Gujarat High Court
Harilal vs State on 3 December, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/407/1997 34/ 34 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 407 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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HARILAL
NANALAL UPADHYAY - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
KJ SHETHNA for
Appellant(s) : 1,
MR RC KODEKAR, APP for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 03/12/2010
ORAL
JUDGMENT
The appellant - original accused has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 15.04.1997 passed by the learned Special Judge & Addl. Sessions Judge, Jamnagar, in Special Case No. 02 of 1994, whereby, the learned Special Judge has convicted the appellant - accused for the offence under sec. 7 of the Prevention of Corruption Act and sentenced him to undergo simple imprisonment of 1 (one) year and to pay a fine of Rs. 2,000/-, in default, to undergo further S.I. for one month. The appellant is also convicted for the offence under section 13(2) r/w Section 13(1)(d) of the P.C. Act and sentenced him to undergo S.I. for a period of one year and to pay a fine of Rs. 5,000/-, in default, to undergo further SI for one month, which is impugned in this appeal. The learned Judge has ordered that substantive sentences are to run concurrently.
The brief facts of the prosecution case is as under:
That on or about 11.5.1993 the appellant - accused was serving as Sales-Tax Officer at Jam Khambhalia. The complainant was serving as Mehtaji in Satyanarayan Stone Crushing Plant and he was writing the books of accounts in the said firm. Earlier the said plant was run in the name of Bavanji Gopabhai & Co. and the complainant was also writing the books of accounts of the said company. It is alleged that the assessment of Sales tax for the assessment year 1991-92 of said Bavanji Gopabhai & Company was to be made by the Sales Tax Office, Khambhalia and, therefore, the appellant - accused issued notice dated 3.4.1993 to the said company to produce account books of the company and to appear before him on 11.5.1993. The said notice was received by Kishorbhai Bavanji, who later on gave it to the complainant. It is alleged that after 4 to 5 days of receipt of notice, the complainant met the appellant - accused in his chamber and some conversation took place between them. It is alleged that appellant - accused informed the complainant that if he wanted to get reduction in the assessment of sales tax then he would be required to pay Rs.500/- to him (accused) and if the amount is not paid then he would make high assessment of the tax. It is alleged that as the complainant was not willing to pay the said amount to the appellant - accused, he approached the A.C.B. Office at Jamnagar and lodged complaint against the appellant - accused. On receiving the complaint, the Investigating Officer called two Panchas, who were Government servants. The complainant produced five currency notes, each of Rs.100/- denomination and necessary experiments of anthrecene powder and ultra-violet lamp were carried out in presence of panch witnesses. The currency notes duly smeared with anthrecene powder were kept in the shirt pocket of the complainant and necessary instructions were given to the complainant and the first panch. Thereafter, the preliminary panchnama was drawn. Thereafter, after completing necessary procedure the raiding party reached the place in private vehicle. The complainant and first panch proceeded towards Sales Tax Office and rest of the members of raiding party followed them. The complainant met the Advocate Shri Raichura and Kishorbhai Bavanji, partner of the firm, who were present in the Sales Tax Office. Thereafter, the complainant along with first panch, Shri Raichura and Kishorbhai Bavanjibhai, produced the accounts books to Shri A.C.Dhruva, Sales Tax Inspector, who prepared some notes in the office files. Thereafter, said Sales-tax Inspector, along with the complainant and others went inside the chamber of appellant - accused and obtained signature of the complainant, Shri Raichura and Kishorbhai in the files and thereafter left the chamber of the appellant - accused. It is alleged that thereafter Mr. Raichura and Kishorbhai also left the chamber of the appellant - accused. It is alleged that thereafter the appellant - accused demanded Rs.500/- as illegal gratification and upon the request of the complainant, the appellant - accused has finally demanded Rs.300/- from the complainant. It is alleged that thereafter the complainant gave Rs.300/- which was accepted by the accused and kept the same in the desk diary, lying on his table. Upon acceptance of the bribe amount the complainant came out of the chamber and gave pre-arranged signal to the raiding party. The raiding party thereafter rushed to the chamber of the appellant and recovered the amount. Thereafter, investigation was carried out and after completing the necessary procedure, and on receipt of sanction, the charge-sheet against the accused came to be submitted before the Court.
Thereafter, the charge was framed against the appellant. The appellant - accused has pleaded not guilty and claimed to be tried.
In order to bring home the charge levelled against the appellant- accused, the prosecution has examined three witnesses and also produced documentary evidence on record before the trial Court.
Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of Cr PC was recorded in which the appellant-accused has denied the case of the prosecution.
After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, Jamnagar, vide impugned judgment and order dated 15.04.1997, held the appellant - accused guilty to the charge levelled against him and awarded the sentence as referred herein above.
Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Jamnagar, the present appellant has preferred this appeal.
Heard Mr. K.J. Shethna, learned advocate for the appellant and Mr RC Kodekar learned APP for the respondent-State.
Mr. Shethna for the appellant has read the complaint as well as the oral evidence of first Panch P.W. 2 Bharat S. Mehta (Exh. 10) and from the cross examination, he has contended that the said Panch witness is not a genuine witness. Mr. Shethna has contended that the said panch witness is a tutored witness and when he was served with summons at that time he was informed by the office of A.C.B that if he wanted to read the panchnama he may approach the A.C.B. Office before a day of his deposition. Thereupon, the said panch witness went to the office of ACB on 13.1.1997 and there one Ajitsing Jadeja has allowed him to read the panchnama. Mr. Shethna has, therefore, contended that when the panch witness is tutored, then he cannot be considered as an independent witness. Mr. Shethna has contended that in the cross examination of said witness in Para - 11, he has clearly admitted that if his deposition is not as per the panchnama then he may be harassed by the department, and, therefore, probable defence was established by the defence lawyer before the learned Judge. Mr. Shethna has read the F.I.R. Exh.18 and contended that looking to the time of information given to the trapping officer the case of the prosecution is doubtful. He has contended that from the evidence of complainant and the panch P.W. 2, the demand is not proved beyond reasonable doubt and the story of demand is also doubtful and, therefore, the Judgment and order of conviction is required to be quashed.
Mr. Shethna has contended that the complainant - P.W. 1 Khimjibhai Rajabhai (Exh. 8) has not supported the case of prosecution and he turned hostile. He has contended that when the complainant himself has not supported the case of prosecution, then no question has arisen for raising any demand alleged to have been made by the appellant - accused. He has also contended that looking to the human nature, if the officer - public servant commits such illegal act, then he will never allow any other person in his chamber and as per the evidence of Panch witness, he was present along with the complainant in the chamber of appellant at the time of incident. Therefore, the said story of the prosecution case is not believable in light of evidence produced on record.
Mr. Shethna has contended that the trapping Officer - IO Mr. Mavani had also expired during the pendency of trial and, therefore, in his absence the prosecution has examined P.W. 5 Bhikhusha Alisha (Exh. 17) who, at the relevant time, was serving as Head Constable in A.C.B. Office, Jamnagar. He has contended that merely identifying the hand writing and signature of trapping officer, it cannot be believed that the said witness is an expert and experienced person. He has contended that even this witness does not know anything as to how to operate the ultra-violet lamp and what was the ingredients of anthracene powder. So, the evidence of this witness is also doubtful. Therefore, in absence of evidence of IO - Trapping Officer, the prosecution has failed to prove its case beyond reasonable doubt.
Mr. Shethna has also contended that the sanction (Exh.28) which was given was without application of mind. He has read the evidence of P.W.6 - Dilipbhai Madanlal Shah (Exh. 27), who was, at the relevant time, serving as Under Secretary in Finance Department of State of Gujarat, and contended that the sanction (Exh.28) was not a proper sanction and it was given by the Authority without application of mind. Mr. Shethna has contended that the learned Judge has recorded the further statement of the appellant under section 313 Cr.P.C. , but has not considered that probable defence in favour of the appellant - accused. Mr. Shethna has vehemently contended that looking to the evidence of panch witness and other witness the use of anthrecene powder by the Trapping Office with the help of ultr-violet lamp test is not proved. The colour of anthrecene powder during the ultra-violet lamp is also different. Mr. Shethna has placed reliance upon the decision of this Court in the case of RAMSING BHADRASING v/s STATE, reported in 1960 (1) GLR 138 and contended that the prosecution must lead positive evidence by way of expert evidence or books of science to prove the method of detection of anthracene powder, the nature of the test to be applied, the nature of the result to be expected and whether a layman can detect anthracene powder when such test is applied. Mr. Shethna has also relied upon the judgment dted 18.12.2004 of learned Single Judge of this Court in Criminal Appeal No.575 of 1993. Mr. Shethna has also relied upon the decision of Hon'ble Apex Court in the case of A. SUBAIR v/s STATE OF KERALA, reported in 2009 (8) SCALE 585 and contended that mere recovery of currency notes, in the facts of the case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. Mr. Shethna has contended that in the present case the complainant, who has filed complaint before ACB for the demand/illegal gratification alleged to have made by the appellant -
accused, has not supported the case of prosecution and when the Investigating Officer - Trapping Office , who has done the investigation, has expired then the prosecution has failed to prove case against the appellant - accused. He, therefore, contended that looking to the facts and circumstances of the case, the prosecution has failed to establish the case against the appellant - accused and, therefore, the Judgment and order of the trial Court is required to be quashed and set aside and applicant - accused may be acquitted from the charges levelled against him.
