Madras High Court
State Rep. By vs Ajay Kumar Gupta on 9 June, 2023
Author: P.Velmurugan
Bench: P.Velmurugan
CRL A No.566 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 10.02.2023
Pronounced on : 09.06.2023
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Criminal Appeal No.566 of 2012
State rep. by
Inspector of Police
CBI/ACB/Chennai .. Appellant
Versus
1. Ajay Kumar Gupta
2. Veenitha Gupta
3. Narendra Kumar Harlalka .. Respondents
Criminal Appeal filed under Sections 378 of Criminal Procedure Code,
1973 praying to allow this appeal and set aside the Judgment dated 30.04.2`
012 pronounced by the XIV Additional Special Judge for CBI Cases, Chennai
in C.C.No.34 of 2008.
For Appellant : Mr. K.Srinivasan
Special Public Prosecutor for CBI Cases
For Respondents : Mr. V.S. Venkatesh for R1 and R2
Mr. B. Kumar, Senior Advocate
for Mr.M.Santhanaraman for R3
https://www.mhc.tn.gov.in/judis
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CRL A No.566 of 2012
JUDGMENT
This Criminal Appeal has been filed to set aside the Judgment dated 30.04.2012 pronounced by the learned XIV Additional Special Judge for CBI Cases, Chennai, in C.C.No.34 of 2008, thereby, acquitting all the three accused, who are respondents in this appeal.
2. The appellant/Police registered a case against the respondents/accused in RC.MA.No.1/2005/A/0031 for the offences under Sections 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988. After investigation, charge sheet was laid before the Principal Special Judge for CBI Cases, Chennai, for the offences punishable under Sections 120-B IPC read with Sections 11, 12, read with 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. The learned Principal Special Judge had taken congnizance of the charge sheet on file in C.C.No.34 of 2008 and after completing all formalities, framed the charges against the respondents/accused for the offences under Sections 120-B IPC read with Sections 11, 12 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
3. After framing of charges and completing all formalities, in order to prove the above said charges, during trial before the trial Court, on the side of https://www.mhc.tn.gov.in/judis 2/38 CRL A No.566 of 2012 prosecution, totally 11 witnesses were examined as P.W.1 to P.W.11 and 50 documents were marked as Ex.P.1 to Ex.P.50, but no material object was exhibited.
4. After completing the examination of the prosecution witnesses, incriminating circumstances were culled out from the evidence of the prosecution witnesses, which were put before the accused persons by questioning them under Section 313 Cr.P.C. The accused denied the same as false and pleaded not guilty. On the side of the defence, no oral evidence was let in. However, 3 documents were marked as Exs.D.1 to D3.
5. On conclusion of trial, after hearing the arguments advanced on either side, considering the material evidence, the trial Court acquitted the accused persons from the above said charges.
6. Aggrieved by the said Judgment of acquittal, the State has preferred the present appeal before this Court.
7. The case of the prosecution is that initially, a case was registered on the allegation that A1, abetted by A2, acquired movable and immovable assets in his name, in the name of his wife and children to the extent of https://www.mhc.tn.gov.in/judis 3/38 CRL A No.566 of 2012 Rs.19,61,050.73/-, which are disproportionate to his known sources of income. On completion of investigation, the involvement of Veenita Gupta/second accused was proved, who is the wife of the first accused herein. Hence, she was added as an accused in the case. After investigation, charge sheet was also filed against A1/1st respondent herein and A2/2nd respondent herein for the offences under Sections 109 IPC and Section 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988. The charge sheet was taken on file in C.C.No.18 of 2009 and the same is pending before the Special Judge for CBI Cases, Chennai.
8. During the course of the said investigation, yet another allegation against A1 and A2/who is the wife of 1st accused and one Narendra Kumar/A3/who is the Director of M/s.Triveni Exports (P) Ltd., Chennai and who is also a private person came to light. It was alleged that the 1st accused, while working as Assistant Commissioner of Central Excise, by abusing his official position, obtained pecuniary advantage in the form of package tour of M/s.Thomas Cook (India) Ltd., to Malaysia and Singapore for his wife, namely the 2nd accused/2nd respondent and his two children, costing Rs.3,63,456/- during December 2004. It is also alleged that A-1 obtained and utilized three banker's cheques dated 29.07.2004 for a total sum of https://www.mhc.tn.gov.in/judis 4/38 CRL A No.566 of 2012 Rs.1,20,000/- for making investment in the name of his wife/2nd accused with Standard Mutual Funds from the 3rd accused/Director of M/s.Triveni Exports Pvt. Ltd., Chennai, with whom he was having official dealings. The investigation further disclosed that 2nd and 3rd accused abetted 1st accused to commit the offence punishable under Section 11 of Prevention of Corruption Act and thereby, committed the offence punishable under Section 12 of Prevention of Corruption Act.
9. The charge sheet was filed against the respondents 1 to 3 herein for the offences punishable under Sections 120-B IPC read with Sections 11, 12 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act. The Special Court for CBI Cases, Chennai, took cognizance of the case in C.C.No.34 of 2008 and after trial, the trial Court acquitted all the three accused/the respondents herein. Against the said order or acquittal, the State has preferred the present appeal before this Court.
