Bail application rejected as other co-accused application already rejected

Rakesh Kumar Singh Vs State Thru C.B.I (Allahabad High Court)

Allahabad High Court rejected the bail application as 482 applications filed by other co-accused have already been rejected. Further, the said application is also rejection in absence of merit and substance.

Facts-

This application u/s. 482 CrPC seeks quashing of the order dated 01.10.2021 passed by the learned Special Judge, Anti-Corruption, CBI, West, Lucknow, rejecting application for discharged moved by the applicant in Criminal Case No.633 of 2018 (CBI Vs. Sanjiv Kumar and others), arising out of RC No.DST2017A0021, under Section 120-B read with Sections 420, 468 and 471 IPC, Section 13(2) read with Sections 13(1)(d) of the Prevention of Corruption Act and Section 66 C & D of the Information Technology Act, 2000, CBI/STF, New Delhi.

Conclusion-

Held that considering the fact that 482 applications filed by the said co-accused have already been rejected, this application is also rejected having no merit and substance. Interim order, if any, stands vacated.

FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT

1. Heard Mr. Pranjal Krishna, leaned counsel for the applicant, as well as Mr. Anurag Kumar Singh, learned counsel for the respondent-CBI, and gone through the entire record.

2. This application under Section 482 CrPC seeks quashing of the order dated 01.10.2021 passed by the learned Special Judge, Anti-Corruption, CBI, West, Lucknow, rejecting application for discharged moved by the applicant in Criminal Case No.633 of 2018 (CBI Vs. Sanjiv Kumar and others), arising out of RC No.DST2017A0021, under Section 120-B read with Sections 420, 468 and 471 IPC, Section 13(2) read with Sections 13(1)(d) of the Prevention of Corruption Act and Section 66 C & D of the Information Technology Act, 2000, CBI/STF, New Delhi.

3. Learned counsel for the respondent – CBI submits that 482 Application Nos. 2545 of 2018 and 4017 of 2018 filed by co-accused, Sanjeev Kumar Sinha and Arun Kumar Srivastava, have been rejected by this Court vide detailed common order dated 27.07.2018.

4. The said order dated 27.07.2018 reads as under:-

” 1. The present petitions have been filed under Section 482 Cr.P.C. by the petitioner, Sanjeev Kumar Sinha and Arun Kumar Srivastava for quashing of the cognizance order dated 06.04.2018 along with charge-sheet and entire criminal proceedings arising in Court Case No.633 of 2018, Crime No. RC-DST/2017/A/0021. Since the controversy involved in both the petitions is same, the same is being decided by a common judgment treating the Crl. Misc. Case No.4017 of 2018, as the leading case.

2. A preliminary enquiry bearing No.PEDST2017A0001 was registered in CBI, STF Branch, Delhi based on the Source Information on 07.03.2017. Based upon the findings of the Preliminary Enquiry No.PE/DST/20170001, a Regular Case No.RC/DST/2007/A/0021 dated 17.08.2017 was registered under Sections 120B r/w 420, 467, 468 and 471 IPC, Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 66 of the Information Technology Act, 2000.

3. The allegations in the FIR are that during the period 2012-16, Shri Sanjeev Kumar, the then ITO Ward 6(1), Shri Rakesh Kumar Singh, the then Sr. Tax Assistant Ward 6(1), Shri Anand Bajpai and Shri Anand Kanojia both daily wagers employees of Ward 6(1), Range 6, within the jurisdiction of Commissioner, Lucknow entered into a criminal conspiracy with each other and some other unknown private persons with a view to claim false refunds from the Income Tax Department by resorting to manipulation of electronic records in the computer system of Income Tax Department, Lucknow whereas assesses (in whose names such Income Tax Refunds were dishonestly and fraudulently generated) were not entitled to such refunds.

