MP 1 Appln481_11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 481 OF 2011 The C.B.I. Anti Corruption ... Applicant Versus Ashok Kumar Purwar and others ... Respondents Mr. Sandeep K. Shinde a/w. Mr. A. S. Gadkari, APP for the Applicant. Mr. Ravi Gurani, Advocate for the Respondent No.1. Mr. V.G.Pradhan, Senior Counsel i/b. Mr. G.B.Kedia, Advocate for Respondent No.2. Mr. Y.M.Nakhwa, APP for the Respondent No.3-State. CORAM : J. H. BHATIA, J. DATE : 14TH DECEMBER 2011 P. C. : The CBI has filed this application seeking leave to prefer appeal against the order of acquittal passed by the Special Judge for CBI at Greater Mumbai in Special Case No.33 of 2003 under the provisions of Prevention of Corruption Act whereby the respondent Nos.1 and 2 were acquitted of the charges of corruption. 2. According to prosecution, accused No.1 was working as Commissioner, Income Tax (Appeals) at Mumbai and accused No.2 was a Chartered Accountant practising in the Income Tax Department. The complainant Kripashankar Chaturvedi and his wife Sushila Chaturvedi had submitted certain Income Tax Returns for the year 1997-1998. Against the assessment of their income, they had preferred appeal before the accused No.1. It is alleged that, in that appeal, the accused No.1 had agreed to pass order in favour of the complainant on payment of Rs.8.5 lakh. This was settled through accused No.2. Amount of Rs.5 lakh was paid by the complainant to the accused No.2 for payment to accused No.1. Balance amount of Rs.3.5 lakh was yet to be MP 2 Appln481_11 paid. As per the settlement, the appeals were decided by the accused No.1 in favour of the complainant. As the balance amount of Rs.3.5 lakh was yet to be paid, the demand was being made. The complainant agreed to pay that amount on particular date. However, he could not manage that amount and told accused No.1 that he had managed amount of Rs.50,000/- and he would be coming to make the payment. After the accused No.1 asked them to come for payment, the complainant approached CBI and lodged a complaint, on the basis of which, pre-trap panchnama was drawn and a trap was arranged on 22.06.2001. According to prosecution, amount of Rs.50,000/- in the form of tainted currency notes of Rs.500/- each was actually paid by the complainant to the accused No.1 which he accepted and kept it in the drawer of his table. After that, a complainant gave pre-decided signal and the officer of CBI, complainant and Panchas entered into the office of the accused No.1. The tainted notes with specific numbers were found in the drawer of his table and the phenolphthalein powder was found on the hands of the accused No.1. A post-trap Panchnama was prepared about that proceeding and after investigation, the charge-sheet was filed. 3. In all eleven witnesses were examined on behalf of the prosecution. After hearing the parties, the trial Court acquitted both the accused persons. 4. Heard the learned Special Public Prosecutor for the CBI and the learned Counsel for the accused respondents. The learned Counsel have taken me through the relevant portions of evidence as well as the judgment passed by the trial Court in support of their rival contentions. 5. Admittedly, about demand of amount of Rs.8.5 lakh, there was no talk between the complainant and accused No.1. It is alleged that accused No.2 had told him that there was demand of Rs.8.5 lakh and the matter was settled for that amount with accused No.1. Amount of Rs.5 lakh was allegedly paid MP 3 Appln481_11 by the complainant to accused No.2 and not to accused No.1. There is no evidence that accused No.1 had ever made demand or had received the amount of Rs.5 lakh. Admittedly, the Income Tax Appeals were disposed of finally by the accused No.1 in March 2001, and in June 2001, when the trap was arranged, no matter was pending before the accused No.1 wherein he could show any favour or disfavour to the complainant. As per the pre-trap Panchnama, one of the Panch witnesses, namely P.W.4 Sudhir Gangurde, was to accompany the complainant at the time of payment to accused No.1, therefore, he was expected to be throughout present along with the complainant as his shadow so that he could watch and observe what would happen and could hear whatever talk would take place between the complainant and accused No.1. The purpose of keeping an independent Panch witness present is to get independent evidence of what transpires in the closed room where the demand is made or payment is made or received. In the present case, P.W.4 Sudhir Gangurde never accompanied the complainant into the office room of the accused No.1 where the amount was allegedly offered and accepted. He remained outside. No explanation is given as to why P.W.4 Sudhir Gangurde did not accompany the complainant when he went into the office of the accused No.1 to make the payment, and therefore, there is no independent evidence as to what had transpired in that room. It is material to note that the said panch witness P.W.4 Sudhir Gangurde entered into that room after the officers of the CBI had entered into the room and had caught hands of the accused No.1. Thus, evidence of independent panch witness is not available. The whole case is based on the sole testimony of the complainant. 