Gujarat High Court
Mahendra vs State on 12 August, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/138/1998 25/ 25 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 138 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2.
To
be referred to the Reporter or not ?
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5.
Whether
it is to be circulated to the civil judge ?
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MAHENDRA
AMRATLL KAYASTHA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance
:
MR
KB ANANDJIWALA for Appellant(s) : 1,MR MJ BUDDHBHATTI for
Appellant(s) : 1,
MR RC KODEKAR ADDITIONAL PUBLIC PROSECUTOR for
Opponent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 12/08/2011
CAV
JUDGMENT
1. The appellant, at the relevant time, in the year 1992, was working as Mamlatdar of Kamrej, District Surat. The allegations levelled against the said appellant were of demanding and accepting the illegal gratification, other than legal remuneration. Therefore, he was put on trial for the commission of the offences under Section 7 and 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The learned Special Judge, Surat, in Special Case No.1 of 1994 passed judgment and order of conviction and sentence dated 28th January, 1998, whereby the learned Sessions Judge was pleased to convict the appellant-accused under Section 7 of the Prevention of Corruption Act and awarded sentence to the appellant to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.1000/-, i/d, to further undergo simple imprisonment for 2 months. The appellant was also ordered to suffer rigorous imprisonment for two years and to pay a fine of Rs.2000/-, i/d, to suffer simple imprisonment for two months for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. All the sentences shall run concurrently.
2. According to the prosecution, the original complainant - Sanjay Sanmukhlal was working as Power of Attorney on behalf of Sarabibi Ibrahimbhai in respect of the land. The land being new tenure and, therefore, for converting the same into old tenure for residential purpose, as a Power of Attorney, the complainant approached Dy. Collector, Olpad, Prant office at Surat by way of application and record for inspection was given to appellant - Mamlatdar, Kamrej. The complainant met the appellant with regard to the proceedings of the land and the appellant demanded Rs.10000/- towards illegal gratification from the complainant for doing the same work. Thereafter, the complainant after having taken the amount of Rs.10,000/- from his uncle Dineshbhai went to the ACB office at Surat and complaint was lodged against the appellant - accused. After completing usual formalities, the trap was arranged by ACB parties and first part of the panchnama was prepared. Thereafter, ACB members including the complainant reached at Kamrej cross roads, where the accused was not there, therefore, they reached at the residence of the accused. Thereafter, again the complainant and raiding party members of ACB reached at Karmrej four cross road, the accused met the complainant and they reached at Manisha Hotel for taking dinner. At Manisha Hotel, the accused demanded Rs.10,000/- as illegal gratification and the complainant gave the same to the accused. Immediately, after giving the amount, the complainant made prearranged signal to the ACB parties and amount Rs.10,000/- was recovered from the pant of the accused.
3. After usual investigation, the Investigating Agency submitted the charge-sheet. The prosecution had examined the witnesses and got exhibited a large number of documents. The witnesses examined by the prosecution viz. PW-1, Pramodbhai Ishwarbhai Parmar, working as a Clerk in RTO Office at Exhibit 9, PW-2, Sanjaykumar Sanmukhlal Patel, complainant at Exhibit 17, PW-3, Rameshchandra Chhaganlal Rana, P.I. ACB Office at Exhibit 19 and P.W.4 - Jayantilal Ichhchhubhai Patel, P.I. Mahidharpura, Surat City at Exhibit 20. Thereafter, the documentary evidence viz. complaint at Exhibit 18, Panchnama at Exhibit 13, recovery panchnama at Exhibit 14, Notification of holiday at Exhibit 15, sanction letter at Exhibit 21 and charge-sheet at Exhibit 6 were produced. The appellant was put on trial, where he abjured his guilt and claimed to be tried and the learned Judge has recorded the statement of the present appellant-accused under Section 313 of the Code of Criminal Procedure, 1973. The accused submitted his written reply at Exhibit 23.
4. As stated above, the learned Special Judge, Surat, who tried the case against the accused, after appreciating the evidence on record, found the case against accused proved and convicted him for offence alleged as stated above.
