Bombay High Court
Naveen Kumar Aggarwal vs The State Of Maharashtra And Anr on 14 October, 2021
Bench: S. K. Shinde
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
11-REVN-179-2020-.odt
NILESH SHIVGAN
SHIVGAN Date:
2021.10.14
15:06:06
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
REVISION APPLICATION NO.179 OF 2020
Naveen Kumar Aggarwal
Age: 44 yrs., Occupation:
Service,
Residing at: Flat No.410, SBI-III,
Old Income Tax Colony, Yashodharm,
Goregaon (East), Mumbai 400 063 ... Applicant
(Org. Accd.No.1)
Vs
1 The State of Maharashtra
2 CBI, ACB, Mumbai ... Respondents
...
Mr. Rajendra Shirodkar, Senior Advocate with Mr. Mihir
Ghag i/by Mr. Archit Sakhalkar for the Applicant.
Ms. Sharmila Kaushik, APP for the Respondent No.1-
State.
Ms. Ameeta Kuttikrishnan, for the Respondent No.2.
CORAM : SANDEEP K. SHINDE J.
DATE : OCTOBER 14, 2021.
JUDGMENT :
Rule.
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2 By consent, Rule is made returnable forthwith.
Respondents waive service.
3 This Revision Application challenges the order
dated 20th January, 2020 by which the learned Additional
Sessions Judge refused to discharge the applicant-accused
from the CBI Special Case No.54 of 2017.
4 Prosecution case is that, the applicant while
working as Income-tax officer in Mumbai, demanded bribe
Rs.10 Lakhs from the complainant Shri Prabhu Dayal
Kodwani to ignore all the disputed cash deposits and
discrepancy noticed with regard to the sale consideration of
a property in relation to the assessment proceedings of the
complainant's daughter Ms. Mysha Israr Ahmad Qureshi. In
the assessment proceedings, Ms. Mysha was represented
by Vinay K. Gupta, Chartered Accountant (Accused No.2).
On or around 20-21st December, 2016, Mr. Gupta informed
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the complainant and his wife that applicant demanded
Rs.10 Lakhs, to ignore the discrepancies and disputed cash
deposits, and if not paid, he would impose additional tax
and penalty, which could be around Rs.1 Crore and 81
Lakhs. On 27th December, 2016, complainant, his wife and
C.A., Mr. Gupta met the applicant in the income-tax office at
Piramal Chambers. According to the complainant, he
explained the queries raised by the applicant/income-tax
officer. However, applicant emphasised that transactions
reflected in the bank account would be taxable. As such, he
did not accept the explanation and called the complainant
on 29th December, 2016. Accordingly, the complainant, his
wife and C.A. visited the office of the applicant on 29 th
December, 2016 and submitted written reply in response to
the queries raised by the applicant. According to the
complainant, during the meeting, applicant demanded
Rs.10 Lakhs to ignore all the queries, after which demand
was scaled down to Rs.5 lakhs for ignoring the queries
except the cash transactions. Since the complainant did not
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want to bribe the officer, he filed written complaint on 29 th
December, 2016 with the Superintendent of Office CBI,
ACB, Mumbai. On 30th December, complaint was verified by
the Investigating Officer ('I.O.' for short) in the presence of
two pancha witnesses. Thereafter raiding party proceeded
to income-tax office at Piramal Chambers. I.O. instructed
complainant to record his conversation with the income-tax
officer and Chartered Accountant, Mr. Gupta in micro SD
Card with the help of DVR of Sony make. One pancha
witness although accompanied the complainant, he waited
outside the chamber of the applicant/officer. The
complainant recorded the conversation. transcript of the
recorded conversation, divulged, tacit approval of the
applicant to favour the complainant by ignoring certain
queries. transcript further divulged that applicant
consented to accept bribe money, which he demanded on
29th December, 2016 through Chartered Accountant. It
appears that the complainant had expressed difficulty to
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pay Rs.5,00,000/- at once and suggested that he would pay
first Rs.50,000/- to Mr. Gupta, C.A. Whereupon applicant
said, he may do so. Every event right from verification of
the complaint till recording the conversation was noted in
running panchanama (I) dated 30th December, 2016.
5 Thus, the transcript of the recorded conversation
reveals, implicit approval of the applicant to show favour in
assessment proceedings of complainant's daughter against
the reward of Rs.50,000/-, which was to be paid to Mr.
Gupta on behalf of the applicant.
6 After confirming the demand, pre-trap
panchanama (II) 30th December, 2016 was drawn at around
17.15 hours. Raiding party upon applying phenolphthalein
powder to Government currency notes proceeded to office
of the C.A., Mr. Gupta. As per instructions, complainant paid
Rs.50,000/- to Mr. Gupta and gave pre-decided signal
confirming delivery of bribe to Mr. Gupta. Whereafter, CBI
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team recovered tainted currency notes lying on the table of
Mr. Gupta. Thereafter, Mr. Gupta was asked to dip his left
hand fingers in the glass containing sodium carbonate
solution. On dipping his left hand finger, colour of sodium
carbonate solution turned into pink. Thus, transcript of the
conversation between the complainant and Mr. Gupta
recorded in micro SD Card imply that Mr. Gupta accepted
Rs.50,000/- from the complainant on behalf of the
applicant.
7 After completing investigation, final report has
been filed.
8 Applicant sought discharge; however, the learned
trial Judge declined to discharge him. Thus, feeling
aggrieved by the order dated 20th January, 2020, applicant
has approached this Court in its' revisional jurisdiction.
9 Mr. Shirodkar, the learned Senior Counsel for the
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applicant has taken me through the charge-sheet to
contend that there is no material, to even suggest that the
applicant had demanded illegal gratification nor there is
any material to show that bribe money so accepted by Mr.
