Wednesday, June 4, 2025
Latest:
delhihighcourt

ARUN KUMAR GURJAR vs CENTRAL BURAEU OF INVESTIGATION

Information

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: December 07, 2023
Decided on: March 22, 2024
+ CRL.A. 630/2015

ARUN KUMAR GURJAR ….. 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

V

CENTRAL BURAEU OF
INVESTIGATION ….. Respondent
Through: Ms. Anubha Bhardwaj, SPP for CBI with Ms. Khushal Saini, Advocate
+ CRL.A. 643/2015

BALJEET SINGH ….. Appellant
Through: Mr. Vikas Pahwa, Senior Advocate with Mr. Manish Tiwari, Mr. Anil Kumar, Mr. Siddharth Singh and Ms. Sanskriti, Advocates

V
C B I ….. Respondent
Through: Ms. Anubha Bhardwaj, SPP for CBI with Ms. Khushal Saini, Advocate

CORAM
HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN
J U D G M E N T
1. The present appeals are filed appeal under section 374 read with 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) for setting aside the judgment dated 20.05.2015 (hereinafter referred to as “the impugned judgment”) and order on sentence dated 21.05.2015 (hereinafter referred to as “the impugned order”) passed by the court of Sh. Sanjeev Jain, Special Judge (PC Act)/CBI-03, South, Saket Courts, New Delhi (hereinafter referred to as “the trial court”) in case titled as CBI V Arun Kumar Gurjar & another in CC no. 50/2012 arising out of RC bearing no. CBI/AC-I/RC-A0003/2010 dated 29.12.2010 registered by CBI, ACU (I), New Delhi under section 120B of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) read with section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the “PC Act”) and substantive offence under section 7 of the PC Act and for acquittal of the appellants.
2. The factual background of the case as appearing from charge sheet is that Pawan Aggarwal, Partner of M/s Madhya Pradesh Vanijya Company, 3958/2, Naya Bazar, Delhi (hereinafter referred to as “the complainant”) made a written complaint on the basis of which present RC bearing no CBI/AC-I/RC-A0003/2010 was registered on 29.12.2010 by CBI, ACU(I), New Delhi under section 120B IPC read with section 7 of the PC Act and substantive offence under section 7 of PC Act against Arun Kumar Gurjar (Joint Commissioner of Income Tax, Range 29, New Delhi and hereinafter referred to as “the appellant Arun Kumar Gurjar”) and Baljeet Singh (Inspector, Income Tax, Range 29, New Delhi/IAP-V,CIT (Audit) I, C.R. Building, New Delhi and hereinafter referred to as “the appellant Baljeet Singh”).
2.1 The complainant in FIR alleged that that complainant was running a partnership firm in the name and style of M/s Madhya Pradesh Vanijaya Company (hereinafter referred to as “MPVC”) at 3958/2, Naya Bazar, Delhi. The Tax Assessment for the year 2008-09 pertaining to MPVC was under scrutiny and was pending in the office of the appellant Arun Kumar Gurjar, Ward no. 29, Drum Shape Building, IP Estate, New Delhi, the then Assessing Officer. The complainant on several occasions during assessment received various notices from the 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 many discrepancies in the papers and again demanded Rs.5 lakhs to finalize entire matter without any hurdle.
2.3 The complainant being aggrieved by the demand made by the appellant Arun Kumar Gurjar who was then Joint Commissioner of Income Tax, Range-29, New Delhi and the appellant Baljeet Singh who was then Inspector, Income Tax, New Delhi submitted a written complaint to the Superintendent of Police, CBI, ACU-I, New Delhi on 28.12.2010. The genuineness of complaint dated 28.12.2010 was verified on 29.12.2010 by Ram Singh, the then Deputy Superintendent of Police, CBI, ACU-I, New Delhi in presence of independent witnesses namely, Jitendra Bhardwaj and Hukum Chand from House Tax Department, MCD, Central Zone, New Delhi by arranging a conversation of the complainant from his Mobile bearing no. 9311067502 with the appellant Baljeet Singh on his Mobile bearing no. 9873574750. The conversation between the complainant and the appellant Baljeet Singh was recorded with the help of digital voice recorder and transferred to a CD and a verification memo was drawn by Sh. Ram Singh. The appellant Baljeet Singh in said incriminating conversation asked the complainant to come to his office in Drum Shaped Building, IP Estate, New Delhi. ACU-I branch of CBI, New Delhi registered RC AC 1 2010 A 0003 after verification of the complaint against the appellants Arun Kumar Gurjar and Baljeet Singh. Ram Singh, Deputy Superintendent of Police, CBI, ACU-I, New Delhi was detailed as the ‘Trap Laying Officer’ (TLO) and it was decided to lay a trap against the accused officials of the Income Tax Department. The complainant produced Trap money equivalent to Rs.2,00,000/- in Rs.1000 denomination. The money was kept in an envelope and Phenolphthalein Powder (hereinafter referred to as “PP powder”) was smeared on the currency notes and envelope in presence of both independent witnesses. The necessary precautions were taken and a pre-trap memorandum (handing over memo) containing the details of entire proceedings which took place before trap was drawn in presence of the team members and was duly signed.
2.4 The complainant was equipped with a digital voice recorder with a direction by the TLO to record the conversation between him and the accused officials during the transaction of bribe money. The trap money was also handed over to the complainant. The complainant after arriving at the Drum-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 to room no. 207 in the presence of the independent witnesses and the complainant.
