-J] economically, which retards the nation building activities. As such, role of the Tax Officers is very significant. Though it is the sacrosanct duty of the Accused-1 to prevent evasion of tax and to collect tax promptly, he has colluded with the Accused-2 to 4 for the purpose of giving tax relief to them illegally. Joining hands by the Officer like the Accused-1 with the tax evaders is nothing but betraying the nation. Thus, the offence committed by the Accused-1 is very grave, serious and against the nation.
81. On considering all the above facts and circumstances, nature and gravity of the offence that the Accused-1 has committed, it is not a fit case to show leniency to him in imposing punishment. If any such leniency is shown, a wrong message will go to the Society to the effect that, it is possible to escape from the punishment even after committing serious and grave offence also. Such a wrong message will have serious repercussions on the Society in these hard days, where there is severe increase in the crime rate especially relating to corruption and economic offences.
82. However, the Accused-1 is attending the Court since 2001. By doing so, he has suffered some punishment already. Having regard to this fact, nature and gravity of the offence committed by the Accused-1, his status, his family condition and all other facts and circumstances of the case, it appears that the ends of justice would be met if the Accused-1 is sentenced to undergo Rigorous Imprisonment for a period of 3 years and to pay fine of 64 [Spl.C.C.115/2001-J] Rs.3,00,000/- and in default to pay fine, to undergo Simple Imprisonment for a further period of 6 months, for the offence punishable under Sections 13(2) r/w.13(1)(d)(ii) of the Prevention of Corruption Act, 1988.
83. In the result, the following Order is passed:
ORDER Under Section 248(2) of the Cr.P.C., 1973, the Accused-1 is convicted and sentenced as under:
The Accused-1 shall undergo Rigorous Imprisonment for a period of 3 years and to pay fine of Rs.3,00,000/- and in default to pay fine, to undergo Simple Imprisonment for a further period of 6 months, for the offence punishable under Sections 13(2) r/w.13(1)(d)(ii) of the Prevention of Corruption Act, 1988.
Furnish free Copy of the Judgment to the Accused-1 forthwith.
[Computerized by the Judgment Writer to my dictation, corrected, revised and then signed by me on this the 25th day of November 2016.] (ASWATHA NARAYANA) XLVII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru.
65 [Spl.C.C.115/2001-J] ANNEXURE
1. LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT WITH THE DATES OF THEIR EXAMINATION:
P.W.1 : Sri.Keshava Kumar H.S. 08.02.2016. P.W.2 : Sri.H.N.Marappa 09.02.2016. P.W.3 : Sri.P.J.Thomas Kutty 10.02.2016. P.W.4 : Sri.Kalyanasundaram 10.02.2016. P.W.5 : Sri.A.P.Muralidharan 11.02.2016. P.W.6 : Sri.Ramakrishna 11.02.2016. P.W.7 : Sri.M.Jayachandra Raju 15.02.2016. P.W.8 : Sri.T.V.Sasi Kumar 15.02.2016, 04.05.2016, 17.06.2016.
P.W.9 : Smt.Saraswathi 18.02.2016.
P.W.10 : Smt.Rajeshwari 18.02.2016.
Ramalingam
P.W.11 : Sri.D.D.Goel 08.06.2016.
2. LIST OF WITNESSES EXAMINED ON BEHALF OF THE ACCUSED WITH DATE OF EXAMINATION:
-NIL-
3. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE COMPLAINANT:
Ex.P.1 : Notification Dated 13.01.1994 issued from the Government of India, Income Tax Department.
66 [Spl.C.C.115/2001-J] Ex.P.2 : Notification Dated 28.09.1995 issued from the Office of Income Tax Department, Bengaluru.
Ex.P.3 : File relating to Assessment Order for the year 1986-87 passed by the Accused-1 pertaining to the Accused-2.
Ex.P.3(a) : Original Assessment Order in Ex.P.3 at Pages-26 to 29.
Ex.P.3(a-1) : Tax Payable by the Accused-2 for the year 1986-87 at Page-26 of Ex.P.3.
Ex.P.3(b) : Scrutiny Report at Pages-54 to 66 of Ex.P.3 relating to the Appeals of the Accused-2.
Ex.P.3(c) : Revision Order passed by P.W.2 at Page-67 of Ex.P.3.
Ex.P.3(d) : Order for the Assessment Year 1986-87 at Page-72 of Ex.P.3 made by successor of P.W.2.
