Gujarat High Court
Majidbhai Sulemanbhai Dela (Sumra) vs State Of Gujarat on 1 April, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 261 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 see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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MAJIDBHAI SULEMANBHAI DELA (SUMRA)
Versus
STATE OF GUJARAT
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Appearance:
MR SHAKEEL A QURESHI(1077) 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 : 01/04/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original
accused under Section 374 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'the Code')
against the judgment and order of conviction in Special
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Case No. 05 of 2000 passed by the learned Presiding
Officer, 6th Fast Track Court, Rajkot (herein after referred
to as 'the learned Trial Court') on 25.01.2006, whereby, the
learned Trial Court has convicted the respondent for the
offences punishable under Sections 8 and 9 of the
Prevention of Corruption Act, 1988 (herein after referred to
as 'the P.C.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 relevant facts leading to filing the conviction appeal
are as under:
2.1. That the accused was working as a daily wager with
Rohitgiri Amrutgiri Goswami, who was a contractor of the
Gujarat Electricity Board (hereinafter referred to as 'the
GEB') for the year 1999-2000 and the contract was given
for disconnection and reconnection of the electric
connection of the consumers of the GEB. The accused was
given a list of the consumers whose electric connections
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were to be disconnected or reconnected and had to work
accordingly. That on 08.12.1999, an order was passed to
disconnect certain electric connections of consumers of the
GEB and accordingly, a list was given on 10.12.1999 to
another dailywager Gadhavibhai and the accused had
gone on 21.12.1999 to "Friend Fast Food" belonging to the
complainant Divyesh Prafulchandra Kotak as his electric
connection was to be disconnected. That the accused
demanded for an amount of Rs.1000/- and the
complainant gave him an amount of Rs.100/- and the
remaining amount of Rs.900/- was to be paid on the next
date i.e on 22.12.1999. That the complainant did not want
to give the amount of illegal gratification and hence, went
to the ACB Police Station, Rajkot on 22.12.1999 and filed
the complaint under Sections 8 and 9 of the P.C.Act, which
was registered as C.R.No.18 of 1999 on 22.12.1999. That the
Trap Laying Officer called the panch witnesses and the
experiment of anthracene powder and ultraviolet lamp
was carried out and explained to the complainant and the
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panch witness and one panch witness accompanied the
complainant to his shop. The accused came to the shop of
the complainant at 16.30 hours on 22.12.1999 and
demanded the amount of illegal gratification of Rs.900/-
and the tainted currency notes were given by the
complainant to the accused, who received the amount of
illegal gratification with his right hand and while he was
counting the notes, the complainant came out of the shop
and gave the pre-determined signal and the members of
the raiding party rushed into the shop and caught the
accused red handed. The Investigating Officer recorded
the statement of the panch witnesses and drew the
necessary panchnama and after concluding the
investigation, a charge sheet was filed before the learned
Sessions Court, Rajkot against the accused, which came to
be registered as Special ACB Case No. 5 of 2000.
2.2. The accused was duly summoned and after following the
procedure of Section 207 of the Code of Criminal
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Procedure, a charge was framed by the learned Trial Court
at Exh.8 and the statement of the accused was recorded at
Exh.9, wherein, the accused denied all the contents of the
charge and the entire evidence of the prosecution was
taken on record. The prosecution has produced the
following oral as well as documentary evidence in support
of the case.
ORAL EVIDENCE :
Sr.No. Particulars Exh.
DOCUMENTARY EVIDENCE :
Sr.No. Particulars Exh.
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5 Order to disconnect the electric connection 45
2.3. After the closing pursis was submitted by the learned APP,
the further statement of the accused under Section 313 of
the Code of Criminal Procedure was recorded and the
arguments of the learned APP and learned advocate for
the accused were heard and the learned Trial Court, by the
impugned judgment and order dated 25.01.2006, convicted
and sentenced the accused to 6 months rigorous
imprisonment and fine of Rs.500/- and in default,
imprisonment of 1 month for the offence punishable under
Section 8 of the P.C.Act and to 6 months rigorous
imprisonment and fine of Rs.500/- and in default,
imprisonment of 1 month for the offence punishable under
Section 9 of the P.C.Act.
