Delhi High Court
Yogendra Mittal vs Central Bureau Of Investigation on 15 January, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: October 04, 2023
Decided on: January 15, 2024
+ CRL.M.C. 6183/2019 & CRL.M.A. 41717/2019
YOGENDRA MITTAL ..... Petitioner
Through: M. Vijay Aggarwal,
Mr. Yugant Sharma,
Mr. Hardik Sharma,
Mr. Pankush Goyal and
Mr. Siddharth Bhardwaj,
Advocates.
V
CENTRAL BUREAU OF
INVESTIGATION ..... Respondent
Through: Mr. Jeevesh Nagrath, SPP
with Mr. Arjun Gaur and
Mr. Rajat Gupta, Advocates.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present petition is filed under section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the "Code") on
behalf of the petitioner for Setting aside the order dated 12.09.2019
(hereinafter referred to as "impugned order") passed by the court of
Special judge CBI (PC Act)-02, Rouse avenue Courts, Delhi
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(hereinafter referred as "the trial court") passed in CBI V Ulhas
Prabhakar Khaire and another bearing Court Case no 312/19
arising out of RC bearing no RC-ACl 2013 A000l registered under
section 120-B IPC read with sections 7 & 13 (2) and section 13 (1)
(d) of Prevention of corruption Act, 1988 (herein after referred to as
"PC Act") whereby the trial court passed an order on charge and also
framed charges against the petitioner.
2. The facts of the case are that a written complaint dated 27.11.2012
was made by Raj Kumar Saha, Inspector, EOW, Delhi Police and
was forwarded by. K.K Vyas, Deputy Commissioner of Police, EOW
Crime Branch, Delhi vide letter No. 2540/SO-DCP/EOW seeking
necessary legal action regarding illegal gratification demanded by
and paid to senior Income Tax Officers. FIR bearing no 152/2011
dated 29.06.2012 was registered at P.S Moti Nagar, New Delhi, and
pursuant to the alleged disclosure statement of Ulhas Prabhakar
(hereinafter referred to as "the accused") made in FIR baring no
152/2011, RC- AC1 2013 A0001 dated 09.01.2013 was registered by
CBI, AC-1, New Delhi under section 120-B IPC and under sections
7, 12, 13(2) read with section 13(1) (d) of PC Act.
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2.1 It is alleged that the accused namely Ulhas Prabhakar @
Lokeshawar Dev along with his wife Priyanka Dev were running a
firm under name and style of M/s Stock Guru India having its
registered office at 58/A-1, Lisa Tower, Rama Road, Moti Nagar,
Delhi, They had guaranteed to provide a 20% return per month up to
six months on the principal amount followed by a subsequent refund
of the principal amount to the seventh month, by prudent and sourced
based investments in the share market. However, instead of refunding
their investments as promised, the accused and Priyanka Dev shut
down their office and ran with the collected money.
2.2 The accused and his wife Priyanka Dev Jain were arrested on
10.11.2011.The accused during the course of custodial interrogation
on 18.11.2012 disclosed that on 18/19.01.2011 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
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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 spoken to
other IT officials namely, Mr. Garg and Mr. S. K Singh who were
also appraised about the offer of the accused. Mr. Garg also came to
the flat in Dwarka where the raids were being conducted and told the
accused to cooperate with the petitioner and also assured him that
things would be sorted out. The petitioner took the keys of flat
situated in Bhiwadi and handed them over to one of his associates
who was instructed to bring bags containing cash lying in the said
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flat. After a few hours, the accused received a call that the bags have
been found. On the same day, 2-3 bank accounts related to the
accused were de-sealed and all bank accounts of the accused were de-
sealed within a week. The accused alleged that instead of returning
50% of the cash recovered from Bhiwadi, the petitioner made further
demand of Rs.30 crores to settle the matter. The accused at the
instance of petitioner delivered Rs.5 crores on 02.02.2011 to an
address in Lajpat Nagar and also paid second installment of Rs.10
crores on 08.02.2011 at the same place.
2.3 The accused further disclosed that he after paying Rs.5 crores
suspected intentions of the petitioner and therefore recorded the
conversations with the petitioner, using a camera wrist watch which
were downloaded and stored in two separate hard disks. Thereafter
on basis of disclosure statement of the accused, two hard disks, one
of Toshiba bearing no. XOCPT5BOTIOMS and another hard disk of
WD called my passport, serial no. WXP1AB042671 and a spy watch
having capability of video recording were recovered on 19.11.12
from his residence of the accused situated at R 100, Zadgaon, MIDC
Residential Area, Ratangiri, Maharashtra and from these hard disks
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various video files were recovered. These videos indicate that the
recovered cash to the tune of Rs. 42-44 crores was misappropriated
by Income Tax officers and further bribe of Rs.30 crores was
demanded and out of which Rs.15 crores were obtained by the
petitioner through an unknown person. Accordingly, RC bearing no.
RC ACl 2013 A 0001 Dated 09.01.2013 was registered by CBI, New
Delhi under Sections 120-B IPC & Sections 7, 12, 13(2) read with
13(1) (d) of PC Act.
3. The investigation revealed that the accused Khaire and his wife
Priyanka dev were engaged in partnership firm under name and style
of M/s Stockguru India having registered office at 56/A-l. Liza
complex, Rama 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
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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 conducted by a team led by the petitioner, the then ADIT,
Unit-VI (I) Income Tax, E-2, ARA Centre, Jhandewalan, New Delhi.
The petitioner before conduction of raids threatened the accused by
referring the case to EOW, Crime Branch, Delhi Police as his
activities related to Multilevel Marketing (MLM) and he was holding
huge cash. The accused in pursuance of a criminal conspiracy with
petitioner offered a part of the recovered cash to petitioner in order to
save himself and the petitioner made demand of extra money for
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extending favour and assured the accused of a favorable appraisal
report and allowing operation of all his frozen bank accounts. The
accused informed the petitioner about Rs. 42-44 crores which were
lying at his Flat No. 8, Hill View Apartment, Bhiwadi Rajasthan. The
petitioner for extending favor to the accused has agreed to take 50%
of the cash lying in the said flat and also obtained the keys of the flat
from the accused and got the cash transported. Thereafter, on the
same day letter for defreezing of the bank accounts in SBI, Rajouri
Garden, New Delhi was issued.
3.2 It was surfaced that during subsequent visits to the office of the
petitioner, the accused requested for return of 50% of the cash found
at his Bhiwadi Flat but the petitioner made a further demand of Rs.30
crores from the accused. Consequently, the accused on 28.01.2011
delivered Rs. 5 crores in three suitcases and Rs. 10 crores on
09.02.2011 to a person at an address in Lajpat Nagar provided by
petitioner. The mobile number of the person to whom this cash was
handed over was also provided to the accused by the petitioner. The
accused on 03.02.2011 and 09.02.2011 recorded his conversations
with the petitioner by using a spy wrist watch. These recordings were
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recovered from the hard disks seized by EOW, Delhi Police, from his
house situated at Ratnagiri Nagpur pursuant to his disclosure dated
16.11.2012. The recordings reveal that the explicit demand of bribe
was made by the petitioner from the accused. The petitioner was also
found discussing about suitcase in which the money was to be
carried, the specific denomination of the currency, time of delivery
and the risk involved in carrying huge cash of money in small vehicle
etc. The video clips also reveal conversation between the petitioner
and the accused wherein they were found discussing about the
amount of money and the denomination 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
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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 account of problem in
withdrawing huge cash and promised to fulfill his part of the deal that
very day. The petitioner was also found asking the accused not to talk
to him through telephone numbers registered in the name of M/s
Stockguru India. It was also found that on 28.01.2011, the accused
used mobile no. 9650890005 belonging to his employee Surinder
Kumar while making delivery of Rs. 5 crore at Lajpat Nagar, New
Delhi.
