Gujarat High Court
Ramsingbhai Abdabhai Vasava vs State Of Gujarat on 16 April, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1734 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
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 interpretation of the Constitution of No
India or any order made thereunder ?
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RAMSINGBHAI ABDABHAI VASAVA
Versus
STATE OF GUJARAT
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Appearance:
MR BRIJESH K RAMANUJ(9898) 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 : 16/04/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant under
Section 374 of Code of Criminal Procedure, 1973 against the
judgement and order of conviction passed by the learned
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Special Judge, Fast Track Court No. 5, Bharuch,
(hereinafter referred to as "the learned Trial Court") in
Special Corruption Case No. 6 of 1999 on 30.07.2005,
whereby, the learned Trial Court has convicted the
appellant for the offence punishable under Sections 7, 13(1)
(d) and 13(2) of the Prevention of Corruption Act, 1988
(hereinafter referred to as "the PC Act").
The appellant is hereinafter referred to as the accused
as he stood in the original case for the sake of convenience,
clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 That the accused was working as an Assistant Sub-
Inspector, Buckle No. 1137 in Nabipur Police Station, Zanor
Beet and was a public servant. That the complainant
Melabhai Mohanbhai Vasava residing at Navinagari,
Orpatar, Zanor, Taluka and District Bharuch was doing the
retail sale of fish besides the bus stand and on 21.01.1999,
at around 10.00 am Babubhai Valibhai and his sister had
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come to buy fish and had asked for the price of one kilo fish
and he had stated that it was Rs. 60/- per kilo and they had
bought one kilo fish. That after half an hour, Homeguard
Babubhai came to his house and told him that he had taken
more price for the fish and had given less fish and had
threatened that he would file a police case against him. That
at around 11.30, one policeman Maheshbhai came to his
house and told him that the accused was calling him and he
went to the police gate which was situated near Zanor Bus
Stand. That the accused met him and told him that Babu
had filed a complaint and he would have to go to Nabipur
Jail and had demanded an amount of Rs. 1000/- to settle
the case. After bargaining the amount was fixed at Rs.
700/- and as he had Rs. 500/- with him, he had given the
accused the amount of Rs. 500/- and had stated that the
remaining amount of Rs. 200/- would be paid later and at
that time, the accused told him to pay the amount on
Saturday till 06.00 pm. That the complainant did not want
to pay the amount of illegal gratification and hence, filed the
complaint with the ACB Police Station, Bharuch which was
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registered at C.R. No. 2/1999 on 23.01.1999. The Trap
Laying Officer called the panch witnesses and after the
experiment of anthracene powder and the ultraviolet lamp
was carried out and explained to the panch witnesses and
the complainant, the trap was arranged and on 23.01.1999,
the accused was in Zanor Police Gate and he accepted the
amount of illegal gratification of Rs. 200/- from the
complainant and after the predetermined signal was given,
the members of the raiding party rushed in and the accused
was caught red handed. That after the statements of the
connected witnesses were recorded and the panchnama was
drawn, the Investigating Officer filed the charge-sheet before
the Sessions Court, Bharuch which was registered as
Special Corruption Case No. 6/1999.
2.2. That the accused was duly served with the summons
and the accused appeared before the learned Trial Court
and after the procedure under Section 207 of Code of
Criminal Procedure, 1973, the charge was framed by the
learned Trial Court at Exh. 5 and the statement of the
accused was recorded at Exh. 6. The accused denied all the
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contents of the charge and the entire evidence of the
prosecution was taken on record.
2.3 The prosecution produced the following oral evidence
to bring home the charge against the accused.
Sr. No. PW Particulars Exh.
2.4 The prosecution also produced the following
documentary evidence to bring home the charge against the
accused.
Sr. No. Particulars Exh.
