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2018 DIGILAW 612 (GUJ)

RAMCHANDRA SADHURAM TAKHTANI v. STATE OF GUJARAT

2018-04-13

R.P.DHOLARIA

body2018
JUDGMENT AND ORDER : R.P. Dholaria, J. The present Criminal Appeal is preferred by appellant - original accused against the judgment and order dated 16.7.2003 passed by learned Special Judge, Ahmedabad in Special Case No.30 of 1994 whereby original accused - appellant herein was convicted for the offence under section 7 of the Prevention of Corruption Act 1988 ("the Act" for short) and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs.10,000/-, in default, to undergo further rigorous imprisonment for six months and also convicted the accused for the offence under section 13(2) read with section 13(1) (d) of the said Act and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs.10, 000/-, in default, to undergo further rigorous imprisonment for six months. It is also ordered that both the substantive sentences shall run concurrently. 2. The short facts giving rise to the present appeal are that complainant - Mukundbhai Davalbhai Rathod was dealing in the auto spare parts and also running the business in the name and style of M/s Omni Forging (Gujarat) Private Limited at Rajkot. It is alleged that the complainant was handling the affairs of the payment of excise for the said project, due to which, he used to visit the office of the Central Excise at Rajkot frequently. At the relevant time, the accused was serving as Superintendent at Bamanbore and the accused visited the factory of the complainant for about 2 - 3 times. It is alleged that at that time, for not raising any dispute as regards to the affairs of the factory as well as not creating any hindrance in the export procedure, the accused demanded Rs.300/- and Rs.500/-, total Rs.800/- as installment for the month of April 1994. It is alleged that the complainant himself has handed over in person to the accused Rs.800/-. It is alleged that while the complainant did not pay the amount of installment for the month of May 1995 while he visited the office of the accused on 6.6.1994, the accused demanded the said amount of illegal gratification and the complainant was directed to pay the said amount within two days and even on 8.6.1994, the accused also raised such demand by way of telephone call to the complainant. It is alleged that as the complainant was not willing to pay the said amount of illegal gratification, he lodged the complaint before the ACB at about 12.30 noon and thereafter, trap was arranged on the said day and the accused was caught red handed accepting the amount of illegal gratification. Therefore, the accused committed the offence under sections 7, 13(2) read with section 13(1) (d) of the Act. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the original accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined the witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant - original accused has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant - original accused has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 6. Mr.K.B.Anandjiwala, learned senior advocate assisted by Mr.Tirmizi, learned advocate for the appellant - original accused has taken this Court through the evidence of the complainant, shadow panch and other witnesses on record and argued that the prosecution miserably failed to prove vital ingredients as regards to demand, acceptance and recovery of bribe amount beyond reasonable doubt and hence, benefit of doubt is required to be extended to the appellant accused. He submitted that since the accused reported for duty in the month of April at the current station and trap came to be held within a period of two months, during which period, there were also other search and seizure proceedings initiated against the complainant and his firm by the accused and therefore, keeping grudge against the present accused and in order to falsely rope the accused in the crime in question, the complainant filed the false complaint. He further argued that the prosecution has miserably failed to establish demand, acceptance and recovery thereof and the evidence of the complainant and shadow panch is not in conformity with each other. He submitted that there are some vital contradictions in the evidence of the complainant and shadow panch as regards to raising predemand and instant demand which totally falsifies the case of the prosecution. He further submitted that since the present accused as well as other officials from the Central Excise Department carried out the search and seizure in the month of May 1994 in the office premises and the factory of the complainant, due to which, keeping grudge against the present appellant, the complainant wrongly filed the complaint in order to escape from such sort of penal action contemplated by the accused and his officials. He further submitted that this is a clear case wherein learned trial Judge has not recorded the findings upon the evidence available on record and wrongfully placed reliance upon the evidence of the complainant and shadow panch and recorded the findings which are based on presumptions and surmises. Lastly, Mr.Anandjiwala submitted that the impugned judgment and order of conviction is required to be quashed and set aside. 