Gujarat High Court
Ramsingbhai Abdabhai Vasava vs State Of Gujarat on 16 April, 2024
NEUTRAL CITATION
R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1734 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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RAMSINGBHAI ABDABHAI VASAVA
Versus
STATE OF GUJARAT
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Appearance:
MR BRIJESH K RAMANUJ(9898) 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 : 16/04/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant under Section 374 of Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Page 1 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined Special Judge, Fast Track Court No. 5, Bharuch, (hereinafter referred to as "the learned Trial Court") in Special Corruption Case No. 6 of 1999 on 30.07.2005, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Sections 7, 13(1)
(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC 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 That the accused was working as an Assistant Sub-
Inspector, Buckle No. 1137 in Nabipur Police Station, Zanor Beet and was a public servant. That the complainant Melabhai Mohanbhai Vasava residing at Navinagari, Orpatar, Zanor, Taluka and District Bharuch was doing the retail sale of fish besides the bus stand and on 21.01.1999, at around 10.00 am Babubhai Valibhai and his sister had Page 2 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined come to buy fish and had asked for the price of one kilo fish and he had stated that it was Rs. 60/- per kilo and they had bought one kilo fish. That after half an hour, Homeguard Babubhai came to his house and told him that he had taken more price for the fish and had given less fish and had threatened that he would file a police case against him. That at around 11.30, one policeman Maheshbhai came to his house and told him that the accused was calling him and he went to the police gate which was situated near Zanor Bus Stand. That the accused met him and told him that Babu had filed a complaint and he would have to go to Nabipur Jail and had demanded an amount of Rs. 1000/- to settle the case. After bargaining the amount was fixed at Rs. 700/- and as he had Rs. 500/- with him, he had given the accused the amount of Rs. 500/- and had stated that the remaining amount of Rs. 200/- would be paid later and at that time, the accused told him to pay the amount on Saturday till 06.00 pm. That the complainant did not want to pay the amount of illegal gratification and hence, filed the complaint with the ACB Police Station, Bharuch which was Page 3 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined registered at C.R. No. 2/1999 on 23.01.1999. The Trap Laying Officer called the panch witnesses and after the experiment of anthracene powder and the ultraviolet lamp was carried out and explained to the panch witnesses and the complainant, the trap was arranged and on 23.01.1999, the accused was in Zanor Police Gate and he accepted the amount of illegal gratification of Rs. 200/- from the complainant and after the predetermined signal was given, the members of the raiding party rushed in and the accused was caught red handed. That after the statements of the connected witnesses were recorded and the panchnama was drawn, the Investigating Officer filed the charge-sheet before the Sessions Court, Bharuch which was registered as Special Corruption Case No. 6/1999.
2.2. That the accused was duly served with the summons and the accused appeared before the learned Trial Court and after the procedure under Section 207 of Code of Criminal Procedure, 1973, the charge was framed by the learned Trial Court at Exh. 5 and the statement of the accused was recorded at Exh. 6. The accused denied all the Page 4 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined contents of the charge and the entire evidence of the prosecution was taken on record.
2.3 The prosecution produced the following oral evidence to bring home the charge against the accused.
Sr. No. PW Particulars Exh. 1. 1 Melabhai Mohanbhai 10 2. 2 Nitish Rajsinh Solanki 13 3. 3 Shankarbhai Ambalal Patel 15 4. 4 Pratapbhai Khatariyabhai 18 5. 5 Dr. Vijay Patel 21 6. 6 Dineshbhai Sumra 22 7. 7 N.B Koralwala 34 8. 8 R.L. Parmar 49 2.4 The prosecution also produced the following
documentary evidence to bring home the charge against the accused.
Sr. No. Particulars Exh.
