OM KUMAR DHANKAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) R. C. Mittal, respondent No.2. who was then working as Deputy Excise & Taxation Commissioner, Gurgaon (East), was summoned to face trial under Sections 420, 406 and 161, IPC on a complaint made by the petitioner, a Transporter of Gurgaon. The revision filed by respondent No. 2, impugning the summoning order, was allowed by Addl. Sessions Judge, Gurgaon and the criminal complaint filed by the petitioner was dismissed. The petitioner has filed the present revision petition against the said order.

(2.) The facts, in brief, are that the buses of the petitioner running under the name and style of M/s. Chaudhary Bus Service and given on contract basis, were impounded under the Motor Vehicles Act. When the petitioner contacted respondent No. 2, who was working in the Taxation Department, he told him that the buses were impounded because of non-payment of passenger tax. Respondent No. 2 asked the petitioner to deposit a sum of Rs. two lacs at his residence for release of the buses. The petitioner allegedly deposited Rs. 1,50,000/- at the residence of respondent No. 2 at 1.45 p.m. on 1-5-2000. Petitioner states that respondent No. 2 promised to issue receipt from the office. When he visited the office at 4.00 p.m. the clerk told him that two of the impounded buses have been released. In the evening, the petitioner received a call on his mobile phone from Mr. Kashyap requiring him to pay remaining amount of Rs. 50.000/-, so that the third bus could also be released. The petitioner accordingly paid Rs. 50.000/- at 9.30 p.m. at the residence of respondent No. 2 and thus the third bus was also released. Despite repeated visits to the office of the respondent, the petitioner was not supplied the receipt. He also wrote a letter on 30-10-2000 requiring him to issue receipt. From the reply sent by the respondent, the petitioner learnt that the amount paid by him was not appropriated by him towards passengers tax and in fact stood misappropriated indicating it to be a case of an illegal gratification. He accordingly filed criminal complaint under Sections 420, 406, 427, 161. IPC and Section 13(1)(D) of the Prevention of Corruption Act. On the basis of preliminary evidence, respondent No. 2 was summoned under Sections 420 406 and 161, IPC. Respondent impugned the said order by filing a revision petition, which was allowed by Addl. Sessions Judge, as stated above, against which the petitioner has filed the present revision petition.

(3.) The grounds pleaded in the revision filed by respondent No. 2 were that prior sanction of the Government was needed for prosecution of the respondent and there was delay of more than six months in filing of the complaint, which would show that the story projected was concocted one to malign the reputation of an honest officer. It was further pleaded that Sections 406 and 420, IPC are mutually exclusive and the summoning order passed by the Magistrate would be bad on this ground, besides stating that Section 161, IPC stood repealed and as such summoning of respondent No. 2 under the said section could not be sustained. On the other hand, it was submitted on behalf of the petitioner that the act of taking this amount by the respondent would not fall within the ambit of his official duty, so as to attract the provisions of Section 197, Cr. P.C. and hence, requirement of sanction would not arise in this case.