TaxTMI 
TaxTMI 
2024 (4) TMI 217
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....lhi (hereinafter referred to as "the trial court") in case titled as CBI V Arun Kumar Gurjar & another in CC no. 50/2012 arising out of RC bearing no. CBI/AC-I/RC-A0003/2010 dated 29.12.2010 registered by CBI, ACU (I), New Delhi under section 120B of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") read with section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "PC Act") and substantive offence under section 7 of the PC Act and for acquittal of the appellants. 2. The factual background of the case as appearing from charge sheet is that Pawan Aggarwal, Partner of M/s Madhya Pradesh Vanijya Company, 3958/2, Naya Bazar, Delhi (hereinafter referred to as "the complainant") made a written complaint on the basis of which present RC bearing no CBI/AC-I/RC-A0003/2010 was registered on 29.12.2010 by CBI, ACU(I), New Delhi under section 120B IPC read with section 7 of the PC Act and substantive offence under section 7 of PC Act against Arun Kumar Gurjar (Joint Commissioner of Income Tax, Range 29, New Delhi and hereinafter referred to as "the appellant Arun Kumar Gurjar") and Baljeet Singh (Inspector, Income Tax, Range 29, New Delhi/IAP-V, C....
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....t of Police, CBI, ACU-I, New Delhi in presence of independent witnesses namely, Jitendra Bhardwaj and Hukum Chand from House Tax Department, MCD, Central Zone, New Delhi by arranging a conversation of the complainant from his Mobile bearing no. 9311067502 with the appellant Baljeet Singh on his Mobile bearing no. 9873574750. The conversation between the complainant and the appellant Baljeet Singh was recorded with the help of digital voice recorder and transferred to a CD and a verification memo was drawn by Sh. Ram Singh. The appellant Baljeet Singh in said incriminating conversation asked the complainant to come to his office in Drum Shaped Building, IP Estate, New Delhi. ACU-I branch of CBI, New Delhi registered RC AC 1 2010 A 0003 after verification of the complaint against the appellants Arun Kumar Gurjar and Baljeet Singh. Ram Singh, Deputy Superintendent of Police, CBI, ACU-I, New Delhi was detailed as the 'Trap Laying Officer' (TLO) and it was decided to lay a trap against the accused officials of the Income Tax Department. The complainant produced Trap money equivalent to Rs. 2,00,000/- in Rs. 1000 denomination. The money was kept in an envelope and Phenolphthalein Powder ....
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....ting the bribe from the complainant under the direction of the appellant Arun Kumar Gurjar who was sitting in the office of Commissioner of Income Tax at Drum-shaped Building, New Delhi. The appellant Arun Kumar Gurjar was brought to his office where the appellant Baljeet Singh reiterated his statement in the presence of independent witnesses and members of the trap team whereby confirmed that he accepted the bribe on the directions of the appellant Arun Kumar Gurjar who could not give any explanation for the allegations made by the appellant Baljeet Singh. The appellants Arun Kumar Gurjar and Baljeet Singh were taken into custody and a recovery memo mentioning the entire post-trap proceedings was prepared and the signatures of the trap team members were obtained on the recovery memo. The recording device previously given to the complainant was taken back and the incriminating conversation between the complainant and the appellant Baljeet Singh recorded during the bribe transaction was transferred to a CD. The washes of hands and clothes of the appellant Baljeet Singh were collected and preserved for the purpose of investigation, 2.6 The chamber of the appellant Arun Kumar Gurja....
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.... order sheets in the case file on the direction of the appellant Arun Kumar Gurjar. There was no official order attaching the appellant Baljeet Singh to the office of the appellant Arun Kumar Gurjar. 2.8 The complainant during investigation was found to be user of mobile no. 9311067502 (Reliance) and mobile no 9873574750 (Vodafone) was being used by the appellant Baljeet Singh. The chemical examination report dated 12.01.2011 revealed that the exhibits showed positive tests indicating the presence of PP Powder. The Forensic Voice Examination Report indicated positive results regarding the comparison between the questioned voice of the appellant Baljeet Singh as recorded in the CD labeled Q-2 and his reference specimen voice contained in a CD marked as S-1. The expert opinion dated 31.03.2011 indicated that the order sheet in the case file of MPVC was written in the handwriting of the appellant Baljeet Singh which were signed by the appellant Arun Kumar Gurjar. 2.9 The investigation established that the appellant Arun Kumar Gurjar engaged in criminal conspiracy with the appellant Baljeet Singh and they committed criminal misconduct by soliciting a bribe of Rs. 5,00,000/- from ....
