Gujarat High Court
Renukaben Rameshchandra Kayasth vs State Of ... on 9 August, 2016
Author: S.G.Shah
Bench: S.G.Shah
R/CR.A/309/1999 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 309 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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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
or any order made thereunder ?
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RENUKABEN RAMESHCHANDRA KAYASTH....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR AD SHAH, ADVOCATE for the Appellant(s) No. 1
Mr.MANAN MEHTA APP for the Respondent - State
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HC-NIC Page 1 of 22 Created On Thu Aug 11 03:18:48 IST 2016
R/CR.A/309/1999 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 09/08/2016
CAV JUDGMENT
1. Heard Ld. Advocate Mr.A.D.Shah for the appellant and Ld. A.P.P. Mr.Manan Mehta for the respondent State. The appellant has challenged the judgment and order dated 29th March, 1999 of his conviction u/s. 7, 13 (1) (d) read with section 13 (2) of the Prevention of Corruption Act. By such impugned judgment, the Special Judge of Ahmedabad City has awarded the sentence of Rigorous Imprisonment of Six months and to pay fine of Rs.1,000/- and default to undergo further Rigorous Imprisonment for 15 days for the offence punishable u/s.7 of the Act and Rigorous Imprisonment of one year with fine of Rs.1,000/- and in default to undergo further Rigorous Imprisonment for 15 days for the offences punishable u/s.13 (1) (d) and 13 (2) of the Act.
2. The sum and substance of the prosecution case is to the effect that, the complainant Navinbhai Hargovinddas Patel who was carrying on business of manufacturing of stapler pins wanted financial assistance in the form of loan facility from the Gujarat State Financial Corporation in addition to existing loan of Rs.49,000/- and working capital of Rs.8900/- for which he has applied on 28th November, 1992 and he was conveyed by the corporation that the loan of about Rs.59,000/- has been sanctioned. Page 2 of 22 HC-NIC Page 2 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT However, it is alleged by the complainant that since loan was not disbursed, he had been to the office of the corporation to inquire about the loan papers as to where his file was and it is his case that it was revealed by him that his file was pending with the Legal Assistant namely Renukaben who is accused and appellant herein. It is further contended by the complainant that on 9th November, 1993, he met the accused, when the accused found that the papers of surety were having certain erasers and therefore, it was conveyed to the complainant that such papers of surety cannot be accepted because of such erasers/errors/corrections and or overwriting and therefore, the accused has called upon the complainant to produce new papers. It is further contended that on such discussion, the appellant has handed over three forms out of which one was duly filled-in and two were blank and that the complainant was required to notarize the filled-up form after filling certain blanks and was required to get attested the same from the court. At such juncture, now it is alleged by the complainant that the appellant has demanded an amount of Rs.250/- towards illegal gratification and bribe for processing his papers at the earliest and to see that, he gets the amount immediately. However, when the complainant has disclosed that he did not have such amount readily available at that time, the appellant had called upon him on the next day at about 03 : 00 pm with an amount of Rs.250/- and duly attested papers as discussed above.
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3. Thereafter, usual story of unwillingness to pay such amount by the complainant, filing of the complaint, pre-trapped arrangement and drawing of its panchnama etc. activities had taken place. However, in all such cases, unless there is any issue during any such activities, those activities are routine and formal in nature and therefore, its discussion and reproduction are not much material. More particularly, when it is well described more than once on record in the form of pleadings as well as in the impugned judgment.
4. Therefore, we need to scrutinize, considering the settled legal position that whether there is any cogent, reliable and sufficient evidence to prove following four issues only wise (1) prior demand of bribe, (2) express demand of bribe amount just before the raid, (3) passing of and thereby acceptance of tainted currency notes and (4) possession of tainted currency notes by the accused at the time of raid.
5. As aforesaid, there must be the disclosure of prior demand while filing the complaint, but the disclosure of demand in complaint is not sufficient unless there is cogent and reliable evidence to confirm such demand. For the purpose, we have to scrutinize the material evidence. The record shows that the prosecution examined only three witnesses viz, Page 4 of 22 HC-NIC Page 4 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT (1) P.W.No.1 - Complainant Navinbhai Hargovinddas Patel at exhibit 15, (2) P.W.No.2 - Dalpatbhai Trikambhai Parmar at exhibit 78 and (3) P.W. No.3 - Kirankumar Manubhai Rathod - P.I. of A.C.B. as an Investigating Officer at exhibit 83. Prosecution has however produced as many as 53 documentary evidence which includes communication prior to trap, after the trap and for sanction so also panchnama and receipts and some other documents regarding loan file of the complainant.
