Gujarat High Court
Patel Maneklal Shankerdas vs State Of Gujarat on 1 August, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2498 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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PATEL MANEKLAL SHANKERDAS
Versus
STATE OF GUJARAT
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Appearance:
MR ISHAN R VYAS(10865) 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 : 01/08/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original
accused under Section 374 of Code of Criminal Procedure,
1973 against the judgement and order of conviction passed
by the learned Special Judge, Mehsana (hereinafter referred
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to as "the learned Trial Court") in Special Case (ACB) No.
2/2005 on 30.11.2005, whereby, the learned Trial Court
has convicted the appellant - original accused for the
offence punishable under Section 7, 13(1)(d) and 13(2) of
The Prevention of Corruption Act, 1988 (hereinafter referred
to as "the PC Act").
1.1 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 in the year 2005, the accused was working as a
Talati Cum Mantri of Dangarwa Gram Panchayat and was
also the In-Charge Talati of Nandasan Gram Panchayat and
was a public servant. That the complainant - Yasinali
Kayamali Saiyed residing at Nandasan wanted a copy of
village Form No. 6 of Survey No. 619 (a) paiki and had sent
an application by Registered Post AD which was received by
the accused on 22.03.2005. That the complainant - Yasinali
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Kayamali Saiyed met the accused on 29.03.2005 and at that
time, the accused told him to meet him on 30.03.2005 after
the Panchayat meeting was over. That when he met the
accused on 30.03.2005, the accused demanded for an
amount of illegal gratification of Rs. 500/- for the copies and
as the complainant did not have the amount with him, the
accused informed him to come on 31.03.2005. That the
complainant did not want to give the amount of illegal
gratification and hence, the complainant went to ACB Police
Station, Mehsana and filed the complaint under Sections 7,
13(1)(d), 1, 2, 3 and 13(2) of the PC Act which was registered
at C.R. No. 3/2005 on 31.03.2005. That the Trap Laying
Officer called the panch witnesses, and the complainant and
the panch witnesses were introduced to each other and the
complainant gave five currency notes of the denomination of
Rs. 100/-. That the demonstration of phenolphthalein
powder and solution of sodium carbonate was done by
Police Constable - Sevantibhai Nayak on the instructions of
the Trap Laying Officer and the characteristics of
phenolphthalein powder and solution of sodium carbonate
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were explained to the complainant and the panch witnesses.
That the five currency notes of the denomination of Rs.
100/- each were smeared with phenolphthalein powder and
placed in the left shirt pocket of the complainant and
necessary instructions were given to the complainant and
the panch witnesses. That the primary panchnama was
drawn and was signed by the panch witnesses and the Trap
Laying Officer. That the panch witnesses, complainant and
members of the raiding party left from the ACB Office in
government vehicle no. GJ-01-3-2567 and went from
Modhera Cross-road, Palavasana, Ahmedabad Highway and
reached Nandasan and halted the vehicle near the bus-
stand. That the complainant and the panch no. 1 went
walking to the Panchayat Office and the panch no. 2 and
the members of the raiding party followed them. That the
Panchayat Office was locked and hence, the panch no. 1
and the complainant came back to the place where the
vehicle was halted. That once again they all sat in the
vehicle and went towards the Kadi Highway from Kadi
Bazaar to Azad Chowk and Detroj Road and went near the
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Taluka Panchayat Office. That the complainant and the
panch no. 1 got down from the vehicle and went into the
Taluka Panchayat Office Compound and the panch no. 2
and members of the raiding party followed them. That they
met the accused and at that time, the complainant told the
accused that he brought the money as demanded and the
complainant took the currency notes from his left side shirt
pocket and gave it to the accused and the accused accepted
the amount with his right hand and closed his fist. The
complainant gave the predetermined signal and the
members of the raiding party came and caught the accused.
That the necessary tests were done and the panchnama
part-II was drawn and signed by the panch witnesses and
the Trap Laying Officer.
2.2 That the Investigating Officer recorded the statements
of the connected witnesses and after the necessary
documents of the service record of the accused as also the
order of sanction for prosecution was received, a charge-
sheet came to be filed before the Sessions Court, Mehsana
which was registered as Special ACB Case no. 2/2005.
