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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. BADAR, J.
Vijaykumar Piraji Chinchalkar — Appellant
Versus
State Of Maharashtra — Respondent
Criminal Appeal No. 663 of 2016
Decided on : 09-09-2019
Prevention of Corruption Act, 1988 - Sections 7 and 13 - Challenging the judgment - Undergo simple imprisonment – Appeal against conviction – Anticipatory bail - In complainant again applied for renewal of his license by making an application to the Commissioner of the State Excise Department of the State. Under orders of the Commissioner, State Excise, his license came to be renewed up to year 2000, on payment of the license fees for the entire period. Accordingly, he deposited an amount of Rs.37,375/- in the State Treasury. Accordingly, complainant/PW1 Rajaram Gadade opened his country liquor shop but again within ten to fifteen days, the State Government suspended his license on the ground that the Commissioner of the State Excise had no power to renew the same. The accused is accepting the position, as seen from the line of cross-examination of complainant – Held, learned APP attempted to argue that certificate, as required by Section 65B of the Evidence Act, is not sine-qua-non for proving the electronic evidence and for that purpose, he relied on the judgment in the matter of Shafhi Mohd. vs. State of Himachal Pradesh (supra). However, in that case, the electronic evidence was in possession of the third person, and as such, it was not possible to produce the certificate. In the light of such facts, the Honourable Apex Court has held that, the applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing the certificate, is to be applied only when such electronic evidence is produced by a person, who is in a position to produce such certificate being in control of the said device and not of the opposite party. In the case in hand, the Digital Voice Recorder as well as the laptop containing the data was with the prosecuting agency, and as such, for proving this electronic evidence, the prosecution ought to have complied with the provisions of Section 65B(4) of the Evidence Act. This is not done in the instant case - Even if it is assumed that the transcript of conversation recorded in the Digital Voice Recorder contained in the panchnama Exhibit 44 can be read in evidence, still, there is total divergence in what is stated in evidence by the complainant/PW1 and what is reproduced in the panchnama as the conversation between the complainant/PW1 and the appellant/convicted accused as well as Rajendra Ghosalkar. Evidence of the complainant/PW1 is not in tune with the transcription of the alleged conversation between him, Rajendra Ghosalkar and the appellant/convicted accused. Hence, this evidence is of no avail to the prosecution, leave apart the fact that the same is not admissible for want of necessary certificate – Appeal disposed off
JUDGMENT :
A.M. Badar, J.
In view of order dated 14th January 2019 passed by the co-ordinate Bench of this court (Coram : Smt.Sadhana S. Jadhav, J.) and the order dated 14th December 2018 passed by the Honourable Supreme Court in the petition for Special Leave to Appeal (Criminal) No.10486 of 2018, this appeal is taken up for final hearing.
2. The appellant/convicted accused, who was working as the Superintendent, State Excise Department at Ratnagiri, by this appeal, is challenging the judgment and order dated 5th October 2016 passed by the learned Special Judge, District Ratnagiri, in Special Case No.10 of 2015, thereby convicting him of offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. On both counts, the appellant/convicted accused is separately sentenced to suffer rigorous imprisonment for 5 years apart from direction to pay fine of Rs.10,000/- and in default, to undergo simple imprisonment for 6 months. The learned Special Judge further directed that substantive sentences shall run concurrently.
3. Facts, in nutshell, leading to prosecution and the resultant conviction of the appellant/convicted accused, as gathered from the complaint Exhibit 36 lodged by complainant/PW1 Rajaram Gadade as well as from the chargesheet vis-a-vis response of the defence thereto, are thus :
(b) In the year 1999, complainant/PW1 Rajaram Gadade again applied for renewal of his license by making an application to the Commissioner of the State Excise Department of the State. Under orders of the Commissioner, State Excise, his license came to be renewed up to year 2000, on payment of the license fees for the entire period. Accordingly, he deposited an amount of Rs.37,375/- in the State Treasury. Accordingly, complainant/PW1 Rajaram Gadade opened his country liquor shop but again within ten to fifteen days, the State Government suspended his license on the ground that the Commissioner of the State Excise had no power to renew the same. The accused is accepting the position, as seen from the line of cross-examination of complainant/PW1 Rajaram Gadade.
(c) Feeling aggrieved by the action of the State Government, on 16th December 2000, complainant/PW1 Rajaram Gadade preferred revision petition, which came to be disposed off by an order dated 31st March 2007, by the Hon'ble Minister of the State Excise Department, by directing the District Committee to take suitable decision in the matter. The District Committee then rejected the prayer for renewal of the CL-III license, made by complainant/PW1 Rajaram Gadade. This part of the prosecution case is also not challenged by the defence during the trial.
(d) Dissatisfied by the refusal on the part of the State Authorities to renew his CL-III license, complainant/PW1 Rajaram Gadade again preferred a revision petition before the Hon'ble Minister of the State Excise Department of the State. By the undated order of February 2013 (Exhibit 39), the Hon'ble Minister for the State Excise Department of the State was pleased to allow the said revision petition. By the said order, it was directed that by imposing the renewal fees from the year 2000-01 to 2012-13, the CL-III license of complainant/PW1 Rajaram Gadade be renewed. The revisional order (Exhibit 39) was served on the complainant on 13th March 2013 vide covering letter dated 1st March 2013 of the Home Department of the State. The accused has accepted th
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