TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 90
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....the trial court passed an order on charge and also framed charges against the petitioner. 2. The facts of the case are that a written complaint dated 27.11.2012 was made by Raj Kumar Saha, Inspector, EOW, Delhi Police and was forwarded by. K.K Vyas, Deputy Commissioner of Police, EOW Crime Branch, Delhi vide letter No. 2540/SO-DCP/EOW seeking necessary legal action regarding illegal gratification demanded by and paid to senior Income Tax Officers. FIR bearing no 152/2011 dated 29.06.2012 was registered at P.S Moti Nagar, New Delhi, and pursuant to the alleged disclosure statement of Ulhas Prabhakar (hereinafter referred to as "the accused") made in FIR baring no 152/2011, RC- AC1 2013 A0001 dated 09.01.2013 was registered by CBI, AC-1, New Delhi under section 120-B IPC and under sections 7, 12, 13(2) read with section 13(1) (d) of PC Act. 2.1 It is alleged that the accused namely Ulhas Prabhakar @ Lokeshawar Dev along with his wife Priyanka Dev were running a firm under name and style of M/s Stock Guru India having its registered office at 58/A-1, Lisa Tower, Rama Road, Moti Nagar, Delhi, They had guaranteed to provide a 20% return per month up to six months on the principal amou....
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....d of returning 50% of the cash recovered from Bhiwadi, the petitioner made further demand of Rs. 30 crores to settle the matter. The accused at the instance of petitioner delivered Rs. 5 crores on 02.02.2011 to an address in Lajpat Nagar and also paid second installment of Rs. 10 crores on 08.02.2011 at the same place. 2.3 The accused further disclosed that he after paying Rs. 5 crores suspected intentions of the petitioner and therefore recorded the conversations with the petitioner, using a camera wrist watch which were downloaded and stored in two separate hard disks. Thereafter on basis of disclosure statement of the accused, two hard disks, one of Toshiba bearing no. XOCPT5BOTIOMS and another hard disk of WD called my passport, serial no. WXP1AB042671 and a spy watch having capability of video recording were recovered on 19.11.12 from his residence of the accused situated at R 100, Zadgaon, MIDC Residential Area, Ratangiri, Maharashtra and from these hard disks various video files were recovered. These videos indicate that the recovered cash to the tune of Rs. 42-44 crores was misappropriated by Income Tax officers and further bribe of Rs. 30 crores was demanded and out of wh....
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.... No. 8, Hill View Apartment, Bhiwadi Rajasthan. The petitioner for extending favor to the accused has agreed to take 50% of the cash lying in the said flat and also obtained the keys of the flat from the accused and got the cash transported. Thereafter, on the same day letter for defreezing of the bank accounts in SBI, Rajouri Garden, New Delhi was issued. 3.2 It was surfaced that during subsequent visits to the office of the petitioner, the accused requested for return of 50% of the cash found at his Bhiwadi Flat but the petitioner made a further demand of Rs. 30 crores from the accused. Consequently, the accused on 28.01.2011 delivered Rs. 5 crores in three suitcases and Rs. 10 crores on 09.02.2011 to a person at an address in Lajpat Nagar provided by petitioner. The mobile number of the person to whom this cash was handed over was also provided to the accused by the petitioner. The accused on 03.02.2011 and 09.02.2011 recorded his conversations with the petitioner by using a spy wrist watch. These recordings were recovered from the hard disks seized by EOW, Delhi Police, from his house situated at Ratnagiri Nagpur pursuant to his disclosure dated 16.11.2012. The recordings reve....
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....rmed nor obtained approval from his superiors for allowing operation of these accounts with SBI, Rajouri Garden. It is important to mention that these accounts were frozen on 18.01.2011 and were allowed to be operated on next day i.e. 19.01.2011 when the searches were still conditioning whereas the other bank accounts were defreezed on the basis of request letter dated 20.01.2011 obtained through Sh. Sanjay Gupta, partner of M/s Sanjay Satpal & Associates, Chartered Accountants and Authorized Representative of M/s Stock Guru India (SGI). The petitioner, while moving proposal for obtaining approval for defreezing these bank accounts, willfully concealed the fact that accounts no. 31311706229, 313532470958 and other accounts of M/s Stockguru India with SBI, Rajouri Garden, New Delhi had already been defreezed by Hemant Gupta on his instructions on 19.01.2011. 3.4 It was also surfaced that the investigation pertaining to some of the accounts of the accused, his company and family members revealed that though approval for defreezing of these accounts was obtained by petitioner in a single proposal on 20.01.2011, the defreezing orders were issued in phases. The bank accounts which were....
