TMI Blog2020 (10) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the investigating officer - it is not possible to fault the prosecution case on account of the non-examination of the investigating officer in this matter. It is difficult to hold that the prosecution, in this case, has established the guilt of A.2 beyond a reasonable doubt. Therefore, the benefit of the doubt is due to A.2 in this matter. In so far as the sentence awarded to A.1 is concerned, there is no case made out for interference. There is no merit in the contention that the learned Special Judge has applied the 2014 amendment by which the minimum punishment is enhanced to 4 years. In this case, the learned Special Judge had not imposed minimum punishment upon A.1. The learned Special Judge rejected the contention on behalf of A.1 that some lenient sentences should be imposed upon A.1 - Even the fine imposed by the learned Special Judge is quite consistent with the parameters under Section 16 of the said Act. Accordingly, there is no case made out to interfere with the sentence imposed upon A.1. Appeal dismissed. - CRIMINAL APPEALS NO. 59 & 63/2014 CRIMINAL APPEAL NO. 59/2014 - - - Dated:- 27-10-2020 - M.S. SONAK, J. Mr. P.P. Singh and Mr. Devendra Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Penal Code(IPC) r/w. 13 (2)(e) of the said Act. 5. Since, both A1 and A2 refused to plead guilty, the trial ensued in which prosecution examined 15 witnesses. Thereafter, both A1 and A2 neither examined themselves nor led any defence evidence in the matter. By the impugned judgment and other, both, A1 and A2 were sentenced as aforesaid, and hence, these appeals by A1 and A2. 6. Mr. P. P. Singh, the learned Counsel for the appellants, at the outset pointed out that there is a breach of Section 17 of the said Act, since investigations, in this case, were carried out by Police Sub Inspector (PSI) and not Inspector of Police (PI) who alone was competent to investigate offences under Section 13 (1)(e) of the said Act. He submits that for this reason itself the entire investigation into the matter was without jurisdiction and the consequent conviction and sentence is also without jurisdiction. Mr. Singh relies on Inspector of Police, Visakhapatnam v/s. Surya Sankaram Karri 2006 7 SCC 172 in support of his contention. 7. Mr. Singh submits that in this case there was no sanction under section 197 CrPC and this is an additional ground for which the learned Special Court cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the aforesaid, Mr. P.P. Singh had also pointed out that there was absolutely nothing in the testimony of PW1, PW3, PW4, and PW8, which could incriminate any of the appellants in this matter. He pointed out that the evidence of PW4, PW5, PW6, PW7, PW12, and PW15 is beneficial to the case of A1 because these witnesses prove the expenditure incurred by A1 as also they prove the income of A2 in this matter. 12. Mr. P. P. Singh submits that the evidence of PW2 is not at all creditworthy. This witness admitted that there was a bar to acceptance of cash above 50,000/- towards Rs. payment of premia to LIC. Despite this, the Special Court has taken into account premiums more than ₹ 50000/- which were allegedly paid in cash to LIC. 13. Mr. P. P. Singh submits that the testimony of PW11 Baliram Nakhawa is not creditworthy and there are inherent contradictions in the documents produced by this witness. He submits that in any case, the evidence of PW11 establishes that A2 was having her own business of transportation for which she obtained loans from the bank. 14. Mr. P.P. Singh submits that the testimony of PW.13 and PW.14, the two employees of Goa Shipyard Ltd, who purported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ored by the learned Special Judge. Mr. P.P. Singh, therefore, submits that even the sentence warrants interference. 18. For all the aforesaid reasons, Mr. Singh submits that the appellants may be acquitted of the offence for which they were charged or, in the alternative, at least A2 may be acquitted and the sentence imposed on A1 be set aside. 19. Mr. Amonkar, the learned Special Public Prosecutor defends the impugned Judgment and Order based upon the reasoning reflected therein. He points out that in this case, there is ample oral, as well as documentary evidence on record, which is sufficient to sustain the conviction of the Appellants in this matter. He points out that since the case of the prosecution is mainly based upon documentary evidence, which was not even challenged in the course of cross-examination or objected at the time of production, there was no necessity to examine the IO in this matter. He points out that there is no violation of Article 20 of the Constitution of India and the sentence imposed is in terms of the law prevalent during the check period from 1/5/2008 to 6/1/2011. He points out that this is a gross case and, therefore, there was no necessity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact, the learned Special Court has been lenient to both the appellants and, therefore, even the sentence warrants no interference. For all the aforesaid reasons, Mr. Amonkar submits that both these appeals may be dismissed. 24. The rival contentions now fall for my determination. 25. Since the appellants' first contention is based on the provisions of Section 17 of the said Act, the same are transcribed below for the convenience of reference 17. Persons authorised to investigate .- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,- (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under subsection (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Ashok Bhutia(supra), the Hon'ble Apex Court was dealing with the challenge based upon improper authorization and invalid sanction similar to the contention raised in the present matter. The Apex Court held that the defect or irregularity in the investigation has no bearing on the competence of or procedure relating to cognizance or trial of the offences under the PC Act. Further, in the said matter, the Hon'ble Apex Court held that there was an oral order from the Superintendent of Police, authorizing the PSI to investigate the matter. 