Point of law :Prevention of corruption - If a public servant, acting as a quasi judicial authority under a statute, passes an order and if such order is in favour of a person other than the Government, any pecuniary advantage obtained by such person by virtue of such order, cannot be the basis for prosecution of the public servant under the PC Act, unless there is allegation that the public servant was actuated by extraneous considerations or oblique motives in passing the order.

ORDER :

1. Whether an Assistant Commissioner of the Sales Tax Department, who passes an order of assessment of tax under the Kerala Value Added Tax Act, 2003 (for short ‘the KVAT Act’) is entitled to get the protection envisaged under the Judges (Protection) Act, 1985? Answer to this question would decide the fate of this application filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Code’).

2. The petitioner was the Assistant Commissioner (Assessment), Commercial Taxes, Thrissur. He is the first accused in the case C.C. No. 6/2020 on the file of the Court of the Enquiry Commissioner and Special Judge, Thrissur. The second accused in the case was the Managing Director of the company by name M/s. Nano Excel Enterprises Private Limited. The third accused in the case is the Sales Tax Practitioner who had allegedly acted as a mediator between the first and the second accused. The offences alleged against the accused in the case are punishable under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the PC Act’) and also under Sections 465, 468, 471 and 120B of the Indian Penal Code.

3. As per a letter dated 25.06.2011, the Commissioner of Commercial Taxes informed the Director, Vigilance and Anti-Corruption Bureau (VACB) that the officers of the Commercial Tax Department at Thrissur had obtained bribe and assisted the company M/s. Nano Excel Enterprises to evade sales tax during the period 2010-2011. The Director, VACB ordered to conduct a vigilance enquiry regarding the above allegations. On the basis of the findings made in the vigilance enquiry, the Director, VACB ordered to register two cases, one against the petitioner and another case against one Jayananda Kumar, who was also then the Assistant Commissioner of Commercial Taxes at Thrissur. Accordingly, a case was registered against the petitioner as VC/09/13/TSR. After completing the investigation, the Deputy Superintendent of Police, VACB, Thrissur filed Annexure-A2 charge-sheet against the petitioner and the other accused for committing the offences mentioned earlier.

4. The crux of the allegations in the final report filed against the petitioner is as follows:

The petitioner, who was the assessing authority, deliberately omitted to verify the assessment files, audited statement of accounts, revised returns and other records including bank accounts relating to M/s. Nano Excel Enterprises for the years 2008-09 and 2009-10. He ignored the suppression of turn over made by M/s. Nano Excel Enterprises and without following the statutory provisions and in violation of the written directions given by the Deputy Commissioner, Commercial Taxes, passed an order dated 04.05.2011 for refunding an amount of Rs. 48,20,606/- to the above company as excess tax remitted by the company for the year 2009-10. He also passed an order dated 31.05.2011 for refunding an amount of Rs. 1,98,000/- as excess amount of tax remitted by the above company for the year 2008-09. As a result, the Government sustained a loss of Rs. 50,18,606/- (Rs. 48,20,606 + 1,98,000). The aforesaid orders were passed and refund of amount was made by the petitioner pursuant to a conspiracy hatched between him and the other accused.

5. The petitioner has filed this application under Section 482 of the Code for quashing the final report filed against him by the VACB.

6. The investigating officer has filed a statement narrating the allegations against the petitioner and the other accused in the case.

7. Heard learned counsel for the petitioner and also the learned Public Prosecutor.

8. Learned counsel for the petitioner has challenged Annexure-A2 final report filed against the petitioner mainly on the following two grounds:

(1) The prosecution against the petitioner is based on acts done or committed by him in good faith in discharge of his duties under the KVAT Act and therefore, he is entitled to get the protection under Section 79 of the KVAT Act.

(2) The prosecution ag