Gujarat High Court
Jemubhai Noorjibhai Vadvi vs State Of Gujarat on 1 July, 2024
NEUTRAL CITATION
R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 789 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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JEMUBHAI NOORJIBHAI VADVI
Versus
STATE OF GUJARAT
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Appellant(s) No. 1
MS. JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 01/07/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant under Section 374 of Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Page 1 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined Sessions Judge and Presiding Officer, 1 st Fast Track Court, Surat (hereinafter referred to as "the learned Trial Court") in Special (ACB) Case No. 3 of 2005 on 04.05.2007, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Section 7, 13(1)(d) and 13(2) of The Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act").
1.1 The appellant is hereinafter referred to as the accused as he stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1 That the accused was working as an Assistant Sub-
Inspector in Mandvi Police Station, District Surat in the year 2004 and was a public servant. That the complainant - Lalsing Vasavabhai Chaudhary residing at village Kherda, Taluka Mandvi, District Surat had a land which was situated besides the land of one Savjibhai Keliyabhai Chaudhary and the complainant's family and the family of Savjibhai Keliyabhai Chaudhary were often quarreling and a Page 2 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined complaint was filed by the complainant - Lalsingbhai Vasavabhai Chaudhary in the Mandvi Police Station and the accused was investigating the application. That Savjibhai Keliyabhai Chaudhary and his family members let their cattle into the fields of the complainant and the standing crops were damaged and the complainant went and met the accused and at that time, the accused demanded for an amount of illegal gratification of Rs. 2500/-. That the complainant did not want to give the amount of illegal gratification and on 24.08.2004, went to the ACB Police Station, Surat and filed a complaint under Sections 7, 13(1)
(d) and 13(2) of the PC Act which was registered at C.R. No. 14/2004 on 24.08.2004. The Trap Laying Officer called the panch witnesses and the complainant was present in the ACB Police Station and he was introduced to the panch witnesses. That the panch witnesses were shown the complaint and the complainant gave five currency notes of the denomination of Rs. 500/- each. That a demonstration of phenolphthalein powder and solution of sodium carbonate was done and the characteristics of Page 3 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined phenolphthalein powder and solution of sodium carbonate were explained to the complainant and the panch witnesses and the currency notes given by the complainant were smeared with phenolphthalein powder and placed in the left shirt pocket of the complainant. That necessary instructions were given by the Trap Laying Officer to the complainant and the panch witnesses and the trap was arranged. The shadow witness and the complainant went to Mandvi Police Station and met the accused and at that time, the accused demanded for the amount of illegal gratification of Rs. 2500/- which was given by the complainant with his right hand and the accused accepted the amount and counted the same with both his hands. That the predetermined signal was given by the complainant and the members of raiding party came and caught the accused red handed. After the panchnama was drawn, the Investigating Officer recorded the statements of the connected witnesses and after the necessary documents including the order of sanction for prosecution were received, a charge-sheet came to be filed before the Sessions Court, Surat which was Page 4 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined registered as Special ACB Case No. 3/2005. 2.2 The accused was duly served with the summons and the accused appeared before the learned Trial Court, and after the due procedure under Section 207 of the Code of Criminal Procedure was followed, a charge at Exh. 6 was framed against the accused and the statement of the accused was recorded at Exh. 7, wherein, the accused denied all the allegations made in the charge and the entire evidence of the prosecution was taken on record. 2.3 The prosecution produced the following oral evidence to bring home the charge against the accused.
Sr. No. PW Particulars Exh. 1. 1 Narayan Dayaram Patil 11 2. 2 Lalsing Vasabhai Chaudhary 13 3. 3 Bharatkumar Ramjibhai Parmar 21 4. 4 Devidas Chindha Gurav 33 5. 5 Dayabhai Joytaram Patel 35 6. 6 Mahavirsinh Pravinsinh Raul 37 2.4 The prosecution also produced the following
documentary evidence to bring home the charge against the accused.