30. In the present case, there is a written order authorizing PSI Surve. The Apex Court held that a mere error, omission, or irregularity in sanction is not fatal unless prejudice is established. Section 19(1)(c) is a matter of procedure and does not go to the root of jurisdiction and once cognizance has been taken by the Court under Cr.PC, it cannot be said that an invalid police report is the foundation of the jurisdiction of the court to take cognizance. Therefore, after going into the case law on this in great detail, the Hon'ble Apex Court held that the prosecution cannot be faulted on the ground of improper authorization or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be desirable for the prosecution to examine the investigating officer, non-examination of the investigating officer does not create any dent in the prosecution case, much less, the credibility or otherwise, trustworthy testimony of the witness (Ram Singh v/s. State of U.P.). In Bihari Prasad (supra), the Hon'ble Apex Court explained that non-examination of investigating officer is not fatal to the prosecution case. Prejudice is required to be established and that too depends upon facts of each case no universal straight jacket formula can be laid down. It is only in cases where the prosecution depends upon the investigating officer who may be the principal or chief architect of the case, the prosecution would fail for nonexamination of the investigating officer. 35. The decision of the Jharkhand High Court in Damodar Mishra(supra) relied upon by Mr. P.P. Singh is distinguishable from the present case. In that case, at para 13, the High Court concluded that it is the Prevention of Corruption Act, 1947, and not the Prevention of Corruption Act, 1988 which was applicable. Further, the High Court relied on Vishwanath Singh v/s. State of Jharkhand 2011 (1) JLIR 255 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of entrustment memo, the actual trap and thereafter the preparation of the trap memo, the non-examination of the investigating officer is fatal to the prosecution case. The facts in Sarwan Nath (supra) bear no comparison whatsoever to the facts in the present case where the prosecution has proved the case against A1 almost entirely relying upon the documentary evidence, most of which was admitted without challenge and in any case has been proved to the competent witnesses. 38. In this case, the appellants have demonstrated no prejudice whatsoever on account of the non-examination of the investigating officer. It is not the case of the appellants that they had offered any explanation to the investigating officer, which, the investigating officer, failed to investigate. The charts which Mr. Singh refers to are not documents but they are merely figures culled out by the learned Special Judge from the proven evidence on record, which was mostly documentary in nature. The investigating officer's examination was not required for proving such charts. Besides, in this case, most of the documents were admitted under Section 294 of Cr.P.C. without any objection from the appellants. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Roadways, and PW9-Partner of Goa Container Allied Services, it transpires that this vehicle was engaged by them and for which, they had paid an amount of ₹ 6,64,195/- to A2. The evidence, suggests that though the transport vehicle was really in the name of A2, the business dealings were undertaken by A1. 43. Though this amount of ₹ 6,64,195/- may be exclusive of the fuel expenses which were borne by the employers of PW5 and PW9 but from out of this amount, A2 was required to expend towards driver's salary, repairs, maintenance, etc. Even if a liberal view is taken and the sum of ₹ 6,64,195/- is taken as the income of A1 and A2, the total income of A1 and A2 during the check period would come to ₹ 8,85,366/-. Even if some additional indulgence is shown, the total income of A1 and A2 during the check period will not exceed ₹ 10 lakhs. 44. The Special Court, based upon the voluminous documentary evidence on record has quite correctly determined the actual income of the appellants during the check period at 1,39,50,142/-. The basis for such determination Rs. is set out in a tabular form statement 'C' in para 93 of the impugned judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. as on 01.05.2008. This figure is determined at ₹ 3,41,098/- by the learned Special Court. So also, there is ample evidence to establish the position of assets at the end of the check period, i.e. 06.01.2011 which came to ₹ 55,03,678.67. Again, this figure is based on actual documentary evidence and there is no good case made out to modify this figure. If Mr. Singh's contention that routine items should have been excluded from consideration is to be accepted, this figure would at the most, and that too, on liberal construction be reduced by a maximum of 2lakhs and not further. Incidentally, Rs. if the statement 'B' in para 61 of the impugned judgment and order is perused, then most of the routine items, have, in fact, been taken at nil value which means, they must have already been excluded from consideration. 48. Based upon all this, it is apparent that the prosecution has established its case against A1 beyond a reasonable doubt. The discrepancy as to the timing of the raid in the testimony of the 2 Panchas, PW13 and PW14 is quite insignificant. Based upon such discrepancy, the testimony of the two Panch witnesses cannot be excluded. In any case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.2 for which a premium amount of ₹ 1,70,000/- came to be paid. 53. The learned Special Judge has then referred to the evidence of PW.11 Baliram Nakhawa. PW.11 had produced an application for the issue of demand draft for ₹ 2,00,000/- payable to Sadguru Engineering Works. This amount was paid through the account of A.1 for the business of A.2. From this, the learned Special Judge has concluded that A.2 allowed her husband to use the income which he earned illegally for investments in A.2's business. The learned Special Judge referred to the evidence of PW.9 who had testified that A.1 owned a Trailer in the name of A.2 and that his supervisor had contacted A.1 for hiring services of the business of A.2. 54. The learned Special Judge also referred to the evidence of PW.5 in the context of his approaching A.1 concerning the business of A.2. It is for all these reasons, the learned Special Judge concluded that A.2 has abetted with A.1 and deserves to be convicted under Section 109 of the IPC. 55. According to me, based upon the evidence on record, or for that matter for the aforesaid reasons, it will not be safe to convict A.2 for the offence under Section 109 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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