On the other hand, learned APP Mr RC Kodekar has supported the Judgment and order of the Special Court and contended that the trial Court has fully appreciated the evidence produced on record by the prosecution and, therefore, no interference may be called for by this Court. He has contended that merely because the complainant has not supported the case of prosecution, that does not mean that the prosecution has not proved its case beyond reasonable doubt. He has contended that the complainant was won-over by the appellant - accused and that the complainant is accomplice. He has contended that the version of the complaint is required to be corroborated with the independent evidence of panch witness and the panchnama. Mr. Kodekar has read the oral evidence of P.W. 2 - Bharat Sakarchand Mehta (Exh.10), who is Panch witness. This witness has deposed that Mr. Soni, who was his superior officer, has informed him that he has received phone call from ACB and Mr. Soni has informed him to reach to ACB Office at 8.00 O'clock in the morning on 11.5.1993 for the purpose of secret work and on this information the witness has appeared before the ACB office at 7.30 on that day. He has, therefore, contended that as per the direction of the Police Inspector Mr. Mavani, the Authority of the Drug Control Department has sent the two members of the staff to become a panch witness in the present case and, therefore, no doubt can be created by the defence that the said panch witnesses are concocted and bogus.
Mr. Kodekar has read the complaint (Exh.18) and contended that for the year 1991-92, for the purpose of assessment the Sales Tax Officer had issued notice on 8.4.1993 to the firm to appear before him on 11.5.1993 and pursuant to the said notice, on behalf of the firm, the complainant had appeared before the appellant - accused. It is also mentioned in the complaint that after receipt of the notice the complainant met the appellant - accused after 4 to 5 days of receipt of said notice. He, therefore, contended that the contents of the complaint are fair enough and it is not concocted.
Mr. Kodekar has contended that the Trapping Officer has expired and due to the non-availability of the said officer, he was not examined and in place of him, another member of raiding party - PW 5 - Bhikhushah Alisha (Exh.17) was examined and from the evidence of this witness, the prosecution has proved its case beyond reasonable doubt. So, non-examination of the Trapping Officer would not be fatal to the case of prosecution. Mr. Kodekar has also relied upon the decision of the Hon'ble Apex Court in the case of RAM GULAM CHAUDHURY & ORS. v/s. STATE OF BIHAR, reported in AIR 2001 SC 2842 (more particularly in Para - 30) and contended that non-examination of Investigating Officer would not cause any prejudice to the accused. Mr. Kodekar has contended that the defence has never made any attempt to show that non-examination of trapping Officer would cause prejudice to the appellant - accused. Mr. Kodekar has also contended that the P.W. 2 - Bharat Sakarchand Mehta (Exh.10) is a public servant, who is an independent witness. He has compared the oral evidence of this witness with the evidence of P.W.5 Bhikhusha Alisha (Ex.17), who was Lamp Operator and contended that the defence has not established that appellant was having any enmity with the Panch witness or with Trapping Officer and, therefore, he was wrongly booked by the Trapping Officer.
Mr. Kodekar has relied upon the decision reported in 1995 SCC (Criminal) 402 and contended that the defence has not challenged any of the documents before the learned Special judge and so it can be considered that there was consent of defence for the said documents. Mr. Kodekar has also relied upon the decision in the case of RAJ RAJENDRA SINGH SETH v/s STATE OF JHARKHAND, reported in 2008 (11) SCC 681, more particularly, Para - 15 & 16 of the said decision, which reads as under :
"15.