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....plainant for the completion of the scrutiny assessment but the complainant never submitted complete information. He after taking the charge of the case also sought the same information from the complainant. The complainant was aware that the matter was a time bound matter and the complainant intentionally delayed the proceeding. A detailed questionnaire/show-cause was issued to the complainant's firm but the information was again not supplied. The false case was registered on 29.12.2010 to avoid the completion of the assessment of the proceeding on or before 31.12.2010 as income tax department could not have taken any action after expiry of limitation period i.e. 31.12.2010 in the assessment case in question. He never made any demand directly or indirectly and performed his duty with honesty and sincerity in the best interest of the department. The firm of the complainant was assessed and the penalty was imposed after the registration of this case. The appellant Arun Kumar Gurjar pleaded innocence and false implication by the complainant as the complainant was apprehending substantial financial liabilities/penalties and prosecution under Income Tax Act. The appellant Arun Kumar....
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....erving that the prosecution has established its case and all essential ingredient of offence under section 120 B IPC read with Section 7 of PC Act against the appellants Arun Kumar Gurjar and Baljeet Singh beyond any reasonable doubt and convicted the appellants Arun Kumar Gurjar and Baljeet Singh for the offences under section 120 B IPC read with section 7 of the PC Act. The relevant portion of the impugned judgment is reproduced verbatim as under:- 34. In view of above discussion, testimony of witnesses, documents proved on record and the circumstances of the case it may be concluded that:- i) A-1 was posted as Joint Commissioner of Income Tax and A-2 as Inspector, Income Tax and this fact has not been disputed even by accused persons. ii) A-2 was assisting A-1 in the case of firm of the complainant even after the transfer. iii) Income tax assessment case of Madhya Pradesh Vanijaya Company, the firm of the complainant was pending before A-1 which was time bound case and the limitation was going to be expired on 31.12.2015. iv) Sanction for prosecution was duly granted by competent authorities for prosecution of A-1 and A-2. v)....
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....s been given by A-2 in this regard. xi) A-2 met PW 1 in room no.207 of income tax office which was office room of A-1. In ordinary course of events there was no reason for A-2 to meet a litigant in the office of his senior officer (A-1) when A-1 himself was present in the same complex. It corroborates the story of prosecution. xii) A-l being the Joint Commissioner of Income Tax was the Assessing Officer of Income tax case of firm of PW 1 and A-2 was assisting him. In the' facts and circumstances of the case, A-2 could not demand bribe from PW 1 without instructions of A-1. A-2 himself was in no position to give any favour to firm of PW 1 without aid and help of A-1 which has clearly established the criminal conspiracy between A-1 and A-2 for demanding and accepting the bribe in lieu of favours in income tax assessment case of firm of PW 1. xiii) The essential ingredient of offence i.e demand of bribe by A-1 and A-2; acceptance of bribe by A-2 from PW 1 and recovery of bribe amount from the possession of A-2 is proved by prosecution beyond any doubt. The entire chain of facts and circumstances proves that demand and acceptance of bribe was by A-1 and A....
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...., 1988. In default of payment of fine the respective convicts shall undergo simple imprisonment for four months. b) To undergo rigorous imprisonment for 4 years and to pay fine of Rs. One Lakh each for the offence u/s 7 of the Prevention of Corruption Act, 1988. In default of payment of fine the respective convicts shall further undergo simple imprisonment for four months. 28. All the sentences of imprisonment will run concurrently. Benefit of 428 Cr.P.C. be given to convict Arun Kumar Gurjar for the period from 29.12.2010 to 28.02.2011 and to convict Baljeet Singh for the period from 29.12.2010 to 25.02.2011 in respect of imprisonment already undergone by them. 29. In accordance with order on sentence, convict Arun Kumar Gurjar and Baljeet Singh be taken into custody and be sent to jail to undergo sentence. Personal bonds and surety bonds of both the convicts stands cancelled. Copy of the judgment, order on sentence, charge, report u/s 173 Cr.PC, statement of Pws and Dws and statement of accused ect be given to the convicts free of cost as per law. Custody warrants be prepared separately in accordance with the order of sentence. 6. The appellants bein....