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....r Khaire had called on mobile No. 7669025834 which was likely being used by the petitioner or someone close to him. It is revealed during investigation that the number has been purchased from Moradabad in the name of Gulfija Jamal who denied having purchased the same. It was further revealed that the in-laws of petitioner belong to Moradabad. The CDR of mobile no. 9650890005 showed calls having been made by the accused to mobile no. 7669025834 at 19.16.53 hrs when he was at Lajpat Nagar and finally at 19.46.16 hrs after delivery of the amount. 3.8 It is also mentioned in the chargesheet that the petitioner did not cooperate during investigation and refused to give his voice samples for comparison with the questioned recorded conversation. The accused gave his voice samples voluntarily. The CFSL vide its report dated 05.05.2014 has confirmed that the audio recordings recovered on his disclosure are continuous and without any tampering. CFSL vide report dated 23.07.2014 has also confirmed that the video recordings are also continuous and without any tampering. The statement of the accused was recorded under section 164 of the Code on 19.12.2013 wherein he stated about the illegal gr....
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.... witnesses of recovery. The contents thereof has to be evaluated during the trial as to what extent they are incriminating in nature. However, on prima facie assessment, I find that audio video recordings contain incriminating material with respect to the delivery of illegal gratification by accused Ulhas Prabhakar Khaire at the instance of accused Yogender Mittal. It would also be pre mature to hold that these articles are inadmissible in evidence for want of certificate u/s 65 B of Indian Evidence Act. The alleged recovery has been made from the house of accused (A-1) in pursuance of his disclosure statement and reliability of the piece of evidence is certainly a matter to be determined after the conclusion of evidence. The trial court about the necessity of certificate u/s 65 B of Evidence Act referred Shaffhi Mohamimiaci V The State of Himachal Pradesh, SLP (Crl.) no. 2302 of 2017 decided by the Supreme Court. 4.2 The trial court regarding confessional statement under section 164 of the Code observed as under:- 41. The evidentiary value of a confession depends upon its voluntary character and the precision with which it is reproduced. The requirements and safeguards while rec....
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....d and set-aside. The petitioner challenged impugned order on following grounds:- a. The proceedings under section 13 (1) (d) of the PC Act cannot continue post the amendment of the act in the year 2018. b. The rigors of the act have been mollified then the benefit of the same ought to be extended to an accused even retrospectively c. Charge framed under section 13 (1) (d) of the PC Act without specifying the particular sub-section i.e. sub-section (i) or (ii) or (iii) amounts to not giving the accused reasonably sufficient notice to the accused of the matter as the ingredients of the sub-sections are absolutely different d. Because the foundation of the entire case is itself bad as there is no proof of (a) any demand or (b) acceptance or(recovery) of the alleged illegal gratification by the applicant e. Because the case of the prosecution is based on no evidence / inadmissible evidence and as such the case against the petitioner is a case of no evidence for the purposes of framing charges f. The entire case is based on allegations of criminal misconduct, however there is no misconduct, as all the acts performed by the petitioner were legal and as per law g. No allegat....
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....luntary as observed by the trial court in impugned judgment. The statement under section 164 of the Code was recorded on oath and relied on State of Sikkim V Suren Rai, 2018 Cr.L.J. 1972 wherein it has been held as that if the magistrate goes on to administer oath upon the accused it cannot be said that the said magistrate complied with the statutory requirement of the law to ensure the voluntariness of the confession. The statement was not recorded as Delhi High Court Rules. The statement under section 164 of the Code cannot be relied upon because it was recorded before granting of pardon under section 306 of the Code. 7.4 The trial court has not looked into the un-relied documents of sterling quality which were supplied by the respondent as un-relied upon documents. The seniors of petitioner i.e. Ramankant Garg and S.K. Singh who were allegedly part of the conspiracy were made witness and their statement not been relied by the prosecution. The Statement of Hemant Gupta was recorded on the issue and verified by the CBI from Income tax department but the statement and the relevant communication with the department was concealed by the CBI but given to the petitioner under section ....
