TMI Blog2022 (11) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... difference in evidence as to what was the exact conversation between P.W.11 and the appellant outside the office. When as per the evidence of the T.L.O. (P.W.13), it was decided at the pre-trap proceeding that after reaching the Income Tax Office, P.W.11 would proceed to the office of the appellant inside the office and P.W.6 would follow him closely, it is not known why P.W.11 called the appellant outside over phone and handed over the tainted money to him outside and who had given instruction to him to do that and when, after they left C.B.I. Office, Rourkela - P.W.11 has not stated that it was P.W.6 who accompanied him to the office of the appellant in a motor cycle and overheard the conversation between himself and the appellant and saw the transaction. In view of the available materials on records, it is very difficult to hold that the prosecution has successfully established that on the date of trap also, there was demand made by the appellant to P.W.11. When the appellant as Tax Assistant had no role in the refund of income tax to the assessee except processing the same to the I.T.O. Sri K.C. Barik (P.W.8), which he had already done as per the evidence of P.W.4, I am o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo rigorous imprisonment for one month for the offence under section 7 of the 1988 Act and to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo rigorous imprisonment for two months for the offence under section 13(2) read with section 13(1)(d) of the 1988 Act with a direction that both the sentences shall run concurrently. 2. P.W.11 lodged the written report before the Superintendent of Police, C.B.I., Bhubaneswar through D.S.P., C.B.I., Rourkela on 10.03.2012 stating therein that he submitted the I.T. return for the year 2011-12 of P.W.5 Smt. Sundarmani Singh, who was closely known to him at Income Tax Office, Ward No.4, Rourkela and a sum of Rs.17,862/- was claimed in that return as refund claim. On 09.03.2012 at about 3.00 p.m., he met the appellant in his office in Ward No.4 and asked about the refund claim. The appellant told him that on payment of Rs.8,000/- (rupees eight thousand) to him, he would process the file and send it to the Income Tax Officer. When P.W.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , labeled and marked as D and the trap party members signed the same. The tainted GC notes of Rs.8,000/- were kept in the left hand side shirt pocket of P.W.11 and instruction was given to him to handover the money to the appellant only on his demand. A pre-trap memorandum (Ext.12) was prepared at the spot in which all the witnesses signed. It was decided that P.W.11 along with P.W.6 would proceed to the Income Tax Office in a motor cycle followed by other team members. P.W.6 was instructed to act as overhearing witness and give signal to the trap party members after acceptance of tainted money by the appellant by brushing his hairs with fingers. It is the further prosecution case that the trap party members left the C.B.I. office at 10.50 a.m. and reached near Ayakar Bhavan, Udit Nagar, Rourkela at 11.15 a.m. and by that time, P.W.11 along with P.W.6 had already reached there. P.W.11 called the appellant over mobile phone and on getting his call, the appellant told him to wait outside. By that time, rest of trap party members had taken their positions in a scattered manner in the Ayakar Bhavan premises nearer to the place where P.W.11 was standing. After few minutes, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.O.IV and duly sealed and signed by the trap party members. The inner side of the left hand side front pant pocket of the appellant was washed in freshly prepared solution of sodium carbonate with water, upon which colour of the said solution turned to pink and the said pink colour solution was preserved separately in a clean and dry bottle vide M.O.V with proper seal and signed by the trap party members. The appellant was arrested for demanding and accepting illegal gratification from the complainant (P.W.11) and arrest memo was prepared. Post-trap memorandum (Ext.15) was also prepared wherein P.W.13 and others put their signatures. The rough sketch map (Ext.14) of the place of occurrence was prepared and the refund claim income tax return of P.W.5 for the assessment Year 2011-12 was seized as per seizure list (Ext.16) on being produced by the appellant. The refund claim income tax return of P.W.5 was given in the zima of K.C. Barik (P.W.8), the I.T.O. as per zimanama Ext.20. Other relevant documents were seized from the Income Tax Office, Rourkela in presence of witnesses. The residential house of the appellant was searched and search list (Ext.18) was prepared. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,862/- (rupees seventeen thousand eight hundred sixty two) was deducted towards income tax. P.W.2 Madhusudan Nayak was the Office Superintendent in the Office of Joint Commissioner of Income Tax, Rourkela from July 2006 to April 2013 and also a seizure witness. He stated that the appellant was posted as Tax Assistant in the Office of the Additional Commissioner of Income Tax, Rourkela Range, Rourkela as per the order vide Ext.6 and he was allotted the duty for Ward No.4, Rourkela vide order Ext.7 for processing the income tax returns. P.W.3 Asutosh Pradhan was the Asst. Commissioner in the Office of Commissioner of Income Tax, Sambalpur and he was the sanctioning authority who accorded sanction for the prosecution of the appellant vide sanction order Ext.8. P.W.4 Paresh Kumar Das was working as Tax Assistant, Office of Income Tax Officer, Ward No.4, Rourkela. He stated that his duty at that time was to receive the returns filed by the assessees and to make entries in the I.T. Return Register and the duty of the appellant was to receive the returns and process the same. He further stated that the return vide Ext.9 was received by the appellant and the entry relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant in the said office as per seizure list Ext.16. P.W.7 Dinesh Kumar Pradhan was the Nodal Officer, Bharti Airtel Limited, Bhubaneswar, who proved the call details of the mobile No.9556756160 as per Ext.19. P.W.8 Krushna Chandra Barik was working as Income Tax Officer, Ward No.4, Rourkela. He stated that on 12.03.2012 at the time of trap of the appellant by the C.B.I. team, he was present in the office room of the Joint Commissioner of Income Tax, Rourkela and at about 1 p.m., he was called by the C.B.I. Officer to his office room and one document pertaining to the income tax return of P.W.5 for the assessment year 2011-12 was given in his zima by the C.B.I. Inspector as per zimanama (Ext.20). He further stated that the C.B.I. Inspector asked him the reason as to why refund was not made in favour of the concerned income tax assessee to which he replied that the appellant had not placed the said matter before him after processing and it was the duty of the appellant as Tax Assistant to process the file in connection with refund of income tax. P.W.9 AVK Naidu was the Legal, Regulatory and Nodal Head for Idea Cellular Limited, Bhubaneswar for the State of Odisha. He stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts exihibited by prosecution: 5. The prosecution exhibited twenty six documents. Ext.1 is the Form No.16-A regarding Annual Tax Payable, Ext.2 is the seizure list dated 12.03.2012, Ext.3 is the attendance register starting from 01.12.2011 to 12.03.2012, Ext.4 is the seizure list dated 18.04.2012, Ext.5 is the transfer order No.11/2008 dated 30.04.2008, Ext.6 is the office order dated 08.06.2011 of Joint Commissioner, Ext.7 is the office order, Ext.8 is the sanction order, Ext.9 is the certified copy of IT Return of P.W.5, Ext.10 is the IT Return Register for the assessment year 2011-12, Ext.11 is the authorization letter, Ext.12 is the pre-trap memorandum, Ext.13 is the search memo, Ext.14 is the spot map, Ext.15 is the post trap memorandum (five pages), Ext.16 is the seizure list, Exts.17 and 18 are the search lists, Ext.19 is the call details of the mobile phone, Ext.20 is the zimanama, Ext.21 is the seizure list dated 12.04.2012, Ext.22 is the letter dated 16.04.2012, Ext.23 is the call details report, Ext.24 is the F.I.R., Ext.25 is the Chemical Examination Report and Ext.26 is the seizure list. Material Objects proved by prosecution: 6. Six material objects were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not in any way affect its case as he was not a material witness for the prosecution. The defence has signally failed to prove its plea in the standard of preponderance of probability regarding refund of any loan amount by B.D. Gupta to the appellant that too through the complainant on the relevant date. It was further held that the appellant had demanded and accepted bribe of Rs.8000/- (rupees eight thousand) from the complainant on 12.03.2012 for sending the application for payment of income tax refund claim amount of P.W.5. The evidence of P.Ws.6, 10, 11 and 13 has substantially remained unshaken. The documentary evidence on record, such as F.I.R., pre-trap memorandum, post-trap memorandum, seizure lists, C.E. report and hand wash and pant pocket wash of the appellant turning to pink colour lend sufficient corroboration to their version. The plea of the appellant that he received the money sent by B.D. Gupta towards refund of loan amount though the complainant is unbelievable and not acceptable. The oral as well as documentary and circumstantial evidence clearly proved beyond reasonable doubt that the appellant demanded and accepted illegal gratification of Rs.8000/- (rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in (2022) 86 Orissa Criminal Reports (SC) 345, C.M. Girish Babu - Vrs.