5. Learned advocate Mr. K.B. Anandjiwala appearing on behalf of the appellant submitted that there is no evidence to convict the appellant for the offences for which the appellant has been held guilty. He further submitted that the charge at Exhibit 6 was framed against the accused under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and from the evidence of P.W.1 to P.W.4, the learned Special Judge has convicted present appellant for the offence alleged. Learned advocate further submitted that the judgment and order passed by the learned Special Judge is not just and proper and against the provisions of the Prevention of Corruption Act. He submitted that the defence of the accused is totally ignored so far as the prosecution case is concerned. The accused explained that when he was standing at the counter of Manisha Hotel, the complainant attempted to thrust money into the pant-pocket, but, the accused resisted. He further submitted that the muddamal pant which is alleged to have been seized by the police, did not belong to the accused. Therefore, as per his submission, the learned Special Judge has not considered this material aspect, while passing the judgment and order of conviction and sentence.
6. Learned advocate Mr. Anandjiwala submitted that the sanction to prosecute the accused is an important aspect to initiate the proceedings against the accused. If the sanction is granted without application of mind and the same is accorded by a person who is not the competent Authority to accord the same and it would vitiate the whole trial. The sanctioning authority is not examined and hence, there is no evidence on record to show as to whether any papers were sent to him and whether the Authority had considered all the papers and after considering the papers, the Authority accorded the sanction. He further submitted that the accused had no advantage of cross-examining the witness on the aspect as to whether the authority is competent authority to remove the accused from service. If he is not the competent Authority to remove the accused, he cannot be the sanctioning authority competent to accord sanction. He further submitted that the sanction order has been produced through the evidence of Jayantilal Ichhchhubhai Patel, P.I., ACB vide Exhibit 21 and this witness produced simply the same and objection was raised regarding exhibiting the said document vide Exhibit 21. However, the trial Court did not give any verdict on the same. In the cross-examination, this witness had stated that he did not do anything to get the sanction from the competent Authority. Therefore, there is no evidence worth the name as to whether any papers were sent to the competent Authority by the Director of ACB, Ahmedabad or the Assistant Director, ACB, Vadodara. Learned advocate further submitted that the sanctioning authority accorded sanction to prosecute vide Exhibit 1, however, the Deputy Secretary, Revenue Department is not the competent Authority. He further submitted that the competent authority is not put to the witness-box or offered for cross-examination to the accused, hence, grave prejudiced has been caused and therefore, illegality which has been committed, remained on record and that has affected the accused. Therefore, he submitted that when the sanction is not proper, the trial against accused would vitiate on this on count alone.
7. Learned advocate Mr. K.B. Anandjiwala further submitted that in the case of Corruption Act, three aspects viz. (i) initial demand (ii) demand before acceptance and (iii) acceptance and recovery of the amount are required to be proved. The prosecution has to prove such three aspects beyond reasonable doubt. If either of this aspect is not established beyond reasonable doubt, the case would fail and the accused deserves to be acquitted. He further submitted that in the present case, so far as the initial demand is concerned, there is only one witness, who is complainant - P.W.2 - Sanjay Patel at Exhibit 17. The said P.W.2 has categorically stated in chief-examination that in the month of October, 1992, the complainant went to the office of the accused, at that time, the accused was busy and therefore, he could not meet him. Thereafter, on two/three occasions, visit of the complainant could not be materialized as the complainant was busy with his meeting. The witness further deposed in cross-examination that as the complainant could not meet the accused, despite his visit to the office of the accused number of times, the complainant assumed that he would be expecting some money and his work would not be done. Due to that reason, the complainant approached the ACB office at Surat and lodged his complaint and this witness is not treated hostile by the prosecution. He further submitted that the learned APP before the lower Court requested the trial Court to permit to refresh his memory by referring the complaint and surprisingly, the learned APP drew the attention of the witness to the contents of the complaint and got the admission and thereby in indirect manner, the contents of the complaint, which are otherwise not the substantive piece of evidence have been brought on record as substantive piece of evidence by way of admission. He further submitted that no provision of the Evidence Act would permit the learned APP to bring the contents of the complaint as substantive piece of evidence in this manner. He also submitted that learned APP drew the attention of this Court to the provisions of Section 159 of the Evidence Act and submitted that the memory of the witness can be