2.5 That after the closing pursis was submitted by the
learned APP at Exh. 51, the further statement of the
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accused under Section 313 of Code of Criminal Procedure
was recorded, wherein, the accused denied all the
allegations and stated that on 02.01.1999, Homeguard
Yakub @ Babubhai had given a complaint against the
complainant which was taken down in the handwriting of
Unarmed Constable - Maheshbhai Laxmanbhai Prajapati
and the complainant was called and his statement was
recorded. That Mohanbhai - the father-in-law of the
complainant and Mehboobaben - sister of the complainant
were also present and their statements were recorded and
the Chapter Case No. 12/1999 under Section 107 of the
Code of Criminal Procedure was filed against the
complainant - Melabhai, his father-in-law Mohanbhai and
his mother-in-law Amrutben before the Executive
Magistrate, Bharuch. That the complainant was angry as
the case was filed and even though the accused had refused
to take any amount, the currency note was forcibly put in to
the hand of the accused and a false case has been filed
against him. The accused had also examined defence
witness Yakub Vali Ismail in support of his case.
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2.6 That after the arguments of learned APP and learned
advocate for the accused were heard, the learned Trial Court
was pleased to convict the accused and sentence the
accused to rigorous imprisonment of one year and six
months and fine of Rs. 2,000/- and in default, rigorous
imprisonment of three months for the offence under Section
7 of the PC Act, and to rigorous imprisonment of one year
and six months and fine of Rs. 2,000/- and in default,
rigorous imprisonment for three months for the offence
under Section 13(1)(d) read with Section 13(2) of the PC Act.
The learned Trial Court was pleased to order that both the
sentences were to run separately.
3. Being aggrieved by and dissatisfied with the said
judgement and order of conviction, the accused has filed the
present appeal mainly stating that the accused is innocent
and has been falsely implicated and the impugned
judgement and order is erroneous in facts as well as in law.
The learned Trial Court has not properly appreciated the
evidence on record according to the settled principles of
criminal jurisprudence and it has caused a failure of justice.
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That the prosecution has failed to prove the case by legal,
reliable and unimpeachable evidence and has failed to
appreciate that the defence has been probabilized. That the
learned Trial Court has drawn inferences against the
defence in favour of the prosecution and has committed a
serious error of law in relying on the complainant who has
partly supported the defence version and has been declared
hostile by the prosecution. That in the evidence it is on
record that the panch witness had not heard the
conversation between the complainant and the accused and
had not witnessed the passing of the currency note and the
evidence of the panch witness requires corroboration but
the learned Trial Court has failed to appreciate the same.
That even the sanction for prosecution was not legal and
valid as it was given after non-application of mind and the
demand, acceptance and recovery are not proved by any
evidence of the prosecution. That the impugned judgement
and order is required to be set aside and the accused must
be acquitted for all the offences.
4. Heard learned advocate Mr. Devansh Kakkad for
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learned advocate Mr. Brijesh K. Ramanuj for the appellant
and learned APP Ms. Jirga Jhaveri for the respondent State.
Perused the impugned judgement and order of conviction
and have reappreciated the entire evidence of the
prosecution on record of the case.
5. Learned advocate for the appellant has submitted that
the prosecution has examined eight witnesses and relied on
six documentary evidences and there are material
contradictions in the depositions of the witnesses mainly
the complainant and the panch witnesses. That the
complainant and panch witness have turned hostile and
even during their cross-examination, no evidence to support
the case of the prosecution has come on record. That mere
recovery of the currency notes from the accused without
establishing demand, would not amount to an offence under
the PC Act and material witnesses namely Yakubbhai
Valibhai @ Babubhai and Maheshbhai - the Police
Constable who were present at the police chowki have not
been examined by the prosecution. The defence of the
accused is that the case is a counter blast to the Chapter
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Case registered by the appellant against the relatives of the
complainant but the learned Trial Court has not considered
the same. Moreover, the use of anthracene powder states
that light brown gloss colour was found on the currency
notes instead of florescent blue colour and this shows that
the anthracene powder was not properly used. That the
impugned judgement and order is erroneous and illegal and
on the basis of the evidence produced by the prosecution
which is full of infirmities and irregularities, the accused
cannot be convicted and hence, the judgement and order of
conviction must be set aside and the accused must be
acquitted from all the offences.