3. Being aggrieved and dissatisfied with the impugned
judgment and order of conviction dated 25.01.2006, the
appellant - accused has filed the present appeal mainly
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contending that the accused is a daily wager of a
contractor of the GEB namely Rohitgiri Amritgiri
Goswami and the prosecution has not produced any
evidence on record to show that the accused was, in fact, a
daily wager of the contractor Rohitgiri Amritgiri
Goswami. It is the case of the prosecution that a list for
disconnection of the electric connection of the consumers
of the GEB was given to daily wager Gadhavibhai and the
list for disconnection of the electric connection was not
given to the accused and hence, there is no iota of evidence
that the accused was, in any way, connected with the
contractor. That the judgment and order of conviction is
rendered without appreciating the relevant material
evidence on record and even, the contractor Rohitgiri
Amritgiri Goswami, PW-7, examined at Exh.63, has
categorically stated that he had engaged Rajubhai,
Majubhai and Krushnabhi and he had not engaged the
accused for any work. He had never called him or engaged
him for any work of his contract. There is no iota of
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evidence that the accused was ever working in the contract
of the GEB. For the offence under section 9 of the P.C.Act,
the accused must have exercised his personal influence
with a public servant. It is not the case of the prosecution
that the accused has exercised his personal influence with
any public servant. It is not the case of the prosecution that
the accused had demanded any amount to exercise his
personal influence with any officer or employee of the
GEB. The conviction under Sections 8 and 9 of the P.C.Act
is prima-facie illegal and liable to be quashed and set aside
and it is settled law that where a public servant employs a
person to assist him in his work and pays him out of his
own allowances, the latter is not a public servant. That the
principles of joint liability cannot be applied to the person
who is not a public servant and in fact, no charge can be
legally framed against the accused under the P.C.Act. That
even the panch witness has categorically stated that he has
not dictated the panchnama and the impugned judgment
and order being illegal and perverse, is liable to be
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quashed and set aside and the accused must be acquitted
from said the offences.
4. Heard learned advocate Mr.Shakeel Qureshi for the
appellant - accused and learned APP Ms. Jirga Jhaveri for
the respondent - State.
5. Learned advocate Mr. Shakeel Quresh for the accused has
taken this Court through the entire evidence of the
prosecution produced before the learned Trial Court and
has submitted that there is no iota of evidence to show that
the accused had demanded for any bribe and the accused
was never a daily wager with the contractor - Rohitgiri
Amritgiri Goswami. The contractor - Rohitgiri Amritgiri
Goswami has himself admitted before the learned Trial
Court that the accused was never called by him to do any
work on his behalf and as per the case of the prosecution,
a list for disconnection of the electric connections of the
consumers of the GEB was given to Gadhavibhai. There
was no reason for the accused to visit the shop of the
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complainant and the prosecution has produced the
contract agreement of the GEB with Rohitgiri Amritgiri
Goswami, but there was no contract with the present
accused. That, in fact, Section 8 of the P.C. Act applies to
an abettor of the offence and it would apply to a person
who has taken the amount of illegal gratification to
influence any public servant. The accused is not charged
with any material to show that he had influenced any
public servant and demanded the amount of bribe on
behalf of some public servant and there is no allegations
against the accused that he had exercised his personal
influence with any public servant to do or not to do any
work. That the charge of receiving illegal gratification for
influencing a public servant must specify the person, who
was influenced and in the absence of such specification,
the conviction is prima-facie illegal and perverse. The
complainant, during his cross-examination before the
learned Trial Court, could not identify the currency notes
and even, the panchnama has been dictated by the Police
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Inspector in his chamber to his writer and the panchnama
is not dictated by any of the panch witnesses. That the
entire panchnama was drawn in the ACB Police Station
and the complainant and the panch witnesses were mere
spectators and they had affixed their signatures on the
ready panchnama. That the ingredients of demand and
acceptance are not proved by the evidence of the panch
witnesses and hence, the impugned judgement and order
of the learned Trial Court is required to be quashed and set
aside as there is no evidence to convict the accused under
Sections 8 and 9 of the P.C.Act. Learned advocate for the
accused has urged this Court to allow the appeal and to
acquit the accused for all the offences.