1. Order of sanction for prosecution 142. Complaint 35 3. Yadi 36 4. Seizure list 37 5. Panchnama 38 6. Arrest panchnama 50 2.5 That after the closing pursis was submitted by the learned APP at Exh. 51, the further statement of the Page 5 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined accused under Section 313 of Code of Criminal Procedure was recorded, wherein, the accused denied all the allegations and stated that on 02.01.1999, Homeguard Yakub @ Babubhai had given a complaint against the complainant which was taken down in the handwriting of Unarmed Constable - Maheshbhai Laxmanbhai Prajapati and the complainant was called and his statement was recorded. That Mohanbhai - the father-in-law of the complainant and Mehboobaben - sister of the complainant were also present and their statements were recorded and the Chapter Case No. 12/1999 under Section 107 of the Code of Criminal Procedure was filed against the complainant - Melabhai, his father-in-law Mohanbhai and his mother-in-law Amrutben before the Executive Magistrate, Bharuch. That the complainant was angry as the case was filed and even though the accused had refused to take any amount, the currency note was forcibly put in to the hand of the accused and a false case has been filed against him. The accused had also examined defence witness Yakub Vali Ismail in support of his case. Page 6 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024
NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined 2.6 That after the arguments of learned APP and learned advocate for the accused were heard, the learned Trial Court was pleased to convict the accused and sentence the accused to rigorous imprisonment of one year and six months and fine of Rs. 2,000/- and in default, rigorous imprisonment of three months for the offence under Section 7 of the PC Act, and to rigorous imprisonment of one year and six months and fine of Rs. 2,000/- and in default, rigorous imprisonment for three months for the offence under Section 13(1)(d) read with Section 13(2) of the PC Act. The learned Trial Court was pleased to order that both the sentences were to run separately.
3. Being aggrieved by and dissatisfied with the said judgement and order of conviction, the accused has filed the present appeal mainly stating that the accused is innocent and has been falsely implicated and the impugned judgement and order is erroneous in facts as well as in law. The learned Trial Court has not properly appreciated the evidence on record according to the settled principles of criminal jurisprudence and it has caused a failure of justice. Page 7 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024
NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined That the prosecution has failed to prove the case by legal, reliable and unimpeachable evidence and has failed to appreciate that the defence has been probabilized. That the learned Trial Court has drawn inferences against the defence in favour of the prosecution and has committed a serious error of law in relying on the complainant who has partly supported the defence version and has been declared hostile by the prosecution. That in the evidence it is on record that the panch witness had not heard the conversation between the complainant and the accused and had not witnessed the passing of the currency note and the evidence of the panch witness requires corroboration but the learned Trial Court has failed to appreciate the same. That even the sanction for prosecution was not legal and valid as it was given after non-application of mind and the demand, acceptance and recovery are not proved by any evidence of the prosecution. That the impugned judgement and order is required to be set aside and the accused must be acquitted for all the offences.
4. Heard learned advocate Mr. Devansh Kakkad for Page 8 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined learned advocate Mr. Brijesh K. Ramanuj for the appellant and learned APP Ms. Jirga Jhaveri for the respondent State. Perused the impugned judgement and order of conviction and have reappreciated the entire evidence of the prosecution on record of the case.
5. Learned advocate for the appellant has submitted that the prosecution has examined eight witnesses and relied on six documentary evidences and there are material contradictions in the depositions of the witnesses mainly the complainant and the panch witnesses. That the complainant and panch witness have turned hostile and even during their cross-examination, no evidence to support the case of the prosecution has come on record. That mere recovery of the currency notes from the accused without establishing demand, would not amount to an offence under the PC Act and material witnesses namely Yakubbhai Valibhai @ Babubhai and Maheshbhai - the Police Constable who were present at the police chowki have not been examined by the prosecution. The defence of the accused is that the case is a counter blast to the Chapter Page 9 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined Case registered by the appellant against the relatives of the complainant but the learned Trial Court has not considered the same. Moreover, the use of anthracene powder states that light brown gloss colour was found on the currency notes instead of florescent blue colour and this shows that the anthracene powder was not properly used. That the impugned judgement and order is erroneous and illegal and on the basis of the evidence produced by the prosecution which is full of infirmities and irregularities, the accused cannot be convicted and hence, the judgement and order of conviction must be set aside and the accused must be acquitted from all the offences.
5.1 Learned advocate Mr. Devansh Kakkad for learned advocate Mr. Brijesh K. Ramanuj for the appellant has relied on the judgement of the Hon'ble Apex Court in Krishan Chander Vs. State of Delhi reported in AIR 2016 SC 298 in support of his case.
6. Learned APP Ms. Jirga Jhaveri for the State has submitted that the prosecution has proved the case beyond Page 10 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined reasonable doubt and the learned Trial Court has appreciated all the evidences properly in its true perspective. That no order of interference is required in the judgement and order and the appeal of the appellant must be rejected and the judgement and order of conviction must be confirmed.
7. Before dissecting the evidences adduced by the prosecution on record before the learned Trial Court, it is essential to reiterate the cardinal principles of Criminal Jurisprudence as settled by the Apex Court in a catena of decisions and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot claim any benefit of the weaknesses of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution. Page 11 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024
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8. As per the settled principles of law, in conviction appeals, when the Appellate Court finds that the findings of facts was based on wholesome erroneous approach and the very basis of reasoning was not in the right perspective and the intrinsic merit of the evidence of the witnesses was not considered and the trial was perversely disposed of, permitting manifest error and glaring infirmities, the Appellate Court can interfere and set aside the judgement and order of conviction. To exercise this powers in a conviction appeal which is a finding on merits, after considering and meticulously dissecting the evidence produced by the prosecution on record is imperative and hence, the entire evidence produced by the prosecution is meticulously dissected and reappreciated.