10. The learned Special Public Prosecutor appearing for the appellant submitted that the trial Court has not appreciated the evidence of the prosecution witnesses viz., P.W.1 to P.W.11 and Ex.P.1 to Ex.P.50 in proper perspective and blindly accepted the defence version without considering the https://www.mhc.tn.gov.in/judis 5/38 CRL A No.566 of 2012 nature of allegations levelled against the respondents/accused. The case of the prosecution is that while the 1st respondent was working as Assistant Commissioner of Central Excise, obtained pecuniary advantage without adequate consideration in the form of package tour of M/s.Thomas Cook (India) Ltd. to Malaysia and Singapore for his wife and children. As spoken to by the witness P.W.2, the Senior Manager (Accounts), Thomas Cook India Ltd. coupled with Ex.P.2/Receipt No.16059892 for Rs.2,65,922/- dated 10.12.2004 and Receipt No.160510977 for Rs.97,534/- dated 15.12.2004, which were issued in the name of the 2nd respondent herein for which the amount was paid by the 3rd respondent, who is having official dealing with the 1st respondent and the above payments were received through two cheques bearing No.224743 dated 09.12.2004 and 224744 dated 14.12.2004 (Ex.P.5 and Ex.P.6) drawn on Allahabad Bank, Annanagar Branch. As spoken to by P.W.4, the Senior Manager, Allahabad Bank, Annanagar Branch, with the photostat copies of the above said cheques, which were drawn in favour of M/s.Thomas Cook (India) Ltd. and these two cheques pertain to SB A/c.No.103001 of Urmila Harlalka/the wife of the 3rd respondent herein. Further, P.W.6 who is a retired Customs Officer, Madras Port, has furnished the postings of 1st respondent from 1997 to 2005 and the clearance of shipping bills of M/s.Triveni Exports Limited by the 1st respondent. The learned Special Public https://www.mhc.tn.gov.in/judis 6/38 CRL A No.566 of 2012 Prosecutor further submitted that from the oral and documentary evidence, the prosecution proved the charges against the respondents herein/accused, whereas the trial Court failed to appreciate the above said oral and documentary evidence and simply acquitted the accused/respondents herein alleging that there was no nexus and link between the respondents in any of the transactions. Further, from the evidence of P.W.3 who is the Senior Customer Service Officer, Computer Age Management Services Investor Service Centre, the prosecution has established regarding the investment made in the Standard Chartered Mutual Fund, in the name of the 2 nd respondent who is the wife of the 1st respondent and in the name of his children and the said fact is also corroborated by the evidence of P.W.4 who is the Senior Manager of Allahabad Bank, Anna Nagar Branch, Chennai. Exs.P-22, 24 and 26 are the applications made by M/s.Triveni Experts Pvt. Limited, in which, the 3rd respondent was a Director and having official dealings or connection with the official functioning of the 1st respondent, who was working as Assistant Commissioner of Central Excise, attached with the office of the Commissioner of Central Excise and the same was not properly appreciated by the trial Court. Further, he submitted that there is a clear link between the transactions of the respondents and unfortunately, the trial Court has held that the prosecution has failed to prove with cogent evidence that there is a clear link between the https://www.mhc.tn.gov.in/judis 7/38 CRL A No.566 of 2012 transactions of the respondents. The trial Court, by over-sight, held that it is not an offence under Section 7 of Prevention of Corruption Act and it is only an offence under Section 11 of Prevention of Corruption Act, which does not require the ingredients of demand, acceptance and recovery. The charge against the 1st respondent is that he received pecuniary advantage in the form of tour package on M/s. Thomas Cook India Ltd. to Malaysia and Singapore for his wife and minor children and also the investment of Rs.1,20,000/- towards the mutual funds of Standard Chartered Bank from the 3rd respondent, with whom the 1st respondent was having official connection. Further, he would submit that even from the evidence of P.W.6, the prosecution has proved through Ex.P.35/the details of shipping bills sent by M/s.Triveni Exports Pvt. Ltd., Chennai, which proves that the 1st respondent has dealt with one bill as Appraiser and thereby, the prosecution could establish that there was an official dealing with the 1st and the 3rd respondents and that the clearing of shipping bills of M/s.Triveni Exports Pvt. Ltd. by the 1 st respondent was also clearly proved by the evidence of P.W.6, which shows that the 3rd respondent was having official connection with the 1st respondent by that time and he obtained valuable things without consideration from the 3rd respondent and subsequently, the 1st respondent was promoted as Assistant Commissioner in the same office. Therefore, the finding of the trial Court is that the https://www.mhc.tn.gov.in/judis 8/38 CRL A No.566 of 2012 transaction of Ex.P.35 took place in the year 1999 and the alleged incidents had taken place subsequently in the year 2004 and by no stretch of imagination, it could be said that any person would, after such a long period of 5 years, would show his gratitude, that too for a mere transaction of bill for small sum of around Rs.5 lakhs, are in correct. Further, he submitted that the trial Court failed to appreciate the fact that while the pecuniary advantage was received by the 1st respondent, who was functioning as a public servant in his capacity as Assistant Commissioner of Central Exercise in the same place on the date of obtaining of the things, without consideration from the 3 rd respondent with whom he was having the official connection as contemplated under Section 11 of the Prevention of Corruption Act. Though Ex.P.35 is a copy, the trial Court erroneously gave much weightage that the original shipping bill was not produced and in Ex.P.35 only, the details of exports made by M/s.Triveni Exports are available. The trail Court failed to consider the fact that the charge levelled against the 1st respondent is that there was an official dealing between the 1st and the 3rd respondents. The prosecution has also established that at the relevant point of time, the 1st respondent was a public servant and the 3rd respondent was doing export business in the name of M/s.Triveni Exports Pvt. Ltd. and that the 1st respondent dealt with some of the clearance of the 3rd respondent and therefore, there was a link between the 1st https://www.mhc.tn.gov.in/judis 9/38 CRL A No.566 of 2012 respondent and the 3rd respondent. But the trial Court failed to consider the said fact and gave weightage only to Ex.P.35 stating that it is not a original receipt. Further, the trial