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TMI Blog2023 (2) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... case in short is that on 22nd August, 2007 the Superintendent of police, CBI, Anti Corruption Branch received an information in writing from one Tapas Ranjan Ghosh, Deputy Manager, K.E. Technical Textiles Pvt. Ltd. of Jakpur, Rupnarayanpur disclosing, inter alia, that on 9th July, 2007 an Audit was held by the officers of the Central Excise under EA/2000 Scheme in factory premises of K.E. Technical Textiles Pvt. Ltd. headed by Sri Paritosh Saha, Superintendent (Audit Group-C) of Haldia Commissionerate. On 9th July and 10th July, 2007 during the said audit, they checked various files/ records of the company for the last 5 years and at the spot, issued one letter asking for some more documents vide letter no. V (1)8-CE-Audit-Gr. C-Haldia dated 10th July, 2007. The audit team raised objection regarding Cenvat credit taken by the company on some imported machinery installed at Ballibhasha Unit, Paschim Midnapore. In terms of the requisition of the letter, company submitted all the required documents at the Princep Street office of Central Excise except two documents with proper explanation. The Superintendent, Shri Paritosh Saha, however, refused to appreciate the difficulty faced by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n time, place and action in the narrative of prosecution case. Drawing my attention to the testimony of prosecution witnesses Mr. Mukherjee submits that P.W. 1 stated that alleged demand of bribe was made on 22nd August, 2007 while in his written information, date of alleged demand was 21st August, 2007. 6. It is further adverted by Mr. Mukherjee, the company was unwilling to face the audit on 21st August, 2007 as such, and P.W. 1 made futile attempt to defer the same and ultimately decided to implicate the members of the audit team in a criminal proceeding. My attention is drawn to the cross-examination of P.W. 1. During cross examination he stated that on 7th August, 2007, Commissioner of Central Excise sent a letter indicating that Superintendent and Inspector would visit the side on 21st August, 2007 for audit. On 20th August, 2007 he requested the Superintendent to postpone the audit for some days. He admitted further that by writing letter dated 21st August, 2007, they undertook to give their opinion as to the reversal of Cenvat credit taken on capital goods amounting to Rs. 2,98,272/-. 7. It is further contended that had there been any such intention on the part of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r inside the car was ruled out by P.W. 2 who stated that when Mr. T.R. Ghosh and Partha Pratim Ghosh were sitting in the vehicle, driver was not there. Thus testimony of P.W. 10, the driver becomes doubtful. 10. According to Mr. Mukherjee, the prosecution has not been able to prove that the accused person ever demanded any bribe at one point of time. P.W. 1 is stating that such demand was made on 22nd August, 2007 and again he stated that such demand was made on 21st August, 2007. No money was recovered from the possession of the accused persons as it appears from the testimony of P.W. 1, P.W. 2 and P.W. 15. Therefore, it cannot be said that the accused persons took the bribe by corrupt or illegal means for himself or for any other person. Thus, learned Trial Court had no reason to record the order of conviction. 11. Per contra, Mr. Kallol Basu, learned Counsel representing the CBI submits that the evidence of prosecution witnesses particularly the Superintendent of Customs Ranju Kumar Chakroborty, who as P.W. 7 stated that on 21st August, 2007 the audit group left the Head Quarter to visit M/s K.E. Technical Textiles Pvt. Ltd. and on 22nd August, 2007 the said team audited the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section." 14. Section 20 of the P.C. Act speaks of presumption where government servant accepts gratification other than legal remunerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s bribe but did not give any instruction as to the place where the money would be given or taken. The witness P.W. 1 along with CBI officers after pre-trap proceedings came to Kharagpur Railway Station and made a phone call to Mr. Paritosh Saha. The call was received by Mr. D. Ghosh, who advised the caller to make a call after an hour. Till then no intimation was given as to the place where P.W. 1 was supposed to hand over the money but P.W. 1 and the members of the raiding team boarded a train from Kharagpur Railway Station for Howrah and made a phone call to Paritosh Saha which was again received by Mr. D. Ghosh and D. Ghosh asked him to come to Santragachi with further instruction to call him before reaching Santragachi. 17. How could P.W. 1 or members of the raiding team foresee that the transaction would be taking place in between Kharagpur and Howrah? What prompted them to board the train for Howrah without waiting for an hour, as instructed by P. Ghosh to avoid delay? There is no explanation. 18. The money, as stated by P.W. 15, was not recovered from the possession of the accused persons. So far recovery of money is concerned P.W. 1 stated that when Partha Pratim Ghosh wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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