2.5 The appellant Baljeet Singh was searched by independent witness namely Jitendra Bhardwaj which led to the recovery of an envelope containing bribe money in the left inner pocket of his coat. The recovered amount was counted and the serial numbers of the currency notes amounting to Rs.2,00,000/- exactly matched with those currency notes which were mentioned in Handing Over Memo. The appellant Baljeet Singh in presence of both independent witnesses admitted accepting the bribe from the complainant under the direction of the appellant Arun Kumar Gurjar who was sitting in the office of Commissioner of Income Tax at Drum-shaped Building, New Delhi. The appellant Arun Kumar Gurjar was brought to his office where the appellant Baljeet Singh reiterated his statement in the presence of independent witnesses and members of the trap team whereby confirmed that he accepted the bribe on the directions of the appellant Arun Kumar Gurjar who could not give any explanation for the allegations made by the appellant Baljeet Singh. The appellants Arun Kumar Gurjar and Baljeet Singh were taken into custody and a recovery memo mentioning the entire post-trap proceedings was prepared and the signatures of the trap team members were obtained on the recovery memo. The recording device previously given to the complainant was taken back and the incriminating conversation between the complainant and the appellant Baljeet Singh recorded during the bribe transaction was transferred to a CD. The washes of hands and clothes of the appellant Baljeet Singh were collected and preserved for the purpose of investigation,
2.6 The chamber of the appellant Arun Kumar Gurjar at Drum-shaped Building in New Delhi before the trap team left the office was occupied by another CBI team led by Raja Chatterjee, Inspector, CBI, New Delhi along with Mr. Kamal Kapoor, Joint Commissioner of Income Tax at Drum-shaped Building, New Delhi who accompanied the team as a witness cum representative of the Income Tax Department. The office of the appellant Arun Kumar Gurjar was searched in the presence of Kamal Kapoor which resulted in the recovery of cash amount of Rs.6,00,000/- which was taken into possession and the appellant Arun Kumar Gurjar could not give satisfactory explanation about recovery of the cash found in the drawer 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 case of MPVC and Arju Garodia, Assistant Commissioner of Income Tax at the office of CIT-X, New Delhi was responsible for assessing this case before appellant Arun Kumar Gurjar. The appellant Baljeet Singh during his tenure in the office of CIT-X, Range-29, New Delhi assisted the appellant Arun Kumar Gurjar in the scrutiny case involving the assessment of Income Tax of MPVC. The appellant Baljeet Singh despite new position assisted the appellant Arun Kumar Gurjar in the scrutiny case involving the firm of the complainant and was also writing order sheets in the case file on the direction of the appellant Arun Kumar Gurjar. There was no official order attaching the appellant Baljeet Singh to the office of the appellant Arun Kumar Gurjar.
2.8 The complainant during investigation was found to be user of mobile no. 9311067502 (Reliance) and mobile no 9873574750 (Vodafone) was being used by the appellant Baljeet Singh. The chemical examination report dated 12.01.2011 revealed that the exhibits showed positive tests indicating the presence of PP Powder. The Forensic Voice Examination Report indicated positive results regarding the comparison between the questioned voice of the appellant Baljeet Singh as recorded in the CD labeled Q-2 and his reference specimen voice contained in a CD marked as S-1. The expert opinion dated 31.03.2011 indicated that the order sheet in the case file of MPVC was written in the handwriting of the appellant Baljeet Singh which were signed by the appellant Arun Kumar Gurjar.
2.9 The investigation established that the appellant Arun Kumar Gurjar engaged in criminal conspiracy with the appellant Baljeet Singh and they committed criminal misconduct by soliciting a bribe of Rs.5,00,000/- from the complainant, a partner in MPVC. The appellant Baljeet Singh on behalf of the appellant Arun Kumar Gurjar accepted Rs.2,00,000/- as bribe money from the complainant on 29.12.2010 in the office of the appellant Arun Kumar Gurjar to finalize scrutiny of assessment case of MPVC without any hurdle. The appellants Baljeet Singh and Arun Kumar Gurjar were implicated for the offences punishable under section 120B IPC read with section 7 of the PC Act. The charge sheet was filed after conclusion of investigation. The sanction for prosecution required under section 19 of the PC Act with respect to the appellants Arun Kumar Gurjar and Baljeet Singh were granted 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 PW1 and TLO Ram Singh as PW22. 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 PW1 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 Baljeet Singh even after transfer assisted him in assessment case of the firm of the complainant as per practice and it was a time bound case and limitation was expiring on 31.12.2010 and the appellant Baljeet Singh was associated with case since inception. The appellant Arun Kumar Gurjar further stated that the assessment pertaining to the firm of the complainant was assigned to him by CIT-X in August, 2010 and was previously handled by Arju Garodia who issued a detailed questionnaire seeking information from the firm of the complainant for the completion of the scrutiny assessment but the complainant never submitted complete information. He after taking the charge of the case also sought the same information from the complainant. The complainant was aware that the matter was a time bound matter and the complainant intentionally delayed the proceeding. A detailed questionnaire/show-cause was issued to the complainant’s firm but the information was again not supplied. The false case was registered on 29.12.2010 to avoid the completion of the assessment of the proceeding on or before 31.12.2010 as income tax department could not have taken any action after expiry of limitation period i.e. 31.12.2010 in the assessment case in question. He never made any demand directly or indirectly and performed his duty with honesty and sincerity in the best interest of the department. The firm of the complainant was assessed and the penalty was imposed after the registration of this case. The appellant Arun Kumar Gurjar pleaded innocence and false implication by the complainant as the complainant was apprehending substantial financial liabilities/penalties and prosecution under Income Tax Act. The appellant Arun Kumar Gurjar further stated that enquiries were also made by him about the sister concerns of M/s. Madhya Pradesh Vanijya Company which are RB Commodity Pvt. Ltd., Gaurav Traders etc. and the complainant in order to scuttle the said enquiries and to avoid further tax penalties/prosecution under Income Tax Act implicated him falsely. The appellant Arun Kumar Gurjar preferred to lead defence evidence and examined Om Prakash, Inspector at ITO, Ward no 47 (1), Drum Shape Building. The defence evidence on behalf of the appellant Arun Kumar Gurjar was ordered to be closed vide order dated 19.01.2015.
