TMI Blog2024 (2) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... UTTA VERSUS STATE (GOVT. OF N.C.T. OF DELHI) [ 2022 (12) TMI 1490 - SUPREME COURT] also referred by the Special Public Prosecutor held that a person could be convicted based on circumstantial evidence for the crime of demanding a bribe or illegal gratification under the PCA, 1988. In the present case the material collected during the investigation by the respondent/CBI is not sufficient to frame the charge against the petitioner. Accordingly, the present petition is allowed. The impugned order is not legally sustainable. The impugned order dated 12.09.2019 whereby the petitioner was charged for the offences punishable under section 120B IPC read with sections 7 and 13 (1) (d) of PC Act and for the substantive offences under sections 7 and 13(1)(d) punishable under section 13 (2) of PC Act, 1988 is set aside. The petitioner stands discharged for the offences for which he was discharged. Petition allowed. - HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN For the Petitioner Through: M. Vijay Aggarwal, Mr. Yugant Sharma, Mr. Hardik Sharma, Mr. Pankush Goyal and Mr. Siddharth Bhardwaj, Advocates. For the Respondent Through: Mr. Jeevesh Nagrath, SPP with Mr. Arjun Gaur and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raids were conducted at his office and residence and large cash amount was misappropriated by Income Tax (IT) officers and subsequently demands were raised and there was acceptance of illegal gratification by Yogender Mittal, ADIT, IT Department, Jhandewalan, New Delhi (hereinafter referred to as the petitioner ).The accused disclosed that at the time of search he had offered illegal gratification to the petitioner from recovered money to help him in the matter. However, the petitioner demanded illegal gratification from the source other than the already recovered money for showing favor by preparing a favorable appraisal report within 12 months, showing that the accused had an income of Rs. 105 crores and adjust the recovered money as Income Tax. The petitioner also promised the accused that all frozen accounts would be opened if he could arrange money for him. The accused further disclosed that he had provided information about his flat no. 9 Hill view Apartments, Bhiwadi, Rajasthan to petitioner where he had kept Rs. 42-44 crores. It was agreed that 50% of the said cash would be kept by the IT officials for a favorable decision. The accused also revealed that petitioner had spo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Road, New Delhi. The firm was accepting deposits from the public at large by offering unrealistic high returns up to 20% per month up to six months on the principal amount followed by a subsequent round of the principal amount to the seventh month on the deposits by prudent and sourced based investments in the share market. The deposits were being collected in cash and interests were paid in cash. The group controlled by the accused was also making payment of commission in cash to various agents who were mobilizing the deposits. M/s Stockguru India was neither deducting TDS on the monthly interest paid to the investors nor on the commission being paid to their agents. The transactions were also not reflected in the regular books of accounts. The books of accounts were also not maintained. 3.1 The Directorate of Income Tax (Inv.) to investigate the allegations conducted search and seizure operation on 18.01.2011 and 19.01.2011 at the business and residential premises of M/s Stockguru India and its associates. During these searches besides incriminating documents, unaccounted cash of Rs. 34.69 crores was seized from various premises of M/s Stockguru India Group. The raids were con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nomination of the currency notes. In these conversations the petitioner was found explicitly insisting on minimum denomination of Five Hundred Rupees notes. The conversations also reveal petitioner was asking the accused for delivery on 09.02.2011 instead on 10.02.2011 as he had to go out for some personal work. The petitioner also made available the suitcases in which the money was to be carried and suggested that the delivery be made at night preferably when the chances of interception by the police are less. These conversations are substantiated by the statement of the accused recorded under section 164 of the Code where he has confessed about demand of bribe by the petitioner and having recorded some of the conversations. During investigation, an audio recording was recovered from a mobile phone/ hard disc which was seized from residence of the accused by EOW Delhi Police which revealed interaction between the petitioner and the accused at income tax office on 28.01.2011. The conversation disclosed that the petitioner was scolding the accused for not fulfilling his commitment despite ten days having been passed. The accused on his part was found explaining this delay to be on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d tower location of this number reveal that on 28.01.2011 the accused first visited petitioner in his office at Jhandewalan from where he returned to his house at Dwarka and thereafter went to Lajpat Nagar. The investigation has revealed that on this date, the accused delivered Rs. 5 crores to a person whose mobile number was given by the petitioner. The oral/documentary evidence proves withdrawal of Rs.7.5 Ulhas Prabhkar Khaire at Dwarka and thereafter that cash being kept in three suitcases which were loaded in the vehicle and delivered at first floor of house A- 84/A, Lajpat Nagar. It was further revealed that the house at Lajpat Nagar belonged to by Rakesh Singal, Rajeev Singal and Ravi Singal, who are in-laws of the petitioner. 