TMI Blog2014 (9) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. Assessee) was the Managing Director. There is sufficient evidence on record establishing the fact as to how Shri S.P. Goenka, Chairman of M/s. Kitply Industries Ltd. (assessee) got made Demand Draft through M/s. Warren Tea Ltd., of which he was the Financial Adviser. Court is in agreement with the trial court that the prosecution has successfully proved charge of offence punishable under Section 11 of Prevention of Corruption Act, 1988 against accused/appellant, Smti L.R. Mithran. As such, the conviction recorded against her does not require any interference. But as far as sentence awarded by the trial court is concerned, in the facts and circumstances of the case, particularly when the order passed by the accused/appellant, Smti L.R. Mithran, Commissioner of Central Excise was not only upheld by the CEGAT (Appellate Authority) but also penalty awarded against the assessee was reduced, this Court is of the view that awarding of sentence of 6(six) months which is the minimum sentence prescribed under Section 11 of Prevention of Corruption Act, 1988 would have met the ends of justice. - Decided against Appellant. - Crl. Appeal No. 9 of 2010 - - - Dated:- 13-6-2014 - Praful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the name of her mother for which a Tata Mobile vehicle bearing registration No. ML 05-D-2648 was donated by co-accused, Shri Shanti Prakash Goenka (since died), Chairman of M/s. Kitply Industries Ltd. Not only this, ₹ 5,00,000/- through demand draft No. 483425, dated 23-12-1996 was also got donated by above mentioned assessee through one M/s. Warren Tea Ltd., Kolkata of which Shri Vijay Kumar Goenka (son of co-accused, Shri S.P. Goenka) was Managing Director. Apart from this, accused/appellant s son, Shri. A.R. Mithran was also got employed in a coal business with the help of co-accused, Shri S.P. Goenka. 5. A First Information Report was registered by Central Bureau of Investigation (for short CBI) on 7-1-1999 as crime No. RC.2 (A) 1999-SHG relating to offence punishable under Prevention of Corruption Act, 1988 against accused, Smti L.R. Mithran, the then Commissioner Central Excise, Shillong which was investigated by PW 30, Shri Raghupati Bose, Deputy Superintendent of Police, CBI. After investigation, the Investigating Officer submitted charge sheet against both the accused, Smti L.R. Mithran and co-accused, Shri Shanti Prakash Goenka for their trial in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of United Bank of India stated that he prepared the draft Ext 17 of donation of ₹ 1,00,000/- in favour of the Trust. PW-11 Pipin Ch. Bordoloi, the then Assistant Manager, State Bank of India has proved seizure memo Ext 19 relating to Demand Draft of ₹ 3,01,955/-. PW-12 Subrata Kannangoe, the then Manager of United Bank of India proved the application Ext 16 of Demand Draft of ₹ 1,00,000/- prepared in favour of the Trust. PW-13 Sanjay Sen, the then Manager Accounts of Warren Tea Ltd., apart from proving voucher of cheque of ₹ 3,01,955/-, also stated that the Demand Draft of ₹ 5,00,000/- was sent to co-accused, Shri SP Goenka for payment to the Trust. PW-14 Haridasan Nair, the then Office Assistant (Legal) of M/s. Kitply Industries Ltd has proved his presence with co-accused, Shri SP Goenka when adjudication matter was heard by accused/appellant, Smti L.R. Mithran. PW-15 Subhajit Kumar Ghosh, the then Manager Finance of M/s. Warren Tea Ltd proved slip Ext. 21 issued by co-accused Shri S.P. Goenka (since died) to get prepared Demand Draft of ₹ 5,00,000/- in favour of Zami Memorial Charitable Trust. PW-16 Bidhu Bhusan Khatua, is a retired employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 80G of Income Tax Act in respect of total sum of ₹ 8,01,955/- paid to Zami Memorial Charitable Trust. PW-29 Nirupam Kar, the then Officer posted in Directorate of Vigilance Customs and Central Excise, Kolkata verified the authenticity of the complaint received against accused, Smti L.R. Mithran on which initial inquiry started. And PW-30 Raghupati Bose, the then Deputy Superintendent of CBI who investigated the crime has stated that during investigation how he made searches and collected the documentary and oral evidence. Nothing has come out in the cross-examination of witnesses which creates doubt in their testimony. Rather their statements got corroborated from the documentary evidence proved by them. 8. Oral and documentary evidence was put to the accused/appellant, Smti L.R. Mithran on 26-11-2009 under Section 313 of Code of Criminal Procedure, 1973. In her replies, she has admitted that the search was made by CBI in her house as stated by PW-1 Samu Raj Bongshi who proved the seizure memo Ext 1. She has admitted that said document was prepared. In reply to another question relating to PW-2, she