Gujarat High Court
State Of Gujarat vs Babubhai Haksibhai Ninama on 1 April, 2024
NEUTRAL CITATION
R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2032 of 2006
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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STATE OF GUJARAT
Versus
BABUBHAI HAKSIBHAI NINAMA
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MANAN K PANERI(7959) for the Opponent(s)/Respondent(s) No. 1
MR MONAL S CHAGLANI(10240) for the Opponent(s)/Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 01/04/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against Page 1 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined the judgment and order of acquittal dated 01.06.2004 passed by the learned Special Judge, Joint District and Additional Sessions Judge, Fast Track Court No.8, Sabarkantha @ Modasa (Sabalpur) (herein after referred to as 'the learned Trial Court') in Special (ACB) Case No. 7 of 1997, whereby, the learned Trial Court has acquitted the respondent from the offences punishable under Sections 7, 13(1) (D), (1,2,3) & 13 (2) of the Prevention of Corruption Act. The respondent is hereinafter referred to as 'the accused' as he stood in the original case, for the sake of convenience, clarity and brevity.
2] The brief facts that emerge from the record of the case are as under:
2.1] That the accused was working as an unarmed, First Grade Head Constable Buckle No. 336 in Malpur Police Station at Sabarkantha in 1997 and was a public servant. That Jamnaben, the cousin of the complainant Bhurabhai Punjabhai Damor residing at village Agariya, Tal: Malpur, District: Sabarkantha had filed a complaint against the complainant i.e. Bhurabhai Punjabhai Damor and his brother Hurabhai in Malpur Police Station and the accused had demanded for an amount of Rs.700/- to release the Page 2 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined complainant and his brother on bail and for not beating them and had accepted an amount of Rs.700/- in the presence of witness witness Laxmanbhai. That the complainant Bhurabhai Punjabhai Damor and his brother had appeared before the Malpur Police Station with their sureties and at that time the accused had demanded Rs.2,000/- out of which Rs.200/- was accepted from the complainant and the complainant had stated that he would pay the remaining amount after 3 to 4 days. That the complainant could not pay the amount after 3 to 4 days as financial conditions was not good and the accused had continuously demanded for the remaining amount of Rs.1100/-. That the complainant promised to pay the amount on 23.04.1997. That as the complainant did not want to give the amount of illegal gratification, he filed the complaint with the A.C.B. Police Station, Himmatnagar under Sections 7, 13(1) (D), (1,2,3) & 13(2) of the Prevention of Corruption Act, which was registered at C.R.No. 3 of 1997 on 22.04.1997.
2.2] That the trap laying officer called the panch witness and arranged the trap on 23.04.1997 and the shadow witness Laxmanbhai went to the Malpur Police Station where the accused Page 3 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined demanded for an amount of illegal gratification. That the accused took the complainant, shadow witness and Laxmanbhai into the wireless room and accepted the amount of illegal gratification from the complainant and at that time the complainant gave predetermined signal and the member of the raiding party came and caught the accused red handed. That the Investigating Officer recorded the statement of the connected witnesses and after the sanction was received, charge-sheet was filed against the accused before the Sessions Court, Sabarkantha, which was registered as Special ACB Case No. 7 of 1997.
2.3] That, the accused was duly summoned after the due procedure under Section 207 of the Code of Criminal Procedure, 1973 was completed and a charge at Exh; 19 was framed against the accused and the statement of the accused was recorded at Exh: 20, wherein the accused denied the contents of the charge and the entire evidence of the prosecution was taken on record. 2.4] The prosecution filed the following oral and documentary evidence in support of their case.
