Required guide line
Mukesh Mistry
(Querist) 08 April 2014
This query is : Resolved
My name is Mukesh Mistry, I was working in ISRO-SAC Ahmedabad as a Technician now retired. I was joined ISRO-SAC in 1977 and retired in October 2012. I have C.B.I case from 1995 against me about taking ISRO-SAC equipment from campus and try to sale it.
This case registered by C.B.I not by My Department, they told me by letter I have face this case in Court from 1995 they started sealed cover process for my promotion interview results. In october 2012 I am retired but case still going on, therefore My Department release leave encasement, pf and other amount for which I am eligible but not released gratuity. in March 2013 case finished in my favor. After that court give six month surity under C.P.C 437(A). that six month is pass but my department not take any action to released my gratuity and open promotion sealed cover results, now from six month to still today they told me they haven't received letter from C.B.I. They donot start any process till they received letter from C.B.I.So my question is Is there any letter required after Court released me innocent ? I have attached court judgment. Please guide me in this matter.
R.V.RAO
(Expert) 09 April 2014
since cbi started the process by booking the case and since, the cbi completed investigation,they have to inform the concerned dept. about completion of investigation and also inform the results of the investigation .
Guest
(Expert) 09 April 2014
Since you have been acquitted you have all the rights including what ever benefits denied during your service like promotion etc.Consult a Senior Lawyer deals in Service Matters and Serve a Legal Notice.
Guest
(Expert) 09 April 2014
Normally, CBI does not intimate about finalisation of investigation or judgment in the case to the department concerned. So, the official himself has to apprise the department about the status of the case on finalisation. Department may not release your gratuity unless certified copy of judgment in the case is provided by you. Similarly, the sealed cover about DPC recommendations about your selection for promotion would also be opened when you inform about your honourable acquaittancce from the charge.
So, apply formally for release of your gratuity and opening of sealed cover by keeping fully informed about the final outcome of your case.
Mukesh Mistry
(Querist) 09 April 2014
I want to know after court judgment is there any letter or document need from CBI, that completation of case, to my department to release my benefit. my benefit are under sealed cover since 1995 and my gratuity is held since october 2012 when I am retired.
Mukesh Mistry
(Querist) 09 April 2014
I have already submit application for release my benefit along with court judgment after court judgment declared. but my department said they are waiting for letter from CBI. What should I do ?
Guest
(Expert) 09 April 2014
Get the matter expedited by meeting CBI personnel>
Mukesh Mistry
(Querist) 09 April 2014
Sir, I don't understand. I contacted CBI Office Gandhinagar Gujarat. They told me they submit court judgment to Mumbai office and ask for no further process. They also give me back my document's.
Guest
(Expert) 09 April 2014
If the CBI submits the court judgment officially that would serve the purpose of clarification of the CBI.
Mukesh Mistry
(Querist) 09 April 2014
Sir, CBI not inform to my department but I have written many letter regarding this matter to my department and submit court sealed judgment copy to department. I have done inquiry in local CBI office, they told me they are not going for further process in this case.
T. Kalaiselvan, Advocate
(Expert) 09 April 2014
I agree with the experts opinion on the subject. The CBI has already submitted its report to its Mumbai Office, now the Mumbai Office will have to transmit he same to your department, take down the address of the Mumbai office and request them to expedite the matter to your department at the earliest with a copy endorsed to your office too so that you can expect some speedy results.
Mukesh Mistry
(Querist) 09 April 2014
Thank You Sir, I will definitely write to Mumbai CBI office but I don't have contact of department & office address. Can you please help me?
R.V.RAO
(Expert) 10 April 2014
the local cbi office which you have already visited, can help you get cbi ,mumbai office address etc...
Sudhir Kumar, Advocate
(Expert) 10 April 2014
the judgement you stated is not found enclosed and I express my views on the given facts.
It appears that
(i) you have been acquitted (you did not disclosed whether on procedural fault or on merit)
(ii) no appeal is yet filed by CBI not any stay on acquittal (atleast what appears from given facts)
(iii) during the trial your promotions were in sealed cover.
(iv) the department all through the period of about 19 years did not initiate any disciplinary action against you (which they were entitled).
(v) Even now the department is not initiating any departmental case against you (atleast as appearing from given facts).
In such case any NOC fro CBI may not be required and they may not enter in futile communication.
You have to give notice to the department (well drafted by experts) and move to CAT.
Kindly meet the nearest available service matter lawyer
Guest
(Expert) 10 April 2014
Send a legal notice to the Head of your organisation. Even if they resort to undue delay in settling your case, to get your rightful claims, you may approach the CAT or HC under whose jurisdiction your organisation falls.
Mukesh Mistry
(Querist) 10 April 2014
My Case Judgment. Sorry I have to paste here not able to upload pdf file.
Mukesh Mistry
(Querist) 10 April 2014
Exhibit - 61
BEFORE THE COURT OF HON'BLE SPECIAL JUDGE SHRI K.B.GUJARATHI (C.B.I COURT NO.1)
AT AHMEDBAD
C.B.I. SPL. CASE NO.34-2005
Complainant - The State
(C.B.I.) Ahmedabad
Versus
Accused - (1) Mukesh Shantilal Mistry
Tradesman "F" E.M.O. Section
Space Application Center,
Ahmedabad
(2) Atul Shantilal Mistry
Res.at Both Residing at - 23,
Vijaylaxmi Society, Behrampura
Opp. No.3 Kabadi Market,
Ahmedabad - 22
Offence :- Indian Penal Code section 381, 414 read
with section 120(B) and Prevention of
Corruption Act, 1988 section - 13(1)(D)
read with 13(2).
