JUDGMENT : INDERMEET KAUR, J. CRL.M.B. 7119/2015 IN CRL.A. 630/2015 CRL.M.B. 7141/2015 IN CRL.A. 643/2015 1. There are two applicants/appellants before this Court namely Arum Kumar Gurjar and Baljeet Singh. They are both seeking suspension of sentence and regular bail. Their appeals have been admitted. They are convicts under Section 120 B of the IPC read with Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act) as also for the substantive offence under section 7 of the P.C. Act. For their conviction under Section 120 B of the IPC read with Section 7 of the P.C. Act each of them had been sentenced to undergo RI for a period of 4 years and to pay a fine of Rs.1 lakh in default of payment of fine to undergo SI for 4 months. For their conviction under Section 7 of P.C. Act each of them has been sentenced to undergo same sentence with a fine of Rs.1 lakh. 2. Nominal roll of the appellants has been requisitioned. Arun Kumar Gurjar as on date has undergone incarceration of 3 months. He is presently on medical bail. The co-convict Baljeet Singh has undergone incarceration of about 5 months. 3. The version of the prosecution is founded upon the complaint of Pawan Kumar (PW-1) who had submitted a written complaint which was to the effect that his income tax returns for the year 2008-09 were under scrutiny and Arun Kumar Gurjar (hereinafter referred to as the A-1) was the Joint Commissioner of Income Tax Department who was his Assessing Officer and in connivance and conspiracy with Baljeet Singh Income Tax Inspector (hereinafter referred to as the A-2) and being a subordinate of A-1 had made an illegal demand of a bribe upon him. This was to finalize the scrutiny of his income tax case without any hurdle. A sum of Rs.5 lakhs had been paid by PW-1 to A-2 which was under instructions of A-1 on 29.12.2010. 4. This is the gist of the version of the prosecution. 5. Arguments have been addressed respectively by both the senior counsels appearing for both the parties. 6. On behalf of appellant Arun Kumar Gurjar arguments have been addressed by Mr. Sidharth Luthra, Senior Advocate. 4. This is the gist of the version of the prosecution. 5. Arguments have been addressed respectively by both the senior counsels appearing for both the parties. 6. On behalf of appellant Arun Kumar Gurjar arguments have been addressed by Mr. Sidharth Luthra, Senior Advocate. His submission is that the charge which had been framed against him is under Section 7 of PC Act and Section 120B of the IPC read with Section 7 of the P.C. Act but admittedly even as per the case of the prosecution the alleged amount of Rs.2 lakh was received by A-2 and not by A-1. The only role which has surfaced against A-1 is that he had issued a notice dated 20.12.2010 to PW-1 which was in the official capacity of A-1 and even the prosecution has not been able to point out that there is anything amiss in this notice. Submission is that the so-called independent witness PW-10 and the shadow witness PW-18 are both hostile and neither of them have supported the version of the prosecution qua the alleged amount of Rs.2 lakhs having been received by the co-accused. Even otherwise this amount was not received by A-1; A-1 was on the third floor of the building at the time when the raid took place. It is also not the case of the prosecution that A-1 was present at the time when the acceptance of Rs.2 lakh was made. Attention has been drawn to the version of PW-18. Submission being that the version of the prosecution establishes that the offence had been committed on the first floor; the office of A-1 is on the second floor but admittedly at that time he was not in his room. The Telephonic conversation which relates to the pre-trap and post-trap proceedings have not been read by the Trial Judge as certification under Section 65 B of the Indian Evidence Act was not available. Appeal is not likely to be heard in the near future. He be granted suspension of sentence. 7. On behalf of A-2 arguments have been addressed by learned senior counsel Mr. Ramesh Gupta. The same line of arguments have been adopted by him. It has been highlighted that the shadow witness (PW-18) and the independent witness (PW-10) were hostile and did not support the version of the prosecution. PW-1 is an interested witness. 7. On behalf of A-2 arguments have been addressed by learned senior counsel Mr. Ramesh Gupta. The same line of arguments have been adopted by him. It has been highlighted that the shadow witness (PW-18) and the independent witness (PW-10) were hostile and did not support the version of the prosecution. PW-1 is an interested witness. Apart from him it is only TLO (PW-22) who has been examined. The electronic record which is the call detail record (CDR) has been excluded in the absence of a certificate under Section 65B of the Indian Evidence Act. Appeal is not likely to be heard in the near future. 8. Arguments have been refuted by the learned Standing Counsel for the CBI. It is pointed out that each of the appellant has undergone incarceration of only about 3 months and 5 months respectively and keeping in view the proven facts which have been recorded by the Special Court of competent jurisdiction at this stage no ground is made out for suspension of sentence. 9. Arguments have been heard record has been perused. 