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....The prosecution could not prove place of recovery. The impugned judgment itself is full of contradictions. The prosecution has failed to examine material witnesses. The prosecution has not obtained sanction under section 197 of the Code for prosecution of offence under section 120 B IPC. The trial court has awarded excessive sentence to the appellant Arun Kumar Gurjar. The appellant Arun Kumar Gurjar to challenge impugned judgment and impugned order also raised other grounds and referred case law as detailed in grounds of appeal. It is prayed that the impugned judgment and impugned order be set aside. 6.2 The appellant Baljeet Singh challenged the impugned judgment and impugned order on grounds that they are based on surmises, assumptions and conjectures and contrary to the evidence. The prosecution has failed to prove any prior meeting of mind between the appellants Arun Kumar Gurjar and Baljeet Singh to prove charge under section 120B IPC. The prosecution has not led legally admissible evidence to prove demand, acceptance and recovery to establish offence under section 7 of PC Act. The testimony is not corroborated by any independent evidence which is inconsistent, contradicto....
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.... any prior meeting of mind to prove charge under section 120 B IPC. ii) There is no evidence led by the prosecution pertaining to prove demand, acceptance and recovery. iii) The sanctioning authorities granted sanction to prosecute the appellants Arun Kumar Gurjar and Baljeet Singh without application of mind. iv) The complaint Ex. PW 1/A is a fabricated document making the entire prosecution case highly suspicious. v) There is an extraordinary delay in lodging the FIR. vi) The testimony of the complainant is unreliable contradictory and there are material contradictions, improvements and inherent deficiencies in the testimony of the complainant. vii). Hukum Chand PW 10 did not support the case of the prosecution. viii) The testimony of Ram Singh TLO PW 22 is full of contradictions, improvements and inherent deficiencies and he was an absolute interested witness. ix) Handing Over Memo Ex PW 1/E is a tainted document. x) The prosecution has not proved attendance of the complainant PW 1 for lodging of the complaint in CBI Office on 28.12.2010. xi) There are contradictions regarding attendance in....
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.... "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. 45. On consideration of the aforesaid cases, the question framed for determination by the larger Bench is as under: "(1) Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an infere....
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....epted 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 as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence. 88. What emerges from the aforesaid discussion is summarised as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guil....
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....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 presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the ill....
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....on. The complainant PW 1 was a partner in MPVC which was selected for scrutiny for assessment year 2008-09 through Computer Assisted Scrutiny Selection (CASS) on 03.08.2009 Ex. PW 1/DX-22 and was pending in Ward-29 of Range-29. The Income Tax Department issued notices to MPVC and related firms to obtain more information since 03.08.2009 but response given by MPVC was found to be unsatisfactory and complete documents were not submitted before assessing officers. The appellant Arun Kumar Gurjar became the Joint Commissioner of Income Tax of Range 29, Drum Shaped Building, ITO in CIT X in July 2010 and used to sit in room no 207. The pending assessment of MPVC was transferred from Arju Goradia, Assistant Commissioner of Income Tax, CIT X PW 16 to the appellant Arun Kumar Gurjar by the order of Feroz Khan, Commissioner of Income Tax vide order dated 06.08.2010. The appellant Baljeet Singh was already posted as Inspector, Income Tax, Circle 29 (Range 29), CIT X in July 2010 and used to sit in room no 110. The appellant Baljeet Singh joined Circle 29 sometime in year, 2008 and was associated with the assessment of MPVC since then even before Arju Goradia PW 16 handled it. The appellant B....
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.... State of Punjab V Madan Mohan Lal Verma, (2013) 14 SCC 153. The allegations of demand in October and December 2010 are vague, unclear and inherently improbable. It is also argued that there is no evidence of acceptance. 9.4 The learned Senior Counsel further argued that there was no proper verification by the respondent/CBI regarding allegations against the appellant Arun Kumar Gurjar. The investigating officer PW23 did not cross-verify version of the complainant about meeting the appellant Arun Kumar Gurjar in October or 27.12.2010 and no verification was made in respect of the appellant Arun Kumar Gurjar in the presence of the independent witnesses. 9.5 The learned Senior Counsel for the appellant Arun Kumar Gurjar regarding original complaint argued that the prosecution did not produce original complaint brought by the complainant in CBI office and suppression of the original complaint and its substitution with a new document made the entire case suspect and relied on A. Sevi v. State of T.N., 1981 Supp SCC 43. It was further argued that non securing of the original complaint is a glaring error and relied on C. Prasnnakumar @ Papanna and others V State, Crl. A. No. 376/20....