3.6 During investigation, one video conversation reveals that on 03.02.2011 petitioner provided a mobile no. with four initial digits as 0890 to the accused and this number was of the person to whom the amount was to be delivered. The complete number was not audible in the recorded conversation as after mentioning the first four digit, the petitioner handed over his mobile to the accused for noting down the same. The investigation also revealed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith respect to the petitioner was obtained from the competent authority vide sanction order dated 27.06.2016 bearing No. FNO. C- 14011/9/2016-V L. 4. The trial court vide impugned order on charge charged the petitioner and the accused for offences punishable under section 120 B IPC read with Section 7 and 13 (1) (d) of PC Act and the petitioner was also charged for the substantive offences under section 7 and 13 (1) (d) punishable under section 13 (2) of PC Act, 1988. The trial court while passing impugned order considered following issues:- 33. The prosecution case is primarily based on: i.) Disclosure statement of Ulhas Prabhakar Khaire(A-1) dated 16.11.2012 recorded in case FIR No.152/11 PS Moti Nagar, ii.) Recovery of spy watch and hard disks in pursuance of said disclosure and contents of audio and video recordings iii.) Also on the statement of accused Ulhas Prabhakar Khaire (A-1) recorded u/s 164 CrPC before Magistrate on 19.12.2013 (in the present case during the investigation on his application u/s 306 Cr.P.C) iv.) Further on the statements of other witnesses recorded during the investigation. 4.1 The trial court with regard to disclosure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d caution. Therefore, it remains a matter of appreciation as to whether the confessional statement of Ulhas Prabhakar Khaire (A-1) recorded u/s 164 Cr.P.C is admissible and to what extent reliance is to be placed upon the same. 4.3 The trial court also observed and held as under:- 44. It is evident that accused Yogender Mittal (A-2) has been involved during the income tax raid on M/s Stockguru India at its office and residence and therefore A-2 was having dominion over the crucial documents and assets including bank accounts of M/s Stockguru India. It is also evident that huge recovery of cash was effected during the raid. The evidence about demand and acceptance of illegal gratification is coming forth and material on record is sufficient to proceed with the trial against accused persons. 45. The prosecution has been able to raise strong suspicion in the given facts and circumstances about the demand and acceptance of bribe which constitutes offences u/s 7 and 13 (1) (d) of Prevention of Corruption Act 1988. The ambit and scope of Section 7 of Prevention of Corruption Act is otherwise wide enough. 46. On the basis of material, I find that there is sufficient prima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner advanced oral argument and also submitted written submissions. The counsel for the petitioner argued present case is a case of no admissible evidence and the petitioner cannot be made to go through the ordeals of trial without any evidence and placed reliance on Suresh Budharmal Kalani V State of Maharashtra, 1998[7] SCC 337. The accused made disclosure statement on 16.11.2012 i.e., after more than 1 years and 9 months of the alleged demand. 7.1 The counsel for the petitioner argued that the trial court has relied upon inadmissible evidence as there is no evidence of transfer from spy-watch to hard-disk from which the video recordings were recorded and the same were recovered from Hard-disk which also showed modification and manipulation. As per CFSL Report spy watch was found to be empty. There is no certificate under section 65B of Indian Evidence Act, 1872 and the accused cannot be given notice under section 91 of the Code to produce certificate. The recording of video and audio conversation without the permission violates the Right to Privacy under Article 21. There are missing videos as different clips have gap between them. 7.2 The counsel for the petitioner f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed i.e. as per CBI defreezing of the bank accounts, not reporting the matter to the EOW and favorable IT appraisal report. The counsel further submitted that the bank accounts were not released by petitioner but another officer i.e. Hemant Gupta whose statement was recorded on the issue and verified by the CBI from Income tax department. CBI has alleged that the petitioner has de-freezed bank accounts on 20.01.2011 but the same was done after proper approval from the seniors namely Rama Kant Garg and S.K. Singh. The petitioner has not given any favourable IT appraisal report rather a negative appraisal report was given by the petitioner and also recommended Special Audit. The investigation revealed that release of bank account was proper therefore no criminal charge can be levelled. The counsel placed his reliance on P. S. Rajya V State of Bihar 1996 SCC (CRI.) 897 Radhe shyam Kejriwal V State of West Bengal and another, (2011) 3 SCC 581. 