RAJESH GUPTA versus STATE THROUGH CENTRAL BUREAU OF INVESTIGATION on 29 March 2022

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1. This appeal has been filed questioning the validity of the judgmentpassed on 25.3.2014 in Criminal Appeal No. 89 of 2009 by the HighCourt of Delhi confirming the judgment dated 24.1.2009 passed by SpecialJudge, Central District-02, Delhi in C.C. No. 195 of 2001 convicting theappellant for the offences under Sections 7 & 13 (2) read with SectionD13(1)(d) of the Prevention of Corruption Act, 1988 (for short “PC Act”)and the order of sentence dated 27.1.2009 whereby for the offenceunder Section 7 of PC Act, the appellant was sentenced to 2 yearsrigorous imprisonment with a fine of Rs. 15,000/- and in default, furthersimple imprisonment for 30 days and for the offence under Section 13(2)read with Section 13(1)(d) of PC Act, rigorous imprisonment for 2½Eyears and fine of Rs. 15,000/-, in default, simple imprisonment for 30days. Both the sentences were directed to run concurrently.

2. The appellant is an accused in a corruption case under the PCAct. As per prosecution allegations, the appellant, who was the AssistantCommissioner of Income Tax, Circle 20(1) at the concerned point ofFtime demanded and accepted the bribe of Rs.15,000/- from thecomplainant PW-3 Madhu Bala in regard to scrutiny of her case, whichwas pending with the appellant.

3. The Trial Court, vide judgment dated 24.1.2009, concluded thaton 7.3.2000, the appellant, while working as public servant (AssistantGCommissioner of Income Tax, Circle 20(1)), demanded bribe from thecomplainant PW3- Madhu Bala and in pursuance of his demand,accepted bribe/illegal gratification of Rs. 15,000/- from her on 9.3.2000in his office (cabin/chamber). Thus by corrupt and illegal means, heabused his position as a public servant and obtained pecuniary advantagefor himself. The appellant was found guilty for the charge under SectionsH

7 & 13(2) read with Section 13(1)(d) of PC Act. The High Court relyingupon the testimony of PW3-Madhu Bala, who was able to identify theconversation Exb. P2 (cassette) from the transcript though found inaudibleand without proof of non-tampering the same, concluded that the demandwas proved. On the point of acceptance, relying upon the version ofPW3 Madhu Bala, who was said to put Rs. 15,000/- in a note sheettowards visitors side of the table underneath a dak-pad and in referenceto the CFSL report, proved the acceptance of bribe demanded by theappellant. In addition, drawing presumption under Section 20 of PC Act,confirmed the findings of the Trial Court and the sentence so awarded.Aggrieved by the said judgments, this appeal has been filed.

4. We have heard Mr. V. Giri, learned senior counsel for theappellant and Ms. Aishwarya Bhati, learned Additional Solicitor General,appearing for the respondent at length and have perused the record.

5. In a case of corruption under the PC Act, what is essentiallyrequired to be proved is demand of money or illegal gratification by theaccused, as well as acceptance and recovery of the same from theaccused with motive. In the present case, as per the prosecution, thedemand by the appellant from the complainant is alleged to be on fouroccasions. Twice on 07.03.2000 and again twice on 09.03.2000. On thefirst occasion on 07.03.2000, according to the complainant, the demandis said to have been made by the appellant through the CharteredAccountant namely; Mr. Rajiv Jain, according to whom, the appellanthad demanded a sum of Rs.50,000/- for settlement of the case in favourof the complainant. Again on the said date itself, i.e. 07.03.2000, whenshe visited the office of the appellant along with her employee (Mr.Krishan Kumar), the demand made initially from her was of Rs.75,000/-, which is said to have been reduced to Rs.50,000/-.

