Criminal Appeal No.29 of 1993

31st August, 1995

Petitioner Counsel: Mr.R.S.BHONSALE with Mr.P.D.DESAI with Mr.S.B.SHETYE
Respondent Counsel: Mr.S.B.PATILMr.M.K.PATWARDHAN with Mr.M.M.PATWARDHAN

JUDGMENT

JUDGMENT : This appeal is preferred by the appellant-accused against the order of his conviction and sentence dated 3/4/5/6/9.11.1992 passed by the learned Special Judge, Greater Bombay in Special Case No.25 of 1986.

2. The prosecution case in brief is that, the appellant-accused was working as Assistant Director (Investigation) in Income-tax Department, Bombay. It is alleged that on 24.10.1983 the appellant-accused demanded Rs.20,00,000/- (Rs.twenty lacs) from the complainant Shri Sadruddin H. Daya, the Managing Partner of M/s. Dawood Shoes, as gratification other than legal remuneration under the pretext that the matter of evasion of huge income-tax will be settled. It is alleged that the income-tax department had carried out various raids on the business premises of M/s.Dawood Shoes and M/s. Metro Dawood Shoes Pvt.Ltd. It is also revealed that a sum of Rs.1,00,00,000/- (Rs.One Crore) was due as income-tax arrears from the aforesaid companies. It is alleged that the complainant being a very big businessman and influential person capable of getting his work done through any higher authority. It is further alleged that on 27.10.1983, the complainant alongwith the C.B.I. Officers and the panch witness went to the residence of the appellant at Flat No.27, 6th floor, 'B' Building, Income-tax Colony, Peddar Road, Bombay with bundles of currency notes in all Rs.2,50,000/- and alleged to have handed over the same to the appellant-accused. It also reveals that the bundles of currency notes were found from the down stairs and not from the possession of the appellant-accused. The raiding party went to the flat of the appellant-accused and drew a panchanama of the recovery of the bundles of currency notes in all of Rs.2,50,000/-. Phenolphthalein powder was found on the palm of the right hand of the appellant-accused. The raiding party thereafter started investigation. After completion of the investigation and obtaining sanction under Section 6 of the Act, a complaint was filed against the appellant-accused before the Special court, Greater Bombay.

3. After framing the necessary charges and recording the evidence of the prosecution witnesses including the panch witness, the learned Special Judge held the appellant-accused guilty for offences punishable under Section 161 I.P.C. and also sentenced to suffer R.I. for 3 years and to pay a fine of Rs.50,000/-, in default to suffer R.I. for 9 months for offence punishable under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. The substantive sentence was ordered to run concurrently. Hence this appeal by the appellant-accused against the impugned order dated 9.11.92.

4. Heard Mr. R.S.Bhonsale, learned Counsel for the appellant-accused, Mr.S.B.Patil, learned A.P.P. for Respondent No.1 and Mr. M.K.Patwardhan, learned Counsel for Respondent No.2.

