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TMI Blog2024 (4) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... al court") in case titled as CBI V Arun Kumar Gurjar & another in CC no. 50/2012 arising out of RC bearing no. CBI/AC-I/RC-A0003/2010 dated 29.12.2010 registered by CBI, ACU (I), New Delhi under section 120B of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") read with section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "PC Act") and substantive offence under section 7 of the PC Act and for acquittal of the appellants. 2. The factual background of the case as appearing from charge sheet is that Pawan Aggarwal, Partner of M/s Madhya Pradesh Vanijya Company, 3958/2, Naya Bazar, Delhi (hereinafter referred to as "the complainant") made a written complaint on the basis of which present RC bearing no CBI/AC-I/RC-A0003/2010 was registered on 29.12.2010 by CBI, ACU(I), New Delhi under section 120B IPC read with section 7 of the PC Act and substantive offence under section 7 of PC Act against Arun Kumar Gurjar (Joint Commissioner of Income Tax, Range 29, New Delhi and hereinafter referred to as "the appellant Arun Kumar Gurjar") and Baljeet Singh (Inspector, Income Tax, Range 29, New Delhi/IAP-V, CIT (Audit) I, C.R. Building, New Delhi and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f independent witnesses namely, Jitendra Bhardwaj and Hukum Chand from House Tax Department, MCD, Central Zone, New Delhi by arranging a conversation of the complainant from his Mobile bearing no. 9311067502 with the appellant Baljeet Singh on his Mobile bearing no. 9873574750. The conversation between the complainant and the appellant Baljeet Singh was recorded with the help of digital voice recorder and transferred to a CD and a verification memo was drawn by Sh. Ram Singh. The appellant Baljeet Singh in said incriminating conversation asked the complainant to come to his office in Drum Shaped Building, IP Estate, New Delhi. ACU-I branch of CBI, New Delhi registered RC AC 1 2010 A 0003 after verification of the complaint against the appellants Arun Kumar Gurjar and Baljeet Singh. Ram Singh, Deputy Superintendent of Police, CBI, ACU-I, New Delhi was detailed as the 'Trap Laying Officer' (TLO) and it was decided to lay a trap against the accused officials of the Income Tax Department. The complainant produced Trap money equivalent to Rs. 2,00,000/- in Rs. 1000 denomination. The money was kept in an envelope and Phenolphthalein Powder (hereinafter referred to as "PP powder") was sme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the appellant Arun Kumar Gurjar who was sitting in the office of Commissioner of Income Tax at Drum-shaped Building, New Delhi. The appellant Arun Kumar Gurjar was brought to his office where the appellant Baljeet Singh reiterated his statement in the presence of independent witnesses and members of the trap team whereby confirmed that he accepted the bribe on the directions of the appellant Arun Kumar Gurjar who could not give any explanation for the allegations made by the appellant Baljeet Singh. The appellants Arun Kumar Gurjar and Baljeet Singh were taken into custody and a recovery memo mentioning the entire post-trap proceedings was prepared and the signatures of the trap team members were obtained on the recovery memo. The recording device previously given to the complainant was taken back and the incriminating conversation between the complainant and the appellant Baljeet Singh recorded during the bribe transaction was transferred to a CD. The washes of hands and clothes of the appellant Baljeet Singh were collected and preserved for the purpose of investigation, 2.6 The chamber of the appellant Arun Kumar Gurjar at Drum-shaped Building in New Delhi before the trap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant Arun Kumar Gurjar. There was no official order attaching the appellant Baljeet Singh to the office of the appellant Arun Kumar Gurjar. 2.8 The complainant during investigation was found to be user of mobile no. 9311067502 (Reliance) and mobile no 9873574750 (Vodafone) was being used by the appellant Baljeet Singh. The chemical examination report dated 12.01.2011 revealed that the exhibits showed positive tests indicating the presence of PP Powder. The Forensic Voice Examination Report indicated positive results regarding the comparison between the questioned voice of the appellant Baljeet Singh as recorded in the CD labeled Q-2 and his reference specimen voice contained in a CD marked as S-1. The expert opinion dated 31.03.2011 indicated that the order sheet in the case file of MPVC was written in the handwriting of the appellant Baljeet Singh which were signed by the appellant Arun Kumar Gurjar. 