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TMI Blog2025 (2) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... ave appreciated the evidence in such a manner before arriving at a conclusion that the accused are found guilty of offence punishable under Section 7 of the P.C. Act. Whether the Trial Court is justified in appreciating the electronic evidence? - HELD THAT:- Though P.W.8 supported the case of the prosecution in respect of the said mahazar, the evidence of PWs.1 and 8 would clearly indicate that both these witnesses have not seen the removal of the memory card from the said M.O.6. Further, it would indicate that they have not heard the conversations said to have been transferred to the Compact Discs (CD). In the absence of collecting the certificate as required under Section 65-B of the Indian Evidence Act to prove the electronic evidence in respect of the memory card, it is unsafe to rely on the evidence of the said electronic device. Though the prosecution has tried to impress the Court that the conversations that had taken place between the parties were transferred to CDs, which are identified as M.O.s 1, 7 and 9, as the primary evidence itself proved to be unacceptable, the remaining portions ought not to have been considered by the Trial Court. However, the Trial Court grossly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tices, the complainant and PW.2 had approached accused No. 1 and offered their explanation for not having filed the Income Tax Returns relating to TDS. However, the said offer was not accepted and it was directed the complainant and PW.2 to submit the documents. Further, it is stated that accused No. 1 stated to have demanded a sum of Rs. 4,00,000/- as illegal gratification to do some official favour. The complainant disagreed to pay such a huge amount and then, it was reduced to Rs. 2,50,000/- after negotiation. 5. It is further stated that the complainant being unhappy about the said development and decided to approach CBI in that regard. Accordingly, he went along with his friend and approached the CBI Office at Bengaluru and informed them regarding the demand of illegal gratification by accused No. 1. As per the direction issued by the respondent - CBI, he acted accordingly. It is further stated that accused No. 2 had informed the complainant that he would send accused No. 3 to his office and directed him to pay the amount of Rs. 2,50,000/- to accused No. 3. Accordingly, accused No. 3 stated to have approached PW.1 in his clinic and introduced himself that he was sent by accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent - CBI has not collected the memory card in his presence and he further, deposes that whether the memory card was there or not, was not aware to him. Moreover, the hash value of the mobile phone has not been secured which is important to ascertain the authenticity of the said mobile. In spite of this lacuna, the Trial Court proceeded to render the conviction, which is erroneous and unsustainable. 12. It is further submitted that the Trial Court ought not to have considered the remaining electronic evidence and its contents. However, the Trial Court considered the said evidence and acted upon such electronic evidence, which is contrary to the law relating to the admissibility of electronic evidence. Even assuming that the alleged conversations had taken place between the parties, nowhere in the said conversations, the demand of illegal gratification would taken place. 13. It is further submitted that though the prosecution tried to establish that as the work of PW.1 was pending with accused No. 1, as such, he demanded illegal gratification, the evidence of PWs.1, 2 and 8 clearly indicates that accused Nos. 1 and 2 were not present at the spot where the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011) 2 SCC 532. 25. Smt. Anita Sonkar v/s Shakuntala Misra 2014 (123) RD 855. 26. Ramappa Amminabhavi v/s State of Karnataka CRL.A. No. 2612/2010 dated 20/02/2021. 27. State of Karnataka v/s Bharath Chandra CRL.A. No. 223/1999 decided on 11/12/2001. 28. Punjabrao v/s State of Maharashtra (2002) 10 SCC 371. 29. M Abbas v/s State of Kerala (2001) 10 SCC 103. 30. Krishan Chander v/s State of Delhi (2016) 3 SCC 108. 31. Jai Prakash Tiwari v/s State of MP. 2022 SCC Online SC 966. 32. Parminder kaur v/s State of Punjab (2020) 8 SCC 811. 33. Umesh Patil v/s State of Karnataka CRL.A. No. 2760/2012 dated 21.07.2022. 34. Arjun Panditrao Khotkar v/s Kailash Kushamrao Gorantyal (2020) 7 SCC 1. 35. Anvar PV v/s PK Basheer and others (2014) 10 SCC 473. 36. Nilesh Dinkar Paradkar v/s State of Maharashtra (2011) 4 SCC 143. 37. Ramesh Thete v/s State of Madhya Pradesh ILR (2010) M.P 1633. 38. Ram Singh v/s Col Ram Singh 39. Sanjaysinh Ramrao Chavan v/s Dattatray Gulabrao Phalke and Ors (2015) 3 SCC 123 40. Ritesh Sinha v/s State of Uttar Pradesh and another (2019) 8 SCC 1. 