refreshed and the same is permissible. He submitted that Section 159 would make it clear that the witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned. He submitted that Section 159 is to be read in consonance with Section 160 of the Evidence Act. It prima facie appears that the learned Judge has committed grave error and he has wrongly considered the oral evidence of the complainant. Learned advocate Mr. Anandjiwala has read the oral evidence of panch and complainant and submitted that the aspect of demand before the acceptance is not proved beyond reasonable doubt and if the said aspect is not proved, then the case fails. He also submitted that in several decisions of the Hon'ble Supreme Court, it is held that if this aspect of demand before the acceptance is not established, then mere recovery is not sufficient to convict the accused. In the present case, as per the oral evidence of the complainant, from the stage of meeting the accused at Bhikhabhai's place till the complainant and accused reached to Manisha Hotel, the accused had not made demand of money at any stage. There were all opportunities for the accused to demand money and accept the same. Even according to the complainant at Manisha Hotel, the accused did not demand money, however, he tried to thrust the amount. After reaching at Manisha Hotel, straightway the accused went to the counter in the Hotel. He also submitted that as per the evidence of the complainant, there were four tables on which the persons were sitting for dinner and also the music was on. Therefore, the question would arise as to whether the accused had selected the busiest area for accepting illegal gratification ?. He submitted that on the touchstone of probability, this story is inherently improbable. Therefore, the aspect of demand before acceptance is not established by the prosecution beyond reasonable doubt. Learned advocate further submitted that as per the evidence of the complainant, there was no demand of any nature made by the accused. P.W.1 has tried to give deposition with regard to the conversation. In cross-examination, P.W.1 stated that in the hotel, near the counter, there was one chair in which the accused sat. The complainant and panch were standing near the counter. As per oral evidence of this witness, the accused asked the complainant as to what happened about money which they had talked. Thereafter, immediately, the complainant took out the smeared currency notes from his pouch and offered the same to the accused. The accused accepted the amount by his right hand and put the same into the pant pocket. So far as recovery is concerned, this witness stated that the panch No.2 searched the person of the accused and from the right side pocket of pant, he took out smeared currency notes. In cross-examination of this witness, it was come out that no identification marks or circle has been made at the place inside the right side pant pocket to show that the powder marks were seen. The most surprising aspect is that the trapping officer has also deposed that he has not asked to bring the pant of the accused. This witness has no knowledge as to who brought the pant and from where it was brought. Even no person is examined by the prosecution to prove that a particular person brought the pant from the residence of the accused or from bazar and thereafter, the pant was seized. It is also admitted fact that in the hotel, the pant was not seized.
8. Learned advocate read the evidence of P.W.2 Sanjaybhai Sanmukhbhai Patel, complainant at Exhibit 17 and submitted that the witness i.e. the complainant is the best witness to depose on the aspect of conversation as he is the person who had a talk with the accused. The conversation is the most important aspect to determine that the amount was accepted by the accused towards illegal gratification. In evidence of P.W.2 - complainant, he stated that on 9.11.1992, the complainant went to meet the appellant, but due to holiday, the accused was not available at the office and the complainant stated about the demand on the part of the accused regarding Rs.10000/- towards illegal gratification. Therefore, from the evidence of complainant himself, the demand of the illegal gratification is not proved. The complainant P.W.2 also stated in evidence that he had alone accompanied the accused from Bhikhabhai's place to Manisha Hotel. According to his deposition, when he had a talk with accused, one person was sitting on the counter of the hotel. The complainant also asked about the amount to which the accused replied that his work has been done and no amount is to be taken. The complainant took out the money from the purse and gave the same to the person standing near the counter and told him to give the money to the Mamlatdar. The complainant gave the notes to the person sitting near the counter and said notes had fallen down on the floor and immediately, the trapping party came at the spot. Therefore, the basic story of conversation differs so far as the complainant and panch are concerned. It is pertinent to note that the complainant is not treated as hostile by the prosecution nor any contradiction is brought on the record. Learned advocate Mr. Anandjiwala has read the evidence of P.W.3 Rameshchandra Chhaganlal Rana at Exhibit 19 and submitted that the said witness expressed his ignorance on asking number of questions to him. This witness had no talk with accused at Manisha Hotel and therefore, it is believable that the panch would not have heard the talk which took place between the complainant and accused.
