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2011 DIGILAW 50 (CAL)

M/s Ragasumum Constructors v. The State

2011-01-14

ASHOKE KUMAR DASADHIKARI

body2011
JUDGMENT :- Ashoke Kumar Dasadhikari, J. The petitioner M/s Ragasumum Constructors has filed this application under section 482 of the Criminal Procedure Code, 1973 for quashing the FIR No.879 of 2010 dated 23.11.2010 under section 420/468/471 of Indian Penal Code against the petitioner and GR Case No.3342 of 2010, Police Station Aberdeen pending against the petitioner before the Court of Chief Judicial Magistrate, Port Blair. The petitioner’s contention before this Hon’ble Court is that the petitioner is a registered partnership firm doing building construction work under Andaman Public Works Department in Andaman and Nicobar Islands and the said firm is doing civil work for the last several years. The petitioner firm got registered under the General Manager, District Industries Centre, Port Blair under the manufacturing sector and having a valid Entrepreneur’s Memorandum bearing No.350011100087 on 24.10.2008, in short, EM-II and the Firm name stands M/s Ragasumum Constructors-II. The second firm M/s Ragasumum Constructors _I got separately registered on 10th February, 2010 with registration No. 350012200310. The service rendered by the second firm is as follows: (i) General construction work for building (ii) Civil construction work for civil engineering The said second firm M/s Ragasumum Constructors (I) made three applications dated 17th March, 2010, 8th April, 2010 and again on 8th April, 2010 before the General Manager, District Industries Centre, Port Blair informing therein that they intend to set up Asphalit and Concrete Batching Plant at Brookshabad, Port Blair and they have procured machineries from different companies of mainland and the description of the machineries mentioned in the said three letters are as follows: 1. Greaves Heavy Tandem Roller 2. Appollo “Model:DM-45 Stationery Drum Mix Type Asphalt Plant of Rated Capacity 40-60 TPH Consisting of : Thermodrum Unit, PN-10 Four Bin Feeder with Loadout & Slinger Conveyor, 15 MT Bitumen Tank – U Shape, Vibrating Screen, 2000 Ltr. Fuel Tank, Mineral Filler, Control Cabin with Control Panel and other Accessories. 3. AP-550 Hydrostatic Sensor Paver 4. Bitumen Pressure Distributor Module. 5. Appollo Make Transit Mixer 4 cum capacity Model ATM 4 suitable for fitted on 16 Tonne Chasis. 6. Appollo make Stationery Concrete Batchnig Plant with 0.35 cum pan mixer and 20 cum/hr output Model ATP-20. The said Ragasumum Constructors –I requested the said General Manager to recommend the Secretary, Municipal Council to give Octroi exemption. Bitumen Pressure Distributor Module. 5. Appollo Make Transit Mixer 4 cum capacity Model ATM 4 suitable for fitted on 16 Tonne Chasis. 6. Appollo make Stationery Concrete Batchnig Plant with 0.35 cum pan mixer and 20 cum/hr output Model ATP-20. The said Ragasumum Constructors –I requested the said General Manager to recommend the Secretary, Municipal Council to give Octroi exemption. Thereafter, on 27th March, 2010 and 21st April, 2010, the Revenue Officer, Municipal Council, Port Blair gave exemption of Octroi under clause 3 (iii) (f) of the Port Blair Municipal Council, Octroi Tax Bye-Laws, 1999. The Revenue Officer, Municipal Council by his letters dated 27th March, 2010 and 21st April, 2010 informed the Chief Executive, Ragasumum Constructors, Civil Engineer, Port Blair that payment of Octroi tax is exempted as regards the aforementioned machines for the use in the unit under registration No.350012200310 dated 10th February, 2010 i.e. the second firm being Ragasumum Constructors (I). On the basis of such exemption given by the Municipal Council, all the machineries of the petitioner were released and it was contended by the petitioner that those machineries were installed at the site. The petitioner states further that in the month of September, 2010 the petitioner received a demand notice dated 7th September, 2010 from the Office of the Secretary, Port Blair