4.2 The appellant Baljeet Singh stated that he was not assessing officer 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. The appellant preferred to lead defence evidence and examined Shiv Swaroop Singh, Joint Commissioner of Income Tax, Range-7, Ludhiana, Punjab as DW1 and Ravinder Pal, Junior Judicial Assistant, Sessions Record Room, Patiala House Courts as DW2. The defence evidence on behalf of the appellant Baljeet Singh was ordered to be closed vide order dated 08.12.2014.
5. The trial court convicted the appellants for the offences punishable under section 120B IPC read with section 7 of the PC Act vide the impugned judgment by observing that the prosecution has established its case and all essential ingredient of offence under section 120 B IPC read with Section 7 of PC Act against the appellants Arun Kumar Gurjar and Baljeet Singh beyond any reasonable doubt and convicted the appellants Arun Kumar Gurjar and Baljeet Singh for the offences under section 120 B IPC read with section 7 of the PC Act.The relevant portion of the impugned judgment is reproduced verbatim as under:-
34. In view of above discussion, testimony of witnesses, documents proved on record and the circumstances of the case it may be concluded that:-
i) A-1 was posted as Joint Commissioner of Income Tax and A-2 as Inspector, Income Tax and this fact has not been disputed even by accused persons.
ii) A-2 was assisting A-1 in the case of firm of the complainant even after the transfer.
iii) Income tax assessment case of Madhya Pardesh Vanijaya Company, the firm of the complainant was pending before A-1 which was time bound case and the limitation was going to be expired on 31.12.2015.
iv) Sanction for prosecution was duly granted by competent authorities for prosecution of A-1 and A-2.
v) Complaint was lodged by complainant in CBI and the FIR was registered.
vi)In pre trap proceedings PWl, PW10, PW18 and PW22 participated with some Other officials of CBI and the proceedings of pre trap has been supported by all the witnesses. In pre trap proceedings, complainant talked to A-2 over the phone and A-2 called the complainant to income tax office. This fact is supported by PWl, PW18 and PW22 and is corroborated by call detail record (CDR) and the oral testimony of these witnesses.
vii)The recorded conversation contained in CD Q-1 and CD Q-2 pertaining to pre trap and post trap proceedings; and the disclosure made by A-2 in the custody of CBI are not required to be taken into consideration being inadmissible evidence.
viii)PWl 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, PWl 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 PWl 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 PWl, PW18 and PW22. PW10 has supported only to the extent that some recoveries were made in post trap proceedings.
ix) There is nothing on record to accept that PWl and PW22 had any motive to falsely implicate A-1 and A-2. PW10 and PW18 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 PWl, PW10, PW18 and PW22 has supported by each other on the material aspects of the case which find corroboration from the documents i.e recovery memo and handing over memo etc.
x) It has been supported by PWl, PW10, PW18 and PW22 that time and place of meeting in income tax office was fixed during telephonic conversation between PWl and A-2 in pre trap proceedings. In ordinary course of events, A-2 has noreason to call PWl to meet him in income tax office and no explanation has been given by A-2 in this regard.
xi)A-2 met PWl in room no.207 of income tax office which was office room of A-1. In ordinary course of events there was no reason for A-2 to meet a litigant in the office of his senior officer (A-1) when A-1 himself was present in the same complex. It corroborates the story of prosecution.
xii)A-l being the Joint Commissioner of Income Tax was the Assessing Officer of Income tax case of firm of PWl and A-2 was assisting him. In the’ facts and circumstances of the case, A-2 could not demand bribe from PWl without instructions of A-1. A-2 himself was in no position to give any favour to firm of PWl without aid and help of A-1 which 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 PWl.
xiii)The essential ingredient of offence i.e demand of bribe by A-1 and A-2; acceptance of bribe by A-2 from PWl and recovery of bribe amount from the possession of A-2 is proved by prosecution beyond any doubt. The entire chain of facts and circumstances proves that demand and acceptance of bribe was by A-1 and A-2 in conspiracy with each other. A-2 has failed to give any convincing explanation about possession of bribe amount and therefore, he has failed to rebut presumption under section 20 of P.C Act.
xiv)Entire chain of circumstances and the facts established on record proved the guilt of A-1 and A-2 without any doubt. There is no reasonable hypothesis established on record to suggest the innocence of A-1 and A-2. In totality the testimony of PWl, PW10, PW18 and PW22 and other PWs inspires confidence about truthfulness of material allegations.
xv)Defence plea of A-1 and A-2 about their false implication is not proved on record even in preponderance of probability and does not inspire any confidence. Therefore, the defence plea of false implication cannot be accepted.

