Back
2016 Supreme(Mad) 2202
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, J.
CBI represented by Additional Superintendent of Police, SPE: CBI: ACB, Chennai - Petitioner
Vs.
Shri. Andasu Ravindar - Respondents
Crl.R.C.No.513 of 2016
Decided On : 22-07.2016
For the Petitioner: Mr. K.Srinivasan, Spl.P.P. for CBI cases
For the Respondents: Mr.V.Krishnamoorthy, Mr. S.Ashok Kumar, Mr. C.S.S.Pillai
Headnote:
Criminal Produce Code, 1973 – Sections 164, 311, 306 and 165 - Prevention of Corruption Act - Section 7 – Indian Penal Code, 1860 - Section 120-B – Criminal Trial – Offence of Criminal Conspiracy – Commission of offence - Recording of confessions and statements - Power to summon material witness or examine person present - CBI Seeking permission to include A4, A5 and A6, whose names have been mentioned in final report in second column as not sent up for trial, as additional witness, was dismissed - Without even tender of pardon by Magistrate concerned after treating A4 to A6 as approvers in case, as stipulated under Section 306 Cr.P.C., or without any order discharging them from case, whether prosecution may be permitted to include A4 to A6 as additional witnesses and examine them, who have been shown as "accused persons not sent up for trial" by prosecution in charge-sheet and also as to whether said tender of pardon is necessary in case on hand - Since confession statements of A4 to A6 recorded under Section 164(1) Cr.P.C. did not contain certificate of Magistrate at foot of confession statements, as enunciated under Section 164(4) Cr.P.C.- Held, Absence of certificate at the foot of the confession statement with contents mentioned under Section 164(4) Cr.P.C., said confession statements recorded under Section 164(1) Cr.P.C. cannot be said to be illegal and those confession statements are only to be treated as statements other than confession statements as envisaged under Section 164(5) Cr.P.C., and therefore, non-containing of certificate at foot of confession statements as stipulated under Section 164(4) Cr.P.C.., would not make statements of A4 to A6 unreliable and hence, prayer of prosecution/CBI to include A4 to A6 as additional witnesses for examining them, has to be accepted - Therefore, court do not find any acceptable reason to reject marking above confession statements of A4 to A6 through witnesses on side of prosecution - Dictum laid down by Supreme Court in above case, when A4 to A6 in this case cannot be treated as accused persons, there cannot be any impediment for prosecution to examine them before Court under Section 311 Cr.P.C., more particularly, when fact remains that charge sheet relating to A4 to A6 by showing them as "accused not sent up for trial", has not been disagreed by Court below - Impugned order set aside - Crl.R.C. is allowed.
This Criminal Revision Petition is filed by the CBI against the order dated 06.02.2014 passed by the learned IX Additional Special Judge for CBI cases, Chennai, in Crl.M.P.No.103 of 20 13 in C.C.No.3 of 2013, whereby, the petition filed by CBI seeking permission to include A4, A5 and A6, whose names have been mentioned in the final report in the second column as 'not sent up for trial', as additional witness, was dismissed.
2. Brief facts which are necessary to decide the issue involved in this revision petition, are as follows:
(a) The revision petitioner herein/CBI, on their source information, registered a case in R.C.No.33A/2011 on 29.08.2011 on the allegation that Shri.Andasu Ravindar, IRS (A1), while functioning as Additional Commissioner of Income Tax, Company Range, Chennai, had organised a survey proceedings under the Income Tax Act in the premises of M/s.Everonn Education Limited, Perungudi, Chennai, an educational company run by Shri.Padmanabhan Kishore (A2), Managing Director of the Company. Proceedings conducted by the Income Tax officials revealed that the above Company had concealed taxable income to the tune of Rs.100 Crores. A1 had demanded Rs.50 Lakhs from Shri.Padmanabhan Kishore (A2) for showing him undue favour for concealing the Income Tax liability. It was reliably learnt that A2 was to hand over a bribe amount of Rs.50 Lakhs on 29.08.2011 to A1 at his residence. Further, the said bribe amount was to be taken by Shri.Uttam Chand Bohra (A3), a close associate of A1 from the residence of A1 to an unknown place. Since the above facts disclosed offences punishable under Section 120-B IPC read with Section 7 of the Prevention of Corruption Act by the accused persons, a case was registered by the CBI in the above said crime number in R.C.33(A)/2011.
(b) Following registration of the case, a CBI team was deputed to carry out a search under Section 165 Cr.P.C. on 29.08.2011 in the office and residence premises of A1 at No.121, I.T. Colony, Uttamar Gandhi Road, Nungambakkam, Chennai-34. After reaching the residential premises of A1, A3 was seen to reach the residence of A1 located in the First Floor, Income Tax Colony, Nungambakkam in a car bearing Registration No.TN-04-Ad-9747 and A1 came down from his residence on the First Floor with a polythene bag containing a carton box and met A3. They boarded the said car together and when they were about to proceed, the CBI team intercepted the said car and searched the polythene bag in the possession of A1, which was found to contain Rs.50 Lakhs in the denominations of Rs.1,000/- in 50 bundles of 100 notes each. When questioned, neither A1 nor A3 could offer any satisfactory explanation about the possession of the above said huge amount and hence, it was seized under suspicion of having involved in the commission of offence under proceedings in the presence of and attested by independent witnesses.
(c) Further investigation revealed that A1 demanded an amount of Rs.5 Crores from A2 for helping him to conceal the tax evasion unearthed during the course of survey conducted by the Income Tax Department in the premises of M/s.Everonn Education Limited on 04.08.2011. It was further revealed that A1 introduced A4 - B.Ramakrishnan, Chartered Accountant to A2 in the office of A1 on 08.08.2011 and discussed the ways to help him in the matter.
(d) During the course of investigation, it further revealed that A5 - Shri.T.Banusekar is a Chartered Accountant practising in the Settlement Commission of Income Tax, Chennai, who assisted the Company M/s.Everonn Education Limited on a previous occasion. Within a few days of meeting A4 in the office of A1, A2 was informed by A1 through A4 and A5 regarding the demand of Rs.5 Crores as bribe to conceal the tax evasion unearthed during the course of the above mentioned survey, which was reduced to Rs.50 Lakhs at their instance. A6 - Shri. P.Chandrasekaran is a Chartered Accountant of M/s.Everonn Education Limited. The demand of Rs.50 Lakhs