3.3 The accounts bearing number 31311706229, 31532470958 and
other account of M/s Stockguru India with SBI, Rajouri Garden, New
Delhi which were frozen on 18.01.2011 were defreezed on
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19.01.2011 through Hemant Gupta, the then ADIT who happens to
be close relative of the petitioner. The petitioner neither informed nor
obtained approval from his superiors for allowing operation of these
accounts with SBI, Rajouri Garden. It is important to mention that
these accounts were frozen on 18.01.2011 and were allowed to be
operated on next day i.e. 19.01.2011 when the searches were still
conditioning whereas the other bank accounts were defreezed on the
basis of request letter dated 20.01.2011 obtained through Sh. Sanjay
Gupta, partner of M/s Sanjay Satpal & Associates, Chartered
Accountants and Authorized Representative of M/s Stock Guru India
(SGI). The petitioner, while moving proposal for obtaining approval
for defreezing these bank accounts, willfully concealed the fact that
accounts no. 31311706229, 313532470958 and other accounts of M/s
Stockguru India with SBI, Rajouri Garden, New Delhi had already
been defreezed by Hemant Gupta on his instructions on 19.01.2011.
3.4 It was also surfaced that the investigation pertaining to some of
the accounts of the accused, his company and family members
revealed that though approval for defreezing of these accounts was
obtained by petitioner in a single proposal on 20.01.2011, the
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defreezing orders were issued in phases. The bank accounts which
were defreezed had sustainable balance and funds were withdrawn
through instruments/ cash after the defreezing. The investigation
reveals that after defreezing of the Bank account, the accused
withdrew funds and absconded but was arrested by the Delhi Police
on November 2012.
3.5 The phone no. 9650890005 which was used by the accused on
28.01.2011 was found to be issued in the name of Surender Kumar
who was an employee of M/s Stock Guru India. The CDRs and 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
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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 this mobile number
8909294658 was found saved as "Papa Aircel" in the phone of
petitioner. The investigation revealed that while he was going to
deliver an amount of Rs.5 crores on 28.01.2011, the accused had
conversation with this number from mobile of one of his employee
Surender. It was also revealed that this number is issued in the name
of Wahid Ahmad who is resident of Moradabad and was purchased
on the basis of the fake ID Proof.
3.7 The petitioner also had one mobile No. 7669025834 (Reliance
UP West) in his Samsung mobile handset having no. 9310010774
saved as "Papa Rahul". CRDs of mobile No. 9650890005 which
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were used by the accused dated 28.01.2011 show that at 15.21.02
hrs., before leaving his house at Dwarka Ulhas Prabhakar Khaire had
called on mobile No. 7669025834 which was likely being used by the
petitioner or someone close to him. It is revealed during investigation
that the number has been purchased from Moradabad in the name of
Gulfija Jamal who denied having purchased the same. It was further
revealed that the in-laws of petitioner belong to Moradabad. The
CDR of mobile no. 9650890005 showed calls having been made by
the accused to mobile no. 7669025834 at 19.16.53 hrs when he was
at Lajpat Nagar and finally at 19.46.16 hrs after delivery of the
amount.
3.8 It is also mentioned in the chargesheet that the petitioner did not
cooperate during investigation and refused to give his voice samples
for comparison with the questioned recorded conversation. The
accused gave his voice samples voluntarily. The CFSL vide its report
dated 05.05.2014 has confirmed that the audio recordings recovered
on his disclosure are continuous and without any tampering. CFSL
vide report dated 23.07.2014 has also confirmed that the video
recordings are also continuous and without any tampering. The
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statement of the accused was recorded under section 164 of the Code
on 19.12.2013 wherein he stated about the illegal gratification taken
and demanded by petitioner.
3.9 The petitioner and the accused were implicated for the offences
punishable under section 120B IPC read with Section 7, 12 and 13(2)
and section 3(1) (d) of the PC Act. The chargesheet after conclusion
of investigation under sections 120B IPC read with Section 7, 12 and
13(2) read with 13(1) (d) of the PC Act has already been filed. The
sanction for prosecution required under section 19 PC Act with
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:
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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 statement of the accused
held as under:-
34. So far as the disclosure statement of Ulhas Prabhakar
Khaire (A-1) dated 16.11.2012 is concerned, as per the
defence arguments, same is inadmissible u/s 24 and 25 of
Indian Evidence Act 1872. This argument cannot be
accepted particularly at this stage as disclosure statement
led to the recovery of material evidence in the form of spy
watch and hard disks and therefore Section 27 of Indian
Evidence Act comes into play. Accordingly, it cannot be
concluded that disclosure statement dated 16.11.2012 of (A-
1) is completely inadmissible. The recovery of spy watch
and hard disks containing audio/video recordings and
conversations between Ulhas Prabhakar Khaire and
Yogender Mittal is a matter of evidence to be proved by the
witnesses of recovery. The contents thereof has to be
evaluated during the trial as to what extent they are
incriminating in nature. However, on prima facie
assessment, I find that audio video recordings contain
incriminating material with respect to the delivery of illegal
gratification by accused Ulhas Prabhakar Khaire at the
instance of accused Yogender Mittal. It would also be pre
mature to hold that these articles are inadmissible in
evidence for want of certificate u/s 65 B of Indian Evidence
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Act. The alleged recovery has been made from the house of
accused (A-1) in pursuance of his disclosure statement and
reliability of the piece of evidence is certainly a matter to be
determined after the conclusion of evidence.
The trial court about the necessity of certificate u/s 65 B of
Evidence Act referred Shaffhi Mohamimiaci V The State of
Himachal Pradesh, SLP (Crl.) no. 2302 of 2017 decided by the
Supreme Court.
4.2 The trial court regarding confessional statement under section
164 of the Code observed as under:-
41. The evidentiary value of a confession depends upon its
voluntary character and the precision with which it is
reproduced. The requirements and safeguards while
recording confessional statements are of great importance,
but no statement u/s 164CrPC can be discarded on the face
of it. it is always important to take evidence about the
conditions and circumstances in which the said confessional
statement was recorded. The mere fact that a confession is
retracted does not render it inadmissible in evidence,
although the court has to scrutinize any such confession
with great care and 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
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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 facie evidence to proceed against the accused persons
for the offences punishable u/s 120 B IPC and u/s 7 and 13
(1) (d) of Prevention of Corruption Act 1988. I therefore
conclude that both the accused persons to be charged for
the offences punishable u/s 120 B IPC read with S. 7 and 13
(1) (d) of Prevention of Corruption Act, 1988 and accused
Yogender Mittal (A-2) also for CBI Vs. Ulhas Prabhakar
Khaire & Ann Page No.32 Of 33 the substantive offences
u/s 7 and 13 (1) (d) punishable u/s 13 (2) of PC Act, 1988.