35. In view of the above 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 quantum of sentence between the two convicts.

27. Keeping in view the above discussions, convict Arun Kumar Gurjar and convict Baljeet Singh are sentenced in the following manner:-
a) To undergo rigorous imprisonment for 4 years and to pay fine Rs.One Lakh each for the offence u/s 120 B IPC r.w section 7 of Prevention of Corruption Act, 1988. In default of payment of fine the respective convictsshall undergo simple imprisonment for four months.

b) To undergo rigorous imprisonment for 4 years and to pay fine of Rs. One Lakh each for the offence u/s 7 of the Prevention of Corruption Act, 1988. In default of payment of fine the respective convicts shall further undergo simple imprisonment for four months.

28. All the sentences of imprisonment will run concurrently. Benefit of 428 Cr.P.C. be given to convict Arun Kumar Gurjar for the period from 29.12.2010 to 28.02.2011 and to convict Baljeet Singh for the period from 29.12.2010 to 25.02.2011 in respect of imprisonment already undergone by them.

29. In accordance with order on sentence, convict Arun Kumar Gurjar and Baljeet Singh be taken into custody and be sent to jail to undergo sentence. Personal bonds and surety bonds of both the convicts stands cancelled. Copy of the judgment, order on sentence, charge, report u/s 173 Cr.PC, statement of Pws and Dws and statement of accused ect be given to the convicts free of cost as per law. Custody warrants be prepared separately in accordance with the order of sentence.