6. The complainant then approached Central Bureau ofInvestigation (CBI) through some high-level connection of her (whosename she did not disclose), and then on 09.03.2000 she visited the officeof the CBI and met the concerned Officer (Mr. Awasthi) who, aftertalking to her, advised her to speak to the appellant on phone with regardto the matter of closing her scrutiny case, for which the alleged demandof money was made by the appellant. The complainant made the call tothe appellant and the telephone conversation between the complainantand the appellant accused is said to have been recorded, in whichadmittedly the offer of money was being made by the complainant to the AB

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Aappellant when she said that she would give only Rs.15,000/- to whichno acknowledgement or acceptance from the side of the appellant wasthere, except that the appellant agreed to meet the complainant in hisoffice in the evening at about 04.00 p.m. The said conversation has beenproduced before the Court as Exb.P-2.

B7. The second incident on 09.03.2000 is said to be when thecomplainant went to the office of the appellant at about 04.00 p.m.,accompanied by two independent witnesses, being Constable BabitaKapoor, who was not examined and PW5-B.S. Chauhan (shadowwitnesses), who were both independent government officers, having beenasked by the officials of the CBI to accompany the complainant so thatCthey could be witnesses of the alleged illegal demand and gratificationbeing handed over to the appellant. However, the said two independentshadow witnesses did not go inside the chamber of the appellant whenthe alleged demand and transaction of money is said to have taken place.It is the case of the prosecution that the complainant had gone thereDalone inside the chamber of the appellant, which was a shared room inwhich there was a partition and other officers namely; PW6-N.C. Swain,DCIT and PW10-T. Kipgen, ACIT were also present on the other sideof the partitioned room. The complainant had been given a Micro-CassetteRecorder with a Credit-Card Type Transmitter and the shadow witnessPW5-B.S. Chauhan was given the ear-piece to the Credit-CardETransmitter to listen and record the conversation between the appellantand the complainant. The said conversations have been produced asExb. P-1 and P-3. The currency notes, which were to be handed overby the complainant to the appellant, were laced with phenolphthaleinpowder. The complainant is said to have placed currency notes, totalingFRs.15,000/-, on the visitor side of the office table of the appellant, wrappedin a piece of paper, which was then covered with the dak pad. There isno allegation of the money having been handed over personally to theappellant or kept inside the drawer of his table.

8. The complainant is said to have then gone out of the office ofGthe appellant and thereafter the officers of the CBI entered and conductedthe trap proceedings. They checked the appellant in person and also thedrawers of his office table and his briefcase, but did not find any money,which was later recovered from the visitors side of the table underneaththe dak pad, which was only on the indication of complainant after shewas called again in chamber. The phenolphthalein test of the appellantH

was conducted by asking the appellant to dip his hands in SodiumCarbonate solution, but the colour of the solution did not change pink.However, still the water which was collected and sent for CFSLexamination, and in such examination report, traces of phenolphthaleinare said to have been found. While the complainant was in the chamberof the appellant, the conversation was to be recorded by her and alsothrough the Credit Card Transmitter, but she skipped to push the buttonof recorder, therefore, it could not be recorded. The other two officersnamely; PW6-Mr. N.C. Swain, Dy. CIT and PW10-Kipgen, ACIT, whowere in the same room with a partition, did not support the allegation ofdemand and acceptance of bribe by the appellant. It was in these factsthat the appellant is said to have been made accused and convicted inthe case.

9. As regards the alleged demand at the pre-trap stage, it is saidto have been made first time on 07.03.2000 through the CharteredAccountant namely, Mr. Rajiv Jain and second time when complainantvisited the office of the appellant on the same date i.e. 7.3.2000 alongwith her employee, Krishan Kumar. To prove the said two demands on7.3.2000, neither Rajiv Jain, Chartered Accountant nor Krishan Kumar(employee of the complainant) have been examined in the Court. It is tobe observed that before the accused is called upon to explain thefoundational fact of demand and acceptance, it must be proved by theprosecution by cogent evidence. The testimony of the complainant, whois an interested or partisan witness with the success of trap, must betested in the same way as that of any other interested witness. Exceptthe testimony of PW3 Madhu Balal, no other material has been broughton record to prove the said demand. Therefore, in our considered view,pre-trap demand on 7.3.2000 has not been proved by the prosecution,which is a foundational fact of the case. In our view, the finding recordedby the Trial Court to prove the pre-trap demand i.e. on 7.3.2000 is withoutany evidence on record and based on erratic evaluation, which ismechanically confirmed by the High Court.