2.9 The investigation established that the appellant Arun Kumar Gurjar engaged in criminal conspiracy with the appellant Baljeet Singh and they committed criminal misconduct by soliciting a bribe of Rs. 5,00,000/- from the complainant, a partner in MPVC. The appellant Baljeet Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant never submitted complete information. He after taking the charge of the case also sought the same information from the complainant. The complainant was aware that the matter was a time bound matter and the complainant intentionally delayed the proceeding. A detailed questionnaire/show-cause was issued to the complainant's firm but the information was again not supplied. The false case was registered on 29.12.2010 to avoid the completion of the assessment of the proceeding on or before 31.12.2010 as income tax department could not have taken any action after expiry of limitation period i.e. 31.12.2010 in the assessment case in question. He never made any demand directly or indirectly and performed his duty with honesty and sincerity in the best interest of the department. The firm of the complainant was assessed and the penalty was imposed after the registration of this case. The appellant Arun Kumar Gurjar pleaded innocence and false implication by the complainant as the complainant was apprehending substantial financial liabilities/penalties and prosecution under Income Tax Act. The appellant Arun Kumar Gurjar further stated that enquiries were also made by him about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingredient of offence under section 120 B IPC read with Section 7 of PC Act against the appellants Arun Kumar Gurjar and Baljeet Singh beyond any reasonable doubt and convicted the appellants Arun Kumar Gurjar and Baljeet Singh for the offences under section 120 B IPC read with section 7 of the PC Act. The relevant portion of the impugned judgment is reproduced verbatim as under:- 34. In view of above discussion, testimony of witnesses, documents proved on record and the circumstances of the case it may be concluded that:- i) A-1 was posted as Joint Commissioner of Income Tax and A-2 as Inspector, Income Tax and this fact has not been disputed even by accused persons. ii) A-2 was assisting A-1 in the case of firm of the complainant even after the transfer. iii) Income tax assessment case of Madhya Pradesh Vanijaya Company, the firm of the complainant was pending before A-1 which was time bound case and the limitation was going to be expired on 31.12.2015. iv) Sanction for prosecution was duly granted by competent authorities for prosecution of A-1 and A-2. v) Complaint was lodged by complainant in CBI and the FIR was registered. vi) In pre trap proceedings PW 1, PW 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts there was no reason for A-2 to meet a litigant in the office of his senior officer (A-1) when A-1 himself was present in the same complex. It corroborates the story of prosecution. xii) A-l being the Joint Commissioner of Income Tax was the Assessing Officer of Income tax case of firm of PW 1 and A-2 was assisting him. In the' facts and circumstances of the case, A-2 could not demand bribe from PW 1 without instructions of A-1. A-2 himself was in no position to give any favour to firm of PW 1 without aid and help of A-1 which has clearly established the criminal conspiracy between A-1 and A-2 for demanding and accepting the bribe in lieu of favours in income tax assessment case of firm of PW 1. xiii) The essential ingredient of offence i.e demand of bribe by A-1 and A-2; acceptance of bribe by A-2 from PW 1 and recovery of bribe amount from the possession of A-2 is proved by prosecution beyond any doubt. The entire chain of facts and circumstances proves that demand and acceptance of bribe was by A-1 and A-2 in conspiracy with each other. A-2 has failed to give any convincing explanation about possession of bribe amount and therefore, he has failed to rebut presumption u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the Prevention of Corruption Act, 1988. In default of payment of fine the respective convicts shall further undergo simple imprisonment for four months. 28. All the sentences of imprisonment will run concurrently. Benefit of 428 Cr.P.C. be given to convict Arun Kumar Gurjar for the period from 29.12.2010 to 28.02.2011 and to convict Baljeet Singh for the period from 29.12.2010 to 25.02.2011 in respect of imprisonment already undergone by them. 29. In accordance with order on sentence, convict Arun Kumar Gurjar and Baljeet Singh be taken into custody and be sent to jail to undergo sentence. Personal bonds and surety bonds of both the convicts stands cancelled. Copy of the judgment, order on sentence, charge, report u/s 173 Cr.PC, statement of Pws and Dws and statement of accused ect be given to the convicts free of cost as per law. Custody warrants be prepared separately in accordance with the order of sentence. 6. The appellants being aggrieved by the impugned judgment and the impugned order filed the present appeals to set aside the impugned judgment and the impugned order. 6.1 The appellant Arun Kumar Gurjar challenged the impugned judgment and impugned order primaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution of offence under section 120 B IPC. The trial court has awarded excessive sentence to the appellant Arun Kumar Gurjar. The appellant Arun Kumar Gurjar to challenge impugned judgment and impugned order also raised other grounds and referred case law as detailed in grounds of appeal. It is prayed that the impugned judgment and impugned order be set aside. 