Kerala High Court
P.V.Shamsudeen vs State Of Kerala on 13 August, 2025
Crl. Appeal Nos. 2833 & 2963 of 2008
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 13TH DAY OF AUGUST 2025 / 22ND SRAVANA, 1947
CRL.A NO. 2833 OF 2008
AGAINST THE JUDGMENT DATED 20.11.2008 IN CC NO.27 OF 2002 OF
ENQUIRY COMR.& SPECIAL JUDGE, KOZHIKODE.
APPELLANT/1st ACCUSED:
A.SOOPY
S/O ABDULLA, KULIRMA, CHENGALAVI AMSOM., PARIPPAYI
DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.
BY ADV SRI.M.REVIKRISHNAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
ADV.RAJESH.A SPL PP VACB,ADV.REKHA.S SRPP VACB.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.07.2025, ALONG WITH CRL.A.2963/2008, THE COURT ON 13.08.2025
DELIVERED THE FOLLOWING:
Crl. Appeal Nos. 2833 & 2963 of 2008
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 13TH DAY OF AUGUST 2025 / 22ND SRAVANA, 1947
CRL.A NO. 2963 OF 2008
AGAINST THE JUDGMENT DATED 20.11.2008 IN CC NO.27 OF 2002 OF
ENQUIRY COMR.& SPECIAL JUDGE, kOZHIKODE.
APPELLANT/2ND ACCUSED:
P.V.SHAMSUDEEN
S/O ABU, SAJINA MANZIL,
KALLUMUTTY, PAYAM, IRITTY, KANNUR.
BY ADV SHRI.T.R.HARIKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.07.2025 ALONG WITH CRL.A.2833/2008, THE COURT ON 13.08.2025DAY
DELIVERED THE FOLLOWING:
Crl. Appeal Nos. 2833 & 2963 of 2008
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A. BADHARUDEEN, J
============================
Crl. Appeal Nos. 2833 & 2963 of 2008
==============================
Dated 13th day of August 2025
COMMON JUDGMENT
These are Criminal Appeals at the instance of accused
Nos.1 & 2 in C.C. No. 27 of 2002 on the files of Enquiry
Commissioner and Special Judge, Kozhikode.
2. Heard the learned counsel for the appellants/accused
Nos.1 & 2, as well as the learned Public Prosecutor. Perused the
trial court records as well as the decisions placed by the learned
counsel for the appellants.
3. In this case, the prosecution alleges commission of
offences punishable under Sections 13(1)(d) r/w 13(2) of the
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Prevention of Corruption Act 1988, as well as under Sections
468, 471 & 120B of the IPC by the accused. The summary of
the prosecution case is that the 1st accused, while working as
Sales Tax Inspector at the Commercial Sales Tax Check Post,
Koottupuzha, and as such being a public servant abused his
official position and entered into criminal conspiracy with the
2nd accused on 31.08.2000, and in pursuance of the conspiracy
the 1st accused committed criminal misconduct by intentionally
avoiding the collection of stipulated amount of Sales Tax @ 24%
from the 2nd accused, who had brought a load of marble slabs
through lorry bearing Reg.No.KA-12A-6786, which passed
through the Check Post at 16.50 hours on that date. For this,
the 1st accused forged and falsified the Invoice and Way Bills
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produced by the 2nd accused and obtained a false declaration
and collected tax only Rs.4,800/- (@12%) from the 2nd accused
and thereby caused wrongful loss of Rs.8,605.20/- to the
Government. Thus, both the accused have committed the above
said offences.
4. In this matter, the special court took cognizance and
proceeded with the trial. During trial, PWs1 to 8 were examined,
and Exts.P1 to P16 were marked from the side of prosecution.
After completion of the prosecution evidence, the accused was
questioned under Section 313(1)(b) of the CrPC, and an
opportunity was given to him to adduce defence evidence.
However, no defence evidence was adduced.