9. Mr. Anandjiwala, learned advocate submitted that as per the evidence of complainant, P.W.2 - Sanjay Patel, the complainant was knowing both the panchas very well as he used to go to RTO for registration of jeep-car of his father Sanmukhbhai. Learned advocate drew the attention to the date, on which the trap was carried out, which was holiday i.e. 10.11.1992, being Gurunanak Jayanti and the State Government declared the same day as Public Holiday. The Government offices remained closed on that Public Holiday. So far as panch is concerned, the panch is Class III or IV servant. It has come in his evidence that on the Holidays, no person of Class III or IV would be permitted to work without there being any permission of his superior office and the Panch has stated that the date of trap was a working day. It is also brought in evidence through the evidence of the panch, in cross-examination that at about 2:30 p.m., he was called at ACB office and then he met PI Mr. Rana. This panch also admitted in cross-examination that at 12:30 p.m., the RTO Mr. Makwana called him in his chamber and he was instructed to go to ACB office. The most surprising aspect is that though Mr. Makwana was not the RTO at the relevant time and Mr. Jani was the RTO, the panch was reiterating number of times that Mr. Makwana instructed him. Learned advocate submitted that at 12:30 p.m., such instructions have been given to said panch to go to ACB office by Mr. Makwana, where the complainant himself reached at 2:30 p.m. , so obviously such instructions would not have been given to him at 12:30. Therefore, all these aspects clearly show that specific instructions have been given to both the panchas, who are staying at a far away distance from the ACB office. He also submitted that the panch No.2 is concerned, he is residing at village Amroli, which is at a distance of 15 Kms. He, therefore, submitted that all these aspects would go to show that the panchas are selected panchas. Even looking to the documentary evidence produced before the learned Sessions Judge, it is not at all proved beyond reasonable doubt that there was demand and acceptance on the part of the accused. The conduct of the panch is required to be considered. He further submitted that looking to cross-examination of trapping officer, P.W.3, the experiment of ultra violet which was carried out by the Trapping Officer, creates some doubt and therefore, oral evidence of the trapping officer is not trustworthy and reliable. He also stated that when the panchnama was drawn in presence of other customers at Manisha Hotel, yet no independent witness was examined for the said purpose. The accused made out sufficient defence in the statement recorded under Section 313, before the learned Sessions Judge, but learned Sessions Judge has not properly appreciated his defence. In view of the above submission, he submitted that the judgment and order of conviction and sentence is required to be quashed and set aside by allowing this appeal.
10. Learned APP Mr. R.C. Kodekar for the State, vehemently opposed the submissions made by the learned advocate Mr. Anandjiwala. He has read the panchnama, complaint as well as sanction and submitted that from the oral evidence of the witnesses, who were examined by the prosecution, the prosecution has very well established the case against the accused. He also submitted that merely on the oral submission of the learned advocate, the P.W.1 Panch cannot be treated as not reliable and not trustworthy. He has read the oral evidence of P.W.1 panch and submitted that looking to the conduct of the present appellant, Section 8 of the Evidence Act comes into play and from Bhikhabhai's place to Hotel Manisha, the conduct of the accused show that there was malice intention of the present appellant - accused, therefore, the accused went to Manisha Hotel. Learned APP further submitted that in presence of P.W.1, present appellant has made demand of illegal gratification and same in turn, was accepted by the accused. He also submitted that learned advocate for the appellant has submitted that the trap which was carried out on the date, which was holiday but probability of the presence of panch is explained by the P.W.1. He read the oral evidence of P.W.1 and contents of panchanama and submitted that from the aforesaid evidence of P.W.1 and panchnama, the case is very well proved against the accused. He submitted that P.W.1 has very well explained the conduct of the accused and, therefore, only on this evidence of the P.W.1, the case is very well proved against the accused. He also read the oral evidence of P.W.2 Sanjaykumar Sanmukhbhai Patel, complainant at Exhibit 17, and submitted that as per oral evidence of this witness, the contents of the complaint are proved. He submitted that when the demand is proved beyond reasonable doubt and the amount accepted by the accused, which was recovered from the appellant, it cannot be said that the accused as a Public servant, did not make demand of money, other than legal remuneration. Learned APP Mr. Kodekar read Section 159 of the Evidence Act and also drew the attention to Section 3 of the Evidence Act and submitted that the FIR is a document and in light of the provisions of Section 159 of the Evidence Act, it cannot be considered that the prosecution has committed any illegality. He read oral evidence of the witnesses examined before the trial Court and submitted that the demand, acceptance and recovery of the trap amount, all these three aspects to prove the case against the accused, are proved cogently before the trial Court.