6. Learned advocate Mr. Shakeel Qureshi for the accused has
relied upon the decision of the Apex Court in the case of
Neeraj Dutta Vs. State (Government of NCT of Delhi)
reported in (2023) 4 SCC 731.
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7. Learned APP Ms. Jirga Jhaveri for the respondent - State
has submitted that the prosecution has proved all the
ingredients of demand, acceptance and recovery and the
prosecution has examined the complainant at Exh.21 and
he has identified the accused, who had come to his shop
and demanded the amount of Rs.1000/- as illegal
gratification stating that he would not disconnect his
electric connection. The complainant has also admitted
that after filing of the complaint, he and the shadow
witness were in his shop and the accused had come and
demanded the amount of illegal gratification, which was
given by the complainant and the accused has been caught
red handed with the tainted currency notes. That the
prosecution has also produced the agreement between the
GEB and the contractor - Rohitgiri Amritgiri Goswami at
Exh.46, which clearly shows that the contractor - Rohitgiri
Amritgiri Goswami had executed a contractual agreement
with the GEB and the list of the consumers whose electric
connection were to be disconnected or reconnected were
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given to Gadhavibhai and he had employed the accused
and other persons to do the said work. That the learned
Trial Court has properly appreciated the evidence of
Arvinbhai Ranchhodbhai Patel, the Trap Laying Officer,
who has fully supported the case of the prosecution. The
learned Trial Court has convicted the accused after proper
appreciation of the entire evidence and the tainted
currency notes were recovered from the hands of the
accused, which was also found with the traces of
anthracene powder and hence, no interference of this
Court is required in the impugned judgment and the order
of conviction passed by the learned Trial Court and hence,
the appeal of the accused must be rejected.
8. The accused has been charged under Sections 8 and 9 of
the P.C.Act and it is the case of the prosecution that the
accused was working as a daily wager with the contractor
- Rohitgiri Amritigiri Goswami, who had entered into a
contractual agreement with the GEB to disconnect or
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reconnect the electric connections of the consumers of the
GEB. The complainant - Divyesh Prafulchandra Kotak was
the proprietor of "Friend Fast Food" and the prosecution
has examined the complainant - Divyesh Prafulchandra
Kotak at Exh.21. The witness has stated that on 21.12.1999,
when he was in his shop at around 2:00pm, the accused
had come to his shop and had stated that his electric meter
would have to be disconnected and sealed and had
demanded an amount of Rs.2500/- and after bargaining,
the amount was settled at Rs.1000/-. The complainant had
given him Rs.100/- and had told him that he would give
the remaining amount of Rs.900/- on the next date i.e. on
22.12.1999. The complainant went to the ACB Police
Station, Rajkot and filed the complaint. The complainant
has narrated the entire sequence and eventsm that had
occurred and has stated that the panch witnesses were
called and the experiment of anthracene powder and
ultraviolet lamp test was explained and carried out in their
presence and thereafter, the complainant had accompanied
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by the shadow witness gone to his shop at around 13.50
hours and they waited for the accused at the shop and at
around 16.30 hours, the accused came and told him that he
would file a report that the meter was working slowly and
he would come on Sunday to do the work and demanded
the amount of Rs.900/- as illegal gratification. That the
tainted currency notes of Rs.900/- was given by the
complainant to the accused, who had accepted the same
with his right hand. That while the accused was counting
the currency notes, the complainant went out the shop and
gave the pre-determined signal and at that time, the Trap
Laying Officer along with panch witness No. 2 and the
members of the raiding party rushed into the shop the
caught the accused red handed. That the experiment of
ultraviolet lamp was done and the hands of the accused
were found marked with florescent blue colour in the
ultraviolet lamp. During the cross-examination, the
complainant had stated that he would not be able to
identify the accused outside the Court and he had not
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affixed the signature on the muddamal currency notes.