10. At pre-trap stage, the third demand, as alleged, was made on9.3.2000 on the basis of a telephonic conversation recorded in the officeof CBI. As per the testimony of PW3-Madhubala, second cassette ExbP-2 is the conversation recorded in the office of CBI. The transcript isin the shape of a statement of complainant under Section 161 Cr.P.C..The said recording Exb. P2 was inaudible when played in the court A

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Aduring the statement of PW3 Madhu Bala. As per her request, it was re-played, then only PW3 could identify part of the conversation takingclue from the transcript. About some part of the recording in the statement,she said that her car became out of order and she offered about Rs.15,000/-, but she could not gather other dialogue spoken by the accused,Rajesh Gupta clearly, except to agree for meeting the appellant at 4BP.M. The net conclusion is that the said conversation was inaudible, ashas rightly been observed by the High Court in paragraph 48 of theimpugned judgment.

11. The argument of the counsel for the appellant has substancethat transcript cannot be produced in the form of a statement of theCcomplainant under Section 161 Cr.P.C. because it was a conversationwith the accused and cannot be her own version. At the same time,from the evidence brought on record, the said statement in the shape oftranscript was of 11.6.2001, whereas the alleged incidence occurred 15months prior thereto i.e. on 9.3.2000. The accused applied to the TrialDCourt to supply the transcript of the conversation, if any, prepared in theoffice of CBI, but at the time of hearing of the said application, thePublic Prosecutor made a statement before the Court on 1.4.2002 andsaid that no transcript was prepared from the audio cassette Exb. P2,hence could not be supplied to the accused by Court, and his applicationfor supply of transcript was disposed of on the basis of the statementEmade at the Bar by the Public Prosecutor. Had the transcript, if any,been with the prosecution on 11.6.2001, there was no reason for the saidstatement having been made before the Court. Thus, the said transcript,on the basis of which the clue is taken by the appellant while hearing theinaudible cassette Exb. P2 in the Court, was highly doubtful which, inFour view, cannot be relied upon. It is not out of place to observe thatconversation of complainant and appellant in the office of CBI wasrecorded on the aid and advise of Mr. Awasthi and entire set-up forrecording was arranged by him, but he was not produced as a witnessby prosecution to prove the same.G12. On the issue of evidentiary value and credibility of the recordingin the cases of trap, the law is well-settled in the case of Ram Singh vs.Col. Ram Singh 1985 (Suppl) SCC 611, wherein this Court held thattape-recorded statement is admissible in evidence if the voice of thespeaker is identified by the maker of the record and other personsrecognizing his voice. In case, the maker is unable to identify the voice,H

strict proof would be required to determine whether or not, the saidvoice is of alleged speaker. The accuracy of the tape-recorded statementmust be proved by the maker of the record by satisfactory evidence,direct or circumstantial. The possibility of tampering with, or erasure ofany part of the tape-recorded statement must be totally excluded. Thevoice of the particular speaker must be clearly audible and must not belost or distorted by other sounds or disturbances, otherwise, the transcriptas prepared, is inadmissible in evidence.

13. In view of the above discussion, it is clear that the pre-traprecording made in the office of CBI and produced as Exb. P2 and statedby PW3 Madhu Bala in her statement with the clue of transcript is nottestified with the touchstone of the law laid down in the case of RamSingh (supra). As apparent from the record, the finding recorded by theHigh Court that the said cassette is inaudible, PW3- Madhu Bala, duringplaying of the cassette in the court, stated about some of the portion ofthe recording looking to the transcript. Once the preparation of thetranscript itself is in question, as discussed above, clue cannot be takenfrom the same and the inaudible cassette cannot be relied upon. Therefore,in the opinion of this Court, the pre-trap recording for demand in theoffice of CBI vide Exb. P2 on 9.3.2000 has not been proved.

