Gujarat High Court
The State Of Gujarat vs Sureshbhai Pannalal Nayak on 15 May, 2025
NEUTRAL CITATION
R/CR.A/1602/2008 JUDGMENT DATED: 15/05/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1602 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D.N.RAY
==========================================================
Approved for Reporting Yes No
==========================================================
THE STATE OF GUJARAT
Versus
SURESHBHAI PANNALAL NAYAK
==========================================================
Appearance:
MR SOAHAM JOSHI, APP for the Appellant(s) No. 1
MR PR ABICHANDANI(102) for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR.JUSTICE D.N.RAY
Date : 15/05/2025
ORAL JUDGMENT
1. Heard Mr. Soaham Joshi, learned APP for the Appellant - State and Mr. P. R. Abichandani, learned advocate for the Respondent.
2. Feeling aggrieved and dis-satisfied with the judgment and order of acquittal dtd. 1.11.2007 passed by the learned Special Judge, FTC No.6, Vadodara in Special (ACB) Case No.8/2004, whereby the Respondent(s) Page 1 of 10 Uploaded by MAYA S. CHAUHAN(HC01402) on Tue May 20 2025 Downloaded on : Tue May 20 23:04:59 IST 2025 NEUTRAL CITATION R/CR.A/1602/2008 JUDGMENT DATED: 15/05/2025 undefined accused came to be acquitted for the offences punishable under Section 7, 13(1)(d) & 13(2) of the Prevention of Corruption Act, 1988, the Appellant-State has preferred this Appeal.
3. The facts of the case are narrated in the impugned judgment and order of acquittal in great detail. The same are not disputed by the learned Additional Public Prosecutor appearing on behalf of the Appellant -State. Therefore, the same are not repeated herein but briefly recapitulated as under:
3.1 The petitioner, resident of Village Padra, Ta. Padra, Dist. Vadodara, is a farmer (Khatedar). The complainant purchased the land bearing survey no. 752 and 282/2/2 along with sale deed in village Jhanjhod, Ta. Shinore, Dist. Vadodara. Upon wanting to register the sale deed with his name in the revenue record, the Mamlatdar of Shinore directed the complainant to produce the farmer's certificate of Padra Taluka. It is the case of the complainant that the accused, in order to mark certain 7/12 extracts in a total of 5 entries, had demanded a total of Rs.25,000/- as bribe. After negotiation, the same Page 2 of 10 Uploaded by MAYA S. CHAUHAN(HC01402) on Tue May 20 2025 Downloaded on : Tue May 20 23:04:59 IST 2025 NEUTRAL CITATION R/CR.A/1602/2008 JUDGMENT DATED: 15/05/2025 undefined was alleged to be settled for Rs.5,000/- which was to be paid on 21.11.2003 upon which the complainant was to be given the necessary copies. At this point, the complainant approached the ACB, Vadodara and filed his complaint. A trap for the said amount was set up which, according to the prosecution case succeeded and charges against the accused for offences punishable under sections 7, 13(1)(d), & 13(2) of the Prevention of Corruption Act, 1988 were framed.
4. The learned Trial Court had recorded that the complainant was unavailable to depose. Further, there were discrepancies in the testimonies of the other witnesses. Taking note of the above, the learned Trial Court had acquitted the accused. It is not in dispute that the complainant did not depose in the trial and therefore the accused did not get an opportunity to cross-
examine the complainant on his complaint before the authorities prior to the trap. Learned APP, Mr. Soaham Joshi had relied upon the decision of the Hon'ble Apex Court in the case of Neeraj Dutta Vs. State (Government of NCT of Delhi) reported in (2023) 4 SCC Page 3 of 10 Uploaded by MAYA S. CHAUHAN(HC01402) on Tue May 20 2025 Downloaded on : Tue May 20 23:04:59 IST 2025 NEUTRAL CITATION R/CR.A/1602/2008 JUDGMENT DATED: 15/05/2025 undefined 731 [CB] particularly, para 88 thereof. Learned APP submitted that upon placing reliance on para 88.3 and 88.6 that even if the deposition of the complainant is absent in the trap, the guilt of the accused can be proved through other witnesses or by documentary evidence or even by circumstantial evidence.
