Madhya Pradesh High Court
Vaibhav Chauhan vs Union Of India on 4 May, 2023
Author: Nandita Dubey
Bench: Nandita Dubey
CRIMINAL APPEAL NO.2073 of 2011
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE NANDITA DUBEY
CRIMINAL APPEAL NO. 2073 OF 2011
BETWEEN
VAIBHAV CHAUHAN, PRESENTLY AGED ABOUT
44 YEARS, S/O B.B.S. CHAUHAN, PRESENTLY
RESIDING AT RAILWAY BUNGALOW NO.TYPE-
V/24/1, BUNGALOW YARD, RAILWAY OFFICERS
COLONY, STATION ROAD, BILASPUR (CHHATTISGARH)
.....APPELLANT
AND
THE STATE OF M.P. THROUGH C.B.I.
JABALPUR
.....RESPONDENT
JUDGMENT
Post for : 4/05/2023 (NANDITA DUBEY) JUDGE CRIMINAL APPEAL NO.2073 of 2011 2 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SMT. JUSTICE NANDITA DUBEY CRIMINAL APPEAL NO. 2073 OF 2011 BETWEEN VAIBHAV CHAUHAN, PRESENTLY AGED ABOUT 44 YEARS, S/O B.B.S. CHAUHAN, PRESENTLY RESIDING AT RAILWAY BUNGALOW NO.TYPE-
V/24/1, BUNGALOW YARD, RAILWAY OFFICERS COLONY, STATION ROAD, BILASPUR (CHHATTISGARH) .....APPELLANT (BY MS. TANVI KHARE - ADVOCATE) AND THE STATE OF MADHYA PRADESH .....RESPONDENT (BY SHRI VIKRAM SINGH - ADVOCATE) Reserved on : 02.03.2023 Pronounced on : 04.05.2023 CRIMINAL APPEAL NO.2073 of 2011 3 This appeal having been heard and reserved for Judgment, coming on for pronouncement this day, the Court pronounced the following :
JUDGMENT This criminal appeal is directed against the judgment of conviction and sentence dated 3rd September, 2011 passed by Special Judge (CBI), Jabalpur in Special Case No.3/2008, whereby the appellant has been found guilty for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short "the Act") and convicted and sentenced R.I. for one year and fine of Rs.5,000/- and R.I. for two years and fine of Rs.5,000/-, respectively, with default stipulations.
2. As per the prosecution, complainant H.N.Raja (PW.7) was temporarily appointed on 25.03.2004 (Ex.P/15) as a substitute bungalow peon attached to Shri V.P. Raheja (PW.10), the then Controller of Store, West Central Railway, Jabalpur for a period of three years. He was eligible for screening for regular absorption as Group-D employee in the Railways on successful completion of three years period. In the meanwhile, Shri Raheja was transferred to Central Railway. As he was not willing to take the complainant to Mumbai, he asked that complainant be adjusted in WCR under the rules.
CRIMINAL APPEAL NO.2073 of 2011 4 The complainant was, however, terminated vide order dated 19.04.2007 (Ex.P/21), after payment of retrenchment compensation. According to complainant (PW.7), he was advised to meet Dy.CPO, pursuant to which he met the appellant on 03.06.2007 to get the termination order revoked and to get the job confirmed. It is alleged that the appellant on 04.06.2007 telephonically demanded illegal gratification of Rs. two lakh from the complainant, as a motive to bestow favour in the matter of making a favourable recommendation for withdrawing the termination order issued against the complainant from the post of bungalow peon and also to get his job confirmed. It has been further alleged that on 06.06.2007 the complainant informed the appellant about his inability to mobilize Rs. Two Lakh, the demand was then scaled down to Rs. One Lakh, out of which Rs.50,000/-was to be paid in advance by the afternoon of 08.06.2007 and the balance amount, as early as possible.