Page 4 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined ORAL EVIDENCE Sr. Name Prosecution Exh: No. Witness No. 1 Bhurabhai Punjabhai Damor 1 22 2 Jethabhai Khusalbhai Parmar 2 25 3 Bhamarsinh Vadansinh Puvar 3 28 4 Gopalbhai Kalubhai Parmar 4 31 5 Hirabhai Gendabhai Damor 5 33 DOCUMENTARY EVIDENCE Sr. Particulars Exh: No. 1 Complaint of 23 2 Panchnama 26 3 Letter for muddamal currency notes 27 4 Yadi to allot Panch Witnesses of Police 29 Inspector, A.C.B., Ahmedabad Zone 5 Seizure Memo 30 6 Sanction for Prosecution 32 7 Letter with annexures of Police Inspector 35
Malpur Police Station to the A.C.B.Police Station, Himmatnagar 8 Extract of Case diary 36 9 First Information Report 37 10 Extract of Register of Malpur Police Station 38 11 Yadi 39 2.5] After the closing pursis was filed by the learned Additional Public Prosecutor at Exh: 40, the further statement of the accused under Section 313 of the Criminal Procedure Code, 1973 was recorded, wherein, the accused has stated that he is Page 5 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined innocent and he has not demanded and accepted any illegal gratification from the complainant. That the learned trial Court on appreciating the evidence of the prosecution found that the demand and acceptance was not proved by the prosecution and by the judgment and order dated 01.06.2004 acquitted the accused from all the offences.
3] Being aggrieved and dissatisfied with the impugned judgment and order of acquittal dated 01.06.2004, the appellant- State has filed the present appeal mainly stating that the judgment and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has erred in concluding that the prosecution has failed to prove the case against the accused beyond reasonable doubts. That the accused is a public servant working in the police department and is a member of the disciplined force and he has indulged in a grave offence of demanding and accepting illegal gratification from the complainant. That all the witnesses have deposed in favour of the prosecution and the learned trial Court has given undue importance to minor omission and contradictions and there was no valid and proper reason for the learned trial Court to discard the Page 6 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined evidence of the witnesses. That the recovery of the tainted currency notes is proved from the possession of the accused and there is ample evidence to show that there was demand and acceptance of the illegal gratification by the accused. That the learned trial Court has not appreciated the evidence of the panch witness and the evidence of Trap Laying Officer as also the Investigating Officer and hence have improperly acquitted the accused. That the impugned judgment and order is perverse and bad in law and has resulted in miscarriage of justice and hence the appeal must be allowed and the accused must be convicted for the said offence.
5] Heard learned Additional Public Prosecutor Ms. Jirga Jhaveri for the appellate-State and learned advocate Mr. Manan K Paneri for the respondent.
6] Learned Additional Public Prosecutor Ms. Jirga Jhaveri for the appellate-State has taken this Court through the entire evidence of the prosecution and has submitted that the complainant has supported the case of the prosecution and has clearly deposed that he had given Rs.400/- to the Trap Laying Officer and the remaining amount of Rs.700/- was given by the Page 7 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined Trap Laying Officer and the entire currency notes of Rs.1100/- was laced with anthracene powder and kept in his pocket. That when the complainant and the shadow witness went to the police station, the accused had demanded for the amount of illegal gratification tainted currency notes were recovered from the accused. That during the cross examination, the complainant has not entirely supported the case of the prosecution but the shadow witness, who had accompanied the complainant has supported the case of the prosecution and the entire case of the prosecution has proved from the evidence of the Trap Laying Officer and the evidence of the Investigating Officer. That in fact, the prosecution is proved all the ingredients of demand, acceptance and the recovery and hence the appeal must be allowed and the impugned judgment and order must be quashed and set aside and the accused must be convicted for the said offence.
7] Learned advocate Mr. Manan K Paneri for the respondent has submitted that the learned trial Court has appreciated all the evidence produced by the prosecution in proper perspective and has given proper reasons for acquitting the accused. That in fact, the complainant has not supported the case Page 8 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined of the prosecution and even the shadow witness has deposed to the effect that there was no demand whatsoever made by the accused. That it is settled principle of law that demand of illegal gratification is a sine qua non for any person to be convicted for the offence punishable under Section 7 , 13(1)(d) and 13(2) of the Prevention of Corruption Act and unless the prosecution proves the aspect of demand beyond reasonable doubts, the accused cannot be convicted for the said offence. That even for the presumption under Section 20 of the Prevention of Corruption Act, the demand must be proved beyond reasonable doubts and in the entire evidence of the prosecution there is no evidence whatsoever that any demand was made by the accused and hence the learned trial Court has rightly appreciated the entire evidence and acquitted the accused. That there is no perversity or illegality in the impugned judgment and order of acquittal and hence the appeal of the appellate must be dismissed.
