Kerala High Court
P.V.Shamsudeen vs State Of Kerala on 13 August, 2025
Crl. Appeal Nos. 2833 & 2963 of 2008
1
2025:KER:61480
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 13TH DAY OF AUGUST 2025 / 22ND SRAVANA, 1947
CRL.A NO. 2833 OF 2008
AGAINST THE JUDGMENT DATED 20.11.2008 IN CC NO.27 OF 2002 OF
ENQUIRY COMR.& SPECIAL JUDGE, KOZHIKODE.
APPELLANT/1st ACCUSED:
A.SOOPY
S/O ABDULLA, KULIRMA, CHENGALAVI AMSOM., PARIPPAYI
DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.
BY ADV SRI.M.REVIKRISHNAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
ADV.RAJESH.A SPL PP VACB,ADV.REKHA.S SRPP VACB.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.07.2025, ALONG WITH CRL.A.2963/2008, THE COURT ON 13.08.2025
DELIVERED THE FOLLOWING:
Crl. Appeal Nos. 2833 & 2963 of 2008
2
2025:KER:61480
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 13TH DAY OF AUGUST 2025 / 22ND SRAVANA, 1947
CRL.A NO. 2963 OF 2008
AGAINST THE JUDGMENT DATED 20.11.2008 IN CC NO.27 OF 2002 OF
ENQUIRY COMR.& SPECIAL JUDGE, kOZHIKODE.
APPELLANT/2ND ACCUSED:
P.V.SHAMSUDEEN
S/O ABU, SAJINA MANZIL,
KALLUMUTTY, PAYAM, IRITTY, KANNUR.
BY ADV SHRI.T.R.HARIKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.07.2025 ALONG WITH CRL.A.2833/2008, THE COURT ON 13.08.2025DAY
DELIVERED THE FOLLOWING:
Crl. Appeal Nos. 2833 & 2963 of 2008
3
2025:KER:61480
A. BADHARUDEEN, J
============================
Crl. Appeal Nos. 2833 & 2963 of 2008
==============================
Dated 13th day of August 2025
COMMON JUDGMENT
These are Criminal Appeals at the instance of accused Nos.1 & 2 in C.C. No. 27 of 2002 on the files of Enquiry Commissioner and Special Judge, Kozhikode.
2. Heard the learned counsel for the appellants/accused Nos.1 & 2, as well as the learned Public Prosecutor. Perused the trial court records as well as the decisions placed by the learned counsel for the appellants.
3. In this case, the prosecution alleges commission of offences punishable under Sections 13(1)(d) r/w 13(2) of the Crl. Appeal Nos. 2833 & 2963 of 2008 4 2025:KER:61480 Prevention of Corruption Act 1988, as well as under Sections 468, 471 & 120B of the IPC by the accused. The summary of the prosecution case is that the 1st accused, while working as Sales Tax Inspector at the Commercial Sales Tax Check Post, Koottupuzha, and as such being a public servant abused his official position and entered into criminal conspiracy with the 2nd accused on 31.08.2000, and in pursuance of the conspiracy the 1st accused committed criminal misconduct by intentionally avoiding the collection of stipulated amount of Sales Tax @ 24% from the 2nd accused, who had brought a load of marble slabs through lorry bearing Reg.No.KA-12A-6786, which passed through the Check Post at 16.50 hours on that date. For this, the 1st accused forged and falsified the Invoice and Way Bills Crl. Appeal Nos. 2833 & 2963 of 2008 5 2025:KER:61480 produced by the 2nd accused and obtained a false declaration and collected tax only Rs.4,800/- (@12%) from the 2nd accused and thereby caused wrongful loss of Rs.8,605.20/- to the Government. Thus, both the accused have committed the above said offences.
4. In this matter, the special court took cognizance and proceeded with the trial. During trial, PWs1 to 8 were examined, and Exts.P1 to P16 were marked from the side of prosecution. After completion of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the CrPC, and an opportunity was given to him to adduce defence evidence. However, no defence evidence was adduced.