6. If we peruse the evidence of P.W.No.1 being the complainant, prima-facie, it transpires that, though the complainant has supported the prosecution case, there are not only material contradictions but unbelievable facts and story disclosed by the complainant which results into presumption that, the complainant is not telling the absolute truth on oath before the court but he is trying to take disadvantage of such proceedings. Though there is categorical disclosure in para 3 that accused has demanded Rs.250/-, it seems that the complainant is aware about the situation and therefore, he confirms that the demand was with a specific instruction to put the amount in envelop/cover and thereby the complainant makes it clear that the amount was not to be handed over directly to the accused, may be because of the fact that, the petitioner is aware that there is no demand and therefore, there will be no acceptance if the amount is offered openly therefore, he has no option but to pass on Page 5 of 22 HC-NIC Page 5 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT the envelop with tainted currency notes so as to prove that it was accepted by the appellant. However, the complainant has no option but to disclose and admit that, the loan amount was sanctioned on four conditions whereby (1) he is supposed to produce the agreement of lease or rent deed about his factory, (2) the previous surety namely Balabhai Ramjibhai has to agree to continue to be surety for additional loan by filing an affidavit, (3) the G.S.F.C. would inspect the machinery before disbursing the additional loan. However, for such inspection, the petitioner has requested the corporation to pay the charges for such inspection from his loan account and (4) the complainant has to repay the balance amount of previous loan, however the complainant wants to deduct such amount from the new loan. Therefore, one thing is certain that unless the complainant fulfills and completes the conditions as aforesaid, he is not entitled to get the loan and thereby if the appellant accused asks for compliance of such conditions then, it would certainly amount to an issue for the complainant for which just with a view to avoid to comply with the condition and to pressurize the appellant, a false and fabricated complaint is filed. There is reason to say so because the prosecution has not examined the witness Balabhai Shamjibhai Patel who has to file an affidavit disclosing that he will be continuing to be a guarantor and when the complainant has filed an affidavit with several erasers/errors/corrections and thereby tried to pressurize the corporation Page 6 of 22 HC-NIC Page 6 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT to disburse the loan irrespective of proper disclosure regarding security and guarantor whereas so far as actual prior demand is concerned, in absence of any other supporting evidence, there is only oral evidence of the complainant and thereafter, if veracity of the complainant is at stake and thereby, if it is found that, the complainant is either not telling the truth or not coming with clean hands before the court, then oral evidence only by such witness regarding prior demand cannot be believed as gospel truth in absence of any other supporting evidence by independent witness.
7. Whereas so far as demand and acceptance which is before the raid is concerned again though the complainant has tried to support the case of prosecution, the complainant has failed to realize that when such incident has taken place, he could not depose with clarity and thereby there is material improbability in his deposition when he states that, the appellant accused has accepted the cover by instructing to keep it in file and thereafter, she has taken the cover in her hand and placed it in the lower compartment of the table. The Ld. Advocate for the appellant has demonstrated with clarity that there is irregularity and discrepancy in such disclosure and that how witnesses have failed to realize that it would never be possible to place envelope at two places at the same time, the first place being upper part of drawer and the second place being lower Page 7 of 22 HC-NIC Page 7 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT compartment of the table and that to by hand on off side of the drawer or lower compartment of table.
8. Whereas, the P.W.No.2 being a panch-witness at exhibit 78 Dalpatbhai Trikambhai Parmar in his cross examination (Para - 4, Page
7) categorically admits that he has only seen the accused placing the envelope in the drawer or compartment of the table and that he signed the panchnama without reading it and that there was no positive marking of presence of anthracene powder on hands of the accused. Such admission negativates the entire proceeding irrespective of positive statement by the complainant, panch-witness and Investigating Officer because otherwise it is a stereotype story and thereby only because witnesses deem it fit to play the same tune, it cannot be ignored that such stereotype story and tune needs to be corroborated with cross checking and entire set of evidence for coming to conclusion that there is no other story or position except what is narrated in such stereotype tune.