For the State learned Spl. P.P. Shri Hari Mohan
For the accused L.A. Shri R.Z. Shaikh
JUDGEMENT
1. The brief facts of the case of the prosecution is that,
The accuse No.1 Mukesh Shantilal Mistry of this case was serving in the DECU Department in ISRO at Ahmedabad and during the said period around the year 1992 the had stolen one camera Tripod paiki two camera Tripod from the premises of DECU, purchased in 1989 and during the period of April 1995 the said Tripod was sold by him through his brother Atul Mistry to the person namely Nirav Parikh in consideration of Rs.75,000/- from the said price an amount of Rs.30,000/- was given by Nirav Parikh in cash but as Atul Mistry has not given the bill etc of Tripod to Nirav Parikh, the said Tripod was returned to him. The joint surprise was made by C.B.I. during that the said Tripod was not found but thereafter, the said Tripod was put up by Mukesh Mistry in the DECU premises. The same was found later on at the time of investigation of the committee thereafter and doing so the accused Nos. 1 and accused No.2 have planned the so called conspiracy regarding theft of the Tripod and though it was the stolen Tripod in collusion with each other try to sell it and doing so, the accused have committed the offence under I.P.C. section 120-B read with 381, 414 and Prevention of Corruption Act, 1988 section - 13(1)(D) read with 13(2).
2. That with regard to said so called incident first of all the preliminary investigation was carried out by C.B.I. Gandhinagar and at the end of the preliminary investigation as it was found that the offence has been committed, with regard to it, in C.B.I. Gandhinagar R.C.No.34 A/95 the offence was registered on date 14.09.1995 and the investigation thereof was done by Investigating Officer Shri Jitendrasinh, P.I., C.B.I. Gandhinagar. During the said investigation the I.O. has recorded the statement of the concerned witnesses, carried out the seizure of the house of accused Mukesh Mistry, the Tripod of the subject matter of theft were seized in presence of panchas. The statement etc of the so called witness Nirav Parikh was recorded under Cr.P.C. section - 164 ad thereafter, as found sufficient evidences against the accused to file charge-sheet the report in that regard was made to S.P., C.B.I., Gandhinagar and on the basis of which S.P., C.B.I. Gandhinagar has initiated to obtain necessary prosecution sanction in respect of accuse No.1 Mukesh Mistry and after obtaining prosecution sanction on the basis of which against the accused, the charge-sheet of the offence under I.P.C. section - 381, 414 read with 120-B and Prevention of Corruption Act, 1988 section 13(1)(D) read with 13(2) filed in the Special Court here on date 10.11.1997, which was taken on register at the relevant time vide Special Case No.42/97 and thereafter, on date 06.03.1998 an order was passed to issue bailable warrant against the accused. During that time, the said case again registered vide C.B.I. Special Case No.34/2005 and thereafter, on the basis of the bailable warrant the accused appeared themselves and through Advocate, therefore, the copies of charge-sheet have been given to them.
3. On receipt of this case for the hearing of charge-sheet after hearing both the parties, against the accused, the relevant time Special Judge, Court No.4 had vide Exhibit - 4 on date 20.01.2011 framed the charge under I.P.C. section - 381, 414 read with 120-B and Prevention of Corruption Act, 1988 section 13(1)(D) read with 13(2) and while recording the plea of the accused vide Exhibit - 5, 6 with regard to the charge-sheet, the accused had pleaded not guilty hence the case kept for the evidence of prosecution.
4. On receipt of the said case on the evidence of prosecution, the necessary oral and documentary evidences have been produced by the prosecution. To give the sufficient opportunity on behalf of the prosecution, the following witnesses have been examined.
Sr.
No. Witness
No. Name of the witnesses Exhibit
1 1 Chandrasekhar Damodar Acharya 15
2 2 Suryaprakash Mahavirprasad Jain 16
3 3 Rajnikant Madhavprasad Pandye 17
4 4 James Methews Courian 21
5 5 Sudhirbhai Purshottamdas Patel 27
6 6 Nirav Ashwinbhai Parikh 29
7 7 Gururaja Ajappa 30
8 8 Hasmukh Amrutbhai Chavda 32
9 9 Maheshbhai Punambhai Patel 32
10 10 Dhiren Prabhudas Nagrecha 41
11 11 Jitendrasinh Vishwanathsinh
(I.Officer) 46
12 12 Joy Mamen Kakkanatto
(K.M.Joy, Sanctioning Authority) 52
5. Except this no other witnesses have been examined, wherein as the documentary evidences the following documents have been produced.
Sr.
No. Details Date Exhibit
1 Seizure memo 26.08.1995 18
2 Letter written regarding receipt of the Tripod. 14.08.1995 19
3 S.R.V. Number 1141 07.10.1989 22
4 Invoice 25.03.1989 23
5 Seizure Memo 02.11.1995 24
6 Letter ( The letter written to C.B.I regarding the missing item detail ) 22.12.1995 25
7 Bank of Baroda S.V. Colony branch cheque No.032455 29.04.1995 36
8 Account opening form of Atul Mistry 11.10.1994 37
9 Abstract of Saving Account No.898 of Atul Mistry ---- 38
10 The memo of returning the dishonoured cheque ---- 39
11 The relevant note made in the clearing register 29.04.1995 40
12 In the name of Video West of Nirav Parikh the concerned document related to current account / account opening form / specimen signature card / abstract of account ---- 42
to
45
13 Concerned note made in the cheque return register 01.05.1995 45
14 Concerned note made in the cheque issue register ---- 46
15 F.I.R. 14.09.1995 47
16 The letter calling information regarding missing item 14.07.1995 48
17 The letter written to C.B.I. office by Director, DECU 02.08.1995 49
18 Memorandum 14.07.1995 50
19 Search list 26.09.1995 51
20 Prosecution sanction 24.10.1997 53
And except those no other documentary evidences have been produced and vide Exhibit - 57 the purshis for closing of evidence have been produced. Therefore, closing the stage of evidence of prosecution, to record the statements of the accused under Cr.P.C. section - 313 the matter adjourned.