Crl. Appeal Nos. 2833 & 2963 of 2008 6 2025:KER:61480
5. On evaluation of evidence and after analysing the rival contentions raised by the prosecution as well as the accused, the trial court convicted accused Nos.1 and 2 for the offence punishable under Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act 1988, r/w Section 120B of the IPC and while acquitting them for the other offences. Accordingly, they are sentenced as under:-
"The 1st accused to undergo rigorous imprisonment for two years and to pay a fine of Rs.5000/- and in default to undergo rigorous imprisonment for another six months, for the offence under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. The 1st accused is further sentenced to undergo rigorous imprisonment for one year, for the offence under section 120(B) of the IPC. Crl. Appeal Nos. 2833 & 2963 of 2008 7 2025:KER:61480 The 2nd accused is sentenced to undergo rigorous imprisonment for one year, for the offence under Section 120(B) of the IPC. The sentences of the 1st accused shall run concurrently. Set off, if any, is allowed under Section 428 of the Code of Criminal Procedure. Point answered accordingly."
6. According to the learned counsel for the accused, in this case, the prosecution allegation as to the reduction of tax from 24% to 12% is only to be justified in view of Ext.P8 declaration given by the 2nd accused when his load was inspected by the 1st accused. It is pointed out that even though the prosecution has a case that the amount collected as per Exts.P7(a) and (b) in relation to the marbles in the name of the 2nd accused @ 12% instead of 24%, no independent evidence forthcoming to see Crl. Appeal Nos. 2833 & 2963 of 2008 8 2025:KER:61480 that the marbles for which 12% tax were imposed as per Ext.P7 series is meant for commercial purpose and nothing produced by the prosecution to substantiate the fact that the 2nd accused engaged in the sale of marbles. It is also pointed out that even though there is an allegation that 24% is the tax payable to commercial transportation and 12% is the tax in relation to domestic purposes, no documentary evidence was produced by the prosecution, and they relied on the oral version of PW3 in this regard. According to the learned counsel for the 1st accused, acting on Ext.P8, when the 1st accused believed that the transported marble items were for domestic purposes, the same is only a procedure error or irregularity, and the same could not be couched in the form of an offence as alleged by the Crl. Appeal Nos. 2833 & 2963 of 2008 9 2025:KER:61480 prosecution. It is also pointed out that there is a delay in lodging the FIR, even though the bills marked as Exts.P1 to P4 were obtained during the investigation of the earlier crime, as on 21.10.2000, since this FIR was registered after four months i.e. on February 2001. Therefore, the prosecution failed to prove the allegations against the petitioners, and the judgment under challenge is liable to be set aside. The learned counsel for the accused relied on the decisions in Major S.K. Kale v. State of Maharashtra, 1977 KHC 545; Jose P.T. v. State of Kerala, 2023 (2) KHC 526; and Sunil Kumar P v. State of Kerala and Another, 2021 KHC 5052, to contend that when the prosecution fails to prove the dishonest intention which is the Crl. Appeal Nos. 2833 & 2963 of 2008 10 2025:KER:61480 prerequisite under section 13(1)(d) r/w 13(2) of the PC Act, it is unsafe to enter into conviction.
7. Opposing this contention, the learned Public Prosecutor submitted that in this case, merely acting on Ext.P8, the 1st accused imposed tax @ 12% and such an action is permissible only when the 2nd accused produced documents issued by the local authority stating that the above marbles were transported for the purpose of construction of his house or domestic purpose. That apart, he argued that going by Ext.P7(a), Section 29A of the Sales Tax Act, to which this court could very well take judicial notice, provides the tax for commercial purposes is @ 24% and domestic purposes is @ 12%. Since the 2nd accused did not produce any documents to Crl. Appeal Nos. 2833 & 2963 of 2008 11 2025:KER:61480 support his contention in tune with Ext.P8 declaration, the 1st accused ought to have realized 24% of the tax and collection of 12% alone is not merely procedural error, but the same is done with dishonest intention. Therefore the same has serious consequences whereby the tax to the Government was lost warranting ingredients to attract offence under section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. In such a case, the judgment of the trial court is only to be confirmed.
8. On appraisal of the rival contentions, the following questions arise for consideration.
1.Whether the trial court rightly entered into the conviction on the finding that accused Nos.1 and 2 committed offence punishable under Section 13(1)(d) Crl. Appeal Nos. 2833 & 2963 of 2008 12 2025:KER:61480 r/w 13(2) of the PC Act r/w Section 120B of the IPC?
2.Whether the verdict under challenge would require interference?
3.The order to be passed?