9. At the outset, it would be appropriate to refer to the observations of the Apex Court in the case of Krishan Chander (supra) relied upon by the learned advocate for the appellant, wherein, the Apex Court in para 34 and 35 has observed as under:
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34. 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 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. 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."
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, Page 13 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined 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.
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 Page 14 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined 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 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."
35. Further, in the case of Satvir Singh v. State of Delhi (2014) 13 SCC 143 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) Page 15 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined "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 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."
10. To bring the home the charge against the accused, the prosecution has examined PW1 - Melabhai Mohanbhai Vasava at Exh. 10 and this witness is the complainant and he has stated that the sister of Babubhai who is a Page 16 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined Homeguard had come to buy fish and she had bought one kilo fish at the rate of Rs. 60/- per kilo and thereafter, Babubhai came to his house and told that he had taken more amount for the fish and threatened to file a case against him. That the police had come to call him and he had gone to the Police Chowki where he met the accused and at that time, the accused, Babubhai and the policemen were in the Police Chowki. That the accused had demanded for an amount of Rs. 700/- and he took Rs. 500/- from Babubhai - Homeguard and gave the accused and had promised to pay the remaining amount of Rs. 200/- later on. That he had gone to the ACB Office and filed the complaint. That he had given Rs. 200/- which were four currency notes of the denomination of Rs. 50/- each and the policeman - Shankarbhai had taken some powder from the cupboard and applied on the currency notes and had showed the currency notes in the battery light in the presence of the panch witnesses and they had gone to Zanor in the government vehicle. That he and the panch witness went and the accused was in the Police Station and he alone Page 17 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined went inside and the panch witness was standing outside. That he took the tainted currency notes and placed it on the table and went outside and gave the predetermined signal and the accused also came outside. That the ACB Officers and the panch witness came and the accused tried to run away but fell down and his foot was injured and hence, a doctor was called and he was treated but he does not know what happened to the currency notes that he had placed on the table. The complainant has been declared hostile and has not supported the case of the prosecution and during the cross-examination by the learned advocate for the accused, the witness has stated that he does not know how the police had seized the tainted currency notes and no marks were made on the currency notes. That he cannot say as to whether the muddamaal currency notes were the same which he had produced before the ACB Police and when he went to give the amount to the accused, the accused had not demanded for any amount. That no panchnama was drawn in his presence and a relative who is working as a peon in the school had informed him about the Page 18 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined ACB and also had helped him with the complaint. That when he went to file the complaint, the panch witnesses were already sitting in the ACB Office and the accused had in fact, helped him to settle his case with Babubhai. 10.1 The prosecution has examined PW2 - Nitishrajsinh Dahyabhai Solanki at Exh. 13 and the witness is the authority who has given the sanction for prosecution which is produced at Exh. 14.
10.2 The prosecution has examined PW3 - Shankarbhai Ambalal Patel at Exh. 15 and this witness is the ASI, ACB Police Station, Bharuch who was the member of the raiding party and he has full supported the case of the prosecution. The witness has conducted the experiment of the anthracene powder and the ultraviolet lamp and he has stated the entire chronology of events that had taken place. The witness has thereafter, stated that after the complainant had given the predetermined signal, the members of the raiding party rushed and at that time, the accused had ran towards the south and as there were Page 19 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined broken stones, fell down and had sustained a fracture on his left leg. That the papers which were in his left hand fell on the ground and the panch witness no. 1 was asked to pick up the crumpled papers. That Dr. Vijaybhai S. Patel was called and the accused was treated and on doing the test of the ultraviolet lamp, the traces of anthracene powder were found on the right hand thumb and fingers of the accused. That the paper which was thrown by the accused also had the currency notes of Rs. 200/- and traces of anthracene powder. The witness has further stated that the complainant had given the tainted currency notes to the accused and the accused had told him to put it on the table and at that time the accused picked up the tainted currency notes and put it in a blank paper and at that time, the complainant had given the predetermined signal. During the cross-examination, the witness has stated that when he went, the accused was not in the police gate and no currency notes were found from the pant or shirt pockets of the accused. That he had not spoken to the accused and the accused was admitted to Civil Hospital, Bharuch for Page 20 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined treatment. That the ultraviolet lamp was not switched on in the Zanor Police Gate.
