H NAGINCHAND KINCHA Vs. SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) The revision petitioner (A-2) is aggrieved by the order of the Special Court in rejecting his application filed under Section 227 of Cr.P.C. seeking to discharge him of the offences under sections 7 and 8 r/w Section 13(d) of the Prevention of Corruption Act (hereinafter referred to as 'the Act') and Section 120-B of IPC pursuant to a trap, claimed to have been set up by the respondent-CBI, purportedly to trap accused No.1 in an act of accepting bribe for showing official favour by agreeing to reduce the tax on income of the original complainant.

(2.) The allegation in the complaint is to the effect that, the complainant being an income tax assessee filed a complaint on 7.9.2012 alleging that he is submitting his income tax returns in Bangalore from 2006 onwards; He had shown immovable property at Cochin in returns for the year 2008 and the same was disclosed in his income tax returns, but in July 2011 the 1st accused/the assessing officer had issued a notice that his income tax declared for the assessment of the year 2008-2009 has escaped the assessment within the meaning of Section 147 of the Income Tax Act and it was proposed to reassess the income declared by him. He was informed that the capital gain to an extent of 3,28,65,711/- stood in his name. A similar notice was received by him in respect of the assessment years 2009-2010. In the last week of August 2012 on the direction of the 1st accused, he met him in his office at Bangalore; The 1st accused informed him that there are lot of anomalies in his returns and the tax would come around Rs.80 lakhs and if the complainant pays Rs.20 lakhs as bribe, case will be closed by imposing tax on Rs.30 lakhs, for which the complainant was not agreeable. The 1st accused warned that he will impose heavy tax of Rs.1 crore. On 1.9.2012 and 6.9.2012 he received call over his mobile phone from the 1st accused demanding bribe and was directed to hand over the same to him at Bangalore and was also informed that assessment order has been handed over to 2nd respondent. The complainant since was not willing to pay bribe, lodged complaint with CBI/ACB. He had produced C.D. of conversation between himself and the accused for the period 1.9.2012 to 6.9.2012.

(3.) Learned counsel Sri. Kiran S. Javali for the petitioner submits that the assessment order in respect of which the gratification is alleged to have been demanded by the 1st accused had already been passed and no work was pending on the date of the complaint. There was no material to show about the demand of gratification by the 1st accused. As per the complaint allegations, on the Income Tax Department serving a notice under Section 148 of the Income Tax Act that substantial income has escaped assessment, the complainant met the petitioner voluntarily who is a Chartered Accountant at Bangalore and sought for his advise. He never sought for any help from the petitioner to appear before the Assessing Authority. The complainant had approached him seeking help to draft the objection statement to the notices served on him pertaining to two assessment years served on him. On that occasion he had paid Rs.25,000/- and a receipt was passed on to him. The complainant appeared on his own before the Assessing Authority without the assistance of the 2nd accused. Since the complainant was not allowing the Assessing Authority to discharge his duties peacefully, he was informed by the said Authority to collect the order copy from this petitioner and pass on the acknowledgement. The Assessing Authority had informed that if he does not pay tax within six months, it would attract the penalty of Rs.30 lakhs. The complainant was not willing to give cheques and offered to pay Rs.5 lakhs cash and he wanted the petitioner to pay the 1st installment of tax and had stated that he will not commit default if permitted to pay in installments. When the complainant placed the trap money on his table towards payment of tax, the petitioner pushed back the amount by his hands and refused to accept the same. As per the recitals of the trap mahazar, the trap money was lying on the table. The complainant had replaced the money in a cover and then signaled the trap team. His hands were not subjected for sodium carbonate hand test. The 1st accused had not even touched the said money.