State Of Gujarat vs Babubhai Haksibhai Ninama
2024 Latest Caselaw 2908 Guj

Gujarat High Court

State Of Gujarat vs Babubhai Haksibhai Ninama on 1 April, 2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2032 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO                                Sd/-

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1     Whether Reporters of Local Papers may be allowed to                   YES
      see the judgment ?

2     To be referred to the Reporter or not ?                               YES

3     Whether their Lordships wish to see the fair copy of the               NO
      judgment ?

4     Whether this case involves a substantial question of law               NO
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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                     STATE OF GUJARAT
                           Versus
                 BABUBHAI HAKSIBHAI NINAMA
==========================================================
Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MANAN K PANERI(7959) for the Opponent(s)/Respondent(s) No. 1
MR MONAL S CHAGLANI(10240) for the Opponent(s)/Respondent(s)
No. 1
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 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                Date : 01/04/2024

                               ORAL JUDGMENT

1] This appeal has been filed by the appellant - State under

Section 378(1)(3) of the Code of Criminal Procedure, 1973 against

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the judgment and order of acquittal dated 01.06.2004 passed by

the learned Special Judge, Joint District and Additional Sessions

Judge, Fast Track Court No.8, Sabarkantha @ Modasa (Sabalpur)

(herein after referred to as 'the learned Trial Court') in Special

(ACB) Case No. 7 of 1997, whereby, the learned Trial Court has

acquitted the respondent from the offences punishable under

Sections 7, 13(1) (D), (1,2,3) & 13 (2) of the Prevention of

Corruption Act. The respondent is hereinafter referred to as 'the

accused' as he stood in the original case, for the sake of

convenience, clarity and brevity.

2] The brief facts that emerge from the record of the case

are as under:

2.1] That the accused was working as an unarmed, First

Grade Head Constable Buckle No. 336 in Malpur Police Station at

Sabarkantha in 1997 and was a public servant. That Jamnaben,

the cousin of the complainant Bhurabhai Punjabhai Damor residing

at village Agariya, Tal: Malpur, District: Sabarkantha had filed a

complaint against the complainant i.e. Bhurabhai Punjabhai Damor

and his brother Hurabhai in Malpur Police Station and the accused

had demanded for an amount of Rs.700/- to release the

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complainant and his brother on bail and for not beating them and

had accepted an amount of Rs.700/- in the presence of witness

witness Laxmanbhai. That the complainant Bhurabhai Punjabhai

Damor and his brother had appeared before the Malpur Police

Station with their sureties and at that time the accused had

demanded Rs.2,000/- out of which Rs.200/- was accepted from the

complainant and the complainant had stated that he would pay the

remaining amount after 3 to 4 days. That the complainant could

not pay the amount after 3 to 4 days as financial conditions was

not good and the accused had continuously demanded for the

remaining amount of Rs.1100/-. That the complainant promised to

pay the amount on 23.04.1997. That as the complainant did not

want to give the amount of illegal gratification, he filed the

complaint with the A.C.B. Police Station, Himmatnagar under

Sections 7, 13(1) (D), (1,2,3) & 13(2) of the Prevention of

Corruption Act, which was registered at C.R.No. 3 of 1997 on

22.04.1997.

2.2] That the trap laying officer called the panch witness

and arranged the trap on 23.04.1997 and the shadow witness

Laxmanbhai went to the Malpur Police Station where the accused

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demanded for an amount of illegal gratification. That the accused

took the complainant, shadow witness and Laxmanbhai into the

wireless room and accepted the amount of illegal gratification from

the complainant and at that time the complainant gave

predetermined signal and the member of the raiding party came

and caught the accused red handed. That the Investigating Officer

recorded the statement of the connected witnesses and after the

sanction was received, charge-sheet was filed against the accused

before the Sessions Court, Sabarkantha, which was registered as

Special ACB Case No. 7 of 1997.

2.3] That, the accused was duly summoned after the due

procedure under Section 207 of the Code of Criminal Procedure,

1973 was completed and a charge at Exh; 19 was framed against

the accused and the statement of the accused was recorded at

Exh: 20, wherein the accused denied the contents of the charge

and the entire evidence of the prosecution was taken on record.

2.4] The prosecution filed the following oral and documentary

evidence in support of their case.

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                          ORAL EVIDENCE

 Sr.                    Name                   Prosecution            Exh:

 No.                                           Witness No.





                      DOCUMENTARY EVIDENCE

 Sr.                     Particulars                            Exh:
 No.