Point Nos.1 to 3:-
9. The prosecution allegation is that the 1st accused, while working as Sales Tax Inspector at the Commercial Sales Tax Check Post Koottupuzha, hatched criminal conspiracy with the 2nd accused, a merchant of marble slabs and pursuant to said conspiracy, on 31.08.2000, committed criminal misconduct by intentionally avoiding the collection of the stipulated amount of sales tax @ 24% per annum from the 2nd accused who brought a Crl. Appeal Nos. 2833 & 2963 of 2008 13 2025:KER:61480 load of marble slabs in a lorry from Rajasthan for the purpose of sale which was transported through the above checkpost at 16.05 hours on 31.08.2000. The further allegation is that the 1st accused had forged and falsified the invoice and Way Bill produced by the 2nd accused and collected an amount of Rs.4,800/- as tax, and thereby a loss of Rs.8,605.20/- was caused to the State Exchequer.
10. Section 29A of the Sales Tax Act provides procedure for inspection of goods in transit through notified areas.
Subsection (1) of Section 29A of the Sales Tax Act provides that the driver or other person in charge of a vehicle or vessel shall stop the vehicle or vessel and any person referred to in sub-section 2(A) of Section 29 shall stop or the case may be stop the animal at any Crl. Appeal Nos. 2833 & 2963 of 2008 14 2025:KER:61480 place within a notified area when so required by the officer in charge of that notified area, or at any other place when so required by any officer empowered by the Government in that behalf, for the purpose of enabling such officer to verify the documents required by sub-section (2) of Section 29 to be in the possession of the person transporting the goods and to satisfy himself that there is no evasion of tax. Subsection (2) of Section 29A of the Sales Tax Act provides that if such officer has reason to suspect that the goods under transport are not converted by proper and genuine documents (in cases where such documents are necessary) or that any person transporting the goods is attempting to evade payment of the tax due under this Act, he may, for reasons to be recorded in writing, detain the goods and shall allow the same to be Crl. Appeal Nos. 2833 & 2963 of 2008 15 2025:KER:61480 transported only on the owner of the goods, or his representative or the driver or other person in charge of the vehicle or vessel on behalf of the owner of the goods, furnishing security for double the amount of tax likely to be evaded: as may be estimated by such officer; Provided that such officer may, if he deems fit, having regard to the nature of the carrier or the goods and other relevant matters, allow such goods to be transported on the owner of the goods or his representative or the drier or other person in charge of the vehicle or vessel executing a bond with or without sureties for securing the amount due as security. Provided further that where the documents produced in support of the transport of goods evidence defects of a minor or technical nature only and the goods are owned by a dealer registered under this Act, such officer may Crl. Appeal Nos. 2833 & 2963 of 2008 16 2025:KER:61480 allow the goods to be transported after realising the tax on the turnover of the goods under transport. Subsection (2A) of Section 29A of the Sales Tax Act provides that where the owner, driver or person in charge of the vehicle or vessel carrying the goods detained under sub-section(2) is found in collusion for such carrying of goods, the vehicle or vessel shall also be detained and seized by the officer empowered under sub-section (1) and such vehicle or vessel shall be released only on the owner driver or person in charge of it furnishing the security provided in sub-section (2). In case of failure to furnish the security as above, the officer detaining and seizing the vehicle shall have the power to order the vehicle or vessel being taken to the nearest police station or to any Check Post or office of the Agricultural Income Tax and Sales Tax Department Crl. Appeal Nos. 2833 & 2963 of 2008 17 2025:KER:61480 for safe custody of the goods or the vehicle or the vessel or both. Provided that where the owner, driver or person in charge of a vehicle or vessel carrying goods is found guilty of the offence under this sub-section for a second or a subsequent time, such vehicle or vessel may be detained for not exceeding 30 days from the date of furnishing the security. Subsection (2B) of Section 29A of the Sales Tax Act provides that if such office has reason to believe that the tax exigible on the sale or purchase of goods under transport is not paid, or the dealer whose goods are transported is in default of payment of any tax or other amount due under this Act for any period, such officer may, notwithstanding anything to the contrary contained in this Act or the rules made thereunder allow the goods to be transported after realizing the tax in respect of the gods Crl. Appeal Nos. 2833 & 2963 of 2008 18 2025:KER:61480 transported., if the driver or the person in charge of the goods or the dealer whose goods are under transport refuses to pay such tax, the goods shall be detained by such officer and shall be dealt within the manner provided in this Section as if the transport of goods were an attempt to evade payment of tax under this Act.
