Gujarat High Court
Parmar Chinubhai Mohanbhai vs State Of Gujarat on 12 April, 2024
NEUTRAL CITATION
R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1311 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PARMAR CHINUBHAI MOHANBHAI
Versus
STATE OF GUJARAT
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Appearance:
MANAN K PANERI(7959) for the Appellant(s) No. 1
MR DEVANSH N KAKKAD(12134) 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 : 12/04/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 06.06.2005 passed by the learned Special Judge, (ACB), Mehsana (herein after referred to as 'the Page 1 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined learned Trial Court') in Special (ACB) Case No. 2 of 1999, whereby, the learned trial Court has convicted the appellant for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. The learned trial Court has sentenced the appellant to rigorous imprisonment for one year and fine of Rs.10,000/- and in default one month simple imprisonment under Section 7 of the the Prevention of Corruption Act, 1988 and three years rigorous imprisonment and fine of Rs.10,000/- and in default six months simple imprisonment for Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act. All sentences were ordered to run concurrently. 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 Talati-cum-Mantri of village Mahadevpura (Gavada), Taluka Vijapur and District:
Mahesana and was a public servant. That the complainant intended to purchase agricultural lands from Swami Jaswantgiri Mangalgiri and Pravingiri Somgiri and the lands were of new Page 2 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined tenure land and had to be converted to old tenure lands before purchasing the said lands. That Thakor Babuji Revaji of his village intended to purchase lands from Gandabhai Balchanddas Patel and the said land was also of new tenure land and had to be converted to old tenure land before purchase of the same. The complainant met the accused and had asked him for the revenue record and for conversion of the land and at that time, the accused had demanded the illegal gratification of the amount of Rs.1,000/-
each for the land of the complainant and the land of Thakor Babuji Revaji and had also demanded Rs.500/- for part of the land of the brother of the complainant. That the amount was demanded as illegal gratification and as the complainant did not want to pay the amount of illegal gratification, the complainant approached to ACB office at Mehsana and filed the complaint, which was registered at C.R.No. 2 of 1998 for the offences under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act on 07.01.1998.
2.2] That the Trap Laying Officer called the panch witnesses and after the experiment of anthracene powder and the ultraviolet lamp was done and the procedure was explained to the panch witnesses and the complainant, a trap was arranged and Page 3 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined the complainant gave one (01) currency note of the denomination of Rs.500/- and seventeen (17) currency notes of the denomination of Rs.100/- each, on which, anthracene powder was smeared and the tainted currency notes were placed in the left side pant pocket of the complainant. That the complainant and the shadow witness went to the Taluka Panchayat Office but the accused was not there and they found the accused seated at the hotel and at that time, the accused demanded for the amount of illegal gratification and the complainant gave the tainted currency notes of Rs.2200/- to the accused and the accused had returned Rs.600/- to the complainant through another person, who was seated there. That the predetermined signal was given and the Trap Laying Officer and the members of the raiding party came and caught the accused red-handed with the tainted currency notes of Rs.1,800/-. That the Investigating Officer recorded the statements of the connected witnesses and drew the necessary panchnama and after the order of sanction for prosecution was received, a charge- sheet was filed before the Sessions Court, Mehsana, which was registered as Special ACB Case No. 2 of 1999.Page 4 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024
NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined 2.3] That the accused was duly served with the summon from the learned trial Court and the accused appeared before the learned trial Court and after the due procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 7 was framed against the accused and the statement of the accused was recorded at Exh: 8. The accused denied all contents of the charge and the evidence of the prosecution was taken on record.