3. A complaint to that effect was lodged on 08.06.2007 to Shri R.K.Sinha (PW.11), Inspector (CBI), Jabalpur. A case was registered against the appellant under Section 7 of the Act, independent witnesses S.C.Saxena (PW.8) and Ajay Sancha (PW.9) were called to oversee the transaction and trap was immediately arranged on the same day. It is alleged that the CRIMINAL APPEAL NO.2073 of 2011 5 appellant was caught red handed by the officers of CBI at his residential premises in the presence of independent witness Satish Chandra Saxena (PW.8), Deputy Manager, State Bank of Indore, Jabalpur. The bribe amount of Rs.50,000/- wrapped in newspaper was recovered from the table drawer at the instance of the appellant upon his disclosure before the independent witness Satish Chandra Saxena (PW.8). Thereafter, appellant's fingers were dipped in the chemical compound prepared for this purpose, which turned pink. Confessional statement of the appellant was also recorded. After completion of the formalities, the prosecution was lodged against the appellant on obtaining necessary sanction.
4. In support of the charges under Sections 7 and 13(1)(d) read with Section 13(2) of the Act, the prosecution examined 16 witnesses and exhibited 56 documents as Ex.P/1 to P/56. The defence did not examine any witness, but, exhibited 11 documents from Ex.D/1 to D/11. In the course of examination under Section 313 of Cr.P.C., the accused-appellant denied the charges and pleaded innocence. He also filed additional statement.
5. The case made out by the appellant in his statement under Section 313 Cr.P.C.as well as in additional statement was that he CRIMINAL APPEAL NO.2073 of 2011 6 has been falsely implicated by one Nitin Dhimole (Deputy Chief Vigilance Officer, WCR) who held grudge against him, and used the complainant H.N.Raja as a tool. According to him, he had neither made any demand for illegal gratification nor accepted the same. His stand was that he agreed to help the complainant (PW.7) in drafting a representation on the request of one Dr.Choudhary (Senior Division Medical Officer, Railway Hospital, Jabalpur) and asked him to bring all the relevant documents for that purpose. His further claim is that complainant (PW.7) came to him on 08.06.2007 alone on a bicycle with relevant documents and when he sat down to draft the representation, PW.7 took out a bundle of currency notes and placed before him. According to appellant, he got annoyed with PW.7 and asked him to take back the notes else he will not provide any legal assistance. The complainant PW.7 then tendered his apology and took the notes outside.
As per the appellant, he drafted the representation and gave it to PW.7, who read it and made corrections and returned it back to the appellant, and tried to touch his feet while going out. The defence of the appellant was that during exchange of papers, some powder must have rubbed on his palm which resulted in turning the solution pink. He stated that he neither gave any confessional statement nor any memorandum nor CRIMINAL APPEAL NO.2073 of 2011 7 signed on any computer generated documents on 08.06.2007. He has further made allegation against the CBI that when he denied accepting any money from PW.7, he was threatened and manhandled while in custody by the CBI, and forced to sign on the typed/computer generated documents on 09.06.2007. He has very firmly reiterated that none of the typed documents were prepared on 08.06.2007 as CBI did not carry any laptop or printer with them.
6. The trial Court, however, on the basis of evidence on record held the charges against the appellant to be proved and convicted and sentenced him, as aforestated. The learned Special Judge has mainly placed reliance on the testimony of Rajeev Sinha (PW.11) and F.B.Karna (PW.13) to reach to the conclusion that the appellant made a demand for Rs.50,000/- and accepted the same which was recovered from the house of appellant. This conclusion was reached at for the reason that :-
(i) the tainted money that was recovered from the drawer of the table, bears the same number as mentioned in the pre-trap memorandum, and (ii) the solution turned pink when appellant's hands were washed with it and the FSL report confirmed that it contained traces of phenolphthalein and sodium carbonate. The learned Special Judge has also relied on the confession recorded by the appellant during post-trap proceedings. Aggrieved and CRIMINAL APPEAL NO.2073 of 2011 8 dis-satisfied with the said judgment of conviction and sentence, the appellant is, thus, before this Court.
