Case Law Details
Arun Kumar Vs State of Jharkhand (Jharkhand High Court)
Jharkhand High Court held that acceptance of bribe duly proved and accordingly, a punishment of six months simple imprisonment under Section 7 of the PC Act and one year’s simple imprisonment under Section 13 (2) r/w 13 (1) (d) of the P.C. Act with a fine of Rs.1000 sentenced for accepting bribe for furnishing Income Tax clearance certificate.
18 Month Imprisonment accepting bribe to furnish Income Tax clearance certificate
Facts-
The appellant who was working as an Assistant in the Income Tax office, Ranchi demanded illegal gratification of Rs.100/- from the informant Binod Kumar for furnishing Income Tax Clearance Certificate. The informant complained about this to the S.P., C.B.I., Ranchi. The matter was verified and registered. After fulfilling necessary formalities regarding pre trap memorandum, the trap was laid and tainted currency notes was given to the appellant-accused, Arun Kumar, who accepted the same and he was apprehended by raiding party.
After investigation, charge sheet was submitted and the accused was put on trial and convicted and sentenced.
Conclusion-
Taking into account the evidence on record, I am of the considered view that the prosecution has succeeded to prove its case beyond the shadow of all reasonable and probable doubt. Under the circumstance, I do not find any infirmity in the Judgment of conviction passed by the Court below under Section 7 and 13 (2) r/w 13 (1) (d) of the P.C. Act.
On the point of sentence, considering the nature of offence, protracted nature of litigation and the amount involved, a punishment of six months simple imprisonment under Section 7 of the PC Act and one year’s simple imprisonment under Section 13 (2) r/w 13 (1) (d) of the P.C. Act with a fine of Rs.1000 under both the sections shall meet the ends of justice. Both the substantive sentences to run concurrently.
FULL TEXT OF THE JUDGMENT/ORDER OF JHARKHAND HIGH COURT
1. Instant appeal has been preferred against the judgment of conviction and sentence passed by 7th Additional Judicial Commissioner-cum-Special Judge (Vigilance) and C.B.I., Ranchi in R.C. Case No.24/93 under Section 7 and 13(2) read with Section 13(1)(d) of P.C. Act.
2. The prosecution case, in brief, is that on 20.12.1993, the appellant who was working as an Assistant in the Income Tax office, Ranchi demanded illegal gratification of Rs.100/- from the informant Binod Kumar for furnishing Income Tax Clearance Certificate. The informant complained about this to the S.P., C.B.I., Ranchi. The matter was verified and registered. After fulfilling necessary formalities regarding pre trap memorandum, the trap was laid and tainted currency notes was given to the appellant-accused, Arun Kumar, who accepted the same and he was apprehended by raiding party.
3. After investigation, charge sheet was submitted and the accused was put on trial and convicted and sentenced.
4. It is argued on behalf of the appellant that prosecution case has failed to prove the ingredients of the offence charged. In order to bring home the charge it was necessary to prove, demand, acceptance and recovery of the bribe amount which has not been proved by cogent and consistent evidence.
Following points has been raised during in the course of agreement:
I. In the Income Tax Department at the relevant time, works were allotted to the assistants in alphabetical order of the name of the assessees. The name of the complainant started with alphabet B whereas the stage of work allocated to the petitioner started with alphabet A. P.W. 3 has deposed in para 1 that appellant-accused was not dealing with the file beginning with Alphabet ‘B’. It has been further corroborated by testimony of P.W. 8, who is Investigating Officer. He has deposed in para 16 that it was stated by P.W. 1 that the appellant was dealing the file of assessee beginning with Alphabet ‘B’. From the deposition of P.W.3 at para 7, it will be evident that he was simply a witness to the acceptance but not witness to the demand. This witness has further deposed in para 17 that he was not acquainted with the complainant since before and when the raid was conducted, there were several persons present there and the appellant-accused was sitting on one table. Five defense witnesses were examined on behalf of appellant in support of the accused which included Income Tax Officer, Income Tax Advocates and Chartered Accountant practicing in the Income Tax Department that this wok was not allocated to the accused.