6. As per the post-trap panchnama, the accused No.1 had explained that he had received the amount of Rs.50,000/- just to introduce the complainant to his successor as the accused No.1 was under the orders of transfer. It was kind of confession before the police officer, which may not be admissible in evidence. According to the accused No.1, he does not know how the amount was kept in MP 4 Appln481_11 the drawer of the table and according to him, the powder on his hands came when he was caught. Whether there is any substance in his explanation is not very important. The trial Court, on the basis of the material on record and the admissions of the complainant in cross-examination, noted that the complainant was accused in three different criminal cases filed by the CBI for making false representation, cheating and forgeries, and those cases were pending at the time of trial of this case. The trial Court also noted that the complainant was in habit of making false charges. The trial Court found that the complainant was a liar and not trustworthy. 7. The prosecution also relied upon a recorded conversation between the complainant and accused No.1 and showed that accused No.1 had allowed the complainant to come to his office to make the payment. According to the prosecution, a blank cassette was given to the complainant for recording conversation with the accused No.1. After the trap, that cassette was seized from him. However, it appears that in the same cassette, which was allegedly seized by the CBI immediately after the incident, some other conversation is also recorded which is between the complainant and some three or four unknown persons. Though talk is in respect of accused No.1, it is not known who are the persons involved in that talk besides the complainant. It is also not clear how such talk could be recorded in that cassette, if that cassette was already seized by the CBI. 8. The learned Special Public Prosecutor for the CBI concedes that as far as accused No.2 is concerned, except the evidence of the complainant about the deal and payment of amount of Rs.5 lakh, there is no other material to corroborate him. Therefore, he found it difficult to support the application for leave to prefer appeal against accused No.2. The complainant is not found to be trustworthy and truthful witness by the trial Court for which the trial Court has given reasons. It is settled position of law that conviction can be based on MP 5 Appln481_11 the sole testimony of the witness if the Court is satisfied that the witness is truthful and wholly trustworthy. However, if the witness is not of that character and credibility, the Court may look for corroboration from some independent source. In the present case, there is no corroboration to the testimony of the complainant. The trial Court considered the prosecution evidence and particularly that of the complainant minutely and found that his evidence is not reliable. It is well settled position of law that in an appeal against acquittal, the appellate Court will not normally interfere in the findings of the trial Court unless the findings of the trial Court are perverse, illegal or against the evidence on record. It is also well settled position of law that if two views are reasonably possible, the appellate Court will not substitute its own view for the view taken by the trial Court who had the opportunity of recording the evidence and looking to the demeanour of the witnesses. In the present case, looking to the nature of evidence and circumstances, it cannot be said that the view taken by the trial Court was not reasonably possible. Therefore, even if a different view may also be possible, still the appellate Court will not interfere in the findings of the acquittal recorded by the trial Court. In view of this legal position, I find that no purpose would be served by granting leave to prefer appeal and if the leave is granted, it would be a futile exercise. 9. In view of the above, the application seeking leave to prefer appeal stands dismissed. (J. H. BHATIA, J)