Municipal Council wherein the office of the Secretary, Port Blair Municipal Council made false allegation of tampering of documents and therefore, directed the petitioner to deposit penalty amount of Octroi tax of Rs. 44 lakhs for violating the Municipal Council’s Octroi Tax by laws 1999. After receiving the said demand notice, the petitioner written a reply to the said letter to the Secretary, Port Blair Municipal Council wherein clearly mentioned about the registration of manufacturing sector and service section of the petitioner under the General Manager, District Industries Centre, Port Blair and again on 12.10.2010, the petitioner received the demand notice whereby the petitioner was directed to deposit the said penalty amount of Rs.44.00 lakhs to the Office of the Secretary, Port Blair Municipal Council, Port Blair. The petitioner also stated in their reply that as per the Port Blair Municipal Council, the Octori Tax byelaws under Section 3(iii) (g) machineries and spares imported for installation or expansion of industries outside municipal area are exempted from the levy of octroi/terminal tax. The petitioner also stated in their reply that as per the Port Blair Municipal Council, the Octori Tax byelaws under Section 3(iii) (g) machineries and spares imported for installation or expansion of industries outside municipal area are exempted from the levy of octroi/terminal tax. Thereafter on 23.11.2010, an FIR No. 879 of 2010 was made under sections 420/468/471 of the Indian Penal Code against the petitioner on the basis of the written complaint of the Revenue Officer, Port Blair Municipal Council at Police Station, Aberdeen. The petitioner further contended that without any ingredients the respondent has initiated the instant FIR without any substance on the basis of false written complaint by the Revenue Officer, Port Blair Municipal Council, Port Blair and the petitioner denied the charge of tampering the documents. The petitioner thereafter moved a writ application against the demand notice and the Single Judge of this Court passed an interim order in terms of prayer (f) to the writ petition on 14.12.2010. It was stated by the petitioner that the Hon’ble court stayed the impugned demand notice dated 07.09.2010 and all subsequent orders till 8th January, 2011 and the said writ petition is still pending before the Hon’ble High Court. Mr.Mandal, learned counsel for the respondents, on the other hand, contended that the machineries purchased by the petitioner is for business purpose and the complaint lodged by the concerned authority on the face of it discloses cognizable offence and, therefore, there is no scope for quashing the said FIR and further, submitted that the investigation is continuing and under no circumstances, the said FIR and the GR case No.3342 of 2010, Police Station Aberdeen could be quashed. I have gone through the materials available in the records and I find that the first one is M/s Ragasumum Constructors-II got registration No.350011100087 and the date of such registration is 24.10.2008 and the type of service rendered by it is (1) Fabricated Structures/Plants -Constructions – 2400 Tonnes and (2) Fabrication- 200 Tonnes. The second one which is M/s Ragasumum Constructors (EM-I) is registered with the registration No.350012200310 and the date of such registration is 10th February, 2010 and the type of service to be rendered is – (1) General Construction Work for building and (2) Civil Construction work for Civil Engineering. The second one which is M/s Ragasumum Constructors (EM-I) is registered with the registration No.350012200310 and the date of such registration is 10th February, 2010 and the type of service to be rendered is – (1) General Construction Work for building and (2) Civil Construction work for Civil Engineering. It appears from the records that the application for exemption of Octroi tax, in respect of machineries purchased, was made by the M/s Ragasumum Constructors-I and three applications are there which are at annexure P-6 collectively pages, 40, 41, 42 of the