Court has given one of the reason for not believing the case of the prosecution that the Banker's cheque is questionable and one Govindan, the purchaser of the Banker's cheque was not examined as party. As already stated, though the cheques were drawn in the name of the 2nd respondent and her children, the cheques were cleared and encashed from the account of the 3rd respondent. Therefore, mere non-examination of the person who purchased the Banker's cheque, is not fatal to the case of the prosecution. The prosecution has clearly established that there is an official dealing between the 1st and 3rd respondents. The 2nd respondent is none other than the wife of the 1st respondent and the 1st respondent being a public servant, accepted or obtained or agreed to accept or attempted to obtain valuable things without consideration or for an adequate consideration knowing it to be inadequate from the 3rd respondent through his wife/2nd respondent and minor children. Therefore, all the respondents have committed the offences as charged above. The trail Court failed to appreciate the evidence and acquitted the respondents on flimsy reasons and therefore, the Judgment of acquittal passed by the trial Court, warrants interference. In support of his contentions, the learned Special Public Prosecutor has placed reliance on the Judgment of https://www.mhc.tn.gov.in/judis 10/38 CRL A No.566 of 2012 the Hon'ble Supreme Court in the case of R.S.Nayak Vs. A.R. Antulay reported in 1986 (2) SCC 716, wherein the Hon'ble Supreme Court has held that for the offence under Section 11 of Prevention of Corruption Act, the essential ingredients are:-
(i) the accused was a public servant
(ii) He accepted or obtained or agreed to accept or obtain a valuable thing without consideration or for an inadequate consideration knowing it to be inadequate.
(iii) The person giving the thing must be a person concerned or interested in or related to the person concerned in any proceeding or business transacted or about to be transacted by the Government Servant or having any connection with the official functions of himself or of any public servant to whom he is subordinate and
(iv) the accused must have knowledge that the person giving the thing is so concerned or interested or related.
11. The trail Court failed to appreciate the oral and documentary evidence and also the legal principles and erroneously acquitted all the respondents as if the prosecution has not proved the case beyond all https://www.mhc.tn.gov.in/judis 11/38 CRL A No.566 of 2012 reasonable doubts. Therefore, the Judgment of acquittal passed by the trial Court warrants interference. As stated above, the prosecution has proved its case beyond all reasonable doubts. Therefore, the Judgment of the trial Court is liable to be set aside and the appeal has to be allowed and the respondents have to be convicted for the charged offences.
12. The learned counsel for the respondents 1 and 2 submitted that there is no documentary evidence to show that the 1st respondent's official dealt with any transaction or has connection with A3 at any point of time, in past, present or future. The documents marked by the prosecution, such as Ex.P.32 (Air cargo shipments of Triveni Exports of A3), Exs.P.33, 34 and 35 (Sea Cargo shipments of Triveni Exports of A3) and Ex.P.50 (three typed lines without any attestation, authentication) do not prove that the 1st respondent had any official dealing with the 3rd respondent. Ex.P.35 does not show the names of the officers who had dealt with the shipping Bill No.1065920 dated 30.06.1999. Even the xerox copy of the shipping bill is not available as evidence. There is no documentary evidence to support the claim of the CBI that the 1st respondent had dealing with the 3rd respondent in the said shipping bill clearance. Even the Investigating Officer (P.W.11), during the course of cross examination, has admitted that the shipping bill was not there and https://www.mhc.tn.gov.in/judis 12/38 CRL A No.566 of 2012 Ex.P.50 was only typed material and it was not vouched by any authority of the Customs Department. Even P.W.6 in his cross examination has also accepted that the shipping bill copy was not seen by him and that he was not aware as to who had cleared the said shipping bill. P.W.6 further stated that he had no knowledge of these annexures and he has only forwarded these documents which were provided to him by AC-Exports. The said AC-Exports was not examined by the Investigating Officer in this case. None of the prosecution witnesses, namely P.W.1 to P.W.11 has seen or vouched or spoken about the availability of such shipping bill. Most of the exhibits are computer print outs without any certification as required under Section 65-B(4) of the Indian Evidence Act, 1872. Further, he submitted that, without any documentary evidence of official dealings of the 1st and 3rd respondents, the provisions of Section 11 of the Prevention of Corruption Act would not get attracted. The prosecution has suppressed the fact that the 1st and 2nd respondents were the tenants of the the 3rd respondent from 2001 to 2005. The rents were duly paid by the 1st respondent and the same were also submitted to Customs Accounts Sections periodically. The rents to the 3rd accused are shown as expenses in C.C.No.18 of 2009. He further submitted that with regard to Shipping Bill No.1065920 dated 30.06.1999 (Ex.P.50), the 1st respondent had no relationship with the 3rd respondent at that point of time. Therefore, the theory of https://www.mhc.tn.gov.in/judis 13/38 CRL A No.566 of 2012 conspiracy does not hold good as clearance of exported goods was in 1999 and the alleged transactions were during the period 2004 between the 2nd and 3rd respondents. There is no proximity between the two. There was a gap of five years and that too, in 1999, the 1st respondent never knew the 3rd respondent. The favour of Rs.4,83,456/- from the 3rd respondent by the 2nd respondent as against the duty drawback of Rs.25,000/- after five years, is inconceivable. Both the instances of allegedly obtaining consideration pertain to period July 2004 and December 2004, which were not related to the 1 st respondent. The 1st respondent was not working in any of the sections or departments which are related to exports during the said period, as seen from Ex.P.34. Subsequently, the 1st respondent was working in Legal Department till July 2005 and later, on promotion, he was transferred to Pondicherry Central Excise and thereafter, he never worked in Customs and finally, the 1st respondent resigned from services on 11.04.2011. There is no criminal conspiracy between the respondents and also allegedly the 1st respondent had no official dealing with the 3rd respondent in 1999 and that the 2nd respondent in return (wife of the 1st respondent) got pecuniary benefits in 2004. Even assuming without admitting that the 1st respondent has carried certain official work with the 3rd respondent, the 1st respondent while discharging official work as proper officer of Customs, has examined the exported goods in https://www.mhc.tn.gov.in/judis 14/38 CRL A No.566 of 2012 accordance with the procedures prescribed under the Customs Act, 1962. There was no lapse or act of omission or commission on the part of the 1 st respondent while examining the goods exported. The prosecution has not brought out any evidence of loss of Revenue or fraud or any such violation with the goods exported. Shipping bill for 400 pieces of Leather Garments having FOB value of Rs.5,05,377/- was filed under Sections 50 of the Customs Act, 1962. The duty drawback of the leather goods was processed under Section 75 of the Customs Act, 1962 @ 5% of the FOB value, i.e. around Rs.25000/-. As such, the maximum benefit that the 3rd respondent would have availed, was only Rs.25,000/- approximately. This aspect is crucial and significant. The 1st respondent alone cannot clear the shipping bill as it goes first through assessment in terms of valuation and description of goods exported by a separate set and appraiser and AC/DC of Customs, followed by examination. For examination, there is one Examiner and one Appraiser and after the completion of the Assessment and Examination by the Examiner, the Appraiser in Docks allows “let Export”. After “let Export”, the shipping bill goes to duty drawback Section, where the Appraiser verifies the duty drawback rate and then it is approved by AC/DC of Customs. The shipping bill is processed at least by six officers for all three stages viz., assessment, examination and sanction of duty drawback. None of the officers related to the https://www.mhc.tn.gov.in/judis 15/38 CRL A No.566 of 2012 said shipping bill have been identified and investigated by the prosecution. Once it is established that the exports have been done in accordance with the provisions of law, without any lapse or criminality, the allegation of conspiracy under Section 120-B of IPC would not get attracted. The prosecution has failed to prove the pecuniary advantage that the 1st respondent misused his official position and had conspiracy with the 3rd respondent and gained advantage though the 2nd respondent/his wife. The trial Court rightly appreciated the evidence and had acquitted the 1st respondent, which needs no interference by this Court.
13. The learned counsel for the respondents 1 and 2 further submitted that as far as the 2nd respondent is concerned, in M/s. Thomas Cook tour package on 29.12.2004, there were 4 adults and one child. The wife of the 3 rd respondent who had paid for the tour amount, was also part of the tour along with her major daughter. The 2nd respondent and the wife of the 3rd respondent were co-residents, neighbours and friends and this has nothing to do with the Triveni Exports or the 3rd respondent. The tour amount was repaid by the 2nd respondent on 21st July 2006, vide Cheque Nos.757485 and 757486 for an amount of Rs.3,63,128/-. The Investigating Officer had verified the same from the IndusInd Bank and the said document is marked as Ex.P.155 in C.C..No.18 https://www.mhc.tn.gov.in/judis 16/38 CRL A No.566 of 2012 of 2009. One Rinku Dass P.W.55 of IndusInd Bank in C.C.No.18/2009 also stated in her chief examination that three cheques issued by the 2nd respondent in favour of one Urmila Harlalka/the wife of the 3rd respondent, were debited from her account. The Investigating Officer, in the present case in C.C.No.34/2008 has also mentioned this fact and the ill-gotten money was a loan and duty reflected in Income Tax Department. As neighbours, they went to tour and one of the passengers initially took the ticket by paying the amount by way of cheque and later, the same was repaid by the other passenger. Further, as alleged, the export bill was only in the year of 1999, whereas the tour package was in the year 2004. Therefore, the prosecution cannot link between the same, since the husband of the 2nd respondent/the 1st respondent herein happened to be a Customs officer and the 3rd respondent happened to be an exporter. The wife of the 1st respondent and the wife of the 3rd respondent are neighbours and they are having independent source. The 2nd respondent has nothing to do with the 1st respondent. The wife of the 3rd respondent has nothing to do with M/s.Triveni Exports. As neighbours, they arranged for tour and therefore, the prosecution cannot link between these tour packages into the Customs Clearance and the 1st respondent had a pecuniary advantage of the same. The trial Court rightly appreciated the evidence and had also rightly acquitted the respondents herein. Further, the purchaser of the https://www.mhc.tn.gov.in/judis 17/38 CRL A No.566 of 2012 cheque, namely Govindan was not examined to prove the case of the prosecution. The non examination of the said Govindan is fatal to the case of the prosecution. The trial Court rightly accepted the contention of the respondents and acquitted them. As far as the investments made in the mutual funds are concerned, there is no material evidence to prove that in order to get pecuniary advantage, the 3rd respondent invested money in the name of the wife and minor children of the 1st respondent and none of the investment was done in the name of the 1st respondent. The 2nd respondent has got sufficient means, out of which, she invested and she is having independent source. Further, she has also got agricultural property and she is having sufficient income from the agricultural lands and the same was proved by the 2nd respondent in C.C.No.18 of 2009. The 2nd respondent also received a sum of Rs.24 lakhs in cash towards the sale proceeds of agricultural lands during the relevant point of time. She had utilized the same towards various investments including all Pay Orders. The mutual funds were purchased through all these Pay Orders, namely Ex.P.17 to Ex.P.35 in C.C.No.18 of 2009. The 2nd respondent also proved that all the investments are from her own source only. The entire tour package consideration amount of Rs.3,63,456/- also shows as expenditure by the 2nd respondent under the Statement-D and mutual funds of Rs.1,20,000/- as investment by the 2nd respondent under Statement-B in https://www.mhc.tn.gov.in/judis 18/38 CRL A No.566 of 2012 C.C.No.18 of 2009, and therefore, the defence has given proper explanation and the prosecution has failed to prove the same and the trial Court rightly appreciated the evidence and acquitted both the respondents. The learned counsel, in support of his contentions, placed reliance of the Judgments of the Hon'ble Supreme Court as follows:
1. Crl.Appeal No.155 of 2006 -Ghurey Lal Ves.
State of UP-Supreme Court (2008) 10 SCC 50.
2.Crl.Appeal No.853 of 2006 – Chandrappa & Others Vs. State Of Karnataka – Supreme Court (2007) 4 SCC 415, and
3.Crl.Appeal No.1172 of 2008-Selvaraj Vs. State of Karnataka -Supreme Court (2015) 10 SCC 230.
14. The learned Senior Counsel appearing for the 3rd respondent submitted that the 3rd respondent has nothing to do with any of the transactions and the prosecution has failed to prove its case beyond all reasonable doubts that the 1st respondent, as a public servant, had any official dealing with the 3rd respondent/The Director of M/s.Triveni Exports, Chennai. The alleged clearance bill on export was of the year 1999, whereas, the allegation of tour packagings with M/s.Thomas Cook India Ltd., was in the year 2004. The prosecution has not proved the fact that in between 1999 and 2004, there was a https://www.mhc.tn.gov.in/judis 19/38 CRL A No.566 of 2012 link between the 1st and the 3rd respondents. The 1st respondent, as a public servant, had obtained pecuniary advantage and in order to give benefit to the 3rd respondent, there was a conspiracy between the respondents and even the essential ingredients of Section 11 of the Prevention of Corruption Act would not get attracted in this case. The prosecution failed to give any link without any break that from 1999 to 2004, the 1st respondent, as a public servant, while clearing the export bills, dealt with the 3rd respondent all over the years and the 3rd respondent was benefited for any commission or omission of act done to the 1st respondent. Due to that benefit, the 3rd respondent, either directly, or through family members, he gave pecuniary gain to the 1st respondent. It is not the case of the prosecution that the 3rd respondent straightaway either gave pecuniary benefit to the 1st respondent or to the 2nd respondent. The main allegation is that the 2nd respondent, who is the wife of the 1st respondent, with the wife of the 3rd respondent, went to tour by getting tour package with M/s.Thomas Cook India Ltd., for which also, the 2 nd respondent established that the said amount was subsequently repaid and the Investigating Officer also admitted that in the other case in C.C.No.18 of 2009, the 2nd respondent produced the document and established and also for the investment in the mutual funds also, the 2nd respondent has given explanation that she had own source and therefore, she made the investment https://www.mhc.tn.gov.in/judis 20/38 CRL A No.566 of 2012 and there is no link between the 2nd respondent and the 3rd respondent, either directly or indirectly. Even the charges framed by the trial Court are also not proper and the prosecution failed to prove the charges as framed by the trial Court. He would further submit that the prosecution witnesses admitted during the cross examination that they have not produced any material to show that the 1st respondent had direct link with the 3rd respondent and all the export bills were cleared only by the 1st respondent. Even the prosecution witnesses have stated that they have not seen any of the documents through direct link. The 1st respondent alone dealt with the clearance bill of the 3rd respondent and therefore, the 2nd respondent who is a woman and who has got independent source and the wife of the 3rd respondent also being a woman of means, has nothing to do with the Triveni Exports Ltd. The prosecution failed to prove its case beyond all reasonable doubts. Therefore, the trial Court rightly appreciated the evidence and found that the prosecution failed to prove its case beyond all reasonable doubts and thereby, rightly acquitted the respondents herein and there is no merit in the appeal. He placed reliance on the Judgment of this Court in Crl.A.No. 324 of 2005 dated 02.03.2018 (State Vs. S.Bose and another) as well as the Hon'ble Supreme Court, in the case of Khekh Ram Vs. State of Himachal Pradesh reported in 2017 SCC OnLine SC 1301. In the appeal against acquittal, the prosecution has to prove that the appreciation of https://www.mhc.tn.gov.in/judis 21/38 CRL A No.566 of 2012 evidence by the trail Court is perverse. The accused have got double presumption in the case of acquittal and the prosecution has to rebut the presumption of innocence by establishing its case beyond all reasonable doubts and further there are compelling circumstances to interfere with the Judgment of the trial Court, whereas in this case, the trial Court rightly appreciated the evidence and acquitted the respondents and that the prosecution has not proved the link between the accused and the public transaction with the other transaction and therefore, there is no perversity in the appreciation of evidence by the trial Court and there is no compelling reason to interfere with the Judgment of the trial Court. Therefore, the appeal is liable to be dismissed.