7.6 The counsel for the petitioner further argued that in the present case there is no recovery of the bribe amount from the petitioner which would prove the custody of the illegal gratification as alleged by the respondent and no case ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raming stage. Instead the evidence presented by the respondent/CBI should be to taken into consideration to determine whether there is any evidence against the petitioner that could prevent the discharge under Section 227 of the Code and necessitate the trial court to move forward with framing charges under Section 228 of the Code. 8.2 The Special Public Prosecutor for the respondent/CBI also argued that the petitioner has wrongly and falsely alleged that there is no evidence against him to frame charges against him for trial. It is evident that the accused and his wife Priyanka Saraswat Dev were partners in a firm who were engaged in accepting deposits in cash from the public at large by offering high returns up to 20% per month on the deposits. There were large cash deposits and payouts and there was no deduction of TDS. No proper books of accounts were maintained and the dealings were in cash. The deposits were collected in cash and interest was paid in cash. 8.3 The petitioner was posted as ADIT, Income Tax, Jhandewalan, New Delhi. The income tax raids were conducted on 18.01.2011 on the business and residential premises of the accused and M/s Stockguru India and its asso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gister maintained at the Income Tax Office, Jhandewala, New Delhi where the petitioner was posted at that time, showed that the accused visited the petitioner on 28.01.2011, 03.02.2011 and 09.02.2011. The call detail records (CDRs) and tower locations of mobile number 9650890005 which was being used by the accused also showed that on 28.01.2011, he visited the office of the petitioner at Jhandewalan and then returned to his house at Dwarka and thereafter went to deliver bribe of Rs. 5.00 crores at the address of father-in law of the petitioner in Lajpat Nagar, New Delhi. 8.4 The Special Public Prosecutor further argued that the petitioner refused to give voice samples for comparison during the investigation whereas accused voluntarily gave his voice samples. It is confirmed from CFSL reports that the audio and video recordings are continuous and neither tampered nor edited. The accounts of M/s Stockguru and the petitioner were defreezed and he withdrew monies from his account and absconded. The accused in his disclosure statement substantiated the demand and delivery of illegal gratification. The statements of the accused were recorded under sections 161 and 164 of the Code. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted above, charges have been correctly and legally framed against the Petitioner. It is not that the Trial Court is required to form an opinion, at the time of framing charge, on sifting the evidence that the evidence must lead to conviction, and only then the charges can be framed. The petitioner including any alleged issue of admissibility of evidence or alleged contradiction cannot be looked into at the stage of framing of charge. There is no inadmissible evidence or contradictions in the case. 8.8 The Special Public Prosecutor for the respondent/CBI argued that the allegations of the petitioner that even at the stage of framing charge, the electronic evidence in the form of audio recording dated 28.01.2011 and video recording dated 03.02.2011 and 09.02.2011 cannot be looked at or that the same is inadmissible evidence because the certificate under Section 65B of Indian Evidence Act, 1872 has not been filed is contrary to Law. It is argued that the stage of framing of charge does not contemplate the said certificate. The requirement of filing the certificate under Section 65B of Indian Evidence Act, 1872, will arise at the time when the said record is tendered in evidence an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of charge. ( 1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 3 [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14th December, 2007 regarding framing of charge observed as under:- It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. 9.3 The Supreme Court in Dipakbhai Jagdish Chandra Patel V State of Gujarat, (2019) 16 SCC 547 discussed law relating to the framing of charge and discharge and observed as under:- 15. We may profitably, in this regard, refer to the judgment of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227. 23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be transla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. ( See: Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217). 9.5 The Supreme Court in State of Gujarat V Dilip singh Kishor sigh Rao, 2023 SCC OnLine SC 1294 which is also relied on by the Special Public Prosecutor also observed as under:- 8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of chargesheet material only. 9. If the accused is able to demonstrate from the charge- sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovered cash to the petitioner but the petitioner also demanded extra money for extending favours, assured him of a favourable appraisal report and allowing operation of all his frozen bank accounts. Thereafter, the petitioner on being informed by the accused collected 42.44 crores from the flat bearing no 9, Hill View Apartment, Bhiwadi, Rajasthan and has agreed to take 50% of said cash amount for extending favours to the accused. The petitioner also made further demand of Rs. 30 crores from the accused and accordingly the accused delivered Rs. 5 crores on 28.01.2011 and Rs. 10 crores on 09.02.2011 to a person at Lajpat Nagar. 