TaxTMI 
TaxTMI 
2021 (6) TMI 218
X X X X Extracts X X X X
X X X X Extracts X X X X
....i Proprietor of M/s Filtrex India, Nangal Raya, New Delhi, for favouring him in the matter of appeal pending before him and in furtherance of this demand, he on 01.03.1996 at about 12.40 pm in the Sales Tax Office, I.P. Estate, New Delhi demanded a sum of Rs. 4,000/- from Shri Gulshan Sikri, complainant and directed the complainant to hand over the demanded money to his Reader Shri Ravi Bhatt, who on 01.03.1996 accepted the same as per direction of the appellant and on his behalf as illegal gratification, other than legal remuneration as a motive or reward for favouring the complainant and thereby, he committed an offence punishable under Section 7 of P.C. Act, 1988 read with Section 13 (1) (d) and 13 (2) of the said Act. 3. The charge against the appellant was framed vide order dated 08.02.2000 and thereafter, trial of the case came into motion. 4. To prove its case, the prosecuting agency examined 17 witnesses and appellant examined 01 defence witness. After considering the evidence of the witnesses, the learned Trial Court convicted the appellant. Being aggrieved by the impugned judgment and conviction, the present appeal has been filed. 5. The facts of the case in brief are ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of investigation on 06.08.1996, Ravi Bhatt co-accused moved an application in the court of Special Judge, Delhi for recording his confessional statement U/s 164 Cr.P.C. and said application was marked by the Ld. Special judge to Shri Rakesh Garg, Ld. M.M. who recorded the statement of Ravi Bhatt U/s 164 Cr.P.C. on 07.08.1996. On 24.10.1996, the investigation officer, A.K. Kapur, instead of using the confessional statement for securing a conviction against accused Ravi Bhatt, moved an application before Ld. Special Judge, for grant of pardon to him on account of his personal/vested interest. The Ld. Special Judge neither considered the application nor passed order U/s 5 (2) of Prevention of Corruption Act, 1988, but instead directed the Ld. C.M.M. to dispose of the application. The learned C.M.M. further directed the application to Sh. Praveen Kumar, Ld. M.M. The Ld. M.M. vide his order dated 02.11.1996, granted pardon to the said Ravi Bhatt U/s 306 Cr.P.C. Thereafter, charge-sheet was filed on 20.05.1998. 8. The appellant further submitted that the Trial Court noted in Para-24 of order dated 24.05.2010 that the complainant PW 5 did not support the case of the prosecution. The rele....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nvoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt." 12. It was submitted that the prosecution has a duty to prove the foundational facts, however, in the present case the facts of demand, acceptance and recovery are absent. The Hon'ble Supreme Court in the case of B. Jayraj v. State of Andhra Pradesh 2014 Crl.L.J. 2433 in unequivocal terms has held as under: "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under section 7 unless...... 8. ....Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section. 9. ....Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(l)(d)(....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e tape recorded voice, the appellant submitted that the Hon'ble Supreme Court in the case of Nilesh Dinkar Paradkar Vs. State of Maharashtra, (2011) 4 SCC 143 observed and laid down the law / conditions of admissibility of tape recorded voice as evidence in the court as follows: "30. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction". They are admissible in evident on satisfying the following condition: d. The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. e. Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. f. The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act." 16. The Hon'ble Court reiterated the condit....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., 1982 (2) SCC 258 by observing as under: "Tape recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon...." 19. The appellant submitted that the Trial Court has overlooked the material evidence on record in his favour and the settled position of law, therefore, impugned judgment and order of conviction and sentence deserve to be set aside and consequently, while allowing the appeal, he be acquitted from all charges. 20. Learned SPP for CBI, while opposing the present appeal, has submitted that during trial CBI examined 17 witnesses to prove entire prosecution case. PW 1 (Sh. Jalaj Srivastava, Deputy Secretary to the Government of India) has proved the sanction order Ex. PW1/A and under the transaction of 'Business Rules', the said witness was quite competent to make and execute the order in the name of the President or the Union Minister of State in the Ministry of Home Affairs, as is evident from the Notification dated 03.11.1958 issued by Ministry of Hom....