- CBI reported in (2009) 43 Orissa Criminal Reports (SC) 48, Sidhartha Kumar Nath -Vrs.- State of Orissa (Vig.) reported in (2017) 68 Orissa Criminal Reports 510, B. Jayaraj -Vrs.- State of A.P. reported in (2014) 58 Orissa Criminal Reports (SC) 175, Punjabrao -Vrs.- State of Maharashtra reported in A.I.R. 2002 S.C. 486, Debananda Das -Vrs.- State of Orissa reported in (2011) 50 Orissa Criminal Reports 591, Niranjan Bharati Vrs.- State of Orissa reported in (2003) 26 Orissa Criminal Reports 274, State of Maharastra -Vrs.- Dnyaneshwar Laxman Rao Wankhede reported in (2009) 44 Orissa Criminal Reports (SC) 425, Shyam Sundar Prusty -Vrs.- State of Orissa reported in (2018) 70 Orissa Criminal Reports 733, Mohd. Iqbal Ahmed -Vrs.- State of Andhra Pradesh reported in A.I.R. 1979 S.C. 677, N. Vijay Kumar -Vrs.- State of Tamil Nadu reported in (2021) 82 Orissa Criminal Reports (SC) 67 and Khaleel Ahmed -Vrs.- State of Karnataka reported in (2015) 16 S.C.C. 350. Mr. Sarthak Nayak, learned Special Public Prosecutor, C.B.I. on the other hand supported the impugned judgment and contended that even though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in its entirety. The standard of burden of proof on the accused vis- -vis the standard of burden of proof on the prosecution would differ. The proof of demand of illegal gratification is the gravamen of the offence under sections 7 and 13(1)(d)(i) and (ii) of 1988 Act and in absence thereof, unmistakably the charge therefore, 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 of accused of the offence under sections 7 or 13 of the Act would not entail his conviction thereunder. The evidence of the complainant should be corroborated in material particulars and the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 20 is a rebuttable presumption, and that the burden placed on the accused for rebutting the presumption is one of preponderance of probabilities. 11. Adverting to the contentions raised by the learned counsel for the respective parties, since the appellant has not disputed the acceptance and recovery of the money in question, let me now carefully examine the evidence on record relating to the demand aspect. Demand prior to the date of trap: 11-A. P.W.11, the decoy and the complainant of the case when was asked by the learned Public Prosecutor about the appellant, has specifically stated that he did not know the accused who was present in the dock. In the chief examination, P.W.11 has stated that he submitted the income tax return file vide Ext.9 of P.W.5 on 08.09.2011 to one Rajeev Ranjan at Income Tax Office, Ward No.IV at Rourkela. He further stated that on 09.03.2012 when he visited the said office and approached Rajeev Ranjan regarding progress made for refund of income tax in favour of P.W.5, the latter told him that the said work would be done after payment of Rs.8,000/- (rupees eight thousand) within three days. He further stated that as he was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.W.5 was required to be submitted and he did not know about the gross income or net income of P.W.5 of any particular year or specifically for the assessment year 2011-12. He further stated that he could not say the amount of income tax paid by P.W.5 for the assessment year 2011-12 and the amount of money to which P.W.5 was entitled towards income tax refund. He further stated that he could not read English language. P.W.5 has stated in her chief examination that she had given the authorisation letter (Ext.11) in favour of P.W.11 authorising him to file her income tax return. She not only proved her signature but also signature of P.W.11 on Ext.11. However, in the cross-examination, she stated that she did not have much acquaintance with P.W.11 and that she had given the income tax return vide Ext.9 to B.D. Gupta for filing who was looking after the same and she had also given Ext.11 to B.D. Gupta and that she did not know as to who prepared Ext.11. Therefore, the evidence of P.W.5 that she had issued the authorisation letter (Ext.11) in favour of P.W.11 is not consistent. Even P.W.11 has also stated that B.D. Gupta typed Ext.11 by taking the help of somebody near the Court pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the said witness, accept in the light of other evidence on record, that part of his testimony which he found to be of creditworthy and act upon it. The portion of the evidence which is consistent with the case of the prosecution or defence, and are admissible in law can be used either by the prosecution or by the defence. ( Ref: Kili Lakhmanbhai Chanabhai Vrs.