Page 5 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined Sr. No. Particulars Exh. 1. Application of the complainant 12 2. Complaint 24 3. Seizure Memo of Muddamaal 23 4. Panchnama 24 5. Panch Slips 25 to 30 6. Arrest Panchnama 31 7. Yadi 34 8. Order of sanction for prosecution 36 9. FSL Report 38
2.5 That after the closing pursis of the learned Public Prosecutor was filed at Exh. 39, the further statement of the accused under Section 313 of Cr.P.C. was recorded, wherein, the accused denied all the evidences produced against him and refused to step into the witness-box and refused to examine witnesses on his behalf and further stated that the complainant did not meet him on 24.08.2004 and the application that was given by the complainant on 24.08.2004 was not sent to the accused for investigation. That the accused did not know of any application filed by the complainant against anyone and no application has been seized by the Investigating Officer from the custody of the accused. That the complainant is Page 6 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined habitual of filing false complaints against government officials to pressurize the police and other officials and as there are disputes between the complainant and his family members and the complainant is habitual of filing false applications in the Police Station against his family members also. That as his complaints are without substance and are being disposed off and only action under Section 107 of Code of Criminal Procedure is being done and the complainant intends that an offence be registered, a false complaint has been filed only to bring pressure on the police. That the evidence has been falsely created to falsely implicate the accused and no currency notes were found from the hands or pocket or table of the accused. 2.6 After the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned Trial Court by the impugned judgement and order dated 04.05.2007 was pleased to convict the accused and sentence him to rigorous imprisonment of one year and fine of Rs. 10,000/- and in default, simple imprisonment of one month for the offence under Section 7 Page 7 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined of the PC Act and rigorous imprisonment of two years and fine of Rs. 10,000/- and in default, simple imprisonment of four months for the offence under Sections 13(1)(d) read with Section 13(2) of the PC Act. The learned Trial Court was further pleased to order that the sentences run concurrently.
3. Being aggrieved and dissatisfied with the said impugned judgement and order of conviction, the appellant has filed the present appeal mainly stating that the impugned judgement and order of conviction is illegal, improper, unjust, unreasonable and has been passed without considering the materials on record. That the learned Trial Court has not properly appreciated the evidence in proper perspective and has convicted the accused merely on conjunctures and surmises and the learned Trial Court has failed to consider that the prosecution is liable to prove the case beyond reasonable doubts. That if any defence of the accused has come on record, the benefit would never go to the prosecution and the liability would never change. The learned Trial Court Page 8 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined has failed to consider the cross-examination of the panch witness which is disqualifying the case of the prosecution and does not throw any light in respect of any involvement of the appellant. That the recovery of the tainted currency notes has not been proved and the basic ingredients of demand and acceptance have not been proved beyond reasonable doubts. That the prosecution has failed to prove the first demand of 24.08.2004 and this creates a doubt as to the veracity of the complaint. That even the evidence of Lalsing Vasabhai Chaudhary - the complainant shows that he was habitual of filing such complaints and he clearly intended that the offence be registered against Savjibhai Keliyabhai and merely to pressurize the police officials, he has filed the complaint. Moreover, in the deposition, he has categorically stated that on 24.08.2004, he gave a written complaint to the Police Inspector, Anti Corruption Bureau but the said written complaint has not come on record. In the cross-examination of the Police Officers, it is stated that no such written complaint was given, but the complaint was authored by the officers carrying out the trap themselves Page 9 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined and hence, the benefit of doubt is required to be granted in favour of the appellant. As far as recovery aspect is concerned, the same is not proved as, as per the case of the prosecution, the appellant had accepted the currency notes and held in his hand after counting and it has also come on record that the currency notes were placed in the pocket but the fact was said for the first time in the courtroom in the deposition. The seizure of muddamaal has also not been done and there are irregularities in seizure of solution of sodium carbonate and the muddamaal has been changed. That the entire evidence creates a doubt on the case of the prosecution and the sanction is also not given after proper application of mind. That the learned Trial Court has not properly examined the evidence for presumption under Section 20 of the PC Act and only if there was cogent and admissible evidence, the presumption would arise in favour of the prosecution. The learned Trial Court has not considered the specific plea of the appellant raised in his further statement recorded under Section 313 of the Code of Criminal Procedure and the impugned judgement and order Page 10 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined is required to be quashed and set aside.
