Rajesh Gupta vs State Through Central Bureau Of Investigation

2022 INSC 359 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1769 OF 2014

RAJESH GUPTA … APPELLANT

VERSUS

STATE THROUGH CENTRAL BUREAU OF INVESTIGATION … RESPONDENT

ORDER

This appeal has been filed questioning the validity of

the judgment passed on 25.3.2014 in Criminal Appeal No.

89 of 2009 by the High Court of Delhi confirming the

judgment dated 24.1.2009 passed by Special Judge,

Central District­02, Delhi in C.C. No. 195 of 2001

convicting the appellant for the offences under Sections 7

& 13 (2) read with Section 13(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 offence under 2 Section 7 of PC Act, the appellant was sentenced to 2 years

rigorous imprisonment with a fine of Rs. 15,000/­ and in

default, further simple imprisonment for 30 days and for

the offence under Section 13(2) read with Section 13(1)(d) of

PC Act, rigorous imprisonment for 2½ years and fine of Rs.

15,000/­, in default, simple imprisonment for 30 days.

Both the sentences were directed to run concurrently.

2. The appellant is an accused in a corruption case

under the PC Act. As per prosecution allegations, the

appellant, who was the Assistant Commissioner of Income

Tax, Circle 20(1) at the concerned point of time demanded

and accepted the bribe of Rs.15,000/­ from the

complainant PW­3 Madhu Bala in regard to scrutiny of her

case, which was pending with the appellant.

3. The Trial Court, vide judgment dated 24.1.2009,

concluded that on 7.3.2000, the appellant, while working

as public servant (Assistant Commissioner of Income Tax,

Circle 20(1)), demanded bribe from the complainant PW3­

Madhu Bala and in pursuance of his demand, accepted

bribe/illegal gratification of Rs. 15,000/­ from her on

9.3.2000 in his office (cabin/chamber). Thus by corrupt 3

and illegal means, he abused his position as a public

servant and obtained pecuniary advantage for himself. The

appellant was found guilty for the charge under Sections 7

& 13(2) read with Section 13(1)(d) of PC Act. The High

Court relying upon the testimony of PW3­Madhu Bala, who

was able to identify the conversation Exb. P2 (cassette)

from the transcript though found inaudible and without

proof of non­tampering the same, concluded that the

demand was proved. On the point of acceptance, relying

upon the version of PW3 Madhu Bala, who was said to put

Rs. 15,000/­ in a note sheet towards visitors side of the

table underneath a dak­pad and in reference to the CFSL

report, proved the acceptance of bribe demanded by the

appellant. 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 the appellant and Ms. Aishwarya Bhati, learned

Additional Solicitor General, appearing for the respondent

at length and have perused the record.

4

5. In a case of corruption under the PC Act, what

is essentially required to be proved is demand of money or

illegal gratification by the accused, as well as acceptance

and recovery of the same from the accused with motive. In

the present case, as per the prosecution, the demand by

the appellant from the complainant is alleged to be on four

occasions. Twice on 07.03.2000 and again twice on

09.03.2000. On the first occasion on 07.03.2000, according

to the complainant, the demand is said to have been made

by the appellant through the Chartered Accountant

namely; Mr. Rajiv Jain, according to whom, the appellant

had demanded a sum of Rs.50,000/­ for settlement of the

case in favour of the complainant. Again on the said date

itself, i.e. 07.03.2000, when she 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 of Investigation (CBI) through some high­level

connection of her (whose name she did not disclose), and

then on 09.03.2000 she visited the office of the CBI and 5

met the concerned Officer (Mr. Awasthi) who, after talking

to her, advised her to speak to the appellant on phone with

regard to the matter of closing her scrutiny case, for which

the alleged demand of money was made by the appellant.

The complainant made the call to the appellant and the

telephone conversation between the complainant and the

appellant accused is said to have been recorded, in which

admittedly the offer of money was being made by the

complainant to the appellant when she said that she would

give only Rs.15,000/­ to which no acknowledgement or

acceptance from the side of the appellant was there, except

that the appellant agreed to meet the complainant in his

office in the evening at about 04.00 p.m. The said

conversation has been produced before the Court as

Exb.P­2.