5. The petitioner being aggrieved filed present petition to aside the
impugned order. The petitioner stated that the impugned order was
passed without application of judicial mind and is contrary to the
settled principles of law. The impugned order is liable to be quashed
and set-aside. The petitioner challenged impugned order on following
grounds:-
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a. The proceedings under section 13 (1) (d) of the PC Act
cannot continue post the amendment of the act in the year
2018.
b. The rigors of the act have been mollified then the benefit
of the same ought to be extended to an accused even
retrospectively
c. Charge framed under section 13 (1) (d) of the PC Act
without specifying the particular sub-section i.e. sub-section
(i) or (ii) or (iii) amounts to not giving the accused
reasonably sufficient notice to the accused of the matter as
the ingredients of the sub-sections are absolutely different
d. Because the foundation of the entire case is itself bad as
there is no proof of (a) any demand or (b) acceptance
or(recovery) of the alleged illegal gratification by the
applicant
e. Because the case of the prosecution is based on no
evidence / inadmissible evidence and as such the case
against the petitioner is a case of no evidence for the
purposes of framing charges
f. The entire case is based on allegations of criminal
misconduct, however there is no misconduct, as all the acts
performed by the petitioner were legal and as per law
g. No allegations of conspiracy survive as the acts of the
petitioner were contrary to the alleged criminal conspiracy
h. No person through whom the alleged bribe was obtained
or accepted or delivered have been made an accused
i. The accused has falsely been implicated by biased &
unfair investigation by CBI
6. The respondent/CBI filed Status Report.
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7. The counsel for the petitioner 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.
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7.2 The counsel for the petitioner further argued that the disclosure
statement dated 16.11.2012 made by the accused before EOW is
inadmissible and cannot be relied on in present case. The counsel for
the petitioner relied on Noor Aga V State of Punjab and another,
(2008) 16 SCC 417 wherein it is held that a statement given in one
proceeding is not admissible as evidence in another proceedings.
There was also delay in making the disclosure statement. The
disclosure statement is inadmissible in terms of Section 24 to26 of
the Indian Evidence Act, 1872 which was obtained out of inducement
as is clear from the Retraction made in the bail application.
7.3 The statement of the accused recorded under section 164 of the
Code is not admissible and same was retracted by the accused on
16.12.2016. The statement under section 164 of the Code was
involuntary and not voluntary as observed by the trial court in
impugned judgment. The statement under section 164 of the Code
was recorded on oath and relied on State of Sikkim V Suren Rai,
2018 Cr.L.J. 1972 wherein it has been held as that if the magistrate
goes on to administer oath upon the accused it cannot be said that the
said magistrate complied with the statutory requirement of the law to
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ensure the voluntariness of the confession. The statement was not
recorded as Delhi High Court Rules. The statement under section 164
of the Code cannot be relied upon because it was recorded before
granting of pardon under section 306 of the Code.
7.4 The trial court has not looked into the un-relied documents of
sterling quality which were supplied by the respondent as un-relied
upon documents. The seniors of petitioner i.e. Ramankant Garg and
S.K.Singh who were allegedly part of the conspiracy were made
witness and their statement not been relied by the prosecution.The
Statement of Hemant Gupta was recorded on the issue and verified
by the CBI from Income tax department but the statement and the
relevant communication with the department was concealed by the
CBI but given to the petitioner under section 207 on order passed by
court. The respondent concealed that the bank accounts were released
as per law during search and post search.
7.5 The respondent/CBI failed to establish prima facie case against
the petitioner. The respondent alleged that there was misconduct on
the part the petitioner but the petitioner has acted in the interest of the
accused i.e. as per CBI defreezing of the bank accounts, not reporting
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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) 3SCC 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 has also been registered against the
petitioner for disproportionate assets under the PC Act which itself
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 23
shows that nothing has been taken by the petitioner as illegal
gratification. The counsel placed reliance on Dashrath Singh
Chauhan V CBI, Criminal Appeal No. 1276 of 2010 decided on 09 th
October, 2018, P.C. Mishra V CBI, Crl.A.692/2010 and Dipakbhai
Jagdish chandra Patel V State of Gujarat and another, Criminal
Appeal No. 714 of 2019.
7.7 The counsel further argued that the present case is a case of no
admissible evidence hence the petitioner is liable to be discharged on
the grounds that there is no eye witness of alleged demand by
petitioner and alleged Delivery (acceptance) of amount to the
petitioner. The counsel for the petitioner with regard to the allegation
of payment of bribe of Rs.42-44 crores at Bhiwadi, there is no
evidence on record to prove that the petitioner had made any demand.
There is also no evidence to prove alleged payment of bribe of Rs.15
crores at Lajpat Nagar as no amount was recovered from the
petitioner thus the ingredients of the offence are not made out. The
trial court's reliance on the audio/video clips is bad in law. The
counsel for the petitioner argued that the present petition be allowed
and impugned order be set aside.
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 24
8. The Special Public Prosecutor for the respondent/CBI advanced
oral arguments and also submitted written submissions. The Special
Public Prosecutor with regard to the material which has to be seen
and considered by the court at the time of framing of charge relied on
State of Orissa V Debendra Nath Padhi, 2005(1) SCC 568; State
of Bihar V Ramesh Singh, 1977 (4) SCC 39; State of Tamil Nadu
V R. Soundirarasu and others, 2023 (6) SCC 1150; State of Tamil
Nadu V R. Soundirarasu and others, 2023 (6) SCC 1150
;Superintendent & Remembrancer of Legal Affairs, West Bengal
V Anil Kumar Bhunja & others,1979 (4) SCC 274 and Hem
Chand VState of Jharkhand,2008 5(SCC) 113.
8.1 The Special Public Prosecutor for the respondent/CBI after citing
various judgments argued that court while considering a petition
under Section 482 of the Code filed against an order of framing
charge is not required to hold a mini trial but is only required to see if
the trial court has exercised its jurisdiction in accordance with law
and defence raised by the petitioner should not be taken into account
during the charge-framing stage. Instead the evidence presented by
the respondent/CBI should be to taken into consideration to
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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 associates wherein incriminating documents
unaccounted cash of Rs.34.69 crores was seized. The petitioner was
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involved in the income tax raids and led the team. The petitioner
threatened the accused for referring case to EOW, Crime Branch,
Delhi Police. The accused to save him offered a part of recovered
cash to the petitioner as bribe. The petitioner also demanded further
bribe for extending favours to the accused by assuring him of a
favourable appraisal report and for allowing him to operate the frozen
bank accounts. The accused informed the petitioner about Rs.42-44
crores which were lying at his flat bearing no. 9, Hill View
Apartment, Bhiwadi, Rajasthan and the petitioner had agreed to take
50% of the cash and obtained keys of Bhiwadi Flat from the accused
to get the cash transported on that date itself. A letter for defreezing
the bank account at SBI, Rajouri Garden, New Delhi was also issued.
The petitioner made demand for further bribe money from the
accused. On 22.01.2011, Priyanka Saraswat Dev wife of the accused
on 22.01.2011 signed and delivered a cheque for Rs. 7.50 crores to
Dushyant Singh Tomar (PW-6) to withdraw Rs. 7.50 crores in cash
and later Rs. 5 crores in cash was delivered atA-84A Lajpat Nagar-II,
New Delhi. The said amount was carried in white Mercedes car of
the accused and delivered by him at the said address. The petitioner
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had provided the mobile number of the person with whom the
accused was coordinating for the delivery of cash and the said
number was issued from Moradabad where the petitioner's father-in-
law resides but was issued by using forged documents for KYC and
about two mobile numbers 8909294658 and 7669025834 reveal that
they were saved in the mobile phone of the petitioner as "Papa
Aircel" and "Papa Rahul" respectively and it was revealed that
numbers have been issued on the basis of fake ID proof in the name
of residents of Moradabad. The in-laws of Petitioner belong to
Moradabad. The accused met the petitioner on 28.01.2011 and he had
audio recorded of the said meeting. The petitioner again met the
accused and this meeting was video recorded by the accused by using
a spy wrist watch camera. Thereafter as per demand of the petitioner
on 09.02.2011 a further sum of Rs 10 crores was delivered by the
accused to the property of father-in-law of the petitioner situated at
A-84 A, Lajpat Nagar-II, New Delhi. The visitor register 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
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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 accused on 16.12.2016 filed
an application to retract his statement under Section 164 of the Code.