4. Heard learned advocate Mr. Shakeel Quereshi for the appellant and and learned APP Ms. Jirga Jhaveri for the respondent- State
5. Learned Advocate Mr. Shakeel Quereshi for the appellant has taken this Court through the entire evidence of the prosecution in detail and has submitted that from the evidence, it is on record that the complainant and the accused has never met and as the complainant is habitual of filing complaints is well known to the ACB Officers since long. That the complainant had a dispute with one Savjibhai Keliyabhai and he wanted that an offence be registered against the said Savjibhai Keliyabhai and merely to pressurize the appellant, a false complaint has been filed. That as per the complainant, he had given a written complaint on 28.04.2004 to the Police Inspector, Anti Corruption Bureau but the same has not been brought on record. As far as the recovery of the currency notes is concerned, it is not proved beyond reasonable doubts that Page 11 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined the recovery was from the hands or pocket of the appellant. That in fact, the application of the complainant was handed over for investigation to one Assistant Sub-Inspector - Vasantbhai and not to the present appellant and when the appellant was not the Investigating Officer, there was no question of demanding for any amount of illegal gratification to investigate the application of the complainant. That in the evidence of the prosecution, it is not clear as to whether the application was given by the complaint on 24.08.2004 or 25.08.2004 and there is a correction in the date and as there is material contradiction regarding the time of recording of the application in the Police Station, the entire evidence of the complainant is doubtful. There are major contradictions in the evidence of the prosecution regarding the recovery of the currency notes and there is no evidence that the accused had ever demanded for any amount of illegal gratification on 24.08.2004 or on the date of the trap on 25.08.2004 and when the recovery is not proved beyond reasonable doubts, the appellant cannot be held guilty for the said offence. That the impugned judgement and order of Page 12 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined conviction is illegal and erroneous and the same is required to be quashed and set aside and the accused be acquitted from the said offence.
5.1 Learned Advocate Mr. Shakeel Quereshi has relied on Rajesh Gupta Vs. State through Central Bureau of Investigation reported in 2022 (2) AIJEL-SC 70143, wherein, the Apex Court has observed in para 17 as under:
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.
5.2 Learned advocate Mr. Shakeel Quereshi has relied on Bhaskarbhai Kishorkant Gandhi Vs. State of Gujarat reported in 2023 (0) AIJEL-HC 247618, wherein, this Court has observed in paras 20 and 21 as under:
20. The serious defects are pointed out before the learned Trial Judge but learned Trial Judge has not considered the same in its true and proper spirit and has held and concluded that the prosecution has proved all the three basic ingredients of illegal gratification that is preliminary demand, acceptance and recovery. Even, it is clear evidence come on record that Page 13 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined neither from the clothes of the accused nor on his body any imprint is found, which connect that the accused has accepted said amount. However, the learned Trial Jude has come to a conclusion that the accused has accepted the said amount and on the basis of such evidence, the Trial Court has recorded conviction and sentence against present appellant.
21. Even from the deposition of all the witnesses, the fact reveals and reflects that there was no any imprint on the body or on the cloths of the accused. Even, the Investigating Officer has admitted that he has not recovered the cloths of the accused wherein the imprint of the anthrecent powder was found. However, all these facts and the aspects are not taken into consideration by the learned Trial Judge in its true and proper spirit, while passing the impugned judgment and order of conviction and sentence.
5.3 Learned advocate Mr. Shakeel Quereshi has relied on B.Jayaraj Vs. State Of A.P reported in 2014 (13) SCC 55, wherein, the Apex Court has observed in paras 8 and 9 as under:
8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused.