10.3 The prosecution has examined PW4 - Pratapbhai Khatariyabhai at Exh. 18 and the witness is the shadow witness and has supported the case of the prosecution and has stated that when he went to the Police Station with the complainant, the accused had demanded the amount of Rs. 200/- which were given by the complainant and the accused had told the complainant to place it on the table. That the accused took a blank paper and took the currency notes from the complainant with his right hand, folded them and placed it in the blank paper which was in his left hand and at that time, the complainant gave the predetermined signal. During the cross-examination by the learned advocate for the accused, the witness has stated that no conversation for the illegal gratification of Rs. 200/- had taken place with the complainant and he has not heard any conversation between the complainant and the accused. That he had not seen any paper when the accused had fallen down and he had merely affixed his signature as told Page 21 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined by the ACB Officer. That the officer - Koralwala was writing the panchnama in the Bharuch ACB Office and he had not read the panchnama. Moreover, the witness has categorically stated that he had signed the panchnama in the ACB Office and the other panch Dineshbhai had also signed at that time. That he had affixed his signature at all the places where he was asked to do by Koralwala Saheb. 10.4 The prosecution has examined PW5 - Dr. Vijaybhai Sudambhai Patel at Exh. 21 and the witness has stated that on 21.03.1999, he was called to the Police Station and he had gone to Zanor Police Gate and the accused had hurt his foot. That he dressed the foot and as he felt it was fractured, he advised them to take him to Bharuch Civil Hospital. The witness has been declared hostile and has not supported the case of the prosecution and during the cross- examination, he has stated that he had merely given primary treatment to the accused. That he does now know about any other procedure that was being done in the Zanor Police Gate and when he had examined the accused, he was in much pain and could not speak properly. Page 22 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024
NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined 10.5 The prosecution has examined PW6 - Dineshbhai Govindji Sumra at Exh. 22 and this witness is the panch witness who was with the members of the raiding party. This witness has supported the case of the prosecution and has narrated all the events that had taken place from the time he was called as a panch witness till the trap. During the cross-examination, the witness has stated that earlier he had gone as a witness in the Valia Case in the year 1999 and Mr. Koralwala was the ACB Inspector. That in that trap also, the panchnama, anthracene powder and ultraviolet lamp procedure was done and he knew the characteristics of anthracene powder and ultraviolet lamp from the Valia unsuccessful trap case. That he knows Head Constable - Sitaram of the ACB Office from the time that he had gone with the ACB Officer for the raid at Valia and had also gone for the raid at Zanor. That he is well aware of the procedure of the panch in the ACB Case. That in the ACB Office, the Constable Singhabhai was writing the panchnama which was being dictated by Mr. Koralwala and he had affixed his signature on being asked by Mr. Koralwala. That he does Page 23 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined now know what had taken place inside the Zanor Police Gate and the second part of the panchanama was also written by Singhabhai and dictated by Mr. Koralwala. 10.6 The prosecution has examined PW7 - Nareshchandra Bhikhabhai Koralwala at Exh. 34 and this witness is the Trap Laying Officer who has recorded the complaint of the complainant and has thereafter, arranged for the trap. The witness has narrated all the chronology of events that had unfolded and during the cross-examination by the learned advocate for the accused, the witness has stated that the matter was settled between the complainant and Babubhai and he was not informed about the same and the panchnama was dictated by the complainant and the panch witness no. 1 and Jamadar Sindhabhai was writing the same.
10.7 The prosecution has examined PW8 - Ramanbhai Laxmanbhai Parmar at Exh. 49 and this witness is the Investigating Officer who has recorded the statements of the connected witnesses and has filed the charge-sheet before Page 24 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined the Sessions Court. During the cross-examination, the witness has stated that the case was initiated because of Yakubali Patel @ Babubhai and the complaint of Mehmudaben and they are important witness and they have been cited as independent witnesses in the charge-sheet. That he has not investigated as to what has happened in the Chapter Case between the complainant and Babubhai. 10.8 During the further statement of the accused, the accused has taken a defence that he had filed the Chapter Case against the complainant and his father-in-law and mother-in-law and the accused had examined Yakubali Ismail at Exh. 56. The witness has stated that he had a fight with the complainant about the fish purchased by his sister Mehmuda and the complainant had abused him and hence, he had gone to Zanor Police Chowki and filed the complaint. That the constable had gone to call the complainant who had come to the Police Chowki and in his presence the complainant had told the accused to take the money and settle the case but the accused had refused. That the accused had not demanded any amount from the Page 25 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined complainant and during the cross-examination, the witness has stated that he did not go to the Zanor Police Station on the day of the trap but had gone to the Zanor Police Chowki on the day he had filed the complaint against the complainant.