6.2 The appellant Baljeet Singh challenged the impugned judgment and impugned order on grounds that they are based on surmises, assumptions and conjectures and contrary to the evidence. The prosecution has failed to prove any prior meeting of mind between the appellants Arun Kumar Gurjar and Baljeet Singh to prove charge under section 120B IPC. The prosecution has not led legally admissible evidence to prove demand, acceptance and recovery to establish offence under section 7 of PC Act. The testimony is not corroborated by any independent evidence which is inconsistent, contradictory and improved testimony. The sanctioning authority PW 19 S. M. Ashraf while granting sanction Ex. PW 19/A against the appellant Baljeet Singh did not apply its mind. The complaint Ex PW 1/A is a fabricated document making the entire prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Gurjar and Baljeet Singh without application of mind. iv) The complaint Ex. PW 1/A is a fabricated document making the entire prosecution case highly suspicious. v) There is an extraordinary delay in lodging the FIR. vi) The testimony of the complainant is unreliable contradictory and there are material contradictions, improvements and inherent deficiencies in the testimony of the complainant. vii). Hukum Chand PW 10 did not support the case of the prosecution. viii) The testimony of Ram Singh TLO PW 22 is full of contradictions, improvements and inherent deficiencies and he was an absolute interested witness. ix) Handing Over Memo Ex PW 1/E is a tainted document. x) The prosecution has not proved attendance of the complainant PW 1 for lodging of the complaint in CBI Office on 28.12.2010. xi) There are contradictions regarding attendance in the testimonies of PW 1, PW 10 and PW 18 in CBI office on 29.12.2010. xii) There is no evidence to prove demand at the spot. xiii) The alleged acceptance of any bribe by appellants Arun Kumar Gurjar and Baljeet Singh from complainant PW 1 is not proved. xiv) The washes of the clothes were fabricated/tampered. 7. Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand would not be sufficient to bring home the charge under Sections 7, 13(1)(d)(i) and (ii) of the Act. Hence, the pertinent question is, as to how demand could be proved in the absence of any direct evidence being let in by the complainant owing to the complainant not supporting the complaint or turning "hostile" or the complainant not being available on account of his death or for any other reason. In this regard, it is necessary to discuss the relevant Sections of the Evidence Act before answering the question for reference. 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" in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 evidence. 88.3. (c) Further, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 presumption of fact referred to above in sub-para 88.5(e), ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income Tax of Range 29, Drum Shaped Building, ITO in CIT X in July 2010 and used to sit in room no 207. The pending assessment of MPVC was transferred from Arju Goradia, Assistant Commissioner of Income Tax, CIT X PW 16 to the appellant Arun Kumar Gurjar by the order of Feroz Khan, Commissioner of Income Tax vide order dated 06.08.2010. The appellant Baljeet Singh was already posted as Inspector, Income Tax, Circle 29 (Range 29), CIT X in July 2010 and used to sit in room no 110. The appellant Baljeet Singh joined Circle 29 sometime in year, 2008 and was associated with the assessment of MPVC since then even before Arju Goradia PW 16 handled it. The appellant Baljeet Singh also participated in surveys of the family firms of the complainant PW 1 which was operating from office situated in Naya Bazaar which was also office of MPCV. The note sheets in MPVC's proceedings Ex. PW 1/K2 were written by the appellant Baljeet Singh as reflected from Ex. PW6/B. 9.2 The learned Senior Counsel further argued that the complainant was motivated by malice to implicate the appellants Arun Kumar Gurjar and Baljeet Singh to derail the ongoing scrutiny of the firms of the complainant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tober or 27.12.2010 and no verification was made in respect of the appellant Arun Kumar Gurjar in the presence of the independent witnesses. 9.5 The learned Senior Counsel for the appellant Arun Kumar Gurjar regarding original complaint argued that the prosecution did not produce original complaint brought by the complainant in CBI office and suppression of the original complaint and its substitution with a new document made the entire case suspect and relied on A. Sevi v. State of T.N., 1981 Supp SCC 43. It was further argued that non securing of the original complaint is a glaring error and relied on C. Prasnnakumar @ Papanna and others V State, Crl. A. No. 376/2006. 