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2.3 The accused was duly served with the summons and
the accused appeared before the learned Trial Court, and
after the due procedure under Section 207 of the Code of
Criminal Procedure was followed, a charge at Exh. 11 was
framed against the accused and the statement of the
accused was recorded at Exh. 12, wherein, the accused
denied all the allegations made in the charge and the entire
evidence of the prosecution was taken on record.
2.4 The prosecution produced the following oral evidence
to bring home the charge against the accused.
Sr. No. PW Particulars Exh.
2.5 The prosecution also produced the following
documentary evidence to bring home the charge against the
accused.
Sr. No. Particulars Exh.
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2.6 That after the oral and documentary evidence of the
prosecution was taken on record, learned APP filed a closing
pursis at Exh. 27 and the further statement of the accused
under Section 313 of Cr.P.C. was recorded, wherein, the
accused denied all the evidences produced by the
prosecution on record and stated that he wanted to step
into the witness-box and also wanted to examine defence
witnesses on his behalf and further stated that the
prosecution witness no. 1 has admitted that the incident
took place so quickly that he cannot say anything about it
and the complainant has also stated that when he met the
accused on 30.03.2005, no other conversation had taken
place. That a false complaint has been filed against him and
he had never met the complainant before 31.03.2005. That
on 30.03.2005, it was his fifth or sixth visit in the
Panchayat and he did not know anyone. That he could not
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demand any amount of illegal gratification on the fourth day
of his duty. The accused has produced the following oral
evidences in support of his case.
Sr. No. DW Particulars Exh.
2.7 The accused filed the closing pursis at Exh. 38 and
after the arguments of the learned Additional Public
Prosecutor and the learned advocate for the accused were
heard and the learned Trial Court by the impugned
judgement and order dated 30.11.2005 was pleased to
convict the accused and sentence him to rigorous
imprisonment of one year and fine of Rs. 10,000/- and in
default, simple imprisonment of two months for the offence
under Section 7 of the PC Act and rigorous imprisonment of
three years and fine of Rs. 20,000/- and in default, simple
imprisonment of three months for the offence under Section
13(2) read with Section 13(1)(d) of the PC Act. The learned
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Trial Court was further pleased to order both the sentences
to run concurrently.
3. Being aggrieved and dissatisfied with the said
impugned judgement and order of conviction, the appellant
- original accused has filed the present appeal mainly
stating that the impugned judgement and order of
conviction is absolutely bad and illegal and his against the
weight of evidence on record. That by no stretch of
imagination can it be said that the appellant had demanded
any amount of illegal gratification from the complainant and
as per the defence witnesses examined at Exhs. 30, 31, 32,
35 and 37, the complainant had not met the appellant on
29.03.2005 and 30.03.2005 and hence, the basic
ingredients of demand of illegal gratification by the
appellant does not arise. That the witnesses examined as
defence witnesses are independent and respectable persons
of society and have no reason to give false evidence and it is
the say of the appellant that when he was going from the
Kadi Gram Panchayat to the Bank, at that time some
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person had put something in his hand and immediately it
was thrown away by the appellant. That the appellant has
not accepted any amount of illegal gratification and even at
the time of the trap, there is no evidence that there was any
demand any illegal gratification by the appellant. That the
learned Trial Court has not considered the evidence
produced by the appellant on record of the case and the
impugned judgement and order is bad and illegal and
against the weight of evidence on record and is required to
be quashed and set aside.