8. On receipt of case for further statement under Cr.P.C. section - 313 of the accused the necessary statements of the accused have been recorded, the accused have stated that, the false case filed against them, they are innocent, stating so also stated that the evidence of the prosecution is false, but do not want to examine any witnesses in defence. Therefore, the stage of evidence of the accused was also closed, therefore, the case kept for final hearing.
9. On receipt of the said case for hearing of final arguments, heard P.P. Shri Harimohan for the prosecution and L.A. Shri R.Z.Shaikh for the accused.
(Arguments)
10. It is submitted by P.P. for the prosecution that, in all total 12 witnesses have been examined and about 22 documentary evidences have been produced. There are the allegations against the accused No.1 for theft of Camera Tripod and thereafter, sold the said Tripod to witness Nirav Parikh in consideration of Rs.75,000/- but thereafter as the bill has not been produced the same was returned by Nirav Parikh and thereafter, as came to know regarding the fact that the C.B.I. Investigation going on against him, again bringing Tripod put into ISRO and doing so, the accused have committed the offence under I.P.C. section - 381, 414, 120-B etc. For that on behalf of the prosecution such witnesses have been examined who have seen the accused No.1 taking something in Maruti Fronty. And also examined the important witnesses like Nirav Parikh. He has supported the statement of the prosecution. For that documentary evidences have also produced. Therefore, it is to be believe that the charge which has been framed against the accused, the same has been proved undoubtedly by the prosecution and the accused are require to held guilty.
10. Whereas it has been submitted by the accused that, the oral and documentary evidences produced by the prosecution are not sufficient to held the accused guilty for the alleged offences. The said case based on the circumstantial evidence. No one has seen the accused No.1 stealing the Camera Tripod and not seen putting the said Tripod in ISRO. Therefore, the said case based on the circumstantial evidence but the whole chain of the circumstantial evidences have not been proved undoubtedly. The witness No.1 has given the evidence to see the accused No.1 putting some thing like pipe or wood in the bonnet of the Maruti Fronty. Except that, no one has seen the accused No.1 and given the evidences regarding hear se details. The witness No.1 has also seen taking Tripod and seen putting something like pipe or wood in the bonnet but in the bonnet the muddamal Tripod like thing having 5 feet of length cannot be fitted. Therefore, the evidence of the said witness is not trustworthy moreover, immediately no search has been carried out at the house of accused No.1 or in the vehicle and after too much time the search was carried out regarding the material found. In the said case, the I.Officer C.B.I. Officer Jitendrasinh has not done the investigation appropriately and wrongfully investigating try to involve the accused. The oral evidences which has been given by Nirav Parikh, looking to it also he is having business relation with accused No.2, both were in the same business, therefore, with regard to the said transaction, the cheque transaction which was happened, taking its illegal benefit the I.O. has try to involve the accused. The oral evidence which has been given by Nirav Parikh, looking to it, it has been clear that the same has been prepared by the I.O. to submit the evidence in wrongful manner. Moreover, the Tripod like muddamal Tripod might have been available in the market. Nirav Parikh has also stated that he cannot say exactly that the muddamal Tripod itself brought to him by accused No.2 for sell or not, therefore, as there is no evidences against the accuse, the submission put up to acquit the accused not guilty giving the benefit of doubt.
11. Looking to the details of prosecution and the details of the charge of the offence framed against the accused vide Exhibit - 4 and looking to the denial of committing offence by the accused, for the decision of the said case the following points have been raised.
Points
1. Whether the prosecution undoubtedly proves that, when the accused No.1 Mukesh Shantilal Mistry of this case when serving as Stradusman in ISRO at that time, stolen Camera Tripod worth Rs.95 thousands of the ownership of DECU of ISRO during the period of January - 1992 and thereafter, planning the offensive conspiracy with his brother Atul Mistry accused No.2 and given him for sell and though the accused No.2 is aware that the said Tripod has been stolen, kept with him and try to sell it and doing so the accused have committed the offence under I.P.C. section - 381, 414 read with 120-B ?
2. Whether the prosecution undoubtedly proves that, the accused of this case have also committed the offence under Prevention of Corruption Act, 1988 section - 13(1)(D) read with 13(2) ?
3. Whether the prosecution undoubtedly proves that, the accused or either of accused have committed the aforesaid offences or any of the offence amongst it ? If yes, than which accuse has committed which offence ?
4. What Order ?
12. The submission which have been made by the both the parties, considering it, consolidating the details of the case of the prosecution, the charge which has been framed against the accused vide Exhibit - 4, the oral and documentary evidences produced by the prosecution and denial of the accused committing the offence and defence etc the decision of the aforesaid points given as under. The reasons thereof have been stated thereafter.