6. The appellants being aggrieved by the impugned judgment and the impugned order filed the present appeals to set aside the impugned judgment and the impugned order.
6.1 The appellant Arun Kumar Gurjar challenged the impugned judgment and impugned order primarily on grounds that the prosecution case is based on speculations and the trial court has failed to appreciate the prosecution story in right perspective. The trial court ought to have granted benefit of doubt to the appellant Arun Kumar Gurjar as there was no direct evidence against him except disclosure statement of the appellant Baljeet Singh. The trial court convicted the appellant on basis of evidences which were not proved by the prosecution which was also observed by the trial court. The recorded conversations being CD Q-1 and CD Q-2 do not contain any reference of demand of the bribe by the appellant Arjun Kumar Gurjar and the trial court has 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 PW10 and PW18 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 the complainant was liable to be rejected being wholly unreliable, motivated being contradictory and the complainant was having reasons to falsely implicate the appellant Arun Kumar Gurjar to save himself from tax liabilities and criminal prosecution. There was inordinate delay in recording of FIR. The prosecution could not prove place of recovery. The impugned judgment itself is full of contradictions. The prosecution has failed to examine material witnesses. The prosecution has not obtained sanction under section 197 of the Code for prosecution of offence under section 120 B IPC. The trial court has awarded excessive sentence to the appellant Arun Kumar Gurjar. The appellant Arun Kumar Gurjar to challenge impugned judgment and impugned order also raised other grounds and referred case law as detailed in grounds of appeal. It is prayed that the impugned judgment and impugned order be set aside.
6.2 The appellant Baljeet Singh challenged the impugned judgment and impugned order on grounds that they are based on surmises, assumptions and conjectures and contrary to the evidence. The prosecution has failed to prove any prior meeting of mind between the appellants Arun Kumar Gurjar and Baljeet Singh to prove charge under section 120B IPC. The prosecution has not led legally admissible evidence to prove demand, acceptance and recovery to establish offence under section 7 of PC Act. The testimony is not corroborated by any independent evidence which is inconsistent, contradictory and improved testimony. The sanctioning authority PW19 S. M. Ashraf while granting sanction Ex. PW19/A against the appellant Baljeet Singh did not apply its mind. The complaint Ex PW 1/A is a fabricated document making the entire prosecution case highly suspicious. The original complaint made by the complainant PW1 was not produced during trial rather complaint Ex. PW1/A which was typed in office of CBI was produced during trial. The trial court erroneously presumed that there was no change in the complaint Ex PW 1/A. The prosecution has not proved initial demand which is most crucial ingredient of Section 7 of the PC Act. The deposition of the complainant PW1 regarding initial demand is self-contradictory and his testimony is unreliable. There is extraordinary delay in registration of FIR. The testimony of independent witness did not support case of prosecution and proved that the alleged recovery from the appellant Baljeet Singh was tainted and manipulated. The testimony of PW18 Jitender Bhardwaj has belied the entire prosecution version regarding the alleged trap of the appellant Baljeet Singh. The testimony of PW22 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 PW1 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 PW1 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 grounds of appeal. It was prayed that impugned judgment and impugned order be set aside.
6.3 The appellants Arun Kumar Gurjar and Baljeet Singh as such challenged the impugned judgment and the impugned order primarily on the following grounds:-
i.) The prosecution has failed to establish any prior meeting of mind to prove charge under section 120 B IPC.

ii) There is no evidence led by the prosecution pertaining to prove demand, acceptance and recovery.

iii) The sanctioning authorities granted sanction to prosecute the appellants Arun Kumar Gurjar and Baljeet Singh without application of mind.

iv) The complaint Ex. PW1/A is a fabricated document making the entire prosecution case highly suspicious.

v) There is an extraordinary delay in lodging the FIR.

vi) The testimony of the complainant is unreliable contradictory and there are material contradictions, improvements and inherent deficiencies in the testimony of the complainant.

vii). Hukum Chand PW10 did not support the case of the prosecution.

viii) The testimony of Ram Singh TLO PW22 is full of contradictions, improvements and inherent deficiencies and he was an absolute interested witness.

ix) Handing Over Memo Ex PW 1/E is a tainted document.

x) The prosecution has not proved attendance of the complainant PWl for lodging of the complaint in CBI Office on 28.12.2010.

xi) There are contradictions regarding attendance in the testimonies of PWl, PW10 and PW18 in CBI office on 29.12.2010.

xii) There is no evidence to prove demand at the spot.

xiii) The alleged acceptance of any bribe by appellants Arun Kumar Gurjar and Baljeet Singh from complainant PW1 is not proved.

xiv) The washes of the clothes were fabricated/tampered.

