TaxTMI 
TaxTMI 
2024 (2) TMI 90
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....n after referred to as "PC Act") whereby 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....
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.... within a week. The accused alleged that instead 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 ....
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....r about Rs. 42-44 crores which were lying at his Flat 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 ....
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....e relative of the petitioner. The petitioner neither informed 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....
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.... 15.21.02 hrs., before leaving his house at Dwarka Ulhas Prabhakar 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 1....
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....s and conversations between Ulhas Prabhakar Khaire and Yogender Mittal is a matter of evidence to be proved by the 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....
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....der was passed without application of judicial mind and is contrary to the settled principles of law. The impugned order is liable to be quashed 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 ....
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.... 7.3 The statement of the accused recorded under section 164 of the Code is not admissible and same was retracted by the accused on 16.12.2016. The statement under section 164 of the Code was involuntary and not voluntary 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 G....
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....eged demand by petitioner and alleged Delivery (acceptance) of amount to the petitioner. The counsel for the petitioner with regard to the allegation of payment of bribe of Rs. 42-44 crores at Bhiwadi, there is no evidence on 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 ....
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....ment, Bhiwadi, Rajasthan and the petitioner had agreed to take 50% of the cash and obtained keys of Bhiwadi Flat from the accused to get the cash transported on that date itself. A letter for defreezing the bank account at SBI, Rajouri 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 ....
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....O of the accused, Krishna Kumar (PW-5), the driver of the accused, Dushyant Singh Tomar (PW-6), the person who handled the bank related work for the accused, Seema Sehgal (PW-19), Chief Manager, SBI, Rajouri Garden, New Delhi, Priyanka 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 ....
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....it impossible to obey the Law, the alleged disobedience of the Law is excused. 8.9 The Special Public Prosecutor for the respondent/CBI also argued that there is no requirement of direct evidence or recovery of money to convict the petitioner 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. ....
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....ope of inquiry at the stage of framing of charge as per section 227 of the Code in Sessions criminal trial and observed as under:- (1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the 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....
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....e facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage 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 purpos....
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....se of marshalling the evidence on record. The Supreme Court in State of Karnataka V M.R. Hiremath, (2019) 7 SCC 515 held that it is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material 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....
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....ght on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. 10. It is reflecting that M/s Stockguru India was a partnership firm formed by the accused and his wife namely Priyanka Saraswat Dev and was engaged in accepting 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 discl....
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....coming an approver and the statement of the accused under section 164 of the Code was recorded on 19.12.2013. The accused withdrew application under section 306 of the Code on 21.02.2014. The respondent/CBI also filed an application under section 306 of the Code for grant of pardon to the accused which was ordered to be dismissed vide order dated 06.05.2015 passed by the trial court. 11. The main incriminating 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 ....
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....cused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The requirements of Section 27 of the Evidence Act, 1872 were succinctly summed up in Anter Singh V State of Rajasthan, (2004) 10 SCC 657 as under:- (1) The fact of which evidence is sought to be given must be relevant to 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. ....
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.... held as under: 52. We may hasten to add that Section 65-B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108], this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by 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 ju....
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....lhi Police revealing interaction between the petitioner and the accused at Income Tax Office on 28.01.2011. The spy watch during examination by CFSL was found to be empty and prosecution primarily relied on recorded audio video conversation on different dates between the petitioner and the accused. It reflects that spy watch being primary evidence was not containing any conversation between the petitioner and the accused and was found to be empty and hard disks being secondary evidence were found to be containing 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....
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....tate of Maharashtra, MANU/MH/2261/2023. 13.1 The counsel for the petitioner argued that there is no evidence to prove the allegation of payment of bribe at Bhiwadi and there is no evidence to prove that the petitioner had made any demand despite demanding bribe allegedly during on-going raid by the Income Tax Department, when several officials were participating in the said raid. There is no evidence of anyone collecting any money from Bhiwadi. There is no evidence to prove the allegation of payment of bribe 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. C....
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.... on disclosure statement of the accused and his statements recorded under sections 161 and 164 of the Code as well as statements of Driver Krishan Kumar and Dushyant Kumar Tomar recorded under section 164 of the Code. The Special Public Prosecutor in light of above facts argued that following facts are duly established on record:- i. The petitioner had demanded and accepted bribe from the accused. ii. The petitioner acknowledged receipt of cash money from the accused in 3 suitcases and agreed to return the empty 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 ad....