11. Mr. Kodekar has also contended that looking to the facts of the case presumption under Section 20 of the P.C. Act is required to be drawn against the present appellant - accused. He also relied upon the decisions in the case of Jitendrakumar Jayantilal Dhruva Vs. State of Gujarat reported in 2005(3) GLR 2204 and Gopalbhai Oghadbhai Parekh Vs. State of Gujarat reported in 2002 GLR 89.
He lastly prayed to dismiss the Appeal.
12. Heard the parties and perused the record. It appears from the judgment that learned Sessions Judge has specifically made attempt to frame the charge in connection of the demand and acceptance. I have perused oral evidence of P.W.1 and it appears that when both the panchas were called at ACB office, at that time, with Police Officer Mr. Rana, one another person who is complainant, was introduced to the panch. The panch as well as complainant made their signatures on the complaint. Therefore, experiment of ultra violet lamp was carried out by applying anthracene powder upon the amount of Rs.10,000/-, denomination of Rs.500 (7 notes) and Rs.100 (65 notes). The witness also submitted that thereafter, the panchnama was prepared. He also admitted in cross-examination that after completing the formalities, the complainant put the said amount in his maroon mini purse, which was kept in the pocket of his pent. This witness also admitted in his cross-examination that as per the instructions by the ACB personnel, including complainant and panchas, they all reached at the residence of accused by Government vehicle. The house of the accused was found closed and the complainant told the PI, ACB that the accused was available at the house of Bhikhabhai, where the accused had met the complainant. The accused told the complainant that he had to go at Manisha Hotel and therefore, he told the complainant to arrange for vehicle. The complainant made arrangement of jeep car which was of his uncle and both i.e. the complainant and accused reached Manisha Hotel. The raiding party also followed the jeep car of the complainant and they also reached at Manisha Hotel. Even the accused questioned the complainant about this witness (P.W.1). The accused took seat at Manisha Hotel and this witness and complainant were standing near the counter of Hotel. Thereafter, after completing the story of land, the accused told about money, the complainant gave the amount to the accused and the accused accepted the money with his right hand and put the same in right pocket of his pant. Thereafter, the complainant made prearranged signal to the ACB party and thereafter, recovered the amount from the accused. During the experiment of the ultra violet lamp, the marks of anthracene powder were found on the fingers and palm of right hand and also on his maroon mini purse. The numbers of notes were tallied with the panchnama, wherein before carrying out trap, the numbers were mentioned. The recovery panchnama was prepared. This witness also admitted that when the ACB office called said witness, Mr. Rana, ACB officer asked the name, address, age and designation of the witness. This witness admitted that he did not participate in any raid prior to this raid. This witness also admitted that on 10.11.1992, there was public holiday and he also admitted that normally he was going to work at his office on public holiday.