41. Ashalatha Soni v/s Durgesh Soni 2023 SCC Online CHH 3959. 42. Ajay Gupta v/s CBI 2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective parties and also perused the findings of the Trial Court, the points which would arise for my consideration are: 1) Whether the findings of the Trial Court in respect of the demand and acceptance of illegal gratification by the accused is justified? 2) Whether the Trial Court is justified in appreciating the electronic evidence? 3) Whether the findings of the Trial Court in recording the conviction is justified? 4) Whether the appellants have made out a case to interfere with the findings of the Trial Court? 24. Before adverting to the facts of the case, it is relevant to refer the legal proposition of the law along with the provisions of the P.C Act. The charge sheet has been laid against the appellants for the offences punishable under Sections 7, 12, 13(1)(d) r/w 13(2) of P.C Act. 25. In this context, it is relevant to refer to Section 7 of the P.C Act reads as under: "[7. Offence relating to public servant being bribed.- Any public servant who,- (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration, reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI. 8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P- 11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record." 27. On careful reading of the above said judgment, it makes it clear that to constitute an offence under Section 7 of the P.C Act, there must be a demand for illegal gratification and the same has to be accepted by the Public Servant. Once the acceptance is proved presumption under Section 20 of the P.C Act would arise. 28. Having considered the principles laid down by the Hon'ble Supreme Court in the above judgment, now it is relevant to consider the evidence of material witnesses. In this regard, the prosecution has relied on the evidence of PWs.1, 2 and 8 who are considered as material witnesses to the incident. According to PW.1, he did not submit the Income Tax Returns for the year 2008 till 2015. He further admitted that pursuant to the notices of the Income Tax Department, he had approached accused No. 1 and requested him to do the needful. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was handing over the amount of Rs. 2,50,000/- to accused No. 3, at that time, the accused No. 3 was apprehended by the respondent-CBI. On conjoint reading of the evidence of P.W.1, 2 and 8, it can be inferred that the prosecution has failed to establish the demand and acceptance of illegal gratification by accused Nos. 1 and 2. The Trial Court ought to have appreciated the evidence in such a manner before arriving at a conclusion that the accused are found guilty of offence punishable under Section 7 of the P.C. Act. 33. As regards the electronic evidences are concerned, the prosecution tried to convince the Court that the conversations between P.W.1 and with other accused were recorded in M.O.6 which was produced by P.W.1 and the same was seized under the trap mahazar, which is marked as Ex.P12. Though P.W.8 supported the case of the prosecution in respect of the said mahazar, the evidence of PWs.1 and 8 would clearly indicate that both these witnesses have not seen the removal of the memory card from the said M.O.6. Further, it would indicate that they have not heard the conversations said to have been transferred to the Compact Discs (for short 'CD'). In the absence of collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat when the conversation is not proved through independent witnesses, relying on such conversation and rendering the conviction would be unjustifiable. Once it is found that there is no material to connect the accused with the crime, rendering the conviction on the basis of invalid evidence certainly would lead to anomaly. Therefore, I am of the considered opinion that the prosecution has failed to prove the case against the accused even on the electronic evidence. It is needless to say that the persons who acquainted with the voice of accused Nos. 1 and 2 have been examined in this case and they have turned hostile and not supported the case of the prosecution. 36. The evidence of P.W.12 assumes greater significance as accused No. 3 was working with him as an office boy. According to him, neither accused No. 1 nor accused No. 2 has spoken with him regarding sending of accused No. 3 to P.W.1 to collect the illegal gratification. In fact, he deposes in his evidence that he had sent accused No. 3 to collect the money to deposit the same into the bank to make online payment of arrears of income tax of P.W.1. Even on any stretch of the imagination, it could be inferred that the prose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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