Gujarat High Court
Ravindranath Maganbhai Prajapati vs State Of ... on 18 November, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.A/1113/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1113 of 2008
With
CRIMINAL APPEAL NO. 1179 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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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 ?
================================================================ RAVINDRANATH MAGANBHAI PRAJAPATI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance in Criminal Appeal no.1113 of 2008:
MR MM SAIYED, ADVOCATE for the Appellant(s) No. 1 NOTICE SERVED for the Appellant(s) No. 1 MS JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1 Appearance in Criminal Appeal no.1179 of 2008:
MR MA PAREKH, ADVOCATE for the Appellant(s) No. 1 NOTICE SERVED for the Appellant(s) No. 1 MS JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Page 1 of 21 R/CR.A/1113/2008 CAV JUDGMENT Date : 18/11/2014 COMMON CAV JUDGMENT Both these appeals are arising out of common judgment dated 28.2.2008 in Special Case no.14 of 2006 by the Special Judge, Fast Track Court no.3 at Anand. By such impugned judgment, the trial Court has convicted both the accused u/ss.7, 12, 13(1)(d) and Section 13(2) of the Prevention of Corruption Act and sentence of only 6 months R.I has been awarded to both of them with fine of Rs.1000/- and S.I of two months in default of payment of fine. Both the convicts have preferred separate appeals and, therefore, when both the appeals are arising from the same impugned judgment, they are heard and decided together by this common judgment.
2. Heard learned advocate Mr.M.M.Saiyed for the appellant in Criminal Appeal no.1113 of 2008 and learned advocate Mr.M.A.Parekh for the appellant in Criminal Appeal no.1179 of 2008 and learned APP Ms.Jirga Jhaveri for the respondent - State in both the appeals.
3. Though the impugned judgment is common and both the appellants
- accused are convicted for the same act of demanding and accepting bribe, the facts of prosecution story is different to some extent for both the appellants and, therefore, it requires to be noted separately.
4. In the impugned judgment, appellant in Criminal Appeal no.1113 of 2008, namely, Ravindranath Maganbhai Prajapati is accused no.1. The case of the prosecution against said appellant is that the complainant has lodged a complaint on 24.3.2000 against the appellant for demanding bribe of Rs.2000/- for issuing positive opinion in the loan application of the complainant, when complainant has applied for loan of Rs.83,700/-
from the office of the accused. It is stated in the complaint that when complainant has approached the appellant for processing his application for the loan, the appellant has demanded such an amount and asked him Page 2 of 21 R/CR.A/1113/2008 CAV JUDGMENT to come on the next day. Pursuant to such demand, complainant has lodged a complaint before the ACB and ACB has arranged the raid. However, on such date of trap i.e. on 27.3.2000, appellant was not available in his office and, therefore, raid has failed and raiding party have returned back and again they went at the office of the appellant on 28.3.2000. On that day also, at first instance, appellant was not available at his place and, therefore, complainant and shadow witness had waited for an hour and went again at the office of the appellant and accused no.1. It is the case of the prosecution that at such point of time, while handing over the file of the complainant to accused no.2, the present appellant - accused no.1 has on being asked by the complainant, made a sign to meet and thereby to pay the amount of bribe that was demanded by him to the accused no.2. Therefore, chargesheet was filed against accused no.1 and he was tried and convicted and sentenced as aforesaid.
5. Whereas so far as appellant in Criminal Appeal no.1179 of 2008 is concerned, he is accused no.2 before the Sessions Court and though his name was not disclosed in FIR, it is the case of the prosecution that on the date of successive raid when it was successful, in absence of accused no.1 at his place, they approached accused no.2 in his office, which is on first floor of the same building where office of accused no.1 was located and in turn accused no.2 has taken them to accused no.1 and after clearance of the file in the office of accused no.1, accused no.1 has instead of handing over the papers to the complainant, handed over the file to accused no.2 and as recorded herein above, instructed the complainant to approach accused no.2. In turn, accused no.2 has gone to his office on first floor with the complainant and shadow witness and before handing over the papers, which are endorsed by the office of the accused no.2 and assigned for delivery to the complainant by the dispatch clerk, demanded the amount of bribe fixed by accused no.1 being Rs.2000/- from the complainant in the name of accused no.1, and Page 3 of 21 R/CR.A/1113/2008 CAV JUDGMENT thereupon, complainant has paid the amount when shadow witness has given a sign to the raiding party and thereupon raiding party caught the appellant - accused no.2 red-handed with marked currency notes for accepting it as bribe for clearing the loan file of the complainant from the office of the accused no.1.