7. Chapter III of PC Act deals with offences and penalties. Section 7 deals with offence relating to public servant being bribed. The Supreme Court in Soundarajan V State Rep. by the Inspector of Police Vigilance Anticorruption Dindigul, Criminal Appeal No. 1592 of 2022 decided on 17th April, 2022 after referring Mohan Singh V State of Bihar, (2011) 9SCC272; Union of India V Ex.-GNR Ajeet Singh, (2013) 4SCC186 and Neeraj Dutta V State (Govt. of NCT of Delhi), 2022 SCC OnLine SC1724 observed as under:-
9. It is well settled that for establishing the commission of an offence punishable under section of the PC Act, proof of demand of gratification and acceptance of the gratification 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 is because in the absence of proof of demand, a legal presumption under Section 20 of the Prevention of Corruption Act, 1988 (for short “the Act”) would not arise. Thus, the proof of demand is a sine qua non for an offence to be established under Sections 7, 13(1)(d)(i) and (ii) of the Act and dehors the proof of demand the offence under the two sections cannot be brought home. Thus, mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof in the absence of proof of demand would not be sufficient to bring home the charge under Sections 7, 13(1)(d)(i) and (ii) of the Act. Hence, the pertinent question is, as to how demand could be proved in the absence of any direct evidence being let in by the complainant owing to the complainant not supporting the complaint or turning “hostile” or the complainant not beingavailable on account of his death or for any other reason. In this regard, it is necessary to discuss the relevant Sections of the Evidence Act before answering the question for reference.

45. On consideration of the aforesaid cases, the question framed for determination by the larger Bench is as under:

“(1) Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988based on other evidence adduced by the prosecution?”

66. Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression “shall be presumed” in sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act, etc. if the condition envisaged in the former part of the Section is satisfied. The only condition for drawing a legal presumption under Section 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that 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](“MadhukarBhaskarrao 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 said premise is established, the inference to be drawn is that the said gratification was accepted as a “motive or reward” for doing or forbearing to do any official act.
87. Therefore, this Court cautioned that even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the Judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.

88. What emerges from the aforesaid discussion is summarised as under:

88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter offact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes 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 regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
88.6. (f) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7. (g) Insofar as Section 7 of the Act is concerned, on theproof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under Section20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.

90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:
In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.