That he would not be able to say as to whether the same
currency notes were used at the time of the trap and he has
identified the muddamal currency notes as they were
shown to him before the Court. That the panchnama was
dictated by Patel Saheb in his chamber to his writer and
the signatures of the panch witnesses were affixed at the
place where the experiment was conducted. The
panchnama regarding the events that had occurred in the
shop were drawn at the ACB Police Station. That he and
the panch witnesses were sitting outside at the place
where the experiment was carried out and Patel Saheb had
come there and had taken their signatures. The
complainant had produced the complaint at Exh.22.
8.1. The prosecution has examined PW-2 Kishorgiri Bhikhugiri
Goswami at Exh.3. This witness is the shadow witness,
who had accompanied the complainant to his shop. The
witness has narrated all the facts that occurred after he was
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called as the panch witness and the explanation about the
anthracene powder and ultraviolet lamp was given to
them and the experiment was carried out and thereafter,
he had accompanied the complainant to his shop. The
witness has stated that while they were sitting in the shop
of the complainant, the accused came to the shop and at
that time, the complainant asked him whether he had filed
the report about the small strip that was used for slowing
the meter and at that time, the accused had stated that he
has not filed the report and he would come on a holiday
and would do his work. That the complainant had,
thereafter, given the tainted currency notes of Rs.900/- to
the accused and the accused took them and placed them in
his left side shirt pocket. That at that time, the complainant
went out of the shop and gave the pre-determined signal
and the members of the raiding party rushed into the shop
and caught the accused red handed. During the cross-
examination by the learned advocate for the accused, the
witness has stated that he had gone as a panch witness on
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the say of his superior officer and if he did not go, his
officer would terminate him from the office. That he had
not dictated anything in the panchnama and while he was
in the ACB Police Station, Patel Saheb was in his chamber
and both the panch witnesses were at another place and he
had merely affixed the signatures on the panchnama on
the say of Patel Saheb and the panchnama was completed
within 15 to 20 minutes.
8.2. The prosecution has examined PW-3 Tusharbhai Mohanlal
Dholakiya at Exh.38. This witness has accompanied the
members of the raiding party on the day of the trap. The
witness has stated that he was called to the ACB Police
Station on 22.12.1999 and the experiment of anthrecene
powder and ultraviolet lamp was explained and carried
out in the presence of the complainant and the panch
witnesses and he was instructed to remain with Patel
Saheb as a member of the raiding party. That after the
complainant gave the pre-determined signal, he had gone
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into the shop of the complainant with the members of the
raiding party and he was instructed to take the 9 currency
notes of the denomination of Rs.100/- from the hands of
the accused and the witness has deposed about the entire
incident that had taken place. During the cross-
examination, the witness has stated that he has not seen
the accused accepting the amount from the complainant
and he had not heard any conversation that had taken
place between the complainant and the accused.
