J.P. Das JUDGMENT
J.P. Das, J.
1. This is an application under Section 482 of the Code of Criminal Procedure with a prayer to quash the criminal proceeding in T.R. Case No. 04 of 2016 arising out of Balasore Vigilance P.S. Case No. 28 of 2015 pending on the file of learned Special Judge, Balasore wherein the petitioner is an accused charge-sheeted for the offences under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 468/471/120-B, of the Indian Penal Code. Cognizance for the said offences has been taken by the learned trial court against the petitioner and two other co-accused persons.
2. On 25.05.2015 the Deputy Commissioner of Commercial Tax, Vigilance, Balasore Division submitted a written report to the Superintendent of Police of Vigilance, Balasore Division mentioning that on 24.05.2015 while he was conducting his mobile duty on the National Highway, one suspected goods vehicle bearing Registration No. OR-01-P-0574 was intercepted at 12.45 A.M.. The vehicle was loaded with five hundred bags of wheat and on demand, the driver-cum- person in charge of the vehicle produced a set of documents consisting of e-way bills of the supplier and the consignee of West Bengal and Khurdha, Bhubaneswar. The said e-way bill was found to have been checked by one Sri N.P. Das, Assistant Commercial Tax Officer, Unified Check Gate, Laxmannath Road. But, on enquiry, it was found that there was no such officer in the said name posted at the said Check Gate. Suspecting foul play, the statement of the driver was recorded who confessed that the vehicle had not passed through the said border check gate but had resorted to a by-pass road. Thereafter, the vehicle was taken to the office premises of the Superintendent of Police, Vigilance for safe custody and further verification. On further enquiry, it was found out that the aforesaid forged e-way bill had been utilized at Unified Check Gate, Jamsolaghat on 24.05.2015 at 12.09 P.M. by which time the vehicle was already intercepted and was kept in the office of the Superintendent of Police, Vigilance, Balasore. Thus, it appeared that the transporter in connivance with the officers on duty at Unified Check Gate, Jamsolaghat had obtained such certificate without having the physical verification of the vehicle, thereby evading tax. Pursuant to the F.I.R., Balasore Vigilance P.S. Case No. 28 dated 26.05.2015 was registered against the driver, proprietor of the flour mill at Khurdha and the officials of the Unified Check Gate, Jamsolaghat under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 468/471/120-B, of the Indian Penal Code.
3. In course of investigation, it was found out that the present petitioner was functioning as A.C.T.O. at Unified Check Gate, Jamsolaghat and during such time the alleged e-way bill was prepared in his office in respect of the vehicle, by which time the vehicle was already in detention by the Vigilance authorities. It is alleged that as per the procedure any vehicle, carrying goods, is first to be checked by the M.V.I whereafter all the documents should be sent to the A.C.T.O in-charge for passing of the vehicle. A.C.T.O on duty shall check the way-bill, invoice or challan, transport challan if available and after being satisfied with the documents, he shall hand over the same to the Data Entry Operator for entering the details into the system. Then D.E.O would stamp the on-line seal on the documents and after it was signed by A.C.T.O. shall be stamped by the Peon on duty. The said document thereafter is shown at the Gate to open the barrier. But, as revealed in this case, the e-way bill was prepared without weighment of the vehicle and even without physical verification. Hence, the present petitioner has been charge-sheeted with the allegations that preparation of the e-waybill from the computer which was operated with the User I.D. of the present petitioner was a forgery with illegal motive and conspiracy. After completion of investigation, charge-sheet was submitted as aforesaid and by the impugned order dated 22.03.2016 cognizance has been taken by the learned trial court for the said offences against the present petitioner and two others.
4. It was submitted by learned counsel for the petitioner that the learned trial court has taken cognizance of the offences without proper application of judicial mind and there is no acceptable materials on record to constitute the alleged offences against the present petitioner. It was submitted that undisputedly the present petitioner was on duty at the relevant time and the e-way bill has been prepared in the computer with the User I.D. of the present petitioner, but since the computer remains opened with the User I.D. for continuous operation, the mischief might have been committed by the Data Entry Operator during a short span of absence of the petitioner in the office. It was further submitted that as per prosecution case, the said e-way bill was not signed by the present petitioner so as to make him liable for conspiracy. It was further submitted that there was neither any loss caused to the State Exchequer for the alleged acts nor the petitioner had any official gain so as to be liable for the offences under the Prevention of Corruption Act. With those submissions, it was contended on behalf of the petitioner that this is a fit case where the entire proceeding should be quashed by the court exercising the power under Section 482 of the Code of Criminal Procedure.
5. Per contra, it was submitted by the learned counsel for the State, Vigilance, that the submission as made on behalf of the petitioner that his User I.D. might have been mis-utilized by the Data Entry Operator during his short absence or the petitioner had no knowledge about the alleged acts, are the materials which can be gone into only on evidence. This submission cannot be taken into consideration at the time of taking cognizance since the materials as allegedly found out in course of investigation make out a prima-facie case against the present petitioner. It was further submitted that charge-sheet has been submitted for all the offences against the present petitioner as well as two other co-accused persons and at the stage of taking cognizance, there is no scope to examine the materials available against all the accused persons individually so as not to take cognizance against one accused. In this respect, reliance is placed on a decision of the Hon'ble Apex Court reported in MANU/SC/0127/2015 : (2015) 60 OCR (SC) 993 in the case of (Sonu Gupta v. Deepak Gupta and others) wherein it was held:
"it is also well settled that the cognizance is taken of the offence and not the offender. Hence, at the stage of framing charge, an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing charge against the particular accused. But such exercise is required only at a later stage as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima-facie case.
Thus, it was submitted that the materials as placed, do not justify the submissions made on behalf of the petitioner that there is absolutely no case against him so as to quash the cognizance.
6. The position of law is well settled that a cognizance can be quashed in a case of the present nature only when the un-controverted allegations made in the F.I.R or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. In the instant case, undisputedly, the present petitioner was on duty at the relevant time when an e-way bill was prepared in a computer and it is also not disputed that the User I.D. of the petitioner was utilized for the said purpose. As it was submitted further on behalf of the State, Vigilance, had there been physical verification of the vehicle along with its documents, it could have been found out that the vehicle was trying to evade tax by preparing a forged e-way bill in respect of an earlier Check Gate. Hence, it could not be said that there is no loss to the State Exchequer. The plea taken by the petitioner that, his User I.D. might have been mis-utilized during his short absence for attending call of nature, etc. cannot be taken into consideration at the stage of cognizance as per the settled position of law. In view of the allegations as made and the materials as found out in course of investigation, especially the alleged non-following of the procedure while issuing e-way bill, it cannot be said that there is absolutely no case against the present petitioner so as to quash the order of cognizance.
7. Accordingly, I do not find any merit in this application and accordingly it stands rejected. However, the petitioner is at liberty to make his submissions, if so advised at the time of framing of charge which shall be considered by the learned trial court according to law.
The CRLMC is disposed of accordingly.
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