9.6 The learned Senior Counsel further argued that the prosecution has failed to establish conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh and pointed out that the trial court inferred conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh on four factors which are i) the appellant Baljeet Singh despite being transferred was assisting the appellant Arun Kumar Gurjar, ii) the appellant Baljeet Singh was not in individual position to grant any favour to the complainant PW 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 21.12.2010 addressed to the appellant Arun Kumar Gurjar seeking 15 days' time to produce the documents to make the assessment proceedings time barred under section 153 of the Income Tax Act, 196l which was rejected by the appellant Arun Kumar Gurjar. The complainant PW 1 was also having previous enmity with the appellant Baljeet Singh to falsely implicate him as the appellant was associated with the enquiry of firm M/s Radha Kishan Banarasi Das, a family firm of the complainant and the appellant Baljeet Singh during survey had heated arguments with the complainant. Hanish Bansal was handling proceedings on behalf of MPVC and if the appellants Arun Kumar Gurjar and Baljeet Singh wished to seek bribe, they could have demanded from Hanish Bansal. The complainant PW 1 did not mention about survey against M/s Radha Kishan Banarasi in his complaint Ex. PW 1/A. DW l Shiv Swarup Singh, Joint Commissioner of Income Tax also deposed about the said scuffle between the appellant and the complainant. 10.3 The learned Senior Counsel further argued that the appellant Baljeet Singh was assisting the appellant Arun Kumar Gurjar in concluding assessment proceedings in various cases which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an offence under section 7 of PC Act. The initial demand of Rs. 5 lakhs which was allegedly made in October 2010 is only mentioned in the complaint Ex PW 1/A which is contradictory to deposition of PW 1 in his chief examination. The complainant PW 1 introduced for the first time in his examination in chief dated 03.06.2013 that initially demand of Rs 1.5 lakhs was made by the appellants Arun Kumar Gurjar and Baljeet Singh. The investigating officer PW 23 Vijay Bahadur in cross examination states that he did not cross verify the version of complainant about his alleged meeting with the appellant Arun Kumar Gurjar in October 2010. The deposition of the complainant PW 1 has material contradictions, improvements and deficiencies and was an interested witness. The learned Senior Counsel regarding demand made in December, 2010 submitted that the allegation of demand of Rs. 5 lacs was introduced for the first time on 22/23 December 2010 and on 27.12.2010 remained uncorroborated hence the sole testimony of the complainant PW 1 cannot be relied upon to prove such demand beyond reasonable doubt. The complainant PW 1 admitted that no complaint was filed by him before any authority in Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ljeet Singh demanded illegal gratification of 5 lakhs in the month of October, 2010 from the complainant PW 1, the partner of MPVC for scrutiny and finalizing the income tax assessment without any hurdle. A notice dated 20.12.2010 was issued to MPVC when the complainant PW 1 refused to pay the bribe amount of' 5 lacs and when the complainant visited the office on 27.12.2010, the appellants Arun Kumar Gurjar and Baljeet Singh again demanded bribe of Rs. 5 lacs from the complainant PW 1 for finalization of entire matter without any hurdle and illegal gratification of Rs. 2 lacs was accepted by the appellants Arun Kumar Gurjar and Baljeet Singh on 29.12.2010 from the complainant. 11.2 The trial Court has passed the impugned Judgement after appreciation of entire evidence and law. The appellant Arun Kumar Gurjar was posted as Joint Commissioner of Income tax and the appellant Baljeet Singh was posted as inspector. The appellant Baljeet Singh was assisting the appellant Arun Kumar Gurjar in the case of firm of the complainant even after his transfer. The income tax assessment case of MPVC, the firm of the complainant was pending before the appellant Arun Kumar Gurjar which was time bou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out instruction of the appellant Arun Kumar Gurjar and the appellant Baljeet Singh was not in position to give any favour to firm of the complainant without aid and help of the appellant Arun Kumar Gurjar which has clearly established the criminal conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh for demanding and accepting the bribe in lieu of favours in income tax assessment case of firm of the complainant PW 1. 11.2.2 The learned Special Public Prosecutor further argued that essential ingredients of offence i.e. demand of bribe by the appellant Arun Kumar Gurjar, acceptance of bribe by the appellant Baljeet Singh from the complainant PW 1 and recovery of bribe amount from the possession of the appellant Baljeet Singh are proved by prosecution beyond any doubt. The appellant Baljeet Singh has failed to give any convincing explanation about possession of bribe amount and as such has failed to rebut presumption under section 20 of PC Act. The respective testimony of PW 1, PW 10, PWI8 and PW 22 and other PWs inspires confidence about truthfulness of material allegations. 