6. Therefore, both the appellants have tried their level best to submit separately that they have no connection whatsoever with each other and that accused no.1 has not demanded and if at all demand is proved, then he has not accepted the bribe, whereas accused no.2 has not demanded and accepted and presence of bribe money from him is not properly proved since he has never accepted the amount, but it was thrust upon him by the complainant and shadow witness.
7. So far as accused no.1 is concerned, it is further contended that even sanction by the competent authority was not granted and, therefore, prosecution has again requested the authority to grant the sanction, and in turn an inferior officer than the officer, who has refused the grant sanction at first instance has illegally granted the sanction to prosecute accused no.1. So far as the trap and raid is concerned, it is contended by accused no.1 that he has never demanded any amount as bribe and that he has never accepted it. In support of such submission, it has been pointed out that if at all he has demanded the amount, he would not hesitate to recover it, but since he has not demanded and since he has categorically stated to the complainant that procedure will take its own time, the complainant was annoyed and not happy and wanted to get cleared his file immediately and, therefore, to pressurize the staff of his office, the complaint is filed with ulterior motive. It is further contended that if he has demanded the amount and if he has to accept it, he would not remain absent on 27.3.2000 when the accused has come with the amount of bribe. It is further contended that even on the date of raid i.e. 28.3.2000, he was not available in the office and when complainant met him after an Page 4 of 21 R/CR.A/1113/2008 CAV JUDGMENT hour or so, he has simply passed on the file to the dispatch clerk since it was ready and he has neither demanded nor accepted any amount from the complainant at that point of time. Therefore, it is submitted that though there is allegation of demand, there is no proper proof of demand and when there is no acceptance, coupled with illegal sanction, his conviction is absolutely illegal and he needs to be acquitted from all the charges.
8. Whereas, accused no.2 has contended that he has nothing to do with the entire case, but only because of his denial to help the complainant and the raiding party to succeed in their illegal raid against accused no.1, he had been falsely implicated in the case as an accused and thereby now he has to suffer a lot since he had never committed any offence as alleged. It is his case that in fact he is not serving in the office of accused no.1 at all, but is serving in another office of Co-operative Society, which is unfortunately situated in the same building, but on different storey. Therefore, accused no.2 is denying the charges in its totality, contending that he is not concerned at all, but had been involved only because of his denial to be a witness against accused no.1 in such false and illegal trap.
9. Minute and full details of entire case and entire evidence before the trial Court has been discussed by the trial Court in the impugned judgment and, therefore, they are not required to be reproduced here. However, we have to refer the relevant part of evidence only to decide the appeals on hand.
