2021 (6) TMI 218 - HC - Indian Laws

Appeal Allowed: Appellant Acquitted Due to Lack of Evidence

The appellant was acquitted of all charges as the court found the prosecution failed to prove the case beyond a reasonable doubt. The court highlighted ... Bribe - demand or solicitation of money from the complainant or not - Assistant commissioner, Sales Tax - During the course of hearing of the appeal on 28.02.1996, the appellant allegedly demanded ₹ 4000/- as bribe for deciding the said appeal in his favour. - HELD THAT:- It is proved beyond shadow of doubt that Shri Ravi Bhatt/PW 9 was never inside the room of the appellant while PW 5 was present in the room of the appellant. Therefore, the statement of PW 9 on the issue of his presence in the room of the accused on 01.03.1996 during trap is totally false, not corroborated in material particulars from independent source. It is proved that PW 9/approver was never present in the room of the appellant during the talk of PW 5 with the appellant. Since PW 9 was not present in the room of the appellant, there is no question of direction from him to accept bribe from complainant. Moreover, the PW 9 cannot be an accomplice nor co-conspirator. All his deposition statement is neither relevant nor admissible u/s 10 of the Evidence Act. In fact, the same is barred u/s 60 of the Evidence Act as it is only hearsay. Therefore, the testimony of the approver is liable to be rejected only on this ground - the Ld. Special Judge committed error of law getting corroboration for the deposition of PW 9/Approval for his earlier statement under Section 164 Cr.P.C., which is prohibited under law. The approver stands as a special guilty witness and hence, Sections 145/157 of Evidence Act is not applicable. In the instant case PW 5 is bribe giver and he is an abettor for the offence of PW 9 for acceptance of bribe. The appellant could not give a direction to PW 5 to give money to somebody else. PW 9 could not be the agent/accomplice of the appellant since he is also a government servant - Since the appellant did not demand any money from PW 5, there was no question of having an accomplice to receive money, as the complainant met the appellant and got the opportunity to give money when he was alone in his chamber, and talk to complainant. The prosecution has failed to prove its case against the appellant beyond a reasonable doubt. Moreover, learned Trial Court has overlooked the material on record in favour of the appellant - Appeal disposed off. Issues Involved:1. Validity of the demand and acceptance of illegal gratification by the appellant.2. Reliability of the evidence, including the tape-recorded conversation.3. Credibility of the witnesses, particularly the complainant and the approver.4. Admissibility and handling of the tape-recorded evidence.5. Application of legal principles and precedents in the context of the Prevention of Corruption Act, 1988.6. Procedural lapses and their impact on the case.Issue-wise Detailed Analysis:1. Validity of the Demand and Acceptance of Illegal Gratification:The appellant was accused of demanding Rs. 4,000 as illegal gratification to favor the complainant in a pending appeal. The prosecution's case was based on the complainant's initial complaint and subsequent trap proceedings. However, the complainant (PW 5) did not support the prosecution's case during the trial, stating that the appellant did not demand money directly from him. The court noted that 'there is no demand, during pre-trap or during trap, by the appellant.'2. Reliability of the Evidence, Including the Tape-Recorded Conversation:The court scrutinized the evidence presented, including the tape-recorded conversation. The appellant argued that the tape was not sealed immediately and was handled by unauthorized personnel, raising doubts about its authenticity. The court observed that 'the tape was not sealed on the spot/office of the appellant rather it was taken outside to Palika Bazar, Connaught Place, New Delhi,' and noted discrepancies in the handling and transcription of the tape.3. Credibility of the Witnesses:The court examined the testimonies of various witnesses, including the complainant (PW 5) and the approver (PW 9). The complainant contradicted his initial complaint, stating that the appellant did not demand money from him. The approver's testimony was also found unreliable as he was not present in the appellant's room during the alleged demand. The court stated, 'the approver is not a reliable witness and in fact he was not present in the room of the appellant.'4. Admissibility and Handling of Tape-Recorded Evidence:The court highlighted the conditions for the admissibility of tape-recorded evidence, as laid down by the Supreme Court in previous cases. The evidence must be accurate, relevant, and free from tampering. The court found that the prosecution failed to meet these conditions, noting that 'the tape was handled by unauthorized technician in the market whose name and shop was not disclosed by the prosecution.'5. Application of Legal Principles and Precedents:The court referred to several Supreme Court judgments emphasizing the necessity of proving demand, acceptance, and recovery of illegal gratification to establish an offense under the Prevention of Corruption Act. It cited cases like State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede and B. Jayraj v. State of Andhra Pradesh, which underscored that 'demand of illegal gratification is a sine qua non to constitute the said offense.'6. Procedural Lapses and Their Impact:The court noted several procedural lapses, including the failure to record statements promptly, mishandling of evidence, and non-examination of key witnesses. These lapses created serious doubts about the prosecution's case. The court observed that 'the prosecution did not examine Shri V. Thkaran, Inspector, CBI (listed Witness No. 14),' and other key individuals, which weakened the case further.Conclusion:The court concluded that the prosecution failed to prove its case beyond a reasonable doubt. The trial court's judgment was found to be flawed due to the lack of corroborative evidence, procedural lapses, and unreliable witness testimonies. Therefore, the appeal was allowed, and the appellant was acquitted of all charges. The court stated, 'the impugned judgment and order on sentence are hereby set aside. Consequently, appellant is acquitted from all charges.'