11. On perusal of the statutory provisions, of which this Court could very well take judicial notice of, even without letting the same as evidence, it is the duty of the 1st accused to verify as to whether the goods transported are supported by proper and genuine documents or that any person transporting the goods is attempting to evade payment of tax due under the Act. If the officer has reason to suspect that the goods under the transport are not covered by proper and genuine documents, he Crl. Appeal Nos. 2833 & 2963 of 2008 19 2025:KER:61480 may, for reasons to be recorded in writing, detain the goods or shall allow the same to be transported only on the owner of the goods or his representative or the driver or other person in charge of the vehicle on behalf of the owner of the goods furnishing security for double the amount of tax likely to be evaded, as may be estimated by such officer. Otherwise, as per Subsection 2A of Section 29A, the officer shall detain the vehicle and only after furnishing security provided under Subsection (2) of Section 29A of the Sales Tax Act, the vehicle to be released. Thus, when there is failure to pay proper tax as per Subsection (2B) of Section 29A, the officer has the right to detain the vehicle in custody. In the instant case, the trump card upon which the learned counsel for the accused seeks acquittal is Crl. Appeal Nos. 2833 & 2963 of 2008 20 2025:KER:61480 Ext.P8, on the assertion that 2nd accused transported marbles for domestic use. The learned counsel for the accused Nos. 1 and 2 fairly conceded that no documents issued by the local authority had been produced before the 1st accused by the 2nd accused for perusal, to see that the marbles were transported for domestic use so as to get reduction in tax @ 12%.
12. It is true that, as held by this Court in Jose P T case (supra), a criminal proceedings could not be initiated merely on the ground that a wrong or incorrect order was passed by the public servant, provided no pecuniary advantage was obtained by the said person or any other person and corresponding loss to the State. As held in major S.K.Kale's case (supra) dishonest intention is to be found while considering the ingredients for the Crl. Appeal Nos. 2833 & 2963 of 2008 21 2025:KER:61480 offence punishable under section 13(1)(d) r/w 13(2) of the PC Act, even though in this case the Apex Court considered pari meteria provision, viz. Section 5(1)(d) of the PC Act 1947.
13. Coming to the evidence, PW-1 was the Inspector, Vigilance and Anti-corruption Bureau, Kannur, during 2000. While conducting investigation in VC-15/2000 a trap case against the 1st accused, a search was conducted at the house of the accused at 3 P.M on 21-10-2000 in the presence of witnesses. At that time, a suitcase kept over the slab on the north-western room of that house was inspected. On verification, it was found that apart from the records in VC-15/2000, some other important documents were also obtained. Out of this, a bill as well as a carbon copy of a Bill obtained from Foremost Marbles, Crl. Appeal Nos. 2833 & 2963 of 2008 22 2025:KER:61480 Chittagore, Rajasthan, dated 27-8-2000 in the name of T. Lakshmy, Panthakkal, Mahi, for an amount of Rs.13,684/- for purchasing marble slabs, which was marked as Exts.P-1 and P-1(a). Apart from this, another bill and a carbon copy in the name of the same person obtained from Phool Tiles, Chittagore, Rajasthan, for an amount of Rs.23,171, which was marked as Exts.P-2 and P-2(a) were obtained. Another Way Bill in original and a carbon copy for an amount of Rs. 19,000/- as freight charge in the name of Cochin- Selam Transport Company on Truck No.KA-12A-6786 for transporting the marble slabs, which were marked as Exts.P-3 and P-3(a), was also obtained. An Invoice for remitting excise duty of Rs.2,211/- in the name of T.Lakshmy, Panthakkal, Mahi, obtained from Foremost Crl. Appeal Nos. 2833 & 2963 of 2008 23 2025:KER:61480 Marbles, Chittagore, Rajasthan, which were marked as Exts.P-4 and P-4(a), was also obtained. On verification of these documents, PW1 found that these are important documents kept by A-1 without collecting the actual rate of tax from the parties, who had transported marble slabs to Kerala State. No office seal of Koottupuzha Check Post was affixed in those documents and the same revealed that the 1st accused hatched conspiracy with the parties, he had caused pecuniary loss to the Government. Then PW1 carried out a confidential verification, and a report in this regard was sent to the higher authorities. According to PW1, the 2nd accused was a businessman engaged in sale of marble slabs in Iritty to whom the entire marble slabs were brought from Rajasthan on the strength of Ext.P1. The Crl. Appeal Nos. 2833 & 2963 of 2008 24 2025:KER:61480 tax to be collected for those items would be @ 24%, out of which the 1st accused has collected only 12% by valuing the marble slabs at Rs.40,000/-. Exts.P-1 to P-4 were produced before the Dy.S.P., Vigilance and Anti-corruption Bureau, Kannur, and an inventory was prepared by the Dy.S.P., which was marked as Ext. P5. According to PW-1, due to the act of A-1 Government has sustained a loss of Rs.8,605.20/-.