5.1 Learned advocate Mr. Devansh Kakkad for learned
advocate Mr. Brijesh K. Ramanuj for the appellant has
relied on the judgement of the Hon'ble Apex Court in
Krishan Chander Vs. State of Delhi reported in AIR 2016 SC
298 in support of his case.
6. Learned APP Ms. Jirga Jhaveri for the State has
submitted that the prosecution has proved the case beyond
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reasonable doubt and the learned Trial Court has
appreciated all the evidences properly in its true
perspective. That no order of interference is required in the
judgement and order and the appeal of the appellant must
be rejected and the judgement and order of conviction must
be confirmed.
7. Before dissecting the evidences adduced by the
prosecution on record before the learned Trial Court, it is
essential to reiterate the cardinal principles of Criminal
Jurisprudence as settled by the Apex Court in a catena of
decisions and the first cardinal principle is that the
prosecution is required to prove their case beyond
reasonable doubts and the prosecution cannot claim any
benefit of the weaknesses of the defence. The second
cardinal principle is that in a criminal trial, the accused is
presumed to be innocent unless he is proved guilty beyond
reasonable doubts from the evidence of the prosecution and
the third cardinal principle is that the burden of onus of
proof never shifts from the prosecution.
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8. As per the settled principles of law, in conviction
appeals, when the Appellate Court finds that the findings of
facts was based on wholesome erroneous approach and the
very basis of reasoning was not in the right perspective and
the intrinsic merit of the evidence of the witnesses was not
considered and the trial was perversely disposed of,
permitting manifest error and glaring infirmities, the
Appellate Court can interfere and set aside the judgement
and order of conviction. To exercise this powers in a
conviction appeal which is a finding on merits, after
considering and meticulously dissecting the evidence
produced by the prosecution on record is imperative and
hence, the entire evidence produced by the prosecution is
meticulously dissected and reappreciated.
9. At the outset, it would be appropriate to refer to the
observations of the Apex Court in the case of Krishan
Chander (supra) relied upon by the learned advocate for the
appellant, wherein, the Apex Court in para 34 and 35 has
observed as under:
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34. 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 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. 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."
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,
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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.
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
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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 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."
35. Further, in the case of Satvir Singh v. State of Delhi
(2014) 13 SCC 143 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)
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"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 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."
10. To bring the home the charge against the accused, the
prosecution has examined PW1 - Melabhai Mohanbhai
Vasava at Exh. 10 and this witness is the complainant and
he has stated that the sister of Babubhai who is a
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Homeguard had come to buy fish and she had bought one
kilo fish at the rate of Rs. 60/- per kilo and thereafter,
Babubhai came to his house and told that he had taken
more amount for the fish and threatened to file a case
against him. That the police had come to call him and he
had gone to the Police Chowki where he met the accused
and at that time, the accused, Babubhai and the policemen
were in the Police Chowki. That the accused had demanded
for an amount of Rs. 700/- and he took Rs. 500/- from
Babubhai - Homeguard and gave the accused and had
promised to pay the remaining amount of Rs. 200/- later
on. That he had gone to the ACB Office and filed the
complaint. That he had given Rs. 200/- which were four
currency notes of the denomination of Rs. 50/- each and
the policeman - Shankarbhai had taken some powder from
the cupboard and applied on the currency notes and had
showed the currency notes in the battery light in the
presence of the panch witnesses and they had gone to Zanor
in the government vehicle. That he and the panch witness
went and the accused was in the Police Station and he alone
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went inside and the panch witness was standing outside.