2.4] The prosecution has filed 5 oral evidences and 7 documentary evidence in support of the case respectively, which are as under:
ORAL EVIDENCE Sr. PW Name Exh No. No. 1 1 Patel Dineshbhai Ambalal 8 2 2 Karshanbhai Bhavanbhai Solanki 11 3 3 Nadirkhan Jamalkhan Pathan 16 4 4 Jagdishchandra Manilal Shrimali 18 5 5 Kacharabhai Dalabhai Parmar 21 Page 5 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined DOCUMENTARY EVIDENCES Sr. No. Particular Exh 1 Complaint 9 2 Panchanama 12 3 Seizure Memo 13 4 Sanction for prosecution 15 5 Letter for calling Panchas 17 6 Record of Gavada Gram Panchayat 19 7 Copy of service book of accused 20 2.5 After the learned Additional Public Prosecutor filed the closing pursis at Exh; 22, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded and after the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned Special Judge (ACB), Mahesana, by the impugned judgment and order convicted the accused on 06.06.2005 passed in Special (ACB) Case No. 2 of 1999.
3] Being aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant has filed the present appeal mainly contending that the impugned judgment and order of conviction and sentence passed by the learned Special Page 6 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined Judge (ACB), Mehsana is contrary to the provisions of law and against the evidence on record and the learned trial Court has erred in holding that the prosecution has proved its case beyond reasonable doubt. That the learned trial Court ought to have appreciated that the evidence adduced by the prosecution was not sufficient to prove the charge against the accused and the learned trial Court has failed to appreciate that the gratification must be impressed with the character of illegal remuneration, which was given knowingly and taken knowingly. That there is absolute lack of substantive evidence in the prosecution story and the accused had never demanded any amount of bribe, even at the time of the trap. That the ingredients of demand and the acceptance are not proved by the prosecution and mere recovery of the amount from the accused is not sufficient to attract the offence under the Prevention of Corruption Act. That the learned trial Court ought to have appreciated that the reason for giving money by the complainant is prima-facie not believable and it is the say of the accused that on 19.10.1997 one Pasiben Gandabhai Harijan had filed FIR against the complainant, his father and one Revaji under the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, and the complainant was under the Page 7 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined impression that the accused being a member of the scheduled caste had assisted the complainant Pasiben Gandabhai Harijan to file the complaint and hence was annoyed with the accused. That the complainant and Babuji were having a dispute of Dhadiya with the Senma Community and the accused had drawn the panchnama on 01.10.1997 and hence the complainant and Babuji were annoyed with the accused and they have falsely implicated the accused in this case. That the learned trial Court has failed to appreciate the evidence of Patel Dinesh Ambalal and Karshanbhai Bhavanbhai Solanki and from the evidence of both these witnesses, it is proved that the amount that was recovered from the accused, was not the illegal gratification but the amount, which was voluntarily parted with by the complainant as his share towards purchase of a cupboard for the use in the office of Talati- cum-Mantri. That, in fact, Somabhai is an eye witness to the entire conversation and the transaction that had taken place but the prosecution has not examined Somabhai before the learned trial Court. That, the learned trial Court has not appreciated the explanation offered by the accused in his further statement recorded under Section 313 of the Code of Criminal Procedure, 1973 and if the same is considered, it is sufficient to rebut the Page 8 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined presumption raised by the learned trial Court under Section 20 of the Prevention of Corruption Act. That, in fact, the accused was not in a position to cause any favour to the complainant because the accused was not competent to change the scheme of the land and the mutation entry of the complainant was already mutated in the revenue record much prior to the date of the trap. That there was no reason for the accused to demand for any amount of illegal gratification and the prosecution has not examined Babuji, Jashvantgiri and Pravingiri to prove that the lands were to be purchased by the complainant and Babuji. That the deposition of the complainant is not trustworthy and not supported by any independent witnesses and hence adverse inference can be drawn against the prosecution as Somabhai was the best witness to depose in support of the prosecution. That the judgment and order of conviction passed by the learned trial Court is passed even though the prosecution has not proved the case beyond reasonable doubts and hence the impugned judgment and order of conviction must be quashed and set aside and the accused must be acquitted for the offence.
Page 9 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024
NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined 4] Heard learned advocate Mr. Manan Paneri for the appellate and learned Additional Public Prosecutor Ms. Jirga Jhaveri for the respondent-State. Perused the impugned judgment and order of acquittal and re-appreciated the entire evidence on record of the case.