8.3. The prosecution has examined PW-4 Kishorchandra
Babulal Mehta at Exh.44. This witness was working as a
senior assistant in the GEB and this witness has produced
the contractual agreement between the GEB and the
contractor -Rohitgiri Amritgiri Goswami at Exh.46. The
witness has stated that an agreement was entered into
between the GEB and contractor - Rohitgiri Amritgiri
Goswami for disconnection and reconnection of the
electric connection of the consumers and the said Rohitgiri
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Amritgiri Goswami had employed two persons namely
Majidbhai and Gadhavibhai and they used to come to the
office of the GEB. That the list of the consumers whose
electric connections were to be disconnected was given to
Gadhavibhai and the same is produced at Exh.47 and the
order for disconnecting the electric connections including
the complainant's electric connection is produced at
Exh.45. During the cross-examination, this witness has
stated that the contract between the GEB and the
contractor Rohitgiri Amritgiri Goswami was not given by
his office and it was executed on the stamp paper of
Rs.20/- and other documents at Exh.46 are not the
documents connected with the agreement, but are the bills
of the payments passed. That the agreement on the stamp
paper of Rs.20 was not executed in his presence and he
does not know the terms and conditions of the agreement.
That he has no documents to show that the contractor -
Rohitgiri Amritgiri Goswami had kept Majidbhai on
service and there is no documents to show that Majidbhai
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was instructed to disconnect the electric connection of the
consumers.
8.4. The prosecution has examined PW-5 Arvindbhai
Ranchhodbhai Patel at Exh.48. This witness is the Trap
Laying Officer and he has fully supported the case of the
prosecution. This witness has deposed the entire facts right
from filing of the complaint till the trap was successful.
During the cross-examination, this witness has stated that
the accused was the employee of the GEB and he was
demanding the bribe and at the time of filing the
complaint, he had not inquired from the complainant
about the accused. That he had, thereafter, found that the
accused was a daily wager of contractor - Rohitgiri
Amritgiri Goswami and the only information that he had
at the time of trap was that the accused was working with
the contractor - Rohitgiri Amritgiri Goswami, but no
documents to that effect were collected. The accused had
his identity card and the documents of the GEB at the time
of the trap and he had seen the identity card, which
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reflected that the accused was an employee of the
contractor - Rohitgiri Amritgiri Goswami. That the identity
card that was found was not mentioned in the panchnama
and the other documents regarding the GEB that were
found from the accused were also not mentioned in the
panchnama.
8.5. The prosecution has examined PW-6 Omprakash Barusing
Sharma at Exh.57. This witness is the Investigating Officer,
who has carried out the investigation and filed the charge
sheet. This witness, during his cross-examination, has
stated that when he had taken over the investigation, there
was no document to show that the accused was an
employee of the GEB. That besides the oral statement of
the contractor - Rohitgiri Amritgiri Goswami, there was
no evidence to show that the accused was working with
the contractor - Rohitgiri Amritgiri Goswami.
8.6. The prosecution has examined PW-7 Rohitgiri Amritgiri
Goswami at Exh.63. This witness is the contractor, who
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had entered into the contractual agreement with the GEB
for disconnection and reconnection of the electric
connections of the consumers of the GEB. This witness has
stated that he had employed Rajubhai, Majubhai and
Krushanbhai for placing new meters, collecting the bills of
the GEB and disconnection and reconnection of the electric
connection of the consumers of the GEB. That he had not
employed Majidbhai and has not identified the accused
before the Court. This witness has categorically stated that
he has not employed the accused, who was present before
the Court for any work. During the cross-examination, this
witness has also stated that he knows Majid Suleman, who
was named in his statement before the Investigating
Officer as his brother Yusufbhai was his friend and Majid
Suleman was working with him for a long time. That the
person, who is present before this Court, is not Majidbhai
and the person, whom he had employed, did not have to
go to the GEB and he has not introduced any persons to
the GEB officers.
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9. On appreciation of the entire evidence of the prosecution,
it is the case of the prosecution that the accused was
working as a daily wager with contractor - Rohitgiri
Amritgiri Goswami, who has been examined as PW-7 at
Exh.63 and has stated that he was, in fact, working as a
contractor for placing new meters, collecting the bills of
the GEB and disconnection and reconnection of the electric
connection of the consumers of the GEB. The prosecution
has produced the agreement at Exh.46, but there is no iota
of evidence that the accused was, in fact, working as a
daily wager with the contractor - Rohitgiri Amritgiri
Goswami. That the contractor - Rohitgiri Amritgiri
Goswami has categorically denied that the accused had
ever worked with and he has not identified the accused
before the Court and in the absence of any evidence that
the accused was working as a daily wager with the
contractor - Rohitgiri Amritgiri Goswami, it cannot be
presumed that the accused was working on behalf of the
GEB.