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5. On evaluation of evidence and after analysing the rival
contentions raised by the prosecution as well as the accused, the
trial court convicted accused Nos.1 and 2 for the offence
punishable under Sections 13(1)(d) r/w 13(2) of the Prevention
of Corruption Act 1988, r/w Section 120B of the IPC and
while acquitting them for the other offences. Accordingly, they
are sentenced as under:-
“The 1st accused to undergo rigorous imprisonment
for two years and to pay a fine of Rs.5000/- and in
default to undergo rigorous imprisonment for
another six months, for the offence under Section
13(2) r/w Section 13(1)(d) of the Prevention of
Corruption Act, 1988. The 1st accused is further
sentenced to undergo rigorous imprisonment for one
year, for the offence under section 120(B) of the IPC.
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The 2nd accused is sentenced to undergo rigorous
imprisonment for one year, for the offence under
Section 120(B) of the IPC. The sentences of the 1st
accused shall run concurrently. Set off, if any, is
allowed under Section 428 of the Code of Criminal
Procedure. Point answered accordingly.”
6. According to the learned counsel for the accused, in this
case, the prosecution allegation as to the reduction of tax from
24% to 12% is only to be justified in view of Ext.P8 declaration
given by the 2nd accused when his load was inspected by the 1st
accused. It is pointed out that even though the prosecution has a
case that the amount collected as per Exts.P7(a) and (b) in
relation to the marbles in the name of the 2nd accused @ 12%
instead of 24%, no independent evidence forthcoming to see
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that the marbles for which 12% tax were imposed as per Ext.P7
series is meant for commercial purpose and nothing produced
by the prosecution to substantiate the fact that the 2nd accused
engaged in the sale of marbles. It is also pointed out that even
though there is an allegation that 24% is the tax payable to
commercial transportation and 12% is the tax in relation to
domestic purposes, no documentary evidence was produced by
the prosecution, and they relied on the oral version of PW3 in
this regard. According to the learned counsel for the 1st
accused, acting on Ext.P8, when the 1st accused believed that
the transported marble items were for domestic purposes, the
same is only a procedure error or irregularity, and the same could
not be couched in the form of an offence as alleged by the
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prosecution. It is also pointed out that there is a delay in lodging
the FIR, even though the bills marked as Exts.P1 to P4 were
obtained during the investigation of the earlier crime, as on
21.10.2000, since this FIR was registered after four months i.e.
on February 2001. Therefore, the prosecution failed to prove
the allegations against the petitioners, and the judgment under
challenge is liable to be set aside. The learned counsel for the
accused relied on the decisions in Major S.K. Kale v. State of
Maharashtra, 1977 KHC 545; Jose P.T. v. State of Kerala,
2023 (2) KHC 526; and Sunil Kumar P v. State of Kerala
and Another, 2021 KHC 5052, to contend that when the
prosecution fails to prove the dishonest intention which is the
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prerequisite under section 13(1)(d) r/w 13(2) of the PC Act, it
is unsafe to enter into conviction.
7. Opposing this contention, the learned Public
Prosecutor submitted that in this case, merely acting on Ext.P8,
the 1st accused imposed tax @ 12% and such an action is
permissible only when the 2nd accused produced documents
issued by the local authority stating that the above marbles were
transported for the purpose of construction of his house or
domestic purpose. That apart, he argued that going by
Ext.P7(a), Section 29A of the Sales Tax Act, to which this court
could very well take judicial notice, provides the tax for
commercial purposes is @ 24% and domestic purposes is @ 12%.
Since the 2nd accused did not produce any documents to
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support his contention in tune with Ext.P8 declaration, the 1st
accused ought to have realized 24% of the tax and collection of
12% alone is not merely procedural error, but the same is done
with dishonest intention. Therefore the same has serious
consequences whereby the tax to the Government was lost
warranting ingredients to attract offence under section 13(1)(d)
r/w 13(2) of the Prevention of Corruption Act. In such a case,
the judgment of the trial court is only to be confirmed.
8. On appraisal of the rival contentions, the following
questions arise for consideration.
