Delhi High Court
Baljeet Singh vs C B I on 22 March, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: December 07, 2023
Decided on: March 22, 2024
+ CRL.A. 630/2015
ARUN KUMAR GURJAR ..... Appellant
Through: Mr. Siddharth Aggarwal,
Senior Advocate with
Ms. Vrinda Bhandari,
Ms. Soughanya Shankaran,
Mr. Ayush Shrivastava,
Mr. Madhav Aggarwal,
Ms. Anandita Rana and
Ms. P. Barsaiyan, Advocates
V
CENTRAL BURAEU OF
INVESTIGATION ..... Respondent
Through: Ms. Anubha Bhardwaj, SPP
for CBI with Ms. Khushal
Saini, Advocate
+ CRL.A. 643/2015
BALJEET SINGH ..... Appellant
Through: Mr. Vikas Pahwa, Senior
Advocate with Mr. Manish
Tiwari, Mr. Anil Kumar,
Mr. Siddharth Singh and
Ms. Sanskriti, Advocates
V
CBI ..... Respondent
Through: Ms. Anubha Bhardwaj, SPP
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:02.04.2024 CRL.A. 630/2015 & CRL.A. 643/2015 Page 1
17:36:55
for CBI with Ms. Khushal
Saini, Advocate
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present appeals are filed appeal under section 374 read with
482 of Code of Criminal Procedure, 1973 (hereinafter referred to as
"the Code") for setting aside the judgment dated 20.05.2015
(hereinafter referred to as "the impugned judgment") and order on
sentence dated 21.05.2015 (hereinafter referred to as "the impugned
order") passed by the court of Sh. Sanjeev Jain, Special Judge (PC
Act)/CBI-03, South, Saket Courts, New Delhi (hereinafter referred to
as "the trial court") in case titled as CBI V Arun Kumar Gurjar
& another in CC no. 50/2012 arising out of RC bearing no. CBI/AC-
I/RC-A0003/2010 dated 29.12.2010 registered by CBI, ACU (I),
New Delhi under section 120B of the Indian Penal Code, 1860
(hereinafter referred to as the "IPC") read with section 7 of the
Prevention of Corruption Act, 1988 (hereinafter referred to as the
"PC Act") and substantive offence under section 7 of the PC Act and
for acquittal of the appellants.
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2. The factual background of the case as appearing from charge sheet
is that Pawan Aggarwal, Partner of M/s Madhya Pradesh Vanijya
Company, 3958/2, Naya Bazar, Delhi (hereinafter referred to as "the
complainant") made a written complaint on the basis of which
present RC bearing no CBI/AC-I/RC-A0003/2010 was registered on
29.12.2010 by CBI, ACU(I), New Delhi under section 120B IPC read
with section 7 of the PC Act and substantive offence under section 7
of PC Act against Arun Kumar Gurjar (Joint Commissioner of
Income Tax, Range 29, New Delhi and hereinafter referred to as "the
appellant Arun Kumar Gurjar") and Baljeet Singh (Inspector,
Income Tax, Range 29, New Delhi/IAP-V,CIT (Audit) I, C.R.
Building, New Delhi and hereinafter referred to as "the appellant
Baljeet Singh").
2.1 The complainant in FIR alleged that that complainant was
running a partnership firm in the name and style of M/s Madhya
Pradesh Vanijaya Company (hereinafter referred to as "MPVC") at
3958/2, Naya Bazar, Delhi. The Tax Assessment for the year 2008-09
pertaining to MPVC was under scrutiny and was pending in the
office of the appellant Arun Kumar Gurjar, Ward no. 29, Drum
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Shape Building, IP Estate, New Delhi, the then Assessing Officer.
The complainant on several occasions during assessment received
various notices from the department and the complainant in response
to notices submitted requisite documents/information to the appellant
Arun Kumar Gurjar to finalize the scrutiny. The appellant Baljeet
Singh who was a subordinate officer of the appellant Arun Kumar
Gurjar also remained present during the meetings.
2.2 The appellants Arun Kumar Gurjar and Baljeet Singh in the
month of October, 2010 asked the complainant to discuss the case
with them in the office. The complainant visited the office of the
appellant Arun Kumar Gurjar where the appellant Baljeet Singh was
also present. The appellants Arun Kumar Gurjar and Baljeet Singh
demanded Rs.5 lakhs to finalize the scrutiny without any hurdle but
the complainant refused to pay Rs.5 lakhs. The appellant Arun
Kumar Gurjar on 20.12.2010 issued a notice to MPVC for submitting
further information which had already been submitted by MPVC and
a reply in response to said letter was sent to the appellant Arun
Kumar Gurjar on 24.12.2010. The complainant again on 27.12.2010
personally visited the office of the appellant Arun Kumar Gurjar to
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clarify the pending issues and met the appellants Arun Kumar Gurjar
and Baljeet Singh who told the complainant about many
discrepancies in the papers and again demanded Rs.5 lakhs to finalize
entire matter without any hurdle.
2.3 The complainant being aggrieved by the demand made by the
appellant Arun Kumar Gurjar who was then Joint Commissioner of
Income Tax, Range-29, New Delhi and the appellant Baljeet Singh
who was then Inspector, Income Tax, New Delhi submitted a written
complaint to the Superintendent of Police, CBI, ACU-I, New Delhi
on 28.12.2010. The genuineness of complaint dated 28.12.2010 was
verified on 29.12.2010 by Ram Singh, the then Deputy
Superintendent of Police, CBI, ACU-I, New Delhi in presence of
independent witnesses namely, Jitendra Bhardwaj and Hukum Chand
from House Tax Department, MCD, Central Zone, New Delhi by
arranging a conversation of the complainant from his Mobile bearing
no. 9311067502 with the appellant Baljeet Singh on his Mobile
bearing no. 9873574750. The conversation between the complainant
and the appellant Baljeet Singh was recorded with the help of digital
voice recorder and transferred to a CD and a verification memo was
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drawn by Sh. Ram Singh. The appellant Baljeet Singh in said
incriminating conversation asked the complainant to come to his
office in Drum Shaped Building, IP Estate, New Delhi. ACU-I
branch of CBI, New Delhi registered RC AC 1 2010 A 0003 after
verification of the complaint against the appellants Arun Kumar
Gurjar and Baljeet Singh. Ram Singh, Deputy Superintendent of
Police, CBI, ACU-I, New Delhi was detailed as the „Trap Laying
Officer‟ (TLO) and it was decided to lay a trap against the accused
officials of the Income Tax Department. The complainant produced
Trap money equivalent to Rs.2,00,000/- in Rs.1000 denomination.
The money was kept in an envelope and Phenolphthalein Powder
(hereinafter referred to as "PP powder") was smeared on the
currency notes and envelope in presence of both independent
witnesses. The necessary precautions were taken and a pre-trap
memorandum (handing over memo) containing the details of entire
proceedings which took place before trap was drawn in presence of
the team members and was duly signed.
2.4 The complainant was equipped with a digital voice recorder with
a direction by the TLO to record the conversation between him and
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the accused officials during the transaction of bribe money. The trap
money was also handed over to the complainant. The complainant
after arriving at the Drum-shaped building in New Delhi was
instructed to activate his recording device and was then directed to
approach the appellant Baljeet Singh. The complainant at time of
moving into Drum-shaped building was accompanied by the TLO,
Jitendra Bhardwaj, an independent witness and other team members.
The complainant entered into room no. 207 having name plate of the
appellant Arun Kumar Gurjar, Joint Commissioner of Income Tax
where the appellant Baljeet Singh was waiting. The complainant was
closely followed by the TLO and Jitendra Bhardwaj along with other
team members also took safe position near room no. 207. The
complainant came out from said the room and gave pre-decided
signal by touching his shoes. One person came out from room no 207
and proceeded towards the staircase who was pointed out as the
appellant Baljeet Singh by the complainant. TLO and independent
witness Jitendra Bhardwaj along with their team members rushed
towards the appellant Baljeet Singh and challenged him of accepting
bribe from the complainant. The appellant Baljeet Singh attempted to
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put hand into his inner left pocket but was apprehended by TLO and
other team members. The appellant Baljeet Singh was taken to room
no. 207 in the presence of the independent witnesses and the
complainant.
2.5 The appellant Baljeet Singh was searched by independent witness
namely Jitendra Bhardwaj which led to the recovery of an envelope
containing bribe money in the left inner pocket of his coat. The
recovered amount was counted and the serial numbers of the
currency notes amounting to Rs.2,00,000/- exactly matched with
those currency notes which were mentioned in Handing Over Memo.
The appellant Baljeet Singh in presence of both independent
witnesses admitted accepting the bribe from the complainant under
the direction of the appellant Arun Kumar Gurjar who was sitting in
the office of Commissioner of Income Tax at Drum-shaped Building,
New Delhi. The appellant Arun Kumar Gurjar was brought to his
office where the appellant Baljeet Singh reiterated his statement in
the presence of independent witnesses and members of the trap team
whereby confirmed that he accepted the bribe on the directions of the
appellant Arun Kumar Gurjar who could not give any explanation for
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the allegations made by the appellant Baljeet Singh. The appellants
Arun Kumar Gurjar and Baljeet Singh were taken into custody and a
recovery memo mentioning the entire post-trap proceedings was
prepared and the signatures of the trap team members were obtained
on the recovery memo. The recording device previously given to the
complainant was taken back and the incriminating conversation
between the complainant and the appellant Baljeet Singh recorded
during the bribe transaction was transferred to a CD. The washes of
hands and clothes of the appellant Baljeet Singh were collected and
preserved for the purpose of investigation,
2.6 The chamber of the appellant Arun Kumar Gurjar at Drum-
shaped Building in New Delhi before the trap team left the office was
occupied by another CBI team led by Raja Chatterjee, Inspector,
CBI, New Delhi along with Mr. Kamal Kapoor, Joint Commissioner
of Income Tax at Drum-shaped Building, New Delhi who
accompanied the team as a witness cum representative of the Income
Tax Department. The office of the appellant Arun Kumar Gurjar was
searched in the presence of Kamal Kapoor which resulted in the
recovery of cash amount of Rs.6,00,000/- which was taken into
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possession and the appellant Arun Kumar Gurjar could not give
satisfactory explanation about recovery of the cash found in the
drawer of his office chamber. Besides recovery of Rs.2,00,000/- as
bribe money and another sum of Rs.59,000/- in cash was also
recovered from the inner pocket of trouser of the appellant Baljeet
Singh for which he could not give any satisfactory explanation.
2.7 The appellant Arun Kumar Gurjar who was holding the position
of Joint Commissioner of Income Tax (JCIT) Range-29, Drum-
shaped Building, IP Estate, New Delhi commenced his service in the
Income Tax Department in 1999 as an IRS officer. The appellant
Arun Kumar Gurjar in July, 2010 joined as JCIT, Range-29, Drum-
shaped Building, IP Estate, New Delhi falling under the jurisdiction
of the Commissioner of Income Tax-X at Drum-shaped Building, IP
Estate, New Delhi. The appellant Baljeet Singh from June, 2006 to
31.10.2010 was posted as an Inspector in the Income Tax Department
and served in the office of JCIT, Range-29, under CIT-X, Drum-
shaped Building, New Delhi. The appellant on regular transfer from
the office of CIT-X assumed his responsibilities in new office i.e.
IAP-V, CIT (Audit)-1 CR Building, New Delhi on 01.11.2010. The
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appellant Arun Kumar Gurjar from August, 2010 assumed the role of
assessing officer for the scrutiny case of MPVC and Arju Garodia,
Assistant Commissioner of Income Tax at the office of CIT-X, New
Delhi was responsible for assessing this case before appellant Arun
Kumar Gurjar. The appellant Baljeet Singh during his tenure in the
office of CIT-X, Range-29, New Delhi assisted the appellant Arun
Kumar Gurjar in the scrutiny case involving the assessment of
Income Tax of MPVC. The appellant Baljeet Singh despite new
position assisted the appellant Arun Kumar Gurjar in the scrutiny
case involving the firm of the complainant and was also writing order
sheets in the case file on the direction of the appellant Arun Kumar
Gurjar. There was no official order attaching the appellant Baljeet
Singh to the office of the appellant Arun Kumar Gurjar.
2.8 The complainant during investigation was found to be user of
mobile no. 9311067502 (Reliance) and mobile no 9873574750
(Vodafone) was being used by the appellant Baljeet Singh. The
chemical examination report dated 12.01.2011 revealed that the
exhibits showed positive tests indicating the presence of PP Powder.
The Forensic Voice Examination Report indicated positive results
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regarding the comparison between the questioned voice of the
appellant Baljeet Singh as recorded in the CD labeled Q-2 and his
reference specimen voice contained in a CD marked as S-1. The
expert opinion dated 31.03.2011 indicated that the order sheet in the
case file of MPVC was written in the handwriting of the appellant
Baljeet Singh which were signed by the appellant Arun Kumar
Gurjar.
2.9 The investigation established that the appellant Arun Kumar
Gurjar engaged in criminal conspiracy with the appellant Baljeet
Singh and they committed criminal misconduct by soliciting a bribe
of Rs.5,00,000/- from the complainant, a partner in MPVC. The
appellant Baljeet Singh on behalf of the appellant Arun Kumar
Gurjar accepted Rs.2,00,000/- as bribe money from the complainant
on 29.12.2010 in the office of the appellant Arun Kumar Gurjar to
finalize scrutiny of assessment case of MPVC without any hurdle.
The appellants Baljeet Singh and Arun Kumar Gurjar were
implicated for the offences punishable under section 120B IPC read
with section 7 of the PC Act. The charge sheet was filed after
conclusion of investigation. The sanction for prosecution required
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under section 19 of the PC Act with respect to the appellants Arun
Kumar Gurjar and Baljeet Singh were granted by the competent
authorities.