The accused applied for approver which was not permitted by the
court vide order dated 16.05.2015. The accused filed an application
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 29
dated 16.12.2016 to retract his statement under section 164 of the
Code but he has still maintained that the income tax officials extorted
money from him after the raids of18.01.2011/19.01.2011 and
maintained that the income tax officials took money.
8.5 The statements of Rakesh Singal (PW-1), the father-in-law of the
Petitioner, Sandeep Malik (PW-3), the PSO of the accused, Anil
Kumar (PW-23), the PSO of the accused, Krishna Kumar (PW-5), the
driver of the accused, Dushyant Singh Tomar (PW-6), the person
who handled the bank related work for the accused, Seema Sehgal
(PW-19), Chief Manager, SBI, Rajouri Garden, New Delhi, Priyanka
Saraswat Dev (PW-33), wife of the accused were recorded section
161 of the Code. The statements of Dushyant Singh Tomar (PW-6),
the person who handled the bank related work for the accused,
Krishna Kumar (PW-5), the driver of the accused were recorded
under section 164 of the Code.
8.6 There is sufficient material against the petitioner for framing of
charges. The statements under section 161and 164 of the Code
showed that the petitioner demanded and accepted bribe from the
accused. The petitioner acknowledged receipt of cash money from
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 30
the accused in 3 suitcases and agreed to return the empty suitcases
with Keys. The petitioner even specified the denomination of
currency notes in which he wanted the accused to deliver the bribe
money in cash to the petitioner. The petitioner discussed the date and
time for delivery of bribe money in cash. The petitioner even
discussed that the bribe money in cash should be delivered at night in
the Mercedes car as there are less chances of being caught and even if
there is checking and if the accused is caught with money, the police
will call income tax officers only and the petitioner will take care.
The accused mentioned about delivery of bribe money in cash to the
petitioner and the bank being suspicious of withdrawal of large
amount of cash, the petitioner signalled him not to discuss about the
same. The petitioner never denied that such an event did not take
place.
8.7 The special public prosecutor stated that as per the settled legal
position, as submitted 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
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 31
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
dated28.01.2011 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 and as long as the prosecution
evidence is not over the certificate can be submitted with the
permission of the trial court. This discretion has to be exercised by
the Trial Court when the stage is reached. The reliance was placed on
Arjun Panditrao Khotkar V Kailash Kushanrao Gorantyal
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 32
&Ors. (2020) 7 SCC 1wherein it was observed held that in case the
said certificate under Section 65B of Indian Evidence Act, 1872 is
not produced or is not available, then, the Trial Court will see the
circumstances in which the said certificate is not produced because
the Law does not demand the impossible and where there is a
disability which makes it impossible to obey the Law, the alleged
disobedience of the Law is excused.
8.9 The Special Public Prosecutor for the respondent/CBI also argued
that there is no requirement of direct evidence or recovery of money
to convict the petitioner under the PC Act. There is no presumption
under law that the recovery is must for conviction of the petitioner.
8.10 The Special Public Prosecutor with regard to arguments of the
counsel for the petitioner regarding amendment of the PC Act stated
that allegations are wrong and contrary to law and proceedings
against the petitioner can survive and continue despite the
amendment of PC Act in 2018. He placed reliance on CBI V A Raja
& others decided on 23.11.2020 in CRL. L.P. 185/2018.
8.11 The special public prosecutor also controverted arguments
raised on behalf of the petitioner that the retracted confession of the
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accused cannot be relied on and relied on K.I. Pavunny V Asst.
collector,(1997) 3 SCC 721.
8.12 The Special Public prosecutor in the end argued that the
defences as raised by the petitioner of alleged inconsistencies, alleged
inaccuracies or alleged inadmissibility cannot be looked into at this
stage of framing charges. The petitioner can raise all such arguments
at the stage of defence evidence or final arguments. There is no
perversity, illegality or infirmity in the order dated 12.09.2019 passed
by the Trial Court. The petition is liable to be dismissed.
9. The Chapter XVIII of the Code deals with trial before a Court of
Session. Section 227 deals with situation when the accused shall be
discharged. Section 228 deals with framing of charge. Sections 227
and 228 of the Code 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.
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
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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 clause
(b) of sub-section (1), the charge shall be read and
explained to the accused and the accused shall be asked
whether he pleads guilty of the offence charged or
claims to be tried.
9.1 The purpose of framing a charge is to intimate the accused about
the clear, unambiguous and precise nature of accusation that the
accused is called upon to meet in the course of a trial as observed in
V.C. Shukla V State through C.B.I., 1980 Supp SCC 92. The
prosecution is required to establish a prima facie before a charge can
be framed. The Supreme Court in Union of India V Prafulla
Kumar Samal & another, (1979) 3 SCC 4 considered scope of
inquiry at the stage of framing of charge as per section 227 of the
Code in Sessions criminal trial and observed as under:-
(1) That the Judge while considering the question of
framing the charges under section 227 of the Code has the
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 35
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.
(2) 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.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large however
if two views are equally possible and the Judge is satisfied
that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the accused,
he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of
the Code the Judge which under the present Code is a
senior and experienced Judge cannot act merely as a Post
office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total effect
of the evidence and the documents produced before the
Court, any basic infirmities appearing in the case and so on.
This however does not mean that the Judge should make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.
9.2 The Supreme Court in Onkar Nath Mishra & others V State
(NCT of Delhi) & another, Appeal (Crl.)1716 of 2007 decided on
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,
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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 State of Bihar v. Ramesh Singh wherein
this Court has laid down the principles relating to framing
of charge and discharge as follows:
4.....Reading Sections227 and 228 together in
juxtaposition, as they have got to be, it would be clear
that at the beginning and initial stage of the trial the
truth, veracity and effect of the evidence which the
prosecutor proposes to adduce are not to be meticulously
judged. Nor is any weight to be attached to the probable
defence of the accused. It is not obligatory for the Judge
at that stage of the trial to consider in any detail and
weigh in a sensitive balance whether the facts, if proved,
would be incompatible with the innocence of the accused
or not. The standard of test and judgment which is to be
finally applied before recording a finding regarding the
guilt or otherwise of the accused is not exactly to be
applied at the stage of deciding the matter under Section
227 or Section 228 of the Code. At that stage the Court is
not to see whether there is sufficient ground for
conviction of the accused or whether the trial is sure to
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 37
end in his conviction. Strong suspicion against the
accused, if the matter remains in the region of suspicion,
cannot take the place of proof of his guilt at the
conclusion of the trial. But at the initial stage if there is a
strong suspicion which leads the Court to think that there
is ground for presuming that the accused has committed
an offence then it is not open to the Court to say that
there is no sufficient ground for proceeding against the
accused. The presumption of the guilt of the accused
which is to be drawn at the initial stage is not in the sense
of the law governing the trial of criminal cases in France
where the accused is presumed to be guilty unless the
contrary is proved. But it is only for the purpose of
deciding prima facie whether the court should proceed
with the trial or not. If the evidence which the prosecutor
proposes to adduce to prove the guilt of the accused even
if fully accepted before it is challenged in cross
examination or rebutted by the defence evidence, if any,
cannot show that the accused committed the offence, then
there will be no sufficient ground for proceeding with the
trial....
