Arun Kumar Gurjar vs Central Bureau Of Investigation
2015 Latest Caselaw 6065 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment reserved on :17.8.2015
                                     Judgment delivered on :19.8.2015

+      CRL.A. 630/2015

       ARUN KUMAR GURJAR                                    ..... Appellant

                            Through       Mr.Sidhartha     Luthra, Sr.
                                          Advocate with Ms.Anupriya
                                          Yadav, Advocate.

                            versus

       CENTRAL BUREAU OF INVESTIGATION                     ..... Respondent

                            Through       Ms.Sonia Mathur, Addl.Standing
                                          Counsel.

+      CRL.A. 643/2015

       BALJEET SINGH                                        ..... Appellant

                            Through       Mr.Ramesh    Gupta, Sr. Adv.
                                          with Mr.Manish Tiwari and
                                          Mr.Anil Kumar, Advocates.

                            versus

       CBI                                                 ..... Respondent

                            Through       Ms.Sonia                Mathur,
                                          Addl.Standingh Counsel.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


Crl.M.B.Nos.7119/2015 & 7141/2015                            Page 1 of 10
 INDERMEET KAUR, J.

CRL.M.B. 7119/2015 IN CRL.A. 630/2015 CRL.M.B. 7141/2015 IN CRL.A. 643/2015

1. There are two applicants/appellants before this Court namely

Arum Kumar Gurjar and Baljeet Singh. They are both seeking

suspension of sentence and regular bail. Their appeals have been

admitted. They are convicts under Section 120 B of the IPC read with

Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred

to as the PC Act) as also for the substantive offence under section 7 of

the P.C.Act. For their conviction under Section 120 B of the IPC read

with Section 7 of the P.C.Act each of them had been sentenced to

undergo RI for a period of 4 years and to pay a fine of Rs.1 lakh in

default of payment of fine to undergo SI for 4 months. For their

conviction under Section 7 of P.C.Act each of them has been sentenced

to undergo same sentence with a fine of Rs.1 lakh.

2. Nominal roll of the appellants has been requisitioned. Arun

Kumar Gurjar as on date has undergone incarceration of 3 months. He

is presently on medical bail. The co-convict Baljeet Singh has

undergone incarceration of about 5 months.

3. The version of the prosecution is founded upon the complaint of

Pawan Kumar (PW-1) who had submitted a written complaint which

was to the effect that his income tax returns for the year 2008-09 were

under scrutiny and Arun Kumar Gurjar (hereinafter referred to as the

A-1) was the Joint Commissioner of Income Tax Department who was

his Assessing Officer and in connivance and conspiracy with Baljeet

Singh Income Tax Inspector (hereinafter referred to as the A-2) and

being a subordinate of A-1 had made an illegal demand of a bribe upon

him. This was to finalize the scrutiny of his income tax case without

any hurdle. A sum of Rs.5 lakhs had been paid by PW-1 to A-2 which

was under instructions of A-1 on 29.12.2010.

4. This is the gist of the version of the prosecution.

5. Arguments have been addressed respectively by both the senior

counsels appearing for both the parties.

6. On behalf of appellant Arun Kumar Gurjar arguments have been

addressed by Mr.Sidharth Luthra, Senior Advocate. His submission is

that the charge which had been framed against him is under Section 7 of

PC Act and Section 120B of the IPC read with Section 7 of the P.C.Act

but admittedly even as per the case of the prosecution the alleged

amount of Rs.2 lakh was received by A-2 and not by A-1. The only role

which has surfaced against A-1 is that he had issued a notice dated

20.12.2010 to PW-1 which was in the official capacity of A-1 and even

the prosecution has not been able to point out that there is anything

amiss in this notice. Submission is that the so-called independent

witness PW-10 and the shadow witness PW-18 are both hostile and

neither of them have supported the version of the prosecution qua the

alleged amount of Rs.2 lakhs having been received by the co-accused.

Even otherwise this amount was not received by A-1; A-1 was on the

third floor of the building at the time when the raid took place. It is also

not the case of the prosecution that A-1 was present at the time when the

acceptance of Rs.2 lakh was made. Attention has been drawn to the

version of PW-18. Submission being that the version of the prosecution

establishes that the offence had been committed on the first floor; the

office of A-1 is on the second floor but admittedly at that time he was

not in his room. The Telephonic conversation which relates to the pre-

trap and post-trap proceedings have not been read by the Trial Judge as

certification under Section 65 B of the Indian Evidence Act was not

available. Appeal is not likely to be heard in the near future. He be

granted suspension of sentence.

7. On behalf of A-2 arguments have been addressed by learned

senior counsel Mr.Ramesh Gupta. The same line of arguments have

been adopted by him. It has been highlighted that the shadow witness

(PW-18) and the independent witness (PW-10) were hostile and did not

support the version of the prosecution. PW-1 is an interested witness.

Apart from him it is only TLO (PW-22) who has been examined. The

electronic record which is the call detail record (CDR) has been

excluded in the absence of a certificate under Section 65B of the Indian

Evidence Act. Appeal is not likely to be heard in the near future.