5. It has been submitted by the learned Counsel Mr. Bhonsale for the appellant-accused that this is a bogus case created against the appellant-accused, an honest officer. It is submitted that the complainant has not come to the Court with clean hands. It is submitted that the complainant was in default of evasion of income-tax to the extent of more than rupees one crore. Not only that but he had suppressed his properties and his real income and therefore, the income tax department had carried out various raids on the business premises of the complainant. The learned Counsel has further submitted that after this incident, the complainant was appointed as the Sheriff of Bombay for a period of one year. It has been further submitted by the learned Counsel that P.W.8 Dravida Laxminarayan, who was the superior officer of the appellant-accused, has admitted in his deposition that the appellant was an Assistant Director (Investigation) and he has no power to settle the matter regarding evasion of income-tax. His duty was to scrutinise the complaints which he received from the assessees and to forward the same to his higher officer for approval and as per his directions, the appellant investigates the cases and thereafter he has to make reports to his superior officer and the final authority for settling the dispute regarding income-tax assessment is the Commissioner of Income-tax. Therefore, the appellant is not competent officer who can settle the matter or do any favour to the complainant and that is within the knowledge of the complainant. It is further submitted that P.W.8 has admitted in his deposition that the complainant used to see him alongwith his manager but the complainant did not complain to this officer (P.W.8) against the appellant-accused. It is further submitted that no doubt, many income-tax raids were carried out on the business premises of the complainant and the complainant suspects that the appellant-accused was behind the said raids. Therefore, the complainant wanted to teach him a lesson and stop him (accused) from taking further action against the complainant. Hence, the complainant created this concocted story and with his influence, he approached the C.B.I. and arranged a trap on false allegations. The learned Counsel has submitted that the complainant has not only lodged a complaint with the C.B.I. but he accompanied the raiding party and gone to the residence of the appellant with the bundles of currency notes in all of Rs.2,50,000/-. It is further submitted by the learned counsel that the panch witness has not supported the prosecution case regarding the demand and acceptance of the bribe money by the appellant. The learned Counsel has submitted that except the evidence of the complainant (P.W.1), who is a highly interested witness, there is no evidence on record to support the charge levelled against the appellant. However, Mr.M.K.Patwardhan, learned Counsel appearing for C.B.I. has emphatically submitted that the Judgment of the learned Special Judge is absolutely correct and there is no reason for interfering with the findings and reasoning of the learned Special Judge and it should be confirmed by this Court and the appeal of the appellant should be dismissed. It is not possible for me to agree with these submissions of Mr.Patwardhan. In my opinion, the impugned judgment is unsustainable and the order of conviction and sentence deserves to be set aside. It is an admitted fact that the appellant was working as an Assistant Director (Investigation) at the relevant time and his duties and functions were not to settle the income-tax assessments but to receive complaints and to scrutinise those complaints and to forward the same to his superior officer for final action. Except that, he has no other duties, as alleged by the complainant (P.W.1). It is also admitted by P.W.8 that it was not the duty of the appellant to arrange raids on the business premises nor he was the authority to recommend for carrying out raids. Further, P.W.8 has admitted that the appellant was not an officer who was competent to settle the income-tax matters. Therefore, the question is what is the truth in the statement of the complainant (P.W.1) that the appellant-accused demanded Rs.20,00,000/- from him as illegal gratification for settling the dues of Income-tax of the complainant. It is on record that a huge sum of rupees two and a half crores was due from the complainant as outstanding arrears of income-tax and out of which it was found by the authority that the complainant was liable to pay rupees one crores as income-tax and that amount he was avoiding to pay. Despite several raids carried out on the business premises of the complainant (P.W.1), the department could not take any action against him because of the influence of the complainant at top level and with a view to impress upon the Income-tax Department and to stop it from making complaints against him and taking any action against appellant, so that the Income-tax Department could not touch him in future. In the instant case, it reveals from the record that the complainant himself had not gone to the Court with clean hands. As observed above, he concealed his property and income worth rupees two and a half crores and did not pay income-tax thereon. Despite this fact, he was designated as the Sheriff of Bombay as a most honest, reputed and honourable person of Greater Bombay. No doubt, the complainant is a very big businessman but he need not go for offering the gratification at the house of the lowest rank officer like the appellant herein. It would have been done through his Manager or any other officer of his company. It reveals from the record that he himself approached twice the appellant and offered the amount. It also reveals from the record that when the raid was carried out, at his business premises, the Police Commissioner Mr. Ribeiro was sent to his business premises by some Minister to watch that no damage could be caused to the reputation of this big businessman who was going to be appointed as a Sheriff of Bombay City. In short, the complainant (P.W.1) has not approached the Court for justice with clean hands. Therefore, the question of accepting his oral deposition and testimony without any corroboration and to record the conviction solely on the evidence of such a highly interested witness who has not come with clean hands, does not arise in this case. It is an admitted fact that the panch witness (P.W.2) who is a very material witness in the case of the trap carried out by the C.B.I. and considered to be an independent witness, has not supported the prosecution. It is also an admitted fact that no money was found from the possession of the appellant but it was found from the down stairs. The only evidence the Learned Special Judge has relied on in recording the conviction is that the phenolphtalein powder was found on the palm of the hands of the appellant and led him to the conclusion that he must have accepted the money. The learned Judge has failed to consider and appreciate the explanation given by the appellant-accused that while shaking hands with P.W.1 his hand must have come in contact with the hand of the complainant having phenolphthalein powder inside the palm of his hand. Further the weakness of the prosecution is that it failed to prove the demand of gratification. Even in the deposition of the complainant (P.W.1), there is no specific demand of illegal gratification on the date of the trap. There is no evidence to show that the appellant had demanded and accepted the money. Panch witness (P.W.2) does not support the prosecution on this point. Therefore, the ingredients of Section 161 I.P.C. and Section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act cannot be held to be proved against the appellant-accused. There must be demand and acceptance by the accused of the illegal gratification supported by the independent evidence. The prosecution has failed to prove the ingredients of the aforesaid provisions. On the contrary, it is proved that it was a false case created by P.W.1, the complainant for ulterior motive which I have observed above and for that an officer like the appellant should not suffer. He has been suspended immediately after the trap and till today, he is under suspension. It is submitted by the learned Counsel for the appellant that despite the directions in Criminal Application No.1584 of 1994 filed by the appellant against the Income-tax Department for reinstatement of the appellant-accused, given by this court, the appellant-accused has not been reinstated and he is still under suspension. Because of this false case, the appellant has suffered financial loss and mental torture for 12 years.

6. In the result, the appeal is allowed. The order of conviction and sentence dated 3/4/5/6/9-11-1992 passed by the Special Court is quashed and set aside and the appellant is honourably acquitted of the offences with which he has been charged and there would be no stigma on the service record of the appellant regarding false complaint and he is certainly entitled for the reinstatement on his original post with all benefits of his service conditions.

7. For the reasons stated above, this Court is satisfied that the complainant has not come with clean hands to the court but with a view to save his own skin, he has filed false complaint and involved the appellant falsely in a serious offence and the appellant had to undergo mental torture, financial loss and his social reputation has also been damaged as he remained under suspension for 4 years during the last 12 years, for no fault of his. It is clear that the complainant who was designated some time as Sheriff of Greater Bombay and who is a recognised businessman of India, has gone to the extent of creating false case and involving and innocent officer such as the appellant, the court should not encourage such complainant who has not come to the court with clean hand. Therefore, I propose to issue a show-cause notice under Section 250 of the Criminal Procedure Code to the complainant, calling upon him that why he should not be punished by imposing fine for filing false complaint in the Court and misused the process of the Court. The complainant Shri Sadruddin H. Daya is directed to remain present before this court on Monday, 9th October, 1995 at 11.00 a.m.

Certified copy expedited.

Order accordingly.