TaxTMI 
TaxTMI 
2025 (2) TMI 941
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....re as under: 3. It is the case of the prosecution that the accused Nos. 1 and 2 were working as Income Tax Officers at Belagavi and Vijayapura respectively. It is further stated that the complainant had not filed Income Tax Returns for the financial year 2008 to 2015. Considering the non-filing of the said Income Tax Returns, the accused No. 1 had issued notices to the complainant and sought for his explanation for having not filed the Income Tax Returns. 4. It is stated that pursuant to the said notices, the complainant and PW.2 had approached accused No. 1 and offered their explanation for not having filed the Income Tax Returns relating to TDS. However, the said offer was not accepted and it was directed the complainant and PW.2 to submit the documents. Further, it is stated that accused No. 1 stated to have demanded a sum of Rs. 4,00,000/- as illegal gratification to do some official favour. The complainant disagreed to pay such a huge amount and then, it was reduced to Rs. 2,50,000/- after negotiation. 5. It is further stated that the complainant being unhappy about the said development and decided to approach CBI in that regard. Accordingly, he went along with his fr....
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....tionship of accused Nos. 1 and 2 with accused No. 3 itself is the ground to discard the fact of demanding illegal gratification. The said aspect ought to have been considered by the Trial Court while considering the evidence. 11. It is further submitted that though the complainant stated in his evidence that accused Nos. 1 and 2 have made several phone calls and demanded illegal gratification from him, the primary evidence like M.O.6 has not been proved in accordance with the law. The evidence of PW.1 would indicate that the respondent - CBI has not collected the memory card in his presence and he further, deposes that whether the memory card was there or not, was not aware to him. Moreover, the hash value of the mobile phone has not been secured which is important to ascertain the authenticity of the said mobile. In spite of this lacuna, the Trial Court proceeded to render the conviction, which is erroneous and unsustainable. 12. It is further submitted that the Trial Court ought not to have considered the remaining electronic evidence and its contents. However, the Trial Court considered the said evidence and acted upon such electronic evidence, which is contrary to the law....
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....P No. 10027/2022 dated 16/11/2022. 16. Khema alias Khem Chandra v/s State of Uttar Pradesh 2022 SCC Online SC 991. 17. Kali Ram v/s State of Himachal Pradesh (1973) 2 SCC 808. 18. State of Kerala v/s P.Mohammed Noushad (2016) 14 SCC 318. 19. Pradeep Kumar v/s State of Chattisgarh (2023) 5 SCC 350. 20. PC Mishra v/s CBI 2021 SCC Online Del 82. 21. C.M. Girish Babu v/s CBI Cochin, High Court of Kerala (2009) 3 SCC 779. 22. Khushalchand Yashwant Gaikwad v/s State of Maharashtra 2018 SCC Online Bom 1073. 23. Sujit Biswas v/s State of Assam (2013) 12 SCC 406. 24. Kalyan Kumar Gogoi v. Ashutosh Agnihotri and another (2011) 2 SCC 532. 25. Smt. Anita Sonkar v/s Shakuntala Misra 2014 (123) RD 855. 26. Ramappa Amminabhavi v/s State of Karnataka CRL.A. No. 2612/2010 dated 20/02/2021. 27. State of Karnataka v/s Bharath Chandra CRL.A. No. 223/1999 decided on 11/12/2001. 28. Punjabrao v/s State of Maharashtra (2002) 10 SCC 371. 29. M Abbas v/s State of Kerala (2001) 10 SCC 103. 30. Krishan Chander v/s State of Delhi (2016) 3 SCC 108. 31. Jai Prakash Tiwa....
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....e official favour. 20. It is further submitted that the telephonic conversations that had taken place between the parties would indicate that the accused Nos. 1 and 2 jointly and severally demanded the illegal gratification from PW.1 to do some official favour. 21. It is further submitted that the Trial Court has considered the said aspect and recorded the conviction, which is appropriate and justifiable. Therefore, interference would not be arisen. Having said thus, the learned Special Prosecutor for the respondent - CBI prays to dismiss the appeals. 22. The learned Special Prosecutor for the respondent-CBI in support of his submission, has relied on the judgment of the Hon'ble Supreme Court in the case of NEERAJ DUTTA v. STATE BY GOVERNMENT OF NCT, DELHI (2023) 4 SCC 731. 23. Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court, the points which would arise for my consideration are: 1) Whether the findings of the Trial Court in respect of the demand and acceptance of illegal gratification by the accused is justified? 2) Whether the Trial Court is justified in appreciating the electronic evidence....
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....er person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.] On careful reading of the above said provision, it makes it clear that the demand for illegal gratification and acceptance thereof is sine qua non to constitute an offence under Section 7 of the P.C Act. 26. In this context, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of N.VIJAYAKUMAR V. STATE OF TAMIL NADU stated supra, the Hon'ble Supreme Court held in paragraph No. 27 as under: "27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj read as under: (SCC pp. 58-59) "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the ....
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....same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent." The abovesaid view taken by this Court fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view" as such the judgment [State of T.N. v. N. Vijayakumar, 2020 SCC OnLine Mad 7098] of the High Court is fit to be set aside. Before recording conviction under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once conviction is recorded under the provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cann....
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....on in respect of notices issued by him. According to him, he was present when a demand of illegal gratification was made by accused No. 1. However, in the cross-examination, he had admitted that he was entrusted with the work of submitting the Income Tax Returns on behalf of P.W.1. As could be seen from his evidence that soon after the incident, he remained unnoticed and did not inform the said fact to the concerned authority. It is further noticed that he was not present as on the date of the alleged incident which had taken place in the clinic of P.W.1. Therefore, his evidence in respect of demand and acceptance of illegal gratification would not play any pivotal role in this case and his evidence would not inspire any confidence. Therefore, in my considered opinion, the evidence of this witness is not believable. 32. The evidence of P.W.8 who is the shadow witness to the incident would indicate that there was no demand of illegal gratification by accused No. 3. However, P.W.1 was handing over the amount of Rs. 2,50,000/- to accused No. 3, at that time, the accused No. 3 was apprehended by the respondent-CBI. On conjoint reading of the evidence of P.W.1, 2 and 8, it can be inf....
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....nversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure B Report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. The learned counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in 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]." 35. On reading of the above said judgment, it makes it clear that when the conversation is not proved through independent witnesses, relying on such conversation and rendering the conviction would be unjustifiable. Once it is found that there is no mate....