            Inspector, A.C.B., Ahmedabad Zone

Malpur Police Station to the A.C.B.Police Station, Himmatnagar

10 Extract of Register of Malpur Police Station 38

2.5] After the closing pursis was filed by the learned

Additional Public Prosecutor at Exh: 40, the further statement of

the accused under Section 313 of the Criminal Procedure Code,

1973 was recorded, wherein, the accused has stated that he is

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innocent and he has not demanded and accepted any illegal

gratification from the complainant. That the learned trial Court on

appreciating the evidence of the prosecution found that the

demand and acceptance was not proved by the prosecution and

by the judgment and order dated 01.06.2004 acquitted the

accused from all the offences.

3] Being aggrieved and dissatisfied with the impugned

judgment and order of acquittal dated 01.06.2004, the appellant-

State has filed the present appeal mainly stating that the judgment

and order of acquittal passed by the learned Trial Court is contrary

to law and evidence on record and the learned Trial Court has

erred in concluding that the prosecution has failed to prove the

case against the accused beyond reasonable doubts. That the

accused is a public servant working in the police department and is

a member of the disciplined force and he has indulged in a grave

offence of demanding and accepting illegal gratification from the

complainant. That all the witnesses have deposed in favour of the

prosecution and the learned trial Court has given undue

importance to minor omission and contradictions and there was no

valid and proper reason for the learned trial Court to discard the

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evidence of the witnesses. That the recovery of the tainted

currency notes is proved from the possession of the accused and

there is ample evidence to show that there was demand and

acceptance of the illegal gratification by the accused. That the

learned trial Court has not appreciated the evidence of the panch

witness and the evidence of Trap Laying Officer as also the

Investigating Officer and hence have improperly acquitted the

accused. That the impugned judgment and order is perverse and

bad in law and has resulted in miscarriage of justice and hence the

appeal must be allowed and the accused must be convicted for the

said offence.

5] Heard learned Additional Public Prosecutor Ms. Jirga

Jhaveri for the appellate-State and learned advocate Mr. Manan K

Paneri for the respondent.

6] Learned Additional Public Prosecutor Ms. Jirga Jhaveri

for the appellate-State has taken this Court through the entire

evidence of the prosecution and has submitted that the

complainant has supported the case of the prosecution and has

clearly deposed that he had given Rs.400/- to the Trap Laying

Officer and the remaining amount of Rs.700/- was given by the

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Trap Laying Officer and the entire currency notes of Rs.1100/- was

laced with anthracene powder and kept in his pocket. That when

the complainant and the shadow witness went to the police station,

the accused had demanded for the amount of illegal gratification

tainted currency notes were recovered from the accused. That

during the cross examination, the complainant has not entirely

supported the case of the prosecution but the shadow witness,

who had accompanied the complainant has supported the case of

the prosecution and the entire case of the prosecution has proved

from the evidence of the Trap Laying Officer and the evidence of

the Investigating Officer. That in fact, the prosecution is proved all

the ingredients of demand, acceptance and the recovery and

hence the appeal must be allowed and the impugned judgment

and order must be quashed and set aside and the accused must

be convicted for the said offence.

7] Learned advocate Mr. Manan K Paneri for the

respondent has submitted that the learned trial Court has

appreciated all the evidence produced by the prosecution in proper

perspective and has given proper reasons for acquitting the

accused. That in fact, the complainant has not supported the case

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of the prosecution and even the shadow witness has deposed to

the effect that there was no demand whatsoever made by the

accused. That it is settled principle of law that demand of illegal

gratification is a sine qua non for any person to be convicted for

the offence punishable under Section 7 , 13(1)(d) and 13(2) of the

Prevention of Corruption Act and unless the prosecution proves

the aspect of demand beyond reasonable doubts, the accused

cannot be convicted for the said offence. That even for the

presumption under Section 20 of the Prevention of Corruption Act,

the demand must be proved beyond reasonable doubts and in the

entire evidence of the prosecution there is no evidence whatsoever

that any demand was made by the accused and hence the learned

trial Court has rightly appreciated the entire evidence and

acquitted the accused. That there is no perversity or illegality in the

impugned judgment and order of acquittal and hence the appeal of

the appellate must be dismissed.

7.1] Learned advocate for the accused has relied on the

judgment of the Hon'ble Supreme Court in the case of Krishan

Chander vs. State of Delhi reported in (2016) 3 Supreme Court

Cases 108 in support of his case.

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8] 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.

9] At the outset, it would also be appropriate to refer to

the decision of the Hon'ble Apex Court relied upon by the learned

advocate for the respondent in the case of Krishan Chander

(supra) wherein paras 35 to 38 , 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 the

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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.

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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

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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 under Section

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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 the currency notes were put in the drawer without his

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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."