1.Whether the trial court rightly entered into the
conviction on the finding that accused Nos.1 and 2
committed offence punishable under Section 13(1)(d)
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r/w 13(2) of the PC Act r/w Section 120B of the
IPC?
2.Whether the verdict under challenge would require
interference?
3.The order to be passed?
Point Nos.1 to 3:-
9. The prosecution allegation is that the 1st accused, while
working as Sales Tax Inspector at the Commercial Sales Tax
Check Post Koottupuzha, hatched criminal conspiracy with the
2nd accused, a merchant of marble slabs and pursuant to said
conspiracy, on 31.08.2000, committed criminal misconduct by
intentionally avoiding the collection of the stipulated amount of
sales tax @ 24% per annum from the 2nd accused who brought a
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load of marble slabs in a lorry from Rajasthan for the purpose of
sale which was transported through the above checkpost at
16.05 hours on 31.08.2000. The further allegation is that the 1st
accused had forged and falsified the invoice and Way Bill
produced by the 2nd accused and collected an amount of
Rs.4,800/- as tax, and thereby a loss of Rs.8,605.20/- was caused
to the State Exchequer.
10. Section 29A of the Sales Tax Act provides procedure
for inspection of goods in transit through notified areas.
Subsection (1) of Section 29A of the Sales Tax Act provides that
the driver or other person in charge of a vehicle or vessel shall stop
the vehicle or vessel and any person referred to in sub-section 2(A)
of Section 29 shall stop or the case may be stop the animal at any
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place within a notified area when so required by the officer in
charge of that notified area, or at any other place when so required
by any officer empowered by the Government in that behalf, for the
purpose of enabling such officer to verify the documents required by
sub-section (2) of Section 29 to be in the possession of the person
transporting the goods and to satisfy himself that there is no
evasion of tax. Subsection (2) of Section 29A of the Sales Tax
Act provides that if such officer has reason to suspect that the
goods under transport are not converted by proper and genuine
documents (in cases where such documents are necessary) or that
any person transporting the goods is attempting to evade payment
of the tax due under this Act, he may, for reasons to be recorded in
writing, detain the goods and shall allow the same to be
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transported only on the owner of the goods, or his representative or
the driver or other person in charge of the vehicle or vessel on behalf
of the owner of the goods, furnishing security for double the
amount of tax likely to be evaded: as may be estimated by such
officer; Provided that such officer may, if he deems fit, having
regard to the nature of the carrier or the goods and other relevant
matters, allow such goods to be transported on the owner of the
goods or his representative or the drier or other person in charge of
the vehicle or vessel executing a bond with or without sureties for
securing the amount due as security. Provided further that where
the documents produced in support of the transport of goods
evidence defects of a minor or technical nature only and the goods
are owned by a dealer registered under this Act, such officer may
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allow the goods to be transported after realising the tax on the
turnover of the goods under transport. Subsection (2A) of Section
29A of the Sales Tax Act provides that where the owner, driver or
person in charge of the vehicle or vessel carrying the goods detained
under sub-section(2) is found in collusion for such carrying of
goods, the vehicle or vessel shall also be detained and seized by the
officer empowered under sub-section (1) and such vehicle or vessel
shall be released only on the owner driver or person in charge of it
furnishing the security provided in sub-section (2). In case of
failure to furnish the security as above, the officer detaining and
seizing the vehicle shall have the power to order the vehicle or vessel
being taken to the nearest police station or to any Check Post or
office of the Agricultural Income Tax and Sales Tax Department
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for safe custody of the goods or the vehicle or the vessel or both.
Provided that where the owner, driver or person in charge of a
vehicle or vessel carrying goods is found guilty of the offence under
this sub-section for a second or a subsequent time, such vehicle or
vessel may be detained for not exceeding 30 days from the date of
furnishing the security. Subsection (2B) of Section 29A of the
Sales Tax Act provides that if such office has reason to believe that
the tax exigible on the sale or purchase of goods under transport is
not paid, or the dealer whose goods are transported is in default of
payment of any tax or other amount due under this Act for any
period, such officer may, notwithstanding anything to the contrary
contained in this Act or the rules made thereunder allow the goods
to be transported after realizing the tax in respect of the gods
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transported., if the driver or the person in charge of the goods or
the dealer whose goods are under transport refuses to pay such tax,
the goods shall be detained by such officer and shall be dealt within
the manner provided in this Section as if the transport of goods
were an attempt to evade payment of tax under this Act.
