Gujarat High Court
Sukhdevsinh Babusinh Parmar vs State Of Gujarat on 24 June, 2024
NEUTRAL CITATION
R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 438 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or
any order made thereunder ?
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SUKHDEVSINH BABUSINH PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR PRAVIN GONDALIYA(1974) 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 : 24/06/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 25/02/2005 passed by Page 1 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined the learned Special Judge (Fast Track Court No. 2), Amreli (hereinafter referred to as 'the learned trial Court') in Special (ACB) Case No. 27 of 1992, whereby, the learned trial Court has convicted the appellant for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act (herein after referred to as 'the P.C. Act'). 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] The accused was an Unarmed Police Constable, Traffic, Buckle No. 661, Amreli City Police Station in the year 1991 and was a public servant. That the complainant Mr. V.N.Brahmbhatt, Police Inspector, ACB (field) had received an application from one applicant Hiralal Bhuptani through his superior officer stating that the RTO officers and traffic police were halting luxury buses and trucks on Ahmedabad to Amreli road and demanding the illegal gratification in the name of entry fee from them. That the complainant decided to arrange Page 2 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined for a decoy trap on 06/04/1991 and called the panch witnesses and in their presence the demonstration of anthracene powder and ultraviolet lamp was conducted. That they went from the ACB office to Naroda highway and to Vamaiya Farm situated about 20 kms away from Ahmedabad. That one luxury bus No. GJ-1-T-5225 was halted and the driver Mansukhbhai Bhodabhai Patel was explained about the application of Hiralal Bhuptani and he agreed to cooperate in the decoy trap. That the complainant gave him Rs.105/-, which were currency notes of the denomination of Rs.50/-,Rs.20/ and Rs.5/- and the currency notes were smeared with anthracene powder and placed in the pocket of the decoy driver Mansukhbhai Bhodabhai Patel. That the panch witnesses and the members of the raiding party sat in the luxury bus of the decoy driver and went from Vallabhipur to Bhavnagar three roads after necessary instructions were given to the decoy driver and panch witnesses. That they went to Bavla, Bagodara towards Vallabhipur and Bhavnagar three roads but they were not stopped at any placed and no occasion for the decoy trap arose and hence the complainant took the tainted currency notes from the decoy driver Mansukhbhai Page 3 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined Bhodabhai Patel and a panchnama was drawn. Thereafter one truck No. HR-26-1545 that was coming from Ahmedabad side and they halted truck and explained to decoy driver Akhtar Hussen Himmatkhan Sunni was explained about the decoy trap and he agreed to cooperate in the decoy trap. That the characteristics of anthracene powder and ultraviolet lamp were explained and the complainant gave Rs.120/- which were currency notes of the denomination of Rs. 50/- Rs.20/- and Rs.10/- and the currency notes were laced with anthracene powder and placed in the pocket of vest of the decoy driver Akhtar Hussen Himmatkhan Sunni. That the panch witness and the members of the raiding party sat in the truck and they left from Vallabhipur three roads and when the truck reached near Amreli Toll Plaza, the decoy driver Akhtar Hussen Himmatkhan Sunni halted the truck and took the papers and went into the Toll Plaza. That the driver required more money and called the cleaner and they came back to the truck and went towards Amreli. That when they reached near Amreli Circuit House three roads, a traffic police blew the whistle and halted the truck and the decoy driver Akhtar Hussen Himmatkhan Sunni Page 4 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined and the panch witness went to the traffic police. That the police asked for documents from the driver and the driver came to the truck and gave the documents and at that time, the police demanded for an amount of Rs.20/- as entry fee. That the decoy driver took Rs.20/- from the tainted currency notes, which were placed in the pocket of his vest and gave it to the police man and gave the predetermined signal and the members of the raiding party came and caught the accused. That the tainted currency notes were recovered from the left pant pocket of the accused. That the complaint was registered with ACB Police Station, Ahmedabad, which was registered as I-C.R.No.3 of 1997 on 06/04/1997 under Sections 7, 13(1)(d) and 13(2) of the PC Act. That the necessary panchnama was drawn and the Investigating Officer recorded the statements of the connected witnesses and after the order of sanction for prosecution was received, a charge sheet came to be filed before the learned Sessions Court, Amreli, which was registered as Special ACB Case No. 27 of 1992.