admitted that as stated by PW-2, Smti Lumlanglin Kharkongor, Z ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Trust was signed by her as introducer. She also admitted that receipt Ext.14 of the amount of ₹ 3,01,955/- (price value of the vehicle donated) was issued by Zami Memorial Charitable Trust, Shillong in favour of M/s. Warren Tea Ltd. Regarding the statement of PW-9 Debashish Ghosh, accussed/appellant, Smti L.R. Mithran has stated that on 9-4-1999 CBI officials did search her house and recovered paper marked 1, 2 and 4. She also admitted that Ext 17 is the correct document which relates to payment of ₹ 1,00,000/- donated in favour of Zami Memorial Charitable Trust through demand draft No. 535617, as such she accepted what PW-10 Paresh Ch. Sarma and PW-12 S. Kannangoe have stated in their evidence. With regard to the statement of PW-23 P. Ramakrishna Rao that Zami Memorial Charitable Trust has savings account No. 10308 Ext 8, the accused (appellant) Smti L.R. Mithran stated that the said fact is correct. She also stated that she along with other 3(three) family members was trustee as stated by PW-23 P. Ramakrishna Rao. She admitted in reply to question No. 28 put under Section 313 of Cr. P.C. by the trial court that PW-24 Rikman Momin @ Ricky has correctly deposed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority but also by the Apex Court. However, the question before this Court is not the correctness of the order but whether in lieu of passing such order the accused/appellant has received any valuable consideration in the name of the Trust created by her in the name of her mother. It is further argued that the appellant has not received anything for herself. It is also contended that the donation of ₹ 5,00,000/- was given to Zami Memorial Charitable Trust after the adjudication order was passed by the accused/appellant as Commissioner Central Excise, as such there was no favour shown to assessee as the order had already been passed. 11. Section 11 of the Prevention of Corruption Act, 1988 reads as under : 11. Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant. - Whoever, being a public servant, accepts or obtains or agrees to accept or attempts to obtain for himself, or for any other person, any valuable thing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, without consideration or for a consideration which he knows to be inadequate . 15. From the sub-section (1) of Section 20 quoted above, it is clear that once it is proved in trial relating to offence punishable under Section 11 that the accused has accepted any valuable thing, it shall be presumed that such person has accepted it as a motive or reward, unless contrary is proved. In the opinion of this Court, the mere fact that the Appellate Authority has upheld the correctness of the order cannot justify the acceptance of valuable thing or money during the proceeding of adjudication or subsequent thereto, particularly when such consideration is accepted not long after the adjudication. In the present case, the vehicle was donated by the assessee to Zami Memorial Charitable Trust made in the name of mother of the accused/appellant, Smti L.R. Mithran during the proceedings of the adjudication by getting made payment through M/s. Warren Tea Ltd., of which Vinay Kumar Goenka (son of Shri. S.P. Goenka, Chairman of M/s. Kitply Industries Ltd., i.e. Assessee) was the Managing Director. There is sufficient evidence on record establishing the fact as to how Shri S.P. Goenka, Chairman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as a reward for conduct of public duty. This Court has already discussed the prosecution evidence by which the charge stood proved. 19. For the reasons as discussed above and after going through the evidence on record, this Court is in agreement with the trial court that the prosecution has successfully proved charge of offence punishable under Section 11 of Prevention of Corruption Act, 1988 against accused/appellant, Smti L.R. Mithran. As such, the conviction recorded against her does not require any interference. But as far as sentence awarded by the trial court is concerned, in the facts and circumstances of the case, particularly when the order passed by the accused/appellant, Smti L.R. Mithran, Commissioner of Central Excise was not only upheld by the CEGAT (Appellate Authority) but also penalty awarded against the assessee was reduced, this Court is of the view that awarding of sentence of 6(six) months which is the minimum sentence prescribed under Section 11 of Prevention of Corruption Act, 1988 would have met the ends of justice. 20. Accordingly, this appeal is dismissed on the point of conviction recorded under Section 11 of Prevention of Corruption Act, 1988. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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