5] Learned advocate Mr. Manan K. Paneri has taken this Court through the entire evidence of the prosecution and has submitted that in the cross examination, the complainant has clearly stated that no amount of bribe was demanded by the accused and the prosecution must prove the demand as a Hemtuji Ramaji Rana Versus State of Gujarat prerequisite condition for constituting an offence under the Prevention of Corruption Act. That, when the demand is not prove, mere recovery of currency notes is not enough to constitute the offence under the Prevention of Corruption Act. That even the panch witness in his cross examination has admitted that the complainant and the accused had a talk regarding public contribution and the complainant had asked the accused to take public contribution from others also and the accused had returned Rs.600/- out of Rs.2,200/- that were given to him and the accused had given the amount to Somabhai Page 10 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined who in turn gave it to the accused. That there is inherent contradiction in the deposition of the PW 1 and PW 2 regarding the objective of acceptance of money from the complainant and the factum of the panchayat building being in a dilapidated stage is accepted by the PW 1 in the cross examination. That even the factum of public contribution for the purchase of a steel cupboard from Somabhai is admitted in the cross examination and a contribution for purchase of steel cupboard would not amount to illegal gratification under Section 7 of the Prevention of Corruption Act. That the accused being a Talati-cum-Mantri did not have any power under the Land Revenue Code to convert the tenure of the land as the power vests with the Collector and the mutation entry was certified in favour of the complainant on 03.01.1998 much prior to the date of the complaint i.e. on 07.01.1998. Hence, there is no question of demanding any illegal gratification for posting a mutation entry, which was already certified. That the prosecution has withheld the deposition of Somabhai at whose shop the alleged transaction took place and Somabhai was a key witness to return the amount of Rs.600/- to the complainant. That the use of anthracene powder confirming the passing of tainted notes has shown brown gloss colour instead of flourescent blue colour during Page 11 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined the examination of the presence of powder on the currency notes and other muddamal and it indicates that the anthracene powder was not proper or that the anthracene powder was not used and the same makes the trap improper. That the prosecutio has not proved the case against the accused beyond reasonable doubts and hence the learned advocate for the appellant has urged this Court to allow the present appeal and acquit the accused for all the offences.
5.1] Learned advocate for the appellant has placed reliance on the following judgments;-
1. Kishan Chander Vs. State of Delhi, reported in 2016 (3) SCC 108
2. Takhaji Hiraji Vs. Thakore Kubersing Chamansing & Ors. reported in 2001(6) SCC 145;
3. Ajitsinh Devusinh Masani Vs. State of Gujarat passed in Criminal Appeal No. 910 of 2003;
6] Learned Additional Public Prosecutor appearing for the respondent-State has submitted that the judgment and order passed by the learned trial Court is legal, just and proper and urges this Court not to interfere with the judgment passed and order passed by the learned trial Court and to reject the appeal. Page 12 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024
NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined 7] 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.
8] At this juncture, it would also be appropriate to refer to the decision of the Hon'ble Apex Court relied upon by the learned advocate for the appellant in the case of Krishan Chander (supra) wherein paras 35 to 39 , 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 Page 13 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined 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.
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 14 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024
NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 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 15 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 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 Page 16 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined 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." (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 Page 17 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined the currency notes were put in the drawer without his 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."