7. The second incident on 09.03.2000 is said to be

when the complainant went to the office of the appellant at

about 04.00 p.m., accompanied by two independent

witnesses, being Constable Babita Kapoor, who was not

examined and PW5­B.S. Chauhan (shadow witnesses), who

were both independent government officers, having been 6

asked by the officials of the CBI to accompany the

complainant so that they could be witnesses of the alleged

illegal demand and gratification being handed over to the

appellant. However, the said two independent shadow

witnesses did not go inside the chamber of the appellant

when the alleged demand and transaction of money is said

to have taken place. It is the case of the prosecution that

the complainant had gone there alone inside the chamber

of the appellant, which was a shared room in which there

was a partition and other officers namely; PW6­N.C. Swain,

DCIT and PW10­T. Kipgen, ACIT were also present on the

other side of the partitioned room. The complainant had

been given a Micro­Cassette Recorder with a Credit­Card

Type Transmitter and the shadow witness PW5­B.S.

Chauhan was given the ear­piece to the Credit­Card

Transmitter to listen and record the conversation between

the appellant and the complainant. The said conversations

have been produced as Exb. P­1 and P­3. The currency

notes, which were to be handed over by the complainant to

the appellant, were laced with phenolphthalein powder. The

complainant is said to have placed currency notes, totaling 7

Rs.15,000/­, on the visitor side of the office table of the

appellant, wrapped in a piece of paper, which was then

covered with the dak pad. There is no allegation of the

money having been handed over personally to the appellant

or kept inside the drawer of his table.

8. The complainant is said to have then gone out

of the office of the appellant and thereafter the officers of

the CBI entered and conducted the trap proceedings. They

checked the appellant in person and also the drawers of his

office table and his briefcase, but did not find any money,

which was later recovered from the visitors side of the table

underneath the dak pad, which was only on the indication

of complainant after she was called again in chamber. The

phenolphthalein test of the appellant was conducted by

asking the appellant to dip his hands in Sodium Carbonate

solution, but the colour of the solution did not change pink.

However, still the water which was collected and sent for

CFSL examination, and in such examination report, traces

of phenolphthalein are said to have been found. While the

complainant was in the chamber of the appellant, the

conversation was to be recorded by her and also through 8

the Credit Card Transmitter, but she skipped to push the

button of recorder, therefore, it could not be recorded. The

other two officers namely; PW6­Mr. N.C. Swain, Dy. CIT

and PW10­Kipgen, ACIT, who were in the same room with a

partition, did not support the allegation of demand and

acceptance of bribe by the appellant. It was in these facts

that the appellant is said to have been made accused and

convicted in the case.

9. As regards the alleged demand at the pre­trap

stage, it is said to have been made first time on 07.03.2000

through the Chartered Accountant namely, Mr. Rajiv Jain

and second time when complainant visited the office of the

appellant on the same date i.e. 7.3.2000 along with her

employee, Krishan Kumar. To prove the said two demands

on 7.3.2000, neither Rajiv Jain, Chartered Accountant nor

Krishan Kumar (employee of the complainant) have been

examined in the Court. It is to be observed that before the

accused is called upon to explain the foundational fact of

demand and acceptance, it must be proved by the

prosecution by cogent evidence. The testimony of the

complainant, who is an interested or partisan witness with 9

the success of trap, must be tested in the same way as that

of any other interested witness. Except the testimony of

PW3 Madhu Balal, no other material has been brought on

record to prove the said demand. Therefore, in our

considered view, pre­trap 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 recorded by the

Trial Court to prove the pre­trap demand i.e. on 7.3.2000 is

without any evidence on record and based on erratic

evaluation, which is mechanically confirmed by the High

Court.

10. At pre­trap stage, the third demand, as alleged,

was made on 9.3.2000 on the basis of a telephonic

conversation recorded in the office of CBI. As per the

testimony of PW3­Madhubala, second cassette Exb P­2 is

the conversation recorded in the office of CBI. The

transcript is in 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 during the statement of

PW3 Madhu Bala. As per her request, it was re­played,

then only PW3 could identify part of the conversation 10

taking clue 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 4 P.M. The net conclusion is that the said

conversation was inaudible, as has rightly been observed

by the High Court in paragraph 48 of the impugned

judgment.