3. The trial court vide order dated 26.02.2013 charged the appellants
Baljeet Singh and Arun Kumar Gurjar for offences punishable under
section 120B IPC read with section 7 of PC Act and for the
substantive offence under section 7 of PC Act. The appellants Baljeet
Singh and Arun Kumar Gurjar pleaded not guilty and claimed trial.
The respondent/CBI to prove its case examined 23 witnesses
including the complainant as PW1 and TLO Ram Singh as PW22.
The prosecution evidence was ordered to be closed vide order dated
08.12.2014.
4. The statements of the appellants Baljeet Singh and Arun Kumar
Gurjar were recorded under section 313 of the Code wherein they
denied the incriminating evidence pertaining to their role in
commission of the offence.
4.1 The appellant Arun Kumar Gurjar stated that the complainant
PW1 never met him and he attended the proceedings only on
25.10.2010 in response to summons issued under section 131 of the
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Income Tax Act. He never demanded any money from the
complainant either directly or through the appellant Baljeet Singh.
The respondent/CBI registered a false case against him on basis of
fabricated documents. The appellant Baljeet Singh even after transfer
assisted him in assessment case of the firm of the complainant as per
practice and it was a time bound case and limitation was expiring on
31.12.2010 and the appellant Baljeet Singh was associated with case
since inception. The appellant Arun Kumar Gurjar further stated that
the assessment pertaining to the firm of the complainant was assigned
to him by CIT-X in August, 2010 and was previously handled by
Arju Garodia who issued a detailed questionnaire seeking
information from the firm of the complainant for the completion of
the scrutiny assessment but the complainant never submitted
complete information. He after taking the charge of the case also
sought the same information from the complainant. The complainant
was aware that the matter was a time bound matter and the
complainant intentionally delayed the proceeding. A detailed
questionnaire/show-cause was issued to the complainant's firm but
the information was again not supplied. The false case was registered
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on 29.12.2010 to avoid the completion of the assessment of the
proceeding on or before 31.12.2010 as income tax department could
not have taken any action after expiry of limitation period i.e.
31.12.2010 in the assessment case in question. He never made any
demand directly or indirectly and performed his duty with honesty
and sincerity in the best interest of the department. The firm of the
complainant was assessed and the penalty was imposed after the
registration of this case. The appellant Arun Kumar Gurjar pleaded
innocence and false implication by the complainant as the
complainant was apprehending substantial financial
liabilities/penalties and prosecution under Income Tax Act. The
appellant Arun Kumar Gurjar further stated that enquiries were also
made by him about the sister concerns of M/s. Madhya Pradesh
Vanijya Company which are RB Commodity Pvt. Ltd., Gaurav
Traders etc. and the complainant in order to scuttle the said enquiries
and to avoid further tax penalties/prosecution under Income Tax Act
implicated him falsely. The appellant Arun Kumar Gurjar preferred
to lead defence evidence and examined Om Prakash, Inspector at
ITO, Ward no 47 (1), Drum Shape Building. The defence evidence
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on behalf of the appellant Arun Kumar Gurjar was ordered to be
closed vide order dated 19.01.2015.
4.2 The appellant Baljeet Singh stated that he was not assessing
officer and was not dealing income tax assessment case of the
complainant. He never demanded or accepted any bribe from the
complainant. He was not present at room no. 207. The tainted money
was planted on him and nothing was recovered from him. He further
stated that he was transferred from ward no. 29 with effect from
01.11.2010 but he was retained in department till 31.03.2011 due to
rush of work on request of senior officers. The appellant Baljeet
Singh further stated that a survey was conducted by the Income Tax
Department under section 133A of the Income Tax Act at the
godown situated at Siraspur and office situated at Naya Bazar
belonging to Firm M/s Radha Kishan Banarsi Das, a family concern
of the complainant. The appellant Baljeet Singh was a member and
instrumental in survey team. M/s Radha Kishan Banarsi Das due to
survey surrendered unaccounted money of Rs. 2 crores and had to
pay penalty of about Rs. 74 lacs. The complainant has threatened him
to teach a lesson and implicate him in false case out of vengeance.
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The assessment case of the complainant was to be expired on
31.12.2010. The complainant got registered false case to avoid
substantial financial penalties/liabilities. The appellant preferred to
lead defence evidence and examined Shiv Swaroop Singh, Joint
Commissioner of Income Tax, Range-7, Ludhiana, Punjab as DW1
and Ravinder Pal, Junior Judicial Assistant, Sessions Record Room,
Patiala House Courts as DW2. The defence evidence on behalf of the
appellant Baljeet Singh was ordered to be closed vide order dated
08.12.2014.
5. The trial court convicted the appellants for the offences punishable
under section 120B IPC read with section 7 of the PC Act vide the
impugned judgment by observing that the prosecution has
established its case and all essential ingredient of offence under
section 120 B IPC read with Section 7 of PC Act against the
appellants Arun Kumar Gurjar and Baljeet Singh beyond any
reasonable doubt and convicted the appellants Arun Kumar Gurjar
and Baljeet Singh for the offences under section 120 B IPC read with
section 7 of the PC Act.The relevant portion of the impugned judgm-
ent is reproduced verbatim as under:-
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34. In view of above discussion, testimony of witnesses,
documents proved on record and the circumstances of the
case it may be concluded that:-
i) A-1 was posted as Joint Commissioner of Income Tax
and A-2 as Inspector, Income Tax and this fact has not
been disputed even by accused persons.
ii) A-2 was assisting A-1 in the case of firm of the
complainant even after the transfer.
iii) Income tax assessment case of Madhya Pardesh
Vanijaya Company, the firm of the complainant was
pending before A-1 which was time bound case and the
limitation was going to be expired on 31.12.2015.
iv) Sanction for prosecution was duly granted by competent
authorities for prosecution of A-1 and A-2.
v) Complaint was lodged by complainant in CBI and the
FIR was registered.
vi)In pre trap proceedings PWl, PW10, PW18 and PW22
participated with some Other officials of CBI and the
proceedings of pre trap has been supported by all the
witnesses. In pre trap proceedings, complainant talked to
A-2 over the phone and A-2 called the complainant to
income tax office. This fact is supported by PWl, PW18 and
PW22 and is corroborated by call detail record (CDR) and
the oral testimony of these witnesses.
vii)The recorded conversation contained in CD Q-1 and CD
Q-2 pertaining to pre trap and post trap proceedings; and
the disclosure made by A-2 in the custody of CBI are not
required to be taken into consideration being inadmissible
evidence.
viii)PWl Complainant Sh. Pawan Kumar Aggarwal has
supported the allegations of demand of bribe by A-1 and A-
2 in income tax office; the acceptance of bribe by A-2; and
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recovery of the same from possession of A-2 from room
no.207. On the question of demand by A-1 and A-2 and the
acceptance of bribe by A-2, PWl is the only witness but he
has consistently supported these allegations during his
testimony and his creditability could not be impeached on
these aspects. Testimony of PWl inspires confidence and
finds corroboration from the circumstantial evidence
followed by recovery of bribe amount from A-2. The fact of
recovery of bribe amount from possession of A-2 is fully
supported by PWl, PW18 and PW22. PW10 has supported
only to the extent that some recoveries were made in post
trap proceedings.
ix) There is nothing on record to accept that PWl and
PW22 had any motive to falsely implicate A-1 and A-2.
PW10 and PW18 are the independent witnesses and there is
no evidence to accept that they had any reason to falsely
depose against A-1 and A-2. In totality of circumstances,
the testimony of PWl, PW10, PW18 and PW22 has
supported by each other on the material aspects of the case
which find corroboration from the documents i.e recovery
memo and handing over memo etc.
x) It has been supported by PWl, PW10, PW18 and PW22
that time and place of meeting in income tax office was
fixed during telephonic conversation between PWl and A-2
in pre trap proceedings. In ordinary course of events, A-2
has noreason to call PWl to meet him in income tax office
and no explanation has been given by A-2 in this regard.
xi)A-2 met PWl in room no.207 of income tax office which
was office room of A-1. In ordinary course of events there
was no reason for A-2 to meet a litigant in the office of his
senior officer (A-1) when A-1 himself was present in the
same complex. It corroborates the story of prosecution.
xii)A-l being the Joint Commissioner of Income Tax was
the Assessing Officer of Income tax case of firm of PWl and
A-2 was assisting him. In the' facts and circumstances of
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the case, A-2 could not demand bribe from PWl without
instructions of A-1. A-2 himself was in no position to give
any favour to firm of PWl without aid and help of A-1
which has clearly established the criminal conspiracy
between A-1 and A-2 for demanding and accepting the
bribe in lieu of favours in income tax assessment case of
firm of PWl.
xiii)The essential ingredient of offence i.e demand of bribe
by A-1 and A-2; acceptance of bribe by A-2 from PWl and
recovery of bribe amount from the possession of A-2 is
proved by prosecution beyond any doubt. The entire chain
of facts and circumstances proves that demand and
acceptance of bribe was by A-1 and A-2 in conspiracy with
each other. A-2 has failed to give any convincing
explanation about possession of bribe amount and
therefore, he has failed to rebut presumption under section
20 of P.C Act.
xiv)Entire chain of circumstances and the facts established
on record proved the guilt of A-1 and A-2 without any
doubt. There is no reasonable hypothesis established on
record to suggest the innocence of A-1 and A-2. In totality
the testimony of PWl, PW10, PW18 and PW22 and other
PWs inspires confidence about truthfulness of material
allegations.
xv)Defence plea of A-1 and A-2 about their false
implication is not proved on record even in preponderance
of probability and does not inspire any confidence.
Therefore, the defence plea of false implication cannot be
accepted.
35. In view of the above findings, I am of the considered
view that prosecution has successfully established its case
and all essential ingredient of offence u/s 120 B IPC r.w.
Section 7 of P. C Act and section 7 of P. C Act against A-1
Arun Kumar Gurjar and A-2 Baljeet Singh beyond any
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reasonable doubt. Therefore, A-1 Arun Kumar Gurjar and
A-2 Baljeet Singh are convicted for the offence u/s 120 B
IPC r.w. Section 7 of P. C Act and section 7 of PC Act. Let
they be heard on quantum of sentence separately
5.1 The trial court vide the impugned order sentenced the appellants
Baljeet Singh and Arun Kumar Gurjar. The relevant portion of the
impugned order is reproduced verbatim as under:-
25. Keeping in view the entire facts and circumstances of
the case, nature and gravity of offence, incriminating and
mitigating circumstances, in my opinion, undue leniency in
such cases is neither desirable nor warranted. The
punishment should be proportionate to the gravity of
offence but as well as should be deterrent enough to give a
right message to such similar offenders.
26. Keeping in view the entire mitigating and incriminating
circumstances, in my opinion, there is no substantial
ground to differentiate the quantum of sentence between
the two convicts.
27. Keeping in view the above discussions, convict Arun
Kumar Gurjar and convict Baljeet Singh are sentenced in
the following manner:-
a) To undergo rigorous imprisonment for 4 years and to
pay fine Rs.One Lakh each for the offence u/s 120 B IPC
r.w section 7 of Prevention of Corruption Act, 1988. In
default of payment of fine the respective convictsshall
undergo simple imprisonment for four months.
b) To undergo rigorous imprisonment for 4 years and to
pay fine of Rs. One Lakh each for the offence u/s 7 of the
Prevention of Corruption Act, 1988. In default of payment
of fine the respective convicts shall further undergo simple
imprisonment for four months.
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28. All the sentences of imprisonment will run
concurrently. Benefit of 428 Cr.P.C. be given to convict
Arun Kumar Gurjar for the period from 29.12.2010 to
28.02.2011 and to convict Baljeet Singh for the period from
29.12.2010 to 25.02.2011 in respect of imprisonment already
undergone by them.
29. In accordance with order on sentence, convict Arun
Kumar Gurjar and Baljeet Singh be taken into custody and
be sent to jail to undergo sentence. Personal bonds and
surety bonds of both the convicts stands cancelled. Copy of
the judgment, order on sentence, charge, report u/s 173
Cr.PC, statement of Pws and Dws and statement of accused
ect be given to the convicts free of cost as per law. Custody
warrants be prepared separately in accordance with the
order of sentence.
6. The appellants being aggrieved by the impugned judgment and
the impugned order filed the present appeals to set aside the
impugned judgment and the impugned order.
6.1 The appellant Arun Kumar Gurjar challenged the impugned
judgment and impugned order primarily on grounds that the
prosecution case is based on speculations and the trial court has
failed to appreciate the prosecution story in right perspective. The
trial court ought to have granted benefit of doubt to the appellant
Arun Kumar Gurjar as there was no direct evidence against him
except disclosure statement of the appellant Baljeet Singh. The
Signing Date:02.04.2024 CRL.A. 630/2015 & CRL.A. 643/2015 Page 22
trial court convicted the appellant on basis of evidences which
were not proved by the prosecution which was also observed by
the trial court. The recorded conversations being CD Q-1 and CD
Q-2 do not contain any reference of demand of the bribe by the
appellant Arjun Kumar Gurjar and the trial court has rightly held
that it is not safe to rely on recorded conversation. The trial court
convicted the appellant Arun Kumar Gurjar merely on the ground
that the appellant Baljeet Singh was transferred on 31.10.2010 but
he after transfer and without any formal order was assisting the
appellant Arun Kumar Gurjar including writing of order sheets
and was sitting in the room of the appellant Arun Kumar Gurjar
which is not an unusual practice. The independent witnesses
PW10 and PW18 of trap proceedings did not support prosecution
case on material aspects. The respondent/CBI did not conduct any
inquiry against the appellant Arun Kumar Gurjar before
registration of FIR. The prosecution has not led any evidence
against the appellant Arun Kumar Gurjar to connect him with the
alleged demand of bribe and only the call records of the appellant
Baljeet Singh were seized, trap proceedings were conducted on
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the appellant Baljeet Singh and recovery was also effected from
the appellant Baljeet Singh. The prosecution could not prove any
conspiracy between the appellants Arun Kumar Gurjar and Baljeet
Singh. The complainant has not mentioned any specific date and
time of alleged demand. The testimony of the complainant was
liable to be rejected being wholly unreliable, motivated being
contradictory and the complainant was having reasons to falsely
implicate the appellant Arun Kumar Gurjar to save himself from
tax liabilities and criminal prosecution. There was inordinate delay
in recording of FIR. The prosecution could not prove place of
recovery. The impugned judgment itself is full of contradictions.