13. I have also gone through the evidence of P.W.2 - Sanjaybhai Sanmukhbhai Patel, complainant at Exhibit 17. The complainant stated that he was working as Power of Attorney of one Sarabibi Ibrahimbhai. On 7.11.1992, at about 11:00 a.m. to 11:30 a.m., the complainant met the accused, who was Mamlatdar, at the office of Mamlatdar and told to convert the new tenure land to old tenure land. The accused demanded the amount of Rs.15,000/- for giving opinion about new tenure land. Thereafter, the complainant requested about some reasonable amount, but the accused was not ready to reduce the amount. Lastly, the deal was finalized in the sum of Rs.10,000/-. Thereafter, the complainant thought it fit to lodge the complaint before ACB office, where P.I. Mr. Rana met him. Thereafter, ACB office called the panch for carrying out trap and also completed the formalities prescribed under the law. The ACB officer explained every thing to the complainant. The complainant and ACB party went to the residence of the accused, where he was not available and thereafter, they proceeded to Kamrej Cross Roads, where accused met them and the accused told about money to the complainant. They reached at Manisha Hotel by the vehicle of the uncle of the complainant. The complainant handed over money to the person, who was at counter of the hotel and at that time, the notes had fallen down and the ACB official immediately came there and notes were taken by the ACB party. The witness also stated that he was not in a position to say about the pant of the accused.
The complainant was also cross-examined before the trial Court.
14. I have also perused oral evidence of P.W.3 Rameshchandra Chhaganlal Rana at Exhibit 19. The complainant filed his complaint before said ACB officer, wherein the complainant stated that the accused demanded the amount of Rs.10,000/- towards illegal gratification from the complainant. This witness further stated that after completing formalities, they went to Manisha Hotel, where the conversation between accused and complainant took place. The P.W.2 had said to the ACB Officer, Mr. Rana about demand for illegal gratification made by the accused from the complainant. This witness also stated in his evidence that during course of experiment of ultra violet lamp, the stains of anthracene powder were found on the tip and finger of right hand of the accused and also on the pant of the accused. The trap amount was recovered from the accused by the ACB officer. This witness was cross-examined before the trial Court. I have also perused the oral evidence of P.W.4 Jayantilal Ichhchhubhai Patel Exhibit 20.
15. No doubt, learned advocate has argued that the pant which was recovered is not identified by the witness, but so far as the copy of seizure memo is concerned, it was signed by the present appellant - accused and then it was stated by the appellant - accused that it was not his pant. It is true that the learned advocate Mr. Anandjiwala has tried to establish that on the day of trap, it was public holiday and therefore, Class- III and Class IV Government Employees are not permitted to attend the office without permission of the Higher Officer. Though the learned advocate made the submission that Class III and Class II employee cannot do any work at office without prior permission of the Higher Authority and that the trap cannot be led on public holiday, however, he has not produced any material in support of said contention nor he has produced any decision of either Hon'ble Supreme Court or any other High Courts. Therefore, the submission made by the learned advocate cannot be substantiated. It is for the Court to consider as to whether P.W.1 is joined himself as panch in the said trap or not. But from the evidence of P.W.1, P.W.2 and P.W.3, I have not found any substance that the appellant has established that P.W.1 was not present at the time of trap. No doubt minor contradictions come on record due to long period, but it is duty of the Court to consider reliability of the witness. From the cross-examination, the defence has failed to establish the credibility of the panch witness.
16. Section 3 of the Evidence Act, prescribing meaning of the documents. Section 3 of the Evidence Act reads as under :
"Document " -
"Document"
means any matter expressed or described upon any substance by means of letters figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter".
In light of above, the document FIR which is given by the present complainant falls within meaning of the provisions of the Evidence Act.
17. Learned advocate Mr. Anandjiwala submitted that law does not permit the complainant to give deposition in the Court by referring document. I have perused the Section 159 of the Evidence Act also. Section 159 says that :
Refreshing memory :
"A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and ready by the witness within the time aforesaid, if when he read it he knew it to be correct.
When witness may use copy of document to refresh memory : Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document.
Provided the Court be satisfied that there is sufficient reason for the non-production of the original An expert may refresh his memory by reference to professional treatises."