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....n record to prove that the petitioner had made any demand. There is also no evidence to prove alleged payment of bribe of Rs. 15 crores at Lajpat Nagar as no amount was recovered from the petitioner thus the ingredients of the offence are not made out. The trial court's reliance on the audio/video clips is bad in law. The counsel for the petitioner argued that the present petition be allowed and impugned order be set aside. 8. The Special Public Prosecutor for the respondent/CBI advanced oral arguments and also submitted written submissions. The Special Public Prosecutor with regard to the material which has to be seen and considered by the court at the time of framing of charge relied on State of Orissa V Debendra Nath Padhi, 2005(1) SCC 568; State of Bihar V Ramesh Singh, 1977 (4) SCC 39; State of Tamil Nadu V R. Soundirarasu and others, 2023 (6) SCC 1150; State of Tamil Nadu V R. Soundirarasu and others, 2023 (6) SCC 1150 ;Superintendent & Remembrancer of Legal Affairs, West Bengal V Anil Kumar Bhunja & others,1979 (4) SCC 274 and Hem Chand VState of Jharkhand,2008 5(SCC) 113. 8.1 The Special Public Prosecutor for the respondent/CBI after citing various judgments argued that c....
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....uri Garden, New Delhi was also issued. The petitioner made demand for further bribe money from the accused. On 22.01.2011, Priyanka Saraswat Dev wife of the accused on 22.01.2011 signed and delivered a cheque for Rs. 7.50 crores to Dushyant Singh Tomar (PW-6) to withdraw Rs. 7.50 crores in cash and later Rs. 5 crores in cash was delivered at A-84A Lajpat Nagar-II, New Delhi. The said amount was carried in white Mercedes car of the accused and delivered by him at the said address. The petitioner had provided the mobile number of the person with whom the accused was coordinating for the delivery of cash and the said number was issued from Moradabad where the petitioner's father-in- law resides but was issued by using forged documents for KYC and about two mobile numbers 8909294658 and 7669025834 reveal that they were saved in the mobile phone of the petitioner as "Papa Aircel" and "Papa Rahul" respectively and it was revealed that numbers have been issued on the basis of fake ID proof in the name of residents of Moradabad. The in-laws of Petitioner belong to Moradabad. The accused met the petitioner on 28.01.2011 and he had audio recorded of the said meeting. The petitioner again met....
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....Saraswat Dev (PW-33), wife of the accused were recorded section 161 of the Code. The statements of Dushyant Singh Tomar (PW-6), the person who handled the bank related work for the accused, Krishna Kumar (PW-5), the driver of the accused were recorded under section 164 of the Code. 8.6 There is sufficient material against the petitioner for framing of charges. The statements under section 161 and 164 of the Code showed that the petitioner demanded and accepted bribe from the accused. The petitioner acknowledged receipt of cash money from the accused in 3 suitcases and agreed to return the empty suitcases with Keys. The petitioner even specified the denomination of currency notes in which he wanted the accused to deliver the bribe money in cash to the petitioner. The petitioner discussed the date and time for delivery of bribe money in cash. The petitioner even discussed that the bribe money in cash should be delivered at night in the Mercedes car as there are less chances of being caught and even if there is checking and if the accused is caught with money, the police will call income tax officers only and the petitioner will take care. The accused mentioned about delivery of brib....
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....r under the PC Act. There is no presumption under law that the recovery is must for conviction of the petitioner. 8.10 The Special Public Prosecutor with regard to arguments of the counsel for the petitioner regarding amendment of the PC Act stated that allegations are wrong and contrary to law and proceedings against the petitioner can survive and continue despite the amendment of PC Act in 2018. He placed reliance on CBI V A Raja & others decided on 23.11.2020 in CRL. L.P. 185/2018. 8.11 The special public prosecutor also controverted arguments raised on behalf of the petitioner that the retracted confession of the accused cannot be relied on and relied on K.I. Pavunny V Asst. collector,(1997) 3 SCC 721. 8.12 The Special Public prosecutor in the end argued that the defences as raised by the petitioner of alleged inconsistencies, alleged inaccuracies or alleged inadmissibility cannot be looked into at this stage of framing charges. The petitioner can raise all such arguments at the stage of defence evidence or final arguments. There is no perversity, illegality or infirmity in the order dated 12.09.2019 passed by the Trial Court. The petition is liable to be dismissed. 9. The ....
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....he limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge sh....
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....the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there w....
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....rial in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. The Supreme Court in Ghulam Hassan Beigh V Mohammad Maqbool Magrey & Others, Criminal Appeal No. 001041 of 2022 (Arising Out of S.L.P. (Criminal) no 4599 OF 2021) decided on 26th July, 2022 observed as under:- Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is s....