7. Ms. Tanvi Khare, learned counsel appearing for the appellant has taken this Court through the evidence of prosecution witnesses. It is contended that the sanction was not granted in accordance with law, moreover, the evidence on record was not sufficient to establish the demand and acceptance of bribe. Further, the recovery was also not proved as the notes were recovered from the drawer of the table. It is argued that the appellant not being an authority who could have withdrawn the termination order or issued a confirmation letter, had no occasion or motive to demand bribe and for the complainant to give it.
8. Shri Vikram Singh, learned counsel appearing for the respondent/CBI, on the other hand, contended that the evidence adduced by the prosecution is cogent and convincing to establish the charges against the appellant. It is argued that appellant has failed to explain the recovery of bribe amount from his possession which gives rise to the legal presumption under Section 20 of the Act, hence, the Special Court has not committed any mistake in recording the judgment of conviction.
CRIMINAL APPEAL NO.2073 of 2011 9
9. The first submission of Ms. Khare is that Sunil Kumar Agrawal (PW.1) was not the sanctioning authority, but only an authenticating authority and sanction has been granted without application of mind.
10. It is settled law that sanction to prosecute is an important matter as it constitute the condition precedent to the institution of the prosecution. Further, grant of sanction is not an idle formality or an acrimonious exercise, but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution and must be strictly complied with before any prosecution against a public servant concerned.
In the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujrat (1997) 7 SCC 622, the Apex Court has observed thus :-
18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had CRIMINAL APPEAL NO.2073 of 2011 10 considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also: Jaswant Singh vs. The State of Punjab, 1958 SCR 762 = AIR 1958 SC 12; State of Bihar & Anr. vs. P.P. Sharma, 1991 Cr.L.J. 1438 (SC)).
19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint CRIMINAL APPEAL NO.2073 of 2011 11 to grant the sanction, the order will be had for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
11. In the present case, Sunil Kumar Agarwal (PW.1), the then Deputy Secretary (E.O.1), Ministry of Railway, has granted sanction for prosecution. He has stated that as per the rules, the power to remove/terminate a gazetted officer of Indian Railway Personal Service lies with the President of India. According to him, this power has been delegated to him vide notification dated 16.02.2002. As per this witness, the request to sanction prosecution is first referred to Railway Minister. After his approval, the file is sent to the Deputy Secretary through Joint Secretary, whereupon the Deputy Secretary, after going through all the documents, prepares the sanction order and signs it on behalf of the President. He has stated that similar procedure was followed in the case of appellant also, and after receiving the approval and considering all the relevant documents, order of sanction is prepared by him on behalf of the President.
12. A perusal of sanction order (Ex.P/1) shows that S.K.Agarwal (PW.1) has signed the same in the name of the President, being the Competent Authority to remove the CRIMINAL APPEAL NO.2073 of 2011 12 appellant from service, after carefully examining the material placed, viz. copy of FIR, pre-Trap memorandum, post trap memorandum, seizure memos, chemical examination report, statements of witnesses and other documents which are relevant to the said allegations and circumstances of the case, and after due application of mind. The objection raised by learned counsel in this regard is, therefore, not tenable and rejected.
13. The learned counsel has urged that the demand and acceptance of bribe money has not been proved. She also pointed out the case made out by the appellant in his statement under Section 313 Cr.P.C. She has relied upon various decisions of the Supreme Court in support of the proposition that unless the demand and acceptance of bribe are established, a presumption under Section 20 of the Prevention of Corruption Act will not apply.
14. In K.Shanthamma vs. State of Telangana (2022) 4 SCC 574, the Apex Court has held thus :-
10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe CRIMINAL APPEAL NO.2073 of 2011 13 requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act.
11. In the case of P. Satyanarayana Murthy v.
District Inspector of Police, State of Andhra Pradesh and another1, this Court has summarized the well- settled law on the subject in paragraph 23 which reads thus:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder." (emphasis added).