- State of Gujarat (supra), T. Shankar Prasad Vrs.- State of Andhra Pradesh : (2004) 3 Supreme Court Cases 753 ). In the case of Malti Sahu (supra), it is held that as per the settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution. In the case of Ramesh Prasad Mishra (supra), it is held that it is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had no discussion with anybody thereafter and came back from that place. P.W.6 stated that when the appellant came out of the office, P.W.11 asked him about the status of income tax refund matter of P.W.5 and then the appellant asked P.W.11 whether he had brought as per the previous discussion made on 9th. Then the appellant received the money and told P.W.11 that he would process the matter as soon as possible. Thus, there is difference in evidence as to what was the exact conversation between P.W.11 and the appellant outside the office. When as per the evidence of the T.L.O. (P.W.13), it was decided at the pre-trap proceeding that after reaching the Income Tax Office, P.W.11 would proceed to the office of the appellant inside the office and P.W.6 would follow him closely, it is not known why P.W.11 called the appellant outside over phone and handed over the tainted money to him outside and who had given instruction to him to do that and when, after they left C.B.I. Office, Rourkela. It is very difficult to accept that P.W.11 on his own deviated from the planning, changed the place and the manner in which he had to hand over the tainted money to the appellant. P.W.13, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss- examination. When P.W.4 stated in the cross-examination that Ext.9 was handed over to P.W.8 on the same day, the learned Public Prosecutor should have prayed for re-examination of P.W.8 in view of the provision under section 138 of the Evidence Act, which has not been done. P.W.8 has stated that there was no fixed time for processing the matter relating to income tax return in the year 2012 and that P.W.5 had not complained before him regarding any delay in refund of the income tax to her. Though P.W.8 has stated that it was the duty of the appellant as Tax Assistant to process the file in connection with refund of income tax and when the C.B.I. officer asked him the reason as to why refund had not been made in favour of P.W.5, he told that the appellant had not placed the said matter before him after processing, but such statement of P.W.8 is contrary to the evidence of P.W.4 who has stated that Ext.9 was handed over to the P.W.8 on the same day after its receipt. The seal of office of I.T.O., Ward - 4, Rourkela 12, Ayakar Bhawan, Rourkela dated 08.09.2011 is very prominent on Ext.9 which was its receipt date. P.W.4 has stated that Ext.9/1 is the endorsement and signat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .I.R. and he and B.D. Gupta discussed the matter and as per the instruction of B.D. Gupta, he lodged the F.I.R. Therefore, in view of the previous dispute between the appellant and B.D. Gupta, there was every probability that the allegation of demand as made in Ext.24 was not the version of the complainant (P.W.11) but it was lodged as per the instruction of B.D. Gupta. It is not in dispute that an accused is not supposed to establish his defence plea by proving it beyond reasonable doubt like the prosecution but by preponderance of probability. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstance upon which the accused relies. The burden can be discharged by an accused adducing cogent and reliable evidence which must appear to be believable or by bringing out answers from the prosecution witnesses or showing circumstances which might lead the Court to draw a different inference. The prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving its case beyond all reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is the appointing and removal authority for the Tax Assistant. In the case of Mohd. Iqbal Ahmed (supra), it is held that it is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (i) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (ii) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. In the first place, there is no question of the presumption being available to the Sanctioning Authority under section 4 of the Prevention of Corruption Act, 1947 because at that stage the occasion for drawing a presumption never arises since there is no case in the Court. Secondly, the presumption does not arise automatically but only on proof of certain circ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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