The prosecution has failed to examine material witnesses. The
prosecution has not obtained sanction under section 197 of the
Code for prosecution of offence under section 120 B IPC. The
trial court has awarded excessive sentence to the appellant Arun
Kumar Gurjar. The appellant Arun Kumar Gurjar to challenge
impugned judgment and impugned order also raised other grounds
and referred case law as detailed in grounds of appeal. It is prayed
that the impugned judgment and impugned order be set aside.
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6.2 The appellant Baljeet Singh challenged the impugned
judgment and impugned order on grounds that they are based on
surmises, assumptions and conjectures and contrary to the
evidence. The prosecution has failed to prove any prior meeting of
mind between the appellants Arun Kumar Gurjar and Baljeet
Singh to prove charge under section 120B IPC. The prosecution
has not led legally admissible evidence to prove demand,
acceptance and recovery to establish offence under section 7 of
PC Act. The testimony is not corroborated by any independent
evidence which is inconsistent, contradictory and improved
testimony. The sanctioning authority PW19 S. M. Ashraf while
granting sanction Ex. PW19/A against the appellant Baljeet Singh
did not apply its mind. The complaint Ex PW 1/A is a fabricated
document making the entire prosecution case highly suspicious.
The original complaint made by the complainant PW1 was not
produced during trial rather complaint Ex. PW1/A which was
typed in office of CBI was produced during trial. The trial court
erroneously presumed that there was no change in the complaint
Ex PW 1/A. The prosecution has not proved initial demand which
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is most crucial ingredient of Section 7 of the PC Act. The
deposition of the complainant PW1 regarding initial demand is
self-contradictory and his testimony is unreliable. There is
extraordinary delay in registration of FIR. The testimony of
independent witness did not support case of prosecution and
proved that the alleged recovery from the appellant Baljeet Singh
was tainted and manipulated. The testimony of PW18 Jitender
Bhardwaj has belied the entire prosecution version regarding the
alleged trap of the appellant Baljeet Singh. The testimony of
PW22 Ram Singh TLO is self-contradictory and he was an
interested witness. The handing Over Memo Ex PW 1/E was a
tainted document and no reliance can be placed on said document.
The prosecution could not prove attendance of the complainant
PW1 and submission of complaint on 28.12.2010. The trap
proceedings are appearing to be doubtful from evidence led by the
prosecution. The demand at spot is not proved. The prosecution
could not prove alleged acceptance by the appellant Baljeet Singh
from the complainant PW1 and alleged recovery is extremely
doubtful. The washes relied on by the prosecution are fabricated
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and tempered. The prosecution has not examined material
witnesses to establish guilt of the appellant Baljeet Singh. The
appellant only assisted the office even after his transfer due to
official exigencies and not because of any conspiracy. The
appellant Baljeet Sigh also raised other grounds to challenge
impugned judgment as detailed in grounds of appeal. It was
prayed that impugned judgment and impugned order be set aside.
6.3 The appellants Arun Kumar Gurjar and Baljeet Singh as
such challenged the impugned judgment and the impugned order
primarily on the following grounds:-
i.) The prosecution has failed to establish any prior meeting
of mind to prove charge under section 120 B IPC.
ii) There is no evidence led by the prosecution pertaining to
prove demand, acceptance and recovery.
iii) The sanctioning authorities granted sanction to
prosecute the appellants Arun Kumar Gurjar and Baljeet
Singh without application of mind.
iv) The complaint Ex. PW1/A is a fabricated document
making the entire prosecution case highly suspicious.
v) There is an extraordinary delay in lodging the FIR.
vi) The testimony of the complainant is unreliable
contradictory and there are material contradictions,
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improvements and inherent deficiencies in the testimony of
the complainant.
vii). Hukum Chand PW10 did not support the case of the
prosecution.
viii) The testimony of Ram Singh TLO PW22 is full of
contradictions, improvements and inherent deficiencies and
he was an absolute interested witness.
ix) Handing Over Memo Ex PW 1/E is a tainted document.
x) The prosecution has not proved attendance of the
complainant PWl for lodging of the complaint in CBI
Office on 28.12.2010.
xi) There are contradictions regarding attendance in the
testimonies of PWl, PW10 and PW18 in CBI office on
29.12.2010.
xii) There is no evidence to prove demand at the spot.
xiii) The alleged acceptance of any bribe by appellants
Arun Kumar Gurjar and Baljeet Singh from complainant
PW1 is not proved.
xiv) The washes of the clothes were fabricated/tampered.
7. Chapter III of PC Act deals with offences and penalties. Section 7
deals with offence relating to public servant being bribed. 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
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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
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.
7.1 The Supreme Court in Neeraj Dutta 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
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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
"hostile" or the complainant not beingavailable on account
of his death or for any other reason. In this regard, it is
necessary to discuss the relevant Sections of the Evidence
Act before answering the question for reference.
45. On consideration of the aforesaid cases, the question
framed for determination by the larger Bench is as under:
"(1) Whether, in the absence of evidence of
complainant/direct or primary evidence of demand of
illegal gratification, is it not permissible to draw an
inferential deduction of culpability/guilt of a public
servant under Section 7 and Section 13(1)(d) read with
Section 13(2) of the Prevention of Corruption Act,
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
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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
SCC55 : (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)
34]("MadhukarBhaskarrao 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.
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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
evidence which 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, the
demand and acceptance of illegal gratification by the
public servant, the following aspects have to be borne in
mind:
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(i) if there is an offer to pay by the bribe-giver without
there being 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,
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
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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
theproof 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.
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.
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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.
8. It is reflecting from record that the appellant Arun Kumar
Gurjar was posted as Joint Commissioner of Income Tax and the
appellant Baljeet Singh was posted as Inspector, Income Tax. The
appellant Baljeet Singh was assisting the appellant Arun Kumar
Gurjar in assessment case of the firm of the complainant even
after his transfer and income tax assessment case of MPVC was
time bound case and the limitation was to be expired on
31.12.2010. The complainant PW1 lodged complaint Ex. PW1/A
with the respondent/CBI and after verification present FIR was got
registered.
9. Sh. Siddharth Aggarwal, the learned Senior Counsel for
appellant Arun Kumar Gurjar (appellant in CRL.A.630/2015)
advanced oral arguments and also filed written submissions.
9.1 The learned Senior Counsel argued that the appellant Arun
Kumar Gurjar posted as Joint Commissioner of Income Tax,
Range 29 was victimized by the complainant by filing false and
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motivated complaint to derail the investigation into tax evasion by
his firm MPVC which was to be time-barred on 31.12.2010
without any scope of further time extension. The complainant
PW1 was a partner in MPVC which was selected for scrutiny for
assessment year 2008-09 through Computer Assisted Scrutiny
Selection (CASS) on 03.08.2009 Ex.PW1/DX-22 and was
pending in Ward-29 of Range-29. The Income Tax Department
issued notices to MPVC and related firms to obtain more
information since 03.08.2009 but response given by MPVC was
found to be unsatisfactory and complete documents were not
submitted before assessing officers. The appellant Arun Kumar
Gurjar became the Joint Commissioner of Income Tax of Range
29, Drum Shaped Building, ITO in CIT X in July 2010 and used
to sit in room no 207. The pending assessment of MPVC was
transferred from Arju Goradia, Assistant Commissioner of
Income Tax, CIT X PW16 to the appellant Arun Kumar Gurjar by
the order of Feroz Khan, Commissioner of Income Tax vide order
dated 06.08.2010. The appellant Baljeet Singh was already posted
as Inspector, Income Tax, Circle 29 (Range 29), CIT X in July
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2010 and used to sit in room no 110. The appellant Baljeet Singh
joined Circle 29 sometime in year, 2008 and was associated with
the assessment of MPVC since then even before Arju Goradia
PW16 handled it. The appellant Baljeet Singh also participated in
surveys of the family firms of the complainant PW1 which was
operating from office situated in Naya Bazaar which was also
office of MPCV. The note sheets in MPVC‟s proceedings Ex.
PW1/K2 were written by the appellant Baljeet Singh as reflected
from Ex. PW6/B.
9.2 The learned Senior Counsel further argued that the
complainant was motivated by malice to implicate the appellants
Arun Kumar Gurjar and Baljeet Singh to derail the ongoing
scrutiny of the firms of the complainant including MPVC. The
complainant was a regular tax evader and was having grudge
against the appellant Baljeet Singh as a quarrel happened between
them during the survey conducted by IT department at the firm of
the family of the complainant namely M/s Radha Krishan Banarsi
Dass, Naya Bazaar Office which is also office of MPVC. The
complaint was mala fide and a cover-up for the complainant‟s tax
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practices which were under the scanner even before the appellant
Arun Kumar Gurjar took charge as the assessment officer. The
complainant did not cooperate by giving responses to various
notices issued to the complainant. The complainant deliberately
timed the complaint so that scrutiny of MPVC would get derailed
and time-barred on 31.12.2010. The complainant did not give any
explanation as to why he filed the complaint on 28.12.2010 i.e.
just 3 days before the investigation would become time-barred
despite that first demand for a bribe allegedly being made in
October 2010 as per Ex. PW 1/A. It was further argued that delay
in FIR without proper explanation must be viewed with suspicion
since it gives an opportunity to deliberate and embellish and relied
on Harilal V State of Chhattisgarh, 2023 SCC OnLine SC 1124.
9.3 The learned Senior Counsel for the appellant Arun Kumar
Gurjar further argued that there is no definite evidence of demand
against the appellant Arun Kumar Gurjar except the complaint Ex.
PW1/A. The complainant PW1 is an unreliable witness who
changed his stance many times. The trial court also observed that
testimony of the complainant as PW1 suffers from contradictions,
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improvements, and deficiencies and his testimony should be
scrutinized with caution. The appellant cannot be convicted on
basis of unreliable testimony of the complainant PW1 and referred
K.Ramadoss & another V Deputy Superintendent of Police,
2019 SCC OnLine Mad16566 and State of Punjab V Madan
Mohan Lal Verma, (2013) 14 SCC 153. The allegations of
demand in October and December 2010 are vague, unclear and
inherently improbable. It is also argued that there is no evidence
of acceptance.
9.4 The learned Senior Counsel further argued that there was no
proper verification by the respondent/CBI regarding allegations
against the appellant Arun Kumar Gurjar. The investigating officer
PW23 did not cross-verify version of the complainant about meeting
the appellant Arun Kumar Gurjar in October or 27.12.2010 and no
verification was made in respect of the appellant Arun Kumar Gurjar
in the presence of the independent witnesses.
9.5 The learned Senior Counsel for the appellant Arun Kumar Gurjar
regarding original complaint argued that the prosecution did not
produce original complaint brought by the complainant in CBI office
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and suppression of the original complaint and its substitution with a
new document made the entire case suspect and relied on A. Sevi v.
State of T.N., 1981 Supp SCC 43. It was further argued that
non securing of the original complaint is a glaring error and relied on
C. Prasnnakumar @ Papanna and others V State, Crl. A. No.
376/2006.
9.6 The learned Senior Counsel further argued that the prosecution
has failed to establish conspiracy between the appellants Arun Kumar
Gurjar and Baljeet Singh and pointed out that the trial court inferred
conspiracy between the appellants Arun Kumar Gurjar and Baljeet
Singh on four factors which are i) the appellant Baljeet Singh despite
being transferred was assisting the appellant Arun Kumar Gurjar, ii)
the appellant Baljeet Singh was not in individual position to grant any
favour to the complainant PW1, iii) the appellant Baljeet Singh could
not have demanded the bribe from the complainant PW1 without
instruction of the appellant Arun Kumar Gurjar and iv) the appellant
Baljeet Singh met the complainant PW1 in the office-room of the
appellant Arun Kumar Gurjar. It was argued that these issues are not
good enough to constitute conspiracy between the appellants Arun
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Kumar Gurjar and Baljeet Singh. It was further argued that the
alleged recovery was not affected in room of the appellant Arun
Kumar Gurjar.
9.7 The learned Senior Counsel also argued that there are gross
discrepancies in conduct of the trap proceedings by the
respondent/CBI. The Handing Over Memo (HOM) is of doubtful
veracity. The learned Senior Counsel also attempted to distinguish
case law/judgments relied on by the respondent/CBI and in support
of his arguments cited Harilal V State of Chhattisgarh, 2023 SCC
OnLine SC 1124; State of Punjab V Madan Mohan Lal Verma,
(2013) 14 SCC 153; Mukut Bihari and Another V State of
Rajasthan, (2012) 11 SCC 642; Sevi and Another V State of Tamil
Nadu, 1981 (Supp) SCC 43; Tomaso Bruno and Another V State
of U.P., (2015) 7 SCC 178; CBI V K. Narayanrao, (2012) 9 SCC
512; Meena V State of Maharashtra, (2000) 5 SCC 21. The learned
Senior Counsel argued that the impugned judgment and the
impugned order passed by the trial court be set aside and the
appellant Arun Kumar Gurjar be acquitted.
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10. Sh. Vikas Pahwa, the learned Senior Counsel for appellant
Baljeet Singh (appellant in CRL.A.643/2015) advanced oral
arguments and filed written submissions as well.
10.1 The learned Senior Counsel besides referring dates in chronical
order to establish mala fide intention of the complainant in filing
complaint argued that the appellant Baljeet Singh was falsely
implicated and was wrongly convicted and the case of the
prosecution suffers from inherent contradictions and prosecution
failed to prove its case beyond reasonable doubt. The prosecution
could not prove charges against the appellant Baljeet Singh.