14. PW-2 examined in this case was the U.D. Clerk of Koottupuzha Sales Tax Check Post from 10-7-2000 onwards. He deposed that as per the direction of Dy.S.P., Vigilance, Kannur, some documents were produced before him. The VCR No.I Register from 28-8-2000 to 6-9-2000 was produced and the same got marked as Ext.P-6. A Receipt Book bearing Crl. Appeal Nos. 2833 & 2963 of 2008 25 2025:KER:61480 No.1530 and Section 27-B declaration given by A-2 was produced. The Receipt Book was marked as Ext.P-7 and the Declaration was marked as Ext.P-8, and the letter was marked as Ext. P-8(a). A mahazar was prepared by the Dy.S.P. and he had put his signature as a witness. The mahazar was marked as Ext.P-9. As per the request of the Vigilance Police on 19-3-2001, he had produced the General Diary from 9-4-2000 till 19-3-2001 of Koottupuzha Sales Tax Check Post, which was marked as Ext.P-10. A mahazar was been prepared for seizing that General Diary, and it was marked as ext.P-11. In Page Nos 55 and 56 of Ext.P-10 on 31-8-2000 at 14.10 hours, A-1 took charge as Sales Tax Inspector in that check Post. That relevant page was marked as Ext.P-10(a). In Page No.56 at 7 A.M on 1-9-2000, one C.G. Crl. Appeal Nos. 2833 & 2963 of 2008 26 2025:KER:61480 Mathew has taken charge from A-1, as Sales Tax Inspector. That page was marked as Ext.P-10(b). In Ext.P-6, Sl. No.29514 would show that at 16.50 hours, a vehicle bearing Registration No.KA-12A-6786 was passed through the Check Post, loaded with marble slabs for an amount of Rs.40,000/-, and an amount of Rs.4,800/- was collected as tax from one Shamsudeen(A-2). That entry was marked as Ext.P-6(a). That entry was made by A-1 in his own handwriting. In Ext.P-7 Receipt Book as per Receipt No.152966 on 31-8-2000 an amount of Rs.4,800/- was collected as entry tax, from A-2. The amount was remitted as per a chalan, and the chalan was attached in that page. The Counter-Foil of the Receipt was marked as Ext.P-7(a). The handwriting in those documents are of A-1. The chalan was Crl. Appeal Nos. 2833 & 2963 of 2008 27 2025:KER:61480 marked as Ext.P-7(b). In Ext.P-8 the name of the consignee was shown as Shamsudeen, Ext.P-8 Declaration was given by P.V.Shamsudeen, Iritty, which was acted upon by the 1st accused. The entire records showing the loads passing through the check post was entered in No.I Register ( Ext.P-6 ). If any doubt was therein in the load that would be entered in the No.II Register.