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.... prosecution suffers from inherent contradictions and prosecution failed to prove its case beyond reasonable doubt. The prosecution could not prove charges against the appellant Baljeet Singh. 10.2 It was argued that the trap was motivated and was orchestrated by the complainant PW 1 with the help of the respondent/CBI. The complainant PW 1 was facing income tax assessment proceedings for assessment year 2008-2009 which was to be time barred on 31.12.2010. Hanish Bansal who was not examined as witness, the authorised representative of MPVC wrote a letter dated 21.12.2010 addressed to the appellant Arun Kumar Gurjar seeking 15 days' time to produce the documents to make the assessment proceedings time barred under section 153 of the Income Tax Act, 196l which was rejected by the appellant Arun Kumar Gurjar. The complainant PW 1 was also having previous enmity with the appellant Baljeet Singh to falsely implicate him as the appellant was associated with the enquiry of firm M/s Radha Kishan Banarasi Das, a family firm of the complainant and the appellant Baljeet Singh during survey had heated arguments with the complainant. Hanish Bansal was handling proceedings on behalf of MPVC a....
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.... officers as and when required in important or time barred matters. DWl Shiv Swaroop Singh, Joint Commissioner of Income Tax has also deposed that as a matter of practice sometimes senior officers used to request the officials for their assistance even after their transfer. PW23 on 10.10.2014 stated that he did not notice any illegality in the order sheets and proceedings pertaining to the case of MPVC. 10.4 The learned Senior Counsel further argued that the prosecution has failed to prove the initial demand which is a sine qua non for convicting an accused for an offence under section 7 of PC Act. The initial demand of Rs. 5 lakhs which was allegedly made in October 2010 is only mentioned in the complaint Ex PW 1/A which is contradictory to deposition of PW 1 in his chief examination. The complainant PW 1 introduced for the first time in his examination in chief dated 03.06.2013 that initially demand of Rs 1.5 lakhs was made by the appellants Arun Kumar Gurjar and Baljeet Singh. The investigating officer PW 23 Vijay Bahadur in cross examination states that he did not cross verify the version of complainant about his alleged meeting with the appellant Arun Kumar Gurjar in Octobe....
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....pecial Public Prosecutor for the respondent/CBI advanced oral arguments and also submitted written submissions. 11.1 It was argued that the appellant Arun Kumar Gurjar, Joint Commissioner of Income tax was assessing officer (AO) of firm of the complainant MPVC and during October, 2010 to December 2010 connived with the appellant Baljeet Singh and entered into criminal conspiracy and in pursuance thereof by abusing their position as public servants while scrutinizing the income tax assessment of 2008-2009 of MPVC, the appellant Arun Kumar Gurjar and the appellant Baljeet Singh demanded illegal gratification of 5 lakhs in the month of October, 2010 from the complainant PW 1, the partner of MPVC for scrutiny and finalizing the income tax assessment without any hurdle. A notice dated 20.12.2010 was issued to MPVC when the complainant PW 1 refused to pay the bribe amount of' 5 lacs and when the complainant visited the office on 27.12.2010, the appellants Arun Kumar Gurjar and Baljeet Singh again demanded bribe of Rs. 5 lacs from the complainant PW 1 for finalization of entire matter without any hurdle and illegal gratification of Rs. 2 lacs was accepted by the appellants Arun Kumar G....
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....on to falsely depose against the appellants Arun Kumar Gurjar and Baljeet Singh. The respective testimony of PW 1, PW 10, PW 18 and PW 22 are supporting each other in material particulars and corroborated from the documents i.e. recovery memo and handing over memo etc. The appellant Arun Kumar Gurjar being the Joint Commissioner of Income Tax was the assessing officer of income tax case of firm of the complainant PW 1 and the appellant Baljeet Singh was assisting him and in such circumstance the appellant Baljeet Singh could not demand bribe from the complainant PW 1 without instruction of the appellant Arun Kumar Gurjar and the appellant Baljeet Singh was not in position to give any favour to firm of the complainant without aid and help of the appellant Arun Kumar Gurjar which has clearly established the criminal conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh for demanding and accepting the bribe in lieu of favours in income tax assessment case of firm of the complainant PW 1. 11.2.2 The learned Special Public Prosecutor further argued that essential ingredients of offence i.e. demand of bribe by the appellant Arun Kumar Gurjar, acceptance of bribe by the....