II. The verification of the complaint was done in most perfunctory manner which will be evident from the F.I.R. itself wherein it has been stated that on receipt of the complaint petition, Sri Narayan Jha, Deputy Superintendent of Police partly interrogated the complainant who actually visited the place where the said demand had been made. It is submitted that the complaint was received at 9.30 a.m. and on 21.12.1993 and from the pre trap memorandum, it will transpire that on the very same day at 11.20 a.m. trap was laid and raid was conducted and all the formalities were done within this time. The time gap indicates that the procedural requirement as mandated in P.C. Act had not been followed by the raiding party. The complaint was made to S.P., C.B.I. on 21.12.1993 and on the same day, trap was laid and raid was conducted. They left the Income Tax Officer at 12 O’ Clock. P.W.5 has also deposed that there was large number of independent witnesses but they have not been arrayed as witness of the present case.
III. It is submitted that Income Tax Commissioner was not competent to grant sanction which has been supported by D.W.1- A. Tirkey, Income Tax Officer. P.W. 1 has deposed in para 7 that after 1987, the competent authority for granting sanction, was Chief Commissioner of Income Tax. Thereafter, Commissioner, Income Tax, Ranchi had no power to sanction for prosecution.
IV. Prosecution has failed to prove demand. P.W. 6- Dy S.P., C.B.I. in para 3 has deposed that independent witness and the complainant assembled in the C.B.I. officer on 21.12.1993 at about 10.00 a.m. This witness has not witnessed the demand part as admitted by him in para 11 of his deposition.
5. Further it is argued that P.W.5 Gopichand Rai, security officer of CCL who was member of the raiding party has expressed his ignorance as to who was complainant of the case and he failed to give the content of documents signed by him as he had not written it. It is submitted by the learned counsel that demand part has not been proved as verification report has not been brought on record.
6. It is argued that when P.W. 7, Binod Kumar, the complainant has deposed in para 14 that he had not taken any contract in his own name, then how could the Income Tax Clearance Certificate be issued. P.W. 8, I.O. of the case deposed in para 15 that normally they used to enquire about the background of the complainant but in this case it was not enquired into. It has been stated in para 16 that Income Tax Clearance Certificate was being issued by Paras Nath Sinha. It has also come that the accused was allocated work of assessee starting with Alphabet ‘A’.
D.W.1 [Albinus Tirkey], Income Tax Officer has deposed that after 23.10.1987, appointment was made to the post of Assistant in view of the Circular vide Circular No.CBDT-DDF/OSD/ EH (DT/87-88).
D.W.2 [Jitendra Kr. Gupta], who is an Advocate in Income Tax, has deposed in Para-3 that the accused had no role to process the applications submitted before the Income Tax Officer.
D.W.3 [Bijay Kr. Verma], who is an Advocate in the Income Tax Department, has deposed to the same effect that such application(s) for Income Tax clearance is normally filed before the Section Officers and it is obtained from him. The accused persons were involved in assessment work of assessees whose name has been commenced with Letter-A.
D.W.4 [Rajendra K. Garodiya] & D.W.5 [Rajeev Ranjan], both are Chartered Accountants are professionals, used to visit Income Tax Office and they also deposed that it was not within the allocation of work of the accused to issue income tax clearance certificates.
7. The specific plea of defence taken in the examination under Section 313 Cr.P.C., is that he had no role in issuance of clearance certificates and the work was confined to those assessee whose names started with Alphabet-A.
8. Sanction in this case has been accorded by the Chief Income Tax Commissioner. It is submitted by learned ASGI appearing for the CBI that the sanctioning authority at the relevant time was the Chief Income Tax Commissioner, Ranchi, in view of the letter dated 02.05.1994. This letter has been issued by the Government of India from the office of the Chief Income Tax Commissioner and sanction by the Assistant Commissioner of the Income Tax which is a public document and has been wrongly marked as X/3 for identification although it should have been marked as exhibit on behalf of the prosecution. In any case no contrary documentary evidence has been led on behalf of the prosecution that Chief Income Tax Commissioner (CIT) was not competent to grant sanction for prosecution. I am of the view that learned Court below was in error to have not marked the relevant letter of the Govt of India as exhibit and the oral evidence that CIT was not the competent sanctioning authority cannot be accepted and therefore this ground taken to assail the Judgment of the learned Court below is not tenable.
9. The second question is whether the preliminary inquiry on receipt of the complaint was held as per norm?
It is submitted by the learned DSGI that the statute does not prescribe any procedure or time-line for the verification. P.W.6 has deposed that he had thoroughly interrogated the complainant and having been satisfied, then the case was registered and there had not been any cross-examination or any suggestion on this point on behalf of the defence.