In B. Noha v. State of Kerala, it was, inter-alia, observed by this Court as follows :
The evidence shows that when P.W. 1 told the accused that he had sought the money as directed by the accused, the accused asked P.W.1 to take out and give the same to him. When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case. It was held by this Court in Madhukar Bhaskarrao Joshi v. State of Maharashtra as follows :
The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward for doing or forbearing to do any official act. So the word "gratification"
need not be stretched to mean reward because reward is the outcome of the presumption which the Court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification" or any "valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
Mr. Kodekar has contended that no doubt the complainant has not supported the case of the prosecution and Trapping Officer has also expired, but, even in absence of their evidence the demand and acceptance is proved by the prosecution. Therefore, the prosecution has proved its case beyond reasonable doubt and the learned Judge has rightly held the appellant - accused guilty of the offence alleged against him. Therefore, the Judgment and order of the learned Judge is required to be confirmed.
Heard the learned counsel for the parties. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant and considered the submissions made by learned counsel for the parties. I have also considered the decisions cited by both the parties. In the facts of the case, in my opinion, the decision reported in 1960 (1) GLR 138, cited by Mr. Shethna, is not helpful to the facts of the present case. In that case the person who had applied the anthracene powder was not an expert and he was not knowing any ingredients regarding experiment of anthracene powder as well as ultra-violet lamp. It is also observed in the said decision that "it is difficult to believe that in this case illiterate persons like the complainant and his brother and panchas who were laymen not at all experts on this question were able to detect anthracene powder on the bands of the appellant and on his jhaba." In the present case, perusing the panchnama (Exh.11) and the oral evidence of panch witness P.W. 5, it clearly appears that the witness has categorically explained the experiment of anthracene powder made by the Trapping Officer. So, in this case, the question that the witness was lay man does not arise. It is also pertinent to note that P.W.5 Bhikhusha Alisha was serving in ACB as Lamp Operator and the said fact is required to be considered that he is an expert. This Court is also well aware with the use of ultra-violet lamp and anthracene powder. On the experiment of anthracene powder in the light of ultra-violet lamp, some light white colour and light blue colour shining can be seen. So, from the evidence of Panch witness P.W.2 and Ultra-violet Lamp Operator P.W.5, the main ingredients of experiment of anthracene powder and ultra-violet lamp are established beyond reasonable doubt.
I have also considered the Judgment delivered by the learned Single Judge of this Court in Criminal Appeal No.575 of 1993, relied upon by Mr. Shethna, more particularly Para 5.5 of the said Judgment. It is observed in Para 5.5 of the said Judgment that ..."In the cross-examination, the defence has put question on anthracene powder and also the desirability of use of phenolphthalein powder at the time of arranging the trap. The witness has stated that he had not much knowledge about the phenolphthalein powder. He always used the antracene powder at the time of trap." In my opinion, the said Judgment of the learned Single Judge, will also not be helpful in view of the facts of the present case. In the present case, P.W.5 has clearly deposed that he had accompanied with the Trapping officer and in the said trap anthracene powder was applied by the Trapping Officer and he has explained the result of ultra-violet lamp as well as anthracene powder. Therefore, the Judgment of the learned Single Judge, relied upon by Mr. Shethna, will not be helpful to the defence site.
Mr. Shethna has also relied upon the decision in the case of A. SUBAIR v/s. STATE OF KERALA, reported in 2009 (8) SCALE 585, more particularly, Para - 10 of the said decision. Para - 10 of the said decision reads as under :
"The legal position is no more res-integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established."
In the present case from the contents of the complaint as well as from the deposition of P.W. 2 - Panch witness, the prosecution has proved its case beyond reasonable doubt that the appellant - accused has made demand from the complainant and he has also accepted it. Therefore, the decision cited by Mr. Shethna, in my opinion, will not be helpful to the appellant - accused, in the facts of the present case.
From the perusal of evidence of P.W. 5, who was, at the relevant time, serving as Head Constable - Ultra-violet lamp Operator, who had accompanied the raiding party during the raid, it appears that every care and caution was taken by the Trapping Officer during the trap and experiment of anthracene powder was properly done in presence of panchas as well as the members of raiding party. Therefore, in the facts of the case, the Trapping Officer has not committed any error in applying the anthracene powder and, in my opinion, the raid was a successful raid and the prosecution has proved its case beyond reasonable doubt.