92. Before we conclude, we hope and trust that the complainants as well as the prosecution make sincere efforts to ensure that the corrupt public servants are brought to book and convicted so that the administration and governance becomes unpolluted 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 PW1 lodged complaint Ex. PW1/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 PW1 was a partner in MPVC which was selected for scrutiny for assessment year 2008-09 through Computer Assisted Scrutiny Selection (CASS) on 03.08.2009 Ex.PW1/DX-22 and was pending in Ward-29 of Range-29. The Income Tax Department issued notices to MPVC and related firms to obtain more information since 03.08.2009 but response given by MPVC was found to be unsatisfactory and complete documents were not submitted before assessing officers. The appellant Arun Kumar Gurjar became the Joint Commissioner of Income Tax of Range 29, Drum Shaped Building, ITO in CIT X in July 2010 and used to sit in room no 207. The pending assessment of MPVC was transferred from Arju Goradia, Assistant Commissioner of Income Tax, CIT X PW16 to the appellant Arun Kumar Gurjar by the order of Feroz Khan, Commissioner of Income Tax vide order dated 06.08.2010. The appellant Baljeet Singh was already posted as Inspector, Income Tax, Circle 29 (Range 29), CIT X in July 2010 and used to sit in room no 110. The appellant Baljeet Singh joined Circle 29 sometime in year, 2008 and was associated with the assessment of MPVC since then even before Arju Goradia PW16 handled it. The appellant Baljeet Singh also participated in surveys of the family firms of the complainant PW1 which was operating from office situated in Naya Bazaar which was also office of MPCV. The note sheets in MPVC’s proceedings Ex. PW1/K2 were written by the appellant Baljeet Singh as reflected from Ex. PW6/B.
9.2 The learned Senior Counsel further argued that the complainant was motivated by malice to implicate the appellants Arun Kumar Gurjar and Baljeet Singh to derail the ongoing scrutiny of the firms of the complainant including MPVC. The complainant was a regular tax evader and was having grudge against the appellant Baljeet Singh as a quarrel happened between them during the survey conducted by IT department at the firm of the family of the complainant namely M/s Radha Krishan Banarsi Dass, Naya Bazaar Office which is also office of MPVC. The complaint was mala fide and a cover-up for the complainant’s tax practices which were under the scanner even before the appellant Arun Kumar Gurjar took charge as the assessment officer. The complainant did not cooperate by giving responses to various notices issued to the complainant. The complainant deliberately timed the complaint so that scrutiny of MPVC would get derailed and time-barred on 31.12.2010. The complainant 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. PW1/A. The complainant PW1 is an unreliable witness who changed his stance many times. The trial court also observed that testimony of the complainant as PW1 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 PW1 and referred K.Ramadoss & another V Deputy Superintendent of Police, 2019 SCC OnLine Mad16566 and State of Punjab V Madan Mohan Lal Verma, (2013) 14 SCC 153. The allegations of demand in October and December 2010 are vague, unclear and inherently improbable. It is also argued that there is no evidence of acceptance.
9.4 The learned Senior Counsel further argued that there was no proper verification by the respondent/CBI regarding allegations against the appellant Arun Kumar Gurjar. The investigating officer PW23 did not cross-verify version of the complainant about meeting the appellant Arun Kumar Gurjar in October or 27.12.2010 and no verification was made in respect of the appellant Arun Kumar Gurjar in the presence of the independent witnesses.
9.5 The learned Senior Counsel for the appellant Arun Kumar Gurjar regarding original complaint argued that the prosecution did not produce original complaint brought by the complainant in CBI office and suppression of the original complaint and its substitution with a new document made the entire case suspect and relied on A. Sevi v. State of T.N., 1981 Supp SCC 43. It was further argued that non securing of the original complaint is a glaring error and relied on C. Prasnnakumar @ Papanna and others V State, Crl. A. No. 376/2006.
9.6 The learned Senior Counsel further argued that the prosecution has failed to establish conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh and pointed out that the trial court inferred conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh on four factors which are i) the appellant Baljeet Singh despite being transferred was assisting the appellant Arun Kumar Gurjar, ii) the appellant Baljeet Singh was not in individual position to grant any favour to the complainant PW1, iii) the appellant Baljeet Singh could not have demanded the bribe from the complainant PW1 without instruction of the appellant Arun Kumar Gurjar and iv) the appellant Baljeet Singh met the complainant PW1 in the office-room of the appellant Arun Kumar Gurjar. It was argued that these issues are not good enough to constitute conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh. It was further argued that the alleged recovery was not affected in room of the appellant Arun Kumar Gurjar.
9.7 The learned Senior Counsel also argued that there are gross discrepancies in conduct of the trap proceedings by the respondent/CBI. The Handing Over Memo (HOM) is of doubtful veracity. The learned Senior Counsel also attempted to distinguish case law/judgments 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 could not prove charges against the appellant Baljeet Singh.
10.2 It was argued that the trap was motivated and was orchestrated by the complainant PW1 with the help of the respondent/CBI. The complainant PW1 was facing income tax assessment proceedings for assessment year 2008-2009 which was to be time barred on 31.12.2010. Hanish Bansal who was not examined as witness, the authorised representative of MPVC wrote a letter dated 21.12.2010 addressed to the appellant Arun Kumar Gurjar seeking 15 days’ time to produce the documents to make the assessment proceedings time barred under section 153 of the Income Tax Act, 196l which was rejected by the appellant Arun Kumar Gurjar. The complainant PW1 was also having previous enmity with the appellant Baljeet Singh to falsely implicate him as the appellant was associated with the enquiry of firm M/s Radha Kishan Banarasi Das, a family firm of the complainant and the appellant Baljeet Singh during survey had heated arguments with the complainant. Hanish Bansal was handling proceedings on behalf of MPVC and if the appellants Arun Kumar Gurjar and Baljeet Singh wished to seek bribe, they could have demanded from Hanish Bansal. The complainant PW1 did not mention about survey against M/s Radha Kishan Banarasi in his complaint Ex. PW 1/A. DW l Shiv Swarup Singh, Joint Commissioner of Income Tax also deposed about the said scuffle between the appellant and the complainant.