If the scales of pan as to the guilt or innocence of the
accused are something like even at the conclusion of the
trial, then, on the theory of benefit of doubt the 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
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 38
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
translated into evidence at the stage of trial. The strong
suspicion cannot be the pure subjective satisfaction based
on the moral notions of the Judge that here is a case
where it is possible that accused has committed the
offence. Strong suspicion must be the suspicion which is
premised on some material which commends itself to the
court as sufficient to entertain the prima facie view that
the accused has committed the offence.
9.4 The Supreme Court in Asim Shariff V National Investigation
Agency, (2019) 7 SCC 148 expressed that the trial court is not
expected or supposed to hold a mini trial for the purpose of
marshalling the evidence on record. The Supreme Court in State of
Karnataka V M.R. Hiremath, (2019) 7 SCC 515 held that it is a
settled principle of law that at the stage of considering an application
for discharge the court must proceed on the assumption that the
material which has been brought on the record by the prosecution is
true and evaluate the material in order to determine whether the facts
emerging from the material, taken on its face value, disclose the
existence of the ingredients necessary to constitute the offence. The
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Supreme Court in Ghulam Hassan Beigh V Mohammad Maqbool
Magrey & Others, Criminal Appeal No. 001041 of 2022 (Arising
Out of S.L.P. (Criminal) no 4599 OF 2021) decided on 26th July,
2022 observed as under:-
Thus from the aforesaid, it is evident that the trial court is
enjoined with the duty to apply its mind at the time of
framing of charge and should not act as a mere post office.
The endorsement on the charge sheet presented by the
police as it is without applying its mind and without
recording brief reasons in support of its opinion is not
countenanced by law. However, the material which is
required to be evaluated by the Court at the time of
framing charge should be the material which is produced
and relied upon by the prosecution. The sifting of such
material is not to be so meticulous as would render the
exercise a mini trial to find out the guilt or otherwise of the
accused. All that is required at this stage is that the Court
must be satisfied that the evidence collected by the
prosecution is sufficient to presume that the accused has
committed an offence. Even a strong suspicion would
suffice. Undoubtedly, apart from the material that is placed
before the Court by the prosecution in the shape of final
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:-
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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 by the court at that stage. The main
intention of granting a chance to the accused of making
submissions as envisaged under Section 227 of the Cr. P.C.
is to assist the court to determine whether it is required to
proceed to conduct the trial. Nothing in the Code limits the
ambit of such hearing, to oral hearing and oral arguments
only and therefore, the trial court can consider the material
produced by the accused before the I.O.
10. It is settled principle of law that at the stage of
considering an application for discharge the court must
proceed on an assumption that the material which has been
brought on record by the prosecution is true and evaluate
said material in order to determine whether the facts
emerging from the material taken on its face value, disclose
the existence of the ingredients necessary of the offence
alleged.
10. It is reflecting that M/s Stockguru India was a partnership firm
formed by the accused and his wife namely Priyanka Saraswat Dev
and was engaged in accepting deposits from the public at large by
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offering high return of income up to 20 % per month on the deposits.
The group was collecting deposits in cash and interests payout were
also made in cash. The group was making payment of commission in
cash to the various agents. M/s Stock Guru India was neither
deducting TDS on the monthly interest paid by them to the investors
nor on the commission they were paying to their agents. The cash
deposits accepted and the payouts of interest and commission were
not reflected in the regular books of accounts by the Stock Guru India
Group.FIR bearing no 152/11 dated 29.06.2012 was got registered at
EOW PS Moti Nagar. The disclosure statement of the accused was
recorded on 16.11.2012 during investigation of FIR bearing no
152/11.
10.1 The accused in disclosure statement disclosed that a team from
Directorate of Income Tax (lnv), Delhi led by the petitioner
conducted search and seizure operation on 18/19.01.2011 at business
and residential premises of M/s Stock Guru India and its associates
and during searches besides incriminating documents unaccounted
cash of Rs.34.69 crores was seized from various premises of the M/s
stock Guru India Group. The petitioner allegedly before conclusion
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of raids on 19.01.2011threatened the accused with referring the case
to EOW, Crime Branch, Delhi Police. The accused allegedly offered
a part of 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 on28.01.2011 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
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the accused by EOW Delhi Police revealing interaction between the
petitioner and the accused at Income Tax Office on
28.01.2011.Thereafter present RC No. ACI 2013 A000I/CBJ/AC-
1/New Delhi dated 09/01/2013 was also registered on the basis of
complaint lodged by Inspector Raj Kumar Shah, EOW, Crime
Branch, Delhi Police regarding illegal gratification demanded and
paid to the petitioner. 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.
10.3 The accused filed an application under section 306 of the Code
on 30.10.2013 for becoming an approver and the statement of the
accused under section 164 of the Code was recorded on 19.12.2013.
The accused withdrew application under section 306 of the Code on
21.02.2014. The respondent/CBI also filed an application under
section 306 of the Code for grant of pardon to the accused which was
ordered to be dismissed vide order dated 06.05.2015 passed by the
trial court.
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 44
11. The main incriminating material which is appearing against the
petitioner is the disclosure statement made by the accused on
16.11.2012 during investigation of FIR bearing no 152/11 wherein
the accused made allegations of demand and acceptance of illegal
gratification by the petitioner from the accused and in pursuance of
disclosure statement recovery of hard disks containing video
recorded conversation between the accused and the petitioner by
using a spy wrist watch on 03.02.2011 and 09.02.2011 and also
recovery of an audio recording 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 Tax
Office on 28.01.2011. The trial court in impugned judgment did not
accept argument advanced on behalf of the petitioner that disclosure
statement of the accused dated 16.11.2012 is inadmissible under
sections 24 and 25 of Indian Evidence Act, 1872. The trial court
observed that the disclosure statement led to the recovery of material
evidence in the form of spy watch and hard disks and therefore
Section 27 of Indian Evidence Act, 1872 comes into play and
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accordingly, it cannot be concluded that disclosure statement dated
16.11.2012 is completely inadmissible.
11.1 The counsel for the petitioner argued that disclosure statement
dated 16.11.2012 made by the accused before EOW is 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 on28.01.2011 & 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
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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 to the discovery of the
contraband articles, the plea that it was not done in
connection with FIR No. 96 of 1985, is absolutely
unsustainable.
11.2 Section 27 of the Evidence Act, 1872 incorporates the theory of
confirmation by subsequent facts i.e. statements made in police
custody are admissible to the extent that they can be proved by
subsequent discovery of facts. Section 27 of the Indian Evidence Act,
1872 reads as follows:
How much of information received from accused may be
proved- Provided that, when any fact is deposed to as
discovered in consequence of information received from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to
a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.
The requirements of Section 27 of the Evidence Act, 1872 were
succinctly summed up in Anter Singh V State of Rajasthan, (2004)
10 SCC 657 as under:-
(1) The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the
provision has nothing to do with the question of relevancy.
The relevancy of the fact discovered must be established
according to the prescriptions relating to relevancy of other
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evidence connecting it with the crime in order to make the
fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some
information received from the accused and not by the own
act of the accused.