9. To be more precise, it is to be recorded that there is material contradiction so far as delivery that is passing of tainted currency notes to the accused and its recovery, more particularly when it is categorically deposed that, the tainted currency notes were passed on in a hidden condition in an envelop and therefore, firstly it cannot be presumed that, Page 8 of 22 HC-NIC Page 8 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT the envelop is passed on with clarity that it contains the amount of bribe and otherwise also the complainant has to pass on some documents and the accused has reason to accept some documents for processing the file. Similarly, when there is a possibility of passing positive evidence regarding demand and acceptance in the form of deposition of Balabhai the person who has to file an affidavit as a guarantor for security of loan amount is not examined. Moreover, the scrutiny of entire set of evidence on record confirms that, in fact complaint has met the accused on different occasions but he does not disclose such fact which is transpires from over all reading of the evidence and thereby when there is no demand when the complainant met the accused at initial meeting or prior meeting, then there is no reason for the accused to offer the amount of bribe. It is also evident from the deposition of the complainant that, he had been to the office with the guarantor Balabhai but the Investigation Agency has neither recorded his statement nor examined him to confirm that, Balabhai had in fact agreed to be a guarantor in such new loan and that the accused has demanded an amount of bribe. It is also evident from the record that, there is one another legal assistant in the office and that the appellant was on leave upto 8th November, 1993. It is also evident from the record that though loan was approved on 28th July, 1993, the complainant has never bothered to submit requisite documents till November, 1993 and all of sudden, in November, 1993, he alleged that Page 9 of 22 HC-NIC Page 9 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT file was pending with the appellant and she has demanded money though the appellant was on leave during the intermediate period. It is also coming in evidence of the complainant that in fact the Law Officer Mandaben Dave was in charge of his file for a long time and she had been to the appellant with the complainant and signature of Balabhai was taken in their presence, if it is so, then the statement of Mandaben Dave would also be relevant piece of evidence to scrutinize that whether file was pending with the appellant for a long time and whether the appellant had demanded any bribe or not. It is also evident from the deposition of the complainant that the file in which the envelope of tainted currency notes was placed by the complainant was showing negative result for presence of anthracene powder and thereby there is a reason to believe that, no envelope was placed in such file. Though witnesses are talking about placing of envelope in the drawer, the panch and Investigating Officer could not find the envelope from the drawer but it is their case that they recovered it from the lower compartment of the table. It is also confirmed on the record that the envelope was sealed with gum and therefore, it was not certain that what is placed in the cover. It is also evidence from the record that, immediately before the trap or even at the time of trap the appellant has never demanded any amount even after repeated disclosure by the complainant when the panch-witness deposed in categorical terms that though the complainant has conveyed that he has Page 10 of 22 HC-NIC Page 10 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT brought the thing, there was no disclosure about payment of bribe but the appellant was busy in scrutiny of papers and it was the complainant who has demanded the file from the appellant and thereupon the complainant has placed the envelope in the file. There is also material contradiction when panch-witness says that, cover was placed in the drawer which was taken out by the P.W.No.2. Thereby, it is certain that P.W. is not clear about the actual position. In further cross examination, unfortunately, the panch-witness has come forward with the different story that when he has taken the file out of drawer, the file was not having the cover. Similarly, there is material contradiction regarding presence of anthracene powder on file as well as in the drawer.
10. One more issue has been brought on record by panch-witness that when he admits that when they approached the appellant, one another person was sitting in the nearby table and doing his work in the office of the appellant but they have not talked with another person. Therefore, there is an admission that, there was one eye witness to the entire activity that is alleged to have happened between the appellant and the panch- witness to confirm that whether the appellant had demanded and accepted the amount of bribe just before the trap. However like Balabhai, the prosecution has failed to record the statement of such staff of the corporation and to examine him as witness so as to have corroborating Page 11 of 22 HC-NIC Page 11 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT evidence.
11. In light of the above discussion, if we scrutinize the impugned judgment, it becomes clear that, the Special Judge has mainly been dragged by the prosecution towards the story narrated by the prosecution and the witness but unfortunately though the Special Judge has recorded in para 15 of the judgment that till 8th November, 1993, file was not with the appellant and that she was on leave and that she has given guidance to the complainant to produce the documents, the court has failed to appreciate such fact and in para 20 when again, it is believed that, there is discrepancy in the evidence regarding the absence of the envelope/cover with tainted currency notes, it is believed by the trial court that, the appellant was knowing that cover was containing the amount of bribe as per her demand and therefore, the contradictions are not material. It is quite clear and obvious that, the trial court has failed to appreciate the evidence in correct perception and in accordance with law.