petition and on the basis of such prayer for octroi tax exemption was granted to the said M/s Ragasumum Constructors-I (2nd firm) in terms of clause 3 (iii) (f) of the Port Blair Municipal Council Octroi Tax Byelaws, 1999 and such exemption was granted by two letters issued by the Revenue Officer, Municipal Council dated 27th March, 2010 and 21st April, 2010. Those two exemption letters are at pages 43 and 44 collectively in Annexure P-7. It is pertinent to mention here that the exemption was granted under clause 3 (iii) (f) and not caluse 3(iii) (g) as claimed by the petitioner in the petition. It also appears from the records that the FIR lodged by the Revenue Officer, Municipal Council reads as follows: “To The Station House Officer, Aberdeen Police Station, Port Blair. Sub:- To lodge FIR against the Chief Executive, M/s Ragasumum Constructors, Port Blair. Sir, I am to inform that vide letter No.RSC/09-10/PBMC/20 dated 15/4/2010, the Chief Executive, Ragasumum Constructors, intimated that the said firm a Registered SSI Unit with EM 350012200310 have procured the following machineries for expansion of the said unit and requested the Council to exempt from payment of octroi tax on the said machineries. The Chief Executive, M/s Ragasumum Constructors had also submitted copies of letter No.3/11-40/IND/DIC/Vol.IV/250 dated 13/4/2010 issued by the General Manager/Joint Secretary, District Industries Centre, A & N Administration to consider octroi exemption. Also enclosure Vs Registration Certificate issued by the District Industries Centre stating that the said SSI Unit has been allowed to carry out the following activities. 1. General Construction Work for Building 2. Civil Construction work for Civil Engineering SI.No. Description of machineries Value of machineries 1. Concrete batching Plaint ATP -20 PN Apollo Make Concrete Batching Plant 17,00,000.00 2. Appollo Transit Mixer Model No. ATM- 4 Machine No.41110310000-2 (2 nos.) 14,00,000.00 3. 1. General Construction Work for Building 2. Civil Construction work for Civil Engineering SI.No. Description of machineries Value of machineries 1. Concrete batching Plaint ATP -20 PN Apollo Make Concrete Batching Plant 17,00,000.00 2. Appollo Transit Mixer Model No. ATM- 4 Machine No.41110310000-2 (2 nos.) 14,00,000.00 3. Appollo Model DM -45 Stationery Drum Types 28,00,000.00 4. Paver-550 34,00,000.00 Considering the above documents submitted by the Chief Executive, M/s Ragasumum Constructors, payment of octroi tax on the aforesaid machineries was exempted in terms of bye-laws no.3 (iii) (f) of Municipal Council Octroi Tax Bye-Laws, 1999, vide Council’s letter No.30-185 Tax/MC/Oct/835 dated 21/4/2010. On receipt of a complaint, the matter was verified and it has been noticed that there are two firms (a) M/s Ragasumum Constructors with E.M.No.350011100087 and (b) M/s Ragasumum Constructors–(I) with E.M.No.350012200310. M/s Ragasumum Constructors is a fabrication unit whereas M/s Ragasumum Constructors–I is a civil construction unit. The aforesaid machineries were purchased in the name of M/s Ragasumum Constructors–I having E.M.No.350012200310 and not in the name of M/s Ragasumum Constructors, whereas the Chief Executive, M/s Ragasumum Constructors had submitted tampered and fabricated SSI Registration Certificate to PBMC ie. In the name of M/s Ragasumum Constructors after erasing the roman no.I, On the other hand the bills of the aforesaid machineries were produced before District Industries Centre in the name M/s Ragasumum Constructors-I for recommending to PBMC for grant of octroi exemption whereas the same bills were tampered as M/s Ragasumum Constructors and then submitted to PBMC. Vide letter No.no.3/11-40/IND/Vol.IV/250 dated 13/04/2010 the Industries Department had recommended to grant exemption in favour of M/s Ragasumum Constructors after erasing Roman No.I. It is crystal clear from the letter issued by the General Manager, District Industries Centre that they had recommended to grant octroi exemption to M/s Ragasumum Constructors-I (EM-Part-I) and not to M/s