10. If we peruse the entire evidence, it becomes clear that there is specific evidence on record by the complainant in his deposition at Exh.19 that he had met accused no.l on 24.3.2000 for his application of loan when accused no.1 has conveyed him that if he pays Rs.2000/- to him, his loan would be sanctioned at the earliest and thereupon the Page 5 of 21 R/CR.A/1113/2008 CAV JUDGMENT complainant was called on 27.3.2000 with the amount, but since complainant does not want to pay the bribe, he has filed the complaint and the investigating officer has initiated the procedure for trap. Details of such procedure is not of much material in the present case, since there is supportive evidence regarding such trap and defence is mainly regarding lack of demand and non-acceptance of bribe amount. Therefore, though appellants may not admit the evidence in toto, they do not challenge much against the procedural part of the trap and, therefore, that entire story is not reproduced herein. However, details of such raid is well described in the said judgment. The complainant has in his deposition, narrated the story in detail that how he went to the office of accused no.1 on 27.3.2000 when accused no.1 was not available and, therefore, he went there with the shadow witness and the raiding party on 28.3.2000, when at first instance accused no.1 was not found and after half-an-hour they again went to the office of the accused no.1 and inquired about his loan papers. Now, the evidence against accused no.2 has also come on record that he has demanded Rs.2200/-, but when complainant has stated that he has bought only Rs.2000/-, they all went to the office of accused no.1 together where accused no.1 has given the envelope of papers to accused no.2 and given sign to the complainant to go to accused no.2. Thereupon, they all went to the office of accused no.2 where now accused no.2 has openly and clearly demanded the amount of bribe stating that amount of Rs.2000/- which is to be paid to Ravindranath Prajapati i.e. accused no.1 be paid to him, and thereupon, complainant has paid the amount of bribe in the form of tainted currency notes. The complainant and shadow witness have given sign to the raiding party and thereupon the raiding party has caught accused no.2 red-handed with tainted currency notes. On inspection, the hands and currency notes show presence of phenolphthalein on it. Therefore, prima facie there is an evidence to the effect that accused no.1 has to deal with the loan application of the complainant and to expedite that paper-work, Page 6 of 21 R/CR.A/1113/2008 CAV JUDGMENT initially, accused no.1 has categorically demanded bribe amount of Rs.2000/-, and in turn, he managed it to accept it through accused no.2, may be because of some apprehension of getting caught or for trying to avoid any complaint and that too smartly through accused no.2, who is working in another office in the same building. Whereas accused no.2 has though no reason to involve in dealing with the papers of the complainant, accompanied him from his office to the office of accused no.1, managed and received the papers of the complainant from the office of accused no.1 and took it to his office so as to recover the amount of bribe fixed by accused no.1 before handing over the papers to the complainant. Therefore, there is clear evidence of abetment of crime by accused nos.1 and 2 with each other.
11. As against that, both the accused have tried to explain that when there is no disclosure of the involvement of accused no.2, either in the FIR or in any other document till raid was conducted in the office of accused no.2, it cannot be said that accused no.2 has committed any offence so as to convict him. Whereas, accused no.1 has contended that when he has not accepted the amount of bribe, and when there is no valid sanction to prosecute him, he should not have been convicted. In addition to such basic defence, both the accused have tried to show certain contradictions from the depositions of witnesses inasmuch as there is some difference in the disclosure of the words by the complainant regarding purpose of loan either it is for a ready-made garment or for clothes only. However, that contradiction is not material when complainant is working as a tailor and needs a loan either for clothes, which is to be stitched as per order or for ready-made garments. What is material is evidence regarding demand, acceptance and presence of tainted currency notes with the accused at the relevant time. If this evidence is cogent and reliable, then only technicalities remain in favour of the accused, may be either in the form of any irregularity in the Page 7 of 21 R/CR.A/1113/2008 CAV JUDGMENT procedure and absence of valid sanction. As already stated herein above, the defence has taken a stand regarding demand and acceptance only with validity of sanction so far as accused no.1 alone is concerned. Therefore, the story of raid is not of much material and hence discussion of those evidence has been avoided.
12. In addition to contradiction regarding purpose for loan, the only other contradiction argued is with reference to the topology of the building where raid was conducted. Needless to say that there is no much contradiction in the entire evidence, but the fact which emerges from total evidence is clear that office of accused no.2 is on the first floor of the building and office of accused no.1 is on 2nd storey of the same building. Therefore, there is no scope of either interpretation or presumption that complainant and raiding party had not been there at the relevant time when raid was successful. An attempt was made to prove that one Harish Ratilal Panchal was acting as an agent to get the loan sanctioned and because accused no.1 was not obeying his demand, said Mr.Panchal has managed the entire trap so as to harass the accused no.1 and when accused no.1 was not trapped on 27.3.2000, I.O and Mr.Panchal have wrongly involved the name of accused no.2 and conducted a false raid. However, such defence could not be proved by the accused either during the evidence of the complainant or even by their own independent evidence while giving their statement u/s.313 of the Cr.P.C. or by adducing evidence to that effect. Complainant has also denied the suggestion that he with Panch no.1 and I.O Mr.Jadeja had rushed to the office of accused no.2 and abused him for not helping the complainant and police and amount was forcefully placed in the pocket of trouser worn by accused no.2 and that panchnama was drawn as per convenience of the I.O.