10.2 It was argued that the trap was motivated and was orchestrated
by the complainant PW1 with the help of the respondent/CBI. The
complainant PW1 was facing income tax assessment proceedings for
assessment year 2008-2009 which was to be time barred on
31.12.2010. Hanish Bansal who was not examined as witness, the
authorised representative of MPVC wrote a letter dated 21.12.2010
addressed to the appellant Arun Kumar Gurjar seeking 15 days‟ time
to produce the documents to make the assessment proceedings time
barred under section 153 of the Income Tax Act, 196l which was
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rejected by the appellant Arun Kumar Gurjar. The complainant PW1
was also having previous enmity with the appellant Baljeet Singh to
falsely implicate him as the appellant was associated with the enquiry
of firm M/s Radha Kishan Banarasi Das, a family firm of the
complainant and the appellant Baljeet Singh during survey had
heated arguments with the complainant. Hanish Bansal was handling
proceedings on behalf of MPVC and if the appellants Arun Kumar
Gurjar and Baljeet Singh wished to seek bribe, they could have
demanded from Hanish Bansal. The complainant PW1 did not
mention about survey against M/s Radha Kishan Banarasi in his
complaint Ex. PW 1/A. DW l Shiv Swarup Singh, Joint
Commissioner of Income Tax also deposed about the said scuffle
between the appellant and the complainant.
10.3 The learned Senior Counsel further argued that the appellant
Baljeet Singh was assisting the appellant Arun Kumar Gurjar in
concluding assessment proceedings in various cases which is not
contrary to the practice and procedure adopted by the IT Department
during the period of completion of the assessment. The appellant
Baljeet Singh was posted in the office of Joint Commissioner Income
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Tax, Range-29, under CIT-X, Drum Shaped Building, New Delhi till
31.10.2010 and he joined new office i.e. lAP-V, GIT (Audit)-1, C.R.
Building, New Delhi on 01.11.2010 on transfer and the appellant
Baljeet Singh even after his transfer was assisting the appellant Arun
Kumar Gurjar in scrutiny case of MPVC and writing order-sheets in
the said case on the directions of the appellant Arun Kumar Gurjar.
The appellant was not the assessing officer and had no authority or
power in the assessment and was not in position to show any favour
to the company of the complainant PW 1. The appellant Arun Kumar
Gurjar sent a letter dated 22.10.2010 Ex PW16/DX whereby the
appellant Arun Kumar Gurjar requested CIT-X for staying the
operation of order of transfer of the appellant Baljeet Singh till
31.03.2011. Thereafter Firoz Khan CIT-X sent another letter dated
25.10.2020 ExPW14/DX to request CIT-VI for continuation of the
appellant Baljeet Singh in Range 29 of CIT-X) till 31.03.2011. CCIT-
VI also sent a letter dated 27.10.2010 whereby he forwarded the
request of ClT-X for allowing the appellant Baljeet Singh to continue
in his present place of posting till 31.03.2011 for favourable
consideration. PW16 Arju Garodia deposed that the assessment case
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of MPVC was to be time barred on 31.12.10 and there is maximum
work in Income Tax Department in last about 3-4 months of the year
and the appellant Baljeet Singh was relieved in October-November,
2010 when there was maximum workload in the office in respect of
the assessment work. PW16 also deposed that even after transfer of
officers their assistance are being taken by the officers as and when
required in important or time barred matters. DWl Shiv Swaroop
Singh, Joint Commissioner of Income Tax has also deposed that as a
matter of practice sometimes senior officers used to request the
officials for their assistance even after their transfer. PW23 on
10.10.2014 stated that he did not notice any illegality in the order
sheets and proceedings pertaining to the case of MPVC.
10.4 The learned Senior Counsel further argued that the
prosecution has failed to prove the initial demand which is a sine qua
non for convicting an accused for an offence under section 7 of PC
Act. The initial demand of Rs. 5 lakhs which was allegedly made in
October 2010 is only mentioned in the complaint Ex PW 1/A which
is contradictory to deposition of PW 1 in his chief examination. The
complainant PW 1 introduced for the first time in his examination in
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chief dated 03.06.2013 that initially demand of Rs 1.5 lakhs was
made by the appellants Arun Kumar Gurjar and Baljeet Singh. The
investigating officer PW 23 Vijay Bahadur in cross examination
states that he did not cross verify the version of complainant about
his alleged meeting with the appellant Arun Kumar Gurjar in October
2010. The deposition of the complainant PWl has material
contradictions, improvements and deficiencies and was an interested
witness. The learned Senior Counsel regarding demand made in
December, 2010 submitted that the allegation of demand of Rs.
5 lacs was introduced for the first time on 22/23 December 2010 and
on 27.12.2010 remained uncorroborated hence the sole testimony of
the complainant PW1 cannot be relied upon to prove such demand
beyond reasonable doubt. The complainant PW1 admitted that no
complaint was filed by him before any authority in December 2010
prior to meeting on 27.12.2010. The trial court in impugned judgment
held that it is not safe to rely on recorded conversation hence the
demand is not corroborated by any substantive piece of evidence.
TLO Ram Singh PW22 was an interested witness and his deposition
has contradictions, improvements and deficiencies and as such it can
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be relied on. There is no corroboration to the demand made as the
testimony of PW 22 has to be discarded and the sole testimony of the
complainant PW1 in relation to such demand remains
uncorroborated. The learned Senior Counsel relied on P.
Satyanarayana Murthy V District inspector of police state of
AndhraPradesh, (2015) 10 SCC 152; B. Jayaraj V State of
Andhra Pradesh, (2014) 13 SCC 55 and others judgments.
10.5 It was also argued that the prosecution has failed to prove that
the appellant Baljeet Singh accepted any bribe whether voluntary or
otherwise from the complainant PW 1 on 29.12.2010 in room 207. It
is case of the respondent/CBI that the complainant PWl met the
appellant Baljeet Singh alone in room 207 and shadow witness was
not present and as such there is no corroboration or support to his
version by the independent witness or the recovery witness.
10.6 It was further argued that the presumption under section 20 of
PC Act against a public servant can be drawn only after demand and
acceptance of illegal gratification is proved. The complaint dated
28.12.2010 is a false and manipulated document. There is ample
evidence to suggest that documents prepared by CBI during alleged
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verification, handing over and recovery were prepared subsequently
after the arrest of the appellants Arun Kumar Gurjar and Baljeet
Singh. The learned Senior Counsel also advanced other arguments as
detailed in written submissions.
11. Ms. Anubha Bhardwaj, the learned Special Public Prosecutor
for the respondent/CBI advanced oral arguments and also submitted
written submissions.
11.1 It was argued that the appellant Arun Kumar Gurjar, Joint
Commissioner of Income tax was assessing officer (AO) of firm of
the complainant MPVC and during October, 2010 to December 2010
connived with the appellant Baljeet Singh and entered into criminal
conspiracy and in pursuance thereof by abusing their position as
public servants while scrutinizing the income tax assessment of 2008-
2009 of MPVC, the appellant Arun Kumar Gurjar and the appellant
Baljeet Singh demanded illegal gratification of 5 lakhs in the month
of October, 2010 from the complainant PW1, the partner of MPVC
for scrutiny and finalizing the income tax assessment without any
hurdle. A notice dated 20.12.2010 was issued to MPVC when the
complainant PW1 refused to pay the bribe amount of‟ 5 lacs and
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when the complainant visited the office on 27.12.2010, the appellants
Arun Kumar Gurjar and Baljeet Singh again demanded bribe of Rs. 5
lacs from the complainant PW1 for finalization of entire matter
without any hurdle and illegal gratification of Rs. 2 lacs was accepted
by the appellants Arun Kumar Gurjar and Baljeet Singh on
29. 12.2010 from the complainant.
11.2 The trial Court has passed the impugned Judgement after
appreciation of entire evidence and law. The appellant Arun Kumar
Gurjar was posted as Joint Commissioner of Income tax and the
appellant Baljeet Singh was posted as inspector. The appellant
Baljeet Singh was assisting the appellant Arun Kumar Gurjar in the
case of firm of the complainant even after his transfer. The income
tax assessment case of MPVC, the firm of the complainant was
pending before the appellant Arun Kumar Gurjar which was time
bound case and limitation was to expired on 31.12.2010. The
complainant lodged the complaint on 28.12.2010 and FIR was
registered on 28.12.2015. The complainant PW2, Hukum Chand
PW10, Jitender Bhardwaj PW18 and TLO Ram Singh PW22 along
with other officials of CBI participated in pre trap proceedings and
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these witnesses supported pre trap proceedings. The complainant in
pre trap proceedings talked to the appellant Baljeet Singh over the
phone who called the complainant to income tax office and this fact
is supported by PW1, PW18 and PW22 and is corroborated by call
detail records (CDR) and the oral testimonies of these witnesses. The
complainant PW1 has supported allegations of demand of bribe by
the appellants Arun Kumar Gurjar and Baljeet Singh in income tax
office; the acceptance of bribe by the appellant Baljeet Singh and
recovery of the same from possession of the appellant Baljeet Singh
from room no. 207. The complainant PW1 being sole witness of
demand by the appellants Arun Kumar Gurjar and Baljeet Singh and
acceptance of bribe by the appellant Baljeet Singh has consistently
supported these allegations during his testimony and his credibility
cannot be impeached and inspires confidence. The testimony of the
complainant PW1 is corroborated by circumstantial evidence
followed by recovery of bribe amount from the appellant Baljeet
Singh which is corroborated by the PW1, PW18 and PW22 and
PW10 has supported only to the extent that some recoveries were
made in post trap proceedings.
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11.2.1 It was further argued that there is nothing to establish that the
complainant PW1 and TLO PW22 (TLO) had any motive to falsely
implicate the appellants Arun Kumar Gurjar and Baljeet Singh.
PW10 and PW18 are the independent witnesses and there is no
evidence to accept that they had any reason to falsely depose against
the appellants Arun Kumar Gurjar and Baljeet Singh. The respective
testimony of PW1, PW10, PW18 and PW22 are supporting each
other in material particulars and corroborated from the documents i.e.
recovery memo and handing over memo etc. The appellant Arun
Kumar Gurjar being the Joint Commissioner of Income Tax was the
assessing officer of income tax case of firm of the complainant PW1
and the appellant Baljeet Singh was assisting him and in such
circumstance the appellant Baljeet Singh could not demand bribe
from the complainant PW1 without instruction of the appellant Arun
Kumar Gurjar and the appellant Baljeet Singh was not in position to
give any favour to firm of the complainant without aid and help of
the appellant Arun Kumar Gurjar which has clearly established the
criminal conspiracy between the appellants Arun Kumar Gurjar and
Baljeet Singh for demanding and accepting the bribe in lieu of
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favours in income tax assessment case of firm of the complainant
PW1.
11.2.2 The learned Special Public Prosecutor further argued that
essential ingredients of offence i.e. demand of bribe by the appellant
Arun Kumar Gurjar, acceptance of bribe by the appellant Baljeet
Singh from the complainant PW1 and recovery of bribe amount from
the possession of the appellant Baljeet Singh are proved by
prosecution beyond any doubt. The appellant Baljeet Singh has failed
to give any convincing explanation about possession of bribe amount
and as such has failed to rebut presumption under section 20 of PC
Act. The respective testimony of PW1, PW10, PWI8 and PW22 and
other PWs inspires confidence about truthfulness of material
allegations.
11.3 The Special Public Prosecutor in respect of role of the
appellant Baljeet Singh argued that he was unofficially rendering his
service to the appellant Arun Kumar Gurjar even after his transfer
from CIT-X, range -29 due to criminal conspiracy between them. The
appellant Baljeet Singh was assisting the appellant Arun Kumar
Gurjar in case of scrutiny of MPVC even after his transfer and was
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writing the order sheets of the case of firm of the complainant on the
direction of the appellant Arun Kumar Gurjar and there was no
official order of attachment of the appellant Baljeet Singh to the
office of the appellant Arun Kumar Gurjar. It was further argued that
without the connivance of the appellant Arun Kumar Gurjar it was
not possible for the appellant Baljeet Singh to demand or obtain
illegal gratification from the complainant in the office of the
appellant Arun Kumar Gurjar. The illegal gratification of 2 lacs in
currency notes of serial numbers as mentioned in the handing Memo
was recovered from the pocket of the appellant Baljeet Singh in the
presence of independent witnesses. The appellant Baljeet Singh had
no justification of having that amount in his possession.
11.3.1 It was further argued that the complainant PW1 was user of
mobile phone number 93110675502 (Reliance) as reflected from
testimony of PW8 Rajender Kumar and mobile number 9873574750
(Vodafone) was being used by the appellant Baljeet Singh. The pre
trap proceedings are supported by PW1, PW10, PW18 and PW22.
The test of hand washes and cloth washes gave positive results for
the presence of PP Powder which reflects that PP Powder smeared
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envelope of trap money came in contact of the hands and cloths of
the appellant Baljeet Singh and indicates the acceptance of bribe
money by him. The order sheets pertaining to case of firm of the
complainant were written by the appellant Baljeet Singh and signed
by the appellant Arun Kumar Gurjar as reflected from opinion of
expert from GEQD, Shimla.