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....ing deposits from the public at large by offering high return of income up to 20 % per month on the deposits. The group was collecting deposits in cash and interests payout were also made in cash. The group was making payment of commission in cash to the various agents. M/s Stock Guru India was neither deducting TDS on the monthly interest paid by them to the investors nor on the commission they were paying to their agents. The cash deposits accepted and the payouts of interest and commission were not reflected in the regular books of accounts by the Stock Guru India Group. FIR bearing no 152/11 dated 29.06.2012 was got registered at EOW PS Moti Nagar. The disclosure statement of the accused was recorded on 16.11.2012 during investigation of FIR bearing no 152/11. 10.1 The accused in disclosure statement disclosed that a team from Directorate of Income Tax (lnv), Delhi led by the petitioner conducted search and seizure operation on 18/19.01.2011 at business and residential premises of M/s Stock Guru India and its associates and during searches besides incriminating documents unaccounted cash of Rs. 34.69 crores was seized from various premises of the M/s stock Guru India Group. Th....
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....criminating material which is appearing against the petitioner is the disclosure statement made by the accused on 16.11.2012 during investigation of FIR bearing no 152/11 wherein the accused made allegations of demand and acceptance of illegal gratification by the petitioner from the accused and in pursuance of disclosure statement recovery of hard disks containing video recorded conversation between the accused and the petitioner by using a spy wrist watch on 03.02.2011 and 09.02.2011 and also recovery of an audio recording from a mobile phone/Hard-disc seized from residence of the accused by EOW Delhi Police revealing interaction between the petitioner and the accused at Income Tax Office on 28.01.2011. The trial court in impugned judgment did not accept argument advanced on behalf of the petitioner that disclosure statement of the accused dated 16.11.2012 is inadmissible under sections 24 and 25 of Indian Evidence Act, 1872. The trial court observed that the disclosure statement led to the recovery of material evidence in the form of spy watch and hard disks and therefore Section 27 of Indian Evidence Act, 1872 comes into play and accordingly, it cannot be concluded that disclos....
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.... the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the own act of the accused. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The Supreme Court in Raju Manjhi V State of Bihar, Criminal Appeal No. 1333/2009 decided on 2nd August, 2018 held as under:- It is true, no confession made by any person while he was in the custody of police shall be proved against him. But, the Indian Evidence Act, 1872 provides that even when an accused being in the custody of police m....
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....y the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the person concerned, the Judge conducting the trial must summon the person/persons referred to in Section 65-B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the Cr.P.C. 56. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of pow....
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....ntaining audio video conversation recorded on different dates between the petitioner and the accused. In view of decisions of Anvar P.V. V P.K. Basheer, (2014)10 SCC 473, Arjun Panditrao Khotkar V Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 and recent judgment titled as State of Karnataka V T. Naseer@ Nasir@ Thandiantavida Naseer Umarhazi@Hazi & others, Criminal Appeal No.....of 2023 Special Leave Petition (Crl.) No 6548 of 2022 decided on 06th November, 2023 the prosecution is required to file certificate under section 65B of the Indian Evidence Act, 1872 in respect of hard disks but it is settled law that certificate under section 65B of the Indian Evidence Act, 1872 can be filed at any stage of trial and filing is not confined to stage of consideration and framing of charge. There is no force in arguments advanced by the counsel for the petitioner that prosecution against the petitioner is bad for want of certificate under section 65B of the Indian Evidence Act, 1872. 12.2 CFSL Report dated 05.05.2014 has confirmed that the audio recordings are continuous and without any tampering and CFSL Report dated 23.07.2014 has also confirmed that the video recordings are also continuous ....
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.... of Rs. 15 crores at Lajpat Nagar. 13.2 The Special Public Prosecutor in response to above arguments advanced by the counsel for the petitioner responded by arguing that income tax raid was conducted on 18.01.2011 at the business and residential premises of the accused and M/s Stockguru India and its associates wherein incriminating documents and unaccounted cash of Rs. 34.69 Crores were seized and the raid was continued till 19.01.2011. The petitioner was involved in the raids and was leading the team. The Special Public Prosecutor for the respondent/CBI to establish demand on part of the petitioner stated that the petitioner threatened the accused to refer case to EOW. Crime Branch, Delhi Police and then the accused to save him offered a part of recovered cash to the petitioner as bribe. The petitioner also demanded more bribe for extending favours. Thereafter the accused informed the petitioner about cash of Rs. 42-44 crores lying at his flat bearing no. 9, Hill View Apartment, Bhiwadi, Rajasthan and the petitioner agreed to take 50% of the cash and obtained keys of Bhiwadi Flat from the accused and got the cash transported on that date itself. It is further argued that the pet....