4. It is further alleged that Income Tax refunds were prepared by Shri Sanjeev Kumar, the then Income Tax Officer, Ward 6(1) Range 6 Shri Rakesh Kumar Singh, the then Senior Tax Assistant, Ward 6(1), Range 6, Sri Anand Bajpai and Sri Anand Kanojia both daily wages employees of Ward 6(1) Range 6 all working within the jurisdiction of CIT, Lucknow by using PAN numbers of 13 Tax Assesses. Thereafter, Shri Sanjeev Kumar, the then ITO Ward 6(1) and Shri Rakesh Kumar Singh, the tehn Senior Tax Assistant Ward 6(1), dishonestly and fraudulently fed fake ITR’s in computer system and processed these fake ITR’s in system by using the Remote Sensing Application Token known as RSA Token, which is basically an electronic device sensitive in nature issued to appropriate officials/officers of income tax to have access on their working system.

5. It is further alleged that after making rectification under Section 154 of the Income Tax Act dishonestly and fraudulently, the accused officials allowed refunds and raised fake advices worth Rs.9,16,930/-in the names of 13 Tax Assesses, which were duly sent to State Bank of India, CMP Centre, Hyderabad for further issuance of cheques. The details of 13 Tax assesses in whose names the fraudulent income tax refunds had been issued and claimed are as under:-

6. These tax assesses neither claimed any income tax refund nor submitted any application for rectification under Section 154 of the IT Act for the assessment year 2014-15. Above mentioned accused persons opened several bank accounts in different banks to deposit above said 13 fraudulently generated income tax refunds to the tune of Rs.9,16,930/- which were credited through Cheques/ECS in these accounts which were fraudulently opened on the basis of fake/forged KYC documents. The income tax returns and rectification requests under Section 154 of the I.T. Act of the above mentioned persons are not available to the concerned Income Tax Office/ Ward. It was found that as soon as return amount was credited in these bank accounts, the amount was withdrawn by using the ATM cards to various ATMs.

7. Investigation further discloses that out of the total 13 instances mentioned in the FIR eleven instances pertain to Ward 6(1) and two instances pertain to Ward 6(2), Range 6, within the jurisdiction of Additional Commissioner of Income Tax, Lucknow. Investigation has further disclosed that Sri Sanjeev Kumar, the then ITO Ward 6(1), Sri Arun Kumar Srivastava, the then ITO, Ward 6(2), Shri Rakesh Kumar Singh, the then Senior Tax Assistant, Ward 6(2) the then OS, Range 6 and Late Shri Anand Bajpai, the then Daily Wages Employee of Range 6, all working within the jurisdiction of Additional Commissioner of Income Tax, Range 6 entered into a criminal conspiracy with each other and other private persons namley Sri Narendra Pandey @ Vinod Kumar Gupta, Rahul Gupta @ Rahul Kumar Gupta, Rishabh Kanojia, and Late Smt. Aneeta Shukla @ Anita Shukla with a view to claim false refunds from the Income Tax Department by resorting to manipulation of electronic records in the computer system of Income Tax Department, Lucknow whereas assesses (in whose names such Income Tax Refunds were dishonestly and fraudulently generated) were not entitled to such refunds.

8. After completion of the investigation, CBI filed charge-sheet against the petitioner and other accused on 29.12.2017 under Sections 120B r/w 420, 468 and 471 IPC, Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 66 of the Information Technology Act, 2000. The Special Judge/ Anti Corruption CBI(West) Lucknow vide order dated 06.04.2018 took cognizance against the petitioner and other accused named in the charge-sheet under Sections 120B r/w 420, 467, 468 and 471 IPC, Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 66 of the Information Technology Act, 2000. Learned Special Judge issued summons for the appearance of the accused.

9. Heard Sri Purnendu Chakravarty, learned counsel appearing for the petitioner and Sri Amarjeet Singh Rakhara, learned counsel appearing for CBI.