Ex.P.4 : File relating to Appellate Order for the year 1986-87 passed by the Accused-1 pertaining to the Accused-2.
Ex.P.4(a) : ITNS Notice at Pages-6 & 7 of Ex.P.4 served on P.W.2.
Ex.P.4(a-1) : Note made by P.W.2 as 'Yes' at Column-7 of Ex.P.4(a).
Ex.P.4(a-2) : Endorsement made by P.W.9 in Ex.P.4(a).
Ex.P.4(b) : Consolidated Appellate Order passed by the Accused-1 in all the Appeals of the Accused-2.
Ex.P.4(c) : Order Sheet for the Appeal relates to Ex.P.4.
Ex.P.4(d) : Slip attached to Ex.P.4(a).
67 [Spl.C.C.115/2001-J] Ex.P.4(e) : Identified Initial of P.W.4 in Ex.P.4.
Ex.P.4(f) : Identified Initial of the Accused-1 in Ex.P.4.
Ex.P.4(g) : Identified Initial of the Accused-1 in Ex.P.4.
Ex.P.4(i) : Identified Dispatch Seal with the Initial and Date put by P.W.9 in Ex.P.4.
Ex.P.4(j) : Appeal Memo-Form-35 in Ex.P.4.
Ex.P.4(j-1) : Identified Endorsement made by P.W.10 about giving of Appeal Number in Ex.P.4(j).
Ex.P.5 : Assessment Order File for the year 1987-88 pertaining to the Accused-2.
Ex.P.5(a) : Order for Tax Payable by the Accused-2 assessed by P.W.2 for the year 1987-88 at Pages-35 and 36 of Ex.P.5.
Ex.P.5(b) : Order for the Assessment Year 1987-88 at Page-44 of Ex.P.5 made by the successor of P.W.2.
Ex.P.6 : Appellate Order File for the year 1987-88 pertaining to the Accused-2. Ex.P.6(a) : ITNS Notice at Pages-4 & 5 of Ex.P.6 served on P.W.2.
Ex.P.6(a-1) : Note made by P.W.2 as 'Yes' at Column-7 of Page-4 in Ex.P.6(a).
Ex.P.6(b) : Order Sheet for the Appeal relates to Ex.P.6.
Ex.P.6(c) : Identified Initial of P.W.4 in Ex.P.6.
Ex.P.6(d) : Identified Initial of the Accused-1 in Ex.P.6.
Ex.P.6(e) : Identified Initial of the Accused-1 in Ex.P.6.
68 [Spl.C.C.115/2001-J] Ex.P.6(f) : Appeal Memo-Form-35 in Ex.P.6 Ex.P.6(f-1) : Identified Endorsement made by P.W.10 about giving of Appeal Number in Ex.P.6(f).
Ex.P.7 : Assessment Order File for the year 1988-89 pertaining to the Accused-2.
Ex.P.7(a) : Order for Tax Payable by the Accused-2 assessed by P.W.2 for the year 1988-89 at Pages-43 to 45 of Ex.P.7.
Ex.P.7(b) : Revision Order Dated 06.11.1995 at Page-49 of Ex.P.7 passed by P.W.2.
Ex.P.7(c) : Order dated 14.06.96 for the Assessment Year 1988-89 at Page-
50 of Ex.P.7 made by the successor of P.W.2.
Ex.P.8 : Appellate Order File for the year 1988-89 pertaining to the Accused-2. Ex.P.8(a) : ITNS Notice at Pages-5 & 6 of Ex.P.8 served on P.W.2.
Ex.P.8(a-1) : Note made by P.W.2 as 'Yes' at Column-7 of Page-5 in Ex.P.8(a).
Ex.P.8(b) : Order Sheet for the Appeal relates to Ex.P.8.
Ex.P.8(c) : Identified Initial of P.W.4 in Ex.P.8.
Ex.P.8(d) : Identified Initial of the Accused-1 in Ex.P.8.
Ex.P.8(e) : Identified Initial of the Accused-1 in Ex.P.8.
Ex.P.8(f) : Appeal Memo-Form-35 in Ex.P.8 Ex.P.8(f-1) : Identified Endorsement made by P.W.10 about giving of Appeal Number in Ex.P.8(f).
Ex.P.9 : Assessment Order File for the year 1989-90 pertaining to the Accused-2.
