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TMI Blog2013 (8) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Respondent-accused took a plea that he only had the duty to serve the notice on the complainant with regard to the tax evasion done by him and was not the authority for making an assessment order. It was his official duty to serve upon the complainant a notice under Section 148 of the Income Tax Act, 1961. The complainant came to his house and asked the respondent-accused to give him a glass of water as he had to take the medicine. He went inside the kitchen and came back with a glass of water and thereafter shook hands with the complainant and that is why when the hands of the respondent were washed, they turned pink. Reasoning given by the High Court does not deserve to be accepted for the reason that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent demanded a sum of Rs.25,000/- as illegal gratification for not reopening the said assessment. B. On 1.6.1994, the complainant - Naresh Kumar Kapoor (PW.7) alongwith Raj Kumar Sharma (PW.3) went to the house of respondent-accused i.e. 638, Mota Singh Nagar, Jalandhar to negotiate for not reopening the assessment. The respondent-accused asked for a sum of Rs.25,000/- as illegal gratification and the complainant expressed his inability. On this, respondent agreed to accept a sum of Rs.10,000/- as part payment of the illegal gratification to be paid on the same day, and a further sum of Rs.15,000/- on the next day. The complainant made a false promise of paying a sum of Rs. 10,000/- on the same day i.e. 1.6.1994. The complainant approached Harish Kumar (PW.12), DSP (Vigilance), Jalandhar and they prepared to lay a trap. C. The complainant arranged the money i.e. 20 notes in the denomination of Rs.500/- each. Phenolphthalein powder was applied on the notes and the same were given to the complainant. The number of those notes were noted separately on a piece of paper. The complainant and the shadow witness Raj Kumar Sharma (PW.3) washed their hands and approached the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of acquittal as laid down by this Court have to be applied. Therefore, the appeal is liable to be rejected. 5. We have considered the rival submissions made by learned counsel for the appellant as well as the respondent in-person. 6. 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 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 Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused to give him a glass of water as he had to take the medicine. He went inside the kitchen and came back with a glass of water and thereafter shook hands with the complainant and that is why when the hands of the respondent were washed, they turned pink. 9. The High Court also accepted the defence version made under Section 313 of Code of Criminal Procedure, 1973 and recorded the findings that the possibility of Phenolphthalein powder appearing on the hands of the respondent-accused when he shook hands with the complainant cannot be ruled out. The High Court further took note of various subsequent developments that certain complaints were filed against him by the CBI having dis-proportionate assets. The complainant Naresh Kumar Kapoor was a man having a criminal background. He was involved in a murder case as well as in a case of sale of shares in bogus names. The High Court further observed that in case two views are possible, the view favouring the accused has to be given preference, thus gave the benefit of doubt to the respondent accused and acquitted him. 10. Undoubtedly, the reasoning given by the High Court does not deserve to be accepted for the reason that even if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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