When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P-11) before LW-9, and there is no other evidence to prove that the accused had made Page 14 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section
7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. 5.4 Learned advocate Mr. Shakeel Quereshi has relied on Page 15 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined C. Sukumaran Vs. State of Kerala reported in 2015 (0) AIJEL-SC-56128, wherein, the Apex Court has observed in paras 16 as under:
16. Further, none of the prosecution witnesses have actually deposed in the case that the appellant was the person who had demanded and accepted the bribe from the complainant and since PW2 has materially turned hostile, therefore, neither the demand aspect nor the acceptance of the bribe money can be verified from any other witnesses of the prosecution. Further, PW1 in his deposition before the Special Judge has also not supported the case of the prosecution, as he had refused to acknowledge the ownership of the tea shop, on the premises of which the bribe money was allegedly accepted by the appellant from the complainant. Hence, it is safe to say that the prosecution has failed to prove beyond any reasonable doubt that the appellant had accepted the illegal gratification from the complainant under Section 13(1)(d) of the Act. In support of the same, the learned counsel on behalf of the appellant has rightly placed reliance upon the decision of this Court in B. Jayaraj v. State of A.P.[1], which reads thus:-
"8. ......there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted Page 16 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established"
5.5 Learned advocate Mr. Shakeel Quereshi has relied on N. Vijayakumar Vs. State of Tamil Nadu reported in 2021 (0) AIJEL-SC-66987, wherein, the Apex Court has observed in paras 12 as under:
12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused.
Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)
(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal [email protected].(Crl.)Nos.4729-30 of 2020 gratification and mere possession or recovery of currency notes is not sufficient to Page 17 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under :
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court.
5.6 Learned advocate Mr. Shakeel Quereshi has relied on Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, the Apex Court has observed in paras 68 as under:
"68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections Page 18 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined 7 and 13 (1)(d) (i) and(ii) of the Act
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act.
In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, Page 19 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary Page 20 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
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(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
5.7 Learned advocate Mr. Shakeel Quereshi has relied on P Satyanarayana Murthy Vs. Dist. Inspector of Police reported in 2015 (0) AIJEL-SC-57062, wherein, the Apex Court has observed in paras 21 and 22 as under:
21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
6. Learned APP Ms. Jirga Jhaveri for the respondent - State has vehemently opposed the present appeal and has submitted that the learned Trial Court has appreciated all the evidence in proper perspective and from the evidence, Page 22 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined the prosecution has proved all the ingredients of demand, acceptance and recovery and it is proved that the accused was the Investigating Officer of the application given by the complainant on 24.08.2004 in Mandvi Police Station as the application was within his beat and the accused had demanded for the amount of illegal gratification of Rs. 2500/-. That the accused had also demanded for the amount in the presence of the panch witness and the tainted currency notes were recovered from the accused as the accused had accepted the tainted currency notes and had thereafter, thrown the currency notes below his chair. That the prosecution has proved the case beyond reasonable doubts and the learned Trial Court has appreciated the entire evidence in proper perspective and has convicted the appellant and hence, the appeal of the appellant must be rejected and the impugned judgement and order of conviction must be confirmed.
7. Before adverting to the facts of the present appeal, it is necessary to reiterate the cardinal principles of Criminal Jurisprudence as settled by the Hon'ble Apex Court in a Page 23 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined catena of decisions and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot claim any benefit of the weaknesses of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution.
8. In view of the settled principles of law, the evidence of the prosecution is required to be reappreciated and to bring home the charge against the accused beyond reasonable doubts, the prosecution has examined PW1 - Narayan Dayaram Patil at Exh. 11. The witness has stated that he was working as PSO in the Mandvi Police Station on 24.08.2004 and the complainant - Lalsingbhai Chaudhary had given a written application which is produced at Exh.
12. The witness had accepted the application and had endorsed the name of Assistant Sub-Inspector - Jemubhai Noorjibhai for investigation and as the application was of Page 24 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined the beat area of the accused. During the cross-examination by the learned advocate for the accused, the witness has stated that if any application is received in the Police Station, the date is endorsed and in the application at Exh. 12, the date is mentioned. That the application is given to the Constable - Barnishi for further procedure and the date of the application produced at Exh. 12 has been changed but the same has not been changed by him.