11.3 The Special Public Prosecutor in respect of role of the appellant Baljeet Singh argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Baljeet Singh have demanded bribe in the month of October and the appellant Baljeet Singh called the complainant in the office of Income Tax on 29.12.2010. The appellant Baljeet Singh received bribe from the complainant in the office of appellant Arun Kumar Gurjar even after knowing the fact that appellant Arun Kumar Gurjar was present in the same building. During the search conducted in the office of appellant Arun Kumar Gurjar on 29.12.2015, a sum of Rs. 6 lacs was recovered from the office drawer of room no 207 of the appellant Arun Kumar Gurjar in the presence of witnesses which was corroborated from document Ex. PW 15/A i.e. search list dated 29.12.2010, testimonies of PW 15 Kamal Kapoor, Joint Commissioner, Income Tax and PW21 Raja Chatterjee, Inspector CBI who conducted search at room no. 207 post trap. PW2 Narender Nahata, an Income Tax Practitioner has deposed that he had not given any cash amount to the appellant Arun Kumar Gurjar. The appellant Arun Kumar Gurjar could not satisfactorily explained recovery of Rs. 6 lacs which reflected that he was indulged in corrupt practices. 11.5 The learned Special Public Prosecutor during arguments also controverted arguments advanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and therefore, certificate under section 65 B of the India Evidence Act, 1872 is mandatory requirement but certificate under section 65 B of the Indian Evidence Act, 1872 was neither issued nor produced before the court. The trial court after referring Anwar RV V P.K Bhaseer, Civil Appeal No 4226/2012 decided on 18.09.2014 by the Supreme Court of India observed that certificate under section 65 B of the Indian Evidence Act, 1872 was required from the person who prepared CD Q-l and CD Q-2 with the help of laptop/computer from DVR and the recorded conversation contained in CD Q-l and CD Q-2 is not admissible in evidence. 13.1 The trial court also observed that it is reflected from evidence that at some places the recorded conversation could not be properly identified by the complainant PW 1, many portions are not audible and some portions are not clearly audible and there are loud background voices in some portions. The trial court further observed that there is no finding in CFSL report proved by PW3 Amitosh Kumar, SSO-II (Physics), CFSL, CBI, New Delhi to eliminate the possibility of tampering in recorded conversation. The trial court under given facts and circumstances of pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was retyped in CBI office. The complainant PW 1 could not answer whether the complaint typed by Hanish Bansal was returned back to him by the CBI officers. The complainant PW 1 denied suggestion that the complaint Ex. PW 1/A was typed in CBI office according to the directions of the CBI officers by incorporating false facts. It is reflecting from the testimony of the complainant Ex. PW 1/A was not the complaint which was originally brought by the complainant in office of CBI and the complaint Ex. PW 1/A was retyped in office of CBI. 14.1 The learned Senior Counsel for the appellant Arun Kumar Gurjar argued that entire prosecution case is suspected as the prosecution did not produce original complaint which was substituted by a new document and relied on Sevi V State of T.N., 1981 Supp SCC 43. He further argued that the respondent/CBI did not secure original complaint which is a glaring error and relied on C. Prasnnakumar @ Papanna and others V State, Crl. A. No. 376/2006 decided on 13th March, 2013 by the High Court of Karnataka. He further argued that Hanish Bansal was dropped as a witness and an adverse inference under Section 114(g) of the Indian Evidence Act, 1872 must be dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case no importance can be given on this aspect of change of complaint. 14.5 The Supreme Court in Sevi and another V State of Tamil Nadu and another as cited by the learned Senior Counsel for the appellant Arun Kumar Gurjar observed as under:- According to the suggestion of defence the original First Information Report which was registered was something altogether different from what has now been put forward as the First Information Report and that the present report is one which has been substituted in the place of another which was destroyed. To substantiate their suggestion the defence requested the Sessions Judge to direct the Sub-Inspector to produce the First Information Report Book in the Court so that the counterfoils might be examined. The Sub-Inspector was unable to produce the relevant F.I.R. Book in Court notwithstanding the directions of the Court. The F.I.R. book, if produced, would have contained the necessary counterfoils corresponding to the F.I.R. produced in Court. The Sub-Inspector when questioned stated that he searched for the counterfoil book but was unable to find it, an explanation which we find impossible to accept. We cannot imagine how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be distinguished under facts and circumstances of present case. 15. The learned Senior Counsel for the appellant Arun Kumar Gurjar argued that it is a settled principle of law that delay in FIR without proper explanation must be viewed with suspicion since it gives an opportunity to deliberate and embellish and