Bombay High Court
Narayanlal Mansaram Rawal vs Union Of India And Anr on 29 January, 2019
Author: A.M.Badar
Bench: A.M.Badar
20.APPA.658.18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.658 OF 2018
IN
CRIMINAL APPEAL NO.1032 OF 2017
Narayanlal Mansaram Rawal ...Applicant
V/s.
Union of India & Anr. ...Respondents
Mr. Madhusudan Pareek a/w. Shashikant Parab, Advocate for the
Applicant.
Ms. Ameeta Kuttikrishnan, Advocate for respondent No.1.
Mr. M.R. Tidke, APP for the Respondent State.
CORAM : A.M.BADAR, J.
DATED : 29th JANUARY 2019
P.C. :
1. This is an application for suspension of conviction recorded
against the applicant/accused for the offence punishable under
Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention
of Corruption Act, 1988 (hereinafter referred to as the PC Act for
the sake of brevity).
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2. The applicant/accused, at the relevant time, was a public
servant and was working as the Assistant Commissioner of Income
Tax, Circle 21(3), Mumbai. He was accused of demanding illegal
gratification amounting to Rs.4 Lacs on 24.03.2014 from M/s.
Hallmark Engineers and then to reduce that amount to Rs.1 Lac
and subsequently accepting an amount of Rs.1 Lac towards illegal
gratification on 29.03.2014 from PW-1 Praveen Agrawal of M/s.
Hallmark Engineers.
3. Heard the learned Counsel appearing for the
applicant/accused at sufficient length of time. He took me
through the entire evidence adduced by the prosecution and
submitted that it is the case of prosecution that amount of illegal
gratification was initially demanded from PW-4 Rajesh Lavekar,
Senior Accountant working with M/s. Hallmark Engineers. By
taking me through evidence of PW-4 Rajesh Lavekar, it was
pointed out that in cross-examination, this witness has candidly
accepted the fact that on 24.03.2014, there was no demand of
money from the accused for passing favourable order. It is argued
that evidence of PW-11 Praphulla Ghodeswar, Investigating
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Officer shows that he had not even called PW-4 Rajesh Lavekar for
verification of demand allegedly made by the accused on
24.03.2014. The learned Counsel further argued that so far as
demand made on 29.03.2014, there is no evidence to that effect
by the prosecution. The learned Counsel argued that evidence in
respect of this demand is coming from evidence of PW-1 Praveen
Agrawal, complainant in the instant matter. However, his
evidence is not corroborated by any other evidence. PW-3 Sunil
Buga was a shadow panch and his evidence shows that the alleged
demand was not made by the accused in his presence. With this,
the learned Counsel took me through evidence of PW-3 Sunil Buga
and PW-11 Prafulla Ghodeswar, Investigating Officer to show that
their evidence is not corroborating evidence of PW-1 Praveen
Agrawal regarding the events allegedly took place on 29.03.2014
leading to recovery of tainted currency notes from the vehicle in
which the applicant/accused was sitting. It is argued that
evidence of the prosecution regarding the place occupied by the
applicant/accused in the car, so also the events which took place
thereafter leading to acceptance of the tainted currency notes by
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the applicant/accused is totally contradictory.
4. The learned Counsel for the applicant/accused further
argued that evidence of PW-10 M. Murli, Joint Commissioner of
Income Tax shows that it was on 27.03.2014 that assessment
order was already passed and uploaded. As such, there was no
cause or reason for demanding illegal gratification by the
applicant/accused from the complainant and that too on
29.03.2014.
5. By drawing my attention to evidence of PW-2 V.
Vinodkumar, Under Secretary (Vigilance and Litigation-I), Central
Board of Direct Taxes, the learned Counsel argued that he had just
signed sanction order and as such, there is no evidence to show
that prosecution of the applicant/accused was backed with the
valid sanction by the appointing authority. Hence, according to
the learned Counsel for the applicant/accused, considering the
nature of evidence against the applicant/accused and the fact that
neither initially nor subsequently demand was proved by the
prosecution and as there are discrepancies regarding recovery of
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the tainted currency notes leading to inference of planting,
conviction of the applicant/accused needs to be stayed. My
attention is drawn to the show-cause notice of termination of
services of the applicant/accused.
6. The learned Advocate representing the respondents argued
that there is cogent evidence regarding demand of illegal
gratification by the applicant/accused on 29.03.2014 from PW-1
Praveen Agrawal and his version is corroborated by evidence of
PW-7 Deepak Tanwar, Senior Scientific Officer, Grade-I (Physics)
of CFSL, New Delhi. My attention is drawn to the recorded
transcription of the applicant/accused reproduced by the learned
trial Court. With this, it is argued that no case for suspension of
sentence is made out.
7. I have carefully considered the submissions so advanced
and perused the material placed on record.
8. Demanding and accepting illegal gratification by a public
servant as a motive or reward for doing or forbearing to do any
official act amounts to an offence punishable under Section 7 of
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the PC Act. Explanation (d) to Section 7 of the PC Act explains
"what is meant by motive or reward for doing". Even if the public
servant does not intend or is not in a position to do, or has not
done, then also it can be said that he has motive or reward for
doing any official act or forbearing to do so. As such, at this
preliminary stage, uploading of assessment order on 27.03.2014
cannot be said to be a reason for stay to the conviction.