7. Mr.M.M.Tirmizi, learned advocate on record has also submitted the written submissions which run into 31 pages which also came to be read over before this Court. On going through the written submissions, it can be seen that learned advocate for the appellant has raised certain technical points and contentions as regards to holding the trap. The contentions which are technical in nature are that Assistant Director Mr.Subhash Trivedi of ACB alleged to have classmate of the shadow panch, due to which, he while working as Assistant Director connected the entire case and even the date of the complaint also suffers from interpolation and correction. The contentions which are technical in nature are that Assistant Director Mr.Subhash Trivedi of ACB alleged to have classmate of the shadow panch, due to which, he while working as Assistant Director connected the entire case and even the date of the complaint also suffers from interpolation and correction. It is also contended that service of availing panchas is also not tallying with the time which is revealing from the panchnama as well as depositions of other witnesses. Several other contentions have also been raised in the said written submissions which may be dealt with hereinafter while appreciating the evidence of the witnesses. Ultimately, learned advocate for the appellant prayed for allowing the appeal by quashing and setting aside the impugned judgment and order. 8. On the other-hand, Mr.R.C.Kodekar, learned Standing Counsel for the Central Bureau of Investigation ("the CBI" for short) has supported the judgment rendered by learned trial Court. He submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused which calls for no interference. He further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court may dismiss the appeal filed by the original accused. He submitted that the evidence of the complainant is totally in conformity with the complaint which came to be lodged by him and the evidence of shadow panch is also clearly getting corroboration so far as the proceedings of trap are concerned. He submitted that conjoint reading of the evidence of the complainant and shadow panch, more particularly, in the cross examination undertaken by learned advocate for the accused, the factum as regards to clear predemand, demand at the time of trap as well as acceptance and recovery is being established. He submitted that conjoint reading of the evidence of the complainant and shadow panch, more particularly, in the cross examination undertaken by learned advocate for the accused, the factum as regards to clear predemand, demand at the time of trap as well as acceptance and recovery is being established. He further submitted that crucial aspect as regards to raising predemand, due to which, the complaint came to be lodged and thereafter trap came to be laid and during the course of trap, the accused came to be caught red handed along with tainted currency notes is being established in the cross examination itself and therefore, other contentions raised by the appellant which are in the nature of technical and minor contradictions which are pointed by learned advocate for the appellant during the course of arguments have no value since the prosecution case is being established by the accused himself during the course of trial in his cross examination. He, therefore, submitted that this Court may not interfere with the impugned judgment and order of conviction in view of the cogent and clinching evidence on record. 9. Mr.K.P.Rawal, learned APP has supported the judgment rendered by learned trial Court and also adopted the arguments advanced by Mr.Kodekar, learned Standing Counsel for the CBI. 10. This Court has heard Mr.K.B.Anandjiwala, learned senior advocate, assisted by Mr.M.M.Tirmizi, learned advocate for the appellant - original accused, Mr.R.C.Kodekar, learned counsel for the CBI and Mr.Rawal, learned APP for the respondent State. 11. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. 12. PW 1 - Arjunbhai Rambhai Bauva has been examined at Exh.17. The witness has deposed that he was working as Assistant in the Sessions Court, Rajkot and the FIR was received on 9.6.1994 at about 10.45 am. 13. PW 2 - Krishnasinh Ratansinh Parmar has been examined at Exh.19. The witness has deposed that on 8.6.1994 he was called as panch at about 12.30 hours and when he was called, at that time, he was absent and thereafter he was told to visit the office of ACB. The witness deposed that he was appraised as regards to the complaint lodged by the complainant and detailed facts as regards to the demand of Rs.800/- and he was directed to work as shadow panch. The witness deposed that he was appraised as regards to the complaint lodged by the complainant and detailed facts as regards to the demand of Rs.800/- and he was directed to work as shadow panch. He was made to understand as to how the trap is to be laid and to remain present along with the complainant at the time of trap. On the day of trap, the witness was accompanied along with the complainant and they reached at the office of the accused at about 3.30 hours where the accused was found present. At that time, there was some official conversation regarding papers and thereafter the complainant asked that he had brought money, at that time, the accused asked him to place the same in the book and thereafter the accused opened the said book and thereafter the complainant placed the money into it. Thereafter the complainant raised the signal, due to which, other members of raiding party arrived there. When ACB official asked as regards to the money, at that time, the accused frightened and shadow panch