TaxTMI 
TaxTMI 
2025 (2) TMI 941
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....ion 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 friend and approached the CBI Office at Bengaluru and i....
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....he 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 relating to the admissibility of electronic evidence. Even assumin....
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..... 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 Tiwari v/s State of MP. 2022 SCC Online SC 966. 32. Parminder kaur v/s State of Punjab (2020) 8 SCC 811. 33. Umesh Patil v/s State of Karnataka CRL.A. No. 2760/2012 dated 21.07.2022. 34. Arjun Panditrao Khotkar v/s Kailash Kushamrao Gorantyal (2020) 7 SCC 1. 35. Anvar PV v/s PK Basheer....
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....hich 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? 3) Whether the findings of the Trial Court in recording the conviction is justified? 4) Whether the appellants have made out a case to interfere with the findings of the Trial Court? 24. Before adverting to the facts of the case, it is relevant to refer the legal proposition of the law along with the provisions of the P.C Act. The charge sheet has been laid against the appellants for the....
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....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 accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration, reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI. 8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was alleged....
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.... 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 cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record." 27. On careful reading of the above said judgment, it makes it clear that to constitute an offence under Section 7 of the P.C Act, there must be a demand for illegal gratification and the same has to be accepted by the Public Servant. Once the acceptance is proved presumption under Section 20 of the P.C Act would arise. 28. Having considered the principles laid down by the Hon'ble Supreme Court in....
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....ce 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 inferred that the prosecution has failed to establish the demand and acceptance of illegal gratification by accused Nos. 1 and 2. The Trial Court ought to have appreciated the evidence in such a manner before arriving at a conclusion that the accused are found guilty of offence punishable under Section 7 of the P.C. Act. 33. As regards the electronic evidences are concerned, the prosecution tried to convince the Court that the conversations between P.W.1 and with other accused were recorded in M.O.6 which was produced by P.W.1 and th....
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....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 material to connect the accused with the crime, rendering the conviction on the basis of invalid evidence certainly would lead to anomaly. Therefore, I am of the considered opinion that the prosecution has failed to prove the case against the accused even on the electronic evidence. It is needless to say that the persons who acquainted with the voice of accused Nos. 1 and 2 have been examined in this case and they have turned hostile and not supported the case of the prosecution. 36. The evidence of P.W.12 assumes greater significance as accused N....