4. Heard learned advocate Mr. Rutvij Oza for learned
advocate Mr. Ishan R. Vyas for the appellant and learned
APP Ms. Jirga Jhaveri for the respondent. 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 Mr. Rutvij Oza for learned advocate
Mr. Ishan R. Vyas for the appellant has taken this Court
through the entire evidence produced by the prosecution
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and the appellant on record of Special ACB Case no. 2/2005
and has submitted that the main ingredient of demand has
not been proved in the evidence of the prosecution. That it
is the defence of the appellant that he had not met the
complainant on 29.03.2005 or on 30.03.2005, the dates on
which the prior demand is alleged to have been made by the
complainant. That in fact, the complainant has not given
any explanation as to why the application for revenue record
of Nandasan village was sent by Registered Post AD and was
not given in-person but the application was received by the
appellant and it is the say of the appellant that the copies
were ready on 29.03.2005. That from the evidence of the
panch witness, it has emerged that the witness was not
aware what was done by the appellant after accepting the
amount and this cast a shadow of doubt on the case of the
prosecution as the panch witness is an independent witness
and was alleged to have been with the complainant at the
time of the trap. Moreover, the panchnama part-I shows
that it was drawn on 31.03.2005 between 08.15 to 10.25 at
the ACB Office, Mehsana but if the deposition of the
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complainant at Exh. 21 is perused, the complainant states
that he had come to the ACB Office at 09.00 am and hence,
it is proved that the panchnama was drawn before the
complainant had reached the ACB Office. There are major
contradictions with regard to the recovery of the tainted
currency notes in the deposition of PW1, PW3 and PW4 and
there is no clarity as to who had the tainted currency notes
after the alleged recovery. That when the aspect of recovery
of the amount is in clear doubt, it cannot be said that the
prosecution has proved the aspect of recovery. The
appellant has himself stepped into the witness-box and has
been examined on oath at Exh. 29 and the appellant has
examined defence witness no. 2 - Prahladbhai Shivdas Patel
at Exh. 30 and the witness was with the appellant on
29.03.2005 at the Gram Panchayat Office. The appellant
has examined DW3 - Babubhai Mafatlal Limbachiya who
was the Sarpanch of Dangarwa Gram Panchayat, DW4 -
Kureshi Mohammadbhai Hasambhai who was the Deputy
Sarpanch of Nandasan Gram Panchayat, DW5 -
Ahmedhusain Jivamiya Saiyed at Exh. 35 who was the
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Sarpanch of Nandasan Gram Panchayat and DW6 -
Dhanjibhai Varubhai Pandya who was the member of the
Social Justice Committee and they all four were with the
appellant at the Gram Panchayat Office for the full day for a
meeting. That the appellant has raised a plausible defence
but the learned Trial Court has not considered the same
and has observed that as the appellant was a public
servant, he would not sit silently till the conclusion of the
trial if he was forcibly thrusted with the currency notes.
That only because of the constant deep silence by the
accused, the learned Trial Court has thrown out the defence
of the appellant without giving any thoughtful consideration
to the same. That there is clear absence of proof of demand
of illegal gratification and the recovery of the tainted
currency notes is not proved beyond reasonable doubts as
per the settled position of law and learned advocate Mr.
Rutvij Oza has urge this Court to set aside the impugned
judgement and order of conviction and acquit the appellant
from all the offences.
5.1 Learned Advocate Mr. Rutvij Oza has relied on Neeraj
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Dutta V. State (Govt. of NCT of Delhi) reported in 2022 0
Supreme (SC) 1248, wherein, the Apex Court has observed
in para 68 as under:
"68. What emerges from the aforesaid discussion is
summarised as under:
(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
(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.
(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.
(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:
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(i) if there is an offer to pay by the bribe giver
without there being any demand from the
public servant and the latter simply accepts the
offer and receives the illegal gratification, it is a
case of acceptance as per Section 7 of the Act.
In such a case, there need not be a prior
demand by the public servant.
(ii) On the other hand, if the public servant makes
a demand and the bribe giver accepts the
demand and tenders the demanded gratification
which in turn is received by the public servant,
it is a case of obtainment. In the case of
obtainment, the prior demand for illegal
gratification emanates from the public servant.
This is an offence under Section 13 (1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by
the bribe giver and the demand by the public
servant respectively have to be proved by the
prosecution as a fact in issue. In other words,
mere acceptance or receipt of an illegal
gratification without anything more would not
make it an offence under Section 7 or Section
13 (1)(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order
to bring home the offence, there must be an
offer which emanates from the bribe giver which
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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 inturn there is a payment made which
is received by the public servant, would be an
offence of obtainment under Section 13 (1)(d)
and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand
and acceptance or obtainment of an illegal
gratification may be made by a court of law by way of
an inference only when the foundational facts have
been proved by relevant oral and documentary
evidence and not in the absence thereof. On the basis
of the material on record, the Court has the
discretion to raise a presumption of fact while
considering whether the fact of demand has been
proved by the prosecution or not. Of course, a
presumption of fact is subject to rebuttal by the
accused and in the absence of rebuttal presumption
stands.