15. PW-3 tendered evidence in this case was the Sales Tax Inspecting Assistant Commissioner, Kannur, during 1999. Koottupuzha Sales Tax Check Post was under his jurisdiction. According to him, the entire responsibility of a Sales Tax Check Post was with the Sales Tax Inspector and three Inspectors would be working continuously in a day, having eight hours Crl. Appeal Nos. 2833 & 2963 of 2008 28 2025:KER:61480 duty. As per Ext.P-10(a) and Ext.P-10(b) on 31-8-2000 at 14.10 hours till 7 A.M on 1-9-2000, A Soopy, Sales Tax Inspector, was in charge. As per the Proceedings of the Deputy Commissioner of Commercial Taxes, Kannur, dated 19-6-2000, A-1 Soopy was appointed as Sales Tax Inspector in Koottupuzha Sales Tax Check Post on deputation basis from Paran Check Post. The Order was marked as Ext.P-12. If marble slabs were brought from outside Kerala, the bill was being checked from the Sales Tax Check Post. If the load was brought by a Registered Dealer, that would be entered in 'IN' Register and a Pass would be issued to them. If, any Entry Tax to be collected that would be collected from the party. If the marble slabs were brought for own purpose, 12% of Entry Tax would be collected. Tax would Crl. Appeal Nos. 2833 & 2963 of 2008 29 2025:KER:61480 be collected inclusive of freight charge. If, the party was not a registered dealer and was brought for self purpose and no documents were produced by them, tax would be collected at the rate of 24%. PW3 deposed further that documents to be produced for proving that the articles were for self use to get tax deduction @ 12%. If it was brought to other State through Kerala only Entry Pass would be issued from the check post. That Pass would be surrendered before the check post at the end. If the articles were not for other States and also not proved as self-use, 12% Sales Tax as well as 12% Security deposit to be collected. If the articles found to be more than the articles shown in the bill, the Inspector had the power to collect more tax and security amount from the party.
Crl. Appeal Nos. 2833 & 2963 of 2008 30 2025:KER:61480
16. The Sales Tax Inspector, Koottupuzha Sales Tax Check Post, from 18-8-2000 till 22-3-2001 was examined as PW4. According to him as per Ext.P-10(b) at 7 A.M, on 1-9-2000, he took charge from A. Soopy (A-1). At the time of taking charge by him, no suspected or further verification files or consignment were entrusted to him. If any articles or files were there, that would be entered in the No.II Register and General Diary. In Ext.P-10 General Diary, nothing was mentioned with regard to this aspect. If a bill of the consignment was lost, the market value of the goods would be calculated by the Sales Tax Inspector, and double the tax amount would be collected from the party, and goods would be released to them. If it was proved that this was brought for self-use, use Security Deposit also Crl. Appeal Nos. 2833 & 2963 of 2008 31 2025:KER:61480 would be collected. The entire file would be forwarded to the S.T.O. (Enquiry). After giving Notice to the parties, the S.T.O.(Enquiry) would conduct an Enquiry, and if it was proved that the goods were brought for self-use, the remaining amount would be returned to them. As per Section 27(A), a Certificate of ownership would be produced to be counter-signed by the S.T.O.
17. The Lorry Driver of Vehicle bearing Registration No.KL-12A-6786 was examined as PW-5. According to him, the said National Permit Lorry belonged to A-2. During the month of August, 2000 A-2 Shamsudeen, along with him went to Rajasthan with that lorry for purchasing marble slabs. After purchasing the marble slabs, they returned and reached at Crl. Appeal Nos. 2833 & 2963 of 2008 32 2025:KER:61480 Koottupuzha Check Post. About 4000 Sq.Ft. Marble slabs were purchased from Rajasthan. The entire documents were produced by A-2 before the Sales Tax Authority at Koottupuzha Sales Tax Check Post. The officials of the check post verified the load and Rs.4,800/was paid as entry Tax, by A-2. A-2 stated that one bill in his name was lost in transit. At the time of purchasing the marble slabs from Rajasthan, three bills were obtained. One bill was in the name of A-2 Shamsudeen, and the other two was in the name of one Lakshmi Panthakkal, Mahi. Some of the marble slabs were damaged in transit, and that was verified by the Sales Tax Authorities. The entire marble slabs were unloaded at Iritty, in the house of A-2 Shamsudeen.
Crl. Appeal Nos. 2833 & 2963 of 2008 33 2025:KER:61480
18. PW-6 examined in this case is the Peon in the sales tax department during 2000, he supported the arrival of lorry wherein the 2nd accused transported marbles. According to him, some of the marble slabs were seen damaged, and accordingly, the 1st accused collected tax and allowed the lorry to go. The investigation in this case is being carried out by PW7, the DySP vigilance and Anti-Corruption Bureau, Kannur, during 2001 and he deposed about the confidential verification and recording of statements of the witnesses as well as the procurement of documents as part of the investigation.