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....pty suitcases with keys. iii. The petitioner even specified the denomination of currency notes in which he wanted the accused to deliver the bribe money in cash to the Petitioner. iv. The petitioner discussed the date and time for delivery of bribe money in cash. v. The petitioner discussed that the bribe money in cash should be delivered at night in the Mercedes car as there are less chances of being caught. vi.. The statements of other witnesses recorded under section 161 and 164 of the Code reflecting that petitioner demanded and accepted bribe money from the accused which was and the delivered in cash at father-in-law address of the petitioner. 13.3 Section 13(1)(d) of the PC Act reads as under:- 13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct,- (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any v....
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....mand would not be sufficient to bring home the charge under Sections 7, 13(1)(d)(i) and (ii) of the Act. Hence, the pertinent question is, as to how demand could be proved in the absence of any direct evidence being let in by the complainant owing to the complainant not supporting the complaint or turning "hostile" or the complainant not being available on account of his death or for any other reason. In this regard, it is necessary to discuss the relevant Sections of the Evidence Act before answering the question for reference. 6. Section 13(1)(d) of the Act has the following ingredients which have to be proved before bringing home the guilt of a public servant, namely: (i) The accused must be a public servant. (ii) By corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. (iii) To make out an offence under Section 13(1) (d), there is no requirement t....
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....e question was whether a legal presumption could be based on a factual presumption. In Hazari Lal [Hazari Lal v. State (Delhi Admn.), (1980) 2 SCC 390 :1980 SCC (Cri) 458], this Court through O. Chinnappa Reddy, J. observed that it is not necessary that the passing of money should be proved by direct evidence, it could also be proved by circumstantial evidence. Furthermore, in Madhukar Bhaskarrao Joshi v. State of Maharashtra [Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571 : 2001 SCC (Cri) 34]("Madhukar Bhaskarrao Joshi"), it was observed that in order to draw a presumption under Section 20 of the Act, the premise is that there was payment or acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted as a "motive or reward" for doing or forbearing to do any official act. 87. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the Judge a....
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....e to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act. 88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presum....
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....etitioner demanded extra money for extending favours to the accused besides having share in unaccounted money seized during raid. Thereafter, the petitioner collected and transported 42.44 crores from the flat of the accused bearing no 9, Hill View Apartment, Bhiwadi, Rajasthan and has agreed to take 50% of said cash amount for extending favours to the accused. The accused further disclosed that the petitioner also made further demand of Rs. 30 crores from the accused and accordingly the accused delivered Rs. 5 crores on 28.01.2011 and Rs. 10 crores on 09.02.2011 to a person at Lajpat Nagar. The disclosure statement made by the accused is not admissible in view of sections 24-26 of Indian Evidence Act, 1872. 13.7 The accused further disclosed that he on 03.02.2011 and 09.02.2011 video recorded his conversations with the petitioner by using a spy wrist watch and these recordings were transferred to hard disks which were seized by EOW, Delhi Police from house of the accused situated at Ratnagiri, Nagpur pursuant to disclosure dated 16.11.2012. An audio recording was also recovered from a mobile phone/Hard-disc seized from residence of the accused by EOW Delhi Police revealing intera....
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.... cash to the property bearing no. A-84 A, Lajpat Nagar - II, New Delhi, which was owned by Rakesh Singal, father-in-law of the petitioner etc. only conveyed at the most delivery of Rs. 5 lacs on 28.01.2011 at Lajpat Nagar but do not reflect demand and acceptance on part of the petitioner. The Special Public Prosecutor further referred that the accused on 09.02.2011 as per the demand of the petitioner delivered another sum of Rs 10 crores to the accused at A-84 A, Lajpat Nagar - II, New Delhi and this again only conveyed delivery but not demand. The material placed on record is not sufficient to establish demand of gratification by the petitioner and is only able to convey delivery of Rs. 15 crores on 28.01.2011 and 09.02.2011 which is also falling short of acceptance by the petitioner particularly no recovery of tainted money was affected from the petitioner or at the instance of the petitioner. 13.9 It is pertinent to refer K Shanthamma V The State of Telangana, Criminal Appeal bearing no. 261/2022 decided on 21.02.2022 wherein the Supreme Court has observed that the offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratif....
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....tate of Maharashtra, (1998) 7 SCC 337 wherein view was taken that confession by a co-accused containing incriminating matter against a person would not by itself suffice to frame charges against it. The Supreme Court also referred Haricharan Kurmi V State of Bihar, AIR 1964 SC 1184 wherein it was held as under: - "As a result of the provisions contained in S.30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S.30, the fact remains that it is not evidence as defined by S.3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to recei....