‘Wilful evasion of tax, liquor scam, bribes & illegal commissions’: Delhi HC stays Magistrate’s order returning complaint registered against IPS officer and other accused for commission of offences under Income Tax Act & IPC
Justice Tushar Rao Gedela [08-01-2024]

Read Order:  INCOME TAX OFFICE v. ANIL TUTEJA & ORS [DEL HC- CRL.M.C.2757/2023]

Tulip Kanth

New Delhi, January 24, 2024:  The Delhi High Court has passed an order restraining the operation of the impugned order of the ACMM returning the complaint qua the offences registered under Income Tax Act, 1961 and Indian Penal Code against IPS Officer Anil Tuteja and other accused persons. It was alleged in this case that for the assessment year 2020-21, the accused persons were engaged in the movement of unaccounted cash through different channels in sectors such as agriculture, mining, liquor trade and licensing in the state of Chhattisgarh.

The brief facts culled from the impugned order were that a complaint u/s 200 Cr.P.C was made by Income Tax Office alleging commission of offence punishable u/s 276C(1)/277/278 read with Section 278B/278E of The Income Tax Act, 1961 (The Act) and section 120B/191/199/200/204 of Indian Penal Code, 1860 (IPC).

The accusation against accused persons was that Anil Tuteja (accused No. 1), a promotee IAS officer in the state of Chattisgarh was engaged in movement of unaccounted cash through different channels with regard to sectors such as agriculture, mining, liquor trade and licensing in the state of Chhattisgarh. His son Yash Tuteja (accused no. 2) and Saumya Chaurasia (accused no. 3) Deputy Secretary of Chief Minister of Chhattisgarh were his accomplices who were actively engaged and involved in aforementioned illegal operations. Numerous whatsapp chats between them were cited by the complainant to show that they discussed matters like payment of bribe and for settlement of corruption case etc. Investigation revealed that the amounts paid by representatives of companies empanelled with agricultural department as approved rate contractors were neither paid to government nor for any lawful purpose. Accused no. 8 Mandeep Chawla allegedly sought favours for various mining works and contracts from accused no. 1 and 3.

Analysis of whatsapp chats of accused no. 1 and an IFS officer Anil Rai (Secretary PWD, Chhattisgarh) disclosed about payment of money from IFS officer to accused no. 4. The accused no. 4 allegedly collected bribes from traders at behest of accused no. 1 and 3.  Bank account numbers were shared by accused no. 7 with accused no. 2 which was followed by transfer of money into the bank accounts of different companies. It was also exposed during investigation that bogus companies made investments in accused no. 9 in the FY 2009-10 at very high valuation.

Accused no. 10 Saurabh Jain and accused no. 11 Vaibhav Saluja were then shareholders of accused no. 9. The bank account statement of accused no. 9 for FY 2009-10 showed that the entire transaction of issue of shares at premium was a sham transaction designed to park unaccounted money.  Search was conducted upon Minakshi Tuteja (w/o accused no. 10). Whatsapp chats showed that accused no. 3 wrote that her personal secretary Jay will give money to Chaitanya Baghel (S/o Chief Minister of Chhattisgarh).

A diary maintained by accused no. 3 was also recovered from her residence wherein various transactions done over the years were recorded about which no satisfactory replies were given by accused no. 3. Accused no. 6 Vikas Agarwal @ Subu Agarwal exchanged whatsapp messages with accused no. 4 regarding accounting of collection of bribes/commission from sale of liquor showing that he was also privy to and involved in illegal activity of raising and movement of unaccounted cash for accused no. 1. As per the complaint commission/bribes amounting to Rs. 14.41 crores went to accused no. 1 between 28.07.2019 to 20.12.2019.

The petitioner had approached the Delhi High Court by filing applications under Section 482 of the Code of Criminal Procedure, 1973 for stay of operation of the impugned part of the order dated 06.04.2023 passed by the ACMM (Special Acts), Central District, Tis Hazari Courts, Delhi. The ACMM had held that the jurisdiction with regard to the offences was either at Kolkata or at Raipur or Bhilai or at other places of Chhattisgarh where the conspiracy was put into effect by accused persons. The complaint with regard to these offences qua all the accused persons was returned in original and it was held that the complainant may present the same before the court of competent jurisdiction.

Referring to the judgments in Chandra Deo Singh v. Prokash Chandra [LQ/SC/1963/11] ; Nagawaa v. V.S. Konjalgi [LQ/SC/1976/191] ; Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel [LQ/SC/2012/876] ; Meenakshi Jain v. State; Adalat Prasad v. Rooplal Jindal, [LQ/SC/2004/726], the Bench observed that so far as an accused person is concerned, till the stage when the accused has been summoned by the Criminal Courts, he has no locus to interject or interfere with the proceedings before a Magistrate.

The Bench was of the opinion that the ACMM had committed a grave illegality and irregularity of procedure by not only entertaining the application but also hearing detailed arguments on behalf of the proposed accused person, admittedly at a stage when cognizance was yet to be taken. Though the ACMM appeared to have applied his mind, however, it appeared to the Bench that he had been misdirected to reach definitive conclusions on issues like territorial jurisdiction and conspiracy, which could not have been reached without there being evidence on such aspects.

The High Court was of the firm opinion that the respondents had no locus to either file an application or raise any objections qua territorial jurisdiction, conspiracy or bias etc. at the pre-cognizance stage. Equally, the Magistrate had, by entertaining the said application and retaining the arguments on such objections and considering the same vide the impugned order, acted with material irregularity necessitating entertaining of the present petition under section 482 Cr.P.C.

“In the present case, the learned ACMM appears to have committed the error of precisely reaching a definitive conclusion regarding conspiracy”, the Bench further noted while adding that the ACMM had yet again misdirected itself into believing as to where, in the first place, the conspiracy was hatched, where, when and how it blossomed and as to whether the alleged conspiracy concluded or not in Delhi and reached the definitive conclusion that the said alleged conspiracy had indeed not hatched in Delhi.

Moreover, the Magistrate had also definitively concluded that the conspiracy had indeed ended in Chattisgarh and no part of the said conspiracy continued till Delhi. This conclusion, as per the Bench, could not and ought not to have been reached by the ACMM, particularly at the stage where cognizance of the offences was to be taken.

“In case such an order is made to stand, then at the stage of taking cognizance, the accused by mere arguments would get an opportunity to show that no such conspiracy was hatched, that too without any evidence. This would be contrary not only to the aforesaid judgement in Mahua Moitra (supra) but also against all cannons of law and procedure. It is trite that conspiracy is an issue of fact which can be proved or disproved only during trial”, the High Court opined while holding that the definitive conclusion reached by the Magistrate on the issue of alleged conspiracy was contrary to the law and prima facie unsustainable.

Thus, the Bench held that the operation of the impugned order dated 06.04.2023 passed by the ACMM to the extent of return of complaint qua the offences under Section 276C(1)/278 read with Section 278B/278E of the Income Tax Act, 1961 and Sections 120B/199/200/204 of the Indian Penal Code, 1860 would be restrained till further orders.