11.4 The learned Senior Public Prosecutor in respect of role of
appellant Arun Kumar Gurjar argued that the appellant Arun Kumar
Gurjar, Joint Commissioner of Income Tax, had joined Range 29 in
the month of July 2010 and was Assessing Officer (AO) of firm of
the complainant. The appellant Arun Kumar Gurjar even after
transfer of the appellant Baljeet Singh was getting his services
without any attachment order to his office. The complainant PW1
deposed that the appellants Arun Kumar Gurjar and Baljeet Singh
have demanded bribe in the month of October and the appellant
Baljeet Singh called the complainant in the office of Income Tax on
29.12.2010. The appellant Baljeet Singh received bribe from the
complainant in the office of appellant Arun Kumar Gurjar even after
knowing the fact that appellant Arun Kumar Gurjar was present in
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the same building. During the search conducted in the office of
appellant Arun Kumar Gurjar on 29.12.2015, a sum of Rs. 6 lacs was
recovered from the office drawer of room no 207 of the appellant
Arun Kumar Gurjar in the presence of witnesses which was
corroborated from document Ex. PW15/A i.e. search list dated
29.12.2010, testimonies of PW15 Kamal Kapoor, Joint
Commissioner, Income Tax and PW21 Raja Chatterjee, Inspector
CBI who conducted search at room no. 207 post trap. PW2 Narender
Nahata, an Income Tax Practitioner has deposed that he had not
given any cash amount to the appellant Arun Kumar Gurjar. The
appellant Arun Kumar Gurjar could not satisfactorily explained
recovery of Rs. 6 lacs which reflected that he was indulged in corrupt
practices.
11.5 The learned Special Public Prosecutor during arguments also
controverted arguments advanced on behalf of the appellants Arun
Kumar Gurjar and Baljeet Singh as detailed in written submissions
filed on behalf of the respondent/CBI.
12. The trial court in impugned judgment in light of arguments
advanced on behalf of the appellant Arun Kumar Gurjar that no
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sanction under section 197 of the Code was obtained prior to taking
cognizance for offence under section 120 B IPC observed that the
appellants Arun Kumar Gurjar and Baljeet Singh faced charge for
offence under section 7 of the PC Act and conspiracy to commit
offence under section 7 of PC Act and further observed that
conspiracy to take bribe within the meaning of PC Act cannot be
connected to the official discharge of duty by any imagination. The
trial court also discussed and distinguished case law cited on behalf
of the appellant Arun Kumar Gurjar. The trial court further observed
that PW19 S.M Ashraf, Commissioner of Income Tax, GIT, Audit-I,
C.R Building, IP Estate, New Delhi granted sanction Ex. PW19/A for
prosecution against the appellant Baljeet Singh and PW20 Suresh
Sivanandan, Under Secretary (V &L-I), CBDT, Ministry of Finance,
Department of Revenue, Govt of India, New Delhi proved sanction
dated 13.3.2012 Ex.PW20/A granted against the appellant Arun
Kumar Gurjar by him on the basis of approval by the then Finance
Minister, Govt. of India. The trial court also observed that sanction
order Ex.PW19/A against the appellant Baljeet Singh and sanction
order Ex.PW20/A against the appellant Arun Kumar Gurjar reflect
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that detailed facts and evidence was discussed and accordingly
sanctions were accorded with application of mind. There is nothing in
said finding of the trial court to interfere. The trial court has rightly
and correctly observed that sanctions Ex. PW19/A and Ex. PW20/A
were granted with due application of mind and are legally valid.
13. The trial court in impugned judgment also considered arguments
advanced on behalf of the appellant Baljeet Singh that telephonic
conversation allegedly contained in CD Q-1 and CD Q-2 are alleged
recorded conversation at the time of pre trap and post trap
proceedings are not admissible in evidence. It was also argued that
conversation was originally recorded in DVR which was transferred
in CD Q-1 and CD Q-2 from the DVR but original DVR has not been
produced and CDs prepared from DVR is electronic evidence within
the meaning of Evidence Act and therefore, certificate under section
65 B of the India Evidence Act, 1872 is mandatory requirement but
certificate under section 65 B of the Indian Evidence Act, 1872 was
neither issued nor produced before the court. The trial court after
referring Anwar RV V P.K Bhaseer, Civil Appeal No 4226/2012
decided on 18.09.2014 by the Supreme Court of India observed that
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certificate under section 65 B of the Indian Evidence Act, 1872 was
required from the person who prepared CD Q-l and CD Q-2 with the
help of laptop/computer from DVR and the recorded conversation
contained in CD Q-l and CD Q-2 is not admissible in evidence.
13.1 The trial court also observed that it is reflected from evidence
that at some places the recorded conversation could not be properly
identified by the complainant PW1, many portions are not audible
and some portions are not clearly audible and there are loud
background voices in some portions. The trial court further observed
that there is no finding in CFSL report proved by PW3 Amitosh
Kumar, SSO-II (Physics), CFSL, CBI, New Delhi to eliminate the
possibility of tampering in recorded conversation. The trial court
under given facts and circumstances of present case rightly observed
that it is not safe to rely on such a recorded conversation apart from
the admissibility of this evidence on account of certificate under
section 65B of the Indian Evidence Act, 1872.
14. The complainant PW1 deposed that he was one of the partners of
MPVC in year 2010 which was an income tax assesse and used to file
income tax return regularly. The assessment of income tax was under
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the jurisdiction of ward no.29. The appellants Arun Kumar Gujjar
and Baljeet Singh were dealing with the income tax assessment of
MPVC for the assessment year 2008-2009. The complainant used to
meet the appellants Arum Kumar Gujjar and Baljeet Singh in relation
with the income tax assessment in their office. The complainant in
October, 2010 in response to a notice received from the income tax
office pertaining to the assessment of income tax of MPVC for the
year 2008-2009 met the appellant Baljeet Singh in his office and
submitted few documents required by income tax department for the
assessment of income tax. The complainant PW1 again met the
appellant Baljeet Singh who asked the complainant PW1 to submit
other documents. The complainant PW1 again met the appellant
Baljeet Singh in mid of December, 2010 in his office and the
appellant Baljeet Singh took him to the office of the appellant Arun
Kumar Gujjar where the appellant Baljeet Singh demanded bribe of
Rs.5 lacs to settle the case. The complainant PW1 again met the
appellant Baljeet Singh on 22nd/23rd, December, 2010 in his office
where the appellant Baljeet Singh again demanded Rs.5 lacs. The
complainant again met the appellant Baljeet Singh in his office on
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27.12.2010 but he did not agree to accept less than Rs. 5 lacs to settle
case. The complainant on 28.12.2010 lodged a complaint Ex. PWl/A
in the office of CBI, New Delhi. The complainant PW1 in cross
examination conducted on behalf of the appellant Baljeet Singh
deposed and admitted that he firstly visited office of CBI on
28.12.2010 and he reached the CBI office along with the already
written complaint which was typed by his staff namely Hanish
Bansal on his instructions in the morning of 28.12.2010. The
complainant PW1 further deposed that the complaint Ex. PWl/A is
not the same complaint which was typed by Hanish Bansal in office
as there were mistakes in the complaint typed by Hanish Bansal and
due to this complaint Ex. PW1/A was retyped in CBI office. The
complainant PW1 could not answer whether the complaint typed by
Hanish Bansal was returned back to him by the CBI officers. The
complainant PW1 denied suggestion that the complaint Ex. PWl/A
was typed in CBI office according to the directions of the CBI
officers by incorporating false facts. It is reflecting from the
testimony of the complainant Ex. PW1/A was not the complaint
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which was originally brought by the complainant in office of CBI and
the complaint Ex. PW1/A was retyped in office of CBI.
14.1 The learned Senior Counsel for the appellant Arun Kumar
Gurjar argued that entire prosecution case is suspected as the
prosecution did not produce original complaint which was substituted
by a new document and relied on Sevi V State of T.N., 1981 Supp
SCC 43. He further argued that the respondent/CBI did not secure
original complaint which is a glaring error and relied on C.
Prasnnakumar @ Papanna and others V State, Crl. A. No.
376/2006 decided on 13th March, 2013 by the High Court of
Karnataka. He further argued that Hanish Bansal was dropped as a
witness and an adverse inference under Section 114(g) of the Indian
Evidence Act, 1872 must be drawn against the prosecution and relied
on Tomaso Bruno V State of U.P., (2015) 7 SCC 178.
14.2 The learned Senior Counsel for the appellant Baljeet Singh
argued that the complaint dated 28.12.2010 Ex. PW1/A is a false and
manipulated document as the original complaint which was typed in
office of the complainant PW1 was never produced during trial. The
complainant PW1 also admitted that the complaint EX PWl/A was
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not the same complaint which was typed by Hanish Bansal in office
and the complaint Ex. PW1/A was retyped in the CBI office. The
respondent/CBI/prosecution did not examine Hanish Bansal who was
an important witness and as such adverse inference is required to be
taken against the prosecution.
14.3 The trial Court in impugned judgment regarding argument that
the complaint Ex. PW1/A is a fabricated document and other
arguments as detailed herein above observed that in present case it
was established that the original complaint was typed in the office of
the complainant PWl and was given to CBI where another complaint
Ex.PWl/A was prepared which became the basis for registration of
FIR and the original complaint was not produced by prosecution
during trial. The trial court further observed that the complainant
PW1 during testimony explained retyping of the complaint in CBI
office as it was not properly addressed and change in complaint is
required to be seen in the facts and circumstances of the particular
case. PW 10 gave explanation and admitted his signature on the
complaint. The trial court further observed that there was nothing on
record to accept that any material allegation of complaint was
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changed and ultimately opined that in the facts and circumstances of
the present case, no importance can be given to this aspect of
complaint. The trial court also distinguished case law under given
facts and circumstances of the case.
14.4 The learned Special Public Prosecutor for CBI in light of
observation made by the trial court argued that the trial court in
impugned judgment has considered the arguments advanced on
behalf of the appellants Arun Kumar Gurjar and Baljeet Singh and
rightly held that there was nothing on record to prove that there was
any material change in the retyped complaint except the proper
address as clarified by the complainant PW1 during his testimony
and trial court has rightly held that in the facts and circumstances of
the present case no importance can be given on this aspect of change
of complaint.
14.5 The Supreme Court in Sevi and another V State of Tamil
Nadu and another as cited by the learned Senior Counsel for the
appellant Arun Kumar Gurjar observed as under:-
According to the suggestion of defence the original First
Information Report which was registered was something
altogether different from what has now been put forward
as the First Information Report and that the present report
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is one which has been substituted in the place of another
which was destroyed. To substantiate their suggestion the
defence requested the Sessions Judge to direct the Sub-
Inspector to produce the First Information Report Book in
the Court so that the counterfoils might be examined. The
Sub-Inspector was unable to produce the relevant F.I.R.
Book in Court notwithstanding the directions of the Court.
The F.I.R. book, if produced, would have contained the
necessary counterfoils corresponding to the F.I.R. produced
in Court. The Sub-Inspector when questioned stated that he
searched for the counterfoil book but was unable to find it,
an explanation which we find impossible to accept. We
cannot imagine how any F.I.R. Book can disappear from a
Police Station. Though he claimed that relevant entries had
been made in the general diary at the Station the Sub-
Inspector did not also produce the general diary in Court.
The production of the general diary would have certainly
dispelled suspicion. In the circumstances we think that
there is great force in the submission of the learned Counsel
for the accused that the original F.I.R. has been suppressed
and, in its place some other document has been substituted.
If that is so, the entire prosecution case becomes suspect.
All the eye-witnesses are partisan witnesses and
notwithstanding the fact that four of them were injured we
are unable to accept their evidence in the peculiar
circumstances of the case. Where the entire evidence is of a
partisan character impartial investigation can lend
assurance to the Court to enable it to accept such partisan
evidence. But where the investigation itself is found to be
tainted the task of the Court to sift the evidence becomes
very difficult indeed.
The High Court of Karnataka in Prasannakumar @
Papanna and others V State, Criminal Appeal No 376/2006
decided on 13.03.2013 observed that the original complaint was not
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produced and no steps were taken to produce original complaint
during the trial and as such it cannot be looked into.
14.6 In the present case the complainant PW1 brought one typed
complaint in office of CBI which was stated to be not properly
addressed. Thereafter another complaint Ex. PW1/A was retyped in
office of CBI and said complaint is basis of registration of present
FIR. There is nothing on record which can suggest that the contents
of previous complaint which was already typed in office of the
complainant PW1 were materially different from the complaint
Ex. PW1/A which was retyped in office of CBI. Although previous
complaint was not produced during trial and this may raise suspicion
about case of prosecution but is not fatal to case of prosecution. The
trial court rightly held that there was nothing to prove that there was
any material change in the retyped complaint except the proper
address as clarified by the complainant PW1 during his testimony
and no importance can be given on aspect of change of complaint in
the facts and circumstances. The trial court rightly observed that case
law cited on behalf of the appellants as referred herein above can be
distinguished under facts and circumstances of present case.
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15. The learned Senior Counsel for the appellant Arun Kumar Gurjar
argued that it is a settled principle of law that delay in FIR without
proper explanation must be viewed with suspicion since it gives an
opportunity to deliberate and embellish and relied on Harilal V State
of Chhattisgarh, 2023 SCC OnLine SC 1124. The learned counsel
for the appellant Baljeet Singh also argued that there was delay in
lodging FIR as alleged demand was made in October, 2010 but FIR
was registered on 29.12.2010 on complaint dated 28.12.2010 as the
assessment in respect of MPVC was going to be time barred and
needed to be completed by 31.12.2010. The Special Public
Prosecutor in argument defended observation made by the trial court
in impugned judgment regarding delay in FIR.
15.1 The trial court in impugned judgment considered argument
advanced on behalf of the appellants Arun Kumar Gurjar and Baljeet
Singh that the appellants Arun Kumar Gurjar and Baljeet Singh as
per complaint Ex. PWl/A allegedly demanded bribe of Rs.5 lacs from
the complainant in October 2010 which he refused to pay and the
bribe was again demanded by the appellants Arun Kumar Gurjar and
Baljeet Singh in December, 2010 and the complainant approached
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CBI on 28.12,2010 only due to reason that income tax assessment
case of firm of the complainant was to be time barred on 31.12.2010.