15. Heard the learned Special Public Prosecutor for CBI Cases appearing for the State and the learned Senior Counsel/learned counsel for the respondents and perused the materials available on record.
16. The specific case of the prosecution is that while the 1st respondent was functioning as Assistance Commissioner of Central Excise, obtained pecuniary advantage without adequate consideration in the form of package tour to Malaysia and Singapore for his wife and children through https://www.mhc.tn.gov.in/judis 22/38 CRL A No.566 of 2012 M/s.Thomas Cook India Ltd. The amount was paid by the 3 rd respondent who is having official dealing with the 1st respondent and the above said payments were received through 2 cheques, Ex.P.5 and Ex.P.6, drawn on Allahabad Bank, Annanagar Branch, Chennai, in favour of M/s.Thomas Cook India Ltd. The further allegation is that the investments were made in Standard Chartered Mutual funds in the name of wife and children of the 1 st respondent and the Pay Orders Ex.P.21, Ex.P.23 and Ex.P.25 were issued based on the applications made by M/s.Triveni Exports Pvt. Ltd. in which, the 3rd respondent was a Director, having official dealing or having official connection with the 1 st respondent, who was working as Assistant Commissioner attached to the office of Central Excise.
17. In order to substantiate the allegation regarding the package tour to Malaysia and Singapore, for the wife and children of the 1st respondent, the cheques were issued by the 3rd respondent in the name of M/s.Thomas Cook India Ltd. The Senior Manager of Thomas Cook India Ltd., was examined as P.W.2 and his evidence is clearly established the fact that the Ex.P.2 and Ex.P.3, the receipts for a sum of Rs.2,65,920 dated 10.12.2004 and for Rs.97,534/- dated 15.12.2004, were issued in the name of the 2 nd respondent, for which, the amount was paid by the 3rd respondent. The fact remains that the https://www.mhc.tn.gov.in/judis 23/38 CRL A No.566 of 2012 1st respondent was working as Assistant Commissioner of Central Excise and the 3rd respondent was a Director of M/s.Triveni Exports Pvt. Ltd., and he was doing exports business. During the relevant point of time, M/s. Triveni Export Pvt Ltd. exported certain leather goods. The Senior Manager, Allahabad Bank, Anna Nagar Branch, was examined as P.W.4, who has clearly spoken that the photo copies of the cheques drawn in favour of M/s.Thomas Cook India Ltd. were issued from the A/c.No.103001 which is the account number of the wife of the 3rd respondent herein, maintained at Allahabad Bank, Anna Nagar Branch.
18. The evidence of P.W.6 clearly shows that the clearance of shipping bills of M/s.Triveni Exports Pvt. Ltd. which belongs to the 3rd respondent, were cleared by the 1st respondent.
19. Therefore, from the evidence of P.W.6, it is clear that the 1st respondent had official capacity and the 3rd respondent had an export company and the 1st respondent cleared the shipping bills of the 3rd respondent and therefore, there was a link between the 1st and the 3rd respondent. Subsequently, in the year 2004, for the package tour, the amount has been paid to the travellers, namely M/s.Thomas Cook India Ltd. for which, the amount https://www.mhc.tn.gov.in/judis 24/38 CRL A No.566 of 2012 was paid through cheques and the cheques were issued in the account of the wife of the 3rd respondent and even the receipts were given to the 2 nd respondent.
20. The main defence taken by the respondents is that there is no official link between the 1st and the 3rd respondents and since the 2nd respondent, who is the wife of the 1st respondent and the wife of the 3rd respondent, who are neighbours and having independent source and the tour amount paid by the wife of the 3rd respondent, was subsequently repaid by the 3rd respondent and therefore, there is no pecuniary advantage or there is no loss to the Customs Department. If at all the wife of the 3rd respondent had commonly taken the travel tickets and the receipts would have been given to the wife of the 3 rd respondent. The 2nd respondent had taken that amount as a loan and subsequently, she repaid the same and the receipts could not have been obtained in the name of the 2nd respondent, directly from the travellers Company namely M/s.Thomas Cook India Ltd. The defence has not explained as to why and as to when the cheque amount was paid from the wife of the 3rd respondent's Bank account and the cheques were issued to M/s.Thomas Cook India Ltd. from the account of the wife of the 3rd respondent and that Ex.P.2 and Ex.P.3 are given in the name of the 2nd respondent, which creates doubt. https://www.mhc.tn.gov.in/judis 25/38 CRL A No.566 of 2012 Once the prosecution established through the evidence of P.W.2 and P.W.4 regarding the package tour to Malaysia and Singapore for the wife and children of the 1st respondent and Ex.P.2 and Ex.P.3 receipts show that it was given in the name of the 2nd respondent, whereas the cheques were issued from the account of the wife of the 3rd respondent and the amount was paid to M/s.Thomas Cook India Ltd., from the Bank account of the wife of the 3rd respondent and that the evidence of P.W.6 also clearly shows regarding the clearance of shipping bill to M/s.Triveni Exports Pvt. Ltd., which belongs to the 3rd respondent and cleared by the 1st respondent.
21. As per the evidence of P.W.6, the clearance of bill was in the year 1999, whereas the package tour tickets were taken in the year 2004. Even though there is a gap of 5 years, all these years, the 1st respondent was in the Customs Department in various levels. The 3rd respondent is also continuously doing export business in the name and style of M/s.Triveni Exports Pvt. Ltd.