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.... appellant Arun Kumar Gurjar as reflected from opinion of expert from GEQD, Shimla. 11.4 The learned Senior Public Prosecutor in respect of role of appellant Arun Kumar Gurjar argued that the appellant Arun Kumar Gurjar, Joint Commissioner of Income Tax, had joined Range 29 in the month of July 2010 and was Assessing Officer (AO) of firm of the complainant. The appellant Arun Kumar Gurjar even after transfer of the appellant Baljeet Singh was getting his services without any attachment order to his office. The complainant PW 1 deposed that the appellants Arun Kumar Gurjar and Baljeet Singh have demanded bribe in the month of October and the appellant Baljeet Singh called the complainant in the office of Income Tax on 29.12.2010. The appellant Baljeet Singh received bribe from the complainant in the office of appellant Arun Kumar Gurjar even after knowing the fact that appellant Arun Kumar Gurjar was present in the same building. During the search conducted in the office of appellant Arun Kumar Gurjar on 29.12.2015, a sum of Rs. 6 lacs was recovered from the office drawer of room no 207 of the appellant Arun Kumar Gurjar in the presence of witnesses which was corroborated from do....
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....application of mind and are legally valid. 13. The trial court in impugned judgment also considered arguments advanced on behalf of the appellant Baljeet Singh that telephonic conversation allegedly contained in CD Q-1 and CD Q-2 are alleged recorded conversation at the time of pre trap and post trap proceedings are not admissible in evidence. It was also argued that conversation was originally recorded in DVR which was transferred in CD Q-1 and CD Q-2 from the DVR but original DVR has not been produced and CDs prepared from DVR is electronic evidence within the meaning of Evidence Act and therefore, certificate under section 65 B of the India Evidence Act, 1872 is mandatory requirement but certificate under section 65 B of the Indian Evidence Act, 1872 was neither issued nor produced before the court. The trial court after referring Anwar RV V P.K Bhaseer, Civil Appeal No 4226/2012 decided on 18.09.2014 by the Supreme Court of India observed that certificate under section 65 B of the Indian Evidence Act, 1872 was required from the person who prepared CD Q-l and CD Q-2 with the help of laptop/computer from DVR and the recorded conversation contained in CD Q-l and CD Q-2 is not a....
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....fice of CBI, New Delhi. The complainant PW 1 in cross examination conducted on behalf of the appellant Baljeet Singh deposed and admitted that he firstly visited office of CBI on 28.12.2010 and he reached the CBI office along with the already written complaint which was typed by his staff namely Hanish Bansal on his instructions in the morning of 28.12.2010. The complainant PW 1 further deposed that the complaint Ex. PW 1/A is not the same complaint which was typed by Hanish Bansal in office as there were mistakes in the complaint typed by Hanish Bansal and due to this complaint Ex. PW 1/A was retyped in CBI office. The complainant PW 1 could not answer whether the complaint typed by Hanish Bansal was returned back to him by the CBI officers. The complainant PW 1 denied suggestion that the complaint Ex. PW 1/A was typed in CBI office according to the directions of the CBI officers by incorporating false facts. It is reflecting from the testimony of the complainant Ex. PW 1/A was not the complaint which was originally brought by the complainant in office of CBI and the complaint Ex. PW 1/A was retyped in office of CBI. 14.1 The learned Senior Counsel for the appellant Arun Kumar ....
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....rt also distinguished case law under given facts and circumstances of the case. 14.4 The learned Special Public Prosecutor for CBI in light of observation made by the trial court argued that the trial court in impugned judgment has considered the arguments advanced on behalf of the appellants Arun Kumar Gurjar and Baljeet Singh and rightly held that there was nothing on record to prove that there was any material change in the retyped complaint except the proper address as clarified by the complainant PW 1 during his testimony and trial court has rightly held that in the facts and circumstances of the present case no importance can be given on this aspect of change of complaint. 14.5 The Supreme Court in Sevi and another V State of Tamil Nadu and another as cited by the learned Senior Counsel for the appellant Arun Kumar Gurjar observed as under:- According to the suggestion of defence the original First Information Report which was registered was something altogether different from what has now been put forward as the First Information Report and that the present report is one which has been substituted in the place of another which was destroyed. To substantiate th....