9. It is seen from evidence of PW-1 Praveen Agrawal that he
was carrying a digital voice recorder with him and that he made
the demand on 29.03.2018. Conversation between him and the
applicant/accused was recorded and the prosecution has relied on
transcript of that recording. Sample of voice of applicant/accused
was taken and PW-7 Deepak Tanwar, Senior Scientific Officer
examined the recorded voice as well as sample of voice of the
applicant/accused. His evidence shows that recorded conversation
appears to be in the voice of the applicant/accused. Perusal of the
portion of the transcript relied by the learned trial Court
corroborates version of the complainant to show that there was
demand of amount of Rs.1 Lac.
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10. Evidence of the prosecution shows that ultimately the
tainted currency notes were recovered from the vehicle in which
the applicant/accused was traveling. Whether those were planted
or not cannot be considered at this stage because this aspect will
have to be examined at the time of final hearing of the appeal by
meticulous marshaling of evidence. Suffice it to say that this
cannot be a case of no evidence against the applicant/accused.
11. So far as sanction is concerned, Section 19 of the PC Act is
relevant. At appellate stage, no finding, sentence or order passed
by a special Judge can be reversed or altered on the ground of
even absence of sanction unless failure of justice is demonstrated.
12. At this juncture, it is apposite to quote the observations of
the Honourable Delhi High Court in the matter of Shyam Narain
Pandey v. State of Uttar Pradesh1, wherein in paragraph Nos.9 to
13 it is held thus :
"9 It may be noticed that even for the suspension of the
sentence, the court has to record the reasons in writing under
Section 389(1) Cr.PC. Couple of provisos were added under
1 (2014) 8 Supreme Court Cases 909.
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Section 389(1) Cr.PC pursuant to the recommendations made
by the Law Commission of India and observations of this Court
in various judgments, as per Act 25 of 2005. It was regarding
the release on bail of a convict where the sentence is of death or
life imprisonment or of a period not less than ten years. If the
appellate court is inclined to consider release of a convict of such
offences, the public prosecutor has to be given an opportunity
for showing cause in writing against such release. This is also an
indication as to the seriousness of such offences and
circumspection which the court should have while passing the
order on stay of conviction. Similar is the case with offences
involving moral turpitude. If the convict is involved in crimes
which are so outrageous and yet beyond suspension of sentence,
if the conviction also is stayed, it would have serious impact on
the public perception on the integrity institution. Such orders
definitely will shake the public confidence in judiciary. That is
why, it has been cautioned time and again that the court should
be very wary in staying the conviction especially in the types of
cases referred to above and it shall be done only in very rare and
exceptional cases of irreparable injury coupled with irreversible
consequences resulting in injustice.
10 In Ravikant S. Patil v. Sarvabhabhouma S. Bagali
[(2007) 1 SCC 673], a three-Judge Bench of this Court has
held that the power to stay the conviction ... "should be
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exercised only in exceptional circumstances where failure to stay
the conviction would lead to injustice and irreversible
consequences". In Navjot Singh Sidhu v. State of Punjab and
another [(2007) 2 SCC 574], following Ravikant S. Patil
case (supra), at paragraph-6, this Court held as follows:
"6. The legal position is, therefore, clear that an
appellate court can suspend or grant stay of order of
conviction. But the person seeking stay of conviction should
specifically draw the attention of the appellate court to the
consequences that may arise if the conviction is not stayed.
Unless the attention of the court is drawn to the specific
consequences that would follow on account of the
conviction, the person convicted cannot obtain an order of
stay of conviction. Further, grant of stay of conviction can
be resorted to in rare cases depending upon the special facts
of the case."
11 In State of Maharashtra through CBI, Anti
Corruption Branch, Mumbai v. Balakrishna Dattatrya
Kumbhar [2012 (12) SCC 384], referring also to the two
decisions cited above, it has been held at paragraph-15 that:
"15. ...the appellate court in an exceptional case, may put
the conviction in abeyance along with the sentence, but
such power must be exercised with great circumspection
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and caution, for the purpose of which, the applicant must
satisfy the court as regards the evil that is likely to befall
him, if the said conviction is not suspended. The court has
to consider all the facts as are pleaded by the applicant, in
a judicious manner and examine whether the facts and
circumstances involved in the case are such, that they
warrant such a course of action by it. The court
additionally, must record in writing, its reasons for
granting such relief. Relief of staying the order of conviction
cannot be granted only on the ground that an employee
may lose his job, if the same is not done."
12 In State of Maharashtra v. Gajanan and another
[(2003) 12 SCC 432], and Union of India v. Atar Singh and
another [(2003 12 SCC 434], cases under the Prevention of
Corruption Act, 1988, this court had to deal with specific
situation of loss of job and it has been held that it is not one of
exceptional cases for staying the conviction.
13 In the light of the principles stated above, the contention
that the appellant will be deprived of his source of livelihood if
the conviction is not stayed cannot be appreciated. For the
appellant, it is a matter of deprivation of livelihood but he is
convicted for deprivation of life of another person. Until he is
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otherwise declared innocent in appeal, the stain stands........."
13. In the light of the ratio of the judgment in the matter of
Shyam Narain Pandey (supra), issuance of show-cause notice or
termination of service of the accused does not constitute sufficient
ground for stay to the conviction recorded by the learned trial
Court for offence under the PC Act. In the result, the following
order:
ORDER
(i) The application is rejected.
(ii) It is needless to mention here that all the observations in this order are prima facie in nature and have no bearing on the disposal of appeal on merits.
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