TMI Blog2022 (11) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory and not mandatory in nature. It is a settled position of law that even faulty investigation or motivated omissions and commissions will have no bearing on the merit of any case unless it has caused prejudice to the accused in his defence. In the present case, P.Ws.3 and 5 were independent witnesses who accompanied the trap team and have supported the prosecution case on the point of recovery of the tainted money. PW 5 has deposed that the accused had been demanding illegal gratification for issuing the clearance certificate. He has given in details of the pre trap procedure adopted by the trap team in para 2 and 3 of his deposition. He has also proved different material exhibits. In para 5 he has deposed that he along with Binod Kumar went to the table of accused Arun Kumar when the demand was made by him on which the amount was given to him. He has stated in detail about the events following the arrest of the accused. Against these positive statements one line in the cross-examination is that he cannot say who is the informant or what does he do cannot be read in isolation to deny the positive statements made by him. That the challenge on this ground does not succeed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poorva Singh, Advocate For the CBI : Mr. Prashant Pallav, DSGI Mr. Pradyumna Poddar, AC to DSGI 1. Instant appeal has been preferred against the judgment of conviction and sentence passed by 7th Additional Judicial Commissioner-cum- Special Judge (Vigilance) and C.B.I., Ranchi in R.C. Case No.24/93 under Section 7 and 13(2) read with Section 13(1)(d) of P.C. Act. 2. The prosecution case, in brief, is that on 20.12.1993, the appellant who was working as an Assistant in the Income Tax office, Ranchi demanded illegal gratification of Rs.100/- from the informant Binod Kumar for furnishing Income Tax Clearance Certificate. The informant complained about this to the S.P., C.B.I., Ranchi. The matter was verified and registered. After fulfilling necessary formalities regarding pre trap memorandum, the trap was laid and tainted currency notes was given to the appellant-accused, Arun Kumar, who accepted the same and he was apprehended by raiding party. 3. After investigation, charge sheet was submitted and the accused was put on trial and convicted and sentenced. 4. It is argued on behalf of the appellant that prosecution case has failed to prove the ingredients of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposed that there was large number of independent witnesses but they have not been arrayed as witness of the present case. III. It is submitted that Income Tax Commissioner was not competent to grant sanction which has been supported by D.W.1- A. Tirkey, Income Tax Officer. P.W. 1 has deposed in para 7 that after 1987, the competent authority for granting sanction, was Chief Commissioner of Income Tax. Thereafter, Commissioner, Income Tax, Ranchi had no power to sanction for prosecution. IV. Prosecution has failed to prove demand. P.W. 6- Dy S.P., C.B.I. in para 3 has deposed that independent witness and the complainant assembled in the C.B.I. officer on 21.12.1993 at about 10.00 a.m. This witness has not witnessed the demand part as admitted by him in para 11 of his deposition. 5. Further it is argued that P.W.5 Gopichand Rai, security officer of CCL who was member of the raiding party has expressed his ignorance as to who was complainant of the case and he failed to give the content of documents signed by him as he had not written it. It is submitted by the learned counsel that demand part has not been proved as verification report has not been brought on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documentary evidence has been led on behalf of the prosecution that Chief Income Tax Commissioner (CIT) was not competent to grant sanction for prosecution. I am of the view that learned Court below was in error to have not marked the relevant letter of the Govt of India as exhibit and the oral evidence that CIT was not the competent sanctioning authority cannot be accepted and therefore this ground taken to assail the Judgment of the learned Court below is not tenable. 9. The second question is whether the preliminary inquiry on receipt of the complaint was held as per norm? It is submitted by the learned DSGI that the statute does not prescribe any procedure or time-line for the verification. P.W.6 has deposed that he had thoroughly interrogated the complainant and having been satisfied, then the case was registered and there had not been any cross-examination or any suggestion on this point on behalf of the defence. 10. This Court is of the view that the proceedings of preliminary inquiry do not form substantive evidence and the object of enquiry is not to ascertain the veracity of the allegation being made, but to see whether cognizable offence is made out or not. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t impose any such requirement. Sunder Singh VS State Of U. P. 1956 0 AIR(SC) 411 that on the face of it, section 103 (Section 100) would not apply to the seizure of the shoes which were being worn by the accused at the time he was with the investigating police officer. The view has been reiterated in State Vs Navjot Sandhu (2005)11 SCC 600 it has been held that there is no inflexible proposition of law that in the absence of independent witnesses being associated with search, the seizure cannot be relied upon. But in that case closer scrutiny of evidence will be required. 12. There is no such requirement of having local witnesses. Here in the present case, P.Ws.3 and 5 were independent witnesses who accompanied the trap team and have supported the prosecution case on the point of recovery of the tainted money. PW 5 has deposed that the accused had been demanding illegal gratification for issuing the clearance certificate. He has given in details of the pre trap procedure adopted by the trap team in para 2 and 3 of his deposition. He has also proved different material exhibits. In para 5 he has deposed that he along with Binod Kumar went to the table of accused Arun Kumar whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand by the accused was concerned and no other witness was examined on the point then only on the recovery of tainted currency notes from the possession of the accused, conviction cannot be sustained. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. In so far as the presumption permissible to be drawn under Section 20 of the act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of P.C. Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the 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 ratio of V. Venkata Subbarao v. State, (2006) 13 SCC 305. 16. The above exposition of law by Hon ble the Supreme Court leaves no doubt what so ever that mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantive evidence, testimonial evidence, etc. 16. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word matter , and for that purpose, the definition of the expression of the words means and includes , meant to be applied for evidence, has to be imported to that of a matter as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar . Another felicitous exposition of law on Section 20 and principles of drawing presumption has been made in M. Narsinga Rao VS State Of A. P. (2001) 1 SCC 691. Their Lordship s observed, From those proved facts the court can legitimately draw a presumption that appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by the court that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from PW3, the presumption under Section 4(1) of the prevention of corruption act is immediately attracted. The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the courts below. 17. On the point of demand P.W7 Vinod Kumar the informant of this case has deposed that he was in need of income tax clearance certificate for applying for a contract floated by CCL. On 20.12.93 he went to the income tax department Ranchi and met the accused alone, who made a demand of Rs. 100 as bribe. He also informed that without the bribe amount the work will not be done. This matter was reported by him to the CBI and they filed a complaint there. In para-8 he deposed that after he had submitted the application supported by affidavit for the income tax clearance certificate to the accused, he enquired as to whether the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Exhibit 3. PW 5 was posted as a security guard is a witness to the trap man has deposed in para five that in pursuance to the demand he gave the amount to the accused. In his cross-examination he has expressed his ignorance about the identity of the informant or the accused he had not read the complaint himself. PW 6 is SP CBI was posted as Dy. S.P. at the relevant time at Ranchi office on 21.12.93. The complaint was handed over to him by the SP CBI on that day which was submitted by Binod Kumar alleging the demand of illegal gratification of Rs.100 by Arun Kumar Asst. Income Tax Ward No.1 for issuing income tax clearance certificate. He thoroughly interrogated the complainant and came to the conclusion that allegation against the accused was true. Accordingly, the matter was reported to the then SP and as per his instruction the case was registered. The trap team was constituted on the same day at about 10 AM. After preliminary enquiry the written complaint was read over to the team. After completing the pre-trap formalities the raid was conducted by the trap team members. Both the witnesses and the complainant left CBI office at about 11.20 a.m. for the place of occurre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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