Ragasumum Constructors, which has been granted EM-Part-II. (copies are enclosed herewith). It is evident from the above that the Chief Executive M/s Ragasumum Constructors has cheated the Council by producing tampered and fabricated documents. The Inquiry Report dated 16.07.2010 conducted by the Revenue Officer, PBMC, is enclosed her with. I, therefore, request you to lodge an FIR against M/s Ragasumum Constructors, Port Blair and initiate appropriate action under the law against the culprits. The Inquiry Report dated 16.07.2010 conducted by the Revenue Officer, PBMC, is enclosed her with. I, therefore, request you to lodge an FIR against M/s Ragasumum Constructors, Port Blair and initiate appropriate action under the law against the culprits. Yours faithfully Sd/- Revenue Officer Municipal Council” Further the enquiry report dated 16th July, 2010 reads as follows:- “File No.30-185/Oct/MC/Tax OFFICE OF THE MUNICIPAL COUNCIL PORT BLAIR Dated 16 July, 2010 Enquiry Report Vide Office note no.MC/SECY/PA/1/2009-10/1518 dated 17/6/2010, the undersigned have been directed by the Secretary, PBMC to (a) examine the letter dated 14/6/2010 given by Sudeep Rai Sharma with a view to finding out the loss caused to PBMC and action to be taken against the firm in this regard and, (b) find out as to on what basis exemption were granted to firm when letters issued to the NGOs, do not mention the name of any firm and whether exemptions were granted to more than one firm against any single letter of AC(HQ) as possibility of their misuse, in such circumstances, cannot be ruled out. The letter dated 14/6/2006 given by Shri Sudeep Rai Sharma was examined and as per the documents therein, there are two firms (a) M/s Ragasumum Constructors with E.M.No.350011100087 (b) M/s Ragasumum Constructors-(I) with E.M.No.350012200310. M/s Ragasumum Constructors is a fabrication unit whereas M/s Ragasumum Constructors-I is a civil construction unit. Vide letter no.RSC/09-10/PBMC/20 dated 15/4/2010, the Chief Executive, Ragasumum Constructors, intimated that the said firm is Registered SSI Unit with EM 350012200310 have procured the following machineries for expansion of the said unit and requested the Council to exempt them payment of octroi tax on the said machineries. The Chief Executive, M/s Ragasumum Constructors had also submitted copies of letter No.3/11-40/IND/DIC/Vol.IV/250 dated 13/4/2010 issued by the General Mnager/Joint Secretary, District Industries Centre, A & N Administration and Registration Certificate issued by the District Industries Centre. As per the Registration Certificate mentioned above the said SSI Unit has been allowed to carry out the following activities. 1. General Construction Work for Building. 2. Civil Construction work for Civil Enginering. Considering the above documents submitted by the Chief Executive, M/s Ragasumum Constructors, payment of Octroi tax on the aforesaid machineries was exempted in terms bye-laws no.3 (iii) (f) of Municipal Council Octroi Tax Bye-laws 1999, vide Councils letter No.30-185 Tax/MC/Oct/835 dated 21/4/2010. 1. General Construction Work for Building. 2. Civil Construction work for Civil Enginering. Considering the above documents submitted by the Chief Executive, M/s Ragasumum Constructors, payment of Octroi tax on the aforesaid machineries was exempted in terms bye-laws no.3 (iii) (f) of Municipal Council Octroi Tax Bye-laws 1999, vide Councils letter No.30-185 Tax/MC/Oct/835 dated 21/4/2010. But, on perusal of records produced by Shri Sudeep Rai Sharma Councillor, it has been noticed that the aforesaid machineries were purchased in the name of M/s Ragasumum Constructors-I having E.M.No.350012200310 and not in the name of M/s Ragasumum Constructors, whereas the Chief Executive, M/s Ragasumum Constructors had submitted tampered and fabricated SSI Registration Certificate to PBMC. On the other hand the bills of the aforesaid machineries were produced before District Industries Centre in the name M/s Ragasumum Constructors-I for recommending to PBMC for grant of octroi exemption. Though the