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....int Ex. PW 1/A which was retyped in office of CBI. Although previous complaint was not produced during trial and this may raise suspicion about case of prosecution but is not fatal to case of prosecution. The trial court rightly held that there was nothing to prove that there was any material change in the retyped complaint except the proper address as clarified by the complainant PW 1 during his testimony and no importance can be given on aspect of change of complaint in the facts and circumstances. The trial court rightly observed that case law cited on behalf of the appellants as referred herein above can be distinguished under facts and circumstances of present case. 15. The learned Senior Counsel for the appellant Arun Kumar Gurjar argued that it is a settled principle of law that delay in FIR without proper explanation must be viewed with suspicion since it gives an opportunity to deliberate and embellish and relied on Harilal V State of Chhattisgarh, 2023 SCC OnLine SC 1124. The learned counsel for the appellant Baljeet Singh also argued that there was delay in lodging FIR as alleged demand was made in October, 2010 but FIR was registered on 29.12.2010 on complaint dated ....
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....ut chance of manipulation and embellishments. In present case the appellants Arun Kumar Gurjar and Baljeet Singh were handling income tax assessment of firm of the complainant i.e. MPVC. The appellants Arun Kumar Gurjar and Baljeet Singh as per the complainant initially demanded bribe of Rs. 1.5 lacs in month of October, 2010 which was raised to Rs. 5 lacs in month of December, 2010 which the complainant was not able to pay and thereafter the complainant on 28.12.2010 lodged the complaint Ex. PW 1/A which was basis of registration of FIR. The prosecution under given facts and circumstances of case has properly explained delay in registration of FIR. There is no legal force in arguments advanced on behalf of appellants Arun Kumar Gurjar and Baljeet Singh that there was unexplained delay in registration of FIR. 16. The respective Senior Counsels for the appellants Arun Kumar Gurjar and Baljeet Singh pleaded argued malicious prosecution of the appellants Arun Kumar Gurjar and Baljeet Singh by the complainant PW 1. The learned Senior Counsel for the appellant Arun Kumar Gurjar argued that the complainant PW 1 was motivated by malice to implicate the appellant Arun Kumar Gurjar to de....
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....he appellants Arun Kumar Gurjar and Baljeet Singh. The respective testimony of PW 1, PW 10, PW 18 and PW 22 has supported by each other on the material particulars and are corroborated by the documents i.e. recovery memo and handing over memo etc. The learned Special Public Prosecutor also referred relevant part of the impugned judgment. 16.3 The trial court in impugned judgment discussed arguments advanced on behalf of the appellants Arun Kumar Gurjar and Baljeet Singh that the complainant PW 1 was having motive to falsely implicate the appellants Arun Kumar Gurjar and Baljeet Singh as the complainant PW 1 had a scuffle/quarrel with the appellant Baljeet Singh at the time of survey of his firm in another income tax case and income tax assessment pertaining to MPVC was to be time barred on 31.12.2010 and due to this the complainant PW 1 was having motive against the appellant Baljeet Singh. The trial court after considering these arguments observed that the appellant Baljeet Singh had dispute with the complainant appellant Baljeet Singh at the time of survey of another firm for income tax assessment case. The appellant Baljeet Singh was assisting the appellant Arun Kumar Gurjar ....
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....ljeet Singh could not have demanded the bribe from the complainant PW 1 without the appellant Arun Kumar Gurjar and the appellant Baljeet Singh met the complainant in office room of the appellant Arun Kumar Gurjar. It was further argued that mere fact that the appellant Baljeet Singh was assisting the appellant Arun Kumar Gurjar after transfer in the assessment of MPVC cannot lead to any inference of conspiracy between the appellant Arun Kumar Gurjar and Baljeet Singh as it was not uncommon to take assistance of transferred officers which was also supported by the testimony of DW 1 and PW 16. The appellant Arun Kumar Gurjar had formally requested to stay the transfer of the appellant Baljeet Singh out of Range 29 as he was looking after the uploading of demand of Central Processing Centre which has to be completed by 31.12.2010 and other time barred matters vide letter dated 22.10.2010 Ex. PW 16/DA. Sh. M. P. Varshney Chief CIT also made similar request vide letter dated 27.10.2010 and Firoz Khan, CIT Delhi-10 vide letter dated 25.10.2010 Ex.PW 14/DX also requested for permission till 31.03.2011 as transfer of appellant Baljeet Singh would adversely impact the office work of Range-....