X X X X Extracts X X X X
X X X X Extracts X X X X
....about 11.00 am and PW 9 informed the appellant about the arrival of the complainant in his matter for hearing. After keeping the file before the officer, PW9 came out of the room of the appellant and appellant instructed him to send the complainant inside room. After about 10 minutes, PW 9 again entered the room of appellant with some other files and at that time he was saying to the appellant 'ek hazar rupaye lekar mera kaam kar do'. The appellant was saying 'itne mein kaam nahi hoga, chaar hazar mein ho jayega, warna yeh case dismiss kar dunga'. At about 4.00 and 4.30 pm, PW 9 entered the room of the appellant requesting him to hand over the files of the decided cases as well as the files in which dates have been given so that he could keep them at their proper places and appellant asked PW 9 to leave the file of M/s Filtrex India Co. on his table as Mr. Gulshan was to visit him in his office on the next day alongwith Rs. 4000/-. The appellant also said to the PW 9 'unse leke ye paise mujhe de dena'. Next day at about 11.00 am or 12.00 noon, Sh. Gulshan came to PW 9 and informed that he wanted to see appellant and PW 9 got up from his seat to inform the appellant and in the meant....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat bribe amount on the instruction of the appellant. He further proved the recovery memo Ex.PW5/D and personal search memo of the appellant Ex.PW8/A. 32. PW 17, Sh. A.K. Kapoor, (Retd.), the then Deputy Central Intelligence Officer, Delhi had done the investigation and recorded the statements. He proved the recording of specimen voice of the appellant before the two independent witness as memo Ex.PW6/A and prepared the transcript Ex.PW5/E vide memo Ex.PW8/B, seizure memo Ex.PW11/A, pardon application Ex.PW4/DA. This witness categorically stated that the cassettes were sealed when he received from the Malkhana for preparation of transcript and again sealed both the cassettes in presence of the witnesses. He further proved the pardon application Ex PW17/A. 33. Statement of appellant recorded under section 313 Cr.P.C. wherein he accepted the date of hearing of the matter of the complainant was 28.02.1996 and reserved the same for the order. He further accepted the recovery of bribe amount from the left pocket of Mr. Ravi Bhatt. 34. DW 1, Sh. Omkar was examined as defence witness. The aforesaid witness could not disprove the prosecution case. 35. Learned SPP for CBI submitted that....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Jaffer Shareiff v. State: MANU/SC/0960/2012 : (2013) 1 SCC 205; R. Venkatkrishnan vs. CBI: MANU/SC/1411/2009 : (2009) 11 SCC 737; and State of Rajasthan vs. Fatehkaran Mehdu: MANU/SC/0111/2017 : (2017) 3 SCC 198. .....30. Although the above proposition appears attractive, a closer examination of the aforesaid decisions clearly indicate that the same cannot be read as authorities for the proposition that demand of an illegal gratification is a necessary condition for convicting a public servant for an offence of misconduct, as contemplated under Section 13(1)(d) of the PC Act. This is for two reasons. First of all, the plain language of Section 13(1)(d) of the PC Act does not indicate that a demand of illegal gratification by the public servant is an essential ingredient of an offence of misconduct. .... 35. In this case also, the prosecution had neither established nor was required to establish that the accused had demanded or obtained any illegal gratification for obtaining for any person any valuable thing or pecuniary advantage. 36. Thus, the contention that it is necessary for the prosecution to establish a demand for illegal gratification for sustaining the allegation ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bove-mentioned facts and circumstances of the present case, appeal filed by the appellant may be dismissed. 43. I have heard the appellant and learned SPP for respondent/CBI and perused the material on record. 