That he took the tainted currency notes and placed it on the
table and went outside and gave the predetermined signal
and the accused also came outside. That the ACB Officers
and the panch witness came and the accused tried to run
away but fell down and his foot was injured and hence, a
doctor was called and he was treated but he does not know
what happened to the currency notes that he had placed on
the table. The complainant has been declared hostile and
has not supported the case of the prosecution and during
the cross-examination by the learned advocate for the
accused, the witness has stated that he does not know how
the police had seized the tainted currency notes and no
marks were made on the currency notes. That he cannot
say as to whether the muddamaal currency notes were the
same which he had produced before the ACB Police and
when he went to give the amount to the accused, the
accused had not demanded for any amount. That no
panchnama was drawn in his presence and a relative who is
working as a peon in the school had informed him about the
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ACB and also had helped him with the complaint. That
when he went to file the complaint, the panch witnesses
were already sitting in the ACB Office and the accused had
in fact, helped him to settle his case with Babubhai.
10.1 The prosecution has examined PW2 - Nitishrajsinh
Dahyabhai Solanki at Exh. 13 and the witness is the
authority who has given the sanction for prosecution which
is produced at Exh. 14.
10.2 The prosecution has examined PW3 - Shankarbhai
Ambalal Patel at Exh. 15 and this witness is the ASI, ACB
Police Station, Bharuch who was the member of the raiding
party and he has full supported the case of the prosecution.
The witness has conducted the experiment of the
anthracene powder and the ultraviolet lamp and he has
stated the entire chronology of events that had taken place.
The witness has thereafter, stated that after the
complainant had given the predetermined signal, the
members of the raiding party rushed and at that time, the
accused had ran towards the south and as there were
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broken stones, fell down and had sustained a fracture on
his left leg. That the papers which were in his left hand fell
on the ground and the panch witness no. 1 was asked to
pick up the crumpled papers. That Dr. Vijaybhai S. Patel
was called and the accused was treated and on doing the
test of the ultraviolet lamp, the traces of anthracene powder
were found on the right hand thumb and fingers of the
accused. That the paper which was thrown by the accused
also had the currency notes of Rs. 200/- and traces of
anthracene powder. The witness has further stated that the
complainant had given the tainted currency notes to the
accused and the accused had told him to put it on the table
and at that time the accused picked up the tainted currency
notes and put it in a blank paper and at that time, the
complainant had given the predetermined signal. During the
cross-examination, the witness has stated that when he
went, the accused was not in the police gate and no
currency notes were found from the pant or shirt pockets of
the accused. That he had not spoken to the accused and the
accused was admitted to Civil Hospital, Bharuch for
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treatment. That the ultraviolet lamp was not switched on in
the Zanor Police Gate.
10.3 The prosecution has examined PW4 - Pratapbhai
Khatariyabhai at Exh. 18 and the witness is the shadow
witness and has supported the case of the prosecution and
has stated that when he went to the Police Station with the
complainant, the accused had demanded the amount of Rs.
200/- which were given by the complainant and the accused
had told the complainant to place it on the table. That the
accused took a blank paper and took the currency notes
from the complainant with his right hand, folded them and
placed it in the blank paper which was in his left hand and
at that time, the complainant gave the predetermined
signal. During the cross-examination by the learned
advocate for the accused, the witness has stated that no
conversation for the illegal gratification of Rs. 200/- had
taken place with the complainant and he has not heard any
conversation between the complainant and the accused.
That he had not seen any paper when the accused had
fallen down and he had merely affixed his signature as told
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by the ACB Officer. That the officer - Koralwala was writing
the panchnama in the Bharuch ACB Office and he had not
read the panchnama. Moreover, the witness has
categorically stated that he had signed the panchnama in
the ACB Office and the other panch Dineshbhai had also
signed at that time. That he had affixed his signature at all
the places where he was asked to do by Koralwala Saheb.
