2022 (11) TMI 556 - HC - Indian Laws

Illegal gratification - Prevention of corruption - appellant was working as an Assistant in the Income Tax office - specific plea of defence taken in the examination under Section 313 Cr.P.C., is that he had no role in issuance of clearance certificates and the work was confined to those assessee whose names started with Alphabet-A - whether the preliminary inquiry on receipt of the complaint was held as per norm? - HELD THAT - This Court is of the view that the proceedings of preliminary inquiry do not form substantive evidence and the object of enquiry is not to ascertain the veracity of the allegation being made, but to see whether cognizable offence is made out or not. There is no prescribed mode for preliminary inquiry. The object is to see that the stringent provisions of the P.C. Act do not become a means of persecution of honest and upright public servant before the case is registered. It has been held in CENTRAL BUREAU OF INVESTIGATION AND ORS. VERSUS THOMMANDRU HANNAH VIJAYALAKSHMI AND ORS. 2021 (10) TMI 1376 - SUPREME COURT that preliminary enquiry is directory and not mandatory in nature. It is a settled position of law that even faulty investigation or motivated omissions and commissions will have no bearing on the merit of any case unless it has caused prejudice to the accused in his defence. In the present case, P.Ws.3 and 5 were independent witnesses who accompanied the trap team and have supported the prosecution case on the point of recovery of the tainted money. PW 5 has deposed that the accused had been demanding illegal gratification for issuing the clearance certificate. He has given in details of the pre trap procedure adopted by the trap team in para 2 and 3 of his deposition. He has also proved different material exhibits. In para 5 he has deposed that he along with Binod Kumar went to the table of accused Arun Kumar when the demand was made by him on which the amount was given to him. He has stated in detail about the events following the arrest of the accused. Against these positive statements one line in the cross-examination is that he cannot say who is the informant or what does he do cannot be read in isolation to deny the positive statements made by him. That the challenge on this ground does not succeed. Whether the ingredients of the offence have been proved to bring home the charge under Section 7 of the PC Act? - HELD THAT - Proof of demand, acceptance and recovery are the sine qua non to prove the charge under Section 7. Without the proof of demand presumption cannot be drawn under Section 20. Thus, in a case where the complainant himself resiles and refutes the charge of demand that becomes fatal to the prosecution case - In so far as the presumption permissible to be drawn under Section 20 of the act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of P.C. Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. Once the demand and acceptance is proved, presumption under Section 20 applies with full rigour. There is no evidence or explanation to make out a case on behalf of the defence that the accused has been falsely implicated in this case with an ulterior design on account of any past enmity. The presumption has not been rebutted - the prosecution has succeeded to prove its case beyond the shadow of all reasonable and probable doubt. Under the circumstance, there are no infirmity in the Judgment of conviction passed by the learned Court below under Section 7 and 13 (2) r/w 13 (1) (d) of the P.C. Act. Considering the nature of offence, protracted nature of litigation and the amount involved, a punishment of six months simple imprisonment under Section 7 of the PC Act and one year simple imprisonment under Section 13 (2) r/w 13 (1) (d) of the P.C. Act with a fine of Rs.1000 under both the sections shall meet the ends of justice. Both the substantive sentences to run concurrently. In default of payment of fine, the accused to undergo simple imprisonment of 15 days each. Appeal dismissed.

Summary

Issues Involved:
1. Competence of the accused to handle the complainant's file.
2. Verification process of the complaint.
3. Competency of the sanctioning authority.
4. Proof of demand, acceptance, and recovery of bribe.
5. Requirement of independent witnesses during search and seizure.
6. Sufficiency of evidence to prove the charges.

Issue-wise Detailed Analysis:

1. Competence of the accused to handle the complainant's file:
The defense argued that the appellant was not dealing with the file of the complainant, as the work was allocated alphabetically and the complainant's name started with 'B', while the appellant handled files starting with 'A'. This was corroborated by testimonies from P.W. 3 and P.W. 8. Five defense witnesses, including Income Tax officers and Chartered Accountants, supported that the accused was not allocated the work in question.

2. Verification process of the complaint:
The defense contended that the verification of the complaint was conducted perfunctorily. The complaint was received and the trap was laid on the same day, raising doubts about the adherence to procedural requirements. However, the court noted that there is no prescribed procedure or timeline for verification under the P.C. Act, and any lapses in preliminary inquiry do not affect the substantive evidence unless they cause prejudice to the accused.

3. Competency of the sanctioning authority:
The defense argued that the Income Tax Commissioner was not competent to grant sanction for prosecution, as the Chief Commissioner of Income Tax was the appropriate authority post-1987. The court found that the Chief Income Tax Commissioner did grant the sanction, and no contrary evidence was provided by the defense. Thus, the argument was deemed untenable.

4. Proof of demand, acceptance, and recovery of bribe:
The prosecution needed to prove demand, acceptance, and recovery of the bribe. The court emphasized that mere possession of marked currency notes is insufficient without proof of demand. The complainant, P.W. 7, testified about the demand and acceptance of the bribe, corroborated by other witnesses. Despite the defense's cross-examination, the court found the testimonies credible and consistent.

5. Requirement of independent witnesses during search and seizure:
The court clarified that independent witnesses are not mandated for personal searches under Section 51 Cr.P.C., unlike searches of closed places under Section 100 Cr.P.C. P.Ws. 3 and 5, independent witnesses, supported the prosecution's case regarding the recovery of tainted money. The defense's challenge on this ground was dismissed.

6. Sufficiency of evidence to prove the charges:
The court concluded that the prosecution successfully proved the charges beyond reasonable doubt. The testimonies of the complainant and other witnesses established the demand and acceptance of the bribe. The presumption under Section 20 of the P.C. Act was applied, and the defense failed to rebut it. The court upheld the conviction under Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act.

Conclusion:
The court found no merit in the technical defenses raised and affirmed the conviction. The sentence was modified to six months simple imprisonment under Section 7 and one year under Section 13(2) read with 13(1)(d) of the P.C. Act, with both sentences running concurrently and a fine of Rs. 1000 under each section. The appeal was dismissed with this modification in the sentence.