13. The prosecution witness Farukbhai Anwarbhai Vora at Exh.23 being shadow witness, has also supported the version of the complainant Page 8 of 21 R/CR.A/1113/2008 CAV JUDGMENT in full details, where he has categorically deposed about the involvement of accused no.2 and successful raid in the office of accused no.2, there is no reason to discard his evidence since he is an independent witness. In his cross-examination, an attempt was made to prove that no raid was conducted at such place. However, defence could not succeed in getting any cogent evidence in their favour or any rebutting evidence against the case of the prosecution and, therefore, such deposition is conclusive proof of charges levelled against both the accused. The panchnama at Exh.24 by such witness also discloses all the facts of prosecution case in proper manner and perception, which cannot be rebutted by the accused in any manner. Witness Rameshchandra Manubhai Joshi being officer of the sanctioning authority has deposed at Exh.32 and proved the issuance of sanction. An attempt was made to allege that there is no scrutiny by the sanctioning authority before granting sanction and, therefore, it is not valid. However, except putting general question regarding his activity, nothing further has been proved. Therefore, the cross-examination of such witness could not confirm that sanction is either improper or illegal. It is settled legal position that some technicalities here and there in some procedure would not affect the final conclusion if it is otherwise neither illegal nor perverse or arbitrary. Therefore, only because of some small contradictions, it cannot be said that sanction to prosecute accused no.2 is illegal or void.
14. Similarly, so far as sanction against accused no.2 is concerned, the witness Prakashbhai Somalal Shah has also proved the sanction order in proper perspective and discussion regarding such sanction in previous paragraph is also equally applicable to the sanction against accused no.2.
15. So far as the allegation regarding sanction against accused no.1, it is alleged by the accused no.1 that after initial denial of sanction by the competent authority on 6.10.2000 and 6.5.2003, which is produced at Exh.38, being the correspondence between the officers of the competent Page 9 of 21 R/CR.A/1113/2008 CAV JUDGMENT authority, which makes it clear that after opinion of not to grant sanction, there was a discussion between the officers and, ultimately, sanction was granted. Hence, only because there is a delay in granting sanction or because before granting such sanction, if there is an opinion not to grant sanction, such opinion would not come in way of the ultimate sanction when it is granted. So far as power of competent authority to grant sanction, the sanction letter alone is not material, but the relevant file wherein sanction was granted can only confirm if any irregularity is there. In that case, nobody has restrained the accused to clarify and verify such aspect by calling relevant documents on record. However, in absence of evidence against legal presumptions against the accused, only because of submission by the accused regarding some irregularities, it cannot be held that there is illegality or irregularity so as to reverse the impugned judgment, which is otherwise describing the actual facts and evidence on record in proper perspective.
16. The I.O.s - Bharatsinh Mangalsinh Chauhan, Exh.39 and Arvindbhai Ranchhodbhai Patel, Exh.41 have also categorically supported the entire case of the prosecution and the complainant and during their cross-examination also, accused cannot rebut any piece of evidence of prosecution. Therefore, when all the witnesses have supported the case of the prosecution, it would be necessary for the accused to rebut such evidence by cogent and reliable evidence from their side.
17. The prosecution has also produced necessary documentary evidence to confirm the service of accused at particular place and post at relevant time.
18. However, accused no.1 has tried his level best to prove that he has never demanded the amount of bribe, and to prove his innocence, he has examined Joint Director of his office, namely, Dineshbhai Harjivandas Page 10 of 21 R/CR.A/1113/2008 CAV JUDGMENT Amin at Exh.49. It is the say of this witness that the accused no.1 has given one letter to him on 24.3.2000 and produced its photocopy at Exh.53 on record, contending that accused no.1 has complained about the activities of the complainant himself stating that complainant has given him temptation of bribe to get his loan application approved. By such letter at Exh.53 dated 24.3.2000, the accused no.1 has conveyed his General Manager that complainant has offered him Rs.2000/- and came with such cash on his table on 24.3.2000 and requested to expedite his application with positive endorsement, but he has refused to accept it when he said that he will do his work as per rule only. However, though the endorsement of receipt of such application is made by the witness on 24.3.2000 in his own handwriting, in the office it was inwarded only on 27.3.2000 and without disclosing the time. Therefore, it cannot be believed or considered as an evidence in rebuttal of demand and acceptance by accused nos.1 and 2 as narrated herein above. On the contrary, it confirms that complainant and accused no.1 had meet on 24.3.2000 and, thereafter, if we peruse the entire evidence and when such overall evidence confirms the entire story of prosecution, and when it was not rebutted by any other evidence than the evidence, then the form of deposition and letter under consideration, it cannot be said that such evidence is enough to disprove the case of the prosecution.