2.2] The accused was duly served with the summon and the accused appeared before the learned trial Court and after Page 5 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined the due procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 5 was framed against the accused and the statement of the accused was recorded at Exh: 6. The accused denied all contents of the charge and the evidence of the prosecution was taken on record.
2.3] The prosecution has produced the following oral evidences in support of their case.
Sr. P.W. Particulars Exh. No. 1. 1 V.N. Brahmbhatt 11 2. 2 Sendhabhai Narsibhai 15 3. 3 Gopalbhai Kadubhai Parmar 29 2.4] The prosecution has produced the following
documentary evidences in support of their case.
Sr. Particulars Exh. No. 1 Panchnama 10 2 Complaint 11 3 Slip of Muddamal Article No. 3 12 4 Application of Hiralal Bhuptani on 04/05/1990 18 5 Service book 25 6 Service record 26 7 Extract of the record of Amreli City Police 33 Station 8 Order of sanction for prosecution 37 Page 6 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined 2.5] After the closing pursis was filed by the learned APP
at Exh: 34, the statement of the accused under section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused denied the evidence and the accused himself stepped into the witness box and has deposed at Exh: 56, wherein, the accused denied all evidence produced against him and stated that the sanction is not proper and has stated that while the accused was on duty, he had halted the truck and demanded for papers from the truck driver and the truck driver had given the tainted currency notes of Rs.20 along with papers and the currency notes were placed below the papers. That as the papers were held by the accused and the tainted currency notes were placed below the papers, the fingers touched the currency notes and traces of anthracene powder came onto the fingers of the accused. That as the complainant, panch No. 2 and other members of the raiding party caught him, traces of anthracene powder were found on the outside portion of the pant but no anthracene powder was found in the pocket. That, after the evidence of the accused was closed, the arguments of the learned Additional Public Prosecutor and learned advocate for Page 7 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined the accused were heard and by the impugned judgment and order, the learned trial Court was pleased to find the accused guilty for the offence of punishable under Sections 7, 13(1)(d) and 13(2) of the PC Act and sentenced the accused to rigorous imprisonment of one year and fine of Rs.2,000/- and in default rigorous imprisonment for four months for the offence under Section 7 of the PC Act and to rigorous imprisonment of two years and fine of Rs.3,000/- and in default rigorous imprisonment for six months for the offence under Sections 13(1)(d) and 13(2) of the PC Act. The learned trial Court was further pleased to order that both the sentences to run concurrently.
3] Being aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant has filed the present appeal mainly stating that the impugned judgment and order passed by the learned trial Court is illegal, improper, unjust and against the settled legal position, against the facts and circumstances of the case and against the evidence on record. That the learned trial Court has erred in convicting the appellant merely on the evidence of the Trap Laying Officer and Page 8 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined the prosecution has examined only three witnesses to support the case. The complainant, who is alleged to have arranged for the trap, has given the complaint and was a very interested person to show that the trap was successful and the learned trial Court has not considered the contradictions in the deposition of the complainant and the panch witness. No independent witnesses, even though, present at the time of trap, have been examined before the learned trial Court and the panch witness who is an independent witness has categorically stated that he had not heard any demand of illegal gratification made by the accused. The panch witness has also admitted that before the deposition he had gone through the panchnama and hence the deposition of the panch witness does not inspired any confidence. The learned trial Court has not considered the explanation given by the appellant in support of his defense and the main defense of the appellant was that the truck driver had given the tainted currency notes along with the papers of the truck. That the tainted currency notes were placed under the papers and the accused had caught the papers and at that time the currency notes were under the papers and hence there were Page 9 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined no traces of anthracene powder found on the thumb of the accused. That the decoy truck driver has not been examined by the prosecution and the Investigating Officer has also not been examined by the prosecution. That there were other witnesses who were the members of the raiding party and they have not been examined by the prosecution but the same has not been considered by the learned trial Court. Moreover, the authority, who had given the order of sanction for prosecution, was not the competent authority to give the sanction as he was not the authority to remove the accused from the services. That the competent authority has just filled up the gaps in the draft printed form of order of sanction for prosecution and it is proved that the sanction was given without application of mind. That the prosecution has not proved all the ingredients of demand, acceptance and recovery and the accused cannot be convicted for the said offences and the impugned judgment and order of conviction may be quashed and set aside. 4] Heard learned advocate Mr. Premal Joshi for learned Mr. Pravin Gondaliya for the appellant and Ms. Jirga Jhaveri learned Additional Public Prosecutor for the respondent-State. Page 10 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024
NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined 5] Learned advocate Mr. Premal Joshi for Mr. Pravin Gondaliya for the appellant has submitted that the decoy driver was the most important witness as per the case of the prosecution, as the demand of illegal gratification was made by the accused from the decoy driver but the driver has not been examined and hence the demand has not been proved by the prosecution. The Investigating Officer, who has investigated the entire offence, has not been examined before the learned trial Court and as per the evidence of the complainant Vasantkumar Nanalal Brahmbhatt, an amount of Rs.20/- was demanded by the accused but in all Rs.25/- were recovered from the pant of the accused. The muddamal currency notes which were one currency note of the denomination of Rs.20/- and another currency note of Rs.5/- were recovered from the accused and they were bearing the same number, which is stated in the panchnama. Hence there is no explanation as to when the demand was for Rs.20, how the amount of Rs.25/- was found from the pocket of the accused. The complainant has not heard the conversation between the decoy and the accused and has not seen the transaction between the decoy and the accused. Page 11 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024
NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined That even the panch witness has not heard the conversation that took place between the decoy driver and the accused and the panch witness has stated that the police only asked for documents from the driver and at that time the driver took the currency notes and handed it over to the accused along with the papers. The panch witness has also stated that he had not seen whether the driver gave one currency note or two currency notes and it was only after reading the panchnama, he came to know that the accused had demanded Rs.20/- from the driver. The witness has also stated that one currency note of Rs.5/- was also recovered from the pant pocket of the accused. 5.1] Learned advocate Mr. Premal Joshi for learned advocate Mr. Pravin Gondaliya for the appellant has further stated that in the entire evidence, there is no evidence of demand as the panch witness and the complainant have not heard the demand and the driver Akhtar Hussen Himmatkhan Sunni, who was the best witness, who could depose about the aspect of demand, has not been examined before the learned trial Court and hence the demand and acceptance is not proved and the accused has raised a probable defense, which has not Page 12 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined been considered by the learned trial Court. Learned advocate further submits that the impugned judgment and order of conviction has eeb passed without appreciating the evidence on record and has urged this Court to set aside the judgment and order of conviction and acquit the accused from all the offences. 5.2] Learned advocate Mr. Premal Joshi for learned advocate Mr. Pravin Gondaliya appearing for the appellant has relied upon the following decisions in support of his case;
1. Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 SCC Online SC 1724;-
"74. 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 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 Page 13 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined 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, 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 in turn 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 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.
(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." (emphasis supplied) Page 14 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined
2. Rajesh Gupta Vs. State Through Central Bureau of Investigation, reported in 2022 SCC Online SC 1107; wherein the Apex Court in para 17 & 18 has observed 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.
18. In view of the foregoing, there is no iota of evidence by which the demand can be proved. Thus, the conclusion of the Trial Court and the High Court to prove the demand is based on surmises and erratic approach ignoring the legal position as enunciated, which cannot be sustained on the facts of the case."
3. K. Vijaykumar v. State of Tamil Nadu, reported in (2021) 3 Supreme Court Cases 687; wherein the Apex Court in para 26 and 27 has observed as under:-
"26. 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 Crl.A. @S.L.P. (Crl.) Nos.4729- 30 of 2020 gratification and mere possession or recovery of currency notes is not sufficient to 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." Page 15 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024
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27. 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. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1: (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779: (2009) 2 SCC (Cri) 1].
8. In the present case, the complainant did not support the prosecution case insofar 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 [email protected].(Crl.)Nos.4729-30 of 2020 to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P11 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 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.
9. Insofar 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 Sections 13(1)(d)(i) and
(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. Crl.A. @S.L.P. (Crl.) Nos.4729-30 of 2020 as the Page 16 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined 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."
The above said view taken by this Court, fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view"
as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record."
