Chattisgarh High Court

State Of Chhattisgarh vs Abhay Kumar Gupta on 20 June, 2024

                                                                                                         NAFR
                       HIGH COURT OF CHHATTISGARH, BILASPUR
                                        CRMP No. 1833 of 2017
        State Of Chhattisgarh Through Superitendent Of Police, Anti Corruption
        Bureau, Raipur Chhattisgarh, Chhattisgarh
                                                                                               ---- Petitioner
                                                    Versus
        Abhay Kumar Gupta S/o Late Madanmohan Guptal, Aged About 52 Years
        Ex. Deputy Commandant, C. I. S. F. Ibarbela Recruitment Training Centure,
        Mundali, District Katak Orissa Present R/o A/ E 3/2 Jaigra Choumaya, Rajrahat
        Road, Kolkata 59 West Bengal
                                                                                            ---- Respondent
                                     (Cause title is taken from the CIS)
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For Petitioner/State : Shri Jitendra Shrivastava, GA For Respondent/accused : None appears

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Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 20.06.2024

1. The petitioner/State has filed the instant petition under Section 378(1) of

the CrPC seeking grant of leave to file Acquittal Appeal, which is filed against

the judgment of acquittal dated 17.10.2017 passed by the Court of learned

Special Judge (Prevention of Corruption Act) in Special Case-01 of 2008,

whereby the respondent/accused herein, has been acquitted from the charge

punishable under Section 12 of the Prevention of Corruption Act, 1988 (for

short, 'the Act, 1988').

2. Case of the prosecution in brief is that a contract for lifting of slag/scrap

was awarded by the Bhilai Steel Plant (for short, 'BSP') to one M/s MBL

Infrastructure Company, in which the co-accused Pawan Kumar Lakhotia was

working as Director/Manager(Pers). The said Company was engaged in

transporting slag/scrap from the BSP. The present respondent was holding the Crmp 1833 of 2017

post of Dy.Commandant, CISF, who was appointed for the purpose of security

of Power Plant at the BSP.

3. A complaint was made by the complainant, who was the member of

Advisory Committee of Coal and Ispat Ministry, being the Member of

Parliament (MP) from Durg Lok Sabha constituency, to the Office of Hon'ble

Prime Minister and various Offices of Central Government, i.e. the Chief

Vigilance Officer, MD, BSP, DIG, Commandant, CISF, Bhilai etc. In the said

complaint, it was stated that in transporting of iron ore in the shelter of

slag/scrap, culminating into loss of the BSP/Central government, the co-

accused Pawan Kumar Lakhotia repeatedly contacted with him for settlement

with regard to the said complaint, for which a sum of Rs.5 lakhs has also been

offered to him.

4. It is alleged that when the information about the aforesaid complaint

came into knowledge of the present respondent, he too compelled the

complainant to take back the complaint made against him, and he offered bribe

of Rs.5 lakhs to the complainant, which was not accepted by him, and

ultimately, on 03.08.2001, a written complaint was made by him to the Anti

Corruption Bureau, Raipur (ACB Raipur).

5. The ACB Raipur, after receiving complaint from the complainant,

constituted a team for trap, and after following due process of law and

procedure prescribed for trap, proceeded to catch the co-accused Pawan

Kumar Lakhotia, after drawing the trap proceeding, ride was conducted by the

trap team and caught the co-accused from his house for commission of offence

punishable under Section 12 of the Act, 1988. Necessary Panchnama and Crmp 1833 of 2017

recovery were made. The tainted currency notes of alleged bribe were seized

in presence of the witnesses. Photography of all the proceeding was done and

the co-accused Pawan Kumar Lakhotia was arrested. During the investigation,

it has also come on record that present respondent was also offered amount

of bribe for taking back the complaint and involved in the alleged offence along

with the co-accused. FIR was registered at the ACB Raipur and after due

process of investigation, charge-sheet was filed, and the accused persons

were put to face the charges before the learned trial Court.

6. The trial Court has framed charges against the present respondent under

Section 12 of the Act, 1988, who abjured his guilt and claimed trial.

7. In order to establish the charge against the respondent/accused,

prosecution examined as many as 9 witnesses, statement of the respondent

has also been recorded under Section 313 of the CrPC, in which he pleaded

innocence, and submitted that he has been falsely implicated in the offence.

8. After recording evidence of the parties, and considering the evidence

available on record, learned trial court has acquitted the present respondent

from the offence alleged and convicted the co-accused Pawan Kumar Lakhotia

for the offence punishable under Section 12 of the Act, 1988, and the order of

acquittal of the respondent/accused is under challenge in the present petition.