7.1] Learned advocate for the accused has relied on the judgment of the Hon'ble Supreme Court in the case of Krishan Chander vs. State of Delhi reported in (2016) 3 Supreme Court Cases 108 in support of his case.
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NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined 8] Before the evidence of the prosecution is appreciated and dissected, it is essential to reiterate the cardinal principles of criminal jurisdiction as settled by the Honourable Apex Court in a Catena of decision and the first cardinal principle is that the prosecution in a criminal trial is required to prove the case against the accused beyond reasonable doubts and the prosecution cannot benefit from the weaknesses of defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless and until he is found guilty by the evidence produced by the prosecution beyond reasonable doubts and the third cardinal principle of law is that the onus of burden of proof never shifts from the prosecution.
9] At the outset, it would also be appropriate to refer to the decision of the Hon'ble Apex Court relied upon by the learned advocate for the respondent in the case of Krishan Chander (supra) wherein paras 35 to 38 , the Hon'ble Apex Court has observed as under: -
35. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the Page 10 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined case of B. Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant.
36. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus:-
"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. and C.M. Girish Babu v. CBI." (emphasis supplied)
37. In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under:-
"21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-vis 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.Page 11 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024
NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined
22. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj 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)&(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)&(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.
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)
(i)&(ii) of the Act and in absence thereof, unmistakably the Page 12 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined charge therefore, 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 Sections 7 or 13 of the Act would not entail his conviction thereunder."
(emphasis supplied)
38. Further, in the case of Satvir Singh v. State of Delhi [8], this Court has held thus:
"34. This Court, in K.S. Panduranga case has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the abovesaid decision is extracted hereunder: (SCC pp. 740-41, para 39)
39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section Page 13 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted." (emphasis supplied)
35. The learned Senior Counsel for the appellant has also placed reliance upon the case of Banarsi Dass referred to supra wherein it was held that (SCC pp. 456-57, para 24) "24. In M.K. Harshan v. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: (SCC pp. 723-24, para 8) '8. ... It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his Page 14 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification."
10] To prove the case against the accused, the prosecution has examined the PW No. 1 Bhurabhai Punjabhai Damor at Exh: 21 and the witness is the complainant, who has stated that his cousin sister Jamnaben Amrabhai Damor was married in Uka village in Rajasthan and she used to abuse the complainant stating that she was married at a wrong place and they had a dispute about the marriage of Jamnaben. That, Jamnaben and her father had filed a complaint against the complainant and his brother Hurabhai and at that time the accused had come to his house and had told that to come to the Malpur Police Station. That Laxmanbhai Bhurabhai of his village had mediated between them and when the accused had come to his house had demanded an amount of Rs.700/- but as the complainant had only Rs.200/-, he borrowed Rs.500/- from Ratnabhai Lakhabhai and gave to the accused in the presence of Laxmanbhai Bhurabhai. That the accused had told him to come with his brother to the Malpur Police station with their sureties. Page 15 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024
NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined That he went to the Malpur Police station with his brother Hurabhai and the Sarpanch and at that time, the Sarpanch told him that the accused had demanded for an amount of Rs.2000/- and as Rs.700/- was given, the remaining amount of Rs.1300/- was to be paid as illegal gratification. That the complainant had thereafter Rs.250/- with him, out of which, he gave Rs.200/- and the remaining amount of Rs.1100/- was to be paid on the fourth. That the accused had thereafter come about five times to his house and the complainant was told about the same by his father and the complainant went to the ACB Office at Ahmedabad and filed the complaint. That the complainant had Rs.400/- and the Trap Laying Officer Mr. Puvar gave him another Rs.700/-, and called the panch witnesses and the experiment of anthracene powder and ultraviolet lamp was done. That the currency notes were laced with anthracene powder and after the panchnama was drawn, the complainant, the panch witness No. 1 and Laxmanbhai went to Malpur Police Station. That, the accused was in the police station and demanded for the amount and they were called to the wireless room where the accused demanded for the amount of Rs.1100/-, which was given and the accused had accepted the amount, counted the same and placed it in the shirt pocket. That the Page 16 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined complainant gave the predetermined signal and the members of the raiding party came and caught the accused red handed and in the ultraviolet lamp, the fingers of the accused were found with blue florescent marks. That, the tainted currency notes were recovered by the panch witness from the pocket of the accused. During the cross examination, the witness has stated that the amount of Rs.1100-Rs.1200/- that was discussed with the accused was regarding the advocate fee, court expenses and court fees and the discussion was between Laxmanbhai and the accused. That Laxmanbhai thought that the amount was more and had taken him to the ACB Police Station at Ahmedabad and Laxmanbhai had discussed the entire matter with Mr. Puvar. That the complainant was sitting outside and after the complaint was written, he was merely asked to affix his thumb impression and he does not know what was written in the complaint as he does not know how to read. That he or the panch witnesses were not searched and the complaint and the panchnama were written by the constable and Mr. Puvar had dictated the same. That he had not discussed anything with the accused but the entire discussion took place between Laxmanbhai and the accused and the accused had not demanded the amount of Rs.1100/- as illegal gratification Page 17 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined and he has not given the same as illegal gratification and the accused has not accepted the same. That as Laxmanbhai and the accused had good relations, he had given an amount of Rs.1100/- to the accused for expenses of the Court. That he does not know where Mr. Puvar got the Rs.700/- from and he has not given Rs.500/- or Rs.200/- earlier to the accused but had given them to Laxmanbhai.
10.1] The prosecution has examined prosecution witness No. 2 Jethabhai Khusalbhai Parmar at Exh: 25 and this witness is the panch witness who has accompanied the complainant at the time of the trap. The witness has supported the case of the prosecution and has narrated the entire sequence of events from the time he was called to the ACB office and the experiment of anthracene powder and the ultraviolet lamp was done in his presence and the presence of the other panch witnesses as also the complainant and thereafter when he accompanied the complainant as a shadow witness to the police station, they were called to the wireless room and at that time the accused demanded for the amount and the complainant gave the tainted currency notes to the accused and the accused counted the same Page 18 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined and put it in his short pocket. That the witness went to the window and gave the predetermined signal and the members of the raiding party came and recovered the tainted currency notes of Rs.1200/- from the accused. That the necessary procedure was done and the panchanama was drawn and the signatures of all concerned were taken. During the cross examination, the witness has stated that Part-I of the panchnama and Part-II of the panchanama was dictated by Mr. Puvar and was written by the writer and he or the panch witness no. 2 has not dictated the panchnama. That after the panchnama was drawn, both the panch witnesses were told to affix their signatures and they have done so. That the panchnama was not drawn as events unfolded and the conversation had taken place between the accused and Laxmanbhai and not with the complainant.
10.2] The prosecution has examined the Prosecution Witness No. 3 Bhamarsinh Vadansinh Purvar at Exh; 28 and the witness is the Trap Laying Officer, who has recorded the complaint of the complainant has arranged the trap and had caught the accused red handed. During the cross examination, the witness has stated that the demand of Rs.1100/- was not made by the Page 19 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined accused in his presence and it was not accepted by the accused in his presence and during the trap proceedings, the members of the raiding party and the complainant and the panch witnesses were not searched. That the complainant had not produced any document regarding the complaint filed by Jamnaben and at the time of the trap, there were other persons in the PSO room but their statements were not recorded.
