Gujarat High Court
Vitthalbhai Ambalal Parmar vs State Of Gujarat on 5 March, 2018
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/2039/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2039 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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 or any
order made thereunder ?
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VITTHALBHAI AMBALAL PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR SATYEN B RAWAL for the PETITIONER(s) No. 1
MR. K.P. RAVAL APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 05/03/2018
ORAL JUDGMENT
[1] The present Appeal is preferred by the appellant - original accused against the judgment and order dated 5.11.2004 passed by the learned Special Page 1 of 24 R/CR.A/2039/2004 JUDGMENT Judge, Valsad, in Special Case No. 37 of 2002, whereby the appellant accused has been convicted and sentenced to undergo simple imprisonment for two years and to pay fine of Rs.5,000/ in default to undergo simple imprisonment for five months for the offence under Section 7 of the Prevention of Corruption Act, 1988 ("the Act" for short) and also convicted the applicant and sentenced him to undergo simple imprisonment for three years and to pay fine of Rs.7,000/ in default to undergo simple imprisonment for seven months for the offence under Section 13(2) read with Section 13(1)(d)of the Act. Both the sentences were ordered to run concurrently. [2] The short facts giving rise to the present appeal are that the father of the complainant Parshottambhai Tandel, resident of Kolak, Taluka, Pardi, Dist. Valsad had filed a suit, therefore the Mamlatdar and Krushi Panch wherein the parties had voluntarily entered into a compromise on 9.2.1995, for which notices from the Mamlatdar and Krushi Panch was received on 21.09.1998. At that time, the accused was working as Mamlatdar and Krushi Panch. In furtherance to the notices, the complainant met the Page 2 of 24 R/CR.A/2039/2004 JUDGMENT accused, who told that the father of complainant had executed false document and that he will get the land confiscated in Government and it was allegedly conveyed by the accused that to settle the cases, the complainant would have to understand and pay the bribe amount. As the complainant was not willing to pay bribe amount, he lodged the complaint before Anti Corruption Bureau, Valsad and in pursuance of the said complaint, a trap came to be laid by the Officers of Anti Corruption Bureau and the accused was caught red handed alongwith tainted currency notes and thereby committed offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.
[3] In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
3.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced several documentary evidences. Page 3 of 24
R/CR.A/2039/2004 JUDGMENT 3.2 At the end of the trial, after recording
the statement of the accused under section 313 of the Cr.PC and hearing the argument on behalf of the prosecution and the defence, the learned trial Court delivered the judgment and order, as stated above. [4] Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.
[5] By way of preferring the present appeal, the appellant - original accused has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such.
[6] Mr. Satyen Rawal, learned advocate for the applicant original accused has taken this Court through the entire record & proceedings as well as Page 4 of 24 R/CR.A/2039/2004 JUDGMENT impugned judgment and order and read over the evidence of material witnesses available on record and argued that the complainant, who has been examined as P.W.1 has not supported the case of prosecution and therefore, he was declared hostile. He has further submitted that virtually he has disowned the complaint itself. Though, the learned Additional Public Prosecutor has undertaken the extensive crossexamination, but he did not support the case of the prosecution. In the cross examination, he admitted that the proceedings initiated by the ALT Mamlatdar under the provisions of Tenancy Act came to be compromised and the entire proceedings was dropped on 17.12.1998 and nothing was pending. Therefore, he did not intend to file any complaint before the Anti Corruption Bureau but at the behest of his friend, he has filed the complaint. He has also admitted that Mr. JadejaPolice Inspector told him that if he wanted to make out the case under the provisions of Corruption Act, then many incriminating things are required to be noted. Lastly, learned advocate for the appellant - original accused has requested this Court to allow the present Page 5 of 24 R/CR.A/2039/2004 JUDGMENT appeal.
In support of his contention he has relied upon following decisions of Hon'ble Apex Court, which are as under:
(i) In the case of N. Sunkanna vs. State of Andhra Pradesh reported in (2015) AIR SCW 6764, the Hon'ble Apex Court has observed at para 6 & 7, as under:
6. The prosecution examined the other fair price shop dealers in Kurnool as PWs 3, 4 and 6 to prove that the accused was receiving monthly mamools from them. PWs 4 and 6 did not state so and they were declared hostile. PW3 though in the examinationinchief stated so, in the cross examination turned round and stated that the accused never asked any monthly mamool and he did not pay Rs.50/ at any time. The prosecution has not examined any other witness present at the time when the money was demanded by the accused and also when the money was allegedly handedover to the accused by the complainant. The complainant himself had disowned his complaint and has turned hostile and there is no other evidence to prove that the accused had made any demand. In short there is no proof of the demand allegedly made by the accused. The only other material available is the recovery of the tainted currency notes from the possession of the accused. The possession is also admitted by the accused. It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine qua non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)(d) 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. It is only on proof of Page 6 of 24 R/CR.A/2039/2004 JUDGMENT 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. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of threeJudge Bench of this Court in B. Jayaraj v. State of Andhra Pradesh [(2014) 13 SCC 55] : (AIR 2014 SC (Supp) 1837 : 2014 AIR SCW 2080) and P. Satyanarayana Murthy vs. The District Inspector of Police and another [(2015 (9) SCALE 724] : (AIR 2015 SC 3549 : 2015 AIR SCW 5263).