14. The shadow witness PW4-Virendra Prasad was present atthe time of conversation of the complainant and the appellant on 9.3.2000in CBI office. In his Court statement, he said that the offer was made bythe complainant to the appellant and no demand at the instance of theappellant was made. While, analyzing the testimony of this witness, theTrial Court has rightly observed that from the testimony of PW4, it isclear that no money was demanded by the appellant/accused. The othershadow witness PW5 B.S. Chauhan, who heard about the talk and waspresent in the office of CBI states that the complainant had given offerof Rs. 50,000/- but there was no positive response showing demand onbehalf of the appellant. He said in examination-in-chief that “aajao dekhlege”, but in cross-examination, it is specifically stated by him that therewas no demand of money from the side of the appellant/accused. Afterdue appreciation of the aforesaid, it is clear that the conversation Exb.P2 is inaudible and not proved. The said conversation which was tried tobe explained on the basis of the transcript is inadmissible in evidenceand that too in a statement recorded under Section 161 Cr.P.C. of thecomplainant. The transcript dated 11.6.2001 is doubtful, more so in view AB

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Aof the Trial Court order dated 1.4.2002 when it was recorded that therewas no transcript avaibable. Thus, in reference to inadmissible transcript,no inference or even the preponderance of probability of demand can beestablished.

15. The fourth demand, as alleged, was on 9.3.2000 in the officeBof the appellant at the time of trap. In this regard, the complainant wasadvised to accompany PW5 B.S. Chauhan and lady Constable BabitaKapoor. As per the testimony of PW3 Madhu Bala, it is clear that PW5B.S. Chauhan and lady Constable Babita Kapoor did not accompanyher to the chamber, which initially she said was out of their own will, butlater she stated that she herself asked them not to accompany herCotherwise the accused would not accept the bribe. Therefore, at thetime of the trap, it is only the complainant who went inside the chamberof the accused. She went in the chamber along with Micro-CassetteRecorder and a Credit Card Type Transmitter, the ear-piece of whichwas with PW 5 B.S. Chauhan. As per the testimony of the complainant,Dit is clear that she skipped to start the Micro-Cassette Recorder, whichshe was having at the time of trap. Therefore, there is no recording ofthe conversation between the accused and the complainant during trapon 9.3.2000 and its transmission in the Credit Card Transmitter was alsonot possible. Further the Court has rightly found that both these exhibitsExb. P1 & P3 were inaudible as admitted in the statement of PW3EMadhu Bala itself.

16. In view of the above discussion, except for the testimony ofPW3 Madhu Bala (complainant), there is no corroborative evidence ofdemand, either on 7.3.2000 or 9.3.2000. The law is well-settled by theFjudgments of this Court in Panna Damodar Rathi vs. State ofMaharashtra (1979) 4 SCC 526 and Ayyasami vs. State of Tamil Nadu(1992)1SCC304, whereby it has been clarified that the sole testimony ofthe complainant, who is the interested witness, cannot be relied uponwithout having corroboration with the independent evidence.

G17. For an offence under Section 7 of PC Act, the demand ofillegal gratification is a sine qua non to prove the guilt. Mere recoveryof currency notes cannot constitute an offence under Section 7 of PCAct, unless it is proved beyond reasonable doubt that accused voluntarilyaccepted the money, knowing it to be a bribe. The proof of acceptanceof illegal gratification can follow only if there is proof of demand.H

18. In view of the foregoing, there is no iota of evidence by whichthe demand can be proved. Thus, the conclusion of the Trial Court andthe High Court to prove the demand is based on surmises and erraticapproach ignoring the legal position as enunciated, which cannot besustained on the facts of the case.