19. Therefore, prima facie the consideration of overall record makes it clear that there is cogent and reliable evidence for the determination that initially accused no.1 has demanded the amount of bribe and when he apprehends that there would be a trap, he had managed with the office by giving a letter, Exh.53 dated 24.3.2000 to make a show that he has not demanded the bribe and accepted the amount through accused no.2, who had categorically demanded it for accused no.1. It becomes clear that accused no.2 has no role to play in the loan file of the complainant and, therefore, he has no reason whatsoever to involve himself with the Page 11 of 21 R/CR.A/1113/2008 CAV JUDGMENT complainant and shadow witness and to approach accused no.1 with them on 28.3.2000 and then to accept the papers from accused no.1 and then to go to his own office with such papers of the complainant before demanding and accepting the amount of bribe fixed by accused no.1. Therefore, accused no.1 has demanded the bribe and it was accepted by his agent being accused no.2. For such conclusion, I am relying upon the provision of law, which makes it clear that in given set of evidence and record, the only presumption and conclusion would be against the accused as aforesaid. If we peruse the provisions of Section 7 and 20, it becomes clear that, whoever, being public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatsoever, other than legal remuneration as a motive or reward or doing or forbearing to do any official functions, favour or disfavour to any person for rendering or attempting to render any service or disservice to any person shall be punishable with imprisonment as prescribed u/s.7 of the Act. It is also settled legal position that when in any trial of offence punishable u/s.7 or Section 11 or Clause (a)(b) of Sub-Section 13, it is proved that the accused person has accepted or attempted to obtain for himself or for any other person any gratification other than illegal remuneration or any valuable thing from any person, it shall be presumed unless 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 as mentioned in Section 7.
20. Therefore, when there is a clear presumption clause in the form of Section 20 of the Prevention of Corruption Act, which specifically says that it shall be presumed, unless contrary is proved, it is the bounden duty of the accused to prove contrary to the evidence adduced by the complainant and similarly it is the bounden duty of the Court to presume in absence of such contrary evidence that offence as alleged has been Page 12 of 21 R/CR.A/1113/2008 CAV JUDGMENT committed. The verb for presumption used in Section 20 is "shall" and, therefore, presumption is must in absence of evidence in rebuttal. Thereby, once the amount is found in the possession of the accused, the burden shifts on him to explain the circumstances to prove his innocence as contemplated u/s.20 of the Act as held by Hon'ble the Supreme Court in the case of B.Hanumantha Rao Vs. State of Andhra Pradesh reported in AIR 1992 SC 1201. Similarly the recovery of currency notes from the appellant proves the guilty conduct of the appellant, in view of the presumption assigned u/s.20, if it has not been rebutted, as held by Hon'ble the Supreme Court in the case of M.Sunderamoorthy Vs.State of Tamilnadu reported in AIR 1990 SC 1269. The reference to the case of Public Prosecutor Vs. A.Thomas reported in AIR 1959 Madras 166 is material wherein it is stated that the term "shall be presumed" means that Court is bound to take the fact as proved until evidence is adduced to disprove it and the party interested in disproving it, must produce such evidence to disprove the case of the complainant.