15. Similarly, in C.M.Sharma vs. State of A.P. (2010) 15 SCC 1, the Supreme Court has observed as under :-
21. Mr. Rai, lastly submits that from the evidence of the prosecution witnesses the worst which can be said against the appellant is that currency notes were CRIMINAL APPEAL NO.2073 of 2011 14 recovered from him. That itself, in his submission, does not constitute the offence. He submits that to bring home the charge the prosecution is required to prove beyond reasonable doubt that the accused had demanded the illegal gratification and accepted the same voluntarily. In support of the submission reliance has been placed on a decision of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, 2009 (3) SCC 779 and our attention has been drawn to the paragraph 18 of the judgment which reads as follows:
"18. In Suraj Mal v. State,(Delhi Admn.) 1979 (4) SCC 725 this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."
22. Another decision on which reliance is placed is the decision of this Court in the case of State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 in which it has been held as:
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For CRIMINAL APPEAL NO.2073 of 2011 15 arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety."
23. We do not have the slightest hesitation in accepting the broad submission of Mr. Rai that demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, we are of the opinion that both the ingredients to bring the act within the mischief of Sections 7 and 13 (1) (d) (ii) of the Act are satisfied.
16. In Banarasi Dass vs. State of Haryana (2010) 4 SCC 450, the Apex Court held thus :-
20. It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard. So far as it satisfies the essentials of a complete chain duly supported by appropriate evidence. Applying these CRIMINAL APPEAL NO.2073 of 2011 16 tests to the facts of the present case, P-10 and P-11 were neither the eye- witnesses to the demand nor to the acceptance of money by the accused from Smt. Sat Pal Kaur (PW-2).
17. Applying these tests to the facts of the present case, it is observed that according to prosecution initially the appellant made a demand of Rs. two lakh, but scaled it down to Rs.50,000/-. According to Rajeev Kumar Sinha (PW.11), Inspector CBI, and Addl. S.P. F.B.Karna (PW.13), PW.8 accompanied PW.7 at the time of offering the bribe to facilitate and observe what transpired between the appellant and PW.7. Both these witnesses are neither the eye-witnesses to the demand nor to the acceptance of money by the appellant as they have admitted that they were in their vehicles outside the main gate of the appellant's house from where the inside of the house was not visible as is also evident from the photograph (Ex.D/8). Hence, according to these witnesses, apart from the complainant, S.C.Saxena (PW.8) was the only eye-witness to the alleged transaction.
18. Law has always favoured the presence and importance of a shadow/independent witness in a trap party, not only to facilitate such witness to see, but also to over hear what happen CRIMINAL APPEAL NO.2073 of 2011 17 and how it happens. The independent/shadow witness S.C.Saxena (PW.8), in his testimony admitted that he did not go inside the house of the complainant (PW.7). On the contrary, he stated that the complainant (PW.7) went alone, ahead of the team to the house of appellant. He categorically denied that any transaction of demand or acceptance by the complainant took place in his presence (para 13 of his evidence). According to this witness, the place where transaction of bribe took place was not visible from the place where he was standing along with the second independent witness Ajay Sancha (PW.9) and the CBI team. These facts are also corroborated by Ajay Sancha (PW.9) in para 9 and 12 of his deposition. This witness was declared hostile at a later stage and was cross-examined by the prosecution, but remained consistent and stuck to his testimony through out.
19. It, thus, seems that the complainant (PW.7) was the only witness to the initial demand and acceptance as there was no voice recording. Though this witness was also declared hostile at a later stage, however, in his main examination he has stated that the demand was made by Mr. Raheja when he called him regarding his termination matter. He submitted that he went to the CBI along with one Nitin Dhimole, where he was asked to write the complaint on the dictate of CBI officer. He further CRIMINAL APPEAL NO.2073 of 2011 18 stated that in the complaint, instead of Raheja, name of appellant was mentioned, at the instance of Nitin Dhimole, who told him, that only then his work would be done.
