THE COMMISSIONER OF INCOME TAX vs. M/S. K.D.COKES

The respondent No. 2 participated in a tender process for granting mining permit in Nakhola Beat Sand Permit Area No. 3 for the period 2013 to 2015. The bid of the second respondent was accepted and by issuing letter of intent dated 03.01.2014, the second respondent was directed to deposit the amount specified therein. Pursuant to such letter, the second respondent deposited Rs. 2,02,000/- as security money and thereafter he also deposited Rs. 1,77,256/- as first kist (installment), income tax and sales tax. As per the terms of the sale notice, the operation of the permit was subject to obtaining Environment Impact Assessment clearance from the competent authority within 45 days along with approved mining plan for signing of the permit agreement. The petitioner Amal Chandra Sarma, also Page No.# 3/5 requested the concerned authority to expedite issuance of Environment Impact Assessment clearance vide his letter dated 17.06.2014, but the said authority did not issue the Environment Impact Assessment clearance within the stipulated time and suddenly, the petitioner Amal Chandra Sarma issued an order on 12.01.2015 forfeiting the security money deposited by the second respondent to the Government to be adjusted the same as Government revenue. The complainant was also debarred from participating in any subsequent sale process for five years with immediate effect by the said letter. It was also stated in the complaint that after the issuance of the order forfeiting the security money and also debarring the second respondent from participating in any sale process for five years, he received various phone calls from his well wishers, friends and clients and such action of the petitioners affected the reputation of the second respondent raising a question on his performance/competence. It was also stated in the complaint that there was no mention in the order dated 12.01.2015 with regard to the money deposited on account of first kist, income tax and sales tax and inspite of his effort, the second respondent failed to get any information from the petitioners about the said money deposited by him. It was further stated that the action of the petitioners was illegal and without any authority of law and therefore prayed for taking cognizance against the petitioners under Section 120B/119/420/500 IPC. On the basis of the said complaint, learned Judicial Magistrate took cognizance of offence under Section 409/501/120B IPC against the petitioners and issued process.

Feeling aggrieved by the said order of the learned Judicial Magistrate taking cognizance and issuing process, both the petitioners have approached this court individually.

Learned counsel for the petitioners submitted that the complaint did not make out any offence under Section 409 or 501 of 120B IPC against the petitioners and that the petitioners being public servants and the allegations brought in the complaint in respect of discharging their official function, learned Magistrate ought not to have taken cognizance for want of sanction as contemplated under Section 197 CrPC.

Learned counsel for the respondent No. 2 referring to certain provision, more particularly, Rule 55, 56, 57 CPC contended that while forfeiting the security money and debarring the second respondent from participating in any sale process for five years, the Page No.# 4/5 the above proposition, if the allegation made in the complaint/FIR taken at its face value and accepted in their entirety even prima facie make out any offence, quashing of the proceeding is not permissible. The Apex Court in Bhajanlal’s (supra) case, also cautioned, that inherent power to quash a criminal proceeding should be exercise sparingly and in rarest of the rare case. The principle laid down by the Apex Court in R.P. Kapoor (supra) and Bhajanlal (supra) has been reiterated by the Apex Court in a catena of the decisions thereafter.

Keeping in view the above principles and guidelines for quashing a complaint or FIR at the threshold, when I turn to the complaint in the instant case, throughout the entire complaint, there is absolutely no allegation made against the petitioner in Crl. Pet. 115/2017. The crux of the allegation made in the complaint was that the respondent participated in a tender process pursuant to a sale notice. His tender was accepted and as per the procedure, he deposited earnest money, kist money, income tax, sale tax etc. in favour of the Government and the earnest money was subsequently forfeited to the State. There was no whisper in the complaint that any property was entrusted with either of the petitioner. For the purpose of Page No.# 5/5 invoking the provision of Section 409 IPC, the two basic ingredients, that accused being public servant was entrusted with the property and he had misappropriated or convert the same to his own use must be present. As per the allegation in the complaint itself, the money was deposited in the treasury as earnest money as per the terms of the contract and the same was forfeited to the State exchequer and therefore there was no ingredient of entrustment of the property to any of the accused or misappropriation of the money as alleged in the complaint. In the last paragraph of the complaint, Section 120B IPC, criminal conspiracy has been mentioned. There is even not a whisper in the complaint who hatched the conspiracy with whom. From the allegation made in the complaint, it is difficult to infer any of the ingredients of Section 499 IPC to invoke the penal provision of Section 500 or 501 IPC in the instant case. What is abundantly clear from the allegation made in the complaint is that even if the allegations are taken at their face value and accepted in their entirety, the complaint does not make out any offence at all, not to speak of the offence under Section 409 or 511 or 120B IPC.

The complainant having failed to make out any offence against the petitioners, taking cognizance and issuing process by the learned Trial Court in the instant case, in my view, reflected total non-application of mind on the part of the learned Magistrate. The complaint having not made out any offence, I feel it unnecessary to deal with the second submission with regard to want of sanction. So far the submission made by the learned counsel for the respondent No. 2, that rules and procedure were not followed while forfeiting the money of the respondent or debarring him from participating in future sale process for five years, non- compliance of rules even if accepted to be correct, for the sake of argument, that does not attribute any culpability or criminal liability to the petitioners in the facts and circumstances of the case. The complainant having failed to make out any criminal offence, allowing the instant criminal proceeding to continue, in my view, will amounts to abuse of process of the court and therefore, the complaint in C.R. No. 246/2015 deserves to be quashed for ends of justice. Accordingly, the complaint and the proceeding in C.R. No. 246/2015 are quashed.

The criminal petitions stand allowed. JUDGE Mkk