4. K. Shanthamma Vs. State of Telangana, reported in (2022) 4 Supreme Court Cases 574, wherein the Apex Court has observed in para 11, which reads as under:
11. In the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another1, this Court has summarised the well-
settled law on the subject in paragraph 23 which reads thus:
"23. 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. 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 Section 7 or 13 of the Act would not entail his conviction thereunder." (emphasis supplied) Page 17 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined 6] Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence and has stated that the complainant had the information on the application of one Hiralal Bhuptani and the complainant wanted to verify the complaint and hence arranged for the trap. That earlier the trap was in a luxury bus but that trap was unsuccessful and thereafter the decoy driver Akhtar Hussen Himmatkhan Sunni was halted and he had agreed to cooperate and the trap was arranged. That the accused was on duty and the accused had demanded for an amount of Rs.20/- as an entry fee and the decoy driver Akhtar Hussen Himmatkhan Sunni had given the amount to the accused. That the prosecution has proved all the ingredients of demand, acceptance and the recovery as the tainted currency notes were recovered from the possession of the accused, the presumption would be in favor of the prosecution and hence the impugned judgment and order passed by the learned trial Court is proper and does not require any interference. Learned Additional Public Prosecutor has urged this Court to reject the appeal of the appellant.
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NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined 7] Before appreciating the evidence produced by the prosecution before the learned Trial Court on record, it is necessary to reiterate the cardinal principles of jurisprudence as settled by the Apex Court in a catena of decision and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot take any benefit of the weakness of the defense. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent until he is proved guilty by the evidence adduced by the prosecution on record beyond reasonable doubts and the third cardinal principle is that the onus of burden never shifts from the prosecution. 8] As per the settled principles of law in conviction appeals, when the appellate Court finds that the findings of fact was based on a wholesome erroneous approach and the very basis of reasoning was not in the right perspective and the intrinsic merit of the evidence of the witness was not considered and the trial was perversely disposed of permitting manifest errors and glaring infirmities, the Appellate Court can interfere and to exercise the powers in a conviction appeal a finding on Page 19 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined merits after considering and meticulously dissecting the evidence on record is imperative. As far as the conviction under the P.C. Act is concerned, it is settled by the Apex Court that the prosecution has to prove the case beyond reasonable doubts and proof of demand is a sine qua non for an offence under the P.C. Act. That only if the demand is proved with cogent and convincing evidence, the prosecution would benefit by the presumption under Section 20 of the P.C.Act and the conviction would be sustained.
9] To bring home the charges leveled against the accused, the prosecution has examined Prosecution Witness No.1 Vasantkumar Nanalal Brahmbhatt at Exh; 9 and the witness was working as a Police Inspector in ACB Police Station at Ahmedabad and the witness has stated that he had received an application of one Hiralal Bhuptani from his superior officer. The allegations in the application were that the RTO officers and Traffic Police were demanding amounts of illegal gratification in the name of entry fees from the drivers of luxury buses and trucks and accordingly a driver Mansukhbhai Bhodabhai Patel of luxury bus No. GJ-1-T-5225 was asked to cooperate and a trap Page 20 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined was arranged but the trap was unsuccessful. Thereafter Akhtar Hussen Himmatkhan Sunni, the driver of truck No. HR-26-1545 was halted and the decoy trap was arranged, which was successful at the three roads of circuit house, Amreli. The witness has deposed about all the events that had unfolded and has produced the panchnama at Exh: 10 and the complaint at Exh: 11.
During the cross examination by the learned advocate for the accused, the witness has stated that as per the application of Hiralal Bhuptani, the buses and trucks from Ahmedabad to Amreli were halted by the RTO Officers or the Traffic Police and illegal gratification were demanded in the name of entry fees. The witness has stated that he does not know whether Hiralal Bhuptani had given his address in the application or not and as to whether Hiralal Bhuptani was a transporter or a bus owner. That no investigation in this regard was done and in the application, Hiralal Bhuptani did not mention the exact place where the illegal gratification was being taken. The application of Hiralal Bhuptani was dated 04/05/1990 and at that time, Hiralal Bhuptani was the President of the Congress, Ahmedabad Page 21 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined City and the application was sent from his superior officer and the application has been produced at Exh: 14. Perusing the application, this witness has stated that the address of Hiralal Bhuptani was mentioned in the application but he has not recorded the statement of Hiralal Bhuptani.