12. The appellant accused has also filed a written statement u/s.313 of the Criminal Procedure Code and explained the position which the Special Judge has failed to appreciate in proper perception, however the scrutiny of such statement makes it clear that, there is no demand or acceptance and that in fact the appellant wants to pressurize the Page 12 of 22 HC-NIC Page 12 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT corporation to disburse the loan without proper documentation.
The complainant, after 28.07.1993 handed over surety bond on 25.10.1993 to one Mr.Parmar when accused was not present. The muddamal article no.4 was the form received by GSFC from the complainant and there were erasers. The bond dated 25.10.1993 was returned to the complainant for getting new guarantee bond on 09.11.1993 for not accepting the guarantee form having eraser, the complainant had to contact Balabhai for his signature. According to evidence of complainant, he was required to take Balabhai for filling up the new form which was done by him on 10th November, 1993. Though the complainant visited to the office of accused (GSFC) on 10th November, 1993 at about 11 : 00 a.m., the accused did not make any demand and as admitted by the complainant there was no talk in respect to the said amount. However, the complainant improved upon his evidence by creating the version of demand by accused on 10th November, 1993 when he visited the office of the accused in company of Balabhai and the complainant informed the accused about his coming with money in the afternoon after obtaining the amount from the Bank. This new improved version, if actually, had taken place then Balabhai would have been the best witness to support the version of the complainant. However, it is also of great importance to note that the complainant went to ACB's Office on 10.11.1993 at about 12 : 00 noon, Page 13 of 22 HC-NIC Page 13 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT that is to say, after his visit at GSFC office on 10.11.1993 at 11 : 00 a.m., the complainant did not disclose anything about his visit and fresh demand by accused on 10.11.1993. Thus, non-examination of Balabhai and non mentioning of the complainant's visit in company of Balabhai to the office of accused in the complaint on 10.11.1993 at about 12 : 00 noon clearly reflect that the complainant has no regard for truth. (Complaint Exhibit 7/P.569).
The reference to payment order file (Exh.63) clearly reflect that the complainant had made application in his own handwriting to Regional Manager on 08.11.1993 (Page - 3 of Exhibit 63). This file also contained another application dated 09.11.1993 (Page - 2 of Exhibit 63). Thus, the accused having received file on or about 08.11.1993 processed the same and it cannot be said that there was any delay caused by the accused. The evidence further discloses that one employee Mr.M.D.Modi of GSFC had gone to the office of accused in company of the complainant for expeditious process of the file and on that very day the complainant was called upon to provide necessary documents. The cross -examination of the complainant, if appreciated in its proper perspective, clearly reflect that insistence of the accused to provide for necessary documents, such as affidavit, undertaking and other papers for fresh notarization, which documents handed over by the complainant on 25.10.1993 were found to be not proper. Thus, all these factors clearly make the evidence of the Page 14 of 22 HC-NIC Page 14 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT complainant as to so-called demand on 09.11.1993 by the accused, as highly unnatural and evidence is unreliable.
The evidence of the complainant and the Panch No.1 is quite conflicting as to what transpired at the stage when the passing of currency notes in a cover took place. Actually what transpired in the office of the accused on 10.11.1993, it is essential to have comparative consideration of the evidence of the complainant and the panch witnesses.
Complainant Panch No.1
1. Accused demanded all documents 1. Accused demanded papers and the complainant handed over the relating to loan from the complainant. same to the accused. The complainant handed over file to accused. The accused examined the documents of the file and told the complainant that there was no valuation report. The complainant told that the same has remained at his residence. Accused told to hand-over the said report on next day and the complainant should take steps to see that the accused received the same.
2. Accused returned the documents 2. The accused inquired about the of Balabhai having erasers. Accused revenue stamps from the made certain marking in the file and complainant and the complainant told demanded Valuation Report. The that he has not brought. Accused told complainant assured to hand-over the the complainant to bring the revenue same on the next day as he has stamps.
forgotten valuation report at his residence.
3. Accused asked for revenue stamps 3. The complainant came with and the complainant said that he has revenue stamp and the receipt which not brought and accused told the was prepared, the revenue stamp complainant to bring the same. was applied on it. The accused saw Hence, complainant went to bring the receipts and found that it Revenue and came with 7 revenue contained false details. The panch stamps of 20ps. Each. prepared another receipt as per the specimen which was given by the accused. The revenue stamp was applied on this receipt and the complainant signed the receipts and Page 15 of 22 HC-NIC Page 15 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT handed-over to the accused.