10.3] The prosecution has examined Prosecution Witness No. 4 Gopalbhai Kalubhai Parmar at Exh: 31 and this witness is the competent authority, who has given the order of sanction for prosecution. The witness was the District Superintendent of Police and he had given the order of sanction for prosecution, which is produced at Exh; 32. The witness has, during the cross examination, stated that along with the document, the ACB department had sent him the draft/ proforma for sanction for prosecution.
10.4] The prosecution has examined Prosecution Witness No. 5 Hirabhai Gendabhai Damor at Exh: 33 and this witness is the Investigating Officer, who has conducted the investigation and filed the charge sheet against the accused. During the cross Page 20 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined examination, the witness has stated that the complaint was filed by the complainant on 22.04.1997 but it was registered on 23.04.1997 after the trap was successful.
11] In the entire evidence of the prosecution, it is the case of the prosecution that the accused had demanded for the amount of Rs.1100/- from the complainant but there is no iota of evidence that the accused and the complainant had any direct conversation regarding any amount of illegal gratification. What emerges from the record in the entire evidence of the prosecution that the presence of Laxmanbhai is found throughout right from the time of the filing of the complaint to the going to the police station and having the conversation regarding the initial demand of Rs.2000/- and thereafter the demand of Rs.1300/- but no witness Laxmanbhai has been examined by the prosecution before the learned trial Court. The complainant has, during the cross examination, clearly stated that as he and his brother Hurabhai were to be produced before the learned Magistrate Court at Modasa, Laxmanbhai had told him that the advocate fees, court fees and other expenses would be around Rs.1100-1200/- and as Laxmanbhai and the accused had good relations, the accused was Page 21 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined to arrange for the court procedure and the amount was to be paid to the lawyer as lawyer fees and court procedure fees. That there is no evidence regarding the earlier demand of Rs.700/- or Rs.200/- and in fact the complainant has stated that earlier the amount was paid in the presence of his father but the father of the complainant has not been examined to prove the prior demand. That even the panch witness, who was present at the time of the trap, has categorically stated that the accused did not demand for any amount of illegal gratification from the complainant and the conversation had taken place between the accused and Laxmanbhai. That in the entire evidence, there is no iota of evidence of demand, which is a sine-qua-non for convicting the accused under the Prevention of Corruption Act. In the evidence of the prosecution, there is evidence that the tainted currency notes were recovered from the possession of the accused but mere recovery of the currency notes cannot constitute the offence under Section 13 of the Prevention of Corruption Act unless the prosecution proves the ingredient of demand beyond reasonable doubts. As per the judgment of the Hon'ble Apex Court in Krishan Chander (supra), the accused must have voluntarily accepted the amount knowing it to be a bribe and in the absence of proof of Page 22 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined demand for illegal gratification, the legal presumption under Section 20 of the Prevention of Corruption Act would not arise and it would not be sufficient to bring home the charge against the accused under Section 7 or Section 13(1)(d) of the Prevention of Corruption Act.
12] As discussed above and in light of the judgment of the Hon'ble Apex Court in the case of Krishan Chander (supra), the evidence of the prosecution is contrary and far from convincing and the learned trial Court has discussed all the aspects of the evidence in proper perspective and has given adequate reasons for acquittal of the accused. In the considered opinion of this Court, the learned trial Court is completely justified in acquitting the accused from all charges levelled against him and this Court finds no perversity, illegality or infirmity in the findings recorded by the learned trial Court and is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court.
13] This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned Page 23 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024 NEUTRAL CITATION R/CR.A/2032/2006 JUDGMENT DATED: 01/04/2024 undefined judgment and order dated 01.06.2004 passed by the learned Special Judge, Joint District and Additional Sessions Judge, Fast Track Court No.8, Sabarkantha @ Modasa (Sabalpur) in Special (ACB) Case No. 7 of 1997 is hereby confirmed. Bail bonds stand canceled.
14] Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 24 of 24 Downloaded on : Fri Apr 19 21:03:58 IST 2024