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TMI Blog2024 (4) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... cept the proper address as clarified by the complainant PW 1 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. 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. PW 1/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 advanced on behalf of appellants Arun Kumar Gurjar and Bal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot 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. 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 - 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. Accordingly, the appeals are allowed. - HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN For the 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, Mr. Vikas Pahwa, Senior Advocate with Mr. Manish Tiwari, Mr. Anil Kumar, Mr. Sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 clarify the pending issues and met the appellants Arun Kumar Gurjar and Baljeet Singh who told the complainant about man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m-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 put hand into his inner left pocket but was apprehended by TLO and other team members. The appellant Baljeet Singh was taken t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellant Arun Kumar Gurjar from August, 2010 assumed the role of assessing officer for the scrutiny ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 PW 1 and TLO Ram Singh as PW 22. 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 PW 1 never met him and he attended the proceedings only on 25.10.2010 in response to summons issued under section 131 of the 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 Balje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible evidence. viii) PW 1 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 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, PW 1 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 PW 1 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 PW 1, PW 18 and PW 22. PW 10 has supported only to the extent that some recoveries were made in post trap proceedings. ix) There is nothing on record to accept that PW 1 and PW 22 had any motive to falsely implicate A-1 and A-2. PW 10 and PW 18 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 PW 1, PW 10, PW 18 and PW 22 has supported by each other on the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 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 quantu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 PW 10 and PW 18 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged recovery from the appellant Baljeet Singh was tainted and manipulated. The testimony of PW 18 Jitender Bhardwaj has belied the entire prosecution version regarding the alleged trap of the appellant Baljeet Singh. The testimony of PW 22 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 PW 1 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 PW 1 and alleged recovery is extremely doubtful. The washes relied on by the prosecution are fabricated 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 grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 established by other evidence. This i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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]( Madhukar Bhaskarrao Joshi ), it was observed that in order to draw a presumption under Section 20 of the Act, the premise is that there was payment or acceptance of gratification. Once the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lluted 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 PW 1 lodged complaint Ex. PW 1/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 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 PW 1 was a partner in MPVC which was selected for sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. PW 1/A. The complainant PW 1 is an unreliable witness who changed his stance many times. The trial court also observed that testimony of the complainant as PW 1 suffers from contradictions, improvements, and deficiencies and his testimony should be scrutinized with caution. The appellant cannot be convicted on basis of unreliable testimony of the complainant PW 1 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. The allegations of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgments 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. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW 1. The appellant Arun Kumar Gurjar sent a letter dated 22.10.2010 Ex PW 16/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 ExPW 14/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. PW 16 Arju Garodia deposed that the assessment case 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. PW 16 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 depose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 PW 1 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 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 Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 PW 1 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 PW 1 is corroborated by circumstantial evidence followed by recovery of bribe amount from the appellant Baljeet Singh which is corroborated by the PW 1, PW 18 and PW 22 and PW 10 has supported only to the extent that some recoveries were made in post trap proceedings. 11.2.1 It was further argued that there is nothing to establish that the complainant PW 1 and TLO PW 22 (TLO) had any motive to falsely implicate the appellants Arun Kumar Gurjar and Baljeet Singh. PW 10 and PW 18 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 PW 1, PW 10, PW 18 and PW 22 are supporting each othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 PW 1 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 PW 1, PW 10, PW 18 and PW 22. The test of hand washes and cloth washes gave positive results for the presence of PP Powder which reflects that PP Powder smeared 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 Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant Arun Kumar Gurjar. The trial court further observed that PW 19 S.M Ashraf, Commissioner of Income Tax, GIT, Audit-I, C.R Building, IP Estate, New Delhi granted sanction Ex. PW 19/A for prosecution against the appellant Baljeet Singh and PW 20 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.PW 20/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. PW 19/A against the appellant Baljeet Singh and sanction order Ex. PW 20/A against the appellant Arun Kumar Gurjar reflect 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. PW 19/A and Ex. PW 20/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 conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 PW 1 again met the appellant Baljeet Singh who asked the complainant PW 1 to submit other documents. The complainant PW 1 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 PW 1 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 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. PW 1/A in the office of CBI, New Delhi. The complainant PW 1 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex. PW 1/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 PW 1 and was given to CBI where another complaint Ex.PW 1/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 PW 1 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 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 tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racter 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 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 PW 1 brought one typed complaint in office of CBI which was stated to be not properly addressed. Thereafter another complaint Ex. PW 1/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 PW 1 were materially different from the complaint Ex. PW 1/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 cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the complainant PW 1 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 PW 1 to lodge a complaint against senior public servants and held that there was no unusual delay in lodging FIR. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant PW 1 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 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 PW 1 and PW 22 Ram Sing TLO had any motive to falsely implicate the appellants Arun Kumar Gurjar and Baljeet Singh and PW 10 and PW 18 were the independent witnesses without any reason to falsely depose against the appellants Arun Kumar Gurjar and Baljeet Singh. The respective testimony of PW 1, PW 10, PW 18 and PW 22 has supported by each other on the material particulars and are corroborated by the documents i.e. recovery memo and handing over memo etc. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 PW 1; the appellant Baljeet Singh could not have demanded the bribe from the complainant PW 1 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 22.10.2010 Ex PW 16/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 Ex PW 14/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 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 PW 16 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 PW 1. 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 punishm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 PW 1 without the instructions of the appellant Arun Kumar Gurjar and further the appellant Baljeet Singh was also not in official position to favor the complainant PW 1 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han 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 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 gratificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ini V CBI, (2010) SCC online Del 3573 . It is further argued that the complainant PW 1 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 PW 1 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 PW 1 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 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 PW 1 by any document or any witness and the appellant Arun Kumar Gurjar was convicted on the testimony of the complainant PW 1 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 furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 PW 1 has material contradictions, improvements and was an interested witness and relied upon Muktar Singh V State of Punjab (2017) 8 SCC 136. 18.2.1 The learned senior counsel for the appellant Baljeet Singh regarding the demand made in December 2010 argued that the 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 PW 10 and PW 18 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) 10 SCC, B. Jayaraj V State of Punjab 2017. 18.3 The learned Special Public Prosecutor for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 PW 1 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 PW 1 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 but the complainant PW 1 was hesitant to pay the bribe. Accordingly, he made the complaint Ex. PW 1/A to the SP,CBI ACU-1, New Delhi. 18.4.1 The complainant PW 1 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded 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 PW 22 and other members of the trap team after pre decided signal was given by the complainant PW 1 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 complainant PW 1 also deposed that the appellant Arun Kumar Gurjar was also brought by TLO Ram Singh PW 22 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 PW 1 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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 PW 1 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 PW 1 is suffering from contradiction and improvements on different aspects of the prosecution case but simultaneously also observed that the complainant PW 1 has supported the prosecution on material allegations. The trial court also observed that keeping in view the fact that the testimony of the complainant PW 1 suffers from 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 PW 1 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, dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter appellant Baljeet Singh on pre decided signal, the trap team led by TLO/Ram Singh PW 22 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 PW 1 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 PW 1 and thereafter, the bribe was accepted by the appellant Arun Kumar Gurjar. The testimony of the complainant PW 1 and other witnesses 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. PW 10 Hukum Chand, PW 18 Jitender Bhardwaj PW 22 TLO/Ram Singh were present when the complainant PW 1 stated to have delivered an envelope containing GC notes of Rs.2 lacs. T ..... 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