shown the money which was lying in the said book. The said money came to be recovered. The witness deposed that ultra violate test was found negative so far as the person and clothes of the accused are concerned. Number of currency notes which were recovered were tallied with the panchnama. In the cross examination, the witness has admitted that there appears some correction in the date i.e. instead of 6, 8 is corrected in the FIR. The contents of the FIR in paragraph 16 as regards to predemand as well as demand for the month of May 1994 are being clearly established in the mouth of the shadow panch in the cross examination and that the said fact has emerged out while they signed the complaint when they visited the office of the ACB. In the cross examination of the witness, more particularly, in paragraphs 17 to 19, the writing of the complaint and contents thereof as well as time of recording such complaint is being established. The witness has admitted that in fact, the trap was laid on 8th June. In paragraph 20, it is also established that while the panchas visited along with the complainant, except Mr.Takhtani, none was present in his chamber. The witness has admitted that in fact, the trap was laid on 8th June. In paragraph 20, it is also established that while the panchas visited along with the complainant, except Mr.Takhtani, none was present in his chamber. Further, it is also established that while the witness visited along with the complainant, the complainant introduced him as his friend though he was directed to tell him as Accountant by the ACB. In paragraph 23, in the cross examination itself, it is being established that while the accused was being seated in front of the complainant, at that time, the accused asked as to what had happened for the money, at that time, the complainant replied that he had brought money; what to do. The witness has narrated the said fact before the police while his statement was recorded on 1.9.1994. It is also established that statement was recorded by the S.P. Mr.Kanare and he also stated before him that what had happened regarding money for export procedure, at that time, the complainant told that he had brought. The witness has admitted that the said conversation had taken place in his presence. The Manual of Central Excise was lying over the table on the right hand side where the accused was being seated. The accused by way of making gesture through eye directed to place money in the said Manual Book. In paragraph 24 also, the fact regarding undertaking detailed panchnama is being established and in paragraph 27, the factum of demand as regards to export procedure is being established. In paragraphs 28 to 30 in the cross examination itself, almost all the procedure as regards to recording the statement by the CBI as well as contents of the statement is being established wherein in the cross examination of the witness, all the conversations he has heard is being established. 14. PW 3 - Mukundbhai Dayaljibhai Rathod has been examined at Exh.44. The witness has deposed that in the year 1999, he was dealing in Auto Spare Parts as well as also managing the affairs of the M/s Omni Forgings (Gujarat) Private Limited and he was looking after the excise affairs of the said company. The office of the Excise Department was situated at Rajkot. The witness has deposed that in the year 1999, he was dealing in Auto Spare Parts as well as also managing the affairs of the M/s Omni Forgings (Gujarat) Private Limited and he was looking after the excise affairs of the said company. The office of the Excise Department was situated at Rajkot. The witness has deposed that he was looking after the excise affairs and he used to visit the office of the Excise Department at Kothi Compound, Rajkot where the accused was serving as Superintendent. The witness has identified the accused before the trial Court. The accused has also visited the office of the witness 2 - 3 times in the year 1994 wherein certain points were raised for routine business of running his factory and also for not creating any hindrance in the export business. The witness has deposed that the accused has demanded Rs.300/- and Rs.500/-, total Rs.800/- as monthly installment. The installment for the month of April 1994 was paid to the accused and installment for the month of May 1994 was outstanding which was required to be paid between the dates 1st and 7th. On 6.6.1994, when the witness met the accused, at that time, he presented the papers of export and thereafter the accused demanded installment, to which, the witness has stated that he would pay within two days and thereafter the accused signed the export papers. The witness further deposed that on 8.6.1994 at about 11.00 hours, the accused telephoned him for money and told him to hand over the amount in the office during the day. As the witness was not willing to pay the said amount, he lodged the complaint before the ACB. On the same day, the complaint came to be proved at Exh.24. Thereafter, detailed search procedure was demonstrated to him. The panchas were requisitioned; the trap was laid on the same day at about 3.00 hours. At that time, panch No.1 Mr.Parmar was accompanied with the witness at the office of the accused and they entered into the office of the accused. The accused was found present. Thereafter, detailed search procedure was demonstrated to him. The panchas were requisitioned; the trap was laid on the same day at about 3.00 hours. At that