10.4 The prosecution has examined PW5 - Dr. Vijaybhai
Sudambhai Patel at Exh. 21 and the witness has stated that
on 21.03.1999, he was called to the Police Station and he
had gone to Zanor Police Gate and the accused had hurt his
foot. That he dressed the foot and as he felt it was fractured,
he advised them to take him to Bharuch Civil Hospital. The
witness has been declared hostile and has not supported
the case of the prosecution and during the cross-
examination, he has stated that he had merely given
primary treatment to the accused. That he does now know
about any other procedure that was being done in the Zanor
Police Gate and when he had examined the accused, he was
in much pain and could not speak properly.
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10.5 The prosecution has examined PW6 - Dineshbhai
Govindji Sumra at Exh. 22 and this witness is the panch
witness who was with the members of the raiding party.
This witness has supported the case of the prosecution and
has narrated all the events that had taken place from the
time he was called as a panch witness till the trap. During
the cross-examination, the witness has stated that earlier
he had gone as a witness in the Valia Case in the year 1999
and Mr. Koralwala was the ACB Inspector. That in that trap
also, the panchnama, anthracene powder and ultraviolet
lamp procedure was done and he knew the characteristics
of anthracene powder and ultraviolet lamp from the Valia
unsuccessful trap case. That he knows Head Constable -
Sitaram of the ACB Office from the time that he had gone
with the ACB Officer for the raid at Valia and had also gone
for the raid at Zanor. That he is well aware of the procedure
of the panch in the ACB Case. That in the ACB Office, the
Constable Singhabhai was writing the panchnama which
was being dictated by Mr. Koralwala and he had affixed his
signature on being asked by Mr. Koralwala. That he does
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now know what had taken place inside the Zanor Police
Gate and the second part of the panchanama was also
written by Singhabhai and dictated by Mr. Koralwala.
10.6 The prosecution has examined PW7 - Nareshchandra
Bhikhabhai Koralwala at Exh. 34 and this witness is the
Trap Laying Officer who has recorded the complaint of the
complainant and has thereafter, arranged for the trap. The
witness has narrated all the chronology of events that had
unfolded and during the cross-examination by the learned
advocate for the accused, the witness has stated that the
matter was settled between the complainant and Babubhai
and he was not informed about the same and the
panchnama was dictated by the complainant and the panch
witness no. 1 and Jamadar Sindhabhai was writing the
same.
10.7 The prosecution has examined PW8 - Ramanbhai
Laxmanbhai Parmar at Exh. 49 and this witness is the
Investigating Officer who has recorded the statements of the
connected witnesses and has filed the charge-sheet before
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the Sessions Court. During the cross-examination, the
witness has stated that the case was initiated because of
Yakubali Patel @ Babubhai and the complaint of
Mehmudaben and they are important witness and they have
been cited as independent witnesses in the charge-sheet.
That he has not investigated as to what has happened in the
Chapter Case between the complainant and Babubhai.
10.8 During the further statement of the accused, the
accused has taken a defence that he had filed the Chapter
Case against the complainant and his father-in-law and
mother-in-law and the accused had examined Yakubali
Ismail at Exh. 56. The witness has stated that he had a fight
with the complainant about the fish purchased by his sister
Mehmuda and the complainant had abused him and hence,
he had gone to Zanor Police Chowki and filed the complaint.
That the constable had gone to call the complainant who
had come to the Police Chowki and in his presence the
complainant had told the accused to take the money and
settle the case but the accused had refused. That the
accused had not demanded any amount from the
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complainant and during the cross-examination, the witness
has stated that he did not go to the Zanor Police Station on
the day of the trap but had gone to the Zanor Police Chowki
on the day he had filed the complaint against the
complainant.