Point No. 1. Negative
2. Negative
3. Negative
4. As per final order.
Reasons
13. As per the statements of the prosecution, the accused No.1 Mukesh Mistry of this case was rendering his duties as Tradesman in DECU Department of ISRO situated at Ahmedabad and he had during the period of January - 1992, stealing the Camera Tripod from DECU amounting to Rs.95 thousands in his Maruti Fronty and try to sell it during the period of April 1995 through accused No.2 Atul Mistry who is his blood brother. By the prosecution to prove the allegation in all total 12 witnesses have been examined, wherein so called eye witness, other witnesses, panch witnesses, bank employees, Competent Officer giving sanction of prosecution and I.Officer like C.B.I. Officers have been included. Whereas being the documentary evidences, F.I.R., search and seizure report of the Joint Committee appointed by DECU and C.B.I. Officers, concerned documents of puchasing Camera Tripod during the period of 1989, the bank account documents of accused Atul Mistry and witness Nirav Parikh, prosecution sanction etc have been included. Whereas on behalf of the accused also during the cross examination of the witnesses, the orders regarding transfer of the accused No.1 have been produced.
14. The 12 witnesses who have been examined on behalf of the prosecution, if we think over it than it can be stated that, amongst them the witness No.1 Chandrasekhar Damodar Acharya, witness No.2 Suryaprakash Mahavirprasad Jain, witness No.5 Sudhirbhai Purshottamdas Patel, witness No.6 Nirav Ashwinbhai Parikh, witness No.9 Maheshbhai Punambhai Patel the Manager of Ahmedabad District Co.Op. Bank, witness No.10 Dhiren Prabhudas Nagrecha, Officer of the Bank of Baroda, Sardar Patel Colony branch, witness No.11 Jitendrasinh Vishwanathsinh, the I.Officer, only the evidence of such witnesses are important and those only are required special consideration and the evidence which have been given by the rest of the witnesses for that the things along with Camera Tripod which have been lost and were not found out, for the inquiry thereof a team was formed consisting the C.B.I. Officer and ISRO Officers and by the members of the said team the seizure - search which was carried out at the house of accused Mukesh Mistry, its panch witness etc have been included. The evidences of those witnesses is not too important because as per the statement of the prosecution the accused No.1 Mukesh Mistry of this case had stolen Tripod from ISRO during the period of January - 1992 and thereafter in August - 1995 when C.B.I. Officers and ISRO Officers were doing the work of search in the premises of ISOR at that time the stolen Tripod was found near the studio of ISRO. Therefore, the accused No.1 of this case as per the statement of prosecution whether stolen or not and whether any witnesses had seen him or not and for that any trustworthy evidence has been produced or not and the stealing Tripod taken by him whether sold to witness Nirav Parikh through accused No.2 Nirav Parikh or not, those matters are require special consideration and therefore, to come to the conclusion in that regard, I believe that, it is only require to take into consideration the evidence of the important witnesses mentioned herein above.
15. As per the statement of the prosecution, the witness No.1 Chandrasekhar Acharya was rendering his service as Tradesman in DECU he had seen the accused No.1 to take some Tripod or something like it in his Maruti Frontyand therafter, he had intimated to other officer regarding the said matter by telephone and thereafter, some investigation was carried out but the witness No.1 has in his oral evidence only stted that, during the period of January - 1992 accused Mukesh Mistry who was serving in DECU Department along with him, he had seen him putting something in the bonnet of Maruti Fronty therefore, made a phone to P.A. of Director Bhatiya and stated the details in that regard but as Shri Bhatiya is on leave his P.A. had intimated the officer namely S.P.Jain thereafter, S.P.Jain had made a report in that regard to C.I.S.F. at the gate and asked to check the vehicle of Mukesh Mistry but till than the car was left out, came to know such, he had also stated that, the thing which he had seen Mukesh Mistry to put into the car that was some piece of pipe or a piece of wooden or something. Thus, the said witness had given the evidence against the accused No.1 but the said witness has not clearly stated that, the he had seen accused Mukesh Mistry putting Camera Tripod in his fronty. On behalf of the accused the cross examination of the said witness has been carried out and during the cross examination Mukesh Mistry was working as painter and his place of sitting and the place of service were situated at the different places. On the main entrance of ISRO rendering service as Central Industrial Security Force and were doing the checking of persons, employees and vehicles going in and out, at the relevant time his immediate superior was Miraben but no complaint was made to here. The said incident happened in the year 1992, such details have been brought on record. Therefore, the additional details which have been stated by the witness in cross examination, considering it, if we thought than the said witness first of all had not seen the accused Mukesh Mistry taking the Tripod but seen taking the iron pipe or wooden like thing and seen putting such thing at the bonnet portion. The Muddamal Tripod Camera is of 4/5 feet length and about six inches broad, it has been clear that it was having three legs, therefore, it can be stated that, the muddamal camera Tripod like thing cannot be fitted in the Maruti Fronty like car’s bonnet means engine portion in any of the circumstances and as stated earlier the said witness has not clearly seen of taking Tripod, in such circumstances the evidence which has been given by the said witness against Mukesh Mistry that is no clear and trustworthy as it should be. Moreover, when the persons and vehicles going in an out in ISRO if checked by the C.I.S.F. personnel at that time the accused No. 1 Mukesh Mistry also seen by C.I.S.F. personnel and as he is having car that also examined but no evidence in that regard has been produced. In the circumstances, from the oral evidence of witness No.1 who is the eye witness it cannot be stated that he had seen the accused of this case Mukesh Mistry stealing the Camera Tripod.