time, panch No.1 Mr.Parmar was accompanied with the witness at the office of the accused and they entered into the office of the accused. The accused was found present. The accused welcomed the witness and directed to sit over the chair and thereafter some casual conversation took place and then the accused asked the complainant that whatever product he is preparing is not exempted and therefore, the accused demanded the amount of illegal gratification and stated that whether he has brought or not and thereafter asked about the person who accompanied him, to which, he introduced him as his friend and as he wanted to go to Ahmedabad, for dropping him, the witness has brought his friend with him. Thereafter, the complainant asked the accused that he has brought money, to which, the accused shown Excise Manual and opened the said book and directed the complainant to place the money into it. Therefore, the witness took out money from the pocket of shirt and placed Rs.800/- in the said book which are eight currency notes of Rs.100/- denomination as directed by the accused. Thereafter, the accused closed the said book and kept there and thereafter the witness gone out to flag signal, due to which, other members of raiding party arrived there. The witness deposed that while he visited the office of the accused on 6.6.1994 for signing other form at Exh.23, the accused demanded the amount of illegal gratification. In the cross examination, the witness has admitted that the accused resumed the duty at Rajkot in the month of April 1994 in place of Mr.Padhiyar. The witness has admitted that the complaint came to be lodged on 8.6.1994 and not on 7.6.1994. In paragraph 16 of the cross examination itself, it is being established that installment of Rs.800/- for the month of April was handed over to the accused in his office itself. In paragraph 20 of the cross examination itself, it is being established that before the month prior to lodging the complaint, the accused demanded Rs.300/- for the affairs of the company as well as Rs.500/- for not harassing in the business of export. In paragraph 20 of the cross examination itself, it is being established that before the month prior to lodging the complaint, the accused demanded Rs.300/- for the affairs of the company as well as Rs.500/- for not harassing in the business of export. In paragraph 20 also, it is being established as regards to handing over installment of Rs.800/- for the month of April 1994. It is also established that Dy.S.P. Mr.Kanare has recorded his statement at Rajkot on 1.9.1994, but in the said statement, he had not stated above facts regarding acceptance and as to how gesture was raised by opening Excise Manual is also being established in the said paragraph. 15. PW 4 - Govindbhai Jethalal Yadav has been examined at Exh.53. The witness has deposed that he was working as Police Inspector, ACB, Rajkot and while he was on duty on 8.6.1994, the Assistant Director of ACB, Mr.Subhash Trivedi called him at about 13.00 hours noon time and directed him to proceed with the complaint lodged by the complainant. The witness was further appraised that Mr.Trivedi would be supervising the same. The witness has deposed that he recorded the complaint, requisitioned other police official as panchas and proceeded to laid the trap. On the day of trap at about 15.30 hours, when they reached to the office of the accused, at that time, the complainant was accompanied with the shadow panch and upon receiving signal from the complainant, the raiding party also carried out detailed search and seizure and recovered tainted currency notes. The numbers of the said tainted currency notes were tallied with the panchnama which was carried out. The accused was identified before the learned trial Court by the witness. In the cross examination, the witness has admitted that the complainant met him but he could not say as to whether he met the Assistant Director or not. The witness also admitted that he investigated about 18 cases pertaining to the CBI and thereafter the papers were sent to the CBI. The witness also admitted that while seizure memo was served to the accused, he accepted the same, but did not accept the contents thereof. The witness has admitted that in the date, instead of 7, it was over written as "8". 16. PW 5 - Bhaleram Lakhiram Mehra has been examined at Exh.58. The witness also admitted that while seizure memo was served to the accused, he accepted the same, but did not accept the contents thereof. The witness has admitted that in the date, instead of 7, it was over written as "8". 16. PW 5 - Bhaleram Lakhiram Mehra has been examined at Exh.58. The witness has deposed that he was sanctioning authority who was serving at the relevant time as Collector, Customs and Central Excise at Rajkot. The witness received the papers from the CBI for granting sanction to prosecute. He studied the papers and when he was subjectively satisfied after studying the papers, he accorded sanction. In the cross examination, the witness has admitted that he is not conversant with Gujarati language while he received the papers. However, it is established that the papers were in English language along with Gujarati papers which he studied. 