relied on Harilal V State of Chhattisgarh, 2023 SCC OnLine SC 1124. The learned counsel for the appellant Baljeet Singh also argued that there was delay in lodging FIR as alleged demand was made in October, 2010 but FIR was registered on 29.12.2010 on complaint dated 28.12.2010 as the assessment in respect of MPVC was going to be time barred and needed to be completed by 31.12.2010. The Special Public Prosecutor in argument defended observation made by the trial court in impugned judgment regarding delay in FIR. 15.1 The trial court in impugned judgment considered argument advanced on behalf of the appellants Arun Kumar Gurjar and Baljeet Singh that the appellants Arun Kumar Gurjar and Baljeet Singh as per complaint Ex. PW 1/A allegedly demanded bribe of Rs. 5 lacs from the complainant in October 2010 which he refused to pay and the bribe was again demanded by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in registration of FIR. There is no legal force in arguments advanced on behalf of appellants Arun Kumar Gurjar and Baljeet Singh that there was unexplained delay in registration of FIR. 16. The respective Senior Counsels for the appellants Arun Kumar Gurjar and Baljeet Singh pleaded argued malicious prosecution of the appellants Arun Kumar Gurjar and Baljeet Singh by the complainant PW 1. The learned Senior Counsel for the appellant Arun Kumar Gurjar argued that the complainant PW 1 was motivated by malice to implicate the appellant Arun Kumar Gurjar to derail ongoing scrutiny of various companies of the complainant including MPVC and one of the firm of the complainant namely M/s Radha Krishan Banarsi Dass was subjected to survey by the IT Department in January 2010 and paid tax liability/penalty of Rs. 74 lacs due to surrender of unaccounted stock of about Rs.2 crores. The appellant Baljeet Singh had a quarrel with the complainant PW 1 during survey conducted by IT department regarding M/s Radha Krishan Banarsi Dass. The complainant lodged false complaint Ex. PW 1/A to cover up his tax practices which were under scanner even before the appellant Arun Kumar Gurjar took charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the appellant Baljeet Singh at the time of survey of his firm in another income tax case and income tax assessment pertaining to MPVC was to be time barred on 31.12.2010 and due to this the complainant PW 1 was having motive against the appellant Baljeet Singh. The trial court after considering these arguments observed that the appellant Baljeet Singh had dispute with the complainant appellant Baljeet Singh at the time of survey of another firm for income tax assessment case. The appellant Baljeet Singh was assisting the appellant Arun Kumar Gurjar in the income tax assessment case of MPVC and was writing the order sheets. The trial court further observed that the appellant as per testimony of the complainant PW 1, the appellant Baljeet Singh was continuously in the touch in respect of demand of bribe. The trial court held that in ordinary course of events, it is hard to believe that the complainant PW 1 will go to the extent of lodging false case against the appellant Baljeet Singh on account of minor argument much prior to present case. The trial court further observed that as per record assessment case of MPVC was going to be barred on 31.12.2010 and held that it is not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly requested to stay the transfer of the appellant Baljeet Singh out of Range 29 as he was looking after the uploading of demand of Central Processing Centre which has to be completed by 31.12.2010 and other time barred matters vide letter dated 22.10.2010 Ex. PW 16/DA. Sh. M. P. Varshney Chief CIT also made similar request vide letter dated 27.10.2010 and Firoz Khan, CIT Delhi-10 vide letter dated 25.10.2010 Ex.PW 14/DX also requested for permission till 31.03.2011 as transfer of appellant Baljeet Singh would adversely impact the office work of Range-29. The operation of order of transfer of the appellant Baljeet Singh was stayed till 31.10.2010 vide Ex. PW 16/DA who was only providing limited clerical assistance to the appellant Arun Kumar Gurjar. The inference of conspiracy between the appellants Arun Kumar Gurjar and the Baljeet Singh cannot be based on the shaky ground that the appellant Baljeet Singh met the complainant PW 1 in the room no. 207 which belonged to the appellant Arun Kumar Gurjar. The charge of conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh cannot be deemed to have been established on mere suspicion and surmises or inferences which are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant in the room no. 207, office of the appellant Arun Kumar Gurjar without connivance of the appellant Arun Kumar Gurjar. The Special Public Prosecutor defended the impugned judgment related to criminal conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh and stated that the trial court has rightly appreciated the evidence and convicted the appellants Arun Kumar Gurjar and Baljeet Singh for the offence punishable under section 120-B IPC read with section 7 of PC Act. 17.3 The trial court in relation to criminal conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh observed as under:- 34. In view of above discussion, testimony of witnesses, documents proved on record and the circumstances of the case it may be concluded that:- i) A-1 was posted as Joint Commissioner of Income Tax and A-2 as Inspector, Income Tax and this fact has not been disputed even by accused persons. ii) A-2 was assisting A-1 in the case of firm of the complainant even after the transfer. iii) Income tax assessment case of Madhya Pardesh Vanijaya Company, the firm of the complainant was pending before A-1 which was time bound case and the limitation was going to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate through Superintendent of Police V Nalini & others, (1999) 5 SCC 253 discussed and summarized ingredients to constitute a criminal conspiracy which are as follows: i) Conspiracy is when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. ii) The offence of criminal conspiracy is an exception to the general law, where intent alone does not constitute crime. It is the intention to commit a crime and join hands with persons having the same intention. iii) Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. iv) Where in pursuance of the agreement, the conspirators commit offenses individually or adopt illegal means to do a legal act that has a nexus to the object of the conspiracy, all of them will be liable for such offenses even if some of them have not actively participated in the commission of those offenses. The Supreme Court in Yakub Abdul Razak Memon V State of Maharashtra, (2013) 13 SCC 1 followed these principles and reiterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed by the expert opinion are not itself sufficient to establish an agreement between the appellants Arun Kumar Gurjar and Baljeet Singh and prior meeting of mind. The observations as given by the trial court in the impugned judgment are based on the presumption and assumption rather the true appreciation of the evidence. There is no force in the arguments advanced by the Special Public Prosecutor for the Respondent/CBI that the facts as mentioned hereinabove are sufficient to constitute conspiracy between the appellant Arun Kumar Gurjar and Baljeet Singh. The respective learned Senior Counsels for the appellants Arun Kumar Gurjar and Baljeet Singh have rightly argued that there are no sufficient evidences to establish the conspiracy between the appellant Arun Kumar Gujjar and Baljeet Singh for demanding and accepting bribe as alleged by the complainant PW 1. The prosecution has failed to establish existence of conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh. The appellants Arun Kumar Gurjar and Baljeet Singh should not have been convicted for the offence punishable under section 120B IPC read with section 7 of the PC Act. 18. It is accepted legal propositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while in the statement under section 161 of the code Ex. PW 1/DA stated that Rs. 2.5 lacs was demanded by the appellant Baljeet Singh. The complainant PW 1 in examination in chief also changed his stance by deposing that the appellant Baljeet Singh has made initial demand of Rs. 1.5 Lacs which was increased to Rs. 5 lacs when he met the appellants Arun Kumar Gurjar and Baljeet Singh at the end of the October 2010 in the office of the appellant Arun Kumar Gurjar. The learned senior counsel further argued that the allegations of demand in October and December 2010 as made by the complainant PW 1 are vague, unclear and inherently improbable. The learned senior counsel argued that there is no proof of acceptance by the appellant Arun Kumar Gurjar and no recovery was affected from the appellant Arun Kumar Gurjar and he was not caught while taking any bribe from the complainant PW 1. The recovery memo PW 1/G does not make any conclusive or direct finding against the appellant Arun Kumar Gurjar. The recovery of Rs 6 lakhs from the drawer of the office of the appellant Arun Kumar Gurjar as alleged by the prosecution is totally irrelevant for the purpose of the present case. Ultimately, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the MPVC without any hurdle. The appellant Baljeet Singh has accepted illegal gratification of Rs 2 lakhs on 29.12.2010 from the complainant for himself as well as on behalf of the appellant Arun Kumar Gujjar and the said amount was recovered from the possession of the appellant Baljeet Singh. The complainant being the only witness of demand and acceptance has consistently supported the allegation and his testimony can't be impeached on these aspects which inspire confidence and find corroboration from circumstantial evidence. The recovery of bribe amount from the appellant Baljeet Singh was supported by the testimony of the complainant PW 1, Jitender Bharadwaj PW 18 and TLO Ram Singh PW 22. There was no motive on the part of the complainant PW 1 and PW 22 TLO Ram Singh to falsely implicate the appellants Arun Kumar Gujjar and Baljeet Singh and Hukum Chand PW 10 and Jitender Bhardwaj PW 18 were the independent witnesses. The prosecution has proved essential ingredients of offence i.e. demand of bribe by the appellants and acceptance of bribe by the appellant