7. In the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. The judgments of the Courts below are, therefore, liable to be set aside. For the aforesaid reasons the appeal is allowed and the conviction of the appellant under Section 7 and under Section 13(1)
(d) read with Section 13(2) of the Act and the sentences imposed are set aside and he is acquitted of the charges. The bail bond, if any, furnished by the appellant be released.
(ii) In the case of C. Sukumaran Vs. State of Kerala, reported in AIR (2015)SC (Supp) 771, the Hon'ble Supreme Court has observed at para 13 and 17 as under:
13. With reference to the abovementioned rival legal contentions urged on behalf of the parties and the evidence on record, we have examined the concurrent finding of fact on the charge made against the appellant. It has been continuously held by this Court in a catena of cases after interpretation of the provisions of Sections 7 and 13(1)(d) of the Act that the demand of illegal gratification by the accused is the sine qua non for constituting an offence under the provisions of the Act. Thus, the burden to prove the accusation against the appellant for the offence punishable under Section 13(1)(d) of the Page 7 of 24 R/CR.A/2039/2004 JUDGMENT Act with regard to the acceptance of illegal gratification from the complainant PW2, lies on the prosecution.
17. Now, coming to the legality of the conviction of the appellant under Section 13(2) of the Act by the High Court in its judgment, the same cannot be allowed to sustain in law, as the prosecution has failed to prove the demand of illegal gratification made by the appellant from the complainant and acceptance of the bribe money by the appellant. Further, the phenolphthalein test cannot be said to be a conclusive proof against the appellant, as the colour of the solution with regard to the other samples were pink and had remained so throughout. However, the lime solution in which the appellant's hands were dipped in, did not show the same pink colour. The reason assigned by the Trial Court is that the colour could have faded by the lapse of time. The said explanation of the Trial Court cannot be accepted by us in view of the fact that the colour of the other samples taken by the Investigation Officer after the completion of the trap laid against the appellant had continued to retain the pink colour. Moreover, the sample of the shirt worn by the appellant which was produced before the Trial Court did not show any colour change on the shirt's pocket section, where the bribe money was allegedly kept by him after the complainant had allegedly given him the bribe money.
(iii) In the case of P.Satyanarayana Murthy Vs. Dist. Inspector of Police & Another, reported in AIR(2015)SC 3549, the Hon'ble Apex Court has held at paras 20, 21 ,22, 23, 24 and observed as under:
20. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an Page 8 of 24 R/CR.A/2039/2004 JUDGMENT offence under Sections 7 as well as 13(1)(d)
(i)and(ii) of the Act. It has been propounded that 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 proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i)and(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i)and(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.
23. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the Page 9 of 24 R/CR.A/2039/2004 JUDGMENT complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs. 500/ from the pocket of his shirt and handed over the same to the appellant. Though, a very spirited endeavour has been made by the learned counsel for the State to correlate this statement of PW1 S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW1 S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Sections 7 or 13(1)(d)(i)and(ii) of the Act has been proved. True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3.10.1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 4.10.1996. However, the testimony of PW1S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or 13(1)(d)(i)and(ii) of the Act against the appellant has been proved beyond reasonable doubt.
24. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i)and(ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i)and(ii) of the Act, thus, had been to underscore the indispensability Page 10 of 24 R/CR.A/2039/2004 JUDGMENT of the proof of demand of illegal gratification. [7] On the other hand, Mr. K.P. Raval, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellant - original accused. He has submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. He has further submitted that finding recorded by learned trial Court is based upon concrete and clinching evidence, and therefore, punishment inflicted upon the accused does not call for any interference. He has further submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law, which does not call for any interference.
[8] This Court has heard Mr. Satyen Rawal, learned advocate for appellantoriginal accused, and Mr. K.P. Raval, learned APP for the State.
