TaxTMI 
TaxTMI 
2022 (11) TMI 556
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....llant-accused, Arun Kumar, who accepted the same and he was apprehended by raiding party. 3. After investigation, charge sheet was submitted and the accused was put on trial and convicted and sentenced. 4. It is argued on behalf of the appellant that prosecution case has failed to prove the ingredients of the offence charged. In order to bring home the charge it was necessary to prove, demand, acceptance and recovery of the bribe amount which has not been proved by cogent and consistent evidence. Following points has been raised during in the course of agreement: I. In the Income Tax Department at the relevant time, works were allotted to the assistants in alphabetical order of the name of the assessees. The name of the complainant started with alphabet B whereas the stage of work allocated to the petitioner started with alphabet A. P.W. 3 has deposed in para 1 that appellant-accused was not dealing with the file beginning with Alphabet 'B'. It has been further corroborated by testimony of P.W. 8, who is Investigating Officer. He has deposed in para 16 that it was stated by P.W. 1 that the appellant was dealing the file of assessee beginning with Alphabet 'B'. From the depositi....
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.... raiding party has expressed his ignorance as to who was complainant of the case and he failed to give the content of documents signed by him as he had not written it. It is submitted by the learned counsel that demand part has not been proved as verification report has not been brought on record. 6. It is argued that when P.W. 7, Binod Kumar, the complainant has deposed in para 14 that he had not taken any contract in his own name, then how could the Income Tax Clearance Certificate be issued. P.W. 8, I.O. of the case deposed in para 15 that normally they used to enquire about the background of the complainant but in this case it was not enquired into. It has been stated in para 16 that Income Tax Clearance Certificate was being issued by Paras Nath Sinha. It has also come that the accused was allocated work of assessee starting with Alphabet 'A'. D.W.1 [Albinus Tirkey], Income Tax Officer has deposed that after 23.10.1987, appointment was made to the post of Assistant in view of the Circular vide Circular No.CBDT-DDF/OSD/ EH (DT/87-88). D.W.2 [Jitendra Kr. Gupta], who is an Advocate in Income Tax, has deposed in Para-3 that the accused had no role to process the applications sub....
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....nt on behalf of the defence. 10. This Court is of the view that the proceedings of preliminary inquiry do not form substantive evidence and the object of enquiry is not to ascertain the veracity of the allegation being made, but to see whether cognizable offence is made out or not. There is no prescribed mode for preliminary inquiry. The object is to see that the stringent provisions of the P.C. Act do not become a means of persecution of honest and upright public servant before the case is registered. It has been held in CBI Vs Thommandru Hannah Vijayalakshmi 2021 SCC Online SC 923 (para 19) that preliminary enquiry is directory and not mandatory in nature. It is a settled position of law that even faulty investigation or motivated omissions and commissions will have no bearing on the merit of any case unless it has caused prejudice to the accused in his defence. It has been held in State of Rajasthan Vrs. Kishore [1996 SCC (Cri ) 646], it was held that the real fact that I.O committed illegality or irregularity during course of investigation would not cast doubt on the prosecution case nor trust worthy or reliable evidence can be cast aside to record acquittal on that count. So,....
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....nce certificate. He has given in details of the pre trap procedure adopted by the trap team in para 2 and 3 of his deposition. He has also proved different material exhibits. In para 5 he has deposed that he along with Binod Kumar went to the table of accused Arun Kumar when the demand was made by him on which the amount was given to him. He has stated in detail about the events following the arrest of the accused. Against these positive statements one line in the cross-examination is that he cannot say who is the informant or what does he do cannot be read in isolation to deny the positive statements made by him. That the challenge on this ground does not succeed. 13. Thus, these technical pleas will be of no avail and the main point for consideration is whether the prosecution has succeeded to prove the charge against the accused person on the basis of evidence on record? Is there any motive or possibility of false implication? 14. As rightly submitted by the learned ASGI that provisions of Section 7 of the P.C. Act, 1988 is wide enough to cover any person who receives the amount for himself or for any other person. It is a moot point whether he was himself dealing with the fil....