That after the trap with decoy Mansukhbhai Bhodabhai Patel was unsuccessful, he had taken the currency notes from the said Mansukhbhai Bhodabhai Patel and cleaned them but the currency notes were not checked in the ultraviolet lamp. That he had given the tainted currency notes worth Rs.105/- to decoy Mansukhbhai Bhodabhai Patel and the truck, which was being driven by Akhtar Hussen from Haryana and the truck driver did not know Gujarati language. That he would not be able to recognize Akhtar Hussen on the date of his deposition and he had not verified the identity of the truck driver. That the truck driver had stated that his name was Akhtar Hussen and hence he had believed the same. That after the currency notes were taken back from Mansukhbhai Bhodabhai Patel, other currency notes were used in the second trap and he did not hear the conversation between the accused and the decoy driver. Page 22 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024
NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined That he did not see the transaction between the decoy driver and the accused and he had, later on, come to know that the truck driver had got down from the truck and gone to the accused. That Head Constable Pratapsinh Zala was with the ultraviolet lamp and the places on the pant of the accused, where the traces of anthracene powder were found, were marked and he has affixed his signature and on those places and the signature of the panch witnesses were also taken. That no signatures were made on the inside of the pant pocket and the trap was arranged a month, after the application was received. That the panchnama was not drawn at the place of incident but at Circuit House in Room No. 9 and the panchnama was written by Police Inspector V.K.Ambaliya in his own handwriting. That his statement was not recorded by the Investigating Officer Simpi Saheb.
9.1] The prosecution has examined Prosecution Witness No. 2 Sendhabhai Narsibhai Sharma at Exh: 15 and this witness is the panch witness who was instructed to act as a shadow witness and be with the decoy driver at the time of the trap. The witness has supported the case of the prosecution and has Page 23 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined stated that he and the other panch witness Hiralal Ranchhodbhai Satasiya had gone to the ACB Police Station, Ahmedabad on 06/04/1991. The witness has narrated all the procedure that was undertaken by the Trap Laying Officer in the presence of the panch witnesses and they had gone along with the Trap Laying Officer and other members of the raiding party towards Amreli. The witness has stated that the truck was halted and the truck driver was named Akhtar and anthracene powder was applied on the currency notes, which were taken from the possession of Brahmbhatt Saheb. That the currency notes were given to the driver and when they went from Vallabhipur towards Amreli Circuit House, the truck was halted and the traffic police whistled and the driver halted the truck and went to the traffic police. That he had followed the driver and driver first went empty handed and came back to the truck to take the papers. That he did not hear the conversation between the driver and the police but the driver took the currency notes of Rs.20/- and gave it to the Constable, who accepted the same and placed in it in his left side pocket. That the driver gave the predetermined signal and the members of Page 24 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined the raiding party came and the currency notes were recovered from the pant pocket of the accused. That, Akhtar Hussen gave the remaining amount of Rs.100/- to Police Inspector Brahmbhatt Saheb and the panchnama was being written as the procedure was taken place and the last part was written in the circuit house.
During the cross examination by the learned advocate for the accused, the witness has stated that there was a cleaner in the truck and when they reached at the traffic point, there were a number of vehicles on road and a lot of loud noise. That, Brahmbhatt Saheb had not inspected as to whether the truck was overloaded or as to whether the driver had a driving license. That, when the accused and the decoy driver were having a conversation, he was about 10 ft. away and the traffic police and the driver were facing each other. That he was not standing behind between the driver but was diagonally behind the driver and after the driver went to the truck to bring the papers he guessed that the police had asked for the truck papers. That he had heard the accused asking the driver for the papers and license and tge demand was for the papers of the Page 25 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined truck. That police first asked only for the papers and at that time, the driver took the currency notes, which were with him and gave it along with the papers. That he did not heard any conversation about the demand for the money and only after he had read the panchnama and on the date of deposition, he knew that the accused had demanded for the amount of illegal gratification of Rs.20/- from the driver. That the panchnama was written at the Circuit House after all the events were concluded and there were no traces of anthracene marks on the thumb of the accused. That the marks of anthracene powder were found on the fingers of the accused.