21. Therefore, in view of the above settled position and in view of cogent evidence against both the accused, though accused no.1 has not accepted the amount when there is evidence regarding his demand and when there is evidence regarding acceptance of the same amount by accused no.2 on his behalf, the provision of Section 7 certainly attracts to confirm that demand and acceptance may be for himself or for any other person and thereby in absence of evidence in rebuttal to disproving such fact, it cannot be said that trial Court has committed any illegality or irregularity in convicting the accused by impugned judgment. Therefore, it would be difficult to interfere in such judgment without any apparent reason regarding arbitrariness or illegality. If we peruse the impugned judgment, it becomes clear that the trial Court has taken care of entire set of evidence before it in proper manner, described and disclosed the same in detail and properly appreciated the same to arrive at the conclusion that Page 13 of 21 R/CR.A/1113/2008 CAV JUDGMENT there is sufficient evidence against the accused and thereafter held that they are guilty of charges levelled against them. The trial Court has also considered the citations referred by both the sides before such decision. The trial Court has also explained the involvement of accused no.2 in proper perspective and, therefore, I do not find any reason to interfere with the impugned judgment or any substance in the submissions by the appellants to set-aside such judgment.
22. The only issue raised by the accused no.1 is with reference to granting of valid sanction contending that initially sanction was refused and then it was granted subsequently. However, for the purpose, accused could not show any case-law to confirm that sanction once refused cannot be granted subsequently. The only judgments are on the issue of second sanction, if Court discards the first sanction for further prosecution. There is difference in consideration of any sanction as a second sanction and continuous process of granting sanction wherein initially it may have been refused, but after proper perusal and may be after persuasion by the concerned authority, the competent authority has granted the sanction after some passage of time. In that case, it cannot be said that sanction was granted again or that there is first sanction or there is second sanction and, therefore, second sanction is not valid at all.
23. In support of her submission, learned APP is relying upon the following citations:-
(1) Phula Singh Vs. State of H.P. Reported in (2014)4 SCC 9 wherein considering the similar case under the Prevention of Corrupation Act with reference to Section 313 of Cr.P.C., Hon'ble the Supreme Court has held that it is the duty of the accused to furnish an explanation regarding any incriminating material that has been produced against him, if accused choose to maintain silence or in complete denial when a statement u/s.313 of the Cr.P.C. is recorded, then in such an event, the Court would be entitled to draw an inference including such an adverse inference against the accused as may be permissible in accordance with law, Page 14 of 21 R/CR.A/1113/2008 CAV JUDGMENT rejecting the submission that prosecution has to establish each and every fact and accused has a right only to maintain silence. It is further held that non-explanation of incriminating circumstances by accused would lead to adverse inference in a trap case while confirming the reversal of acquittal and thereby convicting the accused, when appellant - accused did not furnish any explanation in respect of recovery of Rs.1000/- from the pocket of his pant or how his fingers turned pink on being washed with sodium carbonate solution as the currency notes were found from his pocket.
In the present case also, there is no explanation that how the tainted currency notes were found from the possession of the accused no.2 and, therefore, accused no.2 cannot escape from his liability of explanation and in absence of explanation, there would be a presumption against him. Whereas, so far as accused no.1 is concerned, it would be explained herein after referring the provision of concerned section itself that even acceptance is through some third party like an agent. The person who has initially demanded the amount as bribe and the person who has accepted the bribe on his behalf, both are liable to be convicted.
(2) Mukut Bihari Vs. State of Rajasthan reported in (2012)11 SCC 642 wherein the Hon'ble Supreme Court has while dealing with the similar case under the Act held that when there is no reason or motive for the complainant to falsely enrope appellants in the case, even absence of shadow witness would not vitiate the whole trap proceedings when there is no contradiction in depositions of witnesses and their version is without any embellishment and improvement. It is further held that burden of proof rests on accused once foundational facts has been established by the prosecution, whereby provision of Section 20 would be invoked and burden of proof would shift upon the accused to explain the facts though it may be only on touchstone of preponderance of probability and not on touchstone of proof beyond all reasonable doubt. However, there must be proper explanation by the accused and in absence of explanation, if accused remains silent in explaining that how tainted notes have Page 15 of 21 R/CR.A/1113/2008 CAV JUDGMENT been recovered from him, then there would be presumption against him that he has accept the money.
In the present case also, accused no.2 has failed to explain about possession of tainted currency notes with him.