16. On behalf of the prosecution being witness No.2 Suryaprakash Mahavirprasad Jain has been examined, the said witness had stated that, he was rendering his duties as Scientist Engineer in DECU Department of ISRO and also rendering duties as In-charge Production Support Services in DECU. During the period of January – 1992 he got message that Mukesh Mistry is taking something in Maruti Fornty, therefore, he had stated the C.I.S.F. persons to do the checking of car but prior to message pass over Mukesh Mistry went away taking the car and also stated that, such kind of message he had received from the P.A. of Director. The said witness has also been necessarily cross examined by the accused. During the cross examination the details that when the stole Tripod was found out, the message received in writing or oral through whom and whether it related to Camera Tripod or not, when C.B.I. had taken his statement, he knows accused Mukesh Mistry since the years such details have been brought on record. Therefore, the oral evidence of the said witness prima facie appears to have been supporting the evidence given by the witness No.1. But the said witness is not the eye witness and given the evidence on the basis of the hear se details, that can also be stated. Whereas the evidence of the witness No.1 so called eye witness is fully not clear and trustworthy at that time it can be stated that, the evidence of witness No.2 cannot be given special importance.
17. By the prosecution on the basis of the evidences of other witnesses also brought on record that, during the period of April – 1995 by the C.B.I. Officers the preliminary investigation was carried out at ISRO and during the said preliminary inquiry the things which were lost in DECU Department of ISRO and those have not been found out for which search etc have been carried out and for that Committee was formed and in the premises of ISOR and in the Department search was carried out at that time also so called stolen Tripod was missing and thereafter in August – 1995 again search was carried out at that time the said Tripod was found from studio No.2 of DECU. Therefore, it can be stated that, the said Tripod has been found from the ISRO premises studio on 14th August – 1995. As per the oral evidence of witness Nos. 1 and 2 during the period of January – 1992 the accused No.1 Mukesh Mistry had stolen so called Camera Tripod putting it into his Maruti Fronty car. But the prior to intimating the C.I.S.F. personnel to examine his car he was went out. Therefore, during the said period except the aforesaid witnesses other officer were also came to know that the accused No.1 Mukesh Mistry has stolen the Tripod, when this can be stated at that time the ISRO Officers and specially the witness No.2 or the Director, DECU had if sent the team consisting the ISRO Officer at the house of accused Mukesh Mistry and if the search of his car was also carried out at the relevant time and the efforts might have been made to seize the so called Tripod. But as per the evidences produced nothing such had been done and during the period of April – 1995 to July – 1995 C.B.I. came to carry out preliminary investigation, till than no complaint was filed and no efforts have been made to search it. Doing the search at the house and car of accuse Mukesh Mistry, no search was carried out that what has been taken at home by accused Mukesh Mistry. If we looked at all such circumstances and the conduct of the ISRO Officers than it can be stated that, the evidence which has been given by the witness Nos. 1 and 2 against the accused Mukesh Mistry is not trustworthy.
18. On behalf of the prosecution, except the aforesaid two witnesses no other witness had seen the accused Mukesh Mistry to take and to get back the stolen Camera Tripod at any point of time. Whereas, as per the statement of the prosecution the stolen Tripod was found on 14th August, 1995 near from Studio No.2 of DECU of ISRO. Therefore, it can be stated that, no one had seen the accused Mukesh Mistry to get back the so called stolen Tripod into the ISRO.
19. The efforts of involving the accused Mukesh Mistry and accused No.2 Atul Mistry with the incident of theft of so called Tripod was made on the basis of the oral and documentary evidences of witness No.6 Nirav Parikh. The witness No.6 Nirav Parikh had tried to give the evidence supporting to the statement of the prosecution and against the accused and stated that, during the period of August – 1995, the accused No.2 Atul Mistry who was involved in the business of the Photography as of him brought Camera Tripod (Stand) Slature Company Video 14II Model to him and stated that, the one of the party at Bombay given him to sell and he had talked to purchase the Tripod at that time Atul Mistry was residing at Mumbai. Therefore, looking to the Tripod he had decided to purchase in consideration of Rs.75 thousands and as it is the imported thing asked for the custom clearance and bill etc thereof from him and given the cheque of Rs.30 thousands and on the condition of getting documents of custom clearance decided to give the rest of the money but, upto ten days he was not able to bring custom clearance certificate and bill thereof, therefore, the said deal was canceled and returned the camera to Atul Mistry through his father and also made the stop payment of the cheque amounting to Rs.30 thousands.
20. The said witness has also stated that, during the period of November, 1995, the C.B.I. Officer came to his house and stated that the Tripod is of theft and made the inquiry whether the Tripod is of theft or not at that time he had stated aforesaid details to C.B.I. Officers. Thereafter, C.B.I. Officers time and again came to him for inquiry about Tripod and his passport was also seized and thereafter, on date 26th February, 1996 C.B.I. Officer took him to the Magistrate Court for giving statement where he had stated that he willingly came to give statement, therefore, the Magistrate had asked him to come on next day therefore, on date 26th February, 1996 given the statement going to the Magistrate Court and intimated the details regarding Tripod. The said witness had identified the muddamal Tripod and the said Tripod was shown to him by C.B.I. Officer and also stated that, during the period of April – 1995 accused Atul Mistry came to sell the said muddamal Tripod to him, stating so, accused had identify the accused Atul Mistry before the Court. Thus, the evidence which has been given by the said witness, from which it can be stated that, it is totally against the accused.