9.2] The prosecution has examined Prosecution Witness No. 3 Gopalbhai Kadubhai Parmar at Exh: 29 and this witness has produced the order of sanction for prosecution at Exh: 31. The witness has stated that from May-1990 to 1994, he was working as the District Superintendent of Police, Junagadh and the papers of ACB Police Station being I-C.R.No. 3 of 1991 were sent to him for the order of sanction for prosecution. During the cross examination by the learned advocate for the accused, this witness has stated that he does not remember as to whether the Page 26 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined lien of the accused was in Amreli District or not and at the time of the incident, the accused was working under the District Superintendent of Police, Amreli District. That he does not know as to whether the accused was an adhoc employee or permanent employee and he was transferred to Junagadh District in December-1991.
10] On minutely appreciating the entire evidence adduced by the prosecution on record, the prosecution has produced the oral evidence of V.N. Brahmbhatt- the complainant at Exh: 9, Sendhabhai Narsibhai Sharma at Exh: 15 and the evidence of Gopalbhai Kadubhai Parmar at Exh: 29. As per the case of the prosecution, the trap was arranged on the basis of an application of one Hiralal Bhuptani at Ahmedabad and he had sent the application to the Superior Officer of the complainant V.N.Brahmbhatt, Police Inspector ACB Police Station and the application was forwarded to the complainant. That the application was received on 04/05/1990 and the complainant had decided to arrange for the trap on 06/04/1991. That though the application of Hiralal Bhuptani, which is produced at Exh: 14 had the address of Hiralal Bhuptani, the Page 27 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined statement of Hiralal Bhuptani was not recorded and in the application, there was no definite place as to where the amount of illegal gratification was being demanded for. The complainant decided to arrange for the decoy trap on the Ahmedabad-Amreli road and first the decoy trap was arranged with luxury bus No. GJ-1-T-5225 and the driver Mansukhbhai Bhodabhai Patel was the decoy but the trap was unsuccessful. Thereafter, the driver of Truck No. HR-26-1545 Akhtar Hussen Himmatkhan Sunni was halted and he had agreed to cooperate in the trap. It is pertinent to note that the prosecution has not examined the decoy driver Akhtar Hussen Himmatkhan Sunni and it has also emerged that there was a cleaner in the truck and the name of cleaner has also not come on record. That the decoy driver Akhtar Hussen Himmatkhan Sunni, who was the main witness to depose about the demand has not been examined and the demand is not proved by the prosecution beyond resaonable doubts. The panch witness Sendhabhai Narsibhai Sharma has clearly stated that that at the time of the trap, he was standing about 10 ft. behind the decoy driver and at that time there were a number of vehicles running on the road and it was very noisy Page 28 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined and hence he could not hear the conversation that had taken place between the complainant and the accused. The witness has stated that when the decoy driver went to meet the accused, he had gone empty handed but then returned to the truck and brought the papers and at that time he saw the truck driver placing the currency notes of Rs.20/- below the papers of the truck and giving it to the accused. The accused has raised a defense that he had halted the truck and asked for the license and papers of the truck but had not demanded for any illegal gratification and the decoy driver Akhtar Hussen Himmatkhan Sunni had placed the currency notes below the papers and given it to the accused, who had caught the papers along with the currency notes and the traces of anthracene powder were found on the fingers of the accused and not on the thumb of the accused.
11] The accused has stepped into the witness box and has deposed as Defense Witness No.1 at Exh: 56 and he has stated that he was working as a Police Constable in the year 1991 and was on duty at the traffic point along with the accused. That at that time, Truck No. HR-26-1545 had come from Lathi Road Page 29 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined going towards Amreli and he was told to halt the vehicle as it seems to be overloaded and he halted the truck and asked the driver for the papers. That at that time no person was with him and the driver gave the papers to him and immediately the members of the raiding party came and Brahmbhatt Saheb took the papers from him. That the papers were held by him between his thumb and his fingers and the papers were given to the panch witness by Brahmbhatt Saheb. That he came to know that one currency note of Rs.20/- and one currency note of Rs.5/- were kept below the papers and the members of the raiding party came and caught his hands and took him to the Circuit House. That marks of anthracene powder were found on the fingers but not on his thumb and he had not placed the currency notes in his pant pocket and as he was caught by the complainant and the members of the raiding party, his pant had traces of anthracene powder but there were no marks of anthracene powder inside his pant pocket. During the cross examination by the learned Additional Public Prosecutor, the accused has stated that on 06/04/1991 his duty was at the three roads near Kamani Forward High School and the truck seemed Page 30 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined overloaded and hence it was halted. That, before he could give the NC memo to the truck driver, the members of the raiding party came and caught him and he could not give the driver the NC memo. That he did not demand for any amount of illegal gratification of Rs.20/- and on seeing the truck he had felt that the vehicle was overloaded.