10. Sri Purnendu Chakravarty, learned counsel appearing for the petitioner submits that the petitioner had retired on 31.08.2015 and his period of posting was 24.06.2013 to 31.08.2015. He has further submitted that prior to the posting of the petitioner as Income Tax Officer of Ward 6(2), Range 6, one Kulwant Kaur was posted from 01.04.2013 to 24.06.2013. However, the petitioner had already retired when the FIR was registered on 17.02.2017. The petitioner was not named in the FIR. It is also submitted that the petitioner was never called by the CBI for interrogation/ statement either at Lucknow or at CBI Office, Delhi at any point in time. The petitioner has been implicated in the charge-sheet without even putting a single question to him or calling him for investigation and he had no role in the alleged commission of the offence.

11. Learned counsel has further submitted that the petitioner is that the petitioner has no role in processing of the income tax refunds of the aforesaid assesses and he did not rectify any refund claims of any assesses under Section 154 of the Income Tax Act. However, in the charge-sheet, so far as the petitioner is concerned 11 tax refunds have been mentioned to have entered in the computer system which were subsequently processed and rectified by the petitioner. However, there is no evidence to this effect that any processing or rectification of the tax refunds was done by the present petitioner.

12. Learned counsel has further submitted that the evidence adduced in support of the charge-sheet does not disclose the commission of any offence by the petitioner and, therefore, the charge-sheet so far as against the petitioner is concerned, is liable to be quashed.

13. He has placed reliance on the judgment of the Supreme Court in the case of Rajiv Thapar and others versus Madan Lal Kapoor: (2013) 3 SCC 330. Para 29 of the aforesaid judgment which reads as under:-

“29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/ their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.”

14. On the other hand, Sri Amarjeet Singh Rakhara, learned counsel appearing for CBI said that this petition is not maintainable. The petitioner has not availed the opportunity and raised the ground before the Trial Court by filing an application for discharge. Learned counsel appearing for CBI has further submitted that his petition is premature and not maintainable. He has placed reliance on the judgment of Supreme Court in the case of Girish Kumar suneja vs CBI: (2017) 14 SCC 808 wherein the Supreme Court while reiterating the position culled out in the case of Madhu Limaye vs State of Maharastra:(1977) 4 SCC 551 held that the power under Section 482 CrPC cannot be resorted to, if there is a specific provision in the Code for the redressal of the grievance of the aggrieved party and further that powers under Section 482 CrPC should be exercised very sparingly to prevent abuse of process of Court or otherwise to secure the ends of justice. He has also placed reliance on the judgment in the case Sunita Jain vs Pawan Kumar Jain (2002) 7 SCC 405 and Pratibha vs Rameshwar Devi (2007) 12 SCC 369.

15. Learned counsel for the CBI further submits that CBI after detailed investigation has found sufficient material and filed charge-sheet against the accused and the accused can very well move to Trial Court for their discharge if they are of the view that the material disclosed with the charge-sheet does not support the allegations against them for commission of offence alleged against them.

16. I have considered the submissions of the parties.

17. The only ground in the petition is that the person in whose favour two income tax refunds were processed allegedly by the petitioner was not the assessee of his ward and, therefore, CBI without examining this aspect has incorrectly named him in the charge-sheet. If the assessee in whose favour two fraudulent income tax returns were possessed did not fall within the jurisdiction of the ward in which the petitioner was Income Tax Officer at the relevant time, the charge against him cannot be sustained.

18. However, I am of the opinion that the aforesaid contention of the petitioner is not correct. The petitioner is not alone named in the charge-sheet but he has been named along with the others in furtherance of the criminal conspiracy to commit the offence as mentioned in the charge-sheet. It can be finally decided only after evidence is completed that whether the petitioner had any hand in processing the fraudulent refund or not. At this stage this question cannot be decided. This Court cannot held a mini trial to decide this issue. The judgment cited by the learned counsel for the petitioner has no relevance to the facts of the present case. The charge-sheet sufficiently discloses involvement of the petitioner in commission of the offence and, therefore, I find that these petitions lack any merit and substance and are liable to be dismissed as such.

19. However, if the petitioner files an application for discharge before the learned Trial Court, the same shall be decided on its own merit without being influenced by any of the observation of this court. “

5. Considering the fact that 482 applications filed by the said co-accused have already been rejected, this application is also rejected having no merit and substance. Interim order, if any, stands vacated.