69 [Spl.C.C.115/2001-J] Ex.P.9(a) : Order for Tax Payable by the Accused-2 assessed by P.W.2 for the year 1989-90 at Pages-43 to 45 of Ex.P.9.
Ex.P.9(b) : Revision Order Dated 06.11.1995 at Page-56 of Ex.P.9 passed by P.W.2.
Ex.P.9(c) : Order for the Assessment Year 1989-90 at Page-60 of Ex.P.9 made by successor of P.W.2.
Ex.P.10 : Appellate Order File for the year 1989-90 pertaining to the Accused-2. Ex.P.10(a) : ITNS Notice at Pages-5 & 6 of Ex.P.10 served on P.W.2.
Ex.P.10(a-1) : Note made by P.W.2 as 'Yes' at Column-7 of Page-5 in Ex.P.10(a).
Ex.P.10(b) : Order Sheet for the Appeal relates to Ex.P.10.
Ex.P.10(c) : Identified Initial of P.W.4 in Ex.P.10.
Ex.P.10(d) : Identified Initial of the Accused-1 in Ex.P.10.
Ex.P.10(e) : Identified Initial of the Accused-1 in Ex.P.10.
Ex.P.10(f) : Appeal Memo-Form-35 in Ex.P.10. Ex.P.10(f-1) : Identified Endorsement made by P.W.10 about giving of Appeal Number in Ex.P.10(f).
Ex.P.11 : Assessment Order File for the year 1990-91 pertaining to the Accused-2.
Ex.P.11(a) : Order for Tax Payable by the Accused-2 assessed by P.W.2 for the year 1990-91 at Pages-104 to 107 of Ex.P.11.
Ex.P.11(b) : Revision Order Dated 06.11.1995 at Page-147 of Ex.P.11 passed by P.W.2.
70 [Spl.C.C.115/2001-J] Ex.P.12 : Appellate Order File for the year 1990-91 pertaining to the Accused-2.
Ex.P.12(a) : Order Sheet for the Appeal relates to Ex.P.12.
Ex.P.12(b) : ITNS-37 Notices issued to the Accused-2.
Ex.P.12(c) : Identified Initial of P.W.4 in Ex.P.12(a).
Ex.P.12(d) : Identified Initial of the Accused-1 in Ex.P.12(a).
Ex.P.12(e) : Identified Initial of the Accused-1 in Ex.P.12(a).
Ex.P.12(f) : Appeal Memo-Form-35 in Ex.P.12 Ex.P.12(f-1) : Identified Endorsement made by P.W.10 about giving of Appeal Number in Ex.P.12(f).
Ex.P.13 : Assessment Order File for the year 1991-92 pertaining to the Accused-2. Ex.P.13(a) : Order for Tax Payable by the Accused-2 assessed by P.W.2 for the year 1991-92 at Pages-35 and 36 of Ex.P.13.
Ex.P.13(b) : Revision Order Dated 06.11.1995 at Page-14 of Ex.P.13 passed by P.W.2.
Ex.P.14 : Appellate Order File for the year 1991-92 pertaining to the Accused-
2. Ex.P.14(a) : Order Sheet for the Appeal relates to Ex.P.14.
Ex.P.14(b) : Identified Initial of P.W.4 in Ex.P.14(a).
Ex.P.14(c) : Identified Initial of the Accused-1 in Ex.P.14(a).
71 [Spl.C.C.115/2001-J] Ex.P.14(d) : Identified Initial of the Accused-1 in Ex.P.14(a).
Ex.P.14(e) : Letter dated 27.04.1995 from Sri.K.R.Pradeep to the Commissioner of Income Tax, Appeals-II, Bengaluru at Page-6 of Ex.P.14.
Ex.P.14(f) : Identified Signature of Sri.K.R.Pradeep in Ex.P.14(e).
Ex.P.14(g) : Identified Initials of the Accused-1 in Ex.P.14(e).
Ex.P.14(h) : Identified Seal in Ex.P.14.
Ex.P.14(i) : Appeal Memo-Form-35 in Ex.P.14. Ex.P.14(i-1) : Identified Endorsement made by P.W.10 about giving of Appeal Number in Ex.P.14(i).
Ex.P.15 : Assessment Order File for the year 1987-88 pertaining to the Accused-3.
Ex.P.15(a) : Scrutiny Report at Pages-9 to 17 of Ex.P.15 relating to the Appeals of the Accused-3.