21. On behalf of the accused, the cross examination of the said witness has been carried out and in the cross examination such details have been brought to the record that, he knows the accused Atul Mistry from the year 1993-94 as his Gurubhai and Atulbhai and he both were same kind of profession therefore also known as line brother. When C.B.I. Officer Jitendrasinh first came to his house at that time no statement of any one was recorded. He has also admitted in the Cross Examination that, muddamal Tripod itself given to him or not, he cannot says it exactly. The company is sending in the market all the same kind of Tripod in the market, therefore, for its identification it is necessary to see its serial number. Muddamal Tripod easily available in the market. Thereafter, in that regard he had again stated that, the said muddamal Tripod is not easily available in the market. As per his belief, the custom duty imposed over it and licence is require to import the same and it is the prohibited item. In the cross examination of the said witness on behalf of the accused it has also been admitted that, as the purchaser has to keep precaution on the basis of which Jitendrasinh had taken him into the clutch and also seized his passport. After seizing the passport, the efforts were made to record his statement under Cr.P.C. Section – 164. Thereafter, as stated by Jitendrasinh made an application for anticipatory bail. At the time of hearing of anticipatory bail Jitendrasinh was also remained present there, at that time whether Jitendrasinh had stated in writing or orally that there is no objection to grant bail, that he do not know. After grant of anticipatory bail the statement under Cr.P.C. Section – 164 was recorded, two days prior to it Jitendrasinh had let him sit in his office till the late nights for first two days and after sitting two three days got his statement recorded. After taking his 164 statement, Jitendrasinh had returned his passport.
22. Thus, whatever the details have been stated by the said witness in his cross examination, if taken into consideration as a whole than as per the oral evidence of the said witness, the accused No.2 Atul Mistry met him to sell the camera Tripod in April – 1995 and there was camera Tripod same as muddamal which was of Slature company, that was sold in consideration of Rs.75 thousands and also given the cheque of Rs.30 thousands in that regard but as custom clearance and bill have not been produced, he had returned the same. Thus, the said witness has given the evidence but the said witness cannot tell whether Atul Mistry had sell the same muddamal Tripod to him or not, also stated such during the cross examination. At one stage he had stated that muddamal Tripod like Tripod can easily available in the market but with regard to the said matter he had changed his statement. The said witness was having business relations with the said witness Atul Mistry, also admitted that and during the period of Novermber, 1995 C.B.I Officer came to his house to make inquiry and made the inquiry whether it is the stolen Tripod or not, also stated such. Whereas as per the statement of prosecution, the stolen Tripod was found on 14th August, 1995 from the premises of ISRO. Therefore, it can be stated that, in November – 1995 there is no need for C.B.I. Officer to go at the house of the witness and to inquire that the stolen Tripod is there or not.
23. Moreover, the Investigating Officer of this case Jitendrasinh had been examined as witness No.11 but the said witness had nowhere stated in his evidence that, how he had obtained the name and address of the witness Nirav Parikh, he had also not stated that, during the inquiry of the accused, he had obtained the information regarding said Nirav Parikh. He had also not stated that, from which officer of ISRO he got the information regarding the accused. In this regard he had only stated that, during the period of 1992 the person namely Chandrashekhar had stated his superior officer that Mukesh Mistry is taking Tripod in the Maruti Car but from 1992 to July 1995 no show cause notice have been given by ISRO to Mukesh Mistry or his brother, also stated that. Moreover, Chandrashekhar who had been examined as witness No.1 of the prosecution, he had stated that he had seen accused Mukesh Mistry taking some pipe or wood like thing not Tripod at that time, how the information regarding the accused received by Jitendrasinh from where and how, therefore, it can be clearly stated in that regard that there is no clear evidence on record.
24. Moreover, also stated that, under what circumstances the said witness No.6 Nirav Parikh had given his statement under Cr.P.C. Section – 164 before the Magistrate and prior to which what procedure and conduct done with him by the C.B.I. Officer and stated that after recording the statement what procedure and conduct done with him. Looking to it, it can be stated that, the Investigating Officer Jitendrasinh had pressurized the witness Nirav Parikh to give statement against the accused. Nirva Parikh was also shown as the accused and it might have been stated him that the charge-sheet can be filed by joining him as accused. Therefore, with an intention that so called procedure should have not been carried out against him by C.B.I. Officer, therefore, it can be stated that, he had given the statement as stated by the C.B.I. Officer against the accused. The said witness Nirav Parikh shown as accused in F.I.R., his passport was seized. He was also intimated by C.B.I. Officer to take anticipatory bail and the anticipatory bail also granted to him and during the period of February, 1996 as the said witness ready to give statement before the Magistrate and after recording the statement, C.B.I. Officer Jitendrasinh had without the order of the Court returned his passport. Looking to all such circumstances, C.B.I. Officer Jitendrasinh had not taken the statement of witness No.6 Nirav Parikh immediately that and also not stated clearly that on which date the statement before him was recorded hence it can be stated that, the witness No.6 Nirav Parikh may have not given the statement against the accused immediately but the cheque transaction which was happened with Atul Mistry, taking it as a base to involve the accused after thinking discussion and after getting witness Nirav Parikh to give statement in any manner, his statement was recorded on date 27.02.1996 means though the muddamal Tripod was found on 14th August, 1995, later on recorded the statement of the said accused, when such things are clear at that time, the statement which was given by witness Nirav Parikh that cannot be stated full of facts and willingly. Moreover, when he feels that, his statement give before the Magistrate and as was in a manner that no evidence can be given from it before the Court against him the said witness had tried to give the evidence against the accused No.2 Atul Mistry, such can be stated clearly by looking to the evidence of the said witness and the details which have been brought on record. Moreover, the said witness had identified the muddamal Tripod but whether came to sell the same Tripod or not that he cannot say exactly and to say that he had also stated to see the serial number etc of the Tripod. During the oral evidence he had not clearly stated that, which number Tripod Atul Mistry came to sell to him. If he had immediately given clear statement to C.B.I. Officer with Tripod company, serial number, model number etc and according to it if the statement given before the Magistrate and if the evidence given in accordance with it than it can be stated that his evidence is trustworthy but he had not mentioned any serial number, and only stated which company Tripod came to sell, stated so therefore, in absence of serial number and the most important admission that he exactly cannot state that muddamal Tripod only sold by Autl Mistry, looking to it the evidence of the said witness is not fully trustworthy and on the basis of the said evidence it cannot be believed undoubtedly that, muddamal Tripod sold by Atul Mistry means it can be stated that, same like muddamal Tripod but the efforts made to sell the Tripod having different serial number. In such circumstances, on the basis of the witness No.6 Nirav Parikh it cannot be believed undoubtedly that, Atul Mistry went to sell muddamal Tripod only and the said Tripod stolen by accused Mukesh Mistry and though aware that it is the stolen muddmal giving it to accused No.2 Atul Mistry, tried to sell the same to Nirav Parikh.