18. In light of the aforesaid provisions of Section 159 of the Evidence Act, I am of the opinion that when the permission is granted for the purpose of refreshment of memory, then it can be said that the prosecution has not committed any illegality or any irregularity. I have not found any substance in the argument of learned advocate and the permission for refreshment was given by the Court as per the provision of Section 159 of the Evidence Act. Here in this case, the muddamal i.e. trap amount was very well recovered from the possession of the appellant. As per Section 20 of the Prevention of Corruption Act, the demand and acceptance on the part of the accused is very well proved before the trial Court.
19. From the case of the prosecution, I find that no doubt the complainant has not stated properly the incident of bribe in his oral evidence but by scrutinizing other evidence led before the trial Court, it cannot be said that the accused had not demanded illegal gratification other than legal remuneration. From the finger, palm and pant of the accused, the stains of anthracene powder were found and therefore, it is believed that the accused demanded and accepted the amount of bribe and so far as the submission of the learned advocate about non acceptance the money is concerned, the same is not believable and the complainant thrust the amount to the accused forcefully is also not believable. If the accused had not accepted the money, then how stains came on the hand and pant of the accused. Initially, the accused demanded Rs.15,000/-, but subsequently, the deal was finalized in the sum of Rs.10,000/-. I have perused the chronology of events and considered the corroboration of the other documentary and oral evidence. Therefore, this Court is of the view that the accused made demand and in turn, he accepted the same towards illegal gratification other than legal remuneration.
20. I have perused the decision in the case of Gopalbhai Oghadbhai Parekh Vs. State of Gujarat reported in 2002(1) GLR 89. The facts of that case are totally applicable to the facts of the present case. In the case on hand, the complainant has not properly explained about acceptance of the bribe money on the part of accused, but the complaint lodged by the complainant is clearly revealed that the accused made demand of Rs.10000/- towards illegal gratification and looking to the marks of anthracene powder on the body of the accused as also on the pant of the accused, it is clearly established that the accused on his own, accepted the bribe amount. The panchnama also supported the case of the prosecution. Therefore, this Court cannot ignore the evidence of other witnesses. I have also perused the decision in the case of Jitendrakumar Jayantilal Dhruva Vs. State of Gujarat reported in 2005(3) GLR 2204. For the said aspect, if the oral evidence of P.W.4 Jayantilal Ichhchhubhai Patel at Exhibit 20 is carefully taken into consideration, the sanction was accorded by the competent Authority and therefore, the submission of learned advocate regarding sanction is not just and proper.
21. In this case, looking to the facts and the evidence on record, the demand and acceptance is very well established beyond reasonable doubt and in the statement under Section 313 of the Code of Criminal Procedure of the accused, he has never bothered to explain the issue of recovery of trap amount as well as presence of anthracene powder, which was found on the finger, palm as also on the pocket of pant of the appellant - accused.
22. From the above observation, I do not have the slightest hesitation in accepting the broad submissions that demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, I am of the opinion that both the ingredients to bring the act within the meaning of Sections 7 and 13 (1) (d) (ii) of the Act are satisfied. From the evidence led on behalf of the prosecution it is evident that the appellant demanded the money from the complainant in connection with the forms prepared by the accused and in the presence of P.W. 1, that demand was made and the amount was accepted by the appellant - accused. The presence of anthracene powder vis-Ã -vis on the fingers, palm and pocket of pant of the appellant go to show that he voluntarily accepted the bribe. Thus there is evidence of demand of illegal gratification and the voluntary acceptance thereof.
23. All the submissions made on behalf of the appellant being devoid of any substance, I do not find any merit in this appeal and it is dismissed accordingly. The judgment and order passed by the learned Special Judge, Surat in Special Case No.1 of 1994 dated 28.1.1998 is hereby confirmed. Appellant is on bail and in view of dismissal of appeal, his bail bonds are cancelled and he is directed to surrender before the Jail Authority within four weeks from the date of this order, failing which, the concerned Court shall issue non-bailable warrant to effect the arrest of the appellant. Rest of the judgment of the learned Sessions Court shall remain unaltered. R & P to be sent back to the trial Court, forthwith.
(Z.K. SAIYED, J.) ynvyas Top