10.2 The accused on 03.02.2011 and 09.02.2011 video recorded his conversations with the petitioner by using a spy wrist watch and these recordings were recovered from the hard-disks seized by EOW, Delhi Police from house of the accused situated at Ratnagiri, Nagpur pursuant to disclosure dated 16.11.2012. During investigation besides these video recordings, an audio recording was also recovered from a mobile phone/Hard-disc seized from residence of the accused by EOW Delhi Police revealing interaction between the petitioner and the accused at Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inadmissible and cannot be relied on. It was further argued that disclosure statement recorded on 16.11.2012 in FIR bearing no 152/11 cannot be read and relied in context of present RC recorded by the respondent/CBI and relied on Noor Aga V State of Punjab and another, (2008) 16 SCC 417 wherein it was held that a statement given in one proceeding is not admissible as evidence in another proceedings. The counsel for the petitioner further argued that the accused made disclosure statement on 16.11.2012 after expiry of considerable period of 22 months from alleged demand of illegal gratification made on 28.01.2011 09.02.2011. The Special Public Prosecutor for the respondent/CBI after relying on Mohan Lal V State of Rajasthan, 2015 (6) SCC 222 argued that above noted argument advanced on behalf of the petitioner is contrary to law. It was held as under:- The words employed in Section 27 does not restrict that the accused must be arrested in connection with the same offence. In fact, the emphasis is on receipt of information from a person accused of any offence. Therefore, when the appellant-accused was already in custody in connection with FIR No. 95 of 1985 and he led t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the alleged offence, such statement can be proved against him. 11.3 It is reflecting that in pursuance of disclosure statement made by the accused on 16.11.2012 in FIR bearing no 152/11, spy watch and hard disks containing audio video recording of conversation between the petitioner and the accused were recovered which is a valid recovery within mandate of section 27 of the Indian Evidence Act, 1872. The delay if any in recording of disclosure statement under given facts and circumstances of present case does not invalidate recording of disclosure statement on 16.11.2012. Accordingly arguments advanced by the counsel for the petitioner are without any legal basis. 12. The counsel for the petitioner argued that video recordings are not admissible which were prepared by using spy watch and recovered from hard disks. He further argued that that there is no evidence of transfer of recordings from spy watch to hard disks. The properties of the clips showed modification/manipulations. CFSL Reports also reflect that spy watch was empty. The counsel for the petitioner further argued that no certificate under section 65 B of Indian Evidence Act, 1872 is filed. The special Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 Cr.P.C or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case discretion to be exercised by the court in accordance with law. 59. Subject to the caveat laid down in paras 52 and 56 above, the law laid down by these two High Courts has our concurrence. So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted, and relied upon in evidence. 12.1 In the present case disclosure statement of the accused was recorded on 16.11.2012 dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the petitioner that data was not validly transferred from spy watch to hard disks. 13. The counsel for the petitioner argued that in present case there is no admissible evidence and the petitioner cannot be made to go through the ordeals of trial without any evidence. He placed reliance on Suresh Budharmal Kalani V State of Maharashtra, 1998 (7) SCC 337. He further argued that the prosecution has failed to establish motive behind the alleged bribe. The petitioner has not released bank accounts but were released by another officer namely Hemant Gupta. Hemant Gupta also de-freezed bank accounts of the accused and its firm. The petitioner de-freezed bank accounts on 20.01.2011 after proper approval from the seniors namely Rama Kant Garg and S.K. Singh. The counsel for the petitioner further argued that the petitioner has not given favourable IT appraisal report rather Negative Appraisal Report was given by Petitioner. It is further argued that there is no recovery from the petitioner which would have proved the custody of the illegal gratification as alleged by the respondent which itself showed that bribe was not taken by the petitioner as illegal gratification. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Garden, New Delhi. The petitioner made demand for further bribe money from the accused. The Special Public Prosecutor to establish acceptance on part of the petitioner stated that Priyanka Saraswat Dev who is the wife of the accused on 22.01.2011 signed and delivered a cheque amounting to Rs. 7.50 crores bearing no 660814 dated 22.01.2011 drawn on SBI, Rajouri Garden and delivered to Dushyant Singh Tomar to withdraw Rs. 7.50 crores in cash. The accused on 28.01.2011 at night along with his employees i.e. Dushyant Singh Tomar who used to handle bank related work for the accused and Krishan Kumar who was driver of the accused delivered a sum of Rs. 5 crores in cash to the property bearing no. A-84 A, Lajpat Nagar II, New Delhi, which was owned by Rakesh Singal (PW-1) who is the father-in-law of the petitioner. The amount of Rs. 5 crores was carried in 3 suitcases in the white Mercedes car of the accused and PSOs of the accused were following him in another car. The Special Public Prosecutor also referred use of mobile phone by the petitioner to facilitate delivery. The Special Public Prosecutor to establish demand on part of the petitioner also relied on video recordings recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny public interest; or 13.4 The Supreme Court in Soundarajan V State Rep. by the Inspector of Police Vigilance Anti-corruption Dindigul, Criminal Appeal No. 1592 of 2022 decided on 17th April, 2022 after referring Mohan Singh V State of Bihar, (2011) 9 SCC 272; Union of India V Ex.-GNR Ajeet Singh, (2013) 4 SCC 186 and Neeraj Dutta V State (Govt. of NCT of Delhi), 2022 SCC OnLine SC 1724 observed as under:- 9. It is well settled that for establishing the commission of an offence punishable under section of the PC Act, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in case of Neeraj Dutta has reiterated that the presumption under section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof. 12. There is no circumstantial evidence of demand for gratification in this case. In the circumstances, the offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) have not been established. Unless both demand and acceptance are established, offence of obtaining pecuniary advantage by corrupt m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing or pecuniary advantage should have been received as a motive or reward. (iv) An agreement to accept or an attempt to obtain does not fall within Section 13(1)(d). (v) Mere acceptance of any valuable thing or pecuniary advantage is not an offence under this provision. (vi) Therefore, to make out an offence under this provision, there has to be actual obtainment. (vii) Since the legislature has used two different expressions, namely, obtains or accepts , the difference between these two must be noted. 45. On consideration of the aforesaid cases, the question framed for determination by the larger Bench is as under: (1) Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution? 66. Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression shall be presumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is for the Judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared hostile does not result in an automatic rejection of his evidence. Even, the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a hostile witness testimony if corroborated by other reliable evidence. 88. What emerges from the aforesaid discussion is summarised as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 88.6. (f) In the event the complainant turns hostile , or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed from residence of the accused by EOW Delhi Police revealing interaction between the petitioner and the accused at Income Tax Office on 28.01.2011. CFSL Report dated 05.05.2014 has confirmed that the audio recordings are continuous and without any tampering and CFSL Report dated 23.07.2014 has also confirmed that the video recordings are also continuous and without any tampering. The respondent/CBI also filed transcripts of these audio video recordings on record. The video conversations recorded on 03.02.2011 is containing in two files/clips with call duration of 20 minutes and 18.31 minutes which are carefully perused. The transcript of video recording with call duration of 20 minutes recorded on 03.02.2011 does not reflect either directly or by implication that the petitioner has demanded gratification. The transcript of video recording with call duration of 18.31 minutes recorded on 03.02.2011 does not reflect either directly or by implication that the petitioner has demanded gratification. The conversation recorded on 03.02.2011 with call duration of 18.31 minutes is only reflecting regarding arrangement of currency notes in denomination of Rs 1,000/- , arrangement of suitca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act. In this case the Supreme Court has also relied on P . Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another (2015) 10 SCC 152 wherein it was observed as under: 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 Section 7 or 13 of the Act would not entail his conviction thereunder. The Supreme Court in K Shanthamma V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Thus, the confession of a co- accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusions deducible from the said evidence. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co- accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. The Supreme Court in Dipakbhai Jagdish chandra Patel discharged the accused and held as under:- 50. Proceeding on the basis that it is a confession by a co- accused and still proceeding further that there is a joint trial of the accused and that they are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
