BHAGIRATH ARVINDKUMAR DAVE Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) This appeal has been filed by the appellants under Sec. 374 of Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Special Judge, CBI, Court No. 4, Ahmedabad (hereinafter referred to as "the learned Trial Court") in Special CBI Case No. 25 of 2004 on 16/3/2012, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Sec. 120B of Indian Penal Code read with Ss. 7, 13(1)(d) and 13(2) of The Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act").

(2.) The brief facts that emerge from the record of the case are as under:

(3.) Being aggrieved and dissatisfied with the said impugned judgement and order of conviction, the appellant has filed the present appeal mainly stating that the learned Trial Court has committed a serious error in facts and law in convicting the appellant and the judgement is based on surmises and conjunctures and there is no evidence on record to establish the essential ingredients of the offences. That the learned Trial Court has not appreciated the documentary evidence produced on record; as also the oral evidence and has committed a grave error of law in convicting the appellant despite the fact that at no point of time, the appellant had ever demanded or accepted the bribe amount of Rs.20,000.00 and the trap money was not recovered from the possession of the present appellant. That all the ingredients of demand, acceptance and recovery of the illegal gratification were against the original accused no. 1 - late Gautambhai Maganlal Solanki and there is evidence on record that the Tax Evasion Petition was pending before the accused no. 1 - late Gautambhai Maganlal Solanki. That the meeting regarding the demand was between the complainant and late Gautambhai Maganlal Solanki and it is also on record that the complainant - Harishankar Kalyandas Agrawal had himself approached late Gautambhai Maganlal Solanki and he was an interested witness and there was no corroboration to his version of demand. That the oral evidence produced by the prosecution is highly inconsistent with the documentary evidence and it is admitted that the complainant - Harishankar Kalyandas Agrawal was of a bad character and the ACB Department had registered a case against him under Sec. 13(1)(e) of the PC Act and just to come out of the case, he had created documents indicating that he had divorced his wife, when in fact, they were staying together. That the complainant is highly untrustworthy and not reliable and the learned Trial Court ought to have considered that his oral evidence was not reliable. That in fact, the complainant had falsely implicated the appellant as the appellant had issued a notice to the complainant - Harishankar Kalyandas Agrawal who was a defaulter. That the notice was issued as a part of the routine office work of the appellant and it had nothing to do with the Tax Evasion Petition which was pending before late Gautambhai Maganlal Solanki. That the notice dtd. 2/4/2003 which was issued by the appellant under Sec. 274 read with Sec. 271F of the Income Tax Act had to be imposed with penalty up to Rs.5,000.00 and in fact, the penalty proceedings that were initiated by the appellant were dropped by Gautambhai Maganlal Solanki in the month of June 2003 itself. That the learned Trial Court has not considered that the complainant - Harishankar Kalyandas Agrawal has suppressed vital and important facts and has filed the complain with full animosity with an intention of maligning the present appellant. That in fact, the conversation that was recorded on microcassettes, as per the say of the prosecution, were transferred to regular cassettes without the permission of the Court and the small device which was used for recording has never been made part of the evidence. That the prosecution has not examined important witnesses such as Deputy Superintendent of Police - Jagruk Gusinha and panch witness - Gaurang B. Anand and the learned Trial Court ought to have made an adverse inference about the same. That even the Officer of the Forensic Science Laboratory who had analyzed the voices, has not been examined and if the evidence of PW4 - Bhartender Sharma is perused, in the examination-in-chief, the witness has stated that there was a joint demand of bribe of Rs.60,000.00 by deceased accused - Gautambhai Maganlal Solanki and the present appellant but this fact has not been stated by any of the witnesses. That the peon of the deceased accused - Gautambhai Maganlal Solanki was an important witness but he has not been examined by the prosecution before the learned Trial Court and it is on record that no incriminating articles were found from the custody of the present appellant, as also no tainted currency notes were recovered from the present appellant. That even the authority who has given the sanction - PW5 - Dayashankar S. Rastogi has stated that the Tax Evasion Petition File was pending with deceased accused - Gautambhai Maganlal Solanki and before giving the order of sanction for prosecution, the Credance Report of the present appellant has not been seen. That the authority who had given the sanction was neither the appointing authority nor the authority to remove the appellant from service. That if the deposition of the Investigating Officer - PW6 - Rajesh Ratanlal Bisnoi is perused, he has stated that the site map produced at Exh. 30 does not describe the presence of the accused no. 2 in the sketch and the learned Trial Court ought to have conclude that at the time of the incident, the appellant was not physically present. That the learned Trial Court has erred in wrongly appreciating the evidence on record and has wrongly concluded that the appellant was acting as a mediator, when in fact, at no point of time, any demand was made by the appellant from the complainant. That the complainant has misused the CBI Machinery and has concocted a false story and has falsely implicated the appellant and the learned Trial Court ought to have considered that the appellant was not the competent authority to close the Tax Evasion Petition proceedings of the complainant. That the appellant during the course of trial has led evidence and has successfully proved his defence by leading cogent and convincing evidence and has also produced important documents at Exhs. 72 to 79 which were not seized by the Investigating Officer during the investigation and hence, the learned Trial Court ought to have drawn an adverse inference against the prosecution. That the learned Trial Court has committed a serious error of law in not appreciating the evidence according to the well established principles of criminal jurisprudence which has caused the failure of justice. That the demand of illegal gratification, the acceptance and recovery of the tainted currency notes are not proved by the prosecution beyond reasonable doubts and the learned Trial Court has not considered the evidence in proper perspective. Moreover, the learned Trial Court has also not considered that for a criminal conspiracy, two or more persons are required to be tried together and unfortunately as the accused no. 1 - Gautambhai Maganlal Solanki has expired during trial and the proceedings against him stood abated, the present appellant could not be convicted for the offence of criminal conspiracy and hence, the judgement and order passed by the learned Trial Court must be quashed and set and set aside and the appellant must be acquitted for the said offence.