10] To prove the case against the accused, the

prosecution has examined the PW No. 1 Bhurabhai Punjabhai

Damor at Exh: 21 and the witness is the complainant, who has

stated that his cousin sister Jamnaben Amrabhai Damor was

married in Uka village in Rajasthan and she used to abuse the

complainant stating that she was married at a wrong place and

they had a dispute about the marriage of Jamnaben. That,

Jamnaben and her father had filed a complaint against the

complainant and his brother Hurabhai and at that time the accused

had come to his house and had told that to come to the Malpur

Police Station. That Laxmanbhai Bhurabhai of his village had

mediated between them and when the accused had come to his

house had demanded an amount of Rs.700/- but as the

complainant had only Rs.200/-, he borrowed Rs.500/- from

Ratnabhai Lakhabhai and gave to the accused in the presence of

Laxmanbhai Bhurabhai. That the accused had told him to come

with his brother to the Malpur Police station with their sureties.

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That he went to the Malpur Police station with his brother Hurabhai

and the Sarpanch and at that time, the Sarpanch told him that the

accused had demanded for an amount of Rs.2000/- and as

Rs.700/- was given, the remaining amount of Rs.1300/- was to be

paid as illegal gratification. That the complainant had thereafter

Rs.250/- with him, out of which, he gave Rs.200/- and the

remaining amount of Rs.1100/- was to be paid on the fourth. That

the accused had thereafter come about five times to his house and

the complainant was told about the same by his father and the

complainant went to the ACB Office at Ahmedabad and filed the

complaint. That the complainant had Rs.400/- and the Trap Laying

Officer Mr. Puvar gave him another Rs.700/-, and called the panch

witnesses and the experiment of anthracene powder and

ultraviolet lamp was done. That the currency notes were laced with

anthracene powder and after the panchnama was drawn, the

complainant, the panch witness No. 1 and Laxmanbhai went to

Malpur Police Station. That, the accused was in the police station

and demanded for the amount and they were called to the wireless

room where the accused demanded for the amount of Rs.1100/-,

which was given and the accused had accepted the amount,

counted the same and placed it in the shirt pocket. That the

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complainant gave the predetermined signal and the members of

the raiding party came and caught the accused red handed and in

the ultraviolet lamp, the fingers of the accused were found with

blue florescent marks. That, the tainted currency notes were

recovered by the panch witness from the pocket of the accused.

During the cross examination, the witness has stated that the

amount of Rs.1100-Rs.1200/- that was discussed with the

accused was regarding the advocate fee, court expenses and

court fees and the discussion was between Laxmanbhai and the

accused. That Laxmanbhai thought that the amount was more and

had taken him to the ACB Police Station at Ahmedabad and

Laxmanbhai had discussed the entire matter with Mr. Puvar. That

the complainant was sitting outside and after the complaint was

written, he was merely asked to affix his thumb impression and he

does not know what was written in the complaint as he does not

know how to read. That he or the panch witnesses were not

searched and the complaint and the panchnama were written by

the constable and Mr. Puvar had dictated the same. That he had

not discussed anything with the accused but the entire discussion

took place between Laxmanbhai and the accused and the accused

had not demanded the amount of Rs.1100/- as illegal gratification

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and he has not given the same as illegal gratification and the

accused has not accepted the same. That as Laxmanbhai and the

accused had good relations, he had given an amount of Rs.1100/-

to the accused for expenses of the Court. That he does not know

where Mr. Puvar got the Rs.700/- from and he has not given

Rs.500/- or Rs.200/- earlier to the accused but had given them to

Laxmanbhai.

10.1] The prosecution has examined prosecution witness

No. 2 Jethabhai Khusalbhai Parmar at Exh: 25 and this witness is

the panch witness who has accompanied the complainant at the

time of the trap. The witness has supported the case of the

prosecution and has narrated the entire sequence of events from

the time he was called to the ACB office and the experiment of

anthracene powder and the ultraviolet lamp was done in his

presence and the presence of the other panch witnesses as also

the complainant and thereafter when he accompanied the

complainant as a shadow witness to the police station, they were

called to the wireless room and at that time the accused

demanded for the amount and the complainant gave the tainted

currency notes to the accused and the accused counted the same

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and put it in his short pocket. That the witness went to the window

and gave the predetermined signal and the members of the raiding

party came and recovered the tainted currency notes of Rs.1200/-

from the accused. That the necessary procedure was done and

the panchanama was drawn and the signatures of all concerned

were taken. During the cross examination, the witness has stated

that Part-I of the panchnama and Part-II of the panchanama was

dictated by Mr. Puvar and was written by the writer and he or the

panch witness no. 2 has not dictated the panchnama. That after

the panchnama was drawn, both the panch witnesses were told to

affix their signatures and they have done so. That the panchnama

was not drawn as events unfolded and the conversation had taken

place between the accused and Laxmanbhai and not with the

complainant.