22. Therefore, from the oral evidence of P.W.2, P.W.4 and P.W.6 and documentary evidence of Exs.P.2, 3, 4, 5 and 6, the prosecution proved the link between the 1st and the 3rd respondents.
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23. It is not the case for commission of offence under Section 7 of Prevention of Corruption Act with the basic ingredients of pre-demand , acceptance and recovery. In this case, Sections 11 and 12 of Prevention of Corruption Act, 1988 are very clear. For better understanding, Sections 11 and 12 of Prevention of Corruption Act are extracted hereunder:
"Section 11. Public servant obtaining undue advantage, without consideration from person concerned in proceeding or business transacted by such public servant.—Whoever, being a public servant, accepts or obtains or attempts to obtain for himself, or for any other person, any undue advantage without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the 3 official functions or public duty of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
"Section 12: Punishment for abetment of offences.— Whoever abets any offence punishable under this Act, https://www.mhc.tn.gov.in/judis 27/38 CRL A No.566 of 2012 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine."
24. As far as the 2nd transaction regarding investments in the mutual funds is concerned, the prosecution proved the same through the evidence of P.W.3, who is the Senior Customer Service Officer, Computer Age Management Services Center, who has clearly stated that the investments were made in the Standard Chartered Mutual funds in the name of the wife and children of the 1st respondent.
25. P.W.4 who is the Senior Manager, Allahabad Bank, Annanagar Branch, has clearly stated that the pay orders Ex.P.21, P.23 and P.25 were issued based on the application made by M/s.Triveni Exports Pvt. Ltd. in which, the 3rd respondent who was a Director, having official dealing with the 1st respondent, was working as Assistant Commissioner of Central Excise.
26. The main defence taken by the 2nd respondent is that she had independent source and she has also got agricultural lands and having income. Further, she sold agricultural lands and from that, she has means to invest on https://www.mhc.tn.gov.in/judis 28/38 CRL A No.566 of 2012 her own. There in nothing wrong in a woman having own source or funds, making investments on her own, whereas in this case, the application for investments have been made by M/s.Triveni Exports Pvt. Ltd., in which the 3 rd respondent is a Director and the amount was also paid through the 3rd respondent's company. Therefore, it is for the 2nd respondent to give explanation as to why she did not make any application directly for the investments.
27. Therefore, from the evidence of P.W.2 and P.W.4, the prosecution has established about the purchase of package tour to Malaysia and Singapore and from the evidence of P.W.3 and P.W.4, the prosecution proved the investments made in the Standard Chartered Mutual Funds. Further, from the evidence of P.W.6 and Ex.P.35/details of shipping bill (15 sheets) sent by M/s.Triveni Exports Pvt. Ltd., the prosecution proved that the 1st respondent dealt with the one of the bills of M/s.Triveni Exports Pvt. Ltd. as Appraiser and the prosecution also established that there was an official dealing between the 1st and the 3rd respondents. Therefore, the clearance of shipping bill of M/s. Triveni Exports Pvt. Ltd., by the 1st respondent is clearly proved by the evidence of P.W.6. Though in the cross examination, he has stated that he had not seen the original bills, Ex.P.35 is very clear that at the relevant point of https://www.mhc.tn.gov.in/judis 29/38 CRL A No.566 of 2012 time, the 1st respondent was working as Appraiser and dealing with the shipping bill of M/s.Triveni Exports Pvt. Ltd. No matter how many shipping bills are there, but he had dealt with and what amount he had dealt with. Section 11 of the Prevention of Corruption Act is very clear. Once it is proved that the 1st respondent is a public servant and the 3rd respondent is a private person who was having business dealing officially and subsequently, neither the public servant getting pecuniary advantage or advantage either directly or through family members, Section 11 of Prevention of Corruption Act would attract. Since the 2nd respondent is the wife of the public servant/1st respondent and the 3rd respondent is a private person who abetted the 1st respondent, Section 12 of the Prevention of Corruption Act, would get attracted against the 2nd and 3rd respondents. Therefore, the findings of the trial Court regarding the transaction that had taken place in the year 1999 and also Ex.P-35 and the package tour transaction that took place in the year 2004, are perverse.
28. The respondents have admitted that the 1st respondent resigned only in the year 2007. Therefore, from 1999 till 2010, during the relevant period of both the transactions, the 1st respondent was working in the Customs office in various posts from Appraiser to Assistant Commissioner all these years. M/s.Triveni Exports Pvt. Ltd. was doing export business and the 1st respondent https://www.mhc.tn.gov.in/judis 30/38 CRL A No.566 of 2012 was directly or indirectly dealing with the bills. Therefore, from the evidence of P.W.6, it is proved that the 1st respondent was dealing with one of the shipping bills of M/s.Triveni Exports Pvt. Ltd. The defence has not disputed Ex.P.35.
29. It is not the case of the defence that M/s.Triveni Exports Pvt. Ltd. was not doing exports and the 1st respondent was not working in the Customs during the relevant period of time. The respondents had also not stated that the 2nd respondent and the wife of the 3rd respondent did not know each other. Even the respondents admitted that the 1st and 2nd respondents are the tenants of the 3rd respondent and they are neighbours and therefore, they know each other. There is nothing wrong in neighbours going to tour or travelling with the same travellers and there is nothing wrong in getting tickets by one of the friends or relatives for others. The main defence taken by the respondents is that the wife of the 3rd respondent had purchased the tickets for the 2nd respondent and her daughters and they treated the same as loan and thereafter, they returned the same. But the fact remains that they have repaid the amount only in the year 2006, whereas, the complaint against the respondents was in the year 2004 and the case was registered in the year 2005, i.e. on 29.06.2005 and there was disproportionate assets in the case in C.C.No.18 of 2009 and https://www.mhc.tn.gov.in/judis 31/38 CRL A No.566 of 2012 during the investigation in the said case, the police found the other offences which is the subject matter of this case.