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....osecutor for CBI argued that there was criminal conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh as the appellant Baljeet Singh was assisting the appellant Arun Kumar Gurjar in the assessment case of MPVC and was rendering his services to the appellant Arun Kumar Gurjar even after his transfer from CIT-X and was writing order sheet of the case of the firm of complainant which were signed by the appellant Arun Kumar Gurjar and relied on opinion of expert from GEQD, Shimla. The Special Public Prosecutor further argued that it was not possible for the appellant Baljeet Singh to obtain illegal gratification from the complainant in the room no. 207, office of the appellant Arun Kumar Gurjar without connivance of the appellant Arun Kumar Gurjar. The Special Public Prosecutor defended the impugned judgment related to criminal conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh and stated that the trial court has rightly appreciated the evidence and convicted the appellants Arun Kumar Gurjar and Baljeet Singh for the offence punishable under section 120-B IPC read with section 7 of PC Act. 17.3 The trial court in relation to criminal conspiracy bet....
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.... object. Section 120 B provides punishment for criminal conspiracy which reads as under:- 120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. The Supreme Court in State through Superintendent of Police V Nalini & others, (1999) 5 SCC 253 discussed and summarized ingredients to constitute a criminal conspiracy which are as follows: i) Conspiracy is when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. ii) The offence of criminal conspiracy is an exception to the general law, where intent alone does not constitute crime. It is the i....
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....ution as well as the arguments advanced by the Special Public Prosecutor. 17.6 It is correct that the conspiracy are conceived and executed in privacy and it is very difficult to establish conspiracy by direct evidence. The existence of the conspiracy has to be inferred from the prevailing circumstances as well as the conduct of the accused. However in present case, the mere facts that the appellant Baljeet Singh was assisting the appellant Arun Kumar Gurjar in assessment case of the MPVC which was to be expired on 31.12.2010 even after his transfer and if the appellant Baljeet Singh met with the complainant PW 1 in the office of the appellant Arun Kumar Gurjar and the appellant Baljeet Singh was writing the order sheet under the signature of the appellant Arun Kumar Gurjar as confirmed by the expert opinion are not itself sufficient to establish an agreement between the appellants Arun Kumar Gurjar and Baljeet Singh and prior meeting of mind. The observations as given by the trial court in the impugned judgment are based on the presumption and assumption rather the true appreciation of the evidence. There is no force in the arguments advanced by the Special Public Prosecutor fo....
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.... law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence. (Vide: Abrar v. State of U.P., AIR 2011 SC 354; Rukia Begum v. State of Karnataka, AIR 2011 SC 1585; and State of Madhya Pradesh v. Dal Singh & Ors., AIR 2013 SC 2059). 11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, th....
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.... case. It was further argued that there was no corroboration of any allegation made by the complainant PW 1 by any document or any witness and the appellant Arun Kumar Gurjar was convicted on the testimony of the complainant PW 1 despite being unreliable and referred K.Ramadoss & another V Deputy Superintendent of police, (2019) SCC online Mad 16566 and State of Punjab V Madan Mohan Lal Verma, (2013) 14 SCC 153. 18.1.1 The learned Senior Counsel for the appellant Arun Kumar Gurjar further argued that the complainant PW 1 in deposition has changed his stand regarding the demand of bribe of Rs. 5 lacs and pointed out that the complainant PW 1 in the complaint Ex PW 1/B stated that the appellants Arun Kumar Gurjar and Baljeet Singh demanded bribe of Rs. 5 lacs for hassle free completion of tax assessment while in the statement under section 161 of the code Ex. PW 1/DA stated that Rs. 2.5 lacs was demanded by the appellant Baljeet Singh. The complainant PW 1 in examination in chief also changed his stance by deposing that the appellant Baljeet Singh has made initial demand of Rs. 1.5 Lacs which was increased to Rs. 5 lacs when he met the appellants Arun Kumar Gurjar and Baljeet Sing....