Ex.P.15(b) : Order for Tax Payable by the Accused-3 for the year 1987-88 at Pages-32 to 35 of Ex.P.15.
Ex.P.15(c) : Revision Order Dated 06.11.1995 at Page-49 of Ex.P.15.
Ex.P.15(d) : Order Dated 22.05.1996 of P.W.2 at Page-56 of Ex.P.15.
Ex.P.16 : Appellate Order File for the year 1987-88 pertaining to the Accused-3. Ex.P.16(a) : ITNS Notice at Pages-6 & 7 of Ex.P.16.
Ex.P.16(a-1) : Note made by P.W.2 as 'Yes' at Column-7 of Ex.P.16(a).
72 [Spl.C.C.115/2001-J] Ex.P.16(b) : Consolidate Appellate Order dated 27.09.1995 passed by the Accused-
1 in all the Appeals of the Accused-3.
Ex.P.16(c) : Order Sheet for the Appeal relates to Ex.P.16.
Ex.P.16(d) : Identified Initial of P.W.4 in Ex.P.16(c).
Ex.P.16(e) : Identified Initial of the Accused-1 in Ex.P.16(c).
Ex.P.16(f) : Identified Initial of the Accused-1 in Ex.P.16(c).
Ex.P.16(g) : Appeal Memo-Form-35 in Ex.P.16. Ex.P.16(g-1) : Identified Endorsement made by P.W.10 about giving of Appeal Number in Ex.P.16(g).
Ex.P.17 : Assessment Order File for the year 1988-89 pertaining to the Accused-3. Ex.P.17(a) : Order for Tax Payable by the Accused-3 for the year 1988-89 at Pages-22 to 24 of Ex.P.17.
Ex.P.17(b) : Revision Order Dated 06.11.1995 at Page-43 of Ex.P.17.
Ex.P.17(c) : Order Dated 22.05.1996 of P.W.2 at Page-44 of Ex.P.17.
Ex.P.18 : Appellate Order File for the year 1988-89 pertaining to the Accused-3. Ex.P.18(a) : ITNS Notice at Pages-6 & 7 of Ex.P.18 served on P.W.2.
Ex.P.18(a-1) : Note made by P.W.2 as 'Yes' at Column-7 of Ex.P.18(a).
Ex.P.18(b) : Order Sheet for the Appeal relates to Ex.P.18.
Ex.P.18(c) : Identified Initial of P.W.4 in Ex.P.18(b).
73 [Spl.C.C.115/2001-J] Ex.P.18(d) : Identified Initial of the Accused-1 in Ex.P.18(b).
Ex.P.18(e) : Identified Initial of the Accused-1 in Ex.P.18(b).
Ex.P.18(f) : Appeal Memo-Form-35 in Ex.P.18. Ex.P.18(f-1) : Identified Endorsement made by P.W.10 about giving of Appeal Number in Ex.P.18(f).
Ex.P.19 : Assessment Order File for the year 1989-90 pertaining to the Accused-3. Ex.P.19(a) : Order for Tax Payable by the Accused-3 for the year 1989-90 at Pages-47 and 48 of Ex.P.19.
Ex.P.19(b) : Order Dated 22.05.1996 of P.W.2 for the Assessment Year 1989-90 relating to the Accused-3 at Page-53 of Ex.P.19.
Ex.P.20 : Appellate Order File for the year 1989-90 pertaining to the Accused-3.
Ex.P.20(a) : ITNS Notice at Pages-4 & 5 of Ex.P.20.
Ex.P.20(a-1) : Note made by P.W.2 as 'Yes' at Column-7 of Ex.P.20(a).
Ex.P.20(b) : Order Sheet for the Appeal relates to Ex.P.20.
Ex.P.20(c) : Identified Initial of P.W.4 in Ex.P.20(b).
Ex.P.20(d) : Identified Initial of the Accused-1 in Ex.P.20(b).
Ex.P.20(e) : Identified Initial of the Accused-1 in Ex.P.20(b).
Ex.P.20(f) : Appeal Memo-Form-35 in Ex.P.20. Ex.P.20(f-1) : Identified Endorsement made by P.W.10 about giving of Appeal Number in Ex.P.20(f).
74 [Spl.C.C.115/2001-J] Ex.P.21 : Assessment Order File for the year 1990-91 pertaining to the Accused-3. Ex.P.21(a) : Order for Tax Payable by the Accused-3 for the year 1990-91 at Pages-119 to 121 of Ex.P.21.