11. On perusal of the statutory provisions, of which this
Court could very well take judicial notice of, even without
letting the same as evidence, it is the duty of the 1st accused to
verify as to whether the goods transported are supported by
proper and genuine documents or that any person transporting
the goods is attempting to evade payment of tax due under the
Act. If the officer has reason to suspect that the goods under the
transport are not covered by proper and genuine documents, he
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may, for reasons to be recorded in writing, detain the goods or
shall allow the same to be transported only on the owner of the
goods or his representative or the driver or other person in
charge of the vehicle on behalf of the owner of the goods
furnishing security for double the amount of tax likely to be
evaded, as may be estimated by such officer. Otherwise, as per
Subsection 2A of Section 29A, the officer shall detain the
vehicle and only after furnishing security provided under
Subsection (2) of Section 29A of the Sales Tax Act, the vehicle
to be released. Thus, when there is failure to pay proper tax as
per Subsection (2B) of Section 29A, the officer has the right to
detain the vehicle in custody. In the instant case, the trump card
upon which the learned counsel for the accused seeks acquittal is
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Ext.P8, on the assertion that 2nd accused transported marbles
for domestic use. The learned counsel for the accused Nos. 1
and 2 fairly conceded that no documents issued by the local
authority had been produced before the 1st accused by the 2nd
accused for perusal, to see that the marbles were transported for
domestic use so as to get reduction in tax @ 12%.
12. It is true that, as held by this Court in Jose P T case
(supra), a criminal proceedings could not be initiated merely on
the ground that a wrong or incorrect order was passed by the
public servant, provided no pecuniary advantage was obtained
by the said person or any other person and corresponding loss to
the State. As held in major S.K.Kale’s case (supra) dishonest
intention is to be found while considering the ingredients for the
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offence punishable under section 13(1)(d) r/w 13(2) of the PC
Act, even though in this case the Apex Court considered pari
meteria provision, viz. Section 5(1)(d) of the PC Act 1947.
13. Coming to the evidence, PW-1 was the Inspector,
Vigilance and Anti-corruption Bureau, Kannur, during 2000.
While conducting investigation in VC-15/2000 a trap case
against the 1st accused, a search was conducted at the house of
the accused at 3 P.M on 21-10-2000 in the presence of witnesses.
At that time, a suitcase kept over the slab on the north-western
room of that house was inspected. On verification, it was found
that apart from the records in VC-15/2000, some other
important documents were also obtained. Out of this, a bill as
well as a carbon copy of a Bill obtained from Foremost Marbles,
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Chittagore, Rajasthan, dated 27-8-2000 in the name of T.
Lakshmy, Panthakkal, Mahi, for an amount of Rs.13,684/- for
purchasing marble slabs, which was marked as Exts.P-1 and
P-1(a). Apart from this, another bill and a carbon copy in the
name of the same person obtained from Phool Tiles, Chittagore,
Rajasthan, for an amount of Rs.23,171, which was marked as
Exts.P-2 and P-2(a) were obtained. Another Way Bill in original
and a carbon copy for an amount of Rs. 19,000/- as freight
charge in the name of Cochin- Selam Transport Company on
Truck No.KA-12A-6786 for transporting the marble slabs,
which were marked as Exts.P-3 and P-3(a), was also obtained.
An Invoice for remitting excise duty of Rs.2,211/- in the name
of T.Lakshmy, Panthakkal, Mahi, obtained from Foremost
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Marbles, Chittagore, Rajasthan, which were marked as Exts.P-4
and P-4(a), was also obtained. On verification of these
documents, PW1 found that these are important documents
kept by A-1 without collecting the actual rate of tax from the
parties, who had transported marble slabs to Kerala State. No
office seal of Koottupuzha Check Post was affixed in those
documents and the same revealed that the 1st accused hatched
conspiracy with the parties, he had caused pecuniary loss to the
Government. Then PW1 carried out a confidential verification,
and a report in this regard was sent to the higher authorities.