10.3 The learned Senior Counsel further argued that the appellant Baljeet Singh was assisting the appellant Arun Kumar Gurjar in concluding assessment proceedings in various cases which is not contrary to the practice and procedure adopted by the IT Department during the period of completion of the assessment. The appellant Baljeet Singh was posted in the office of Joint Commissioner Income Tax, Range-29, under CIT-X, Drum Shaped Building, New Delhi till 31.10.2010 and he joined new office i.e. lAP-V, GIT (Audit)-1, C.R. Building, New Delhi on 01.11.2010 on transfer and the appellant Baljeet Singh even after his transfer was assisting the appellant Arun Kumar Gurjar in scrutiny case of MPVC and writing order-sheets in the said case on the directions of the appellant Arun Kumar Gurjar. The appellant was not the assessing officer and had no authority or power in the assessment and was not in position to show any favour to the company of the complainant PW 1. The appellant Arun Kumar Gurjar sent a letter dated 22.10.2010 Ex PW16/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 ExPW14/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. PW16 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. PW16 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 deposed that as a matter of practice sometimes senior officers used to request the officials for their assistance even after their transfer. PW23 on 10.10.2014 stated that he did not notice any illegality in the order sheets and proceedings pertaining to the case of MPVC.
10.4 The learned Senior Counsel further argued that the prosecution has failed to prove the initial demand which is a sine qua non for convicting an accused for an offence under section 7 of PC Act. The initial demand of Rs. 5 lakhs which was allegedly made in October 2010 is only mentioned in the complaint Ex PW 1/A which is contradictory to deposition of PW 1 in his chief examination. The complainant PW 1 introduced for the first time in his examination in chief dated 03.06.2013 that initially demand of Rs 1.5 lakhs was made by the appellants Arun Kumar Gurjar and Baljeet Singh. The investigating officer PW 23 Vijay Bahadur in cross examination states that he did not cross verify the version of complainant about his alleged meeting with the appellant Arun Kumar Gurjar in October 2010. The deposition of the complainant PWl has material contradictions, improvements and deficiencies and was an interested witness. The learned Senior Counsel regarding demand made in December, 2010 submitted that the allegation of demand of Rs. 5 lacs was introduced for the first time on 22/23 December 2010 and on 27.12.2010 remained uncorroborated hence the sole testimony of the complainant PW1 cannot be relied upon to prove such demand beyond reasonable doubt. The complainant PW1 admitted that no complaint was filed by him before any authority in December 2010 prior to meeting on 27.12.2010. The trial court in impugned judgment held that it is not safe to rely on recorded conversation hence the demand is not corroborated by any substantive piece of evidence. TLO Ram Singh PW22 was an interested witness and his deposition has contradictions, improvements and deficiencies and as such it can be relied on. There is no corroboration to the demand made as the testimony of PW 22 has to be discarded and the sole testimony of the complainant PW1 in relation to such demand remains uncorroborated. The learned Senior Counsel relied on P. Satyanarayana Murthy V District inspector of police state of AndhraPradesh, (2015) 10 SCC 152; B. Jayaraj V State of Andhra Pradesh, (2014) 13 SCC 55 and others judgments.
10.5 It was also 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 PWl 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 Arun Kumar Gurjar, Joint Commissioner of Income tax was assessing officer (AO) of firm of the complainant MPVC and during October, 2010 to December 2010 connived with the appellant Baljeet Singh and entered into criminal conspiracy and in pursuance thereof by abusing their position as public servants while scrutinizing the income tax assessment of 2008-2009 of MPVC, the appellant Arun Kumar Gurjar and the appellant Baljeet Singh demanded illegal gratification of 5 lakhs in the month of October, 2010 from the complainant PW1, the partner of MPVC for scrutiny and finalizing the income tax assessment without any hurdle. A notice dated 20.12.2010 was issued to MPVC when the complainant PW1 refused to pay the bribe amount of’ 5 lacs and when the complainant visited the office on 27.12.2010, the appellants Arun Kumar Gurjar and Baljeet Singh again demanded bribe of Rs. 5 lacs from the complainant PW1 for finalization of entire matter without any hurdle and illegal gratification of Rs. 2 lacs was accepted by the appellants Arun Kumar Gurjar and Baljeet Singh on 29. 12.2010 from the complainant.
11.2 The trial Court has passed the impugned Judgement after appreciation of entire evidence and law. The appellant Arun Kumar Gurjar was posted as Joint Commissioner of Income tax and the appellant Baljeet Singh was posted as inspector. The appellant Baljeet Singh was assisting the appellant Arun Kumar Gurjar in the case of firm of the complainant even after his transfer. The income tax assessment case of MPVC, the firm of the complainant was pending before the appellant Arun Kumar Gurjar which was time bound case and limitation was to expired on 31.12.2010. The complainant lodged the complaint on 28.12.2010 and FIR was registered on 28.12.2015. The complainant PW2, Hukum Chand PW10, Jitender Bhardwaj PW18 and TLO Ram Singh PW22 along with other officials of CBI participated in pre trap proceedings and these witnesses supported pre trap proceedings. The complainant in pre trap proceedings talked to the appellant Baljeet Singh over the phone who called the complainant to income tax office and this fact is supported by PW1, PW18 and PW22 and is corroborated by call detail records (CDR) and the oral testimonies of these witnesses. The complainant PW1 has supported allegations of demand of bribe by the appellants Arun Kumar Gurjar and Baljeet Singh in income tax office; the 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 PW1 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 PW1 is corroborated by circumstantial evidence followed by recovery of bribe amount from the appellant Baljeet Singh which is corroborated by the PW1, PW18 and PW22 and PW10 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 PW1 and TLO PW22 (TLO) had any motive to falsely implicate the appellants Arun Kumar Gurjar and Ba