The trial court also considered argument that no explanation was
given by the complainant or the prosecution that why the
complainant did not approach investigating agency or any other
authority in October/November 2010 i.e. immediately after the
demand of bribe and unexplained delay in reporting the matter has
created a serious doubt about the genuineness of the complaint and
testimony of the complainant. The trial court in impugned judgment
observed that that delay in FIR is not fatal in each and every case if it
is properly explained. The trial court further observed that as per the
complainant PW1 first demand was made by the appellants Arun
Kumar Gurjar and Baljeet Singh in October, 2010 but the
complainant approached CBI on 28.12.2010 and there was nothing
on record to accept that due to delay in FIR there had been any
material change in the allegations and there was no reason for the
complainant PW1 to lodge a complaint against senior public servants
and held that there was no unusual delay in lodging FIR.
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15.2 The Supreme Court in Harilal V State of Chattisgarh as
referred by the learned Senior Counsel for the appellant Arun Kumar
Gurjar observed as under:-
When an FIR is delayed, in absence of proper explanation,
the courts must be on guard and test the evidence
meticulously to rule out possibility of embellishments in the
prosecution story, inasmuch as delay gives opportunity for
deliberation and guess work.
15.3 It is accepted legal proposition that delay in lodging FIR must
be properly explained to rule out chance of manipulation and
embellishments. In present case the appellants Arun Kumar Gurjar
and Baljeet Singh were handling income tax assessment of firm of
the complainant i.e. MPVC. The appellants Arun Kumar Gurjar and
Baljeet Singh as per the complainant initially demanded bribe of Rs.
1.5 lacs in month of October, 2010 which was raised to Rs. 5 lacs in
month of December, 2010 which the complainant was not able to pay
and thereafter the complainant on 28.12.2010 lodged the complaint
Ex. PW1/A which was basis of registration of FIR. The prosecution
under given facts and circumstances of case has properly explained
delay in registration of FIR. There is no legal force in arguments
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advanced on behalf of appellants Arun Kumar Gurjar and Baljeet
Singh that there was unexplained delay in registration of FIR.
16. The respective Senior Counsels for the appellants Arun Kumar
Gurjar and Baljeet Singh pleaded argued malicious prosecution of the
appellants Arun Kumar Gurjar and Baljeet Singh by the complainant
PW1. The learned Senior Counsel for the appellant Arun Kumar
Gurjar argued that the complainant PW1 was motivated by malice to
implicate the appellant Arun Kumar Gurjar to derail ongoing scrutiny
of various companies of the complainant including MPVC and one of
the firm of the complainant namely M/s Radha Krishan Banarsi Dass
was subjected to survey by the IT Department in January 2010 and
paid tax liability/penalty of Rs. 74 lacs due to surrender of
unaccounted stock of about Rs.2 crores. The appellant Baljeet Singh
had a quarrel with the complainant PW1 during survey conducted by
IT department regarding M/s Radha Krishan Banarsi Dass. The
complainant lodged false complaint Ex. PW1/A to cover up his tax
practices which were under scanner even before the appellant Arun
Kumar Gurjar took charge as assessing officer. The case of MPVC
was selected for scrutiny through Computer Assisted Scrutiny
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Selection (CASS) since 2009 Ex.PW1/DX22 and was allotted to the
appellant Arun Kumar Gurjar. The complainant PW1 deliberately
timed the complaint Ex. PW1/A in a way that the scrutiny of MPVC
would get derailed and time-barred on 31.12.2010. The complainant
PW1 has abused action of CBI as an excuse to obtain undue benefit.
16.1 The learned Senior Counsel for the appellant Baljeet Singh
after referring dates in chronological order to establish motive on part
of the complainant PW1 also argued that the trap was motivated by
the complainant PW1 as firm of the complainant MPVC was facing
income tax assessment proceedings for assessment year 2008-2009
which was to be time barred on 31.12.2010. The complainant PW1
had a reason to delay the ongoing proceedings of Income Tax
Assessment by 3 days and also had previous enmity with the
appellant Baljeet Singh to falsely implicate him. The appellant
Baljeet Singh and the complainant had heated arguments during
survey conducted by IT Department regarding another firm of the
complainant namely M/s Radha Kishan Banarasi Das. The learned
Senior Counsel for the appellant Baljeet Singh also referred
testimony of DWl Shiv Swarup Singh, Joint Commissioner of
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Income Tax who also deposed about scuffle between the appellant
Baljeet Singh and the complainant.
16.2 The learned Special Public Prosecutor for the respondent/CBI
argued that there is nothing on record to accept that the complainant
PW1 and PW22 Ram Sing TLO had any motive to falsely implicate
the appellants Arun Kumar Gurjar and Baljeet Singh and PW10 and
PW18 were the independent witnesses without any reason to falsely
depose against the appellants Arun Kumar Gurjar and Baljeet Singh.
The respective testimony of PW1, PW10, PW18 and PW22 has
supported by each other on the material particulars and are
corroborated by the documents i.e. recovery memo and handing over
memo etc. The learned Special Public Prosecutor also referred
relevant part of the impugned judgment.
16.3 The trial court in impugned judgment discussed arguments
advanced on behalf of the appellants Arun Kumar Gurjar and Baljeet
Singh that the complainant PW1 was having motive to falsely
implicate the appellants Arun Kumar Gurjar and Baljeet Singh as the
complainant PWl had a scuffle/quarrel with the appellant Baljeet
Singh at the time of survey of his firm in another income tax case and
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income tax assessment pertaining to MPVC was to be time barred on
31.12.2010 and due to this the complainant PW1 was having motive
against the appellant Baljeet Singh. The trial court after considering
these arguments observed that the appellant Baljeet Singh had dispute
with the complainant appellant Baljeet Singh at the time of survey of
another firm for income tax assessment case. The appellant Baljeet
Singh was assisting the appellant Arun Kumar Gurjar in the income
tax assessment case of MPVC and was writing the order sheets. The
trial court further observed that the appellant as per testimony of the
complainant PW1, the appellant Baljeet Singh was continuously in
the touch in respect of demand of bribe. The trial court held that in
ordinary course of events, it is hard to believe that the complainant
PWl will go to the extent of lodging false case against the appellant
Baljeet Singh on account of minor argument much prior to present
case. The trial court further observed that as per record assessment
case of MPVC was going to be barred on 31.12.2010 and held that it
is not probable that the complainant PWl would have lodge the false
complaint against the appellants Arun Kumar Gurjar and Baljeet
Singh just to delay the time bound income tax assessment case of
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MPVC and there was in particular no reason for the complainant
PW1 to implicate the appellant Arun Kumar Gurjar. Accordingly in
consideration of the trial court plea of false implication of the
appellants Arun Kumar Gurjar and Baljeet Singh by the complainant
PWl did not inspire any confidence and there is no convincing
material on record to accept the plea of false implication. The trial
court as such considered plea of false implication of the appellants
Arun Kumar Gurjar and Baljeet Singh by the complainant PW1 due
to reasons as mentioned hereinabove in detail and in right
perspective. The plea of false implication is without any justification
and there is no force in arguments advanced by the learned Senior
Counsels for the appellant Arun Kumar Gurjar and the Baljeet Singh
that they were falsely implicated at instance of the complainant due
to reasons as detailed hereinabove.
17. Another issue which needs judicial consideration is existence of
conspiracy between the appellants Arun Kumar Gurjar and Baljeet
Singh as alleged by the prosecution. The learned Senior Counsel for
the appellant Arun Kumar Gurjar argued that the prosecution has
failed to establish conspiracy between the appellants Arun Kumar
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Gurjar and Baljeet Singh and trial court in impugned judgment
wrongly inferred existence of conspiracy between them as the
appellant even after being transferred was assisting the appellant
Arun Kumar Gurjar; the appellant Baljeet Singh was not in any
individual position to grant any benefit or favour to the complainant
PW1; the appellant Baljeet Singh could not have demanded the bribe
from the complainant PW1 without the appellant Arun Kumar Gurjar
and the appellant Baljeet Singh met the complainant in office room
of the appellant Arun Kumar Gurjar. It was further argued that mere
fact that the appellant Baljeet Singh was assisting the appellant Arun
Kumar Gurjar after transfer in the assessment of MPVC cannot lead
to any inference of conspiracy between the appellant Arun Kumar
Gurjar and Baljeet Singh as it was not uncommon to take assistance
of transferred officers which was also supported by the testimony of
DW1 and PW16. The appellant Arun Kumar Gurjar had formally
requested to stay the transfer of the appellant Baljeet Singh out of
Range 29 as he was looking after the uploading of demand of Central
Processing Centre which has to be completed by 31.12.2010 and
other time barred matters vide letter dated 22.10.2010 Ex. PW16/DA.
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Sh. M. P. Varshney Chief CIT also made similar request vide letter
dated 27.10.2010 and Firoz Khan, CIT Delhi-10 vide letter dated
25.10.2010 Ex.PW14/DX also requested for permission till
31.03.2011 as transfer of appellant Baljeet Singh would adversely
impact the office work of Range-29. The operation of order of
transfer of the appellant Baljeet Singh was stayed till 31.10.2010 vide
Ex. PW16/DA who was only providing limited clerical assistance to
the appellant Arun Kumar Gurjar. The inference of conspiracy
between the appellants Arun Kumar Gurjar and the Baljeet Singh
cannot be based on the shaky ground that the appellant Baljeet Singh
met the complainant PW1 in the room no. 207 which belonged to the
appellant Arun Kumar Gurjar. The charge of conspiracy between the
appellants Arun Kumar Gurjar and Baljeet Singh cannot be deemed
to have been established on mere suspicion and surmises or
inferences which are not supported by cogent and acceptable
evidence and has to be proved beyond reasonable doubt which it has
not been. The learned Senior Counsel for the appellant relied on CBI
V K. Narayanrao, (2012) 9 SCC 512.
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17.1 The learned Senior Counsel for the appellant Baljeet Singh
argued that the appellant Baljeet Singh was assisting the appellant
Arun Kumar Gurjar in concluding assessment proceedings in various
cases which is not illegal or contrary to the practice and procedure
adopted by the IT Department. The appellant Baljeet Singh was not
the assessing officer and hence had no authority or power in the
assessment and was not in position to show any favour to the firm of
the complainant and was only assisting the assessing officer i.e. the
appellant Arun Kumar Gurjar. The learned Senior Counsel referred
letter dated 22.10.2010 Ex PW16/DX whereby the appellant Arun
Kumar Gurjar requested CIT-X for staying the operation of order of
transfer of the appellant Baljeet Singh till 31.03.2011 due to the
reason that the appellant Baljeet Singh was looking after the
uploading of demand on CPC to be completed by 31.12.2010 and
other time barred matters and letter dated 25.10.2020 ExPW14/DX
was sent by Firoz Khan CIT-X whereby requested the CIT-VI for
continuation of the appellant Baljeet Singh in his place of posting in
Range 29 of CIT-X till 31.03.2011. He also referred another letter
dated 27.10.2010 of CCIT-VI whereby he forwarded the request of
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ClT-X for allowing the appellant Baljeet Singh to continue in his
present place of posting till 31.03.2011 for favourable consideration.
He also referred testimonies of PW16 Ms Arju Garodia, DWl Shiv
Swaroop Singh, Joint Commissioner of Income Tax and PW23.
17.2 The learned Special Public Prosecutor for CBI argued that
there was criminal conspiracy between the appellants Arun Kumar
Gurjar and Baljeet Singh as the appellant Baljeet Singh was assisting
the appellant Arun Kumar Gurjar in the assessment case of MPVC
and was rendering his services to the appellant Arun Kumar Gurjar
even after his transfer from CIT-X and was writing order sheet of the
case of the firm of complainant which were signed by the appellant
Arun Kumar Gurjar and relied on opinion of expert from GEQD,
Shimla. The Special Public Prosecutor further argued that it was not
possible for the appellant Baljeet Singh to obtain illegal gratification
from the complainant in the room no. 207, office of the appellant
Arun Kumar Gurjar without connivance of the appellant Arun Kumar
Gurjar. The Special Public Prosecutor defended the impugned
judgment related to criminal conspiracy between the appellants Arun
Kumar Gurjar and Baljeet Singh and stated that the trial court has
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rightly appreciated the evidence and convicted the appellants Arun
Kumar Gurjar and Baljeet Singh for the offence punishable under
section 120-B IPC read with section 7 of PC Act.
17.3 The trial court in relation to criminal conspiracy between the
appellants Arun Kumar Gurjar and Baljeet Singh observed as under:-
34. In view of above discussion, testimony of witnesses,
documents proved on record and the circumstances of the
case it may be concluded that:-
i) A-1 was posted as Joint Commissioner of Income Tax
and A-2 as Inspector, Income Tax and this fact has not
been disputed even by accused persons.
ii) A-2 was assisting A-1 in the case of firm of the
complainant even after the transfer.
iii) Income tax assessment case of Madhya Pardesh
Vanijaya Company, the firm of the complainant was
pending before A-1 which was time bound case and the
limitation was going to be expired on 31.12.2010.
x) ..... In ordinary course of events, A-2 has noreason to
call PWl to meet him in income tax office and no
explanation has been given by A-2 in this regard.
xi)A-2 met PWl in room no.207 of income tax office which
was office room of A-1. In ordinary course of events there
was no reason for A-2 to meet a litigant in the office of his
senior officer (A-1) when A-1 himself was present in the
same complex. It corroborates the story of prosecution.
xii)A-l being the Joint Commissioner of Income Tax was
the Assessing Officer of Income tax case of firm of PWl and
A-2 was assisting him. In the' facts and circumstances of
the case, A-2 could not demand bribe from PWl without
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instructions of A-1. A-2 himself was in no position to give
any favour to firm of PWl without aid and help of A-1
which has clearly established the criminal conspiracy
between A-1 and A-2 for demanding and accepting the
bribe in lieu of favours in income tax assessment case of
firm of PWl.
17.4 Section 120A of IPC defines criminal conspiracy
which reads as under:
120A. Definition of criminal conspiracy.--When two
or more persons agree to do, or cause to be
done,--
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.
Explanation. It is immaterial whether the illegal act is the
ultimate object of such agreement, or is merely incidental
to that object.