According to PW1, the 2nd accused was a businessman engaged
in sale of marble slabs in Iritty to whom the entire marble slabs
were brought from Rajasthan on the strength of Ext.P1. The
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tax to be collected for those items would be @ 24%, out of which
the 1st accused has collected only 12% by valuing the marble
slabs at Rs.40,000/-. Exts.P-1 to P-4 were produced before the
Dy.S.P., Vigilance and Anti-corruption Bureau, Kannur, and an
inventory was prepared by the Dy.S.P., which was marked as
Ext. P5. According to PW-1, due to the act of A-1 Government
has sustained a loss of Rs.8,605.20/-.
14. PW-2 examined in this case was the U.D. Clerk of
Koottupuzha Sales Tax Check Post from 10-7-2000 onwards.
He deposed that as per the direction of Dy.S.P., Vigilance,
Kannur, some documents were produced before him. The VCR
No.I Register from 28-8-2000 to 6-9-2000 was produced and
the same got marked as Ext.P-6. A Receipt Book bearing
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No.1530 and Section 27-B declaration given by A-2 was
produced. The Receipt Book was marked as Ext.P-7 and the
Declaration was marked as Ext.P-8, and the letter was marked as
Ext. P-8(a). A mahazar was prepared by the Dy.S.P. and he had
put his signature as a witness. The mahazar was marked as
Ext.P-9. As per the request of the Vigilance Police on 19-3-2001,
he had produced the General Diary from 9-4-2000 till 19-3-2001
of Koottupuzha Sales Tax Check Post, which was marked as
Ext.P-10. A mahazar was been prepared for seizing that General
Diary, and it was marked as ext.P-11. In Page Nos 55 and 56 of
Ext.P-10 on 31-8-2000 at 14.10 hours, A-1 took charge as Sales
Tax Inspector in that check Post. That relevant page was marked
as Ext.P-10(a). In Page No.56 at 7 A.M on 1-9-2000, one C.G.
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Mathew has taken charge from A-1, as Sales Tax Inspector. That
page was marked as Ext.P-10(b). In Ext.P-6, Sl. No.29514 would
show that at 16.50 hours, a vehicle bearing Registration
No.KA-12A-6786 was passed through the Check Post, loaded
with marble slabs for an amount of Rs.40,000/-, and an amount
of Rs.4,800/- was collected as tax from one Shamsudeen(A-2).
That entry was marked as Ext.P-6(a). That entry was made by
A-1 in his own handwriting. In Ext.P-7 Receipt Book as per
Receipt No.152966 on 31-8-2000 an amount of Rs.4,800/- was
collected as entry tax, from A-2. The amount was remitted as per
a chalan, and the chalan was attached in that page. The
Counter-Foil of the Receipt was marked as Ext.P-7(a). The
handwriting in those documents are of A-1. The chalan was
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marked as Ext.P-7(b). In Ext.P-8 the name of the consignee was
shown as Shamsudeen, Ext.P-8 Declaration was given by
P.V.Shamsudeen, Iritty, which was acted upon by the 1st
accused. The entire records showing the loads passing through
the check post was entered in No.I Register ( Ext.P-6 ). If any
doubt was therein in the load that would be entered in the No.II
Register.
15. PW-3 tendered evidence in this case was the Sales Tax
Inspecting Assistant Commissioner, Kannur, during 1999.
Koottupuzha Sales Tax Check Post was under his jurisdiction.