10. This Court is of the view that the proceedings of preliminary inquiry do not form substantive evidence and the object of enquiry is not to ascertain the veracity of the allegation being made, but to see whether cognizable offence is made out or not. There is no prescribed mode for preliminary inquiry. The object is to see that the stringent provisions of the P.C. Act do not become a means of persecution of honest and upright public servant before the case is registered. It has been held in CBI Vs Thommandru Hannah Vijayalakshmi 2021 SCC Online SC 923 (para 19) that preliminary enquiry is directory and not mandatory in nature. It is a settled position of law that even faulty investigation or motivated omissions and commissions will have no bearing on the merit of any case unless it has caused prejudice to the accused in his defence. It has been held in State of Rajasthan Vrs. Kishore [1996 SCC (Cri ) 646], it was held that the real fact that I.O committed illegality or irregularity during course of investigation would not cast doubt on the prosecution case nor trust worthy or reliable evidence can be cast aside to record acquittal on that count. So, unless prejudice is caused to the accused because of the laches in investigation, no adverse inference can be drawn for any fault on the part of the investigating agency. Preliminary enquiry is prior to the stage of investigation, and the manner in which it is held can give an insight into the manner in which the case proceeded and can be considered only in the event when the cumulative effect of evidence indicate a botched up charge. No statement of witnesses is recorded at this stage under section 160 of the Cr.P.C. They cannot be used for the purpose of corroboration or contradiction as they pertain to pre-investigation stage. Under the circumstance the question being raised on the manner of preliminary enquiry is of no substance.
11. Is there a requirement of independent persons of the locality, as mandated under Section 100 of the Cr.P.C., to witness the search and seizure list be prepared under their signature in trap cases where the search is made of the person of the accused?
Much has been argued on this point by the learned counsel on behalf of the appellants.
This Court is of the considered view that in case of personal search, there is no such mandate of independent witnesses of the locality being present at the time of such search. The mandate of requirement of independent witness under Section 100 Cr.P.C is with respect to search made in closed places and not in cases of search of person which is controlled by Section 51 Cr.P.C which does not impose any such requirement. Sunder Singh VS State Of U. P. 1956 0 AIR(SC) 411 that on the face of it, section 103 (Section 100) would not apply to the seizure of the shoes which were being worn by the accused at the time he was with the investigating police officer. The view has been reiterated in State Vs Navjot Sandhu (2005)11 SCC 600 it has been held that there is no inflexible proposition of law that in the absence of independent witnesses being associated with search, the seizure cannot be relied upon. But in that case closer scrutiny of evidence will be required.
12. There is no such requirement of having local witnesses. Here in the present case, P.Ws.3 and 5 were independent witnesses who accompanied the trap team and have supported the prosecution case on the point of recovery of the tainted money. PW 5 has deposed that the accused had been demanding illegal gratification for issuing the clearance certificate. He has given in details of the pre trap procedure adopted by the trap team in para 2 and 3 of his deposition. He has also proved different material exhibits. In para 5 he has deposed that he along with Binod Kumar went to the table of accused Arun Kumar when the demand was made by him on which the amount was given to him. He has stated in detail about the events following the arrest of the accused. Against these positive statements one line in the cross-examination is that he cannot say who is the informant or what does he do cannot be read in isolation to deny the positive statements made by him. That the challenge on this ground does not succeed.
13. Thus, these technical pleas will be of no avail and the main point for consideration is whether the prosecution has succeeded to prove the charge against the accused person on the basis of evidence on record? Is there any motive or possibility of false implication?
14. As rightly submitted by the learned ASGI that provisions of Section 7 of the P.C. Act, 1988 is wide enough to cover any person who receives the amount for himself or for any other person. It is a moot point whether he was himself dealing with the file or not. Once illegal gratification is accepted in pursuance to a demand with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant. Thus, in the light of the legislative scheme it is immaterial whether the work he had promised to get it done was of the allocated job to be done by himself or any other officer or staff of the Income Tax Department. It has been held in Chaturdas Bhagwandas Patel v. State of Gujarat, (1976) 3 SCC 46 : “If he has used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour”.
15. Now coming to the core issue whether the ingredients of the offence have been proved to bring home the charge under Section 7 of the PC Act?
Proof of demand, acceptance and recovery are the sine qua non to prove the charge under Section 7. Without the proof of demand presumption cannot be drawn under Section 20. Thus, in a case where the complainant himself resiles and refutes the charge of demand that becomes fatal to the prosecution case. It has been held in B. Jayraj Vs State of A. P., 2014 (13) SCC 55 that when the complainant did not support the prosecution case in so far as demand by the accused was concerned and no other witness was examined on the point then only on the recovery of tainted currency notes from the possession of the accused, conviction cannot be sustained. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. In so far as the presumption permissible to be drawn under Section 20 of the act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of P.C. Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. The ratio of V. Venkata Subbarao v. State, (2006) 13 SCC 305.
