By TIOL News Service

NEW DELHI, AUG 07, 2017: THE issue before the Bench is - Whether proof of demand is an indispensable necessity for an offence under Ss 7 & 13 of the PC Act. YES is the verdict.

Facts of the case

Respondent Commissioner of Central Excise was chargesheeted for alleged illegal raid at the premises of Dilip Aggarwal and Anand Aggarwal at Najafgarh Road, New Delhi. It was further alleged in the chargesheet that the respondent through one Hemant Gandhi (private person) negotiated with the owners of the premises for illegal gratification in lieu of not taking any action against them and finalized the bribe amount of Rs. 60 lakhs to be paid to the above named private person. The private person was in regular touch with the owners of the premises and received Rs. 20 lakhs in cash along with a cheque of Rs. 20 lakhs as security for the remaining amount from them. Further, the private person was in regular touch with the officials of the Excise Department as well and he actually negotiated with them including the respondent herein for some concession in the amount on behest of the owners. In the whole process, the private person worked as a middleman and conveyed the illegal gratification fixed to the respondent herein.

CBI Special Judge Court passed adverse order against the respondent but the HC quashed the order.

On appeal, the Apex Court held that,

++ the case solely rests upon 96 conversations recorded between 23.12.2011 to 02.01.2012 by the Special Unit (SU), CBI, New Delhi on the basis of the legal technical surveillance. In this regard, the appellant-State has heavily relied upon Call Nos. 48 and 51;

++ Call No. 48 was made by Hemant Gandhi on 28.12.2011 after the completion of the alleged illegal raid. It is also evident from the call that Mahender Kapoor-Superintendent also had the knowledge of the alleged raid and Hemant Gandhi informed him that the raid was successful and that they have recovered a lot of goods worth about Rs four crores from inside the premises. Further, during the call, Hemant Gandhi told Mahender Kapoor that this figure should not be disclosed to anyone as the same is known only to him and Lallan Ojha. Even Hemant Gandhi asked Mahender Kapoor to not to inform this thing to ‘Muchhad’ i.e., the respondent-herein to which Mahender Kapoor replied in affirmative and maintained that this should not even be shared with anyone. Hemant Gandhi also informed him that an amount of Rs. 60 lakhs has been fixed for the deal without him (Hemant Gandhi) being in picture. He further admits that this information about the premises was given by him only. It is also on record that for the first time the words ‘mission successful’ and ‘six zeroes’ have been used in this call between the Mahender Kapoor and Hemant Gandhi;

++ a bare perusal of the call records, prima facie, shows that Mahender Kapoor was actually the man behind the raid who was guiding Hemant Gandhi about the manner in which Lallan Ojha should proceed for ensuring the payment of the agreed amount such as by preparing seizure memo etc. It is also clear from the above that after the raid Hemant Gandhi was afraid of the respondent-herein and does not want to meet him. In this view of the matter, we are of the opinion that Call No. 48 does not implicate respondent herein with regard to the settlement of illegal gratification in lieu of not taking action against the owners of the premises. In fact, this call, read with Call No. 64, proves the complicity and connivance of Mahender Kapoor and Hemant Gandhi apart from Lallan Ojha and Ashok Aggarwal wherein Hemant Gandhi is requesting Mahender Kapoor to get the money for him out of the alleged illegal gratification amount which shows that it was Mahender Kapoor who was receiving the alleged illegal gratification amount and distributing the same. In our considered opinion, Call No. 48 does not implicate the respondent herein in the commission of offence;

++ Call No. 51 was made by Hemant Gandhi to the respondent herein on 28.12.2011 wherein Hemant Gandhi informed the respondent herein that the mission was successful. It is the case of the prosecution that Hemant Gandhi informed about the alleged raid to the respondent herein that it was successful which fully implicates him in the offence. But on a careful scrutiny of the call, it cannot be inferred that the respondent herein had agreed to demand the illegal gratification and also there was no direct talk between Lallan Ojha and the respondent herein who was supposed to inform his senior officer on whose direction he was leading the raiding team. In the call, it was Hemant Gandhi who used the words ‘mission successful’. In our opinion, the prosecution has wrongly connected the words “mission successful’ in call No. 48 with that of in Call No. 51. In Call No. 48, it is very much clear that Mahender Kapoor and Hemant Gandhi were talking about the alleged raid and Hemant Gandhi himself accepted that he provided the information for the same. When the respondent herein was not at all in picture in Call No. 48 how can he be connected in Call No. 51 by showing the use of words ‘mission successful’ and ‘six zero’ that too when none of the members of the raiding team informed about the same to him. Further, during the alleged conversation in Call No. 51, it has also been noticed that Hemant Gandhi has used three more figures ‘eight’, ‘fifteen’ and ‘six’ which makes the conversation ambiguous and beyond any comprehension and it does not make out any logical understanding of the actual conversation between the parties making it. Hence, no adverse inference can be drawn against the respondent herein with regard to the same;

++ from the statement made by Ms. Rekha Rani (PW-6)-PS to the respondent, it can be easily seen that Hemant Gandhi was a frequent visitor to the office of the respondent herein. Several times, PW-6 connected his call to the respondent herein but in her deposition she clearly mentioned that earlier he used to call on the landline number of the office but for the last 5-6 months he was meeting the respondent herein personally in his office. Though the said deposition proves the nearness of that particular private person with the respondent herein but it cannot be inferred that the private person was in constant touch with the respondent and was apprising him about every development before, during and after the alleged raid. The claim of his nearness to the respondent herein is baseless as he was working as the informer to the evasion wing and the alleged phone calls made by him to the respondent herein or meetings with the respondent herein cannot and will not be sufficient to implicate the respondent;

++ framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or quash the proceedings in exercise of its powers under the provisions;

++ similarly, the law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. For a charge of conspiracy means knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do;

++ further, what constitutes illegal gratification is a question of law; whether on the evidence that crime has been committed is a question of fact. If, therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established;

++ hence, the proof of demand has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the PC Act which is absent in the case at hand;

++ we are of the considered opinion that vide Call Nos. 48 and 51, the prosecution is not able to prove the guilt of the respondent herein in the alleged raid. There is no material evidence on record in order to bring home the charge of conspiracy against the respondent. There is no direct or circumstantial evidence to prove that the respondent has demanded any illegal gratification and has accepted or obtained any such illegal gratification. Further, the premises that was alleged to be raided was neither a manufacturing unit nor packing or repacking activity was carried out there and hence no case of central excise could have been made out which could grant any jurisdiction to the respondent to do some favour or disfavor in the discharge of his official functions. The High Court was well within its powers while quashing the order framing charge as there was no material on record to connect the respondent with the offence in question.

(See 2017-TIOL-277-SC-MISC)