According to him, the entire responsibility of a Sales Tax Check
Post was with the Sales Tax Inspector and three Inspectors
would be working continuously in a day, having eight hours
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duty. As per Ext.P-10(a) and Ext.P-10(b) on 31-8-2000 at 14.10
hours till 7 A.M on 1-9-2000, A Soopy, Sales Tax Inspector, was
in charge. As per the Proceedings of the Deputy Commissioner
of Commercial Taxes, Kannur, dated 19-6-2000, A-1 Soopy was
appointed as Sales Tax Inspector in Koottupuzha Sales Tax
Check Post on deputation basis from Paran Check Post. The
Order was marked as Ext.P-12. If marble slabs were brought
from outside Kerala, the bill was being checked from the Sales
Tax Check Post. If the load was brought by a Registered Dealer,
that would be entered in ‘IN’ Register and a Pass would be
issued to them. If, any Entry Tax to be collected that would be
collected from the party. If the marble slabs were brought for
own purpose, 12% of Entry Tax would be collected. Tax would
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be collected inclusive of freight charge. If, the party was not a
registered dealer and was brought for self purpose and no
documents were produced by them, tax would be collected at
the rate of 24%. PW3 deposed further that documents to be
produced for proving that the articles were for self use to get tax
deduction @ 12%. If it was brought to other State through
Kerala only Entry Pass would be issued from the check post.
That Pass would be surrendered before the check post at the
end. If the articles were not for other States and also not proved
as self-use, 12% Sales Tax as well as 12% Security deposit to be
collected. If the articles found to be more than the articles shown
in the bill, the Inspector had the power to collect more tax and
security amount from the party.
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16. The Sales Tax Inspector, Koottupuzha Sales Tax
Check Post, from 18-8-2000 till 22-3-2001 was examined as
PW4. According to him as per Ext.P-10(b) at 7 A.M, on
1-9-2000, he took charge from A. Soopy (A-1). At the time of
taking charge by him, no suspected or further verification files or
consignment were entrusted to him. If any articles or files were
there, that would be entered in the No.II Register and General
Diary. In Ext.P-10 General Diary, nothing was mentioned with
regard to this aspect. If a bill of the consignment was lost, the
market value of the goods would be calculated by the Sales Tax
Inspector, and double the tax amount would be collected from
the party, and goods would be released to them. If it was proved
that this was brought for self-use, use Security Deposit also
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would be collected. The entire file would be forwarded to the
S.T.O. (Enquiry). After giving Notice to the parties, the
S.T.O.(Enquiry) would conduct an Enquiry, and if it was proved
that the goods were brought for self-use, the remaining amount
would be returned to them. As per Section 27(A), a Certificate
of ownership would be produced to be counter-signed by the
S.T.O.
17. The Lorry Driver of Vehicle bearing Registration
No.KL-12A-6786 was examined as PW-5. According to him,
the said National Permit Lorry belonged to A-2. During the
month of August, 2000 A-2 Shamsudeen, along with him went
to Rajasthan with that lorry for purchasing marble slabs. After
purchasing the marble slabs, they returned and reached at
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Koottupuzha Check Post. About 4000 Sq.Ft. Marble slabs were
purchased from Rajasthan. The entire documents were
produced by A-2 before the Sales Tax Authority at Koottupuzha
Sales Tax Check Post. The officials of the check post verified the
load and Rs.4,800/was paid as entry Tax, by A-2. A-2 stated that
one bill in his name was lost in transit. At the time of purchasing
the marble slabs from Rajasthan, three bills were obtained. One
bill was in the name of A-2 Shamsudeen, and the other two was
in the name of one Lakshmi Panthakkal, Mahi. Some of the
marble slabs were damaged in transit, and that was verified by
the Sales Tax Authorities. The entire marble slabs were unloaded
at Iritty, in the house of A-2 Shamsudeen.
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18. PW-6 examined in this case is the Peon in the sales tax
department during 2000, he supported the arrival of lorry
wherein the 2nd accused transported marbles. According to
him, some of the marble slabs were seen damaged, and
accordingly, the 1st accused collected tax and allowed the lorry to
go. The investigation in this case is being carried out by PW7,
the DySP vigilance and Anti-Corruption Bureau, Kannur,
during 2001 and he deposed about the confidential verification
and recording of statements of the witnesses as well as the
procurement of documents as part of the investigation.