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10. The accused has been charged with the offences under
Sections 8 and 9 of the P.C.Act and it would be apt to refer
to the provision of Sections 8 and 9 of the P.C.Act, which
read as under:
"8. Taking gratification, in order, by corrupt or illegal
means, to influence public servant :-Whoever
accepts or obtains, or agrees to accept, or attempts to
obtain, from any person, for himself or for any other
person, any gratification whatever as a motive or
reward for inducing, by corrupt or illegal means, any
public servant, whether named or otherwise, to do or
to forbear to do any official act, or in the exercise of
the official functions of such public servant to show
favour or disfavour to any person, or to render or
attempt to render any service or disservice to any
person with the Central Government or any State
Government or Parliament or the Legislature of any
State or with any local authority, corporation or
Government company referred to in clause (c) of
section 2, or with any public servant, whether named
or otherwise, shall be punishable with imprisonment
for a term which shall be not less than three years but
which may extend to seven years and shall also be
liable to fine.".
"9. Taking gratification, for exercise of personal
influence with public servant:- Whoever accepts or
obtains or agrees to accept or attempts to obtain,
from any person, for himself or for any other person,
any gratification whatever, as a motive or reward for
inducing, by the exercise of personal influence, any
public servant whether named or otherwise to do or
to forbear to do any official act, or in the exercise of
the official functions of such public servant to show
favour or disfavour to any person, or to render or
attempt to render any service or disservice to any
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person with the Central Government or any State
Government or Parliament or the Legislature of any
State or with any local authority, corporation or
Government company referred to in clause (c) of
section 2, or with any public servant, whether named
or otherwise, shall be punishable with imprisonment
for a term which shall be not less than three years but
which may extend to seven years and shall also be
liable to fine.".
11. To prove the offence under Section 8 of the P.C.Act, the
prosecution has to prove that the accused had accepted or
obtained the amount of illegal gratification from any
person for himself or for any other person to induce by
corrupt or illegal means, any public servant to do or to
forbear to do any official act or to show favour or
disfavour to any person. To prove the offence under
Section 9 of the P.C.Act, the prosecution has to prove that
the accused had accepted or agreed to accept from any
person for himself or for any other person, any
gratification for inducing by the exercise of his personal
influence any public servant or to do or to forbear to do
any official act to favour or disfavour any person. If the
charge framed at Exh.8 is perused, the charge does not say
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that the accused had obtained the illegal gratification to
influence any public servant to show favour or disfavour
to the complainant and in the entire evidence, no public
servant is named. There is no iota of evidence in the
deposition of PW-4 Kishorchandra Babulal Mehta, who is
working as a Senior Assistant in the GEB, that the accused
was, at any point of time, in the employment of contractor
- Rohitgiri Amritgiri Goswami and there is no cogent and
convincing evidence as to why the accused had demanded
the illegal gratification. There is no evidence that, in fact,
the accused had to disconnect the electric connection of the
complainant and from the evidence of the prosecution, it
appears that the contractor - Rohitgiri Amritgiri Goswami
had employed one Gadhavibhai, who had gone to the GEB
Office and accepted the list of the consumers whose
electric connections had to be disconnected. That in fact, in
the deposition of the complainant, the complainant had
asked him whether he had filed the report about his
electric meter and the accused had stated that he would
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come on Sunday. From the deposition of PW-2 Kishorgiri
Bhikhugiri Goswami at Exh.32, the conversation that had
taken place between the accused and the complainant was
to the effect that the complainant asked the accused
whether he had filed the report and whether he had done
anything about the report that his meter had a small strip
and the accused had stated that he would come on a
holiday and would do his work. That in the deposition of
the panch witness, there is no evidence that the accused
had demanded the amount of illegal gratification to
influence any public servant and that he would exercise
his personal influence with any public servant to do or not
to do some act, which would favour the complainant. It
appears that the complainant himself had handed over the
currency notes of Rs.900/- to the accused and had gone
out of the shop and had given pre-determined signal and
the Trap Laying Officer and the members of the raiding
party came and caught the accused red handed. What
emerges from the record of the evidence of the prosecution
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is that 9 tainted currency notes of denomination of
Rs.100/- each were recovered from the possession of the
accused, but there is nothing on record to show that the
accused was, in fact, working on behalf of the GEB and
that the accused had done any work on behalf of the GEB
and had tried to use his influence with any public servant
or any officer of the GEB to do or to forbear any act.