Industries Department recommended to grant exemption in favour of M/s Ragasumum Constructors-I, the said letter was also tampered as M/s Ragasumum Constructors and then submitted to the Council. It is evident from the above that the Chief Executive, M/s Ragasumum Constructors has cheated the Council by producing tampered and fabricated documents which attracts penal action as prescribed in the bye-laws no.16 of the Port Blair Municipal Council Octroi Tax Bye-laws 1999, which is brought out below: SI.No. Description of machineries Value of machineries 1. Concrete batching Plaint ATP -20 PN Apollo Make Concrete Batching Plant 17,00,000.00 2. Appollo Transit Mixer Model No.ATM- 4 Machine No.41110310000-2 (2 nos.) 14,00,000.00 3. Appollo Model DM -45 Stationery Drum Types 28,00,000.00 4. Paver-550 34,00,000.00 16. Penalty for evasioin of Octroi. Concrete batching Plaint ATP -20 PN Apollo Make Concrete Batching Plant 17,00,000.00 2. Appollo Transit Mixer Model No.ATM- 4 Machine No.41110310000-2 (2 nos.) 14,00,000.00 3. Appollo Model DM -45 Stationery Drum Types 28,00,000.00 4. Paver-550 34,00,000.00 16. Penalty for evasioin of Octroi. “If good passing the Octroi or terminal tax boundary of a Municipal area are liable to the payment of octroi or terminal tax, then every person who, with intention to defraud the Municipality, introduces or attempts to introduce within the said octroi or terminal tax boundary any such goods upon which payment of the octroi or terminal tax due on such introduction has neither been made nor tendered, or causes or abats such introduction, shall be punishable with fine which may extent to ten times the value of such Octroi or terminal tax, subject to a minimum of Rs.50/-“ The cost of the machineries and octroi admissible thereon are given below: Penalty = Rs.4,40,000 x 10 = 44,00,000/- (Rupees forty four lakh only) As regards report called for by the Secretary at “b” is concerned it is submitted that vide office order no.716 dated 12.07.2009 (letter no.7-1/LS/2006 dated 12/7/2007) the Assistant Commissioner (HQ) had recommended to exempt payment of octroi tax on the following 12 items which were imported by an NGO, ACANI from Calcutta into Port Blair for Tsunami related works. On enquiry Shri Ramesh Lall, Tax Inspector, Shri Ramalingam, Tax Inspector, Shri Venkat Raman, Tax Collector, Shri Sammad Ali, Tax Collector and Shri Shekar, Tax Collector informed that all the said goods were unloaded at Haddo Wharf and on the basis of recommendation order issued by the AC (H), payment of octroi was exempted by the then Tax Inspector attached to Haddo Wharf. But, the said materials were removed from Haddo Wharf by M/s Ragasumum Constructors on behalf NGO “ACANI”. The copies of bills of landing are placed at ‘A’, ‘B’, ‘C’ ‘D’ and ‘E’. SI.No. Description of machineries Value of machineries Octroi Tax 1. Concrete batching Plaint ATP -20 PN Apollo Make Concrete Batching Plant 17,00,000.00 68,000.00 @4% 2. Appollo Transit Mixer Model No.ATM-4 Machine No.41110310000-2 (2 nos.) 14,00,000.00 56,000.00 @4% 3. Appollo Model DM -45 Stationery Drum Types 28,00,000.00 1,12,000.00 @4% 4. Paver-550 34,00,000.00 2,04,000.00 @6% Total 4,40,000.00 S.No. Description Quantity 1. G.C.Sheets (8’) 150 Pcs 2.745 MT 2. G.C.Sheets (10’) 150 Pcs 3.435 MT 3. G.C.Sheets (8’) 150 Pcs 2.745 MT 4. Appollo Transit Mixer Model No.ATM-4 Machine No.41110310000-2 (2 nos.) 14,00,000.00 56,000.00 @4% 3. Appollo Model DM -45 Stationery Drum Types 28,00,000.00 1,12,000.00 @4% 4. Paver-550 34,00,000.00 2,04,000.00 @6% Total 4,40,000.00 S.No. Description Quantity 1. G.C.Sheets (8’) 150 Pcs 2.745 MT 2. G.C.Sheets (10’) 150 Pcs 3.435 MT 3. G.C.Sheets (8’) 150 Pcs 2.745 MT 4. G.C.Sheets (10’) 150 Pcs 3.435 MT 5. G.C.Sheets (8’) 150 Pcs 1.552 MT 6. G.C.Sheets (8’) 328 Pcs 7. G.C.Sheets (8’) 580 Pcs 8. Paints 45 kgs 1900 kg. 9. G.C.Sheets (8’) 352 Pcs 6.442 MT 10. G.C.Sheets (8’) 272 Pcs 4.978 MT 11. Nuts and Bolts 40 bags 2000 Kg 12. Malaysian Sawn Timber 1708 Pcs 12.30 MT Conclusion (a) Since the Chief Executive,M/s Ragasumum Constructors has