Section 120 B provides punishment for criminal conspiracy which
reads as under:-
120B. Punishment of criminal conspiracy.--(1) Whoever is a
party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same
manner as if he had abetted
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(2) Whoever is a party to a criminal conspiracy other than
a criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with
fine or with both.
The Supreme Court in State through Superintendent of
Police V Nalini & others, (1999) 5 SCC 253 discussed and
summarized ingredients to constitute a criminal conspiracy which are
as follows:
i) Conspiracy is when two or more persons agree to do or
cause to be done an illegal act or legal act by illegal means.
ii) The offence of criminal conspiracy is an exception to the
general law, where intent alone does not constitute crime. It
is the intention to commit a crime and join hands with
persons having the same intention.
iii) Conspiracy is hatched in private or in secrecy. It is
rarely possible to establish a conspiracy by direct evidence.
Usually, the existence of the conspiracy and its objects have
to be inferred from the circumstances and the conduct of
the accused.
iv) Where in pursuance of the agreement, the conspirators
commit offenses individually or adopt illegal means to do a
legal act that has a nexus to the object of the conspiracy, all
of them will be liable for such offenses even if some of them
have not actively participated in the commission of those
offenses.
The Supreme Court in Yakub Abdul Razak Memon V
State of Maharashtra, (2013) 13 SCC 1 followed these principles
and reiterated that to establish conspiracy it is necessary to establish
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an agreement between the parties and the offence of criminal
conspiracy is of joint responsibility, all conspirators are liable for the
acts of each of the crimes which have been committed as a result of
the conspiracy. The Supreme Court again in Sanjeev V State of
Kerala, Criminal Appeal No 1134 of 2011 decided on 09th
November, 2023 and Pavana Dibbur V
The Directorate of Enforcement, Criminal Appeal No 2779 of
2023 decided on 29.11.2023 again referred these principles.
17.5 It is reflecting that the appellant Baljeet Singh was looking
after the assessment case of the MPVC and even after his transfer
continued to deal with assessment case of MPVC for assessment year
2008-2009 and was also writing the order sheets as reflected from the
expert opinion from GEQD Shimla which were subsequently signed
by the appellant Arun Kumar Gurjar. There was no specific order for
attaching the appellant Baljeet Singh with the appellant Arun Kumar
Gurjar. The prosecution also alleged that the complainant was called
by the appellant Baljeet Singh in the room of the appellant Arun
Kumar Gurjar and the appellant Baljeet Singh in the ordinary course
could not have demanded bribe from the complainant PW1 without
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the instructions of the appellant Arun Kumar Gurjar and further the
appellant Baljeet Singh was also not in official position to favor the
complainant PW1 in hassle free disposal of assessment case of the
firm of the complainant namely MPDC for the assessment year 2008-
2009. The trial court also agreed with this stand of the prosecution as
well as the arguments advanced by the Special Public Prosecutor.
17.6 It is correct that the conspiracy are conceived and executed in
privacy and it is very difficult to establish conspiracy by direct
evidence. The existence of the conspiracy has to be inferred from the
prevailing circumstances as well as the conduct of the accused.
However in present case, the mere facts that the appellant Baljeet
Singh was assisting the appellant Arun Kumar Gurjar in assessment
case of the MPVC which was to be expired on 31.12.2010 even after
his transfer and if the appellant Baljeet Singh met with the
complainant PW1 in the office of the appellant Arun Kumar Gurjar
and the appellant Baljeet Singh was writing the order sheet under the
signature of the appellant Arun Kumar Gurjar as confirmed by the
expert opinion are not itself sufficient to establish an agreement
between the appellants Arun Kumar Gurjar and Baljeet Singh and
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prior meeting of mind. The observations as given by the trial court in
the impugned judgment are based on the presumption and assumption
rather the true appreciation of the evidence. There is no force in the
arguments advanced by the Special Public Prosecutor for the
Respondent/CBI that the facts as mentioned hereinabove are
sufficient to constitute conspiracy between the appellant Arun Kumar
Gurjar and Baljeet Singh. The respective learned Senior Counsels for
the appellants Arun Kumar Gurjar and Baljeet Singh have rightly
argued that there are no sufficient evidences to establish the
conspiracy between the appellant Arun Kumar Gujjar and Baljeet
Singh for demanding and accepting bribe as alleged by the
complainant PW1. The prosecution has failed to establish existence
of conspiracy between the appellants Arun Kumar Gurjar and Baljeet
Singh. The appellants Arun Kumar Gurjar and Baljeet Singh should
not have been convicted for the offence punishable under section
120B IPC read with section 7 of the PC Act.
18. It is accepted legal proposition that proof of demand and
acceptance of the gratification is a sine qua non to constitute offence
punishable under section 7 of the PC Act and presumption under
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section 20 of the PC Act can be invoked only on proof of demand of
gratification by the accused and the acceptance thereof. The offence
under Section 7 cannot be established unless demand and acceptance
are established. It is also accepted legal proposition that mere
acceptance of any illegal gratification or recovery thereof in the
absence of proof of demand would not be sufficient to bring home
the charge under Sections 7 of the PC Act. However an accused can
be convicted for offence of demanding a bribe or illegal gratification
under the PC Act on circumstantial evidence in the absence of direct
oral and documentary evidence. It was observed by the Supreme
Court in State of Punjab V Madan Mohan Lal Verma, (2013) 14
SCC 153 as under which was also cited by the learned Senior
Counsel for the appellant Arun Kumar Gurjar:-
10. It is a settled legal proposition that in exceptional
circumstances, the appellate court for compelling reasons
should not hesitate to reverse a judgment of acquittal
passed by the court below, if the findings so recorded by the
court below are found to be perverse, i.e. if the conclusions
arrived at by the court below are contrary to the evidence
on record; or if the court's entire approach with respect to
dealing with the evidence is found to be patently illegal,
leading to the miscarriage of justice; or if its judgment is
unreasonable and is based on an erroneous understanding
of the law and of the facts of the case. While doing so, the
appellate court must bear in mind the presumption of
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innocence in favour of the accused, and also that an
acquittal by the court below bolsters such presumption of
innocence. (Vide: Abrar v. State of U.P., AIR 2011 SC
354; Rukia Begum v. State of Karnataka, AIR 2011 SC
1585; and State of Madhya Pradesh v. Dal Singh & Ors.,
AIR 2013 SC 2059).
11. The law on the issue is well settled that demand of
illegal gratification is sine qua non for constituting an
offence under the Act 1988. Mere recovery of tainted
money is not sufficient to convict the accused when
substantive evidence in the case is not reliable, unless there
is evidence to prove payment of bribe or to show that the
money was taken voluntarily as a bribe. Mere receipt of the
amount by the accused is not sufficient to fasten guilt, in the
absence of any evidence with regard to demand and
acceptance of the amount as illegal gratification. Hence, the
burden rests on the accused to displace the statutory
presumption raised under Section 20 of the Act 1988, by
bringing on record evidence, either direct or
circumstantial, to establish with reasonable probability,
that the money was accepted by him, other than as a motive
or reward as referred to in Section 7 of the Act 1988. While
invoking the provisions of Section 20 of the Act, the court is
required to consider the explanation offered by the accused,
if any, only on the touchstone of preponderance of
probability and not on the touchstone of proof beyond all
reasonable doubt. However, before the accused is called
upon to explain how the amount in question was found in
his possession, the foundational facts must be established by
the prosecution. The complainant is an interested and
partisan witness concerned with the success of the trap and
his evidence must be tested in the same way as that of any
other interested witness. In a proper case, the court may
look for independent corroboration before convicting the
accused person. (Vide: Ram Prakash Arora v. The State of
Punjab AIR 1973 SC 498; T. Subramanian v. The State of
T.N., AIR 2006 SC 836; State of Kerala & Anr. v. C.P. Rao,
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(2011) 6 SCC 450; and Mukut Bihari & Anr. v. State of
Rajasthan, (2012) 11 SCC 642).
18.1 The learned Senior Counsels for the appellant Arun Kumar
Gurjar argued that the prosecution has failed to prove the twin
requirements of demand and acceptance which are necessary to
constitute the offence punishable under section 7 of the PC act. He
further argued that the only evidence of alleged demand stated to be
made by the appellant Arun Kumar Gurjar is the complaint Ex.
PW1/B filed by the complainant PW1 and the filing of the complaint
with the respondent/CBI by the complainant PW1 cannot be taken as
substitute for the evidence of proof of allegation and the reliance was
placed on F. RoshanLal Saini V CBI, (2010) SCC online Del 3573.
It is further argued that the complainant PW1 was unreliable witness
whose testimony is full of contradictions and improvements. The trial
court in the impugned judgment also observed that the testimony of
the PW1 suffers from contradictions, improvements and deficiency
and he may be an interested witness and due to this reason the trial
court further observed that the testimony of the complainant PW1 is
required to be scrutinized with caution. The trial court observed that
the testimony of PW 1 is not fully reliable but required to be seen in
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the facts of the case and may be acted upon material facts if it is
corroborated with some other material facts of the case. It was further
argued that there was no corroboration of any allegation made by the
complainant PW1 by any document or any witness and the appellant
Arun Kumar Gurjar was convicted on the testimony of the
complainant PW1 despite being unreliable and referred K.Ramadoss
& another V Deputy Superintendent of police, (2019) SCC online
Mad 16566 and State of Punjab V Madan Mohan Lal Verma,
(2013) 14 SCC 153.
18.1.1 The learned Senior Counsel for the appellant Arun Kumar
Gurjar further argued that the complainant PW1 in deposition has
changed his stand regarding the demand of bribe of Rs. 5 lacs and
pointed out that the complainant PW1 in the complaint Ex PW1/B
stated that the appellants Arun Kumar Gurjar and Baljeet Singh
demanded bribe of Rs. 5 lacs for hassle free completion of tax
assessment while in the statement under section 161 of the code Ex.
PW1/DA stated that Rs. 2.5 lacs was demanded by the appellant
Baljeet Singh. The complainant PW1 in examination in chief also
changed his stance by deposing that the appellant Baljeet Singh has
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made initial demand of Rs. 1.5 Lacs which was increased to Rs. 5
lacs when he met the appellants Arun Kumar Gurjar and Baljeet
Singh at the end of the October 2010 in the office of the appellant
Arun Kumar Gurjar. The learned senior counsel further argued that
the allegations of demand in October and December 2010 as made by
the complainant PW1 are vague, unclear and inherently improbable.
The learned senior counsel argued that there is no proof of
acceptance by the appellant Arun Kumar Gurjar and no recovery was
affected from the appellant Arun Kumar Gurjar and he was not
caught while taking any bribe from the complainant PW1. The
recovery memo PW1/G does not make any conclusive or direct
finding against the appellant Arun Kumar Gurjar. The recovery of Rs
6 lakhs from the drawer of the office of the appellant Arun Kumar
Gurjar as alleged by the prosecution is totally irrelevant for the
purpose of the present case. Ultimately, the learned senior counsel for
the appellant Arun Kumar Gurjar argued that as no recovery was
affected from the appellant Arun Kumar Gurjar in the entire incident
as such no presumption under section 20 of the PC act regarding
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acceptance of bribe can be drawn against the appellant Arun Kumar
Gurjar.
18.2 The learned senior counsel for the appellant Baljeet Singh
argued that the prosecution has failed to prove initial demand which
is sine qua non for convicting an accused for offence under section 7
of the PC Act. It is submitted that the complainant PW1 only made
allegation of initial demand of Rs 5 lakhs in complaint EX. PW1/A
which is contradictory to deposition of PW1 in the examination in
chief. The complainant during his examination in chief recorded on
03.06.2013 has introduced for the first time the initial demand of
Rs. 1.5 lakh by the appellants Arun Kumar Gurjar and Baljeet Singh.
The complainant during his cross examination introduced the demand
of Rs 2.5 lacs alleged to have been made in the month of October
2010. It is argued that the testimony of the complainant PW1 has
material contradictions, improvements and was an interested witness
and relied upon Muktar Singh V State of Punjab (2017) 8 SCC
18.2.1 The learned senior counsel for the appellant Baljeet Singh
regarding the demand made in December 2010 argued that the
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complainant introduced the demand of Rs 5 lakhs for the first time on
22/23.12.2010 and on 27.12.2010 which remain uncorroborated by
any substantive piece of evidence. It is further argued that the onus to
prove subsequent demand was on the prosecution which is sine qua
non for constituting an offence under section 7 of the PC Act. There
is no evidence to prove demand at this point. The PW10 and PW18
did not depose about the demand as the amount was already
recovered when they entered the room 207. The learned senior
counsel relied upon P Satyanaryana Murthy V District Inspector
of police state of Andra Pradesh (2015) 10SCC, B. Jayaraj V
State of Punjab 2017.
18.3 The learned Special Public Prosecutor for the respondent/CBI
argued that the appellants Arun Kumar Gujjar and Baljeet Singh have
demanded illegal gratification of Rs. 5 lacs in the month of October
2010 from the complainant PW1 which was again demanded on
27.12.2010 when the complainant again visited the office on
27.12.2010 to finalize the assessment case of the MPVC without any
hurdle. The appellant Baljeet Singh has accepted illegal gratification
of Rs 2 lakhs on 29.12.2010 from the complainant for himself as
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well as on behalf of the appellant Arun Kumar Gujjar and the said
amount was recovered from the possession of the appellant Baljeet
Singh. The complainant being the only witness of demand and
acceptance has consistently supported the allegation and his
testimony can‟t be impeached on these aspects which inspire
confidence and find corroboration from circumstantial evidence. The
recovery of bribe amount from the appellant Baljeet Singh was
supported by the testimony of the complainant PW1, Jitender
Bharadwaj PW 18 and TLO Ram Singh PW 22. There was no motive
on the part of the complainant PW1 and PW 22 TLO Ram Singh to
falsely implicate the appellants Arun Kumar Gujjar and Baljeet Singh
and Hukum Chand PW 10 and Jitender Bhardwaj PW 18 were the
independent witnesses. The prosecution has proved essential
ingredients of offence i.e. demand of bribe by the appellants and
acceptance of bribe by the appellant Baljeet Singh from the
complainant and thereafter recovery of bribe amount from the
possession of the appellant Baljeet Singh.