5. Upon perusal of the entire evidence, I am of the view that no other prosecution witness has deposed regarding the demand allegedly made by the accused to the complainant. Therefore, while the second part i.e. acceptance of the money by the accused can be said to be proved, there is no proof that the said money which was paid by the complainant to the accused was in lieu of illegal gratification or bribe. Therefore, according to para 88(2) of Neeraj Dutta (CB) (supra), the prosecution has failed to prove the demand of illegal gratification and therefore, the subsequent acceptance, on its own will not lead to the conviction of the accused. The Hon'ble Apex Court has held as under:
"88. What emerges from the aforesaid discussion is summarised as under:Page 4 of 10 Uploaded by MAYA S. CHAUHAN(HC01402) on Tue May 20 2025 Downloaded on : Tue May 20 23:04:59 IST 2025
NEUTRAL CITATION R/CR.A/1602/2008 JUDGMENT DATED: 15/05/2025 undefined 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of Criminal Appeal No.1669 of 2009 illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)
(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere Page 5 of 10 Uploaded by MAYA S. CHAUHAN(HC01402) on Tue May 20 2025 Downloaded on : Tue May 20 23:04:59 IST 2025 NEUTRAL CITATION R/CR.A/1602/2008 JUDGMENT DATED: 15/05/2025 undefined acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is Criminal Appeal No.1669 of 2009 a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
88.6. (f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7 (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said Criminal Appeal No.1669 of 2009 presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
Page 6 of 10 Uploaded by MAYA S. CHAUHAN(HC01402) on Tue May 20 2025 Downloaded on : Tue May 20 23:04:59 IST 2025
NEUTRAL CITATION R/CR.A/1602/2008 JUDGMENT DATED: 15/05/2025 undefined 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5 (e), above, as the former is a mandatory presumption while the latter is discretionary in nature."
6. Mr. P. R. Abichandani, learned counsel appearing on behalf of the accused, has relied upon the decision of the Hon'ble Apex Court in the case of Neeraj Dutta Vs. State (Government of NCT of Delhi) reported in (2023) 18 SCC 251 [DB].
7. The aforesaid judgment was passed following the Constitution Bench Decision of Neeraj Dutta (C.B.) (supra) where the decision on the facts of the case was eventually rendered by the Hon'ble Apex Court speaking through a Division Bench (Coram: Abhay S. Oka, J. & Rajesh Bindal, J.). Referring to Neeraj Dutta (C.B.), the Hon'ble Apex Court has held as under:
"25. Rest of the examination-in-chief deals with the acceptance by the appellant and recovery. Now the question is whether, on the basis of the evidence on record, the prosecution has proved the demand of gratification by the accused. When we consider the issue of proof of demand within the meaning of Page 7 of 10 Uploaded by MAYA S. CHAUHAN(HC01402) on Tue May 20 2025 Downloaded on : Tue May 20 23:04:59 IST 2025 NEUTRAL CITATION R/CR.A/1602/2008 JUDGMENT DATED: 15/05/2025 undefined Section 7, it cannot be a simpliciter demand for money but it has to be a demand of gratification other than legal remuneration. All that PW-5 says is when the appellant visited the shop of the complainant, she asked the complainant to give papers regarding the electricity meter and Rs.10,000/- to her by telling him that she was in a hurry. This is not a case where a specific demand of gratification for providing electricity meter was made by the appellant to the complainant in the presence of the shadow witness. PW-5 has not stated that there was any discussion in his presence between the appellant and the complainant on the basis of which an inference could have been drawn that there was a demand made for gratification by the appellant. The witness had no knowledge about what transpired between the complainant and the appellant earlier. PW-5 had admittedly no personal knowledge about the purpose for which the cash was allegedly handed over by the complainant to the appellant."
8. In the instant case also, it will be seen that what in effect is the evidence of the raiding party as well as the shadow witness is that the words actually spoken by Page 8 of 10 Uploaded by MAYA S. CHAUHAN(HC01402) on Tue May 20 2025 Downloaded on : Tue May 20 23:04:59 IST 2025 NEUTRAL CITATION R/CR.A/1602/2008 JUDGMENT DATED: 15/05/2025 undefined the accused was either "what about my money ?" or "give my money". While admittedly there is a slight variation in the two versions but the meat of the matter is that there is no explanation as to why the money was actually paid to the accused by the complainant. Therefore in terms of the decisions of the Hon'ble Apex Court in Neeraj Datta (C.B.) (supra) and Neeraj Datta (D.B.) (supra), the crucial aspect of "Demand" is not proved by the prosecution. Without doubt, every witness has a different role to play and a different aspect of the transaction to prove. Even while if it is accepted for the sake of argument that the transaction culminating in the delivery of money (acceptance) by the accused is proved through the panch witness and raiding party, the crucial aspect of 'demand' is still unproved in the absence of the complainant, there being no other direct or circumstantial or documentary evidence which is forthcoming on the part of the prosecution to prove the "Demand". In such circumstances, the test laid down in Neeraj Datta (C.B.) (supra) in para 88.2 namely the proof of initial demand, having not been met, the mere proof of "acceptance" will not result in conviction of the accused.
9. In such circumstances, I am of the view that the Page 9 of 10 Uploaded by MAYA S. CHAUHAN(HC01402) on Tue May 20 2025 Downloaded on : Tue May 20 23:04:59 IST 2025 NEUTRAL CITATION R/CR.A/1602/2008 JUDGMENT DATED: 15/05/2025 undefined learned Trial Court had rightly acquitted the accused. Resultantly, the present appeal stands dismissed.
10. Record and Proceedings to be sent back to the concerned Court forthwith.
(D.N.RAY,J) MAYA Page 10 of 10 Uploaded by MAYA S. CHAUHAN(HC01402) on Tue May 20 2025 Downloaded on : Tue May 20 23:04:59 IST 2025