(4) The person giving the information must be accused of
any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information
received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which
relates distinctly or strictly to the fact discovered can be
proved.
The Supreme Court in Raju Manjhi V State of Bihar,
Criminal Appeal No. 1333/2009 decided on 2nd August, 2018 held as
under:-
It is true, no confession made by any person while he was in
the custody of police shall be proved against him. But, the
Indian Evidence Act, 1872 provides that even when an
accused being in the custody of police makes a statement
that reveals some information leading to the recovery of
incriminating material or discovery of any fact concerning
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
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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 Prosecutor
argued thatallegation of the petitioner that the electronic evidence is
inadmissible in the absence of certificate under section 65B of the
Indian Evidence Act, 1872 is contrary to law. He further argued that
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the prosecution evidence is still going on and has not been completed
and stage of framing of charge does not contemplate certificate under
section 65B of the Indian Evidence Act, 1872 which can be filed at
appropriate stage of trial. The Special Public Prosecutor relied on
Arjun Panditrao Khotkar V Kailash Kushanrao Gorantyal &
others, (2020) 7 SCC 1 wherein it was held as under:
52. We may hasten to add that Section 65-B does not speak
of the stage at which such certificate must be furnished to
the Court. In Anvar P.V. [Anvar P.V. v. P.K. Basheer,
(2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC
(Cri) 24 : (2015) 1 SCC (L&S) 108], this Court did observe
that such certificate must accompany the electronic record
when the same is produced in evidence. We may only add
that this is so in cases where such certificate could be
procured by the person seeking to rely upon an electronic
record. However, in cases where either a defective
certificate is given, or in cases where such certificate has
been demanded and is not given by the person concerned,
the Judge conducting the trial must summon the
person/persons referred to in Section 65-B(4) of the
Evidence Act, and require that such certificate be given by
such person/persons. This, the trial Judge ought to do when
the electronic record is produced in evidence before him
without the requisite certificate in the circumstances
aforementioned. This is, of course, subject to discretion
being exercised in civil cases in accordance with law, and in
accordance with the requirements of justice on the facts of
each case. When it comes to criminal trials, it is important
to keep in mind the general principle that the accused must
be supplied all documents that the prosecution seeks to rely
upon before commencement of the trial, under the relevant
sections of the Cr.P.C.
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 50
56. Therefore, in terms of general procedure, the
prosecution is obligated to supply all documents upon
which reliance may be placed to an accused before
commencement of the trial. Thus, the exercise of power by
the courts in criminal trials in permitting evidence to be
filed at a later stage should not result in serious 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 during investigation conducted in FIR
bearing no 152/11 wherein the accused disclosed that heon
03.02.2011 and 09.02.2011 video recorded his conversations with the
petitioner by using a spy wrist watch which was stated to be
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transferred in Hard disks 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. Thereafter during further investigation an audio
recording was also recovered from a mobile phone/Hard-disk seized
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.The spy watch during examination by CFSL
was found to be empty and prosecution primarily relied on recorded
audio video conversation on different dates between the petitioner
and the accused. It reflects that spy watch being primary evidence
was not containing any conversation between the petitioner and the
accused and was found to be empty and hard disks being secondary
evidence were found to be containing audio video conversation
recorded on different dates between the petitioner and the accused. In
view of decisions of Anvar P.V. V P.K. Basheer, (2014)10 SCC
473, Arjun Panditrao Khotkar V Kailash Kushanrao Gorantyal,
(2020) 7 SCC 1 and recent judgment titled as State of Karnataka V
T. Naseer@ Nasir@ Thandiantavida Naseer Umarhazi@Hazi &
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 52
others, Criminal Appeal No.....of 2023 Special Leave Petition (Crl.)
No 6548 of 2022 decided on 06th November, 2023 the prosecution is
required to file certificate under section 65B of the Indian Evidence
Act, 1872 in respect of hard disks but it is settled law that certificate
under section 65B of the Indian Evidence Act,1872 can be filed at
any stage of trial and filing is not confined to stage of consideration
and framing of charge. There is no force in arguments advanced by
the counsel for the petitioner that prosecution against the petitioner is
bad for want of certificate under section 65B of the Indian Evidence
Act, 1872.
12.2 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. As such there is no
force in arguments in argument advanced by the counsel 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
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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 reliance was placed on
Dashrath Singh Chauhan V CBI, Criminal Appeal No. 1276 of
2010 decided on 09th October, 2018; P.C. Mishra vs CBI,
Crl.A.692/2010; Dipakbhai Jagdish chandra Patel V State of
Gujarat and another, CriminalAppeal No. 714 of 2019. It was also
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argued that there is no proof of demand and acceptance which is
must. Reliance was placed on Shankar V State of Karnataka,
MANU/KA/2182/2023;BV Ramesh V State of Karnataka,
MANU/KA/2015/2023;Jagatar Singh V State of Punjab,
MANU/SC/0288/2023; Imamsab Moulasab Toragal V State of
Karnataka, MANU/KA/1734/2023 and Chandrakant Pagar V
State of Maharashtra, MANU/MH/2261/2023.
13.1 The counsel for the petitioner argued that there is no evidence to
prove the allegation of payment of bribe at Bhiwadi and there is no
evidence to prove that the petitioner had made any demand despite
demanding bribe allegedly during on-going raid by the Income Tax
Department, when several officials were participating in the said raid.
There is no evidence of anyone collecting any money from Bhiwadi.
There is no evidence to prove the allegation of payment of bribe of
Rs. 15 crores at Lajpat Nagar.
13.2 The Special Public Prosecutor in response to above arguments
advanced by the counsel for the petitioner responded by arguing that
income tax raid was conducted on 18.01.2011 at the business and
residential premises of the accused and M/s Stockguru India and its
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associates wherein incriminating documents and unaccounted cash of
Rs.34.69 Crores were seized and the raid was continued till
19.01.2011. The petitioner was involved in the raids and was leading
the team. The Special Public Prosecutor for the respondent/CBI to
establish demand on part of the petitioner stated that the petitioner
threatened the accused to refer case to EOW. Crime Branch, Delhi
Police and then the accused to save him offered a part of recovered
cash to the petitioner as bribe. The petitioner also demanded more
bribe for extending favours. Thereafter the accused informed the
petitioner about cash of Rs.42-44 crores lying at his flat bearing no.
9, Hill View Apartment, Bhiwadi, Rajasthan and the petitioner
agreed to take 50% of the cash and obtained keys of Bhiwadi Flat
from the accused and got the cash transported on that date itself. It is
further argued that the petitioner issued letter on same day for
defreezing the bank account at SBI, Rajouri 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
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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 on 03.02.2011 and
09.02.2011. The Special Public Prosecutor further referred factual
position and stated that the accused on 09.02.2011 as per the demand
of the petitioner delivered another sum of Rs 10 crores to the accused
at A-84 A, Lajpat Nagar - II, New Delhi which belonged to the father
in law of the petitioner. The petitioner refused to give voice samples
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 57
for comparison during the investigation whereas accused voluntarily
gave his voice samples. The CFSL reports also confirmed audio and
video recordings were continuous and neither tampered nor edited.
