H. Naginchand Kincha vs. Superintendent of Police (Karnataka High Court)

DATE: September 13, 2017 (Date of pronouncement)
DATE: October 4, 2017 (Date of publication)
AY: -
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A Chartered Accountant who is accused of offering a bribe to an Income-tax Officer for performing an official act can be tried under sections 7 and 13 (1)(d) of the Prevention of Corruption Act and s. 120-B of the IPC. The fact that the CA is not a “public servant” is irrelevant

10. In the backdrop of the above, now the concern is about the legal contentions raised on behalf of the petitioner. Firstly, he is disputing that no work was pending for demand of illegal gratification. Of course the Assessing Order which was seized from the chambers of this petitioner is shown to have been passed on 6.9.2012. But the Investigating Officer has collected material that there is no proof from the official record that such an order was passed on the said date. Section 7 of the Act does not contemplate specifically that the work must be pending on the date of registration of the case. It is sufficient to make out an offence under Section 7 of the Act that he accepts or obtains or agrees to accept or admits to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act. It is also possible that a public person having negotiated for the bribe amount and in anticipation of receiving bribe money despite passing the order waits for the compliance of illegal demand without disclosing that the order is already passed. The materials on record clearly show that even after passing the Assessment Order, it is not recorded in the proceedings book and not sent to tappal section.

11. Regarding the contention that there was no recovery from the 1st accused – The special court has considered this aspect of the matter and observed that the 1st accused himself had carried the office order to the office of the petitioner on a holiday. His voice sample is collected as per the standard procedure. The Trial Court in the body of its order has discussed this aspect of the matter filament wise. The petitioner himself had given his explanation stating that the complainant had approached him in respect of income tax matter and the order passed by the 1st accused had to be acknowledged by the complainant and the amount of Rs.5 lakhs was to be given to accused No.1 and his office premises (chamber of A-2) is used for the purpose. Thus, the seized amount of Rs.5 lakhs was the amount to be given to A-1 and he had not offered any reason as to why his office was used for receiving the bribe amount of Rs.5 lakhs. As per the recovery mahazar, very same currency notes mentioned in the entrustment mahazar are seized.

12. Petitioner contends that the complainant had placed the trap money on the table towards payment of tax and he had used his hands to push back the trap money refusing to accept the same. Learned Special Judge records that at the stage of framing the charge, such contentions by him in his written argument was not found in the explanation given by him before the Investigating Officer. The statements of the complainant witnesses and the explanation of the accused is incorporated in the recovery mahazar. Learned Special Judge observes that the averments made in the entrustment mahazar that accused No.2 asked and received the bribe amount from the complainant on behalf of A-1 cannot be brushed aside. The petitioner’s finger test has shown presence of phenolphthalein. Whether this phenolphthalein was due to pushing away of the tainted notes or due to counting the same by using his fingers being a question of fact can only be answered only after trial.

13. The third fold of argument that the accused No.2 is not a public servant and is beyond the contemplation of the statute. The words occurring at Section 8 of the Act “Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification…………” covers the persons other than the public servants contemplated by definition clause (c) of section 2 of the Act and that does not require much elaboration. Regarding the contention that section 7 of the P.C.Act cannot be invoked against accused No.1 is not within the competency of the petitioner to urge before this court. Even otherwise the charge sheet material contains voice recording of the accused Nos.1 and 2 and the complainant and also there is material that this petitioner made demand for bribe on behalf of the 1st accused. For framing the charge under Section 228 of the Cr.P.C. if the Judge is not required to record detailed reasons as to why such charge is framed. On perusal of the record and hearing the parties at the stage of discharge under Section 227 of Cr.P.C., if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, he is competent to frame charge for such offence even if not mentioned in the charge sheet. That was the observation of the Apex Court in the case of Dinesh Tiwari Vs State of Uttar Pradesh (Crl. Appeal No.1365/2014 arising out of SLP (Crl.) No.3051 of 2008).

14. The court below has dealt in detail each and every fabric of charge sheet material to come to the conclusion that there are grounds to frame the charge against the accused No.1 for the offences under Section 120-B of IPC and sections 7 and 13 (1)(d) r/w Section 13(2) of the P.C. Act and against accused No.2 for the offences under Section 120-B of IPC and Section 8 of the P.C. Act r/w Section 120 of IPC. The offence under section 120-B of IPC i.e. conspiracy cannot be expected to be proved by direct evidence. Generally, as a matter of prudence, it can only be construed on the basis of the circumstantial evidence and in connection with the allegation attributed against each of the accused. The order of the court below is well reasoned, not warranting revisional jurisdiction of this court.

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