19. Reverting to the issue of acceptance of demand, it is not outof place to refer the judgment of Meena (Smt) w/o Balwant Hemkevs. State of Maharashtra (2000) 5 SCC 21 wherein this Court held thatmere recovery of the currency notes and positive result of thephenolphthalein test is not enough in the peculiar circumstances of thecase to establish guilt of the appellant. The charge must be proved beyondreasonable doubt. In absence of proving the recovery from the personor the drawer of the table or acceptance of the currency notes by accusedwith relevant material on record in furtherance to the proved demand,the guilt cannot be proved. In the case at hand, the currency notes werefound on the table underneath dak-pad towards the visitors side. Accordingto the prosecution, the currency notes were laced with phenolphthaleinpowder. As per the testimonies of PW3- Madhu Bala, PW4-VirendraPrasad and PW5-B.S. Chauhan, it is clear that the recovery of currencynotes was made after calling PW3-Madhu Bala again in the chamber ofthe appellant by the trap party and on her indication that the money waslying at that particular place. When the hands of appellants were dippedin the solution of sodium carbonate, the colour did not change into pink.It is merely alleged that the said currency notes were wrapped in a note-sheet on which the traces of the finger prints of the appellant werefound, which is treated as acceptance by the appellant. In addition to theaforesaid, the note sheet paper, in which the currency notes werewrapped, on being dipped in the solution of sodium carbonate turnedpink. After evaluation of the evidence, it is to be observed, safe seizureof the solution of sodium carbonate has not been brought on record.Merely the note sheet, in which the money was wrapped, on dipping inthe Sodium Carbonate solution turned pink, traces of which were foundin CFSL report, is not sufficient to prove the guilt of the appellant, inparticular, when the currency notes laced with phenolphthalein powderwere found towards the visitors side on the table and not recoveredfrom the person or drawer of his table and the solution in which thehands of appellant were dipped, did not turn pink. In the facts andcircumstances of the case, in our opinion, the evidence so brought is not A

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Acogent and sufficient to prove the acceptance of bribe by the accused/appellant.

20. On the said issue, the judgments of this Court in B. Jayarajvs. State of Andhra Pradesh (2014) 13 SCC 55 C.M. Girish Babu vs.CBI (2009) 3 SCC 779 are relevant, whereby this Court has clearlyBspelt out that the recovery shall follow the proof of demand. Thepresumption under Section 20 of PC Act can be drawn only when thedemand is proved and the money is voluntarily accepted, knowing thefact that the said money has been delivered by way of bribe. In absenceof proof of demand for illegal gratification and mere possession orrecovery of the currency notes is not sufficient to constitute such offence.CIt is clarified that presumption under Section 20 PC Act can be drawnonly after demand and acceptance of illegal gratification is proved beyondreasonable doubt. In our considered opinion, the findings as recorded bythe Trial Court and the High Court, drawing presumption under Section20 of the PC Act, are completely perverse in law. There is no evidenceDto prove the demand and the acceptance. The theory of preponderanceof probabilities, as applied in this case, is not sustainable and the findingof the High Court is liable to be set-aside.

21. As per the discussion made hereinabove, it is clear that theconcurrent findings recorded by the Trial Court, and affirmed by theEHigh Court, are not based on due appreciation of the material brought onrecord in the right perspective. In fact, it is a case in which no cogentevidence is available to prove the guilt of the accused for an offenceunder Sections 7 & 13(2) read with Section 13(1)(d) of PC Act. As perdiscussion made above, in the case at hand, the concurrent findings inthe judgments of the Courts below cannot dissuade this Court fromFinterfering in a case like this where the findings of conviction have beenrecorded merely on conjectures and erratic evaluation of evidence. TheCourt is always having an obligation of judicial conscience to correct theerrors where the same are manifest. In our considered opinion, thejudgments of the Courts below suffer from serious infirmities and manifestGerror. There is no proof of demand at pre-trap stage or during trap. TheCourts must not over-look the fundamental principle of ignorance ofaccused till the charge levelled against the appellant is established beyondreasonable doubt. Therefore, in our view, the conviction of the appellanthas not been proved and the evaluation is based on conjectures anderratic evaluation.H

RAJESH GUPTA v. STATE THROUGH CENTRAL BUREAU OFINVESTIGATION

22. As such, we set aside the concurrent judgments of the TrialCourt as well as of the High Court and hold the appellant to be not guiltyof the charges against him. Consequently, the appeal stands allowed.The appellant is honourably acquitted.

Devika Gujral(Assisted by : Mahendra Yadav, LCRA)

Appeal allowed.

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