20. PW.7, when cross-examined, stated that he went to meet the appellant on the recommendation of Mr. Choudhary, where he was told by the appellant that he would not be able to help him with regard to his termination or regularization, but agreed for drafting a representation and asked him to bring his relevant documents. This witness has, thus, supported the defence put up by the appellant. He made it very clear that appellant never demanded for money nor accepted the same. On the contrary, he stated that the appellant got annoyed and refused the money, and asked him to take it outside, therefore, he went outside and kept the bundle of tainted money at the car stand and, accordingly, informed the PW.11. There is no other witness or evidence of alleged demand and acceptance on record.
21. It is settled principle of law that, when a witness is cross- examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot be treated as washed off the record altogether, but subject to scrutiny, can be taken into consideration, if found credible.
CRIMINAL APPEAL NO.2073 of 2011 19 The Supreme Court in State of U.P. vs. Ramesh Prasad Misra and another reported in (1996) 10 SCC 360 has held thus :-
"7. .............It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted."
22. The learned Special Judge has placed much importance to the fact that bribe money recovered from table drawer, bears the same number as mentioned in the trap panchnama, however, the same could not be a determining factor in order to hold that the appellant made demand of bribe and accepted the same, especially when the appellant denied having knowledge of the same. Moreover, both the independent witnesses PW.8 and PW.9 remained firm in their stand that appellant did not disclose about the place where the bribe money was kept nor the same was recovered before them.
23. In the case of M.K. Harshan v. State of Kerala [1996 (11) SCC 720], the Supreme Court in somewhat similar circumstances, where the tainted money was kept in the drawer CRIMINAL APPEAL NO.2073 of 2011 20 of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under :
"8........It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW-1. Since PW-1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW-1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning CRIMINAL APPEAL NO.2073 of 2011 21 of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable".
24. The confessional statement (Ex.P/33) of appellant was recorded, while he was admittedly in CBI custody and, therefore, cannot be used against him as it was not made voluntarily and hit by Section 24 of the Evidence Act and not admissible in evidence. Similarly, the result of phenolphthalein test, viewed in the context that the appellant could have come into contact with the traces of powder when he was handed over the representation or touched the hands of the complainant or when he was manhandled by the trap members, cannot by itself be considered to be of any relevance to prove that the appellant voluntarily and tacitly accepted the bribe amount.
25. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. The story of alleged demand and acceptance of bribe money by the appellant has, thus, not been conclusively proved.
26. Another important and disturbing aspect of the case is that complainant (PW.7) has admitted that he reached the house of the appellant on his bicycle ahead of the CBI team which came CRIMINAL APPEAL NO.2073 of 2011 22 later on and waited outside for his signal. His statement finds corroboration from the independent witness S.C.Saxena (PW.8).who has stated that complainant (PW.7) was not sitting with them in the vehicle, but went ahead separately to the house of the appellant. Moreover, PW.8 has admitted that he did not accompany PW.7 inside the house of appellant. There is no explanation by the prosecution as to why PW.8 did not accompany PW.7 inside the house of appellant at the time of the trap.
In my view, for holding a fair trap, the complainant should not have been allowed to travel independently. If the complainant anyhow wanted to get the appellant trapped, he had ample opportunity to come in contact with the tainted currency which was carried by him in his pocket prior to handing it over to the appellant.
27. Ms. Khare, the learned counsel appearing for the appellant, taking this Court through the evidence of prosecution witnesses, has further urged that the trap was laid at the instance of one Nitin Dhimole to falsely implicate him, most of the documents were ante dated, and the procedure, as prescribed in the CBI manual, was not followed.
