TaxTMI 
TaxTMI 
2026 (5) TMI 1654
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....uitted the respondents of the charges levelled against them. Aggrieved by the same, the State has preferred the present appeals. BRIEF FACTS 2. The factual matrix of the case is that on 05.01.1995, R.K. Srivastava, Superintendent, Central Excise, A.K. Gaba, Inspector, Central Excise and Alok Gupta, Inspector, Central Excise had visited M/s Prime Products, Kursi Road, Barabanki and also inspected the adjoining factory, namely, M/s Amoli Ceraplast Ltd. R.K. Srivastava along with other co-accused persons had seized all the available records of M/s Amoli Ceraplast Ltd. without giving any acknowledgement. Thereafter, the complainant Kuldeep Tiwari, Retainer Consultant, visited the office of R.K. Srivastava on 10.01.1995 at about 10.00 P.M. and asked him to return all the documents which they have taken away with them from the factory but R.K. Srivastava had said to the complainant that unless he made the payment of Rs.80,000/- as an illegal gratification, the documents will not be returned to him. Feeling aggrieved, complainant Kuldeep Tiwari lodged a First Information Report (hereinafter referred to as 'F.I.R') with Superintendent of Police, C.B.I., Lucknow. 3. Thereafter, on ....
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....osecution. The counsel submitted that the respondents A.K. Gaba and Alok Gupta were present on 10.01.1995 at the time when the initial demand of bribe of Rs. 80,000/- was made by R.K. Srivastava, and that they were also present on 07.01.1995 when the records were seized from the factory premises of M/s. Amoli Ceraplast Ltd. without issue of any seizure receipt. It is submitted that accused Dushyant Kumar was also present on 14.01.1995 when R.K. Srivastava accepted the bribe in cash in the presence of the independent witness, and was the one who counted the bribe money after its acceptance. The counsel further submitted that the accused failed to explain the recovery of the bribe money and the seized records of M/s Amoli Ceraplast Ltd. Based on the above, the counsel contended that there is enough evidence to establish that the respondents were party to the criminal conspiracy, and that the respondents cannot be acquitted merely because the independent witnesses have turned hostile when the demand and acceptance of bribe in the present case has been adequately proved. It is the submission of the counsel for appellant that as the respondents were charged for the offences under Sectio....
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..... It is further submitted by the counsel that the lack of independent witness was fatal to the case of prosecution as under the circumstances, prosecution witnesses were scrutinized with greater care. Learned counsel in support of his submissions placed reliance on the judgment of Shyamal Saha & Anr. vs. State of West Bengal (2014) 12 SCC 321. It was further submitted that the ingredient of abuse of position as a public servant is sine-qua-non to prove an offence punishable under Section 13(1)(d) of the P.C. Act as has been held in State of Gujarat vs. Manshankar Prabhashankar Dwivedi (1972) 2 SCC 392 and State by Special Police Establishment vs. D. Krishnamurthy (1995) Suppl. (3) SCC 702. The counsel submitted that as the accused no. 1 had been charged under Section 7 of the P.C. Act whereas other officers were charged under Section 7 read with 120B of IPC. Learned counsel submitted that as per the prosecution, the main accused was accused no. 1 but accused no. 1 was not charged with Section 120B of IPC. In this fact situation, the theory of conspiracy alleged by the prosecution utterly fails. ANALYSIS 9. Heard learned Counsel for the appellant as well as learned Counsel for....
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....ments/ cross examinations of many prosecution witnesses..... ....Kuldeep Tewari, complainant has stated in his testimony that he had a tape recorder to record the conversation that took place in the evening of 10.01.1995 and this recording was never adduced as evidence which could pin point the participants of the alleged meeting on 10.01.1995. Tape Recorder has been concealed by the prosecution in order to implicate A.K. Gaba and Alok Gupta falsely. The Learned Trial Court has also ignored concealment of vital evidence i.e. Tape Recorder, concealed by the prosecution in the judgment causing grave injustice to appellants, namely, A.K. Gaba and Alok Gupta. .....The judgment dated 26.07.2014 reveals that while passing the judgment, learned Trial Judge has not discussed the details of Cross examination of the Prosecution witnesses. Thus, the appellants were denied natural justice as evidence emerging out from cross examination conducted by defense on prosecution witnesses. This omission has resulted in to erroneous judgment... ....The Learned trial Court's order is based on presumption, as the Judge has used the words "Sambhavtah" and "Prateet hota hai" ....
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....gment held as under: (SCC pp. 784 & 785-86)" (emphasis supplied) 13. The aforesaid principle squarely applies to the facts of the present case where the prosecution has failed to establish the foundational fact of demand beyond reasonable doubt. 14. Likewise, in C.M. Sharma v. State of Andhra Pradesh (2010) 15 SCC 1, this Court reiterated that recovery of tainted money divorced from proof of demand cannot by itself establish guilt and hold that: 21. Mr. Rai, lastly submits that from the evidence of the prosecution witnesses the worst which can be said against the appellant is that currency notes were recovered from him. That itself, in his submission, does not constitute the offence. He submits that to bring home the charge the prosecution is required to prove beyond reasonable doubt that the accused had demanded the illegal gratification and accepted the same voluntarily. In support of the submission reliance has been placed on a decision of this Court in C.M. Girish Babu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and our attention has been drawn to SCC para 18 of the judgment which reads as follows: (SCC p. 784) "18. In Suraj Mal v. State (D....
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....s earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder: (SCC p. 159, para 23) "23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder." (emphasis supplied) 16. The proof of demand of illegal gratification is the gravamen of the offence and in absence thereof, the presumption under Section 20 of the P.C. Act would not arise. Where prosecution evidence is inconsistent and material witnesses turn hostile, benefit of doubt must necessarily endure to the accused. 17. The High ....
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....against the guilt is possible" (Tanviben Pankajkumar case [Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156 : 1997 SCC (Cri) 1004], SCC p. 185, para 45). G.N. Ray, J. in Tanviben Pankajkumar [Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156 : 1997 SCC (Cri) 1004] observed that this Court should not allow suspicion to take the place of legal proof. (emphasis supplied) 20. Similarly, in Esher Singh v. State of A.P. (2004) 11 SCC 585, this Court observed: 38. .......We are aware of the fact that direct independent evidence of criminal conspiracy may not ordinarily and is generally not available and its existence invariably is a matter of inference except as rare exceptions. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC (Cri) 561] held that to prove criminal conspiracy there must be evidence, direct or circumstantial, to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirat....
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....est evidence. It was the case of the prosecution reflected through the complainant that a tape recorder was used for recording of the conversation of demand being made by the accused to the complainant. For the reasons best known to the investigating agency, this very material piece of evidence was not at all seized by the investigating agency and there is no explanation whatsoever which would be offered by prosecution. 26. We may refer to the judgment of this Court in Tomaso Bruno v. State of Uttar Pradesh (2015) 7 SCC 178, this Court held that: 28. The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 CrPC and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW 1, PW 12 and PW 13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, t....
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....n. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. (emphasis supplied) 31. In the State of Rajasthan v. Abdul Mannan (2011) 8 SCC 65, this court discussed the scope of interference by this Court in an order of acquittal and held that: "13. In coming to this conclusion, we are reminded of the well-settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the court must remember that the innocence of the accused is further re-established by the judgment....