I have also considered the conduct of the present appellant - accused. From the evidence of P.W. 2 - Panch witness, it is clearly established that he has accepted amount by way of illegal gratification. It is true that the evidence regarding the demand and acceptance is required to be corroborated by some other independent evidence. In the present case, panch witness who is an independent witness, has fully supported the case of the prosecution. Even it is not a case of appellant that he has any enmity with the panch witness. The allegation of Mr. Shethna that the said witness is a tutored witness has no substance. The panch witness has categorically stated that if he fails to say the contents of panchnama during the deposition, then the appropriate action can be taken against him by the department and under that fear he has deposed before the Court as per the contents of the panchnama. The panch witness has stated that after Mr. Raichura and Mr. Kishanbhai left the chamber of the appellant, the appellant told the complainant that as per understanding, he should pay the amount of Rs.500/-. The complainant requested the appellant to reduce the amount as the stone crushing company is already closed and ultimately the appellant had agreed to accept Rs.300/- from the complainant. Thereafter the complainant gave three notes of Rs.100/- i.e. Rs.300/- to the appellant which he had accepted by right hand and put it in the desk diary. Thereafter, as per previous arrangement, signal was given and the raiding party rushed to the chamber of the appellant. It appears from the deposition of this witness that after the raid the trap amount was collected and in the light of ultra-violet lamp the anthracene powder was found on the right hand fingers tips of the appellant - accused. This is sufficient to prove the guilt of the appellant - accused. The Hon'ble Apex Court has also held in catena of dec ision that the evidence of independent witness cannot be discarded mainly branding it as that of a cached or tutored witness. The evidence of Government servant cannot be rejected mainly because he is called to associate the raiding party. When the Court is satisfied from the facts and circumstances of the case that the panch witness is a witness of truth then his evidence cannot be discarded. I have also found that the appellant - accused has abused his position as "public servant" and the abuse of position was also dishonest and it is also proved that the appellant has deliberately caused wrongful act by obtaining pecuniary benefit and his pecuniary benefit is also proved beyond reasonable doubt.
Mr. Kodekar has also contended that looking to the facts of the case presumption under Section 20 of the P.C. Act is required to be drawn against the present appellant - accused. Section 20 of the P.C. Act reads as under :
"20.
Presumption where public servant accepts gratification other than legal remuneration -
(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."
Looking to the evidence produced on record it appears that the illegal gratification was accepted by the appellant - accused. It also appears that the appellant - accused has not properly explained the presence of anthracene powder. From the perusal of evidence on record, I am of the opinion that the appellant - accused has failed to rebut the presumption drawn under Section 20 of the P.C. Act. Even from the cross-examination of witnesses also, I have found that the appellant has failed to prove his probable defence beyond reasonable doubt before the trial Court.
As per Section 8 of the Evidence Act, the conduct of the accused is required to be considered. From the record it is clearly established that at the place of occurrence, the accused was found and from his possession the trap amount was recovered in presence of panch witness and hence that conduct of the accused can be considered that there was motive of the accused to commit the offence and just to get some illegal gratification. Therefore, the contention of the appellant - accused that the accused was wrongly involved in the commission of offence is not believable.
This Court has also gone through the latest decision of the Hon'ble Supreme Court in the case of BANARSI DAS v/s STATE OF HARYANA, reported in (2010) 4 SCC 450. In the case before the Hon'ble Supreme Court, the complainant and another independent witness have not supported the case of the prosecution and, therefore, the Hon'ble Supreme Court has quashed and set aside the Judgment of the High Court and acquitted the accused of the charges levelled against him. In the present case, no doubt the complainant has turned hostile and has not supported the case of the prosecution, but, the panch witness has fully supported the case of the prosecution and his evidence is fully corroborated with the circumstantial evidence. In Banarsi Das (Supra) the Hon'ble Supreme Court in Para - 20 has also observed that ...."It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence." In the present case before me, the panch witness has fully supported the case of prosecution and even by circumstantial evidence each link of the chain of events is established to prove the case of prosecution.
Looking to the facts of the case, I am of the opinion that the prosecution has proved that the appellant - accused, being a public servant, has demanded the amount and also accepted the bribe amount from the complainant, The accused has not explained by discharging his burden of rebutting the statutory presumption of guilt against him. From the facts and evidence on record it is clearly established beyond reasonable doubt that the amount by way of bribe was demanded by the accused and he accepted that amount voluntarily as an illegal gratification.
In view of above, I am in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and I am of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence.
In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 15.04.1997 passed by the learned Special Judge, Jamnagar, in Special Case No. 2 of 1994 is hereby confirmed. Bail bond stands cancelled. R & P to be sent back to the trial court forthwith. The appellant - accused is directed to surrender before the Jail Authority within a period of eight weeks from the date of this order, failing which the concerned Sessions Court shall issue non-bailable warrant to effect the arrest of the appellant - original accused.
(Z.K.SAIYED, J.) sas Top