16. The above exposition of law by Hon’ble the Supreme Court leaves no doubt what so ever that mere proof of acceptance of tainted money is of no consequence, unless the demand is proved. But, proof of demand is a question of fact and this by its very nature cannot be of the nature of offer and acceptance resulting in a commercial contract. The demands of bribe are made clandestinely, it’s something which is not made in public. There is always an element of secrecy in such dealings which is euphemistically called underhand dealings and therefore the Courts have to take a realistic view in matters of such cases. It will be highly unrealistic to expect it to be like an offer and acceptance that takes place in a commercial transaction. Hon’ble the Apex Court while expounding the meaning of the expression ‘matter’ in the definition of ‘ Proof” observed Rajesh Yadav Vs State of U.P. 2022 SCC On Line 150 “13. The definition of the word “proved” though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the “matters before it”. The importance is to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical influence.
14. Matters are necessary, concomitant material factors to prove a fact. All evidence would be “matters” but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also add strength to the evidence giving adequate ammunition in the Court’s sojourn in deciphering the truth. Thus, the definition of “matters” is exhaustive, and therefore, much wider than that of “evidence”. However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
15. Matters do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
16. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word “matter”, and for that purpose, the definition of the expression of the words “means and includes”, meant to be applied for evidence, has to be imported to that of a “matter” as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar”.
Another felicitous exposition of law on Section 20 and principles of drawing presumption has been made in M. Narsinga Rao VS State Of A. P. (2001) 1 SCC 691. Their Lordship’s observed, “From those proved facts the court can legitimately draw a presumption that appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that appellant received the said amount”.
In Raghubir Singh v. State of Haryana, V.R. Krishna Iyer, J. speaking for a three Judge Bench, observed that the very fact of an Assistant Station Master being in possession of the marked currency notes against an allegation that he demanded and received that amount is “res ipsa loquitur”. In this context the decision of a two Judge Bench of this Court (R.S. Sarkaria and O. Chinnappa Reddy, JJ.) in Hazari Lal v. Delhi (Delhi Administration), can usefully be referred to. A police constable was convicted under Section 5(2) of the prevention of corruption Act, 1947, on the allegation that he demanded and received Rs. 60/- from one Sriram who was examined as PW-3 in that case. In the trial court PW-3 resiled from his previous statement and was declared hostile by the prosecution. The official witnesses including PW-8 have spoken to the prosecution version. The court found that phenolphthalein smeared currency notes were recovered from the pocket of the police constable. A contention was raised in the said case that in the absence of direct evidence to show that the police constable demanded or accepted bribery no presumption under Section 4 of the act of 1947 could be drawn merely on the strength of recovery of the marked currency notes from the said police constable. Dealing with the said contention Chinnappa Reddy, J. (who spoke for the two Judge Bench) observed as follows :
“It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW3. Under Section 114 of the Evidence act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to Section 114 of the Evidence act is that the court may presume that a person who is in possession of the stolen goods soon after the theft, is either the chief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the facts and circumstances of the present case the court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from PW3, the presumption under Section 4(1) of the prevention of corruption act is immediately attracted. The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the courts below.”
17. On the point of demand P.W7 Vinod Kumar the informant of this case has deposed that he was in need of income tax clearance certificate for applying for a contract floated by CCL. On 20.12.93 he went to the income tax department Ranchi and met the accused alone, who made a demand of Rs. 100 as bribe. He also informed that without the bribe amount the work will not be done. This matter was reported by him to the CBI and they filed a complaint there. In para-8 he deposed that after he had submitted the application supported by affidavit for the income tax clearance certificate to the accused, he enquired as to whether the amount has been brought by him. On this demand he handed over the currency note of Rs. 100 smeared with the powder of Phenolphthalein by his right hand which was accepted by him with his right hand. On his signal the CBI personals immediately came there, caught hold of his hand and dipped in the solution on which both of his hands turned pink. This is the substantive evidence of demand and acceptance which has been corroborated by the other witnesses of the raiding party. He has narrated in detail the process of post seizures of the currency note. In his cross-examination be has deposed that he had gone to the income tax department for the first time on 20.12.93 and had not gone there before that day. He had not complained about the illegal demand made by Arun Kumar to senior officers of the Department. In para-20 has deposed that Gopi Chand was with him at a distance of 10 feet. There was one CBI officer and an independent witness after five – seven minutes after he gave the bribe the accused was nabbed by income tax officers he has been cross-examined in detail regarding the search and seizure but nothing significant has surfaced. He denied the suggestion of the defence that he had been set up by the income tax department and that the accused had never demanded bribe from him.