[9] This Court has minutely gone through the
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R/CR.A/2039/2004 JUDGMENT
impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, the father of the complainant Parshottambhai Tandel, resident of Kolak, Taluka, Pardi, Dist. Valsad had filed a suit, therefore the Mamlatdar and Krushi Panch wherein the parties had voluntarily entered into a compromise on 9.2.1995, for which notices from the Mamlatdar and Krushi Panch was received on 21.09.1998. At that time, the accused was working as Mamlatdar and Krushi Panch. In furtherance to the notices, the complainant met the accused, who told that the father of complainant had executed false document and that he will get the land confiscated in Government and it was allegedly conveyed by the accused that to settle the cases, the complainant would have to understand and pay the bribe amount. As the complainant was not willing to pay bribe amount, he lodged the complaint before Anti Corruption Bureau, Valsad and in pursuance of the said complaint, a trap came to be laid by the Officers of Anti Corruption Bureau and the accused was caught red handed alongwith tainted currency notes and thereby committed offences Page 12 of 24 R/CR.A/2039/2004 JUDGMENT punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. [10] In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.
[11] P.W.1.Parshottambhai Harjivan Tandel Complainant deposed that he and his father went to the office of the accused wherein the accused told him that they have filed wrong case and therefore they should do something and further told that if they give money then their work would be done. He further deposed that they went to the office of the accused on 7.01.1999 and before that he had filed his case before Anti Corruption Bureau. On the day of trap, he was accompanied with the trapping party. Upon reaching the office of the accused, he alone Page 13 of 24 R/CR.A/2039/2004 JUDGMENT went to the office of the accused. Other people were standing outside the office of the accused. The accused was present there and he told that as per their talk he has brought the money. Thereafter, accused asked the peon to call Desai Saheb, Circle Inspector. As the peon went outside, he gave the tainted currency of Rs. 2000/ to the accused, which he kept on the table and when Desai Saheb came, he gave that currency notes to him, which he kept in his pocket. There was no talk between the accused and Desai Saheb in his present. Thereafter, he raised the prearranged signal and the raiding party comprising of Police personnel came there and took the accused with them and the tainted currency notes was recovered from the pocket of Desai Saheb. As he did not supported the case of the prosecution, he was declared hostile. Thereafter, extensive cross examination was under taken by the learned APP and learned advocate of the accused, but he did not supported the case of prosecution, and in fact, deposed that the case was disposed of in his favour on 17.12.1998. He has further deposed that he had filed the case before the Anti Corruption Bureau on Page 14 of 24 R/CR.A/2039/2004 JUDGMENT advice of his friend.
[12] P.W.2.Ajaysingh, Dansingh Makwana deposed that his is the shadow panch and came to be requisitioned by the Anti Corruption Bureau. He deposed that in his presence the trap was undertaken. He further deposed that he had not visited the office of the accused along with the complainant and he remained outside the room. The complainant only entered into the room of accused. In the cross examination, he admitted that he was outside the chamber and neither he heard any conversation between the accused and the complainant nor seen anything during the course of trap.
[13] P.W.3Sharadkumar Navnitlal Dave, deposed that at the relevant time, he was serving as Joint Secretary to the Government of Gujarat. He further deposed that he accorded sanction to prosecute the case against the accused.
[14] P.W.4 Niruben Madhusudan Patel, deposed that at the relevant time, she was serving in the Collectorate, Valsad. She further deposed that she accorded sanction to prosecute the case against the Page 15 of 24 R/CR.A/2039/2004 JUDGMENT accused and came to be proved and produced on record in her deposition.
[15] P.W.5 Gopaldan Mojdan, deposed that at the relevant time, he was serving as driver of ST Corporation and came to be requisitioned as Panch, and he has not supported the case of the prosecution. Though extensive crossexamination was carried out, but he did not supported the case of prosecution. He further deposed that during the course of trap, the complainant only entered in the Chamber of accused and he was outside the room. Neither he has heard any conversation between them nor seen any transaction between them.
[16] P.W.6.Ambapratapsinh Chandravijaysinh, deposed that at the relevant time, he was serving as Police Inspector, Anti Corruption Bureau, Valsad, and recorded the complaint. Thereafter laid the trap and carried out the entire investigation and filed the chargesheet after conclusion of investigation. In the crossexamination, he admitted that the proceedings initiated by the accused against the complainant came to be terminated on 17.12.1998. He Page 16 of 24 R/CR.A/2039/2004 JUDGMENT also admitted that there was no accusation against the accused no.2 in the complaint. He also admitted that the record does not disclose as regards to the conversation between the accused no.2 and Panch No.1 with the complainant.