The Special Public Prosecutor relied on disclosure statement of the
accused and his statements recorded under sections 161 and 164 of
the Code as well as statements of Driver Krishan Kumar and
Dushyant Kumar Tomar recorded under section 164 of the Code. The
Special Public Prosecutor in light of above facts argued that
following facts are duly established on record:-
i. The petitioner had demanded and accepted bribe from
the accused.
ii. The petitioner acknowledged receipt of cash money from
the accused in 3 suitcases and agreed to return the empty
suitcases with keys.
iii. The petitioner even specified the denomination of
currency notes in which he wanted the accused to deliver
the bribe money in cash to the Petitioner.
iv. The petitioner discussed the date and time for delivery
of bribe money in cash.
v. The petitioner discussed that the bribe money in cash
should be delivered at night in the Mercedes car as there
are less chances of being caught.
vi.. The statements of other witnesses recorded under
section 161 and 164 of the Code reflecting that petitioner
demanded and accepted bribe money from the accused
which was and the delivered in cash at father-in-law
address of the petitioner.
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13.3 Section 13(1)(d) of the PC Act reads as under:-
13. Criminal misconduct by a public servant.---- (1) A
public servant is said to commit the offence of criminal
misconduct,-
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for
any other person any valuable thing or pecuniary
advantage; or
(ii) by abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or
pecuniary advantage; or
(iii) while holding office as a public servant, obtains for
any person any valuable thing or pecuniary advantage
without any public interest; or
13.4 The Supreme Court in Soundarajan V State Rep. by the
Inspector of Police Vigilance Anticorruption Dindigul, Criminal
Appeal No. 1592 of 2022 decided on 17th April, 2022 after referring
Mohan Singh V State of Bihar, (2011) 9SCC272; Union of India V
Ex.-GNR Ajeet Singh, (2013) 4SCC186 and Neeraj Dutta V State
(Govt. of NCT of Delhi), 2022 SCC OnLine SC1724 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
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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 means covered
by clauses(1) and (ii) of Section 13(1)(d) cannot be proved.
13.5 The Supreme Court in Neeraj Dutta 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. It was held as under:-
3. Thus, the moot question that arises for answering the
reference is, in the absence of the complainant letting in
direct evidence of demand owing to the non-availability of
the complainant or owing to his death or other reason,
whether the demand for illegal gratification could be
established by other evidence. This is because in the
absence of proof of demand, a legal presumption under
Section 20 of the Prevention of Corruption Act, 1988 (for
short "the Act") would not arise. Thus, the proof of
demand is a sine qua non for an offence to be established
under Sections 7, 13(1)(d)(i) and (ii) of the Act and dehors
the proof of demand the offence under the two sections
cannot be brought home. Thus, mere acceptance of any
amount allegedly by way of illegal gratification or recovery
thereof in the absence of proof of 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
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"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.
6. Section 13(1)(d) of the Act has the following ingredients
which have to be proved before bringing home the guilt of a
public servant, namely:
(i) The accused must be a public servant.
(ii) By corrupt or illegal means, obtains for himself or
for any other person any valuable thing or pecuniary
advantage; or by abusing his position as public servant,
obtains for himself or for any other person any valuable
thing or pecuniary advantage; or while holding office as
public servant, obtains for any person any valuable thing
or pecuniary advantage without any public interest.
(iii) To make out an offence under Section 13(1) (d),
there is no requirement that the valuable 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
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Section 13(2) of the Prevention of Corruption Act,
1988based 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
sub-section (1) and sub-section (2) unless the contrary is
proved. The said provision deals with a legal presumption
which is in the nature of a command that it has to be
presumed that the accused accepted the gratification as a
motive or reward for doing or forbearing to do any official
act, etc. if the condition envisaged in the former part of the
Section is satisfied. The only condition for drawing a legal
presumption under Section 20 of the Act is that during
trial, it should be proved that the accused had accepted or
agreed to accept any gratification. The Section does not say
that the said condition should be satisfied through direct
evidence. Its only requirement is that it must be proved that
the accused has accepted or agreed to accept gratification.
75. In B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC
55 : (2014) 5 SCC (Cri) 543] , the complainant did not
support the prosecution case. In P. Satyanarayana Murthy
[P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC
152 :(2016) 1 SCC (Cri) 11] , the complainant had died
prior to letting in his evidence in the case. In M. Narsinga
Rao [M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 :
2001 SCC (Cri) 258], the question was whether a legal
presumption could be based on a factual presumption. In
Hazari Lal [Hazari Lal v. State (Delhi Admn.), (1980) 2
SCC 390 :1980 SCC (Cri) 458] , this Court through O.
Chinnappa Reddy, J. observed that it is not necessary that
the passing of money should be proved by direct evidence,
it could also be proved by circumstantial evidence.
Furthermore, in Madhukar Bhaskarrao Joshi v. State of
Maharashtra [Madhukar Bhaskarrao Joshi v. State of
Maharashtra, (2000) 8 SCC 571 : 2001 SCC (Cri)
Signing Date:16.01.2024 CRL.M.C.6183/2019 Page 62
34]("Madhukar Bhaskarrao Joshi"), it was observed that in
order to draw a presumption under Section 20 of the Act,
the premise is that there was payment or acceptance of
gratification. Once the said premise is established, the
inference to be drawn is that the said gratification was
accepted as a "motive or reward" for doing or forbearing
to do any official act.
87. Therefore, this Court cautioned that even if a witness is
treated as "hostile" and is cross-examined, his evidence
cannot be written off altogether but must be considered
with due care and circumspection and that part of the
testimony which is creditworthy must be considered and
acted upon. It 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
offact. This fact in issue can be proved either by direct
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evidencewhich can be in the nature of oral evidence or
documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of
demand and acceptance of illegal gratification can also
be proved by circumstantial evidence in the absence of
direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely,
thedemand and acceptance of illegal gratification by the
public servant, the following aspects have to be borne in
mind:
(i) if there is an offer to pay by the bribe-giver without
therebeing any demand from the public servant and
the latter simply accepts the offer and receives the
illegal gratification, it is a case of acceptance as per
Section 7 of the Act. In such a case, there need not be a
prior demand by the public servant.
(ii) On the other hand, if the public servant makes a
demand and the bribe-giver accepts the demand and
tenders the demanded gratification which in turn is
received by the public servant, it is a case of
obtainment. In the case of obtainment, the prior
demand for illegal gratification emanates from the
public servant. This is an offence under Sections
13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the
bribe giver and the demand by the public servant
respectively have to be proved by the prosecution as a
fact in issue. In other words, mere acceptance or
receipt of an illegal gratification without anything
more would not make it an offence under Section 7 or
Sections 13(1)(d)(i) and (ii), respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring
home the offence, there must be an offer which
emanates from the bribe-giver which is accepted by
the public servant which would make it an offence.
Similarly, a prior demand by the public servant when
accepted by the bribe-giver and in turn there is a
payment made which is received by the public servant,
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would be an offence of obtainment under Sections
13(1)(d)(i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to the
demand and acceptance or obtainment of an illegal
gratification may be made by a court of law by way of an
inference only when the foundational facts have been
proved by relevant oral and documentary evidence and
not in the absence thereof. On the basis of the material
on record, the court has the discretion to raise a
presumption of fact while considering whether the fact
of demand has been proved 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
Section20 of the Act is distinct from presumption of fact
referred to above in sub-para 88.5(e), above, as the
former is a mandatory presumption while the latter is
discretionary in nature.
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90. Accordingly, the question referred for consideration of
this Constitution Bench is answered as under:
In the absence of evidence of the complainant
(direct/primary, oral/documentary evidence) it is
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 Act based
on other evidence adduced by the prosecution.