17. PW 6 - Jogesh Avinash Trivedi has been examined at Exh.62. The witness has deposed that he was serving as Inspector in Excise Department, Rajkot from April 1992 to April 1994. The accused was serving as Superintendent at the relevant time. The witness has deposed that he received Form-D i.e. declaration form on 6.5.1994 from M/s Omani Forging Limited for which the accused asked him to inquire personally and therefore, he inquired and the said product was found to be of Ralis. On 10.5.1994, he also inspected the said company and carried out certain procedure and drawn the panchnama. He also recorded the statement of the complainant. Exh.23 was presented by the complainant on 6.6.1994 which is AR Form No.4 filled in by M/s Omani Forging. The witness has inspected the particulars which were pertaining to the export of goods and also containing price as well as excise and thereafter he signed and handed over to the accused. In the cross examination, the witness has admitted that the accused resumed the duty in the month of April 1994 in place of Mr.N.A.Pandya. Nothing worth has come from the cross examination of the witness. 18. PW 7 - Elbart Aling Kanhare has been examined at Exh.64. The witness has deposed that he was serving as Superintendent of Police, CBI at New Delhi and he received the papers from the ACB office, Ahmedabad. He carried out rest of the investigation as the accused was serving in the Central Government. 18. PW 7 - Elbart Aling Kanhare has been examined at Exh.64. The witness has deposed that he was serving as Superintendent of Police, CBI at New Delhi and he received the papers from the ACB office, Ahmedabad. He carried out rest of the investigation as the accused was serving in the Central Government. During the course of investigation, he recorded the statements of the trapping party and others as well as the further statement of the witnesses and after conclusion of investigation, he filed the chargesheet. In the cross examination, the witness has admitted that in the complaint at Exh.24, instead of date 7th, 8th is corrected. He has admitted as regards to recording the statements of the witness date wise. 19. The accused had not examined any witness for his defence, but he tendered detailed explanation under section 313 of the Code of Criminal Procedure 1973 wherein he, inter alia, contended that since he inspected and interrogated as well as served notice and initiated several proceedings against the complainant and its firm and therefore, in order to take revenge, he had been wrongfully roped in the crime in question, as such. 20. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A.Subair Vs State of Kerala, (2009) 6 SCC 587 , while dwelling on the purport of the statutory prescription of Sections 7 and 13(1) (d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. 21. In State of Kerala and another Vs C.P.Rao, (2011) 6 SCC 450 , the Honourable Apex Court reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 22. 22. In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B.Jayraj, (2014) AIR(Supreme Court) 1837 in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1) (d) (i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1) (d) (i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 23. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 24. In the backdrop of the aforesaid factual as well as legal position, this Court has minutely gone through the impugned judgment and order as well as the depositions of the witnesses in light of the rival submissions made by learned advocates for both the sides. 25. 24. In the backdrop of the aforesaid factual as well as legal position, this Court has minutely gone through the impugned judgment and order as well as the depositions of the witnesses in light of the rival submissions made by learned advocates for both the sides. 25. In corruption cases, as laid down in the series of judgments by the Honourable Apex Court as well as by this Court, three vital ingredients are required to be established by the prosecution beyond reasonable doubt in order to prove the offence as alleged. In the present case, this Court has gone through the entire Record and Proceedings as well as written submissions submitted and oral submissions advanced by Mr.Anandjiwala, learned senior counsel for the appellant accused in light of the factual scenario emerging out from the Record and Proceedings of the case. It is the contention of Mr.Anandjiwala as regards to validity of sanction to prosecute the accused as has been accorded by PW 5 which came to be produced at Exh.59. This Court has gone through the order of sanction to prosecute the accused as well as oral deposition of PW 5. The contention raised by learned senior counsel for the appellant that the Collector, Customs was non-Gujarati and he was not conversant with Gujarati language, due to which, since the papers were in ver nacular language, he could not study and without application of mind and in stereotype manner as revealed in the case of Periyasamy Vs Inspector, Vigilance and Anticorruption Department, Tiruchirappalli, (1994) CriLJ 753, the operative portion was lifted therefrom and therefore, the order passed by the sanctioning authority is vulnerable and suffers from non-application of mind. On going through the deposition of PW 5, it can be seen that PW 5 had made it clear that he received all the papers pertaining to the case of the accused along with other papers; he studied and after being subjectively satisfied, he granted the order of sanction to prosecute the accused. The aforesaid fact is not only being stated in examination-in-chief, but in the cross examination undertaken by learned advocate for the accused, it is being established wherein