CRIMINAL APPEAL NO.2073 of 2011 23
28. In his testimony, though PW.11 has stated that entire pre- trap and post-trap proceedings were done in the presence of independent witnesses PW.8 and PW.9, and the confessional as well as other documents prepared during post-trap proceeding were typed/prepared with the help of laptop and portable printer carried by F.B.Karna (PW.13), however, this is in sharp conflict with the version of complainant (PW.7) and independent witnesses PW.8 and PW.9, who stated that no laptop or printer was carried by the CBI team. This fact is also evident from the pre and post-trap panchnama as this important detail is missing from Ex.P/29 and P/30. Both, PW.8 and PW.9, have admitted that they were called on 08.06.2007 to the CBI office and reached there at around 12.30 PM, however, they did not meet the complainant nor the complaint filed by the complainant was shown to them and as soon as they reached the CBI office, they were directly made to sit in the vehicle to go to the house of the appellant. According to them they were not aware of the pre- trap proceeding, but signed on the same on the next day i.e. on 09.06.2007, on the direction of CBI officers. These witnesses have further clarified that, during search on 08.06.2007 at appellant's house, only gold articles, gun and cartridges were seized and the seizure memo and panchnama was written by hand as the CBI team did not carry along with them any laptop CRIMINAL APPEAL NO.2073 of 2011 24 or printer. They signed computer generated documents Ex.P/29, P/30, P/32, P/34 etc.on 09.06.2007 at the insistence of CBI officers and ante dated it to 08.06.2007. The evidence of these witnesses cannot be ignored because firstly they are gazetted officers and independent witnesses and secondly it is not, for the first time, that they have been made witnesses.
29. This Court cannot lose sight of the fact that PW.11, was the officer of the CBI. Being the architect of the trap and head of the raiding party, was deeply concerned with the success of the case. Hence, he was also an interested witness, his evidence, therefore, could not furnish the kind of corroboration required in the circumstances of the case.
30. As regards theory of false implication at the instance of Nitin Dhimole, PW.7 has stated that Nitin Dhimole went with him to the CBI office for filing the complaint and name of the appellant was included in the complaint at the instance of Nitin Dhimole. G.L. Gupta (PW.4) and S.K.Dagor (PW.5), in their testimony, have stated that earlier the panel of recruitment prepared by Deputy Chief Vigilance Officer Nitin Dhimole got cancelled by the appellant and since then their relations got strained. This fact that the relationship between appellant and Nitin Dhimole were not cordial is also evident from the note CRIMINAL APPEAL NO.2073 of 2011 25 sheet dated 12.06.2007 written by Nitin Dhimole, which became the basis of objection made by CBI in respect of appellant's bail application. Moreover, R.K.Sinha (PW.11), F.B.Karna (PW.13) and P.Selvam (PW.16) all have admitted their acquaintance with Nitin Dhimole. R.K. Sinha (PW.11), in para 26 to 28 of his testimony has admitted that Nitin Dhimole used to meet him in his official capacity and has provided witnesses on behalf of Railways in many cases of CBI.
31. It is settled proposition of criminal jurisprudence that conviction of accused cannot be founded on the basis of inference or presumption. The offence should be proved against the accused beyond reasonable doubt either by direct or by circumstantial evidence by leading cogent evidence. In the light of conflicting versions and suspicious features of the trap proceedings, the claim of appellant that he was falsely implicated at the instance of Deputy Chief Vigilance Officer Nitin Dhimole does not appear to be improbable, and it would be hazardous to base a conviction as the guilt of the accused has not been established beyond reasonable doubt.
32. For the aforesaid reasons, the conviction of appellant under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 cannot be sustained.
CRIMINAL APPEAL NO.2073 of 2011 26 Accordingly, the conviction and the sentence imposed on the accused/appellant by the trial Court is set aside and the appeal is allowed. The accused/appellant is acquitted from the charges. He is on bail, his bail bonds stand discharged.
(Nandita Dubey) Judge 04.05.2023 jk.
Digitally signed by JITIN KUMAR CHOURASIADate: 2023.05.04 13:17:29 +05'30'