18.4 The complainant PW1 in the complaint Ex. PW1/A stated that
he is one of the partner of MPVC along with his brother Anil Jindal
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and Income Tax Assessment for the financial year 2008-09 pertaining
to the MPVC was under scrutiny and was pending in the office of the
appellant Arun Kumar Gujjar, Joint Commissioner of Income Tax,
Ward 29 being the assessing officer. The complainant further stated
that he received various notices from the department and accordingly
submitted necessary documents/information to the appellant Arun
Kumar Gurjar to finalize the scrutiny. The appellant Bajleet Singh
who was a subordinate officer of the appellant Arun Kumar Gurjar
also remained present during the meetings. The complainant PW1 on
being asked by the appellants Arun Kumar Gurjar and Baljeet Singh
met them in the month of October 2010 in the office of the appellant
Arun Kumar Gurjar. The appellants Arun Kumar Gurjar and Baljeet
Singh demanded bribe of Rs. 5 lacs to finalize the scrutiny without
any hurdle but the complainant PW1 refused to pay the bribe of Rs. 5
lacs. Thereafter, the appellant Arun Kumar Gurjar on 20.12.2010
issued a notice to MPVC which was replied on 24.12.2010. The
complainant PW1 on 27.12.2010 again visited the office of the
appellant Arun Kumar Gurjar where the appellants Arun Kumar
Gujjar and Baljeeet Singh demanded Rs 5 lacs to finalize the scrutiny
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but the complainant PW1 was hesitant to pay the bribe. Accordingly,
he made the complaint Ex. PW1/A to the SP,CBI ACU-1, New
Delhi.
18.4.1 The complainant PW1 in his testimony deposed that the
appellants Arun Kumar Gurjar and Baljeet Singh were dealing
income tax assessment of MPVC for the assessment year 2008-2009
and due to this reason he used to meet the appellants Arun Kumar
Gurjar and Baljeet Singh. The complainant in October, 2010 in
response to the notice received from the income tax office met the
appellant Baljeet Singh in his office and submitted further
documents. The complainant again met the appellant Baljeet Singh in
the mid of December, 2010 in his office and thereafter the appellant
Baljeet Singh took him to the office of the appellant Arun Kumar
Gurjar where the discussion was held pertaining to the assessment of
MPVC. The appellant Arun Kumar Gurjar was not satisfied with the
reply/information given by the complainant then he came out from
the office of the appellant Arun Kumar Gurjar and met the appellant
Baljeet Singh who demanded bribe of Rs. 5 lacs to settle the case
which was to be paid to the appellant Arun Kumar Gurjar. The
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complainant PW1 also deposed that when he met the appellant
Baljeet Singh in October, 2010 then he demanded bribe of Rs.1.5 lacs
which was increased to Rs. 5 lacs in the month of December, 2010.
The appellant Baljeet Singh also demanded Rs. 5 lacs from the
complainant PW1 on 22/23 December and he requested the appellant
Baljeet Singh to settle the case for lesser demand which was not
considered by the appellant Baljeet Singh. The complainant again
met the appellant Baljeet Singh in his office on 27.12.2010 in
pursuance of the notice received from the office of appellant Arun
Kumar Gurjar but the appellant Baljeet Singh did not agree to settle
the case of MPVC for lesser demand of bribe. Accordingly the
complainant lodged the complaint Ex. PW1/A in the office of CBI.
The complainant on 29.12.2010 reached at CBI office where he met
TLO Ram Singh PW22 where independent witnesses namely Jitender
Bhardwaj and Hukum Chand were also present. The complainant
PW1 was instructed by TLO Ram Singh PW22 to call the person
who was demanding the bribe. The complainant PW1 contacted the
appellant Baljeet Singh and conveyed him that he would be coming
to his office at about 02:00 pm to pay Rs. 2 lacs which was also
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accepted by the appellant Baljeet Singh. The conversation was
recorded and was transferred to a CD and verification memo vide
Ex. PW1/D was also prepared. The handing over memo Ex. PW1/E
was also prepared on 29.12.2010 as a part of pre trap proceedings
conducted in the CBI office on 29.12.2010.The complainant PW1
along with members of the trap team reached in the office of
appellant Baljeet Singh and on inquiry he was found to be sitting in
the office of the appellant Arun Kumar Gurjar. Thereafter the
complainant PW1 reached in the office of appellant Arun Kumar
Gurjar where the appellant Baljeet Singh was present but the
appellant Arun Kumar Gurjar was not there. The complainant handed
over the envelope containing GC notes of Rs. 2 lacs to the appellant
Baljeet Singh which was accepted by him and thereafter they came
out from the room of the appellant Arun Kumar Gurjar. The appellant
Baljeet Singh was apprehended by TLO Ram Singh PW22 and other
members of the trap team after pre decided signal was given by the
complainant PW1 and thereafter an envelope containing the GC notes
which was stated to be accepted by the appellant Baljeet Singh were
recovered. The post Trap proceedings were also conducted. The
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complainant PW1 also deposed that the appellant Arun Kumar Gurjar
was also brought by TLO Ram Singh PW22 from the office of Firoz
Khan, Commissioner of Income Tax and the appellant Baljeet Singh
in the presence of appellant Arun Kumar Gurjar told CBI officers that
he accepted Rs. 2 lacs on the instructions of the appellant Arun
Kumar Gurjar. The complainant PW1 in examination in chief
recorded on 04.06.2013 before the trial court also deposed that he
knew the appellant Baljeet Singh since 2010 and he received a phone
from the appellant Baljeet Singh in the first week of October, 2010
who informed him about his assessment case of MPVC under
scrutiny. Thereafter, the complainant PW1 met the appellant Baljeet
Singh who has taken him to the office of the assessing officer i.e. the
appellant Arun Kumar Gurjar. The complainant PW1 again met the
appellant Arun Kumar Gurjar in his office at the end of the October,
2010 i.e., around 25/26.10.2010 and in the said meeting the appellant
Arun Kumar Gurjar and Baljeet Singh demanded Rs. 5 lacs against
the initial demand of Rs. 1.5 lacs. The appellants Arun Kumar Gurjar
and Baljeet Singh again demanded Rs. 5 lacs to finalize scrutiny of
the assessment of the MPVC in December, 2010.The prosecution
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also examined Hukum Chand who was a member of Trap team as
PW10 who could not identify properly the appellant Baljeet Singh as
the person who was caught by the CBI officials. PW10 Hukam Singh
also deposed that the currency notes were already recovered by the
CBI officials when he reached the room. The prosecution also
examined Jitender Bhardwaj who was the member of trap team being
the independent witness as PW 18 and TLO Ram Singh as PW22.
18.5 The testimony of the complainant as PW1 reflected that the
appellants Arun Kumar Gurjar and Baljeet Singh demanded bribe of
Rs.5 lacs to finalize the scrutiny without any hurdle which the
complainant PW1 has refused to pay. The complainant PW1 on
27.12.2010 also visited the office of the appellant Arun Kumar
Gurjar where the appellants Arun Kumar Gurjar and Baljeet Singh
have again demanded a bribe of Rs.5 lacs to finalize the scrutiny. The
complainant PW1 in his examination in chief recorded on 04.06.2013
before the trial court deposed that he was taken to the office of the
appellant Arun Kumar Gurjar by the appellant Baljeet Singh in the
first week of October, 2010 and thereafter he again met the appellant
Arun Kumar Gurjar at the end of October, 2010 where the
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apppellants Arun Kumar Gurjar and Baljeet Singh demanded Rs.5
lacs against the initial demand of Rs1.5 lacs. The complainant PW1
did not speak or depose anything about the initial demand of Rs.1.5
lakh in the early part of his examination in chief. The complainant in
complaint Ex. PW1/A mentioned that the appellants Arun Kumar
Gurjar and Baljeet Singh demanded bribe to finalize the scrutiny and
thereafter, the demand was raised by the appellants Arun Kumar
Gurjar and Baljeet Singh for Rs.5 lacs on 27.12.2010. The
complainant in Ex.PW1/A did not mention the initial demand of
Rs.1.5 lacs alleged to have been made in October, 2010 which was
increased to Rs.5 lakhs in the month of December, 2010. There are
various other contradictions and improvements in the testimony of
PW1 which was also observed by the trial court in para no 16.6 of the
impugned judgment to the effect that the testimony of the
complainant PW1 is suffering from contradiction and improvements
on different aspects of the prosecution case but simultaneously also
observed that the complainant PW1 has supported the prosecution on
material allegations. The trial court also observed that keeping in
view the fact that the testimony of the complainant PW1 suffers from
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contradictions, improvements and deficiency and he may be an
interested witness and his testimony is required to be scrutinized with
caution. It was further observed that the testimony of PW1 cannot be
said wholly reliable or wholly unreliable but was required to be seen
in the facts and circumstances of the case. It is correct that mere
marginal variations, contradictions, discrepancies or improvements in
the statements of witnesses cannot be fatal to the case of the
prosecution and only major contradictions, discrepancies or
improvements on material facts can shake the very genesis of
prosecution case and can create doubts as to the prosecution case. It
is appearing that the trial court was not convinced with the purity and
credibility of the testimony of the complainant PW1 and also noted
various contradictions, improvements about the prosecution case.
19. The complainant PW1 made the complaint Ex. PW1/A on
28.12.2010 with the CBI and on that day verification of the complaint
was done by TLO PW 22 Ram Singh. The trial court already
observed that the conversation for verification of the complaint
recorded in CD Q 1 cannot be read into evidence. The respondent
CBI after verification has registered the present FIR and thereafter,
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the post trapping proceedings were conducted. The PW1 complainant
only deposed that on 29.12.2010 he contacted the appellant Baljeet
Singh through his mobile phone and told him that the
complainant/PW1 shall be visiting to his office at about 2.00 pm to
pay Rs.2 lacs to settle the income tax case of MPVC which was
accepted by the appellant Baljeet Singh. It is reflecting from this part
of the testimony of the complainant PW1 that the appellant Baljeet
Singh did not make any demand of the bribe on 29.12.2010 but the
complainant PW1 himself stated that he would be coming to the
income tax office to meet the appellant Baljeet Singh. The testimony
of the complainant PW1 also reflected that after completion of pre-
trap proceedings at the CBI office, the trap team left the CBI office at
1:00 pm and reached in the income tax office where he came to know
that the appellant Baljeet Singh was sitting inside the office room of
the appellant Arun Kumar Gujjar. It is also reflecting that he
discussed has assessment case with the appellant Baljeet Singh and
thereafter, took out the envelope containing GC notes of Rs.2 lacs
from the pocket and handed over the same to the appellant Baljeet
Singh which was accepted by him. Again, this part of the testimony
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of the complainant PW1 did not specifically reflects that even on
29.12.2010 the appellant Baljeet Singh PW1 has made specific
demand of bribe either of Rs. 5 lakhs or Rs.2 lakhs from the
complainant and it is only reflected that he handed over an envelope
containing GC notes of Rs.2 lakhs to the appellant Baljeet Singh
which was accepted but the appellant Baljeet Singh. It is also
reflected that thereafter appellant Baljeet Singh on pre decided signal,
the trap team led by TLO/Ram Singh PW22 has apprehended the
appellant Baljeet Singh and GC notes of Rs.2 lacs were recovered
from his possession and subsequent proceedings were also
conducted. It is also reflecting that at that time the appellant Arun
Kumar Gurjar was not present along with the appellant Baljeet Singh
and the complainant PW1 and he was not found in the possession of
the GC notes of Rs.2 lacs stated to be kept in an envelope. Therefore,
as such there is no direct and specific evidence that on 29.12.2010
either of the appellants Arun Kumar Gurjjar and Baljeet Singh have
demanded bribe of Rs.2 lacs or Rs.5 lacs from the complainant PW1
and thereafter, the bribe was accepted by the appellant Arun Kumar
Gurjar. The testimony of the complainant PW1 and other witnesses
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only reflects that GC notes of Rs.2 lacs were recovered from the
possession of the appellant Baljeet Singh. It is also pertinent to
mention that none of the witnesses i.e. PW10 Hukum Chand, PW18
Jitender Bhardwaj PW 22 TLO/Ram Singh were present when the
complainant PW1 stated to have delivered an envelope containing
GC notes of Rs.2 lacs. The testimony of the complainant PW1 is
only establishing that on 29.12.2010, the appellant Baljeet Singh
accepted GC notes of Rs.2 lacs from the complainant PW1 which
was subsequently recovered from his possession as reflecting from
the testimony of other witnesses examined by the prosecution. The
testimony of the complainant PW1 is also not inspiring confidence.
The trial court also raised doubts about credibility of testimony of the
complainant PW1. There is legal and factual force in arguments
advanced by the learned Senior Counsels for the appellants Arun
Kumar Gurjar and Baljeet Singh that the prosecution has failed to
prove twin requirements of demand and acceptance of bribe which
are necessary ingredients to prove offence under section 7 of the PC
Act. The arguments advanced by learned Senior Public Prosecutor
for the respondent/CBI are not legally convincing.
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20. In view of the above discussion, the prosecution has failed to
prove the acceptance of the tainted money by the appellant/Arun
Kumar Gurjar and substantial doubts are appearing from the evidence
led by the prosecution as to the guilt of the appellant Baljeet Singh.
Accordingly, the appeals are allowed. The impugned judgment and
impugned order passed by the trial court are set aside and appellants
are acquitted for the offence for which they were charged. If the
appellants Arun Kumar Gurjar and Baljeet Singh have deposited any
fine in terms of impugned order, they are entitled for refund of fine.
21. The present appeals stand disposed of along with pending
applications, if any.
DR. SUDHIR KUMAR JAIN
(JUDGE)
MARCH 22, 2024
sk/j/am/abk
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