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.... death or other reason, whether the demand for illegal gratification could be established by other evidence. This is because in the absence of proof of demand, a legal presumption under Section 20 of the Prevention of Corruption Act, 1988 (for short "the Act") would not arise. Thus, the proof of demand is a sine qua non for an offence to be established under Sections 7, 13(1)(d)(i) and (ii) of the Act and dehors the proof of demand the offence under the two sections cannot be brought home. Thus, mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof in the absence of proof of demand 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....
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....the accused had accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. 75. In B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543], the complainant did not support the prosecution case. In P. Satyanarayana Murthy [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 :(2016) 1 SCC (Cri) 11] , the complainant had died prior to letting in his evidence in the case. In M. Narsinga Rao [M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 : 2001 SCC (Cri) 258], the 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....
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....demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have 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 ....
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....r Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution. 92. Before we conclude, we hope and trust that the complainants as well as the prosecution make sincere efforts to ensure that the corrupt public servants are brought to book and convicted so that the administration and governance becomes unpolluted and free from corruption. 13.6 In the present case prime incriminating material is the disclosure statement made by the accused. FIR bearing no 152/11 dated 29.06.2012 was got registered at EOW PS Moti Nagar and during investigation the disclosure statement of the accused was recorded on 16.11.2012 wherein the accused disclosed that an Income Tax team led by the petitioner conducted search and seizure operation on 18/19.01.2011. The petitioner 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 furt....
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....flect any demand of gratification from the accused by the petitioner. 13.7.2 The audio clip recorded on 28.01.2011 do have reference of Rs. 5 crore in conversation but it is not reflecting that the petitioner raised demand of Rs. 5 crores from the accused. There is nothing in said conversation which can reflect demand of Rs. 5 crores made by the petitioner to the accused. 13.8 As argued and pointed out by the Special Public Prosecutor that Priyanka Saraswat Dev, wife of the accused on 22.01.2011 signed and delivered a cheque amounting to Rs. 7.50 crores bearing no 660814 dated 22.01.2011 drawn on SBI, Rajouri Garden to Dushyant Singh Tomar to withdraw Rs. 7.50 crores in cash; the accused on 28.01.2011 at night along with his employees i.e. Dushyant Singh Tomar and Krishan Kumar, driver delivered Rs. 5 crores in 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 p....
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....ed on 19.12.2013. The accused withdrew application under section 306 of the Code on 21.02.2014. The respondent/CBI also filed an application under section 306 of the Code for grant of pardon to the accused which was ordered to be dismissed vide order dated 06.05.2015 passed by the trial court. The accused in statement under section 164 of the Code narrated facts as per disclosure statement. The counsel for the petitioner raised serious doubts as to credibility of statement under section 164 of the code made by the accused and argued that the accused is involved in criminal case with serious allegations and placed reliance on Dipakbhai Jagdish chandra Patel V State of Gujarat, Criminal Appeal no 714 of 2019 decided on 24th April, 2019 by the Supreme Court. The Supreme Court in this case referred Suresh Budharmal Kalani @ Pappu Kalani V State 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 provisio....
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....ccordingly, we allow the appeal and the petition filed under Section 482 of the Cr.PC. The Order impugned passed by the Sessions Judge framing the charge against the appellant will stand set aside and the appellant will stand discharged. 14.1 Accordingly statement under section 164 of the Code made by the accused in proceedings under section 306 of the Code is a very weak kind of evidence and cannot be much relied on particularly when the accused withdraw the application under section 306 IPC. The accused is arrayed as co-accused in present FIR along with the petitioner. The antecedents of the petitioner are not clear and he is an accused in FIR bearing no. 0152/2011. 14.2 The trial court in the order dated 06.05.2015 whereby the application filed by the respondent/CBI under section 306 Cr.P.C. for grant of pardon to the accused was dismissed and also pointed out by the Special Public Prosecutor for the respondent/CBI, made observations that the statement of the accused recorded under section 164 Cr.P.C. is a strong piece of evidence in the hands of the prosecution to substantiate the allegations against the petitioner as well as the accused. These observations as made by the....