Ex.P.21(b) : Revision Order Dated 06.11.1995 at Page-149 of Ex.P.21.
Ex.P.22 : Appellate Order File for the year 1990-91 pertaining to the Accused-3. Ex.P.22(a) : Order Sheet for the Appeal relates to Ex.P.22.
Ex.P.22(b) : Identified Initial of P.W.4 in Ex.P.22(a).
Ex.P.22(c) : Identified Initial of the Accused-1 in Ex.P.22(a).
Ex.P.22(d) : Identified Initial of the Accused-1 in Ex.P.22(a).
Ex.P.22(e) : ITNS-37 Notice dated 11.01.1994 issued in Appeal No.ITA-3 with one Postal Acknowledgement.
Ex.P.23 : Assessment Order File for the year 1991-92 pertaining to the Accused-3.
Ex.P.23(a) : Order for Tax Payable by the Accused-3 for the year 1991-92 at Page-38 of Ex.P.23.
Ex.P.23(b) : Order Dated 31.03.1998 at Pages-
105 and 106 of Ex.P.23.
Ex.P.23(c) : Order under Section 154 of the Income Tax Act Dated 26.03.1999 at Page-110 of Ex.P.23.
Ex.P.24 : Appellate Order File for the year 1991-92 pertaining to the Accused-3. Ex.P.24(a) : Order Sheet for the Appeal relates to Ex.P.24.
75 [Spl.C.C.115/2001-J] Ex.P.24(b) : Identified Initial of P.W.4 in Ex.P.24(a).
Ex.P.24(c) : Identified Initial of the Accused-1 in Ex.P.24(a).
Ex.P.24(d) : Identified Initial of the Accused-1 in Ex.P.24(a).
Ex.P.24(e) : Letter dated 27.04.1995 from Sri.K.R.Pradeep to the Commissioner of the Income Tax at Page-8 of Ex.P.24.
Ex.P.24(f) : Identified Signature of Sri.K.R.Pradeep in Ex.P.24(e).
Ex.P.24(g) : Identified Initials of the Accused-1 in Ex.P.24(e).
Ex.P.24(h) : Identified Seal in Ex.P.24. Ex.P.24(i) : Appeal Memo-Form-35 in Ex.P.24 Ex.P.24(i-1) : Identified Endorsement made by P.W.10 about giving of Appeal Number in Ex.P.24(i).
Ex.P.25 : Letter dated 04.05.2000 from Deputy Commissioner of Income Tax to the Superintendent of Police, CBI.
Ex.P.26 : File relating to M/s.United Breweries pertaining to the year 1993-94 of ITA No.145/94-95.
Ex.P.26(a) : Order Sheet pertaining to the Appeal of the Accused-1.
Ex.P.27 : File relating to M/s.Mcdowell & Company pertaining to the year 1993-94 of ITA No.146/94-95.
Ex.P.27(a) : Order Sheet pertaining to the Appeal of the Accused-1.
Ex.P.28 : Letter dated 26.04.2000 from Office of the Chief Commissioner of Income Tax to the Superintendent of Police, CBI.
76 [Spl.C.C.115/2001-J] Ex.P.28(a) : Identified Signature of P.W.5 in Ex.P.28.
Ex.P.29 : Dispatch Register from 01.08.1994. Ex.P.30 : Dispatch Register from 25.06.1995 to 24.02.1997.
Ex.P.31 : Letter dated 03.03.2000 from
Mrs.J.H.Mulky, Deputy
Commissioner of Income Tax
(Vigilance) to the CBI Officers.
Ex.P.31(a) : Identified Signature of Mrs.J.H.Mulky in Ex.P.31.
Ex.P.32 : Appellate Orders Register from 17.04.1995.
Ex.P.32(a) : Entry at Page-66 of Ex.P.32 regarding dispatch details of Orders pertaining to the Appeals relating to this case dispatched by P.W.9.
Ex.P.33 : Letter dated 18.04.2000 from the Office of Chief Commissioner of Income Tax to CBI.
Ex.P.33(a) : Identified Signature of Mrs.J.H.Mulky in Ex.P.33.
Ex.P.34 : Appeals Register for the period 1993-94.