11. The argument of the counsel for the appellant

has substance that transcript cannot be produced in the

form of a statement of the complainant under Section 161

Cr.P.C. because it was a conversation with the accused and

cannot be her own version. At the same time, from the

evidence brought on record, the said statement in the

shape of transcript was of 11.6.2001, whereas the alleged

incidence occurred 15 months prior thereto i.e. on

9.3.2000. The accused applied to the Trial Court to supply

the transcript of the conversation, if any, prepared in the

office of CBI, but at the time of hearing of the said

application, the Public Prosecutor made a statement 11

before the Court on 1.4.2002 and said that no transcript

was prepared from the audio cassette Exb. P2, hence could

not be supplied to the accused by Court, and his

application for supply of transcript was disposed of on the

basis of the statement made 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 said

statement having been made before the Court. Thus, the

said transcript, on the basis of which the clue is taken by

the appellant while hearing the inaudible cassette Exb. P2

in the Court, was highly doubtful which, in our view,

cannot be relied upon. It is not out of place to observe that

conversation of complainant and appellant in the office of

CBI was recorded on the aid and advise of Mr. Awasthi and

entire set­up for recording was arranged by him, but he

was not produced as a witness by prosecution to prove the

same.

12. On the issue of evidentiary value and credibility

of the recording in the cases of trap, the law is well­settled

in the case of Ram Singh vs. Col. Ram Singh 1985

(Suppl) SCC 611, wherein this Court held that tape­ 12

recorded statement is admissible in evidence if the voice of

the speaker is identified by the maker of the record and

other persons recognizing his voice. In case, the maker is

unable to identify the voice, strict proof would be required

to determine whether or not, the said voice is of alleged

speaker. The accuracy of the tape­recorded statement

must be proved by the maker of the record by satisfactory

evidence, direct or circumstantial. The possibility of

tampering with, or erasure of any part of the tape­recorded

statement must be totally excluded. The voice of the

particular speaker must be clearly audible and must not be

lost or distorted by other sounds or disturbances,

otherwise, the transcript as prepared, is inadmissible in

evidence.

13. In view of the above discussion, it is clear that

the pre­trap recording made in the office of CBI and

produced as Exb. P2 and stated by PW3 Madhu Bala in her

statement with the clue of transcript is not testified with

the touchstone of the law laid down in the case of Ram

Singh (supra). As apparent from the record, the finding

recorded by the High Court that the said cassette is 13

inaudible, PW3­ Madhu Bala, during playing of the cassette

in the court, stated about some of the portion of the

recording looking to the transcript. Once the preparation of

the transcript itself is in question, as discussed above, clue

cannot be taken from the same and the inaudible cassette

cannot be relied upon. Therefore, in the opinion of this

Court, the pre­trap recording for demand in the office of

CBI vide Exb. P2 on 9.3.2000 has not been proved.

14. The shadow witness PW4­Virendra Prasad was

present at the time of conversation of the complainant and

the appellant on 9.3.2000 in CBI office. In his Court

statement, he said that the offer was made by the

complainant to the appellant and no demand at the

instance of the appellant was made. While, analyzing the

testimony of this witness, the Trial Court has rightly

observed that from the testimony of PW4, it is clear that no

money was demanded by the appellant/accused. The other

shadow witness PW5 B.S. Chauhan, who heard about the

talk and was present in the office of CBI states that the

complainant had given offer of Rs. 50,000/­ but there was

no positive response showing demand on behalf of the 14

appellant. He said in examination­in­chief that “aajao

dekh lege”, but in cross­examination, it is specifically

stated by him that there was no demand of money from the

side of the appellant/accused. After due appreciation of

the aforesaid, it is clear that the conversation Exb. P2 is

inaudible and not proved. The said conversation which

was tried to be explained on the basis of the transcript is

inadmissible in evidence and that too in a statement

recorded under Section 161 Cr.P.C. of the complainant.

The transcript dated 11.6.2001 is doubtful, more so in view

of the Trial Court order dated 1.4.2002 when it was

recorded that there was no transcript avaibable. Thus, in

reference to inadmissible transcript, no inference or even

the preponderance of probability of demand can be

established.

15. The fourth demand, as alleged, was on 9.3.2000

in the office of the appellant at the time of trap. In this

regard, the complainant was advised to accompany PW5

B.S. Chauhan and lady Constable Babita Kapoor. As per

the testimony of PW3 Madhu Bala, it is clear that PW5 B.S.

Chauhan and lady Constable Babita Kapoor did not 15

accompany her to the chamber, which initially she said was

out of their own will, but later she stated that she herself

asked them not to accompany her otherwise the accused

would not accept the bribe. Therefore, at the time of the

trap, it is only the complainant who went inside the

chamber of the accused. She went in the chamber along

with Micro­Cassette Recorder and a Credit Card Type

Transmitter, the ear­piece of which was with PW 5 B.S.