19. Ext.P15 is the prosecution sanction order pertaining to the 1st accused, issued by PW8, the joint commission of Crl. Appeal Nos. 2833 & 2963 of 2008 34 2025:KER:61480 Commercial Tax, Government of Kerala, from 08.06.2001 to 19.11.2001, and no challenge raised in regard to Ext.P15.
20. The allegation in this case is that as on 01.08.2000 when the 2nd accused, a merchant of marble slabs, reached the commercial tax sale check Post Koottupuzha, the 1st and 2nd accused hatched conspiracy to avoid payment of proper tax due to the Government @ 24%. The further case is that the 1st accused, as part of conspiracy, forged and falsified the invoice and Way Bill produced by the 2nd accused and collected an amount of Rs.4,800/- as tax and caused a wrongful loss to the Government to the tune of Rs.8605.20/-. Purchase of marble slabs from Rajasthan could be seen from Exts.P1, P1(a), P2, P2(a), P3, P3(a), P4, and P4(a) bills. During 313 questioning, Crl. Appeal Nos. 2833 & 2963 of 2008 35 2025:KER:61480 the accused stated that on verification of the marble slabs transported on the relevant day, some of the marble slabs were seen damaged, and the bills were said to have been lost. Accordingly, the 1st accused calculated the quantum and collected 12% tax for the marble slabs. PW5 deposed that marbles were purchased in the name of one Lakshmi Panthakkal Mahi and in the name of the 2nd accused Shamsudheen. In this matter, no evidence adduced by the prosecution to prove that the 2nd accused had marble business. As per the provisions then existing and as deposed by PW3, discussed hereinabove 24% is the tax to be levied on marble slabs transported for commercial purposes, and there is exception in the case of transport of marbles for domestic use, and if so, the tax payable is @ 12%. Crl. Appeal Nos. 2833 & 2963 of 2008 36 2025:KER:61480 Hence, apart from producing Ext.P8 declaration, nothing produced on the side of the 2nd accused to show that the marbles were transported for domestic purposes. Be it so, the 1st accused should have collected 24% as the tax, and any reduction thereof is without any authority would result in unlawful pecuniary gain to the 2nd accused and corresponding loss to the State Exchequer. In the instant case, if tax collected @ 24%, Rs.8605.20/- also should have been collected, and in fact, the said amount was lost to the Government, and the amount was gained by the 2nd accused.
21. The evidence discussed in detail would show that the 1st accused is duty-bound to collect tax @ 24% for the marbles transported, and he could not reduce the same to 12%, unless Crl. Appeal Nos. 2833 & 2963 of 2008 37 2025:KER:61480 documents to establish that the marbles were transported for domestic use. In the instant case, apart from Ext.P8 declaration, nothing produced by the 2nd accused to claim reduction of tax to 12%. Then also the 1st accused collected only 12% of the tax, and the evidence would go to show that the same is the outcome of conspiracy hatched in between the 1st accused and the 2nd accused. The said action of the 1st accused is not merely a wrong or incorrect order passed by the 1st accused without any dishonest intention. On the contrary, the 1st accused who is well aware of the statutory provisions failed to collect 24% of the tax amount with dishonest intention to get undue pecuniary advantage to the 2nd accused and corresponding loss to the State.
Crl. Appeal Nos. 2833 & 2963 of 2008 38 2025:KER:61480
22. Regarding the delay in lodging the FIR, as pointed out by the learned counsel for the accused, it could be gathered that the delay was due to confidential verification of the allegations before registering the FIR as a bonafide attempt to avoid false registration of the FIR. In such a case, it could not be held that the trial court went wrong in finding that the accused herein committed offences punishable under section 13(1)(d) r/w 13(2) of the PC Act r/w Section 120B of the IPC. Therefore, the conviction does not require any interference. Coming to the sentence, the same also is reasonable and thus the sentence also does not require any interference.
23. In the result, this appeal fails and is dismissed accordingly. Consequently, the verdict under challenge is Crl. Appeal Nos. 2833 & 2963 of 2008 39 2025:KER:61480 confirmed with direction to the accused to surrender before the trial court forthwith to undergo the sentence. The order suspending sentence and granting bail to the accused stands cancelled, and his bail bond also cancelled.
The Registry is directed to forward a copy of this order to the special court forthwith for imposing the sentence without fail.
Sd/-
A.BADHARUDEEN, JUDGE
RMV