44. The approver / PW-9 in his examination-in-chief stated after about 10 minutes, he again entered the room of appellant with some other files and at that time the owner Mr. Gulshan was saying to the appellant "ek hazar rupaye lekar mera kaam kar do". The appellant was saying "itine mein kaam nahi hoga' chaar hazar mein ho jayega, warna yeh case dismiss kar dunga". The defence counsel cross-examined the approver in respect of all deposition and confronted. It is amply clear that the approver is not a reliable witness and in fact he was not present in the room of the appellant. 45. PW 5 did not authenticate the contents of his complaint dated 29.02.1996. He deposed that "I took my complaint to SP, CBI and met him, I told the SP, CBI that my Sales Tax appeal with regard to my firm M/s. Filtrex India is pending before Shri Mishra, accused present in the Court today. I also told SP that PA of Shri Mishra was demanding Rs. 8000/- to Rs. 10,000/- for paying the same to the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nother room which was of the PA. He was able to see from his seat that the complainant paid the money to the PA". 52. PW 15/Shri S.K. Peshin, PP, CBI stated in his deposition in examination-in-chief, "thereafter complainant Shri. Sikri went inside tile office of the accused and came out after sometime. After sometime again he went inside the room of accused (present in the Court) and after sometime came out and directly proceeded to the room of one persons subsequently identified as Ravi Bhatt, who was Reader of accused. Both complainant and Ravi Bhatt were seen moving towards the room adjacent towards the room of Shri Ravi Bhatt." 53. In the bail order dated 02.03.1996, the Court of Special Judge noted in Para 2 of the order as follows:- "Accused P.C. Misra allegedly directed the complainant to pay the bribe amount to his reader Ravi Bhatt UDC (co-accused). Ravi Bhatt accused was sitting in another room. The complainant allegedly gave the bribe money amounting to Rs. 4000/- to Ravi Bhatt, accused." 54. However, PW 14, Shri D.D. Negi, falsely stated in examination-in-chief that "complainant first contacted Mr. Bhatt, PA of accused who took the complainant in the room of the ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ay. Therefore, the testimony of the approver is liable to be rejected only on this ground. 57. Regarding recovery, PW 9 in his application before the Special Judge on 02.03.1996 denied recovery from him and PW 14/TLO deposed that money was recovered from the drawer of the table of PW 9. Again he stated that the trap money was recovered from the left side pocket of the coat and in cross-examination stated that money was recovered from the left side pant pocket. Therefore, according to the PW/TLO and statement of PW 9 before the Special Judge that there was no recovery. The recovery of money becomes seriously doubtful. The TLO admitted in his cross-examination by learned PP that he is a confused person. 58. It is pertinent to mention here that in this case four prosecution witnesses have been declared hostile by Mohd. Sakil, Prosecutor of the CBI, as under: PW-5: Shri Gulshan Sikri/Complainant PW-7: Shri P.R. Meena, Joint Commissioner, Transport PW-12: Shri H.D. Mahi, Ex. Asstt. Commissioner, Food & Supply Deptt. PW-14 Shri D.D. Negi, Inspector CBI/TLO 59. Further important to mention that the prosecution did not examine Shri V. Thkaran, Inspector, CBI (listed Witness No. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dients of an offence U/s 7 and 13(1)(d) could not be satisfied. The conviction order is prima facie unlawful as Section 20 of the Act is not invoked. 63. In addition to above, 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. PW 5/Complainant stated in examination-in-chief, "I told that PA yeh sahab ne diya paise rekh lo". But he stated while being examined by PP while playing the cassette "yeh chhar hazar rekh lo mere file dekh lena" but the PW 9/ approver stated in examination-in-chief that the complainant handed over four thousand rupees saying "yeh paise shaab ko de dena, baat ho gaye hain". The approver/ PW 9 while being examined by PP stated that the talks between him and PW 5 was not audible. Thus, there is no sentence/talk on behalf of PW 9. Moreover, the statements of PW 5 are contradictory to each other and there is no corroboration of any kind. Thus, this is a material contradiction and cannot be relied upon to see the transaction between....