19. Ext.P15 is the prosecution sanction order pertaining
to the 1st accused, issued by PW8, the joint commission of
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Commercial Tax, Government of Kerala, from 08.06.2001 to
19.11.2001, and no challenge raised in regard to Ext.P15.
20. The allegation in this case is that as on 01.08.2000
when the 2nd accused, a merchant of marble slabs, reached the
commercial tax sale check Post Koottupuzha, the 1st and 2nd
accused hatched conspiracy to avoid payment of proper tax due
to the Government @ 24%. The further case is that the 1st
accused, as part of conspiracy, forged and falsified the invoice
and Way Bill produced by the 2nd accused and collected an
amount of Rs.4,800/- as tax and caused a wrongful loss to the
Government to the tune of Rs.8605.20/-. Purchase of marble
slabs from Rajasthan could be seen from Exts.P1, P1(a), P2,
P2(a), P3, P3(a), P4, and P4(a) bills. During 313 questioning,
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the accused stated that on verification of the marble slabs
transported on the relevant day, some of the marble slabs were
seen damaged, and the bills were said to have been lost.
Accordingly, the 1st accused calculated the quantum and
collected 12% tax for the marble slabs. PW5 deposed that
marbles were purchased in the name of one Lakshmi Panthakkal
Mahi and in the name of the 2nd accused Shamsudheen. In this
matter, no evidence adduced by the prosecution to prove that
the 2nd accused had marble business. As per the provisions then
existing and as deposed by PW3, discussed hereinabove 24% is
the tax to be levied on marble slabs transported for commercial
purposes, and there is exception in the case of transport of
marbles for domestic use, and if so, the tax payable is @ 12%.
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Hence, apart from producing Ext.P8 declaration, nothing
produced on the side of the 2nd accused to show that the
marbles were transported for domestic purposes. Be it so, the 1st
accused should have collected 24% as the tax, and any reduction
thereof is without any authority would result in unlawful
pecuniary gain to the 2nd accused and corresponding loss to the
State Exchequer. In the instant case, if tax collected @ 24%,
Rs.8605.20/- also should have been collected, and in fact, the
said amount was lost to the Government, and the amount was
gained by the 2nd accused.
21. The evidence discussed in detail would show that the
1st accused is duty-bound to collect tax @ 24% for the marbles
transported, and he could not reduce the same to 12%, unless
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documents to establish that the marbles were transported for
domestic use. In the instant case, apart from Ext.P8 declaration,
nothing produced by the 2nd accused to claim reduction of tax
to 12%. Then also the 1st accused collected only 12% of the tax,
and the evidence would go to show that the same is the outcome
of conspiracy hatched in between the 1st accused and the 2nd
accused. The said action of the 1st accused is not merely a
wrong or incorrect order passed by the 1st accused without any
dishonest intention. On the contrary, the 1st accused who is
well aware of the statutory provisions failed to collect 24% of the
tax amount with dishonest intention to get undue pecuniary
advantage to the 2nd accused and corresponding loss to the
State.
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22. Regarding the delay in lodging the FIR, as pointed out
by the learned counsel for the accused, it could be gathered that
the delay was due to confidential verification of the allegations
before registering the FIR as a bonafide attempt to avoid false
registration of the FIR. In such a case, it could not be held that
the trial court went wrong in finding that the accused herein
committed offences punishable under section 13(1)(d) r/w 13(2)
of the PC Act r/w Section 120B of the IPC. Therefore, the
conviction does not require any interference. Coming to the
sentence, the same also is reasonable and thus the sentence also
does not require any interference.
23. In the result, this appeal fails and is dismissed
accordingly. Consequently, the verdict under challenge is
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confirmed with direction to the accused to surrender before the
trial court forthwith to undergo the sentence. The order
suspending sentence and granting bail to the accused stands
cancelled, and his bail bond also cancelled.
The Registry is directed to forward a copy of this order to
the special court forthwith for imposing the sentence without
fail.
Sd/-
A.BADHARUDEEN, JUDGE
RMV