12. The Apex Court, in the case of Neeraj Dutta (Supra), has
observed in Para-88, as under:
88. What emerges from the aforesaid discussion is
summarised as under:
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.
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88.4. (d) In order to prove the fact in issue, namely, the
demand and acceptance of 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 e 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 Sections 13(1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (1) 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 acceptance or receipt of an illegal
gratification without anything more would not
make it an offence under Section 7 or Sections
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 9 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 a
payment made which is received by the public
servant, would be an offence of obtainment
under Sections 13(1)(d)(i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to the
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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) Insofar 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 presumption is also subject to rebuttal. Section
20 does not apply to Sections 13(1)(d)(i) and (ii) of
the Act.
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."
13. The learned Trial Court has relied upon the deposition of
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the Trap Laying Officer and has convicted the accused, but
has not considered that there is no iota of evidence to show
that the accused was an employee of the contractor -
Rohitgiri Amritgiri Goswami, who had executed the
agreement with the GEB and that the accused was
working on behalf of the GEB. The contractor - Rohitgiri
Amritgiri Goswami has categorically denied that he had
ever employed the accused to work on his behalf and there
is no iota of evidence that the accused had made any
demand of illegal gratification either prior to filing of the
complaint or at the time of the trap and in the absence of
cogent and convincing and reliable evidence regarding the
demand, it cannot be presumed that the accused had
accepted the illegal gratification from the complainant.
14. As per the settled principles of law, proof of demand and
acceptance of the illegal gratification is a sine qua non in
order to establish the guilt of the accused under the
P.C.Act and the accused cannot be convicted in the
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absence of evidence of demand and unless the evidence of
demand is clear, cogent and reliable, no conviction can be
recorded. The evidence of the prosecution suffers from
many infirmities and as discussed above, the prior
demand and demand at the time of trap are not proved
and in absence of proof of demand, this Court is of the
opinion that the prosecution has not been able to bring
home the charge against the accused beyond reasonable
doubts That the evidence is contradictory and far from
convincing and there is no reliable evidence to support the
conviction of the accused. That the learned Trial Court has,
in absence of any evidence of demand of illegal
gratification and in absence of evidence to show that the
accused was, in any manner, connected with the GEB, has
passed the order of conviction, which is improper and the
conviction of the accused under Sections 8 and 9 of the
P.C.Act could not have been invoked. Consequently, the
appeal succeeds and is allowed.
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15. The impugned judgment and order of conviction in
Special Case No. 05 of 2000 passed by the learned Special
Judge and Presiding Officer, 6th Fast Track Court, Rajkot
on 25.01.2006 for the offences punishable under Sections 8
and 9 of the P.C.Act, 1988 is hereby quashed and set aside
and the accused is acquitted from all the charges against
him. Bail bonds stand cancelled. Fine to be refunded to the
accused after due verification.
16. Record and proceedings be sent back to the concerned
Trial Court forthwith.
Sd/-
(S. V. PINTO, J)
F.S.KAZI....
