STATE OF J&K Vs. VINOD KOUL

JUDGEMENT

(1.) THROUGH the currency of these Criminal Revisions, one filed by the State being Criminal Revision Petition No. 88/1999 and the other preferred by three petitioners/accused, namely Rakesh Kumar, Ashok Gupta and Tariq Feroz being Criminal Revision Petition No. 72/2001, in terms of Section 435, Cr.P.C, the State has sought setting aside of the order dated 24.8.1999 propounded by Special Judge, Anti -Corruption, Jammu, whereby respondents have been discharged of the offence punishable under Section 5(2), of the Prevention of Corruption Act, 2006 and Sections 467, 468, 420 and 120 -B, Ranbir Penal Code and the direction to the Special Judge, Anti -Corruption, Jammu to proceed with the trial of respondents for the commission of above referred offences, whereas the petitioners in their Revision Petition have assailed the order dated 24.8.1999 insofar as the Special Judge Anti -Corruption has held that there exists a prima facie case against the accused/petitioners and prayed for setting it aside.

(2.) FACTS relevant for the disposal of these Revisions put tersely are that Shri C.K. Ramchandran, the then Director of Industries, received information on source that officers/officials of the District Industries Centre, Jammu in collusion with some industrialists mis -appropriated and mis -used the amount sanctioned by the Government for disbursement of CST claims. A team of officers was constituted to enquire into the matter. The team reported regarding the mis -use/mis -appropriation of the funds, which have been disbursed among non -functional SSI Units by the officers of the D.I.C., Jammu. On this report, the Director, Industries, filed a complaint with the Vigilance Commissioner on 18.4.1991 in stating that the Government in the Industries and Commerce Department had sanctioned the refund of Central Sales Tax paid by the industrialists on raw -material imported by them from outside the State. That out of the sanctioned amount of Rs. 3.27 crores, an amount of Rs. 3.14 crores was ear -marked for Jammu District. On scrutiny of some cases, it was found that there have been large -scale irregularities and suspected embezzlement of funds to the tune of lakhs of rupees. Some instances of the industrial units regarding the refund of CST were also cited in the complaint by the complainant. FIR No. 19/1992, however, stood registered with Police Station Vigilance Organization, Jammu and investigation ensued.

(3.) IT is stated to have been disclosed during investigation that the procedure of Sales Tax is that 10% of the Sales Tax is charged on the cost of raw -material when purchased from supplier outside the State of Jammu & Kashmir or any part of India. The supplier, on the production of C -Form by the Unit Holder, would not charge 6% CST on the raw -material supplied. This Form is provided by the Sales Tax Authorities to the Unit Holder when the Unit is registered with them for Sales Tax. In order to encourage and promote the growth of Small Scale Industries, incentive was given by the Government to Unit Holders of such industries that amount of CST upto 4% paid by the Unit Holders to the supplier at the time of purchase of raw -material from outside the State of Jammu & Kashmir is to be refunded. This was, however, done after the Field Officers of the District Industries Centre would spot inspect and verify the arrival of the raw -material in the Unit and its consumption by issuing a Consumption Certificate in favour of the Unit Holders. This case, however, pertains only to three Small Scale Industrial Units, namely, M/s Jehlum Udhyog, M/s Shilpa Enterprises and M/s New Yesha Enterprises, standing in the ownership of respondents 9 and 10. Respondent Vinod Koul, the then General Manager, District Industries Centre, Jammu recommended the cases of the aforesaid Units to the District Development Commissioner for the accord of sanction and after obtaining sanction paid the amount to the aforesaid Units. It is further stated to have been disclosed during investigation that the Units were found non -functional. The raw material was neither found supplied nor ever reached the Units. That the suppliers were also found fictitious and the Transport Companies stated to have transported the raw -material were either non -existent or did not transport raw -material to the Units. The prosecution having found the respondents -accused, in conspiracy with each other, produced fake documents for claiming refund of CST to the Units and accused Nos. 1 to 8 conferred pecuniary advantage by abusing their official positions on accused 9 and 10 and occasioned loss to the State Exchequer. On the conclusion of investigation, charge -sheet was filed by the Vigilance Organization against the accused in the Court of Special Judge, Anti -Corruption, Jammu for offences under Sections 5(2) of the Prevention of Corruption Act, 2006 and Sections 467, 468, 420 and 120 -B, Ranbir Penal Code. The Trial Court after hearing the arguments and scanning the material assembled on record explicitly detailed in the report under Section 173, Cr.P.C, held that no prima facie case appears to have been made out against accused Vinod Koul to saddle him with criminal liability and frame a charge against him and against the other accused Nos. 2 to 10, the trial Court found the sanction for prosecution granted by the Sanctioning Authority to be without application of mind and, thus, invalid and no cognizance of alleged offence can be taken against them, and consequently discharge the accused and dismissed the challan, which became subject -matter of challenge in the Revision Petition by the State and another Revision Petition filed by three petitioners/accused assailing finding of Trial Court that there exists a prima facie case against other accused.