8. Arguments have been refuted by the learned Standing Counsel for

the CBI. It is pointed out that each of the appellant has undergone

incarceration of only about 3 months and 5 months respectively and

keeping in view the proven facts which have been recorded by the

Special Court of competent jurisdiction at this stage no ground is made

out for suspension of sentence.

9. Arguments have been heard record has been perused.

10. Admittedly, in this case a written complaint had been given by

PW-1 in the office of the CBI. It has come in the evidence of PW-1 that

this written complaint was not proved and what was proved in the Court

was a typed written complaint and the person who had typed the

complaint was not summoned in Court. Attention has been drawn to

the judgment wherein the Court had noted that there are contradictions

and improvements on different aspects in the testimony of PW-1 but

when read as a whole it is inspiring. PW-10 had supported the version

of the prosecution in the pre-tap and post-trap proceedings and had also

admitted his signatures on the handing over memo and the recovery

memo but he was hostile as to whether the money was exchanged in his

presence or not. PW-18 was the shadow witness. He was also hostile

on the aspect of the money having been given to Baljeet Singh in his

presence. The Trial Judge had noted that both PW-10 and PW-18 were

working in the office of House Tax Department and they had no reason

to have falsely implicated the accused persons but they being hostile on

certain material aspects was noted.

11. CDR calls could not have been read but attention has been drawn

to para 34 sub para (vi) wherein the Trial Judge had noted that the oral

versions of PW-1, PW-18 and PW-22 are corroborated by the calls

details record. Submission being that yet in another part of the

judgment (para 13) the Trial Court had noted that in view of the absence

of certification under Section 65 of the Indian Evidence Act the

electronic evidence has to be ignored but at the same time has gone on

to use it for the purpose of corroboration.

12. A perusal of the evidence collected before the Trial Judge

evidences that Arun Kumar Gurjar was posted as Joint Commissioner in

the Income Tax Department and Baljeet Singh was the Inspector in the

Income Tax Department and subordinate to him. The fact that Baljeet

Singh stood transferred from this Department to another Department in

November, 2011 is an admitted fact. But as per the prosecution he

continued to deal with the company of PW-1.

13. The cases of Arun Kumar Gurjar and Baljeet Singh stand on two

different footings. Arun Kumar Gurjar was allegedly, the senior officer.

The role attributed to him is that he had made a demand and in

conspiracy with co-accused Baljeet Singh had accepted a sum of Rs.2

lakh which had been received by Baljeet Singh for himself and on behalf

of Arun Kumar Gurjar. The Call Details Record which relates to the

pre-trap and post-trap proceedings and would become an essential

element to establish conspiracy qua the accused is a piece of evidence

rejected by the Trial Judge being inadmissible in view of the provisions

of Section 65 of the Evidence Act. It has also come on record that the

office of Arun Kumar Gurjar was on the second floor. He was

admittedly not in the office when the sum of Rs.2 lakh was received by

co-accused Baljeet Singh.

14 Version of PW-18 (apparently hostile and thus relied upon by the

Trial Judge only for the purpose of corroboration) reflects that PW-1

had turned on the right side of the second floor but PW-18 did not see in

which room he had entered; further version being that at the staircase

some CBI officers were pushing one other person towards second floor

from the first floor; that person was taken to the room in second floor

which was near the staircase; the person who was caught was Baljeet

Singh.

15. This evidence as highlighted by learned senior counsel for the

appellant (Arun Kumar Gurjar) evidences that Baljeet Singh was

brought from the first floor to the second floor in the room of Arun

Kumar Gurjar where Arun Kumar Gurjar was not present. Version of

the prosecution is however that the offence had been taken place in the

office of Arun Kumar Guarjar. This Court also notes that the other

incriminating evidence qua Arun Kumar Gurjar is the notice dated

20.12.2010 issued by him. This notice was not out of context; it was

within his official capacity to call for documents as the case of PW-1

was under scrutiny.

16. However qua Baljeet Singh as rightly pointed out by the learned

counsel for the CBI there is no explanation for Baljeet Singh to have

continued to carry on the assessment proceedings of the company of

PW-1 when he admittedly stood transferred to another department in

November, 2010 and for which this Court finds that the appellant

Baljeet Singh had little to answer. He was also caught red handed.

17. Noting the above factual matrix and the distinctive role attributed

to the two applicants before this Court, this Court deems it fit to grant

suspension of sentence to applicant Arun Kumar Gurjar, pending his

appeal. He be admitted to bail on his furnishing a personal bond in the

sum of Rs.50,000/- with one surety of like amount to the satisfaction of

Jai Superintendant with condition that he shall deposit his passport with

the CBI and not leave the country without prior permission of this

Court; he shall remain present in person at the time when his appeal is

taken up for hearing and he shall intimate the CBI about change, if any,

of his address.

18. This Court at this stage is not inclined to grant suspension of

sentence to Co-convict Baljeet Singh as the role attributed to him is

different. His application is declined.

19. Needless to state that any observation made in this order will not

amount to a reflection on the merits of the case and will not be taken

into account at the time of final disposal of these appeals.

20. With these directions, applications stand disposed of.

Order dasti under signatures of the Court Master.

INDERMEET KAUR, J AUGUST 19, 2015/ndn