25. The other witnesses who have been examined by the prosecution wherein the C.B.I. Officer and DECU and ISRO Officers, the committee which was formed and the efforts have been made to find out the thing which have been lost and not found, for that and together with muddamal Tripod, two Tripod have been purchased in March - 1989 on the basis of Indent, the evidences thereof have been produced. But the accused No.1 had stolen the Tripod to reach to the appropriate decision in that regard the search has been carried out by DECU Department of ISRO, there is no need to think specially with regard to the evidences produced in that regard and the said muddamal is the Tripod of ISRO, there is no dispute in that regard and I am of the opinion that, with regard to the evidences given by the other witnesses there is not need to make any special consideration.
26. As stated earlier, none of the employees, officer of ISRO or any other person had seen the accused No.1 Mukesh Mistry and accused No.2 Atul Mistry of this case at any point of time with muddamal Tripod. In January, 1992 the accused No.1 had stolen the said so called Tripod, such had been came to the knowledge of the officers of ISRO at the relevant time in spite of that if any inquiry made regarding Tripod going to the house of Mukesh Mistry or if any car is there than its inquiry has also been done and upto 1999 the ISRO and DECU officer remained silent. In the circumstances and during the period of 1995 the said Tripod found near from the DECU studio of ISRO and on the main gate of ISRO the C.I.S.F. personnel have been placed and they let the employees, vehicles of persons going in and out by doing checking, considering all such undisputed details, it cannot be believed that, any of the accused of this case may have placed Tripod in the year 1995 in ISRO.
27. The I.O. had also given the evidence that, the accused Mukesh Mistry was called before ISRO Officer and he had shown demonstration how and in which manner he took the Tripod before the C.B.I. and ISRO Officer. But the evidence which has been given by the Investigating Officer Jitendrasinh in this regard, any evidence supporting to it has been given by any of the witness paiki the witnesses of ISRO. Not only that, but as stated by Jitendrasinh if we believe that, how accused No.1 Jitendrasinh took the Tripod and its demonstration was carried out, than also it can be stated that, as per the provisions of section - 25, 26 of the Evidence Act it cannot be acceptable in the evidence because the so called act of the accused and the act of demonstration of the accused was done in presence of Police Officer like C.B.I. Therefore, whatever the details stated by him with regard to admission, that can be stated to be the so called admission before the Police Officer or in his presence as per the provisions of section - 25, 26 of the Evidence Act. On the basis of the evidence of Jitendrasinh, it cannot be believed undoubtedly that, the accused had done the demonstration.
28. Thus whatever the oral and documentary evidences given by the aforesaid witness on behalf of the prosecution, wherein there is not eye witness evidence that the accused and specially accused No.1 Mukesh Mistry stealing the muddamal Tripod and to took it back. Looking to it, it can be stated that, the said case is based on circumstantial evidence. Whereas when the case based on the circumstantial evidence at that time the chain of all the circumstantial evidences involving the accused with so called incident are required to proved undoubtedly. But in this case, no one had physically seen the accused No.1 Mukesh Mistry stealing the muddamal Tripod or again brought it back to the premises of ISRO that and the evidence which have been given by the witness Nirav Parikh that also not fully trustworthy and as it cannot be believed that, all the chains of the circumstantial evidences based on it have been undoubtedly proved at that time, it cannot be believed that the accused of this case had stolen the Tripod as per the statement of the complainant and made efforts to sell the said Tripod to Nirav Parikh.
29. The charge has also been framed against the accused of this case under section - 13(1)(D) read with section 13(2) of Prevention of Corruption Act, 1988. When there is an allegation of committing theft against the public servant at that time it cannot be stated and cannot be believed, in any of the circumstances that the public servant has committed the offence as per the aforesaid section of Prevention of Corruption Act, 1988. As per the said provision, it is necessary to have that the public servant has misused his position to get the economical gain and committed the offence where the corruption should have been involved, but there are no allegations or evidence against the accused No.1 regarding Corruption therefore, it can be stated that the accused of this case have not committed any offence under section - 13(1)(D) read with section - 13(2) of the Prevention of Corruption Act, 1988.
30. That being the witness No.12 of the prosecution Joy Mamen Kakkanatto who is rendering his duties in Space Application Center as Personnel and General Administration Department Head in ISRO, Ahmedabad, who had given the prosecution sanction under section -19 of the Prevention of Corruption Act, 1988 against the accused No.1 Mukesh Mistry who was rendering his duties as Tradesman in DECU Department but the produced oral and documentary evidences and the manner in which the allegations have been made, looking to it, when it does not fall in the offence of section - 13(1)(D) or any of the section of the Prevention of Corruption Act, 1988 at that time I believe that, there is no need to consider the oral or documentary evidence in that regard or to think at length in that regard.