(3) C.M.Sharma Vs. State of A.P. reported in (2010)15 SCC 1, which is relied upon in Mukut Bihari's case (supra) wherein the Hon'ble Supreme Court has while dealing with the similar case confirmed the conviction rejecting accused's plea that demand of bribe by him was improper in view of his strained relationship with the person from whom the bribe was allegedly demanded, in view of specific and positive evidence of witnesses regarding demand and acceptance of bribe by one of the accused, which was not improbable.
(4) K.S.Panduranga Vs. State of Karnataka reported in (2013)3 SCC 721 wherein Hon'ble Supreme Court has upheld the conviction based upon presumptions pointing out that how it can be rebutted and standard of proof applicable to such rebuttal with the duty of the Court in that regard and even rejected the story of the defence version that how and why tainted notes were found from their possession when it was stated that in fact the amount was to be borrowed from the complainant and not accepted as a bribe. It is also confirmed that where minimum sentence is prescribed, even reduction of sentence is impermissible.
(5) Narendra Champaklal Trivedi Vs. State of Gujarat reported in (2012)7 SCC 80 wherein Hon'ble Supreme Court has confirmed that even if amount of bribe is meagre, corruption deserves no sympathy or leniency and minimum sentence prescribed under statute cannot be reduced on the ground of amount of gratification or convict would lose his job or long lapse of time after the occurrence of the offence. The Court has also considered the provisions of Section 20 of the Act recording presumption holding that the Court is obliged to apply the presumption in case of offence u/s.7, though such presumption is rebuttable. Therefore, when demand and acceptance of illegal gratification and recovery of tainted money from the accused's possession is established on fact by prosecution and thereafter if accused fails to rebut the presumption drawn against him, the Page 16 of 21 R/CR.A/1113/2008 CAV JUDGMENT conviction is justified.
(6) In T.Shankar Prasad Vs. State of A.P. Reported in (2004)3 SCC 753 the Supreme Court has held that presumption u/s.20 of the Act is not only legal, it is compulsory and Court is bound to operate the said presumption when conditions for drawing such presumption is satisfied. Though it is rebuttable by proof, and not by only explanation which may seem to be plausible because the words used in Section 20 is "it shall be presumed". In this case, the facts are almost similar to the case on hand inasmuch as in reported case also, one Officer has directed to pay bribe amount to some other person and involvement of both of them was well planned and cleverly managed to systematically collect money and then to plead that main accused has not demanded the money and, therefore, rejecting the plea of accused's, conviction was confirmed. Even by applying the presumption u/s.20 when accused have tried to explain that the amount accepted by them was not towards the bribe but it is to be credited as tax.
(7) State of West Bengal Vs. Kailash Chandra Pandey reported in (2004)12 SCC 29 wherein the Supreme Court has held that minor discrepancies and contradictions are not fatal to the case of the prosecution so as to interfere in order of conviction by the High Court and thereby conviction and sentence by trial Court was confirmed. It is further held that the appellate Court should not lightly brush aside the appreciation done by the trial Court except for cogent reasons and thereby acquittal by the High Court was set- aside.
(8) In State of Tamilnadu Vs. A. Parthiban reported in (2006)11 SCC 473, the Supreme Court has held that every acceptance of illegal gratification whether preceded by a demand or not would be covered by Section 7 and acceptance of illegal gratification in pursuance to demand by a public servant would also fall u/s.13(1)(d) of the Act. It is further held that grant of probation for offences committed u/s.13 is impermissible.
(9) In Krishna Ram Vs. State of Rajasthan reported in (2009)11 SCC 708 wherein Supreme Court has held that once money was recovered from the possession of the appellant, the burden u/s.20 shifts upon him.
Page 17 of 21 R/CR.A/1113/2008 CAV JUDGMENT24. As against that the appellants are relying upon following judgments (1) The judgment in Satvir Singh Vs. State of Delhi in Criminal Appeal no.920 of 2011 dated 20.8.2014 wherein the Apex Court has considered contradictions in the prosecution evidence for confirming the acquittal by the trial Court. However, in the present case, when there is no material contradiction in the prosecution evidence. This judgment would not help the appellant to get rid off from the conviction.