Baljeet Singh from the complainant and thereafter recovery of bribe amount from the possession of the appellant Baljeet Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... un Kumar Gurjar and met the appellant Baljeet Singh who demanded bribe of Rs. 5 lacs to settle the case which was to be paid to the appellant Arun Kumar Gurjar. The complainant PW 1 also deposed that when he met the appellant Baljeet Singh in October, 2010 then he demanded bribe of Rs.1.5 lacs which was increased to Rs. 5 lacs in the month of December, 2010. The appellant Baljeet Singh also demanded Rs. 5 lacs from the complainant PW 1 on 22/23 December and he requested the appellant Baljeet Singh to settle the case for lesser demand which was not considered by the appellant Baljeet Singh. The complainant again met the appellant Baljeet Singh in his office on 27.12.2010 in pursuance of the notice received from the office of appellant Arun Kumar Gurjar but the appellant Baljeet Singh did not agree to settle the case of MPVC for lesser demand of bribe. Accordingly the complainant lodged the complaint Ex. PW 1/A in the office of CBI. The complainant on 29.12.2010 reached at CBI office where he met TLO Ram Singh PW 22 where independent witnesses namely Jitender Bhardwaj and Hukum Chand were also present. The complainant PW 1 was instructed by TLO Ram Singh PW 22 to call the person who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant Arun Kumar Gurjar and Baljeet Singh demanded Rs. 5 lacs against the initial demand of Rs. 1.5 lacs. The appellants Arun Kumar Gurjar and Baljeet Singh again demanded Rs. 5 lacs to finalize scrutiny of the assessment of the MPVC in December, 2010.The prosecution also examined Hukum Chand who was a member of Trap team as PW 10 who could not identify properly the appellant Baljeet Singh as the person who was caught by the CBI officials. PW 10 Hukam Singh also deposed that the currency notes were already recovered by the CBI officials when he reached the room. The prosecution also examined Jitender Bhardwaj who was the member of trap team being the independent witness as PW 18 and TLO Ram Singh as PW 22. 18.5 The testimony of the complainant as PW 1 reflected that the appellants Arun Kumar Gurjar and Baljeet Singh demanded bribe of Rs. 5 lacs to finalize the scrutiny without any hurdle which the complainant PW 1 has refused to pay. The complainant PW 1 on 27.12.2010 also visited the office of the appellant Arun Kumar Gurjar where the appellants Arun Kumar Gurjar and Baljeet Singh have again demanded a bribe of Rs. 5 lacs to finalize the scrutiny. The complainant PW 1 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements about the prosecution case. 19. The complainant PW 1 made the complaint Ex. PW 1/A on 28.12.2010 with the CBI and on that day verification of the complaint was done by TLO PW 22 Ram Singh. The trial court already observed that the conversation for verification of the complaint recorded in CD Q 1 cannot be read into evidence. The respondent CBI after verification has registered the present FIR and thereafter, the post trapping proceedings were conducted. The PW 1 complainant only deposed that on 29.12.2010 he contacted the appellant Baljeet Singh through his mobile phone and told him that the complainant/PW 1 shall be visiting to his office at about 2.00 pm to pay Rs.2 lacs to settle the income tax case of MPVC which was accepted by the appellant Baljeet Singh. It is reflecting from this part of the testimony of the complainant PW 1 that the appellant Baljeet Singh did not make any demand of the bribe on 29.12.2010 but the complainant PW 1 himself stated that he would be coming to the income tax office to meet the appellant Baljeet Singh. The testimony of the complainant PW 1 also reflected that after completion of pre-trap proceedings at the CBI office, the trap team left t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant PW 1 is also not inspiring confidence. The trial court also raised doubts about credibility of testimony of the complainant PW 1. There is legal and factual force in arguments advanced by the learned Senior Counsels for the appellants Arun Kumar Gurjar and Baljeet Singh that the prosecution has failed to prove twin requirements of demand and acceptance of bribe which are necessary ingredients to prove offence under section 7 of the PC Act. The arguments advanced by learned Senior Public Prosecutor for the respondent/CBI are not legally convincing. 20. In view of the above discussion, the prosecution has failed to prove the acceptance of the tainted money by the appellant/Arun Kumar Gurjar and substantial doubts are appearing from the evidence led by the prosecution as to the guilt of the appellant Baljeet Singh. Accordingly, the appeals are allowed. The impugned judgment and impugned order passed by the trial court are set aside and appellants are acquitted for the offence for which they were charged. If the appellants Arun Kumar Gurjar and Baljeet Singh have deposited any fine in terms of impugned order, they are entitled for refund of fine. 21. The present appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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