18. The testimony of this witness has been corroborated by other witnesses of the raiding party. PW1 who is the supervisor in the income tax office has deposed that clearance certificate was issued by the ITO. In the year 1987 the chief commissioner income tax Patna was the appointing and dismissing authority. Chief Commissioner Ranchi income tax was not invested with any such power.
PW2 was working at the relevant time as deputy chief engineer he has deposed that ‘clearance certificate’ was required for allotment of contract.
PW.3, was the security guard in CCL he’s a witness to the pre-trap formalities. He has proved a different material exhibits. In para 7 he has claimed to be witness to the acceptance of the bribe amount by the accused. Given detailed description of the search and seizure formalities. In para seven of the cross-examination he has deposed that the accused, was sitting on the table and in the nearby seat there were many other sitting.
PW3 was a DC posted in the said office in 1993 she has proved the sanction order for prosecuting the accused which has been marked as Exhibit 3.
PW 5 was posted as a security guard is a witness to the trap man has deposed in para five that in pursuance to the demand he gave the amount to the accused. In his cross-examination he has expressed his ignorance about the identity of the informant or the accused he had not read the complaint himself.
PW 6 is SP CBI was posted as Dy. S.P. at the relevant time at Ranchi office on 21.12.93. The complaint was handed over to him by the SP CBI on that day which was submitted by Binod Kumar alleging the demand of illegal gratification of Rs.100 by Arun Kumar Asst. Income Tax Ward No.1 for issuing income tax clearance certificate. He thoroughly interrogated the complainant and came to the conclusion that allegation against the accused was true. Accordingly, the matter was reported to the then SP and as per his instruction the case was registered. The trap team was constituted on the same day at about 10 AM. After preliminary enquiry the written complaint was read over to the team. After completing the pre-trap formalities the raid was conducted by the trap team members. Both the witnesses and the complainant left CBI office at about 11.20 a.m. for the place of occurrence that is income tax office Ward No. 1. On way to the office the complainant got an affidavit issued and the team arrived at 12 hours. In his cross-examination he has deposed that he had not made any enquiry as to whether the complainant had done any contract work in any establishment private public. It has further been deposed that he cannot say whether it was the duty of P.N. Sinha alone in the income tax office to issue the form.
PW 8 has deposed that he was posted at CBI of office Ranchi and was summoned in the room of Dy.S.P. on 21.1.93. At that time three persons were present there. They were Binod Kumar, Sri Gopinath Ram, and Mahendar Pandey. Thereafter the complaint was read over to him on the basis of which the case was registered and thereafter raid was conducted he fully supported the prosecution case in his examination-in-chief. In the cross-examination he has in para 16 stated that the clearance certificate was being issued by Sri P.N.Sinha.
19. Once the demand and acceptance is proved, presumption under Section 20 applies with full rigour. There is no evidence or explanation to make out a case on behalf of the defence that the accused has been falsely implicated in this case with an ulterior design on account of any past enmity. The presumption has not been rebutted. The appellant has sought to take shelter behind different technical pleas as discussed above. On the number of witnesses examined by the prosecution reliance has been placed by the learned ASGI on Hussan Lal v. State of Punjab, 2009 SCC OnLine P&H 4498 “that it is not necessary for the Public Prosecutor, for the State, to examine each and every witness. It is for the Public Prosecutor, for the State, to decide, as to how many witnesses, he wants to examine, to prove the case of the prosecution”.
20. Taking into account the evidence on record, I am of the considered view that the prosecution has succeeded to prove its case beyond the shadow of all reasonable and probable doubt. Under the circumstance, I do not find any infirmity in the Judgment of conviction passed by the learned Court below under Section 7 and 13 (2) r/w 13 (1) (d) of the P.C. Act.
21. On the point of sentence, considering the nature of offence, protracted nature of litigation and the amount involved, a punishment of six months simple imprisonment under Section 7 of the PC Act and one year simple imprisonment under Section 13 (2) r/w 13 (1) (d) of the P.C. Act with a fine of Rs.1000 under both the sections shall meet the ends of justice. Both the substantive sentences to run concurrently. In default of payment of fine, the accused to undergo simple imprisonment of 15 days each.
With this modification in sentence, the appeal stands dismissed.
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