9] To bring home the charge against the accused, the prosecution has examined prosecution witness No. 1 Dineshbhai Ambalal Patel at Exh:8 and the witness is the complainant, who has stated that he was to purchase land from Swami Jaswantgiri Mangalgiri and Pravingiri Somgiri and the land was new tenure land and was to be converted to old tenure land. That Thakor Babuji Revaji of his village intended to purchase land from Gandabhai Balchanddas Patel and the said land was also new tenure land and was to be converted to old tenure land and hence the complainant had met the accused and at that time the accused had demanded for an amount of the illegal gratification Rs. 2500/-. That after bargaining, the amount was settled at Rs.2200/- and hence the complainant went to the office of ACB at Mehsana and filed the complaint, which is produced at Exh; 9. The complainant has thereafter narrated all events that had taken place in the ACB office and after the trap was arranged, the complainant, the Page 18 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined shadow witness and Thakor Babuji Revaji went to the panchayat office but the accused was not present as he was in a meeting. That the complainant told the ACB officers that the accused was in a meeting and they walked to Rambaug and found that the meeting was going on and the accused was attending the meeting. That after the meeting got over, the accused came and told the complainant that they would go to the hotel of Bhikhaji at Khatri Kuva and the complainant made an excuse that his scooter was kept for repairing and went and told the ACB officers. That the complainant, shadow witness and Thakor Babuji Revaji went to the hotel of Bhikhaji and they found the accused sitting there and they went and met the accused and at that time, the accused demanded for the amount of illegal gratification and had told the complainant that he would give the copies on Monday as they would be prepared on Sunday. That the complainant gave the amount of Rs.2200/- and the accused returned Rs.600/- and at that time, the predetermined signal was given by the complainant and the members of the raiding party came and caught the accused red handed. During the cross examination, the complainant has stated that he had not initiated any act for purchase of the land with Swami Jaswantgiri Mangalgiri and Page 19 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined Pravingiri Somgiri and similarly Thakor Babuji Revaji had not initiated any act for purchase of land with Gandabhai Balchanddas Patel. That the complainant and Thakor Babuji Revaji had met the accused and at that time, there was no demand of illegal gratification. That when the complainant met the accused, Swami Jaswantgiri Mangalgiri, Pravingiri Somgiri or Gandabhai Balchanddas Patel were not with him. The complainant has admitted that he is aware that for conversion of the land, the owner of the land has to make an application to the Collector and no such application was made before the Collector by the complainant or anyone. That mutation Entry No. 4978 was made in the revenue record of Survey no. 971 Paiki on 15.10.1997 and the same was certified 03.01.1998. That while the mutation entry was being made in the revenue record, the accused had not demanded for any amount. The complainant has also admitted that the panchayat office was in a dilapidated condition and there was a huge necessity of an iron cupboard to keep the record. That the complainant knows Somabhai Patel, who is his cousin brother and having a shop of making iron cupboard at Vijapur and has a shop opposite Bhikhaji's hotel where the accused was seated. That the accused had given Rs.600/- to Somabhai and Somabhai had Page 20 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined returned the amount to him and at that time, the accused had told Somabhai that he was giving Rs.1800/- at present and would pay the remaining amount later.
9.1] The prosecution has examined PW 2 Karsanbhai Bhavanbhai Solanki at Exh; 11 and this witness was the shadow witness who was with the complainant at the time of the trap. The witness has has fully supported the case of the prosecution and has deposed about the events right from the time he was called to the office of the ACB till the trap was successful. During the cross examination by the learned advocate for the accused, the witness has stated that the accused was seated at the shop with Somabhai and the witness has denied that when the complainant gave the amount to the accused and told him to reduce the amount, the accused had given the amount of Rs.600/- back to the complainant through Somabhai. The witness has admitted that at that time, there was a talk of public donation and the complainant had told the accused to get the remaining amount from somewhere else. The complainant had also told the accused that at present he was giving him Rs.1800/- and would pay the remaining of Rs.600/- Page 21 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024
NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined later.
9.2] The prosecution has examined PW:3 Nadirkhan Jamalkhan Pathan at Exh:16 and this witness is the Trap Laying Officer, who has arranged for the trap and has done entire procedure for arranging the trap. The witness has deposed that he had recorded the complaint of the complainant and had thereafter the called the panch witnesses and after the experiment of anthracene powder and ultraviolet lamp, the trap was arranged and the trap was successful. That, the complainant had, thereafter, recorded the statements of the witnesses and drawn the necessary panchnama. That, when the complainant and the shadow witness went for the trap, they did not find the accused at the panchayat office or at the hotel and they found that there was a meeting at Rambaugh and the accused was attending the meeting.