[17] In view of the aforesaid nature of evidence, the important question arises for determination of this Court, as to whether the prosecution has established the three vital ingredients i.e. demand, acceptance and recovery of illegal gratification or not?
[18] At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A.Subair Vs State of Kerala, (2009) 6 SCC 587 : (2009 AIR SCW 3994), while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are Page 17 of 24 R/CR.A/2039/2004 JUDGMENT vital ingredients necessary to be proved to record a conviction.
[19] In State of Kerala and another Vs C.P.Rao (2011) 6 SCC 450 : (AIR 2012 SC (Supp) 393), the Honourable Apex Court reiterating its earlier dictum, visavis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. [20] In a recent enunciation by the Honourable Apex Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B.Jayraj (AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and
(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or Page 18 of 24 R/CR.A/2039/2004 JUDGMENT abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
[21] On overall analysis of the evidence on record, admittedly the complainant disowned the complaint lodged by him. Therefore, the present case is covered under the decisions of the Hon'ble Supreme Court in the case of B.Jayaraj Vs. State of Andhra Page 19 of 24 R/CR.A/2039/2004 JUDGMENT Pradesh (supra)and in the case of M.R. Purushotham Vs. State of Karnataka (supra).
[22] Thus, it is clear that the case wherein neither the complainant, nor the Panchas, have testified before the learned Special Judge as regards to the predemand and acceptance of instant demand at the time of trap, therefore, the prosecution has miserably failed to establish the vital aspect of demand and acceptance altogether.
[23] Even if recovery or discovery alleged to have been made from the person of accused no.2, then also in view of the evidence available on record, it is not made relatable and no concurrent evidence is forthcoming as regards to the demand and acceptance from accused no.1 from the complainant. The evidence on record clearly indicates that there was no conversation or any understanding between the accused no.1 & 2, therefore whatever the recovery came to be effected from the accused no.2 could not be made relatable to accused no.1 as such.
[24] Even otherwise, this Court has gone through the entire testimony of the complainant who Page 20 of 24 R/CR.A/2039/2004 JUDGMENT is declared hostile to the case of the prosecution and has denied that he was ever interrogated after the search & seizure came to be effected over the person of the accused. Therefore, the evidence on contemporaneous panchnama as well as other case papers prepared thereof become irrelevant as they are not giving any strength to the primary evidence of the complainant.
[25] In view of the above, and on overall analysis of the evidence on record, the prosecution has to prove three main vital ingredients of illegal gratification, namely demand, acceptance and recovery of tainted currency notes. So far as the demand and acceptance of the illegal gratification is concerned, there is lot of contradiction in the deposition of complainant, panchas and Investigation Officer and during the trial, they could not prove the exact place of recovery, therefore, the recovery of tainted currency notes becomes doubtful. In that view of the matter, nothing reveals from the evidences of important witnesses i.e. complainant, panchas and Investigation Officer.
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R/CR.A/2039/2004 JUDGMENT [26] In view of the aforesaid nature of
evidence, when demand and acceptance is not proved which are vital ingredients so far as establishing the guilt of accepting illegal gratification is concerned and in consequence whereof, recovery of tainted currency notes which was found in the trap from the possession of the appellantaccused becomes meaningless. In this view of the matter, finding recorded by learned trial Court is not in consonance with the evidence available on record. Therefore, as stated above, in absence of any specific and clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable.
[27] 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.
[28] Moreover, one disturbing feature comes out from the record and proceedings of the case as Page 22 of 24 R/CR.A/2039/2004 JUDGMENT regards to the fact that the Police Inspector, Mr. Jadeja, has assumed all roles right from the stage of recording complaint, arranging trap as well as members of raiding party, carrying out investigation till filing of charge sheet. This course of action go against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of prosecution becomes suspicious on this count only. In the present facts of the case, the status of investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decision of the Hon'ble Apex Court in the case of Bhagwan Singh vs. State of Rajasthan reported in AIR (1976) SC985, followed by this Court in the case of Kanubhai Kantibhai Patel vs. State of Gujarat reported in 1998(1)GLH924. Therefore, in this case, the prosecution case also suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly the whole proceedings based on such investigation Page 23 of 24 R/CR.A/2039/2004 JUDGMENT deserves to be quashed and set aside on this count only.
[29] In the result, the appeal succeeds and the same is allowed. The impugned judgment and order dated 5.11.2004 passed by the learned Special Judge, Valsad, in Special Case No. 37 of 2002, is quashed and set aside. The appellant is acquitted of the charges levelled against him. Fine, if any, paid by them be refunded to him. R & P be sent back to the trial Court, forthwith.
(R.P.DHOLARIA, J) MANOJ KUMAR Page 24 of 24