4. When he returned with stamps, 4The accused inquired from the accused having cleared the file, took complainant as to whether he would out money receipts and after filling like to have amount by cheque or up, applied the revenue stamp and cash and the complainant told to obtained signature of the have by cheque. Except this there complainant. (money receipts Exhibit was no other talk between the Nos.72 and 73), however there was complainant and the accused. mistake in both the receipts and hence it was returned to the complainant and new money receipts were got prepared with the help of panch no.1 and after applying the revenue stamp, signature of the complainant was obtained.
5. After this, accused looked at the 5. The complainant told accused that complainant with smile told the he has brought the thing and the complainant as to what he had done complainant spoke about the same about the earlier talk. 2/3 times, but accused was busy in examining documents. The complainant asked for file from the accused. Accused showed the file lying on the table and told the complainant to take the same. The complainant took the file and the complainant placed cover in the file brought by him. The accused had placed the file in the drawer of the table after scrutiny of the file. The accused took the cover from the file and placed it in the drawer of the table.
6. The complainant told the accused that as per your say, he has brought Rs.250/- in cover and that cover was in his left side pocket. The complainant was to hand over that cover from hand to hand to accused and at that time accused told the complainant to place the said cover after leaving two pages in the file and to hand over the said file.
7. Thereafter, the complainant took file which was lying on the table and after two pages, placed the cover in the file. The said file was examined by the accused from back portion and when she reached near the page Page 16 of 22 HC-NIC Page 16 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT where cover was, she took the cover with left hand and placed the same in lower drawer of the table and thereafter, gave the signal.
Thus, the substantive evidence of Panch No.1 clearly reflects that there was no demand by the accused with the complainant and though the complainant repeated 2/3 times about his bringing the thing, there was no response from the accused. Thus, it clearly transpires that the accused had not made any demand on 10th November, 1993 and the conduct attributed to the complainant about getting his file and placing the cover in the file is rendered highly unnatural and improbable in view of the evidence of panch witness who is not treated hostile by the prosecution.
That the evidence of panch witness is also not trustworthy about what transpired in the office of the accused when the file was handed over by the complainant to the accused and what documents were scrutinized. However, it clearly transpires that though initially panch witness denied about preparing any writing had ultimately to admit about filling -in the form in respect to list of machineries which was prepared by panch no.1 at the instance of the complainant. Similarly, document 12/18 was not written by panch no.1, but it clearly transpires that the complainant had signed the said document in presence of panch-witness, however panch no.1 is not sure about the contents of the said form being filled -in by the complainant or the accused.
The further cross examination of panch no.1 clearly reflect that no Page 17 of 22 HC-NIC Page 17 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT marking about find of anthracene powder on the cover were specifically noted and similarly the muddamal article nos.4 and 5 form found from the file of accused were also not bearing signature of panchas. The evidence of panch witness being conveniently denied the certain facts on the basis that he has no idea about the same clearly reflect that the panch witness is not telling the truth. The examination of file under ultra violate lamp and the evidence of panch of this aspect is also shaky. However, it clearly transpires that when the complainant and the panch went to the chamber of accused, one another person was also sitting in the chamber and doing the work. Yet the prosecution has not chosen to examine the saidpersons as to what actually transpired in the office of the accused. The evidence of panch also clearly reflects that second part of the panchnama was started after examination in respect to raid were completed in the chamber of the accused. This witness also admitted that he had not dictated anything in the panchnama and the writing as to what transpired between the complainant and the accused and passing of currency was also not dictated by the panch - witness. The evidence of panch - witness clearly reflects that P.I. Rathod had not inquired anything about the incident from the panch witness. The panch witness clearly admitted that he has signed the panchnama without reading the same and he had not seen the accused Renukaben placing any cover in the drawer of the table. However, he admitted that he had written the Page 18 of 22 HC-NIC Page 18 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT contents of document Exhs.72, 73, 75 and 76.
The prosecution has not examined panch no.2 who was called upon to take out the said cover from the drawer. It is also transpiring from the evidence that the complainant had no idea about the drawer of the table in which the cover was placed and admittedly the said table had two drawers. Thus, even situation of these drawers makes the evidence of prosecution witness highly unnatural.