9.3] The prosecution has examined PW:4 Jagdishchandra Manilal Shrimali at Exh:18 and this witness is the Investigating Officer, who has investigated the offence and has recorded the statement of the connected witnesses. During the cross examination, the witness has admitted that that he was a member Page 22 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined of the raiding party and during the investigation no document was seized by which the lands were to be converted from new tenure to old tenure land. That during the investigation, it was also found that the land owner had not initiated any action for transfer of the lands from new tenure to old tenure and during the investigation, he has not recorded the statement of Somabhai. 9.4] The prosecution has examined PW:5 Kachrabhai Dalabhai Parmar at Exh:21 and this witness is the Investigating Officer, who has received the order of sanction for prosecution and has thereafter filed the charge sheet before the learned trial Court. 10] On appreciation of the entire evidence of the prosecution, it is the case of the prosecution that the accused had demanded for the amount of illegal gratification to convert the lands that were to be purchased by the complainant from Swami Jaswantgiri Mangalgiri and Pravingiri Somgiri and Thakor Babuji Revaji was to purchase the land from Gandabhai Balchanddas Patel and both the lands were of new tenure and had to be converted to old tenure land prior to purchase of the same. There is no iota of evidence on record to show that the original land owners Swami Jaswantgiri Mangalgiri and Pravingiri Somgiri or Page 23 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined Gandabhai Balchanddas Patel had filed any application before the Collector, who was the competent authority to convert the land from new tenure to old tenure land and the complainant has clearly stated that no concrete talks for purchase of the lands were going on between the sellers of the lands and the complainant and Thakor Babuji. That as far as the demand of illegal gratification for the mutation entry is concerned in the evidence it has come on record that the mutation entry of name of the complainant and his brother was already mutated in the revenue record vide mutation entry no. 4978 on 15.10.1997 and the entry was certified on 03.01.1998 much prior to the filing of the complaint by the complainant on 07.01.1998. It is an admitted fact that the accused was a Talat-cum-Mantri and was not the competent authority to convert any land from new tenure to old tenure land and there is no iota of evidence regarding the reasons for demand of any illegal gratification by the accused has come on record. 10.1] It is pertinent to note that as per the say of the complainant Thakor Babuji was present with the complainant at the time of the prior demand and even on the date of trap. Thakore Babuji had accompanied the complainant and the shadow witness Page 24 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined and the entire transaction and conversation has taken place in the presence of Thakor Babuji but the said Thakor Babuji who was an independent eye witness has not been examined by the prosecution to prove their case beyond reasonable doubts. 10.2] The prosecution has also not examined Somabhai Patel who was a key witness as per the case of the prosecution as the trap was successful at the shop of Somabhai and as per the say of the complainant, the accused has demanded for the amount of illegal gratification at the shop of Somabhai and after the complainant had handed over the tainted currency notes to the accused and had bargained with the accused, the accused had taken Rs.600/- and given to Somabhai to return it to the complainant but even though Somabhai was a very important and key witness, the prosecution has not examined Somabhai before the learned trial Court. The said Somabhai is also an eye witness to the acceptance of the tainted currency notes by the accused and Somabhai has also heard the entire conversation between the complainant and the accused but for reason best known to the prosecution, the said Somabhai who was an independent eye witness has not been examined before the learned trial Court. That Page 25 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined in fact, Somabhai was the best witness who could have thrown much light on the vital aspects of demand and acceptance and hence adverse inference ought to have been drawn by the learned trial Court against the prosecution.