cheated the Council by producing tampered and fabricated documents penalty amounting to Rs.4,40,000 x 10 = 44,00,000/- (Rupees forty four lakh only) may be imposed on the Chief Executive, Ragasumum Constructors. (b) The Tax Inspector, PBMC, acted as per the order No.716 dated 12.07.2007 issued by the Assistant Commissiner (HQ). Sd/- Gopalakrishnan Revenue Officer” From the copy of the FIR, it is clear that the M/s Ragasumum Contractors (I) and M/s Ragasumum Constructors(II) are two different firms and the said M/s Ragasumum Constructors (I) obtained exemption under Clause 3(iii (f) which reads as follows: “3. A tax in the nature of Octroi or Terminal Tax shall be levied on goods brought in to the Municipal area and sent out from the Municipal area as mentioned below: (iii) The following goods and articles shall be exempted from the levy of Octroi/Terminal tax. (f) Machineries and spare parts imported by registered SSI Units located within Municipal limit for a period of five years.” The allegations as mentioned in the FIR show that the letter was sent to the Council in the name of M/s Ragasumum Constructors after erasing [I]. (f) Machineries and spare parts imported by registered SSI Units located within Municipal limit for a period of five years.” The allegations as mentioned in the FIR show that the letter was sent to the Council in the name of M/s Ragasumum Constructors after erasing [I]. It further appears that the petitioner had submitted the tampered and fabricated SSI Registration Certificate in the name of M/s Ragasumum Constructors after erasing Roman[I] and further bills of the aforesaid machineries were produced before the District Industries Centre in the name of Ragasumum Constructors –I for recommendation to Port Blair Municipal Council for grant of Octroi exemption whereas the same bills were tampered as M/s Ragasumum Constructors erasing [I] and then submitted to the said council vide letter No.3/11-40/IND/DIC/Vol-IV/250 dated 13.04.2010 and it was alleged that it is evident from the facts stated above, Chief Executive of the M/s Ragasumum Constructors has cheated the council by producing tempered and fabricated documents and enquiry report dated 16.07.2010 conducted by the Revenue Officer was enclosed with the said FIR and the request was made to lodge and FIR against M/s Ragasumum Constructors, Port Blair and to initiate appropriate action under the law against the said firm. It appears that the FIR lodged if taken in its entirety do constitute a cognizable offence for which admittedly seven years imprisonment is prescribed. It is the settled principles of law that section 482 of the Criminal Procedure Code, 1973 is to exercise to prevent the abuse of process of court and the Hon’ble Apex Court have cautioned that the High Court is required to exercise its inherent powers sparingly, carefully and cautiously and it was emphasized that although the jurisdiction of High Court is very wide but it is not unbridled and the High Court is required to exercise its inherent powers under section 482 of the Code sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice and to prevent abuse of the process of court and the Supreme Court had clearly held that one of the situation when the High Court would be justified in invoking its powers is where the allegations in the first information report or the complaint, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged. The judgment cited by the learned counsel for the petitioner in the case of Asoke Basak –vs- State of Maharashtra and others reported in [2010] 10 SCC 660 paragraph 16 clearly stated that the scope and ambit of jurisdiction of High Court under section 482 of the Code. In my opinion, the FIR, if taken, at their face value and accepted in their entirety do constitute the offence alleged and in my opinion, there is no scope for exercising of the inherent powers under section 482 of the Criminal Procedure Code and, therefore, this petition for quashing the FIR and the GR case should be rejected and, accordingly, the said petition is dismissed.