31. Thus, on the basis of the aforesaid reasons, on the basis of the oral and documentary evidences produced on behalf of the prosecution, nothing has been brought on record by appropriately proving all the chains of circumstantial evidences related to the offence of theft of Tripod against the accused of this case, looking to it in any of the circumstances the accused cannot be involved with the offence of theft and they cannot be held guilty. Therefore, on the basis of the oral and documentary evidences and in absence of necessary oral evidences also sufficient doubts have been occurred, the benefit thereof available to the accused. Therefore, the reply to point Nos. 1 to 3 given in negative.
For Point No.4 the following order is hereby passed.
Final Order
The accused No.(1) Mukesh Shantilal Mistry (2) Atul Shantilal Mistry, both residing at - 23, Vijaylaxmi Society, Behrampura, Opposite No.3 Kabadi Market, Ahmedabad - 22 have been given the benefit of doubt held not guilty and hereby orderd to be acquitted from Special Case No.34/2005 and with regard to the charge of C.B.I. Gandhinagar R.C.No.34A/95 under section 235(1) of Cr.P.C. for the offence under I.P.C. section 381, 414 read with section - 120(B) and Prevention of Corruption Act, 1988 sections - 13(1)(D) read with section 13(2).
(2) In this case both the accused, for the six months have to give surety of Rs.15000/- as per section 437(A) of Cr.P.C. and the personal bond of like amount to remain present before the Appeal Court in case of filing the Appeal.
(3) The muddamal Tripod deposited in this case is of the ownership of ISRO hence as per section - 452 of Cr.P.C. it is hereby ordered to return to them.
The order pronounced today on 30th day of the Month of March, 2013 in the Open Court.
Sd/- Illegible
30.03.2013
(K.B.Gujarathi)
Special Judge
C.B.I. Court No.1
Ahmedabad
Sudhir Kumar, Advocate
(Expert) 10 April 2014
You are acquitted on benefit of doubt and department was free to start departmental proceedings.
you are fortunate that you have retired and the misconduct is more than four year old. SO no disciplinary action appears to be feasible against you.
Mukesh Mistry
(Querist) 10 April 2014
I don't understand what you want to say,Sir
Can you please explain in brief. I am retired in October 2012. My promotion interview has been sealed cover since 1995. No gratuity paid at time of retirement. Case finished in March 2013. I have submit letter for release my benefit and open sealed cover along with court judgment copy. But no process is done by ISRO-SAC Ahmedabad.
Anirudh
(Expert) 10 April 2014
Dear Mr. Mukesh,
The Court has acquitted you by giving benefit of doubt. It is not complete exoneration.
In such circumstances, the Department can initiate separate departmental proceedings against you. BUT THE DEPARTMENT CAN DO SO, ONLY IF THE MISCONDUCT ALLEGED AGAINST YOU IS JUST WITHIN 4 YEARS PRIOR TO YOUR RETIREMENT.
In your case, the misconduct alleged against you is more than 4 years old prior to your retirement, and therefore the Department cannot initiate any proceedings.
Therefore, if the Department is not appealing against the Court Order, they have no other go than to release your benefits i.e. promotion and consequential benefits.
You say that you have already written to the department but there is no response. THERE IS NO NEED FOR YOU TO APPROACH CBI.
As very well advised by Mr. Sudhir, please contact a local lawyer who is well versed in Service Matters and practising before Ahmedabad CAT.
Mukesh Mistry
(Querist) 10 April 2014
Sir, Can I give notice or letter once again to department mentioning that if the process for releasing my benefit has not been started I will have to approach CAT or other legal authorities to get my benefits.
Sudhir Kumar, Advocate
(Expert) 11 April 2014
In case you have already given well drafted (not emotional) letter to the deptt then there is no need for fresh letter/notice you can move to CAT without which you are not likely to be heard.
Guest
(Expert) 11 April 2014
ONCE THE MATTER GONE UP TO CBI LEVEL AND COURT HAD ACQUITTED YOURSELF LET THE REASON WHAT EVER MAY BE DEPARTMENT CAN NOT INITIATE FURTHER ACTION IN THE SAME ISSUE AND THEY COULD ONLY GO FOR APPEAL WITH IN THE TIME LIMIT.MEET AN SENIOR ADVOCATE SPECIALIZED IN SERVICE MATTERS AND SERVE LEGAL NOTICE FOR YOUR CLAIMS.
Sudhir Kumar, Advocate
(Expert) 11 April 2014
I disagree.
When it is criminal case the department will not go in appeal and it is CBI if it will go for appeal.
acquittal is not on merit it is a benefit of doubt and department is justified in having disciplinary proceedings on the same charge.
Fortunately for him since he is now retired and misconduct is above 4 year old the deptt will not be able to take action.
Sudhir Kumar, Advocate
(Expert) 11 April 2014
I agree.
He has to move to CAT failing which he will not get any penny as apparent from his facts.
Guest
(Expert) 11 April 2014
I endorse the views of Shri Sudhir Kumar. Court case and departmental inquiry case are two distinct entities. While CBI was to take action on the criminal aspect of the issue, the department was obliged to see if conduct and discipline of the organisation was breached by the employee. The organisation was free to take disciplinary case as prescribed in the Discipline and appeal rules of the organisation in addition to the CBI case.
Further, in a CBI case, the department is not obliged to go for appeal in any way. It is up to the CBI, whether to appeal or not against the judgment.
R.V.RAO
(Expert) 11 April 2014
agree with sri sudhir kumar ji.
only the dept.(if at all) but not cbi- may prefer any further dept.enquiry . but chances are nil in view of time lapsed of 4 years.as advicsed by LCI experts approach cat to expedite collection of dues.