Chauhan. As per the testimony of the complainant, it is

clear that she skipped to start the Micro­Cassette Recorder,

which she was having at the time of trap. Therefore, there

is no recording of the conversation between the accused

and the complainant during trap on 9.3.2000 and its

transmission in the Credit Card Transmitter was also not

possible. Further the Court has rightly found that both

these exhibits Exb. P1 & P3 were inaudible as admitted in

the statement of PW3 Madhu Bala itself.

16. In view of the above discussion, except for the

testimony of PW3 Madhu Bala (complainant), there is no

corroborative evidence of demand, either on 7.3.2000 or

9.3.2000. The law is well­settled by the judgments of this 16

Court in Panna Damodar Rathi vs. State of

Maharashtra (1979)4 SCC 526 and Ayyasami vs. State

of Tamil Nadu (1992)1SCC304, whereby it has been

clarified that the sole testimony of the complainant, who is

the interested witness, cannot be relied upon without

having corroboration with the independent evidence.

17. For an offence under Section 7 of PC Act, the

demand of illegal gratification is a sine qua non to prove the

guilt. Mere recovery of currency notes cannot constitute an

offence under Section 7 of PC Act, unless it is proved

beyond reasonable doubt that accused voluntarily accepted

the money, knowing it to be a bribe. The proof of

acceptance of illegal gratification can follow only if there is

proof of demand.

18. In view of the foregoing, there is no iota of

evidence by which the demand can be proved. Thus, the

conclusion of the Trial Court and the High Court to prove

the demand is based on surmises and erratic approach

ignoring the legal position as enunciated, which cannot be

sustained on the facts of the case.

19. Reverting to the issue of acceptance of demand, 17

it is not out of place to refer the judgment of Meena (Smt)

w/o Balwant Hemke vs. State of Maharashtra (2000)5

SCC 21 wherein this Court held that mere recovery of the

currency notes and positive result of the phenolphthalein

test is not enough in the peculiar circumstances of the case

to establish guilt of the appellant. The charge must be

proved beyond reasonable doubt. In absence of proving the

recovery from the person or the drawer of the table or

acceptance of the currency notes by accused with relevant

material on record in furtherance to the proved demand,

the guilt cannot be proved. In the case at hand, the

currency notes were found on the table underneath dak­

pad towards the visitors side. According to the

prosecution, the currency notes were laced with

phenolphthalein powder. As per the testimonies of PW3­

Madhu Bala, PW4­Virendra Prasad and PW5­B.S.

Chauhan, it is clear that the recovery of currency notes was

made after calling PW3­Madhu Bala again in the chamber

of the appellant by the trap party and on her indication

that the money was lying at that particular place. When

the hands of appellants were dipped in the solution of 18

sodium carbonate, the colour did not change into pink. It

is merely alleged that the said currency notes were wrapped

in a note­sheet on which the traces of the finger prints of

the appellant were found, which is treated as acceptance by

the appellant. In addition to the aforesaid, the note sheet

paper, in which the currency notes were wrapped, on being

dipped in the solution of sodium carbonate turned pink.

After evaluation of the evidence, it is to be observed, safe

seizure of the solution of sodium carbonate has not been

brought on record. Merely the note sheet, in which the

money was wrapped, on dipping in the Sodium Carbonate

solution turned pink, traces of which were found in CFSL

report, is not sufficient to prove the guilt of the appellant,

in particular, when the currency notes laced with

phenolphthalein powder were found towards the visitors

side on the table and not recovered from the person or

drawer of his table and the solution in which the hands of

appellant were dipped, did not turn pink. In the facts and

circumstances of the case, in our opinion, the evidence so

brought is not cogent and sufficient to prove the acceptance

of bribe by the accused/appellant.

19

20. On the said issue, the judgments of this Court

in B. Jayaraj vs. State of Andhra Pradesh (2014)13 SCC

55 C.M. Girish Babu vs. CBI (2009) 3 SCC 779 are

relevant, whereby this Court has clearly spelt out that the

recovery shall follow the proof of demand. The

presumption under Section 20 of PC Act can be drawn only

when the demand is proved and the money is voluntarily

accepted, knowing the fact that the said money has been

delivered by way of bribe. In absence of proof of demand

for illegal gratification and mere possession or recovery of

the currency notes is not sufficient to constitute such

offence. It is clarified that presumption under Section 20

PC Act can be drawn only after demand and acceptance of

illegal gratification is proved beyond reasonable doubt. In

our considered opinion, the findings as recorded by the

Trial Court and the High Court, drawing presumption

under Section 20 of the PC Act, are completely perverse in

law. There is no evidence to prove the demand and the

acceptance. The theory of preponderance of probabilities,

as applied in this case, is not sustainable and the finding of

the High Court is liable to be set­aside.