10.2] The prosecution has examined the Prosecution

Witness No. 3 Bhamarsinh Vadansinh Purvar at Exh; 28 and the

witness is the Trap Laying Officer, who has recorded the complaint

of the complainant has arranged the trap and had caught the

accused red handed. During the cross examination, the witness

has stated that the demand of Rs.1100/- was not made by the

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accused in his presence and it was not accepted by the accused in

his presence and during the trap proceedings, the members of the

raiding party and the complainant and the panch witnesses were

not searched. That the complainant had not produced any

document regarding the complaint filed by Jamnaben and at the

time of the trap, there were other persons in the PSO room but

their statements were not recorded.

10.3] The prosecution has examined Prosecution Witness

No. 4 Gopalbhai Kalubhai Parmar at Exh: 31 and this witness is

the competent authority, who has given the order of sanction for

prosecution. The witness was the District Superintendent of Police

and he had given the order of sanction for prosecution, which is

produced at Exh; 32. The witness has, during the cross

examination, stated that along with the document, the ACB

department had sent him the draft/ proforma for sanction for

prosecution.

10.4] The prosecution has examined Prosecution Witness

No. 5 Hirabhai Gendabhai Damor at Exh: 33 and this witness is

the Investigating Officer, who has conducted the investigation and

filed the charge sheet against the accused. During the cross

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examination, the witness has stated that the complaint was filed by

the complainant on 22.04.1997 but it was registered on 23.04.1997

after the trap was successful.

11] In the entire evidence of the prosecution, it is the case

of the prosecution that the accused had demanded for the amount

of Rs.1100/- from the complainant but there is no iota of evidence

that the accused and the complainant had any direct conversation

regarding any amount of illegal gratification. What emerges from

the record in the entire evidence of the prosecution that the

presence of Laxmanbhai is found throughout right from the time of

the filing of the complaint to the going to the police station and

having the conversation regarding the initial demand of Rs.2000/-

and thereafter the demand of Rs.1300/- but no witness

Laxmanbhai has been examined by the prosecution before the

learned trial Court. The complainant has, during the cross

examination, clearly stated that as he and his brother Hurabhai

were to be produced before the learned Magistrate Court at

Modasa, Laxmanbhai had told him that the advocate fees, court

fees and other expenses would be around Rs.1100-1200/- and as

Laxmanbhai and the accused had good relations, the accused was

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to arrange for the court procedure and the amount was to be paid

to the lawyer as lawyer fees and court procedure fees. That there

is no evidence regarding the earlier demand of Rs.700/- or

Rs.200/- and in fact the complainant has stated that earlier the

amount was paid in the presence of his father but the father of the

complainant has not been examined to prove the prior demand.

That even the panch witness, who was present at the time of the

trap, has categorically stated that the accused did not demand for

any amount of illegal gratification from the complainant and the

conversation had taken place between the accused and

Laxmanbhai. That in the entire evidence, there is no iota of

evidence of demand, which is a sine-qua-non for convicting the

accused under the Prevention of Corruption Act. In the evidence of

the prosecution, there is evidence that the tainted currency notes

were recovered from the possession of the accused but mere

recovery of the currency notes cannot constitute the offence under

Section 13 of the Prevention of Corruption Act unless the

prosecution proves the ingredient of demand beyond reasonable

doubts. As per the judgment of the Hon'ble Apex Court in Krishan

Chander (supra), the accused must have voluntarily accepted the

amount knowing it to be a bribe and in the absence of proof of

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demand for illegal gratification, the legal presumption under

Section 20 of the Prevention of Corruption Act would not arise and

it would not be sufficient to bring home the charge against the

accused under Section 7 or Section 13(1)(d) of the Prevention of

Corruption Act.

12] As discussed above and in light of the judgment of the

Hon'ble Apex Court in the case of Krishan Chander (supra), the

evidence of the prosecution is contrary and far from convincing

and the learned trial Court has discussed all the aspects of the

evidence in proper perspective and has given adequate reasons

for acquittal of the accused. In the considered opinion of this Court,

the learned trial Court is completely justified in acquitting the

accused from all charges levelled against him and this Court finds

no perversity, illegality or infirmity in the findings recorded by the

learned trial Court and is in complete agreement with the findings,

ultimate conclusion and the resultant order of acquittal recorded by

the learned Trial Court.

13] This Court finds no reason to interfere with the

impugned judgment and order and the present appeal is devoid of

merits and resultantly, the same is dismissed. The impugned

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judgment and order dated 01.06.2004 passed by the learned

Special Judge, Joint District and Additional Sessions Judge, Fast

Track Court No.8, Sabarkantha @ Modasa (Sabalpur) in Special

(ACB) Case No. 7 of 1997 is hereby confirmed. Bail bonds stand

canceled.

14] Record and proceedings be sent back to the

concerned Trial Court forthwith.

Sd/-

(S. V. PINTO,J) VVM