Ex.P.34(a) : Identified Portion of Entry made by P.W.10 at Page-271 of Ex.P.34 regarding Appeal Numbers-2 to 5 of the Accused-2 filed in CIT-A-Central Circle and same Appeals came to P.W.10's Office on transfer.
Ex.P.35 : Appeals Register for the period 1994-95.
Ex.P.35(a) : Identified Portion of Entry made by P.W.10 at Page-100 of Ex.P.35 regarding Appeal Numbers-10 to 13 of the Accused-2 were filed on 13.04.1994.
77 [Spl.C.C.115/2001-J] Ex.P.35(b) : Identified Portion of Entry made by P.W.10 at Page-101 of Ex.P.35 regarding Appeal Numbers-22 to 29 of the Accused-2 and 3 were filed on 13.04.1994.
Ex.P.36 : Copy of the Attendance Register pertaining to the Office of the Accused-1 for the month of September-1995.
Ex.P.37 : FIR dated 21.09.1999.
Ex.P.37(a) : Identified Signature of P.W.8 in Ex.P.37.
Ex.P.38 : Notification dated 07.09.1999 issued by the Government of Karnataka, Secretariat Department.
Ex.P.39 : Copy of the Appeal Fixation Register dated 31.08.1995.
Ex.P.40 : Copy of the Visitors' Register (Process Servers' Register) dated 26.09.1995.
Ex.P.41 : Copy of Register of Appeals of CITA-
II for the period from 21.04.1995 to 27.04.1995.
Ex.P.42 : GEQD Opinion with Covering Letter dated 11/18.08.2000 and Photograph.
Ex.P.42(a) : Identified Signature of P.W.11 in Covering Letter of Ex.P.42.
Ex.P.42(b) : Identified Signature of P.W.11 in Opinion of Ex.P.42.
Ex.P.42(c) : Identified Signature of Sri.A.K.Singh in Opinion of Ex.P.42.
Ex.P.42(d) : Enlarged Photograph of Q-1.
Ex.P.42(e) : Enlarged Photograph of Q-2.
78 [Spl.C.C.115/2001-J] Ex.P.43 : Fixation Register for the period from 06.02.1995 to 30.12.1996.
Ex.P.43(a) : Entry in Page-43 of Ex.P.43.
Ex.P.43(b) : Entry in Page-44 of Ex.P.43. Ex.P.44 : Visitors' Book (Process Servers' Register).
Ex.P.45 : Attendance Register for the period from February-1992 to March-2000.
Ex.P.45(a) : Identified Initials of P.W.9 at Page-
91 of Ex.P.45.
Ex.P.46 : Appeal Register pertaining to the period from 1990-91 to October-
1995.
Ex.P.46(a) : Entry at Sl.No.24(b) of Page-183 in Ex.P.46.
Ex.P.46(b) : Entry at Sl.No.30(a) of Page-183 in Ex.P.46.
Ex.P.47 : Copy of Judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in ITA No.174/2004 dated 22.02.2010.
Ex.P.48 : Copy of Judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in ITA No.176/2004 dated 22.02.2010.
Ex.P.49 : Copy of Judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in ITA No.178/2004 dated 04.12.2009.
Ex.P.50 : Copy of Judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in ITA No.179/2004 dated 04.12.2009.
Ex.P.51 : Copy of Judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in ITA No.167/2004 dated 09.03.2010.
79 [Spl.C.C.115/2001-J] Ex.P.52 : Copy of Judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in ITA No.169/2004 dated 03.12.2009.
Ex.P.53 : Copy of Judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in ITA No.171/2004 dated 04.12.2009.
Ex.P.54 : Copy of Judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in ITA No.172/2004 dated 22.02.2010.
Ex.P.55 : Copy of Judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in ITA No.181/2004 dated 22.02.2010.
4. LIST OF DOCUMENTS MARKED ON BEHALF OF THE ACCUSED :
Ex.D.1 : Copy of Order Dated 21.02.2003 in Income Tax Appellate Tribunal Nos.1037, 1038, 1039, 1040 & 1041(Bang.)/95.
Ex.D.2 : Copy of Order Dated 21.02.2003 in Income Tax Appellate Tribunal Nos.1042, 1043, 1044 & 1045(Bang.)/95.
5. LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE COMPLAINANT:
-NIL-
(ASWATHA NARAYANA) XLVII Additional City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru.
80 [Spl.C.C.115/2001-J]