10. Admittedly, in this case a written complaint had been given by PW-1 in the office of the CBI. It has come in the evidence of PW-1 that this written complaint was not proved and what was proved in the Court was a typed written complaint and the person who had typed the complaint was not summoned in Court. Attention has been drawn to the judgment wherein the Court had noted that there are contradictions and improvements on different aspects in the testimony of PW-1 but when read as a whole it is inspiring. PW-10 had supported the version of the prosecution in the pre-tap and post-trap proceedings and had also admitted his signatures on the handing over memo and the recovery memo but he was hostile as to whether the money was exchanged in his presence or not. PW-18 was the shadow witness. He was also hostile on the aspect of the money having been given to Baljeet Singh in his presence. The Trial Judge had noted that both PW-10 and PW-18 were working in the office of House Tax Department and they had no reason to have falsely implicated the accused persons but they being hostile on certain material aspects was noted. 11. The Trial Judge had noted that both PW-10 and PW-18 were working in the office of House Tax Department and they had no reason to have falsely implicated the accused persons but they being hostile on certain material aspects was noted. 11. CDR calls could not have been read but attention has been drawn to para 34 sub para (vi) wherein the Trial Judge had noted that the oral versions of PW-1, PW-18 and PW-22 are corroborated by the calls details record. Submission being that yet in another part of the judgment (para 13) the Trial Court had noted that in view of the absence of certification under Section 65 of the Indian Evidence Act the electronic evidence has to be ignored but at the same time has gone on to use it for the purpose of corroboration. 12. A perusal of the evidence collected before the Trial Judge evidences that Arun Kumar Gurjar was posted as Joint Commissioner in the Income Tax Department and Baljeet Singh was the Inspector in the Income Tax Department and subordinate to him. The fact that Baljeet Singh stood transferred from this Department to another Department in November, 2011 is an admitted fact. But as per the prosecution he continued to deal with the company of PW-1. 13. The cases of Arun Kumar Gurjar and Baljeet Singh stand on two different footings. Arun Kumar Gurjar was allegedly, the senior officer. The role attributed to him is that he had made a demand and in conspiracy with co-accused Baljeet Singh had accepted a sum of Rs.2 lakh which had been received by Baljeet Singh for himself and on behalf of Arun Kumar Gurjar. The Call Details Record which relates to the pre-trap and post-trap proceedings and would become an essential element to establish conspiracy qua the accused is a piece of evidence rejected by the Trial Judge being inadmissible in view of the provisions of Section 65 of the Evidence Act. It has also come on record that the office of Arun Kumar Gurjar was on the second floor. He was admittedly not in the office when the sum of Rs.2 lakh was received by co-accused Baljeet Singh. It has also come on record that the office of Arun Kumar Gurjar was on the second floor. He was admittedly not in the office when the sum of Rs.2 lakh was received by co-accused Baljeet Singh. 14 Version of PW-18 (apparently hostile and thus relied upon by the Trial Judge only for the purpose of corroboration) reflects that PW-1 had turned on the right side of the second floor but PW-18 did not see in which room he had entered; further version being that at the staircase some CBI officers were pushing one other person towards second floor from the first floor; that person was taken to the room in second floor which was near the staircase; the person who was caught was Baljeet Singh. 15. This evidence as highlighted by learned senior counsel for the appellant (Arun Kumar Gurjar) evidences that Baljeet Singh was brought from the first floor to the second floor in the room of Arun Kumar Gurjar where Arun Kumar Gurjar was not present. Version of the prosecution is however that the offence had been taken place in the office of Arun Kumar Guarjar. This Court also notes that the other incriminating evidence qua Arun Kumar Gurjar is the notice dated 20.12.2010 issued by him. This notice was not out of context; it was within his official capacity to call for documents as the case of PW-1 was under scrutiny. 16. However qua Baljeet Singh as rightly pointed out by the learned counsel for the CBI there is no explanation for Baljeet Singh to have continued to carry on the assessment proceedings of the company of PW-1 when he admittedly stood transferred to another department in November, 2010 and for which this Court finds that the appellant Baljeet Singh had little to answer. He was also caught red handed. 17. Noting the above factual matrix and the distinctive role attributed to the two applicants before this Court, this Court deems it fit to grant suspension of sentence to applicant Arun Kumar Gurjar, pending his appeal. He was also caught red handed. 17. Noting the above factual matrix and the distinctive role attributed to the two applicants before this Court, this Court deems it fit to grant suspension of sentence to applicant Arun Kumar Gurjar, pending his appeal. He be admitted to bail on his furnishing a personal bond in the sum of Rs.50,000/- with one surety of like amount to the satisfaction of Jai Superintendant with condition that he shall deposit his passport with the CBI and not leave the country without prior permission of this Court; he shall remain present in person at the time when his appeal is taken up for hearing and he shall intimate the CBI about change, if any, of his address. 18. This Court at this stage is not inclined to grant suspension of sentence to Co-convict Baljeet Singh as the role attributed to him is different. His application is declined. 19. Needless to state that any observation made in this order will not amount to a reflection on the merits of the case and will not be taken into account at the time of final disposal of these appeals. 20. With these directions, applications stand disposed of. Order dasti under signatures of the Court Master.