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....the basis of which the legal presumption under Section 20 can be drawn are wholly absent. The ratio of V. Venkata Subbarao v. State, (2006) 13 SCC 305. 16. The above exposition of law by Hon'ble the Supreme Court leaves no doubt what so ever that mere proof of acceptance of tainted money is of no consequence, unless the demand is proved. But, proof of demand is a question of fact and this by its very nature cannot be of the nature of offer and acceptance resulting in a commercial contract. The demands of bribe are made clandestinely, it's something which is not made in public. There is always an element of secrecy in such dealings which is euphemistically called underhand dealings and therefore the Courts have to take a realistic view in matters of such cases. It will be highly unrealistic to expect it to be like an offer and acceptance that takes place in a commercial transaction. Hon'ble the Apex Court while expounding the meaning of the expression 'matter' in the definition of 'Proof" observed Rajesh Yadav Vs State of U.P. 2022 SCC On Line 150 "13. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the ....
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....ould rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that appellant received the said amount". In Raghubir Singh v. State of Haryana, V.R. Krishna Iyer, J. speaking for a three Judge Bench, observed that the very fact of an Assistant Station Master being in possession of the marked currency notes against an allegation that he demanded and received that amount is "res ipsa loquitur". In this context the decision of a two Judge Bench of this Court (R.S. Sarkaria and O. Chinnappa Reddy, JJ.) in Hazari Lal v. Delhi (Delhi Administration), can usefully be referred to. A police constable was convicted under Section 5(2) of the prevention of corruption Act, 1947, on the allegation that he demanded and received Rs. 60/- from one Sriram who was examined as PW-3 in that case. In the trial court PW-3 resiled from his previous statement and was declared hostile by the prosecution. The official witnesses including PW-8 have spoken to the prosecution version. The court found that phenolpht....
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....the CBI and they filed a complaint there. In para-8 he deposed that after he had submitted the application supported by affidavit for the income tax clearance certificate to the accused, he enquired as to whether the amount has been brought by him. On this demand he handed over the currency note of Rs. 100 smeared with the powder of Phenolphthalein by his right hand which was accepted by him with his right hand. On his signal the CBI personals immediately came there, caught hold of his hand and dipped in the solution on which both of his hands turned pink. This is the substantive evidence of demand and acceptance which has been corroborated by the other witnesses of the raiding party. He has narrated in detail the process of post seizures of the currency note. In his cross-examination be has deposed that he had gone to the income tax department for the first time on 20.12.93 and had not gone there before that day. He had not complained about the illegal demand made by Arun Kumar to senior officers of the Department. In para-20 has deposed that Gopi Chand was with him at a distance of 10 feet. There was one CBI officer and an independent witness after five - seven minutes after he g....
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....read over to the team. After completing the pre-trap formalities the raid was conducted by the trap team members. Both the witnesses and the complainant left CBI office at about 11.20 a.m. for the place of occurrence that is income tax office Ward No. 1. On way to the office the complainant got an affidavit issued and the team arrived at 12 hours. In his cross-examination he has deposed that he had not made any enquiry as to whether the complainant had done any contract work in any establishment private public. It has further been deposed that he cannot say whether it was the duty of P.N. Sinha alone in the income tax office to issue the form. PW 8 has deposed that he was posted at CBI of office Ranchi and was summoned in the room of Dy.S.P. on 21.1.93. At that time three persons were present there. They were Binod Kumar, Sri Gopinath Ram, and Mahendar Pandey. Thereafter the complaint was read over to him on the basis of which the case was registered and thereafter raid was conducted he fully supported the prosecution case in his examination-in-chief. In the cross-examination he has in para 16 stated that the clearance certificate was being issued by Sri P.N.Sinha. 19. Once the d....