12] The accused has put up his defense and has stepped into the witness box and the defense of the witness is echoed by the panch witness who has stated that the decoy driver Akhtar Hussen Himmatkhan Sunni had given the papers and had placed the currency notes below the papers. The defense of the accused that the papers were caught by him between his thumb and his fingers and the currency notes were below the papers seems possible and in the deposition of the Trap Laying Officer, it has emerged on record that no traces of anthracene powder were found in the inside of the pant pocket of the accused. As per the case of the accused of the prosecution, the accused had accepted the tainted currency notes and had placed in his left side pant pocket and if the tainted currency notes was placed in the left side pant pocket, traces of anthracene powder would Page 31 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined have been found in the inside of the pant pocket of the accused. As far as the traces of anthracene powder on the pant of the accused is concerned, it is the defense of the accused that at that time, the complainant and the members of the raiding party had caught him and the traces of anthracene powder from the hands of the complainant would have come on to the pant of the accused, cannot be ruled out.
13] The complainant V.N.Brahmbhatt is the Police Inspector, ACB Police Station, Ahmedabad and he has arranged for the raid but he has not heard the demand and has not seen the acceptance. The only person who could effectively depose about the demand would have been the decoy driver Akhtar Hussen Himmatkhan Sunni but he has not been examined before the learned trial Court. The ingredients of demand and acceptance of illegal gratification are not proved beyond reasonable doubts by the prosecution as Prosecution Witness No.1 Vasantkumar Nanalal Brahmbhatt at Exh; 9 and Prosecution Witness No. 2 Sendhabhai Narsibhai Sharma at Exh: 15 who have been examined, have categorically stated that they have not heard the demand made by the accused.
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NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined 14] It is well settled law that for establishing the commission of offence punishable under the PC Act, a proof of demand of illegal gratification and acceptance of the gratification is a sine-qua-non and the presumption under Section 20 of the PC Act can be invoked only on proof of demand of illegal gratification by the accused and the acceptance thereof. When there is absence of proof of demand of illegal gratification, it is not sufficient to constitute the offence under the PC Act and the learned trial Court has misread the evidence and passed the impugned judgment and order of conviction mainly on the basis that the Trap Laying Officer has stated that the traces of anthracene powder were found on the hands of the accused. When, the accused has raised a plausible defense that the tainted currency notes were placed below the papers and given to him and when there is no evidence of demand and the evidence of the panch witness that he had seen the decoy driver Akhtar Hussen Himmatkhan Sunni placing the currency notes below the papers and giving to the accused, the possibility that the currency notes were given without the knowledge of the accused, seems probable and the Page 33 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024 NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined findings of the learned trial Court, that as anthracene powder were found on the hands of the accused, were sufficient to convict him, is not proper. The prosecution has not examined the Investigating Officer and besides the other panch witness and the other members of the raiding party have not also been examined. That the cleaner of the truck was also an independent witness and he too has not been examined before the learned trial Court and in view of the above, this Court is of the firm opinion that there is no reliable evidence to support the conviction of the accused and the prosecution has miserably failed to establish the offence charged against the accused. The learned trial Court has not appreciated the entire evidence in proper perspective but has misread the evidence of the prosecution and has not properly appreciated the defense of the accused when the accused himself has stepped into witness box to lend a probable defense. On perusal of the entire evidence on record, the infirmities in the case of the prosecution have come on record and it can be safely be said that there is no admissible evidence against the accused and the prosecution has failed to prove the case against the accused beyond reasonable doubts. Page 34 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024
NEUTRAL CITATION R/CR.A/438/2005 JUDGMENT DATED: 24/06/2024 undefined Consequently, the appeal succeeds.
15] The impugned judgment and order of conviction dated 25/02/2005 passed by the learned Special Judge (Fast Track Court No. 2), Amreli in Special (ACB) Case No. 27 of 1992 is hereby quashed and set aside and the appellant is acquitted from all the offences. Fine to be refunded to the appellant after proper verification. Bail bonds stand canceled. 16] Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO, J) VVM Page 35 of 35 Downloaded on : Fri Jul 12 21:25:28 IST 2024