TaxTMI 
TaxTMI 
2023 (6) TMI 687
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....learned High Court Government Pleader for respondent. 3. The rank of the parties before the trial Court is retained for convenience. 4. The case of prosecution is that P.W. 1-Harsha Gupta, who is said to be Joint Commissioner of Commercial Taxes, filed a written complaint as per Ex.P.1 on 01.08.2001 alleging that on the said date at about 6.00 p.m., he received telephone call from his wife that a person by name Giri Prasad Kulkarni came to home at 5.30 p.m. and handed over a packet stating that it contained some official papers and to be handed over to the complainant and the said person is said to be told that he would come and meet him (complainant) and he also said to be left the mobile phone number as 9844065789. Then his wife verified the same and had a doubt that the packet contains some money. Then she found that the packet contained 500 rupees notes bundle. Then she called him through neighbour's phone and informed the same. Immediately, he called the D.C.P. Sri Venugopal over mobile phone, who informed that he would send jurisdictional police inspector to his house. Then the complainant went to his house at 7.30 p.m. By the time, the police inspector was waiting ....
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....nce. The learned counsel further submitted that, in the complaint, it is stated that the accused left a slip containing cell phone number and the same is not produced and marked. The complainant was aware of the commission of the offence and he has tried to call the accused by phone, but not lifted the phone. There are no call records seized by the police to show that the accused contacted the complainant in the office frequently. Absolutely, there is no connecting evidence in the case. The slip said to be left by the accused has been taken out by P.W. 2 but she has stated that it was misplaced. The investigation officer came to the house and obtained the slip, but the same was suppressed. Therefore, when the slip and phone number were not placed before the Court, the question of convicting the accused does not arise. Therefore, the conviction of the appellant-accused is not sustainable. 9. The learned counsel for the appellant further contended that the burden of proof was wrongly placed. The person who compelled to bribe may be a victim, but not an accused. The complainant has withheld the payment receivable by the accused. Therefore, the chances of making demand by the compla....
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....e: (i) Whether the prosecution proves beyond reasonable doubt that, on 01.08.2001, the accused came to the house of P.W. 1 for bribing the public servant and given Rs. 50,000/- and he has abetted P.W. 1 for commission of the offence Punishable Under Section 7 of P.C. Act, thereby he has committed the offence punishable under Section 12 of the P.C. Act ? (ii) Whether the judgment of conviction and sentence passed by the Trial Court calls for interference ? 15. On perusal of the records, prior to appreciating the evidence on record, it is worth to mention the evidence added by the prosecution before the trial Court. 16. P.W. 1 Harsha Gupta is the complainant. He has deposed, in support of his complaint, that the accused said to be running a firm in the name of 'M/s. Baltronix' and he has supplied the electronic goods to the government departments, through fake invoices and collected taxes for supplying the goods. On filing of the complaint, the investigation was done by the Assistant Commissioner, Commercial Tax, Investigation Wing and sales tax dues were recovered from accused and the case was compounded. P.W. 1 has further deposed that the appellant-....
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....ontained the bundle of Rs. 500 of 100 currency notes. The police recorded her statement and she had identified the said cash as M.O. 1 and the cover as M.O. 2. She also stated that because of long gap of five years, she cannot recall that person. When the accused was shown to the witness who was standing in the witness box, she identified as the said person. 18. P.W. 3 one S. Selvakumar, IAS officer and colleague of P.W. 1, has stated that on 1.8.2001, he came to Bangalore to attend the official work. On that date, P.W. 1 asked him to come to his house at 8.00 pm. When he went to the house, P.Ws. 1 and 2 were present and they informed that one Kulkarni came to the house and left the bundle of cash He further deposed that the police opened the bundle in their presence that was containing Rs. 500/- 100 currency consisting of Rs. 50,000/- The police seized the same under panchanama as per Ex.P.2 and he has identified M.O. 1 and 2 -the cash as well as cover. 19. P.W. 4 Shivashankar, the Deputy Commissioner, who has stated that he was working as Assistant Commissioner of Commercial Tax and at the relevant point of time, P.W. 1 was Joint Commissioner and in charge of investigation.....
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....lecom company in respect of phone number 9844065789 as per Ex.P. 15. The bill paid by the accused for mobile phone is marked as Ex.P.16 and he has filed charge sheet. 23. On perusal of the evidence of prosecution witnesses and the arguments addressed by the learned counsel for the appellant, it is seen that, in the cross examination of P.W. 2 who was the only person seeing the accused that he came to the house and given the bundle of cash. P.W. 2 has stated that the accused himself informed that he is Kulkarni and he wants to hand over the bundle to her husband. Then she went to neighbour's house and made telephone call to P.W. 1 but could not contact her husband. She says that the accused came to home at 4.30 p.m. and he was standing there in the house and tried to hand over the same. But once again P.W. 2 went to the neighbour's house and contacted P.W. 1 and informed about the arrival of the accused. When she came back, the accused was not there, but he left the bundle consisting of cash and he left the chit containing the name and phone number. P.W. 2 has not stated in her evidence that, what was the phone number left by the accused in her house. She also says tha....
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....e house of P.W. 1. 25. Apart from that the prosecution has not examined the independent panch witnesses for Ex.P.2 Though they cited as One Yousuff panch witness C.W.7 was not examined before the Court. The other two maid servants working in the house of P.W. 1 were also not examined before the court to confirm that the accused himself came to the house and left M.Os.1 and 2. 26. P.W. 3, an I.A.S officer and batch mate of P.W. 1 said to be came to Bangalore and on invitation of P.W. 1, he came to the house of P.W. 1. The police opened the bundle and found the cash the same was seized under panchanama as per Ex.P.2. P.W. 5 who was the person who registered FIR by obtaining complaint and prepared panchanama. 27. P.W. 5 has categorically stated he has prepared the panchanama Ex.P.2 and seized the cash between 8.30 and 9.10 p.m. Then he came to the police station and registered the FIR as per Ex.P.13. Ex.P.13-FIR reveals that it was registered by the police after 9.30 p.m. An entry was made in the general station house diary at 9.15 p.m., which clearly reveals that the police officer seized M.O.No. 1 and 2 under the panchanama Ex.P.2 between 8.30 and 9.10 pm prior to the regis....
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....ope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/ family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and ....
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....r the alleged demand. The first trap fails and the second trap is a failure." 32. Though the prosecution produced Exs. P.4 to P.12, but those documents reveal that the work of the accused was already completed and the matter was compounded by P.W. 1. Actually, the assessing officer was P.W. 4. Such being the case, the possibility of P.W. 1 demanding bribe from the accused, is not ruled out. The accused might have brought money on demand made by P.W. 1. When the accused came to the house of P.W. 1 and at the same time, P.W. 3 might have come to the house and witnessed the cash left by the accused. Then there is every chance of P.W. 1 or P.W. 2 informing the police for registering the case. Otherwise, how the accused could come to the house of P.W. 1, who had given the address to the accused in order to bring money. As rightly contended by the learned counsel for the appellant, the accused might be the victim and P.W. 1 might have demanded money for having done favourable work to the accused. Therefore, when there are two views are possible, one, the accused might brought the money for bribing P.W. 1 for having done his work and compounding the offence, or second, P.W. 1 might hav....