the witness has clearly stated that he got translated version of the police papers into English and he studied and after due application of mind, he accorded the sanction. The aforesaid fact is not only being stated in examination-in-chief, but in the cross examination undertaken by learned advocate for the accused, it is being established wherein the witness has clearly stated that he got translated version of the police papers into English and he studied and after due application of mind, he accorded the sanction. In view of the aforesaid factual scenario, even if operative part is lifted out from the judgment of the Honourable Apex Court wherein in case of Periyasamy, such sort of operative order while granting sanction to prosecute was written as lifted makes no difference since while according sanction to prosecute the accused, the sanctioning authority had to apply its mind as to whether prima facie case is made out to prosecute or not after due application of mind, if the competent authority is subjectively satisfied himself to grant sanction to prosecute, then requirement of law as envisaged in section 19 of the Act is complied with. On overall reading of the evidence on record, this Court is satisfied that sanction order passed by the sanctioning authority is in accordance with law. 26. So far as various contentions as regards to interpolation in the date of complaint as well as Mr.Subhash Trivedi, Assistant Director, ACB aided and also facilitated in finding out panchas and taken undue interest in carrying out the raid as well as other particulars as regards to such sort of inquiry and investigation undertaken by the accused and other officials in the office of the complainant as well as his factory were not produced during the course of investigation as well as during the course of trial by the prosecution. 27. On all these aspects and especially on going through the written arguments, it can be seen that technical plea has been raised only on such technical issues. Even, if Mr.Trivedi facilitated and aided in procuring the presence of panchas and even if they are his confident persons, then also it does not make any difference as Mr.Trivedi was Head of the department and he was holding position of Assistant Director of ACB at the relevant time at Rajkot. It was the duty of Mr.Trivedi to supervise the investigation of entire region so far as functioning of ACB cases are concerned. It was the duty of Mr.Trivedi to supervise the investigation of entire region so far as functioning of ACB cases are concerned. In this view of the matter, if Mr.Trivedi had facilitated and even instructed that he would supervise the case, that does not per-se itself indicates that he was out and out to rope in the accused in the crime in question. In absence of any linking evidence or even bringing anything on record that Mr.Trivedi had any animosity or any sort of mala fide intention so as to rope the accused in the crime in question. Indisputably, except raising such sort of contention and dispute, no iota of suggestion like above came to be raised during the course of cross examination. Similarly, whatever investigation, inquiry and show cause notice is issued either by the accused or by other official belonging to the Central Excise Department to the complainant and his firm was in due course of discharge of their official duty. Even, if that may be done so far, that may be within the knowledge of the accused and other official, unless such things are brought into the notice of the investigating agency and such things could not be surfaced automatically to the mind of the investigating agency and therefore, there appears no substance in the contention that such things were not brought on record and were not furnished during the course of filing the chargesheet. 28. This Court has minutely gone through the evidence of the crucial witnesses i.e. complainant, shadow panch and other witnesses. On overall analysis of the evidence on record as regards to raising predemand pertaining to installment for the month of April 1994, the evidence on record is clearly in conformity with the FIR at Exh.24 and emerging out not only from the mouth of the complainant and shadow panch, but the same is also emerging out from their evidence while they were cross examined by the accused himself. In the cross examination itself, as regards to the demand and acceptance for installment of Rs.800/- from the complainant by the accused is being established in the evidence of the complainant and shadow panch. 29. Similarly, so far as instant demand is concerned, it is clearly emerging out from the complaint at Exh.24 itself. In the cross examination itself, as regards to the demand and acceptance for installment of Rs.800/- from the complainant by the accused is being established in the evidence of the complainant and shadow panch. 