8.1 The prosecution has examined PW2 - Lalsingbhai Vasabhai Chaudhary at Exh. 13 and this witness is the complainant who has stated that on 24.08.2004, he had given the application produced at Exh.12 to Mandvi Police Station and the application was sent for investigation to the accused. That the accused had called him and told him to give an amount of Rs. 2500/- as illegal gratification for permanent settlement of his dispute and had told him to give the amount on the next date between 11.00 am and 12.00 noon at the Police Station. That he had gone to the ACB Police Station at Surat on 24.08.2004 between 02.00 to 03.00 pm and met Gurav Saheb in his chamber and he had Page 25 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined given a written complaint to Gurav Saheb. That the ACB Officers were present and other persons were called and white colour powder was applied on the currency notes and placed in his left side shirt pocket. That the characteristics of powder were explained and when the hands that had powder were dipped in a water bowl, the water had turned pink. That instructions were given and he and the panch no. 1 went to the Mandvi Police Station. That the accused was sitting in a tin cabin and the complainant and the panch went and sat on the chairs next to the chair of the accused. That the complainant told the accused that he had brought Rs. 2500/- and took the tainted currency notes from his left shirt pocket with his right hand and gave it to the accused who accepted with his right hand and counted the amount with both hands and put it in his pant pocket. That the complainant went out and gave the predetermined signal and the members of the raiding party came and caught the accused. That the complainant came and sat on the chair next to the accused and as the accused saw the persons rushing in, he took the amount and placed it below Page 26 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined his chair. That the staff members of the ACB took the amount which was lying on the floor and the procedure was done and the panchnama was drawn. During the cross- examination by the learned advocate for the accused, the witness has stated that he had a dispute with Savjibhai Keliyabhai who was his neighbour and family member and there were court cases pending between them. That he was giving applications against Savjibhai Keliyabhai and they were being investigated by the accused, but the said Savjibhai Keliyabhai was not arrested. That he knew that the accused was not doing any procedure regarding his application and as the accused had not arrested Savjibhai Keliyabhai, he felt that the accused had joined hands with Savjibhai Keliyabhai. That he had filed complaints against Assistant Sub-Inspector - Fatehsinh and Constable - Kishorebhai Batka. That he knows Ranjitbhai Kibhabhai and Ranjitbhai Kibhabhai has filed complaints against four Talati Cum Mantris and two Assistant Sub-Inspectors in the Anti Corruption Bureau. That he had told Ranjitbhai that the accused is not doing any procedure of his application Page 27 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined and if any officer does not listen to him, he would file a complaint with the Superior Officer against that officer. That a case of theft was filed against him and he knows the ACB Officials - Jadeja, Rana, Gurav and Narayan. That the amount was arranged by Gurav Saheb and he had reached the ACB Office at around 06.00 am on the next day. That as he frequently goes to Mandvi Police Station, the staff of Mandvi Police Station knows him very well and when had gave the last application, he had a fear that the accused would listen to Savjibhai Keliyabhai and not listen to him. That his previous application was investigated by Assistant Sub-Inspector - Fatehsinh and he had filed a complaint against Assistant Sub-Inspector - Fatehsinh with the District Superintendent of Police. That when he went to Mandvi Police Station, there were police personnel present and one or two persons were sitting with the accused. That he first sat on the bench but thereafter, went and sat on the chair near the panch and his chair was in line with the accused's chair. That all three of them were sitting in a line and he was sitting near to the accused. That the tainted Page 28 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined currency notes were not found from the shirt pocket of the accused or the table of the accused or drawer of the table of the accused but were recovered from the floor. That when he went out, he does not know what has taken place inside and as the officials came rushing in, everybody stood up. That Gurav Saheb and the writer were doing the procedure. 