20

21. As per the discussion made hereinabove, it is

clear that the concurrent findings recorded by the Trial

Court, and affirmed by the High Court, are not based on

due appreciation of the material brought on record in the

right perspective. In fact, it is a case in which no cogent

evidence is available to prove the guilt of the accused for an

offence under Sections 7 & 13(2) read with Section 13(1)(d)

of PC Act. As per discussion made above, in the case at

hand, the concurrent findings in the judgments of the

Courts below cannot dissuade this Court from interfering in

a case like this where the findings of conviction have been

recorded merely on conjectures and erratic evaluation of

evidence. The Court is always having an obligation of

judicial conscience to correct the errors where the same are

manifest. In our considered opinion, the judgments of the

Courts below suffer from serious infirmities and manifest

error. There is no proof of demand at pre­trap stage or

during trap. The Courts must not over­look the

fundamental principle of ignorance of accused till the

charge levelled against the appellant is established beyond

reasonable doubt. Therefore, in our view, the conviction of 21

the appellant has not been proved and the evaluation is

based on conjectures and erratic evaluation.

22. As such, we set aside the concurrent judgments

of the Trial Court as well as of the High Court and hold the

appellant to be not guilty of the charges against him.

Consequently, the appeal stands allowed. The appellant is

honourably acquitted.

..………..……...........J. (VINEET SARAN)

…………..................J. (J.K. MAHESHWARI)

New Delhi, March 29, 2022.

22

ITEM NO.18 COURT NO.9 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1769/2014

RAJESH GUPTA Appellant(s)

VERSUS

STATE THROUGH CENTRAL BUREAU OF INVESTIGATION Respondent(s)

([TO BE TAKEN UP IMMEDIATELY AFTER FRESH MATTERS FOR FURTHER ARGUMENTS.] IA No. 41955/2021 - EARLY HEARING APPLICATION)

Date : 29-03-2022 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE VINEET SARAN HON'BLE MR. JUSTICE J.K. MAHESHWARI

For Appellant(s) Mr. V. Giri, Senior Adv. Mr. Mehul M. Gupta,Adv. Ms. Ranjeeta Rohtgi, AOR Ms. Samten Doma, Adv. Mr. Shrirang Varma, Adv. Ms. Pragya Bhagel, Adv.

For Respondent(s) Ms. Aishwarya Bhait, ASG Ms. Arunima Dwivedi, Adv. Mr. Mohd Akhi, Adv. Mr. Sughosh Subramanyam, Adv. Mr. Amit Sharma, Adv. Mr. Raghav Sharma, Adv. Ms. Poornima Singh, Adv. Mr. Manvendra Bhati, Adv. Mr. Arvind Kumar Sharma, AOR

UPON hearing the counsel the Court made the following O R D E R

The appeal is allowed in terms of the signed reportable order.

The operative part of the signed reportable order reads as under:

“21.As per the discussion made hereinabove, it is clear that the concurrent findings recorded by the Trial Court, and affirmed by the High Court, are not based on due appreciation of the material brought on record in the right perspective. In fact, 23

it is a case in which no cogent evidence is available to prove the guilt of the accused for an offence under Sections 7 & 13(2) read with Section 13(1)(d) of PC Act. As per discussion made above, in the case at hand, the concurrent findings in the judgments of the Courts below cannot dissuade this Court from interfering in a case like this where the findings of conviction have been recorded merely on conjectures and erratic evaluation of evidence. The Court is always having an obligation of judicial conscience to correct the errors where the same are manifest. In our considered opinion, the judgments of the Courts below suffer from serious infirmities and manifest error.

There is no proof of demand at pre-trap stage or during trap. The Courts must not over-look the fundamental principle of ignorance of accused till the charge levelled against the appellant is established beyond reasonable doubt. Therefore, in our view, the conviction of the appellant has not been proved and the evaluation is based on conjectures and erratic evaluation.

22.As such, we set aside the concurrent judgments of the Trial Court as well as of the High Court and hold the appellant to be not guilty of the charges against him.

Consequently, the appeal stands allowed. The appellant is honourably acquitted.”

Pending application(s), if any, stands

disposed of accordingly.

(ARJUN BISHT) (PRADEEP KUMAR) (ASHWANI THAKUR) (COURT MASTER (SH) (BRANCH OFFICER) AR-CUM-PS (Signed reportable order is placed on the file)