11. On meticulous dissection of the entire evidence of the
prosecution, in the evidence of the complainant, the
complainant had stated that he had placed the tainted
currency notes on the table, whereas, the panch witness -
Pratapbhai Khatariyabhai states that the accused had taken
the tainted currency notes and placed them in a blank
paper which was in his left hand. Moreover, the panch
witness has also stated that there was no conversation
about the illegal gratification between the complainant and
the accused and the complainant has stated that the panch
witness was standing outside and he alone had gone in the
Zanor Police Gate. In the complaint, the complainant has
stated that earlier he had taken Rs. 500/- from Babubhai
and had given the accused and the accused has examined
Babubhai @ Yakubvali Ismail at Exh. 56, but the witness
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has not stated anything to this effect. There is nothing on
record to show that the currency notes were found from the
possession of the accused and there is evidence to the effect
that the accused had tried to flee and he tripped on a stone
and fell and fractured his foot. Moreover, there are major
contradictions in the writing of the panhnama as the panch
witness has clearly stated that the panchnama was dictated
by Police Inspector Mr. Koralwala and it was written by
Police Constable Mr. Singhabhai in the ACB Police Station
at Bharuch. There is also evidence to the effect that no test
of ultraviolet lamp was conducted in the Zanor Police Gate
and the independent witness - PW5 - Dr. Vijaybhai
Sudambhai Patel has also not supported the case of the
prosecution and has stated that he does not now about any
procedure that had taken place and when he had gone to
treat the accused, the accused was in much pain and he
was not in a position to say anything. As per the case of the
prosecution, prior demand was made by the accused in the
presence of Babubhai and at that time, Mehmudaben was
also present in the Police Chowki but there is no evidence
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regarding any prior demand or demand at the time of trap
and babubhai though examined, has not stated anything
about demand and Mehmudaben has not been examined by
the prosecution. That the complainant - Melabhai
Mohanbhai Vasava and panch witness - Shankarbhai
Ambalal Patel have both turned hostile and have not
supported the case of the prosecution and in the absence of
any cogent, convincing and clear evidence of demand, the
accused could not be convicted for the offence under the PC
Act.
12. As per the judgement relied upon by the learned
advocate for the appellant in case of Kishanchandra (supra),
the Hon'ble Apex Court had observed that the demand of
bribe money is a sine qua non to convict the accused and
mere recovery of tainted currency notes would not
constitute the offence under the PC Case. In the instance
case, as far as recovery is concerned, there are major
contradictions in the evidence and the complainant had
stated that he had placed the tainted currency notes on the
table, whereas, the other witnesses have stated that the
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tainted currency notes were found in a crumpled paper at
the place where the accused had tripped and fallen. That
there is no iota of evidence regarding any demand and even
if it is believed that the tainted currency notes were
recovered, the presumption under Section 20 of the PC Act
would not be available to the prosecution as the demand
has not been proved beyond reasonable doubts. That even
though the prosecution had the evidence of independent
witnesses such as Yakubvali Ismail @ Babubhai and Police
Constable - Maheshbhai who was the police constable who
had gone to call the complainant and was in the Zanor
Police Gate at the time when the accused had made the
prior demand, they have not been examined by the
prosecution.
13. In view of the above discussions, as the prosecution
has failed to bring home the charge against the accused and
has miserably failed to prove the prior demand, in the
considered opinion of this Court, the conviction of the
appellant under the PC Act could not have been invoked.
That there is no reliable evidence to support the conviction
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of the appellant and the learned Trial Court has failed to
appreciate the evidence of the prosecution in proper
perspective and has come to a wrong conclusion and had
convicted the appellant. That the entire evidence is
contradictory and far from convincing and requires
interference and hence, the appeal succeeds and the
impugned judgement and order of conviction passed by the
learned Special Judge, Fast Track Court No. 5, Bharuch, in
Special Corruption Case No. 6 of 1999 on 30.07.2005 is
quashed and set aside. The appellant is acquitted from all
the charges levelled against him.
14. Bail bond stands cancelled. Fine to be refunded to the
appellant after due verification. Record and Proceedings be
sent back to the Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