8.2 The prosecution has examined PW3 - Bharatkumar Ramjibhai Parmar at Exh. 21 and this witness is the panch witness who has stated that he and other panch - Dilipkumar Kashiram Patel had gone to the ACB Office. The witness has supported the case of the prosecution and has deposed in detail about all the incidents that occurred when he and the other panch - Dilipkumar Kashiram Patel went to the ACB Office and till the trap was arranged. That witness has stated that he was instructed to be a shadow witness and he had gone along with the complainant walking into the Mandvi Police Station. That they met the accused and the complainant pulled up a chair and told the accused to teach a lesson to Savjibhai. That at that time, the accused demanded for the amount of Rs. 2500/- and Page 29 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined the complainant took the amount from his shirt pocket with his right hand and gave it to the accused and the accused took it with his hand and counted the amount. That the complainant went out to give the predetermined signal and the members of the raiding party came. That the currency notes were recovered from below the chair and the procedure was done. The witness has stated that the currency notes were recovered by the panch no. 2 and the panchnama was drawn and their signatures were affixed on the panchnama produced at Exh. 24. That he was called to the ACB Office on the next day but he does not recollect as to why he was called again to the ACB Office. During the cross-examination by the learned advocate for the accused, the witness has stated that after he had received the summons, he had gone to the ACB Office to read the case and he had read the panchnama to refresh his memory. That there is a shed outside of the Mandvi Police Station and there is no tin cabin and he or the complainant did not sit on the bench in front of the accused. That they sat on the chairs between the bench and the table and at first, they Page 30 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined went and stood in front of the table of the accused and the accused told them to sit on the chairs. That he went and sat near the chair of the accused and he cannot say as to whether the accused had thrown the amount on the floor. That after the complainant gave the predetermined signal, he sat next to the accused, and he does not know as to how the tainted currency notes came on the floor. That he had stated for the first time before the Court that the accused had thrown the tainted currency notes on the floor. 8.3 The prosecution has examined PW4 - Devidas Chindha Gurav at Exh. 33 and the witness is the Trap Laying Officer who has fully supported the case of the prosecution and has narrated all the details about each incident that had occurred from the time that the complainant came to the ACB Police Station on 24.08.2004 and the trap that was arranged on 25.08.2004. The witness has stated that during the panchnama it is stated that five currency notes of the denomination of Rs. 500/- each were found from the accused and a receipt to that effect was given. During the cross-examination by the learned advocate for the accused, Page 31 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined the witness has stated that the complainant had earlier given an application in Mandvi Police Station and he had believed that the complainant is true on the basis of this complaints but the same were not verified from the Mandvi Police Station record. That during his investigation, he did not find the application made by the complainant against Savjibhai Keliyabhai from the accused and he had checked the accused as also the drawer of the table of the accused. That when he went into the Mandvi Police Station, one PSO, one lady and three to four other persons were there and in the panchnama, it is not mentioned that the accused had thrown the currency notes below the chair on seeing the members of the raiding party. That in the panchnama, it is not mentioned as to how the tainted currency notes came below the chair and no currency notes were recovered from the pocket or hands of the accused. That in the seizure memo produced at Exh. 21, it is not mentioned that the tainted currency notes were recovered from below the chair of the accused.
8.4 The prosecution has examined PW5 - Dayabhai Page 32 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined Joytaram Patel at Exh. 35 and this witness is the competent authority who has granted the order of sanction for prosecution which is produced at Exh. 36. 8.5 The prosecution has examined PW6 - Mahavirsinh Pravinsinh Raul at Exh. 37 and the witness is the Investigating Officer who had taken over the investigation of ACB Police Station C.R. No. 14/2004 from the Trap Laying Officer - Police Sub-Inspector - D.C. Gurav. The witness has stated that he had recorded the statements of the connected witnesses and after the documents were received, he had filed the charge-sheet before the Sessions Court, Surat. During the cross-examination, the witness has stated that he had recorded the statement of Ranjitaben Nansingbhai and on 25.08.2004, the investigation of the application of the complainant was with Ranjitaben Nansingbhai. That he had investigated about the application of the complainant and action under Section 107 of Code of Criminal Procedure was taken in the application. That no site plan of the place of trap was produced.