Gupta was on behalf of the applicant. Mr. Shirodkar
submitted that material on record does not imply that
applicant attempted to obtain reward or bribe through C.A.
to show favour in assessment proceedings of complainant's
daughter. Mr. Shirodkar has taken me through the transcript
of conversation recorded on 30th December, 2016 to submit
the transcript does not disclose demand of gratification. He
would contend that the assessment order in question, was
passed on 29th December, 2016 and uploaded on the official
website on the same day. Therefore, it is argued that since
the assessment order was passed and uploaded on 29 th
December, 2016, story of prosecution that on 30 th
December, 2016, he demanded Rs.5,00,000/- from the
complainant to show favour in the assessment proceedings
was inherently improbable, absurd and ill-motivated. Mr.
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Shirodkar argued, the material on record does not establish
that tainted currency notes allegedly recovered from the
office of Mr. Gupta was in pursuance to alleged demand of
bribe money by the applicant on 29 th December, 2016. Mr.
Shirodkar would insist that the assessment order in
question was passed on 29th December, 2016 and this fact,
itself, renders the prosecution case illogical. It is, therefore,
argued that there is neither demand by the applicant nor
acceptance of it. Mr. Shirodkar submitted that it is well
settled position of law that demand for bribe money is sine-
qua-non to convict the accused for the offence punishable
under Sections 7, 13(1)(a) read with 13(2) of the Prevention
of Corruption Act,1988. Mr. Shirodkar submitted that even
assuming, Mr. Gupta has accepted tainted currency notes
from the complainant, however, that itself would not prove
charge against the applicant in absence of evidence to
prove demand of bribe money or to show that applicant had
voluntarily accepted money knowing it to be bribe. Mr.
Shirodkar, therefore, seeks discharge of the applicant from
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the case.
10 Per contra, the learned Prosecutor would contend
that complaint lodged on 29th December, 2016, was
descriptive and narrates the events and particulars of
discussion that was held in the meeting with the
complainant on 27th December, 2016 in the presence of the
C.A. The learned Prosecutor submitted that complaint was
filed on 29th December, 2016, disclosed that applicant had
demanded Rs.5 Lakhs to ignore certain queries and favour.
the complainant in the assessment proceedings of his
daughter. The learned Prosecutor would submit that
transcript of recorded conversation between the
complainant and the applicant and next conversation
between the complainant and the C.A. clearly reveals,
demand of bribe money and its acceptance through Mr.
Gupta. It is argued, order impugned does not suffer any
infirmity or material irregularity and/or illegality and thus,
this Court in its revisional jurisdiction may not appreciate
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the material on record and interfere in the impugned order.
11 For properly appreciating rival contentions, let me
reproduce Section 227 of the Code of Criminal Procedure,
1973. It reads as under:
"227. Discharge:- If, upon consideration of the
record of 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."
The law relating to the power of the Sessions Court to
discharge the accused is well settled in the case of State
of Maharashtra v. Priya Sharan Maharaj & Ors. AIR
1997 SC 2041; Niranjan Singh Punjabi v. Jitendra
Bijjaya AIR 1990 SC 1962. The law is; that 'at the stage
of framing of the charge, the Court has to consider the
material with a view to find out if there is ground for
presuming that the accused has committed offence or that
there is not sufficient ground for proceeding against him
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and not for the purpose of arriving at the conclusion that it
is not likely to lead to a conviction.'
12 In the case of Dilawar Babu Kurane v. State of
Maharashtra AIR 2002 SC 564, the Hon'ble Apex Court
has held that 'In exercising powers under Section 227 of
the Code, the settled position of law is that, the judge while
considering the question of framing the charges under the
said section has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out whether or
not a prima-facie, case against the accused has been made
out; where the materials placed before the Court disclose
grave suspicion against the accused, which has not been
properly explained, the Court will be fully justified in
framing a charge and proceeding with the trial.' Thus, if the
test of grave suspicion is not satisfied, accused has to be
discharged.
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13 In the light of law enunciated in the judgments
aforesaid, let me now indulge into sifting of evidence to
take note of total effect of the material collected by the
prosecution as against the applicant.
14 Applicant, herein, is income-tax officer.
Complainant's daughter's tax assessment proceedings were
before him. Complaint dated 29th December, 2016 refers to
bribe money, demanded by the applicant to ignore cash
credits. The allegations in the complaint were definite and
not vague. On primary evaluation of the transcript of the
conversation, as referred above, reveals demand of bribe
money and tacit approval to its' acceptance through C..A.
Moreover, transcript reveals, bribe was demanded in
presence of C.A. Material shows, tainted currency notes
were recovered from the C.A. on the same day. Thus,
transcript of conversation, confirms the material allegations
made in the complaint on 29th December, 2016.
Additionally, transcript of conversation with the C.A., also
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refers to the assessment order in question and demand of
bribe by the applicant in the meeting held in chamber of
the applicant on 29th December, 2016. Therefore, material
before me discloses, grave suspicion suggesting complicity
of the applicant in the crime in question. In my view,
contention of the applicant that assessment order was
passed and uploaded on 29th December, 2016 cannot be
said to be proper explanation to the grave suspicion
suggesting the applicant's complicity in the crime in
question. In the light of the material on record, this Court at
this stage do not come to conclusion that there is no
sufficient ground to proceed against the applicant.
Therefore, I do not find any merit in the application and as
such, it is liable to be dismissed and accordingly, dismissed.
However, the observations made in this order shall not
influence the trial Court during the course of the trial.
Application is dismissed.
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15 Rule is discharged.
16 It is made clear that observations made
hereinabobve be construed as expression of opinion only
for the purpose of revision and the same shall not in any
way influence the trial in other proceedings.
(SANDEEP K. SHINDE, J.)
Shivgan