29. Similarly, so far as instant demand is concerned, it is clearly emerging out from the complaint at Exh.24 itself. In the said complaint, in opening paragraph itself, it is alleged, inter alia, by the complainant that on 6.6.1994 the accused demanded while signing AR Form 4A and thereafter the instant demand came to be raised by way of making telephone call on 8.6.1994 and therefore, as regards to interpolation in the date mentioned in the complaint pales into insignificance since recital emerging out from the complaint itself indicates that the date i.e. demand date 6.6.1994 and 8.6.1994 which clearly indicates that the complaint could not have been written prior to 8.6.1994 and the said fact is also admitted by almost all the witnesses who were put such question in the cross examination that the date was correct as 8 and that is in consonance with the factual scenario emerging out from the complaint and this Court is subjectively satisfied that there appears no mala fide intention in making such correction or interpolation, as such. 30. So far as instant demand of Rs.800/- i.e. Rs.300/- for not harassing in day to day affairs and Rs.500/- for not creating hindrance in exporting goods alleged to have been raised on 6.6.1994 as well as on 8.6.1994 is concerned, the said factum is not only being established during the course of cross examination of the complainant but this Court is also satisfied that even in the evidence of the shadow panch, more particularly, in paragraphs 16 to 23, it clearly confirms predemand and instant demand in the cross examination itself. 31. So far as instant demand at the time of trap is concerned, the evidence of the complainant as well as shadow panch, both are in uniformity in nature and the evidence of the complainant is also duly getting corroboration from the mouth of the shadow panch. The raising of instant demand and in pursuance thereof, the complainant handed over the amount and placed into Excise Manual book is clearly being established in the cross examination itself. 32. The raising of instant demand and in pursuance thereof, the complainant handed over the amount and placed into Excise Manual book is clearly being established in the cross examination itself. 32. As stated above, this Court has minutely examined the evidence of the witnesses and the evidence of the witnesses has been read over in the presence of learned advocates for the parties and on overall analysis of their evidence, it leaves no manner of doubt of constituting vital ingredients as regards to instant demand and predemand dated 6.6.1994, 8.6.1994 as well as instant demand and acceptance dated 8.6.1994 and recovery came to be effected therefrom which is tallied with the preliminary panchnama and that the accused himself has admitted and got established the aforesaid factum during the course of cross examination itself. 33. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in convicting the appellant - original accused. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of conviction recorded by learned court below and hence finds no reasons to interfere with the same. 34. On the point of sentence, Mr.Anandjiwala, learned senior counsel has submitted that the accused had reached to the age of 73 years and he is suffering from various ailments. The wife of the accused is also suffering from diabetes and other ailments and that the matter remains pending for about 24 years during which period, the accused has suffered a lot not only from the point of social and economically but he has undergone mental pain, shock and suffering as the matter was kept hanging for about 24 years. At this stage, if the accused would have to undergo sentence as inflicted by learned trial Judge for a period of three years, it would not only put the accused into great hardships but his family members will also suffer. Lastly, Mr.Anandjiwala requested this Court to show mercy taking into consideration the peculiar facts and circumstances of the case. At this stage, if the accused would have to undergo sentence as inflicted by learned trial Judge for a period of three years, it would not only put the accused into great hardships but his family members will also suffer. Lastly, Mr.Anandjiwala requested this Court to show mercy taking into consideration the peculiar facts and circumstances of the case. On the other-hand, Mr.Kodekar, learned Standing counsel has urged that since the incident occurred in the year 1994, at the relevant time, the statute provided minimum sentence of six months under section 7 of the Act and minimum sentence of one year under section 13(2) of the Act and there appears no proviso or authority to reduce the said sentence and therefore, he has urged that taking into consideration the peculiar facts and circumstances of the case, the Court may impose appropriate punishment but not less than minimum as provided under the Act. 35. Taking into consideration the rival submissions made by the learned advocates for the parties and the provisions of law since minimum sentence is provided for six months under section 7 and one year sentence is provided under section 13(2) of the Act, interest of justice would be met to impose the sentence of minimum to the accused while taking into consideration the peculiar facts and circumstances of the case. 36. In view of the above discussion, the following final order is passed. Criminal Appeal No.1090 of 2003 filed by appellant accused is dismissed. The impugned judgment and order dated 16.7.2003 passed by learned Special Judge, Ahmedabad in Special Case No.30 of 1994 is hereby confirmed. The appellant accused shall undergo rigorous sentence for six months for the offence under section 7 and the accused shall undergo rigorous sentence for a period of one year for the offence under section 13 (2) read with section 13(1) (d) of the Act. Rest of the judgment of learned trial Court shall remain unaltered. The accused shall surrender himself to the custody within a period of 12 weeks from today failing which, it will be open for the concerned authority to take appropriate action.