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TMI Blog2021 (1) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... s not sufficient to establish beyond reasonable doubt that the deceased had committed the offences for which he was charged and tried - Appeal allowed - decided in favor of appellant. - CRIMINAL APPEAL NO. 649 OF 1996 IN SPECIAL CASE NO. 2 OF 1988 - - - Dated:- 19-1-2021 - SANDEEP K. SHINDE, J. Mr. Kartik Garg, Advocate for the appellant (appointed). Mr. S.R. Agarkar, APP for State. ORAL JUDGMENT : 1. Suresh Damodar Kagane, accused no.1 in Special Case No.2 of 1988 was convicted and sentenced, by the Learned Special Judge, Solapur, for the (i) offence punishable under Section 120-B of the Indian Penal Code ( IPC for short) and sentenced to suffer rigorous imprisonment for the period of one year and to pay fine in sum of ₹ 5,000/- in default to suffer further rigorous imprisonment for six months. (ii) convicted for the offence punishable under-Section 409 of Indian Penal Code and sentenced to suffer rigorous imprisonment for the period of one and half year and to pay fine in sum of ₹ 7,500/- in default to suffer further rigorous imprisonment for nine months. (iii) convicted for the offence punishable under Section 420 of the IPC a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, engaged in the business of extracting oil from power oil ghanas, whose sales were exempted under Entry No.39, Schedule A appended to the Bombay Sales Tax Act. Accused no.5, Mallikarjun Chanbasappa, proprietor of M/s. M.C. Dhangapure, was a registered dealer. Likewise, was Vishwanath Kalshetti, also registered dealer, was engaged in the business of extracting oil from oilseeds. It is alleged, accused no.4, son of accused no.5 forged bills/vouchers with an intention to claim erroneous-false, a set-off claim, admissible to dealers, engaged in the business of extracting oil from oilseeds of tel ghanies. Accordingly, accused no.4 produced forged sales invoices of M/s. V.M. Dhangapure (Commission Agent) and on the strength of such bills, secured registration under the Bombay Sales Tax Act, under the trade name V.S. Kalshetti , of which Mr. Kalshetti was projected as proprietor. The registration was allegedly granted by Trimbakrao Govindrao Bhave, Sales-Tax Officer (accused no.2). It is unfolded in evidence that, on the basis of such other bills/forged invocies, accused no.4, sought set-off (refund of tax), on behalf of and in the names of accused no.5 (M/s. M.C. Dhangapure) and M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of duty, for failing to follow the procedure while passing tax assessment orders. It is evident from the evidence of Assistant Commissioner of Sales Tax, that the deceased had passed the assessment orders without there being tax returns on the file and without first verifying or cross checking the vouchers, purchase bills produced by the dealers for claiming the set-off. The tenor of the evidence of this witness, therefore suggests that Mr. Kagane had overlooked the norms while issuing refund orders. Suffice to say, Sales Tax Department did not deliberate on issue whether Mr. Kagane and other public servants, knowingly overlooked and jumped the procedure and norms while granting set-off claim. 11. Faced with this kind of evidence, after examining 92 witnesses, pardon was tendered to the accused no.4 and he was examined as a prosecution witness . Though, order granting pardon was challenged before this Court and the Apex Court, the challenge was not entertained. 12. Be that as it may, fact remains that, the learned trial Court relied on the evidence of approverP.W.93 and reached the conclusion of guilt, culminating into conviction of accused nos.1, 2, 3 and 13. Bhave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the present case after completion of prosecution evidence. Had the Judge used his discretion judiciously, he probably would not have tendered pardon, to a person of highly dubious character. Had the pardon not been granted to accused no.4 who has been examined as P.W.93, the prosecution obviously would have failed miserably. 15. The learned Counsel for the appellant, has relied on this judgment and observations made therein, to contend that, since the State has not challenged the judgment of this Court in Criminal Appeal No. 634/1996 passed in November, 2013 , it has attained finality. Learned Counsel has also relied on the judgment of the Apex Court in the case of Babuli alias Narayan Bahera Versus. The State of Maharashtra, reported in (1974) 3 Supreme Court Cases page 562. In the said case, in para-6, Apex Court has observed thus :- 6. The approveer was tendered pardon at a very late stage of the trial, that is, after 31 witnesses were examined. Those witnesses were cross-examined on behalf of the approver and he had the dubious privilege of being able to hear closely almost the entire evidence led by the prosecution. The High Court has observed with p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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