30. Even in the questioning under Section 313 Cr.P.C., any of these defence were not taken by the respondents and they only developed all the defence in that case in C.C.No.18 of 2009, whereas in this case, the prosecution has clearly established from the evidence of P.Ws.2, 4 and 6 that the 1st respondent was working as a public servant, and the 3rd respondent was doing export business in the name of M/s.Triveni Exports Pvt. Ltd. and there was a link and official dealing between them and subsequently, there was a pecuniary advantage or gain received by the 1st respondent through the 2nd respondent from the 3rd respondent.
31. As already stated, the oral and documentary evidence are very clear. Once the prosecution proved the foundational fact that the 1st respondent is a public servant and while dealing with the clearance of export bills of the 3rd respondent, there was a link between the 1st and 3rd respondents and the prosecution has proved the said link. Subsequently, the 1st respondent enjoyed the travel tickets with his wife and children through the 3rd respondent. Therefore, Sections 11 and 12 of the Prevention of Corruption Act would get https://www.mhc.tn.gov.in/judis 32/38 CRL A No.566 of 2012 attracted, as the prosecution proved the said link. Once the foundational fact is proved, then Section 20 of the Act would come into play that there is a presumption. Then, it is for the defence to rebut the presumption in the manner known to law.
32. This Court finds that the prosecution has proved the foundational fact. Therefore, Section 20 of the Act would get attracted against the respondents. The defence has not rebutted the presumption in the manner known to law.
33. On a perusal of the entire oral and documentary evidence, this Court finds that the trial Court failed to appreciate the evidence in right perspective and there is perversity in appreciation of the evidence by the trial Court.
34. As an appellate Court and as a final Court of fact finding, the appellate Court can always re-appreciate the entire evidence. If the Court finds that the appreciation of evidence by the trial Court is perverse and reason for non accepting the prosecution case is perverse and if the appellate Court feels that the prosecution has proved its case and there are compelling circumstances to interfere with the Judgment of the trial Court, in the appeal against acquittal, the appellate Court can interfere, whereas in this case, as already stated, the prosecution has proved the foundational fact and there is a https://www.mhc.tn.gov.in/judis 33/38 CRL A No.566 of 2012 rebuttable presumption in the statute in the Special Act, i.e. The Prevention of Corruption Act and therefore it is for the defence has to rebut the presumption in the manner known to law.
35. Once the foundational fact is proved by the prosecution, the presumption of innocence goes. Then, its for the accused to rebut the presumption and prove his innocence. No doubt, in the appeal against acquittal, the accused has got double presumption, one is that they had already got the presumption of innocence. Further, the trial Court has confirmed the presumption of innocence. The appellate Court has to find out the perversity and compelling reasons for interfering with the Judgment.
36. As far as Section 65-B(4) of the Indian evidence Act is concerned, copy is direct print out taken from the computer and it is secondary evidence and the respondents have not denied the same. Therefore, the non production of certificate under Section 65-B is not vitiated the case of the prosecution. Ex.P.35 is admissible under Section 65-B of evidence Act.
37. On a perusal of the entire materials as discussed above, the contentions of the learned counsel for the respondents are not acceptable and there is no quarrel with the proposition of law laid down by the Hon'ble Apex Court and followed by this Court, in the case of appeal against acquittal, https://www.mhc.tn.gov.in/judis 34/38 CRL A No.566 of 2012 whereas in the case on hand, the facts and circumstances of the case are entirely different and this Court finds that the prosecution has proved the foundational fact, but the defence has not rebutted the presumption in the manner known to law. The defence taken by the respondents are not acceptable and it is not sufficient to rebut the presumption.
38. Therefore, this Court finds that the prosecution has proved its case beyond reasonable doubt that the 1st respondent has committed the offence under Section 11 of Prevention of Corruption Act and the other respondents have committed the offence under Section 12 of Prevention of Corruption Act. Since the 1st respondent is a public servant, consequently, he has committed the offences under Sections 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988. Therefore this Court finds that the respondents/accused persons have committed the charged offences. Therefore, the appeal is allowed.
39. For a reversal judgment, before imposing sentence, the accused have to be heard. Hence, the respondents 1 to 3 are directed to appear before this Court on 03.07.2023 for hearing on the question of sentence. https://www.mhc.tn.gov.in/judis 35/38 CRL A No.566 of 2012
40. List the matter on 03.07.2023 “for hearing on the question of sentence”.
09.06.2023 ksa-2 Index:Yes/No Speaking Order: Yes/no Neutral Citation: Yes/no To
1. The XIV Additional Special Judge for CBI Cases, Chennai
2.Inspector of Police CBI/ACB/Chennai
3. The Public Prosecutor Officer, High Court, Madras
4. The Section Officer, Criminal Section, High Court, Madras. https://www.mhc.tn.gov.in/judis 36/38 CRL A No.566 of 2012 P.VELMURUGAN, J ksa-2 Pre-Delivery Judgment in Criminal Appeal No.566 of 2012 https://www.mhc.tn.gov.in/judis 37/38 CRL A No.566 of 2012 09.06.2023 https://www.mhc.tn.gov.in/judis 38/38