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2024 (2) TMI 90 - HC - Money LaunderingCharge of criminal misconduct under the Prevention of Corruption Act, 1988 - illegal gratification demanded by and paid to senior Income Tax Officers - Framing of charges - HELD THAT - The Supreme Court in ASIM SHARIFF VERSUS NATIONAL INVESTIGATION AGENCY 2019 (7) TMI 1546 - SUPREME COURT expressed that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record. The Supreme Court in STATE VERSUS M.R. HIREMATH 2019 (5) TMI 1986 - SUPREME COURT held that it is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. The Supreme Court in NEERAJ DUTTA VERSUS STATE (GOVT. OF N.C.T. OF DELHI) 2022 (12) TMI 1490 - SUPREME COURT also referred by the Special Public Prosecutor held that a person could be convicted based on circumstantial evidence for the crime of demanding a bribe or illegal gratification under the PCA, 1988. In the present case the material collected during the investigation by the respondent/CBI is not sufficient to frame the charge against the petitioner. Accordingly, the present petition is allowed. The impugned order is not legally sustainable. The impugned order dated 12.09.2019 whereby the petitioner was charged for the offences punishable under section 120B IPC read with sections 7 and 13 (1) (d) of PC Act and for the substantive offences under sections 7 and 13(1)(d) punishable under section 13 (2) of PC Act, 1988 is set aside. The petitioner stands discharged for the offences for which he was discharged. Petition allowed.
Issues Involved:
1. Admissibility of Disclosure Statement 2. Admissibility of Electronic Evidence 3. Proof of Demand and Acceptance of Bribe 4. Credibility of Statement under Section 164 of the Code 5. Sufficient Grounds for Framing Charges Summary: 1. Admissibility of Disclosure Statement: The trial court considered the disclosure statement of the accused, Ulhas Prabhakar Khaire, dated 16.11.2012, which led to the recovery of material evidence such as a spy watch and hard disks containing audio and video recordings. The court held that Section 27 of the Indian Evidence Act comes into play, making the disclosure statement partially admissible. The court stated, "The recovery of spy watch and hard disks containing audio/video recordings and conversations between Ulhas Prabhakar Khaire and Yogender Mittal is a matter of evidence to be proved by the witnesses of recovery." 2. Admissibility of Electronic Evidence: The petitioner argued that the electronic evidence (audio and video recordings) was inadmissible due to the absence of a certificate under Section 65B of the Indian Evidence Act. The court, however, referred to the Supreme Court's decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, stating that the certificate can be filed at any stage of the trial. The court noted, "The prosecution is required to file a certificate under section 65B of the Indian Evidence Act, 1872 in respect of hard disks but it is settled law that certificate under section 65B can be filed at any stage of trial." 3. Proof of Demand and Acceptance of Bribe: The court examined the audio and video recordings and found that they did not directly or indirectly reflect any demand for gratification by the petitioner. The court emphasized the necessity of proving both demand and acceptance for establishing the offence under Sections 7 and 13(1)(d) of the PC Act. The court observed, "The material placed on record is not sufficient to establish demand of gratification by the petitioner and is only able to convey delivery of Rs. 15 crores on 28.01.2011 and 09.02.2011 which is also falling short of acceptance by the petitioner." 4. Credibility of Statement under Section 164 of the Code: The statement of the accused under section 164 of the Code was considered a weak piece of evidence, especially since the accused withdrew his application under section 306 of the Code. The court referred to the Supreme Court's decision in Dipakbhai Jagdish Chandra Patel v. State of Gujarat, which held that a confession by a co-accused is not substantive evidence. The court noted, "Statement under section 164 of the Code made by the accused in proceedings under section 306 of the Code is a very weak kind of evidence and cannot be much relied on." 5. Sufficient Grounds for Framing Charges: The court concluded that the material collected during the investigation was insufficient to frame charges against the petitioner. The court stated, "The material collected during the investigation by the respondent/CBI is not sufficient to frame the charge against the petitioner." Consequently, the court set aside the impugned order dated 12.09.2019, discharging the petitioner from the offences for which he was charged. The court ordered, "The petitioner stands discharged for the offences for which he was charged." The petition was allowed, and the impugned order was set aside, discharging the petitioner from all charges.
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