That the evidence of Investigating Officer clearly reflects that the file of the complainant was signed by one Pallaviben on 08.11.1993 and thereafter, as per the procedure the said file had gone to the accused. It is the case of the accused that from 30.06.1993 to 30.10.1993 she was on Sick Leave. Though the Investigating Officer had examined the file and inquired about the process of the file, no independent witness from the office of GSFC, who had dealt with the file has been examined. However, it clearly transpires that on 09.11.1993, accused had called upon the complainant to comply with the requirements and thereafter, the complainant had to take Balabhai for completing the procedure on 10.11.1993. However, on this vital aspect independent evidence of witnesses, though available, has not been adduced by the prosecution.
Thus, the prosecution evidence is not sufficient and trustworthy to prove initial demand on 09.11.1993 and further demand on 10.11.1993 and pursuance to the said demand, acceptance of the bribe amount in Page 19 of 22 HC-NIC Page 19 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT cover through file is not trustworthy. Thus, there is no reliable and trustworthy evidence on vital aspects of demand and acceptance and hence the conviction is not proper.
13. The Ld. Advocate for the appellant has relied upon the following decisions (1) Ganpathi Sanya Naik Vs. State of Karnataka reported in JT 2007 (11) SC 162, (2) Smt. Meena W/o. Balwant Hemke reported in JT 2000 (4) SC 521 and (3) State of Punjab Vs. Madan Mohan Lal Verma reported in AIR 2013 Supreme Court 3368.
14. The sum and substance of above decisions is quite clear and to the effect that, the explanation by accused that money was put on table surreptitiously and that there was no occasion to demand are plausible explanations. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration. Demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the Page 20 of 22 HC-NIC Page 20 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification.
15. Whereas, the respondent - State has relied upon Nareshkumar Dudhabhai Vaghela Vs. State of Gujarat reported in 2012 (5) GLR 4073 and Arjunlal M. Upadhyaya Vs. State of Gujarat reported in 2010 (3) GLR 2469, wherein conviction is confirmed by the Single Judge of this High Court. However, scrutiny of this judgment makes it clear that it is based upon the acceptance and evidence available on record of these cases and therefore, only because of confirmation of conviction in few cases, it cannot be stated that in all the cases of corruption, there should be conviction irrespective of proper, reliable and cogent evidence for all the four issues which are listed in previous part of this judgment.
In view of above evidence, I do not find any illegality or irregularity in the impugned judgment, more particularly, in view of settled legal position, as emerging from the following decisions; (A) P.Satyanarayana Murty v. District Inspector of Police, State of Anhdra Preadesh, reported in 2016(1) SCC (Cri.) 11 (B) Selvaraj v. State of Karnataka, reported in 2016(1) SCC (Cri.) 19 (C) Krishan Chander v. State of Delhi, reported in AIR 2016 SC 299 that; in such cases for confirming conviction, all 3 actions are must Page 21 of 22 HC-NIC Page 21 of 22 Created On Thu Aug 11 03:18:48 IST 2016 R/CR.A/309/1999 CAV JUDGMENT and shall be proved by prosecution beyond reasonable doubt viz;
(i) Prior demand (ii) Demand at the time of trap and (iii) Acceptance of the amount. In absence of specific clinching evidence to prove all such acts by the accused, there cannot be any conviction. Evidence of other witnesses may not be sufficient to prove demand even though recovery is proved. In that case, benefit of doubt is to be extended to the accused. Mere acceptance of any amount alone by way of illegal gratification or recovery thereof dehors the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge. Thereby, admission and acceptance of bribe is sine qua non for constituting offence under the Prevention of Corruption Act. If complainant or witness turns hostile on point of admission and acceptance of bribe and when panch witness did not hear conversation between accused and complainant at the time when complainant had approached to give bribe money, it is held by Hon'ble Supreme Court of India that factum of demand cannot be considered as proof and, thereby conviction was set aside.
16. Therefore, the appeal is allowed and thereby the impugned judgment and order dated 29th March, 1999 in Special Case No.24/94 convicting the appellant is hereby quashed and set-aside and thereby, the appellant is acquitted from all the charged leveled against her. Bail bond of the appellant shall stand canceled. R & P shall be sent back to the trial court.
(S.G.SHAH, J.) M. M. SHAIKH Page 22 of 22 HC-NIC Page 22 of 22 Created On Thu Aug 11 03:18:48 IST 2016