9. On minute dissection of the entire evidence of the Page 33 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined prosecution, it has come on record that the complainant was habitual of filing applications against government officials and the complainant has filed a number of applications against some officials. As per the case of the prosecution, the complainant had given the application in the Mandvi Police Station on 24.08.2004 and the application was sent for investigation to the present accused but the application which is produced at Exh. 12 shows that the application was sent to Assistant Sub-Inspector - Vasantbhai by the endorsement of P.R. Patel on 25.08.2004 at 20.30 hours. That if the application at Exh. 12 is perused, it has been received in the Mandvi Police Station on 24.08.2004 and PW1 - Narayan Dayaram Patil - the PSO of Mandvi Police Station has deposed that he had made an endorsement to send the application to the accused for investigation as the application pertains to his beat. There is a correction in the date of the application and the correction is of the date 24 and 25 and has not been made by PW1 - Narayan Dayaram Patil - the PSO and it has come on record in the deposition of the Investigating Officer - PW6 - Page 34 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024
NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined Mahavirsinh Pravinsinh Raul, that the application of the complainant was being investigated by Ranjitaben Nansingbhai. The prosecution has not examined Ranjitaben Nansingbhai or Assistant Sub-Inspector - Vasantbhai and there is no evidence to prove beyond reasonable doubts that the application was given by the complainant on 24.08.2004 and the application had in fact reached the accused for investigation. PW1 - Narayan Dayaram Patil has stated that as a PSO, once he receives an application, it is sent to the Barnishi Constable for further procedure and there is nothing on record to show that on 24.08.2004 or 25.08.2004, the application was sent to accused for investigation and that the accused had received the application from the Barnishi Constable. On the contrary, there is evidence as per the endorsement on Exh. 12 that the application was sent to Assistant Sub-Inspector - Vasantbhai and the Investigating Officer - PW6 - Mahavirsinh Pravinsinh Raul states that the application was sent to Ranjitaben Nansingbhai. That if the application was not sent to the accused for investigation, there was no Page 35 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined reason for the accused to demand any amount of illegal gratification from the complainant. Moreover, the complainant has not stated at what time, he had gone to the Police Station and at what time, the demand of illegal gratification was made by the accused.
9.1 As per the evidence of the complainant, he had given a written complaint in the ACB Police Station but that complaint has not been brought on record in the evidence before the learned Trial Court for reasons best known to the prosecution and as the written complaint is not on record, a serious doubt is raised on the case of the prosecution. 9.2 In the entire evidence of the prosecution, it has emerged on record that the accused was sitting in the shed outside the Police Station and the complainant and the panch witness went and met the accused. The complainant sat on a chair near the accused and the panch witness sat besides the complainant and all three were sitting in the same line. Admittedly, the tainted currency notes were found from below the chair of the accused and there is no evidence as to how the tainted currency notes came below Page 36 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined the chair of the accused. The complainant has stated that he went and sat on a bench in front of the accused and thereafter, came and sat on a chair in front of the accused and thereafter, came and sat on the chair next to the accused. There is no iota of evidence as to why the complainant had changed his places and when he had to talk to the accused, instead of sitting across the table of the accused, he came and sat next to the accused. There is no iota of evidence as to how the tainted currency notes came on the floor and the seizure memo produced at Exh. 23 states that the currency notes were recovered from the possession of the accused. The complainant states that the accused accepted the tainted currency notes and placed them in his pant pocket, whereas, the panch witness states that the accused accepted the tainted currency notes and kept them in his hand and counted the currency notes but the currency notes were recovered from the floor. On perusal of the seizure memo at Exh. 23, it is stated that the tainted currency notes were recovered from the accused and no clothes of the accused were seized during investigation. Page 37 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024
NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined This casts a shadow of doubt on the case of the prosecution and when there is no cogent and convincing evidence that the accused was the Investigating Officer of the application of the complainant filed on 24.08.2004 in Mandvi Police Station, there was no reason for the accused to demand for the amount of illegal gratification on 24.08.2004. The factum of prior demand has not been proved by the prosecution and except for the bald allegations of the complainant that he had gone to the Mandvi Police Station to give the application which is produced at Exh. 12 on 24.08.2004, there is no evidence regarding any prior demand made by the accused. As discussed above, the application at Exh. 12 is also suspicious as it is not clear as to whether the application was given on 24.08.2004 or 25.08.2004. The endorsement below the application handing over the application to Assistant Sub-Inspector - Vasantbhai is made on 25.08.2004 at 20.30 hours and as the prosecution has not examined Assistant Sub-Inspector - Vasantbhai or Ranjitaben Nansingbhai who was In-Charge of the application, it is not proved beyond reasonable doubts Page 38 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined as to when the application was received in the Mandvi Police Station and when it was handed over either to Assistant Sub-Inspector - Vasantbhai or Ranjitaben Nansingbhai. There is no iota of evidence that the accused was entrusted with the investigation of the application and the evidence of the prosecution is contrary to this effect. The conduct of the complainant on the day of the trap or changing his placed often and sitting next to the accused is also suspicious and it raises a doubt as to whether the complainant had himself thrown the currency notes below the chair of the accused while he was seated besides the accused. The panch witness was seated next to the complainant and the panch witness has categorically stated that he does not know as to how the tainted currency notes came below the chair of the accused. If the evidence produced by the prosecution on record of the case is examined in light of the law laid down by the Constitutional Bench in case of Neeraj Dutta (supra), the prosecution has not proved the case beyond reasonable doubts and the conviction cannot be legally sustained. There is no clear, cogent and convincing evidence that the Page 39 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined accused had in fact demanded for the amount of illegal gratification on 24.08.2004 from the complainant as on that day, there was absolutely no reason for the accused to demand the amount of illegal gratification from the complainant as he did not have the investigation of the application of the complainant with him. The evidence regarding the day of the trap i.e. on 25.08.2004 is contradictory and when the accused has raised a plausible defence that the complainant was a habitual of filing complaints against various officials to pressurize them and when there is evidence in the cross-examination of the complainant that he was not happy with the accused as the accused was not arresting Savjibhai Keliyabhai and he felt that the accused had joined hands with the said Savjibhai Keliyabhai and was not registering any criminal offence against Savjibhai Keliyabhai, the motive to implicate the accused in false offence, cannot be ruled out. As there is no clear evidence regarding the acceptance and when the recovery is not from the hands or the pockets of the accused and recovery of the tainted currency notes was from below Page 40 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined the chair of the accused and the complainant was sitting right next to the accused, the possibility that the complainant himself had thrown the tainted currency notes below the chair of the accused cannot be ruled out.
10. The learned Trial Court has not appreciated the entire evidence in proper perspective and has not considered that there is no cogent and convincing regarding the demand as also the recovery of the tainted currency notes and the seizure memo at Exh. 23 is contradictory to the panchnama regarding the recovery of the tainted currency notes. That there is no reliable evidence to support the conviction and the learned Trial Court has failed to appreciate the entire evidence of the prosecution in proper perspective and has given a wrong conclusion and has convicted the accused. That the entire evidence of the prosecution is contrary and far from convincing and requires interference and consequently the appeal succeeds and is allowed.
11. The impugned judgement and order passed by the learned Sessions Judge and Presiding Officer, 1st Fast Track Page 41 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024 NEUTRAL CITATION R/CR.A/789/2007 JUDGMENT DATED: 01/07/2024 undefined Court, Surat in Special (ACB) Case No. 3 of 2005 on 04.05.2007 is quashed and set aside and the appellant is acquitted from all the charges levelled against him.
12. Bail bond stands cancelled. Fine to be refunded after due verification. Record and Proceedings be sent back to the Trial Court forthwith.
(S. V. PINTO,J) VASIM S. SAIYED Page 42 of 42 Downloaded on : Fri Jul 19 22:13:13 IST 2024