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....uent demand was on the prosecution which is sine qua non for constituting an offence under section 7 of the PC Act. There is no evidence to prove demand at this point. The PW 10 and PW 18 did not depose about the demand as the amount was already recovered when they entered the room 207. The learned senior counsel relied upon P Satyanaryana Murthy V District Inspector of police state of Andra Pradesh (2015) 10 SCC, B. Jayaraj V State of Punjab 2017. 18.3 The learned Special Public Prosecutor for the respondent/CBI argued that the appellants Arun Kumar Gujjar and Baljeet Singh have demanded illegal gratification of Rs. 5 lacs in the month of October 2010 from the complainant PW 1 which was again demanded on 27.12.2010 when the complainant again visited the office on 27.12.2010 to finalize the assessment case of the MPVC without any hurdle. The appellant Baljeet Singh has accepted illegal gratification of Rs 2 lakhs on 29.12.2010 from the complainant for himself as well as on behalf of the appellant Arun Kumar Gujjar and the said amount was recovered from the possession of the appellant Baljeet Singh. The complainant being the only witness of demand and acceptance has consistently ....
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....eposed that the appellants Arun Kumar Gurjar and Baljeet Singh were dealing income tax assessment of MPVC for the assessment year 2008-2009 and due to this reason he used to meet the appellants Arun Kumar Gurjar and Baljeet Singh. The complainant in October, 2010 in response to the notice received from the income tax office met the appellant Baljeet Singh in his office and submitted further documents. The complainant again met the appellant Baljeet Singh in the mid of December, 2010 in his office and thereafter the appellant Baljeet Singh took him to the office of the appellant Arun Kumar Gurjar where the discussion was held pertaining to the assessment of MPVC. The appellant Arun Kumar Gurjar was not satisfied with the reply/information given by the complainant then he came out from the office of the appellant Arun Kumar Gurjar and met the appellant Baljeet Singh who demanded bribe of Rs. 5 lacs to settle the case which was to be paid to the appellant Arun Kumar Gurjar. The complainant PW 1 also deposed that when he met the appellant Baljeet Singh in October, 2010 then he demanded bribe of Rs.1.5 lacs which was increased to Rs. 5 lacs in the month of December, 2010. The appellant ....
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....ncome Tax and the appellant Baljeet Singh in the presence of appellant Arun Kumar Gurjar told CBI officers that he accepted Rs. 2 lacs on the instructions of the appellant Arun Kumar Gurjar. The complainant PW 1 in examination in chief recorded on 04.06.2013 before the trial court also deposed that he knew the appellant Baljeet Singh since 2010 and he received a phone from the appellant Baljeet Singh in the first week of October, 2010 who informed him about his assessment case of MPVC under scrutiny. Thereafter, the complainant PW 1 met the appellant Baljeet Singh who has taken him to the office of the assessing officer i.e. the appellant Arun Kumar Gurjar. The complainant PW 1 again met the appellant Arun Kumar Gurjar in his office at the end of the October, 2010 i.e., around 25/26.10.2010 and in the said meeting the appellant Arun Kumar Gurjar and Baljeet Singh demanded Rs. 5 lacs against the initial demand of Rs. 1.5 lacs. The appellants Arun Kumar Gurjar and Baljeet Singh again demanded Rs. 5 lacs to finalize scrutiny of the assessment of the MPVC in December, 2010.The prosecution also examined Hukum Chand who was a member of Trap team as PW 10 who could not identify properly t....
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....ctions, improvements and deficiency and he may be an interested witness and his testimony is required to be scrutinized with caution. It was further observed that the testimony of PW 1 cannot be said wholly reliable or wholly unreliable but was required to be seen in the facts and circumstances of the case. It is correct that mere marginal variations, contradictions, discrepancies or improvements in the statements of witnesses cannot be fatal to the case of the prosecution and only major contradictions, discrepancies or improvements on material facts can shake the very genesis of prosecution case and can create doubts as to the prosecution case. It is appearing that the trial court was not convinced with the purity and credibility of the testimony of the complainant PW 1 and also noted various contradictions, improvements about the prosecution case. 19. The complainant PW 1 made the complaint Ex. PW 1/A on 28.12.2010 with the CBI and on that day verification of the complaint was done by TLO PW 22 Ram Singh. The trial court already observed that the conversation for verification of the complaint recorded in CD Q 1 cannot be read into evidence. The respondent CBI after verificatio....