9. Learned counsel for the petitioner/State would submit that learned trial

court has erred in acquitting the respondent/accused by passing the erroneous

judgment. There is sufficient evidence on record against the present

respondent to hold him that he is also guilty for the offence of assisting the co-

accused Pawan Kumar Lakhotia, and offered bribe to the complainant for not Crmp 1833 of 2017

pursuing the complaint. Evidence of prosecution witnesses has not been

considered properly in its right perspective. For the minor omissions or

contradictions, their evidence prove that present respondent is also involved in

the commission of offence. He would further submit that learned trial Court has

failed to appreciate the fact that the respondent/accused was assigned the

duty of security of Power Plant of the BSP, and with the help of present

respondent, co-accused Pawan Kumar Lakhotia succeeded in transporting

huge quantity of pure iron ore in the garb of transporting the slag/scrap. He

would further submit that from the report prepared by the CISF, guilty of

present respondent is also established, which too has not been considered by

the learned trial Court. It has wrongly been held that the prosecution has failed

to prove its case beyond any reasonable doubt against the present

respondent/accused. He would also submit that in view of the peculiar facts

and circumstances of the case, as also availability of sufficient evidence on

record against the respondent, he also liable to be held guilty of the alleged

offence.

10. Heard learned counsel for the petitioner/State and perused the

documents annexed with the present petition.

11. In the present case, respondent/accused has been acquitted by giving

him benefit of doubt. There is no allegation against the present respondent

that he received the amount of bribe on behalf of anyone. Allegation against

the present respondent is only that he compelled the complainant to take back

his complaint, for which he offered bribe of Rs.5 lakhs to the complainant.

While the respondent was posted as Dy Commandant, CISF, at the BSP, he

involved in the commission of offence. There is no mention about the Crmp 1833 of 2017

respondent in the complaint, Ex.P5 and also in the FIR. In the transcript of

conversation, Ex.P14, it only comes that respondent came there. The enquiry

report dated 12.11.2008 submitted by the CISF was not annexed with the

charge-sheet, and therefore, same could not be brought on record by the

prosecution that in the internal enquiry, the CISF has found the present

respondent guilty for the alleged complaint. Further, the Enquiry Officer has

not been examined in the present case to prove that the respondent was found

guilty in the offence.

12. In the present case, prosecution has also not produced the witnesses,

who had gone to the house of present respondent. Prosecution tried to take

benefit of the enquiry report produced by the CISF but the said report given by

the CISF itself was not admissible in evidence. The Panch witnesses have not

stated anything about the present respondent and he was not present at the

place of incident on the alleged date and time of the incident. Learned trial

Court has further considered that one Kulwant Singh, who said to have taken

the respondent/accused to the house of complainant by his vehicle, has not

been examined, also he was the cited witness in the charge-sheet. Even the

complainant has not made any conclusion against the respondent in his

complaint and FIR, and further there is no clear allegation against him in

Ex.P14, the transcript. The person who introduced the present

respondent/accused with the complainant has also not been examined.

Neither the mobile phone call record was seized, nor any visitor register was

seized by the Police. Thus, learned trial Court has considered that there is no

substantive evidence against the present respondent/accused in the case to

hold him guilty for the alleged offence committed under Section 12 of the Act,

1988, and by giving benefit of doubt, he has been acquitted from the charge.

Crmp 1833 of 2017

13. Applying the law governing the scope of interference in an appeal of

acquittal, the Hon'ble Supreme Court in the case of State of Rajasthan Vs.

Kistoora Ram, reported in 2022 SCC Online SC 984, has held as follows:-

"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."

14. The Hon'ble Supreme Court in the matter of Jafarudheen and Ors Vs.

State of Kerala, (2022) 8 SCC 440, has considered the scope of interference

in an appeal against the acquittal of an accused in its judgment at Para-25,

which reads as under:

"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C. the appellate court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such as double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

15. The trial court has elaborately discussed about the evidence led by the

prosecution and after analyzing the evidence led by the prosecution, acquitted

the respondent/accused after giving him benefit of doubt. There was sufficient

reason of his false implication in the case. Therefore, the argument of learned

counsel for the petitioner/State and the submissions made by the prosecution

witnesses in their court evidence makes the prosecution case suspicious

against the present respondent/accused that it is not credible.

Crmp 1833 of 2017

16. In view of the aforesaid discussion, this Court is of the considered view

that the judgment impugned acquitting the respondent/accused is just and

proper and does not call for any interference by this court.

17. Accordingly, the petition seeking leave to appeal being totally devoid of