11. On meticulous dissection of the entire evidence of the prosecution, in the evidence of the complainant, the complainant had stated that he had placed the tainted currency notes on the table, whereas, the panch witness - Pratapbhai Khatariyabhai states that the accused had taken the tainted currency notes and placed them in a blank paper which was in his left hand. Moreover, the panch witness has also stated that there was no conversation about the illegal gratification between the complainant and the accused and the complainant has stated that the panch witness was standing outside and he alone had gone in the Zanor Police Gate. In the complaint, the complainant has stated that earlier he had taken Rs. 500/- from Babubhai and had given the accused and the accused has examined Babubhai @ Yakubvali Ismail at Exh. 56, but the witness Page 26 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined has not stated anything to this effect. There is nothing on record to show that the currency notes were found from the possession of the accused and there is evidence to the effect that the accused had tried to flee and he tripped on a stone and fell and fractured his foot. Moreover, there are major contradictions in the writing of the panhnama as the panch witness has clearly stated that the panchnama was dictated by Police Inspector Mr. Koralwala and it was written by Police Constable Mr. Singhabhai in the ACB Police Station at Bharuch. There is also evidence to the effect that no test of ultraviolet lamp was conducted in the Zanor Police Gate and the independent witness - PW5 - Dr. Vijaybhai Sudambhai Patel has also not supported the case of the prosecution and has stated that he does not now about any procedure that had taken place and when he had gone to treat the accused, the accused was in much pain and he was not in a position to say anything. As per the case of the prosecution, prior demand was made by the accused in the presence of Babubhai and at that time, Mehmudaben was also present in the Police Chowki but there is no evidence Page 27 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined regarding any prior demand or demand at the time of trap and babubhai though examined, has not stated anything about demand and Mehmudaben has not been examined by the prosecution. That the complainant - Melabhai Mohanbhai Vasava and panch witness - Shankarbhai Ambalal Patel have both turned hostile and have not supported the case of the prosecution and in the absence of any cogent, convincing and clear evidence of demand, the accused could not be convicted for the offence under the PC Act.
12. As per the judgement relied upon by the learned advocate for the appellant in case of Kishanchandra (supra), the Hon'ble Apex Court had observed that the demand of bribe money is a sine qua non to convict the accused and mere recovery of tainted currency notes would not constitute the offence under the PC Case. In the instance case, as far as recovery is concerned, there are major contradictions in the evidence and the complainant had stated that he had placed the tainted currency notes on the table, whereas, the other witnesses have stated that the Page 28 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined tainted currency notes were found in a crumpled paper at the place where the accused had tripped and fallen. That there is no iota of evidence regarding any demand and even if it is believed that the tainted currency notes were recovered, the presumption under Section 20 of the PC Act would not be available to the prosecution as the demand has not been proved beyond reasonable doubts. That even though the prosecution had the evidence of independent witnesses such as Yakubvali Ismail @ Babubhai and Police Constable - Maheshbhai who was the police constable who had gone to call the complainant and was in the Zanor Police Gate at the time when the accused had made the prior demand, they have not been examined by the prosecution.
13. In view of the above discussions, as the prosecution has failed to bring home the charge against the accused and has miserably failed to prove the prior demand, in the considered opinion of this Court, the conviction of the appellant under the PC Act could not have been invoked. That there is no reliable evidence to support the conviction Page 29 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024 NEUTRAL CITATION R/CR.A/1734/2005 JUDGMENT DATED: 16/04/2024 undefined of the appellant and the learned Trial Court has failed to appreciate the evidence of the prosecution in proper perspective and has come to a wrong conclusion and had convicted the appellant. That the entire evidence is contradictory and far from convincing and requires interference and hence, the appeal succeeds and the impugned judgement and order of conviction passed by the learned Special Judge, Fast Track Court No. 5, Bharuch, in Special Corruption Case No. 6 of 1999 on 30.07.2005 is quashed and set aside. The appellant is acquitted from all the charges levelled against him.
14. Bail bond stands cancelled. Fine to be refunded to the appellant after due verification. Record and Proceedings be sent back to the Trial Court forthwith.
(S. V. PINTO,J) VASIM S. SAIYED Page 30 of 30 Downloaded on : Fri May 03 21:04:44 IST 2024