(2) The judgment in Edmund S.Lyngdoh Vs. State of Nagaland in Criminal Appeal no.2056 of 2014 dated 16.9.2014 wherein the Apex Court has held that absence of proper proof of conspiracy by the appellant before it reduced the sentence of the appellant to the period already undergone and by imposing further fine of Rs.2,50,000/- in addition to find of Rs.50,000/- already imposed by the trial Court. Therefore also, this judgment does not help the accused to get rid off the conviction.
(3) The judgment in Somabhai Gopalbhai Patel Vs. State of Gujarat in Criminal Appeal No.1864 of 2011 dated 24.9.2014 wherein also the Apex Court has only reduced the sentence from awarded sentence. Therefore, it cannot be said that because of such judgment, the appellant should either be acquitted or their sentence is to be reduced. In fact, the Supreme Court has confirmed the conviction recorded by the trial judge and confirmed by the High Court stating that it does not warrant any interference. However, considering the age of the appellant, who was suffering with heart disease and facial nerve-palsy and speech disorder, his sentence was reduced. Therefore also, this judgment would not help the appellant to confirm the acquittal in their favour or to reduce their conviction.
25. Whereas, question regarding sanction is concerned, the appellants are relying upon the judgment in the case of State of H.P. Vs. Nishant Sareen in Criminal Appeal no.2353 of 2010 dated 9.12.2010 wherein the Hon'ble Supreme Court has dismissed the appeal of the State because of lack of proper sanction against the accused. In such reported case, practically, there was no question of second or subsequent sanction, but the Apex Court has considered that it is not permissible for the Page 18 of 21 R/CR.A/1113/2008 CAV JUDGMENT sanctioning authority to review or reconsider the matter on the same material again because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction would result into different order on the same material and there may not be any end of such statutory exercise. Therefore, though it is categorically stated that change of material per se on the same material cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, it cannot be ignored that in the same judgment and practically in the same paragraph, Hon'ble Court has also categorically made it clear that the Government in the matter of grant or refusal to grant sanction exercise statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstances whatsoever and that in a case where fresh material have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and if on that basis, the matter is reconsidered by the sanctioning authority, in light of fresh materials and opinion is formed that sanction to prosecute a public servant may be granted, there may not be any impediment to adopt such course.
26. So far as the present case is concerned, it is not even the case of the appellant that sanction was granted on the same material, on the contrary, it has come on record that it was sanctioning authority itself which has considered to grant sanction after receiving all the materials of investigation when initially sanction was sought for based upon trap. It would be appropriate to refer the case of Rambhau Vs. State of Maharashtra reported in (2001)4 SCC 759 where abetment by co- accused was considered for conviction, whereas issue of presumption is concerned, there are several other cases on the subject. However, the settled legal position is quite clear that once there is a recovery of tainted Page 19 of 21 R/CR.A/1113/2008 CAV JUDGMENT money from accused coupled with evidence regarding demand of bribe, it is the duty of the accused to rebut the evidence to prove his innocence by explanation that how tainted money has reached in his possession. So far as present case is concerned, there is a clear evidence that accused no.2 has accepted the amount on behalf of accused no.1, since accused no.1 was dealing with the file of the complainant and, therefore, accused no.2 has no reason whatsoever to visit the office of the accused no.1 with the complainant and then to carry file of the complainant to his own office where he has demanded the money on behalf of accused no.1 and accepted it. Therefore, considering the language of Section 7, where it is categorically confirmed that whoever accepts from any person for himself or for any other person gratification or award for whatsoever as a motive for doing the official act shall be liable to be punished, makes it clear that when accused no.2 has accepted money for accused no.1 who has to do the official act by forwarding the loan application of the complainant, they both have acted in connivance with each other to accept the bribe from the complainant and, therefore, I do not find any cogent reason to interfere in the reasoned judgment by the trial Court where every aspect is properly examined and explained before confirming conviction of the appellants. Therefore, since there is no substance in the appeals, the same deserve to be dismissed.
27. For the foregoing reasons, both the Criminal Appeals are dismissed.
28. Bail bond of appellants shall stand cancelled and that they shall surrender before the concerned jail authority within six weeks. If they fail to surrender within six weeks, the Sessions Court shall issue necessary warrants in this regard.
(S.G.SHAH, J.) binoy Page 20 of 21 R/CR.A/1113/2008 CAV JUDGMENT Page 21 of 21