10.3] In the evidence of the prosecution, it is also on record that the Investigating Officer-Jagdishchandra Manilal Shrimali was a member of the raiding party and he was with the Trap Laying Officer right from filing of the complaint till the trap was successful and has thereafter investigated the offence. That, though Somabhai was an eye witness and could have thrown much light on the vital aspect of demand and acceptance as the entire transaction had taken place at his shop, the statement of Somabhai was not recorded by the Investigating Officer and said Somabhai has not been examined before the learned trial Court. 11] The learned trial Court has, in the impugned judgment, found that the accused had demanded and accepted the amount of Rs.1600/- as illegal gratification from the complainant but the learned trial Court has not considered that the complainant has not produced any evidence to show that any concrete talks were going on between the complainant and Swami Jaswantgiri Mangalgiri, Page 26 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined Pravingiri Somgiri or between Thakor Babuji Revaji and Gandabhai Balchanddas Patel for purchase of the property. That the learned trial Court has not considered that there is no iota of evidence to show that the accused had any authority to convert any new tenure land to old tenure land and the complainant has admitted that the price of the land was not fixed as also there were no applications for conversion of the land filed before the Collector by the complainant or by Thakor Babuji. That the learned trial Court has also not considered that the complainant has stated that the panchayat office was in a dilapidated condition and the panch witness has admitted that the conversation that had taken place between the accused and the complainant was for the public contribution and the complainant had told the accused to collect the remaining amount of the public contribution from someone else. The learned trial Court has also not considered that the accused had in the presence of the complainant and the shadow witness told Somabhai that he was giving an amount of Rs.1800/- at present and would pay the remaining amount of Rs.1100/- later and the said Somabhai had told the accused to pay the entire amount later and hence the accused had taken the amount and put it in his pocket. There is no iota of evidence to prove that the Page 27 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined accused had made any prior demand and even at the cost of repetition, it is essential to mention that though Thakor Babuji, as per the say of the complainant, was accompanying him throughout as the amount as demanded by the complainat was for the work of Thakor Babuji also and had accompanied the complainant to the office of the accused at the time when the prior demand was made and was also with the complainant and the shadow witness at the time of trap, the said Thakor Babuji has not been examined. The learned trial Court has in the judgment recorded that the evidence of Thakor Babuji would have been additional advantage of the case of the prosecution but the said Thakor Babuji has passed away and has not been examined because of his demise but there is no evidence on record of the case to suggest that the said Thakor Babuji has expired. 12] As per the settled principles of law, that the prosecution must prove the case beyond reasonable doubts and the principles settled in case of Kishan Chander (supra), the demand for illegal gratification is a sine-qua-non to convict the accused for the offences under the Prevention of Corruption Act, 1988 and unless it is proved beyond reasonable doubts that the accused had demanded for the illegal gratification and accepted the amount of Page 28 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined illegal gratification, knowing it to a bribe, the accused cannot be convicted for the said offence. Mere recovery of the tainted currency notes would not prove the charge against the accused and mere possession and recovery of tainted currency notes without proof of demand would not establish an offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. In the present case, there is no iota of evidence that the accused had demanded for any amount of illegal gratification and in the evidence, it is on record that there was no work of the complainant pending or to be done by the accused. The accused has rebutted the presumption raised before the learned trial Court under Section 20 of the Prevention of Corruption Act, 1988 and there is no evidence on record that the accused had demanded for any amount of illegal gratification either prior to filing of the complaint or at the time of the trap. That there is no admissible evidence against the accused and the prosecution has miserably failed to prove the demand of illegal gratification by the accused beyond reasonable doubts.
13] On meticulous dissection of the oral and documentary evidence of the prosecution, the infirmities have come to the surface and as the demand is not proved by the prosecution Page 29 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024 NEUTRAL CITATION R/CR.A/1311/2005 JUDGMENT DATED: 12/04/2024 undefined beyond reasonable doubts, the learned trial Court has not appreciated the evidence in proper perspective and it can safely be said that there is no admissible evidence against the accused and the prosecution has miserably failed to prove the case against the accused beyond reasonable doubts. That in the given facts and circumstances, in the considered opinion of this Court, the conviction of the accused could not have been invoked and consequently the appeal succeeds and is allowed. 14] The impugned judgment and order dated 06.06.2005 passed by the learned Special Judge, (ACB), Mehsana in Special (ACB) Case No. 2 of 1999 convicting the appellant under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 is hereby quashed and set aside and the accused acquittal from all the offences. Fine to be refunded to the appellant after proper verification. Bail bonds stand canceled. 15] Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) vvm Page 30 of 30 Downloaded on : Fri Apr 26 21:01:14 IST 2024