92. Before we conclude, we hope and trust that the
complainants as well as the prosecution make sincere
efforts to ensure that the corrupt public servants are
brought to book and convicted so that the administration
and governance becomes unpolluted and free from
corruption.
13.6 In the present case prime incriminating material is the disclosure
statement made by the accused. FIR bearing no 152/11 dated
29.06.2012 was got registered at EOW PS Moti Nagar and during
investigation the disclosure statement of the accused was recorded on
16.11.2012 wherein the accused disclosed that an Income Tax team
led by the petitioner conducted search and seizure operation on
18/19.01.2011.The petitioner demanded extra money for extending
favours to the accused besides having share in unaccounted money
seized during raid. Thereafter, the petitioner collected and transported
42.44 crores from the flat of the accused bearing no 9, Hill View
Apartment, Bhiwadi, Rajasthan and has agreed to take 50% of said
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cash amount for extending favours to the accused. The accused
further disclosed that 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. The disclosure statement made by the
accused is not admissible in view of sections 24-26 of Indian
Evidence Act, 1872.
13.7 The accused further disclosed that he 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 transferred to hard
disks which were seized by EOW, Delhi Police from house of the
accused situated at Ratnagiri, Nagpur pursuant to disclosure dated
16.11.2012. 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 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
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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 suitcases and their
transportation in Mercedes car during night which may at the most
convey delivery of cash amount but not demand in any manner
alleged to have been made by the petitioner.
13.7.1The perusal of transcripts of video recordings recorded on
09.02.2011 reflects that there were three files/clips of call durations
of 20 minutes, 14.39 minutes, 1.38 minutes which are carefully
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perused. The perusal of these three clips/files does not reflect any
demand of gratification from the accused by the petitioner.
13.7.2 The audio clip recorded on 28.01.2011 do have reference of
Rs.5 crore in conversation but it is not reflecting that the petitioner
raised demand of Rs. 5 crores from the accused. There is nothing in
said conversation which can reflect demand of Rs. 5 crores made by
the petitioner to the accused.
13.8 As argued and pointed out by the Special Public Prosecutor that
Priyanka Saraswat Dev, 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 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 and Krishan Kumar, driver delivered Rs. 5 crores in cash to
the property bearing no. A-84 A, Lajpat Nagar - II, New Delhi,
which was owned by Rakesh Singal, father-in-law of the petitioner
etc. only conveyed at the most delivery of Rs. 5 lacs on 28.01.2011 at
Lajpat Nagar but do not reflect demand and acceptance on part of the
petitioner. The Special Public Prosecutor further referred that the
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accused on 09.02.2011 as per the demand of the petitioner delivered
another sum of Rs 10 crores to the accused at A-84 A, Lajpat Nagar -
II, New Delhi and this again only conveyed delivery but not demand.
The material placed on record is not sufficient to establish demand of
gratification by the petitioner and is only able to convey delivery of
Rs.15 crores on 28.01.2011 and 09.02.2011 which is also falling
short of acceptance by the petitioner particularly no recovery of
tainted money was affected from the petitioner or at the instance of
the petitioner.
13.9 It is pertinent to refer K Shanthamma V The State of
Telangana, Criminal Appeal bearing no. 261/2022 decided on
21.02.2022 wherein the Supreme Court has observed that the offence
under Section 7 of the PC 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
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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 The State of
Telangana held as under:
15. Thus, this is a case where the demand of illegal
gratification by the appellant was not proved by the
prosecution. Thus, the demand which is sine quo non for
establishing the offence under Section 7 was not
established.
14. The accused filed an application under section 306 of the Code on
30.10.2013 for becoming an approver and the statement of the
accused under section 164 of the Code was recorded on 19.12.2013.
The accused withdrew application under section 306 of the Code on
21.02.2014. The respondent/CBI also filed an application under
section 306 of the Code for grant of pardon to the accused which was
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ordered to be dismissed vide order dated 06.05.2015 passed by the
trial court. The accused in statement under section 164 of the Code
narrated facts as per disclosure statement. The counsel for the
petitioner raised serious doubts as to credibility of statement under
section 164 of the code made by the accused and argued that the
accused is involved in criminal case with serious allegations and
placed reliance on Dipakbhai Jagdish chandra Patel V State of
Gujarat, Criminal Appeal no 714 of 2019 decided on 24th April,
2019 by the Supreme Court. The Supreme Court in this case referred
Suresh Budharmal Kalani @ Pappu Kalani V State of
Maharashtra, (1998) 7SCC337 wherein view was taken that
confession by a co-accused containing incriminating matter against a
person would not by itself suffice to frame charges against it. The
Supreme Court also referred Haricharan Kurmi V State of Bihar,
AIR 1964SC1184 wherein it was held as under: -
"As a result of the provisions contained in S.30, Evidence
Act, the confession of a co-accused has to be regarded as
amounting to evidence in a general way, because whatever
is considered by the Court is evidence; circumstances which
are considered by the Court as well as probabilities do
amount to evidence in that generic sense. Thus, though
confession may be regarded as evidence in that generic
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sense because of the provisions of S.30, the fact remains
that it is not evidence as defined by S.3 of the Act. The
result, therefore, is that in dealing with a case against an
accused person, the Court cannot start with the confession
of a co-accused person; it must begin with other evidence
adduced by the prosecution and after it has formed its
opinion with regard 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 accused of the same
offences (ignoring the fact that other accused are
absconding and appellant appears to be proceeded against
on his own) and having found that there is no recovery
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from the residence of the appellant of the counterfeit notes
and that there is no other material on the basis of which
even a strong suspicion could be aroused, we would find
that the mandate of the law requires us to free the appellant
from being proceeded against. Accordingly, we allow the
appeal and the petition filed under Section 482 of the
Cr.PC. The Order impugned passed by the Sessions Judge
framing the charge against the appellant will stand set aside
and the appellant will stand discharged.
14.1 Accordingly statement under section 164 of the Code made by
the accused in proceedings under section 306 of the Code is a very
weak kind of evidence and cannot be much relied on particularly
when the accused withdraw the application under section 306 IPC.
The accused is arrayed as co-accused in present FIR along with the
petitioner. The antecedents of the petitioner are not clear and he is an
accused in FIR bearing no. 0152/2011.
14.2 The trial court in the order dated 06.05.2015 whereby the
application filed by the respondent/CBI under section 306 Cr.P.C. for
grant of pardon to the accused was dismissed and also pointed out by
the Special Public Prosecutor for the respondent/CBI, made
observations that the statement of the accused recorded under section
164 Cr.P.C. is a strong piece of evidence in the hands of the
prosecution to substantiate the allegations against the petitioner as
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well as the accused. These observations as made by the trial court
were unwarranted, misconceived and should not have been made at
the time of disposal of the application under section 306 Cr.P.C.
15. As observed in Dipakbhai Jagdish chandra Patel V State of
Gujarat and another, court is not expected to act a mere Post Office
at the time of framing of the charge and must indeed sift the material
produced and relied upon by the prosecution. The sifting of the
evidence should not be meticulous and the court should not don the
mantle of trial judge hearing argument after full-fledged trial. The
court must be satisfied with the material available on record that the
case is made out for the accused to stand trial. A strong suspicion
founded on the relevant material would suffice which can be
translated into evidence at the stage of trial.
16. 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)
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(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.
16. The present petition along with pending applications, if any,
stands disposed of.
17. The copy of this order be sent to the trial court for information
and further compliance.
DR. SUDHIR KUMAR JAIN
(JUDGE)
JANUARY 15, 2024
sk/sd
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