(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
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does it result in an order of acquittal of the accused
public servant.
(g) In so far as Section 7 of the Act is concerned, on the
proof of the facts in issue, Section 20 mandates the
court to raise a presumption that the illegal
gratification was for the purpose of a motive or
reward as mentioned in the said Section. The said
presumption has to be raised by the court as a legal
presumption or a presumption in law. Of course, the
said presumption is also subject to rebuttal. Section
20 does not apply to Section 13 (1) (d) (i) and (ii) of
the Act.
(h) We clarify that the presumption in law under Section
20 of the Act is distinct from presumption of fact
referred to above in point (e) as the former is a
mandatory presumption while the latter is
discretionary in nature."
5.2 Learned advocate Mr. Rutvij Oza has relied on the
order of this Court passed in Criminal Appeal No.
1173/2007 dated 26.03.2024, wherein, this Court has
observed in para 10 as under:
10. 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 PC
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Act and the accused cannot be convicted in the absence of
evidence of demand and unless the evidence of demand is
clear, cogent and reliable, no conviction can be recorded. In
view of the above infirmities and as discussed above, the
entire circumstances of the prior demand are not proved
and no iota of evidence that the complainant met the
accused prior to filing of the complaint and in absence 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
and hence, the appeal succeeds and is allowed.
6. Learned APP Ms. Jirga Jhaveri for the respondent -
State has submitted that the learned Trial Court has
considered all the evidences in proper perspective and has
passed the impugned judgement and order and has
convicted the appellant relying upon the evidence of the
complainant as well as the independent panch witness.
Moreover, even the Trap Laying Officer and the Investigating
Officer have fully supported the case of the prosecution and
it is also on record that the Competent Authority has
granted the sanction after perusing all the necessary
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documents. That no interference is required in the
impugned judgement and order and learned APP has urged
this Court to reject the appeal of the appellant.
7. The law with regard to criminal cases is settled and the
prosecution has to prove the charge against the accused
beyond reasonable doubts. The Hon'ble Apex Court in the
case of Ravindra Kumar Dey Vs. State of Orissa reported in
AIR 1977 SC 170, has observed as under:
(i) that the onus lies affirmatively on the prosecution to
prove its case beyond reasonable doubt and it cannot
derive any benefit from weakness or falsity of the defence
version while proving its case;
(ii) that in a criminal trial the accused must be presumed
to be innocent until he is proved to be guilty; and
(iii) that the onus of the prosecution never shifts.
8. The law with regard to conviction appeals is well
crystallized and the Appellate Court has full power to review
and reappreciate all the evidence upon which the order of
conviction was found and to reach a conclusion that the
evidence has been properly appreciated by the learned Trial
Court. That if after reappreciation of the evidence, it is
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found that the evidence has not been properly appreciated
and the material aspects have been ignored and the findings
are perverse, the Appellate Court can certainly interfere with
the findings of the learned Trial Court. Moreover, it is also
settled that the prosecution has to prove the case beyond
reasonable doubts.
9. To bring home the charge against the accused, the
prosecution has examined PW1 - Kasturbhai Shakrabhai
Vanand at Exh. 15 and the witness is the panch witness
who has supported the case of the prosecution and has
narrated all the events that had taken place on 31.03.2005
when he and the other panch witness - Kiritkumar
Jamnadas Shah had gone to the ACB Office. The witness
has stated that when they reached the ACB Office at 08.00
am and they were introduced to the complainant - Yasinali
Kayamali Saiyed at Jotana and he had narrated the details
of his complaint and they had read the complaint and
affixed their signatures. That the complainant had given five
currency notes of the denomination of Rs. 100/- each and
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the demonstration of phenolphthalein powder and solution
of sodium carbonate was done in their presence. That the
currency notes given by the complainant were smeared with
phenolphthalein powder on both sides by Shivantilal and
placed in the left shirt pocket of the complainant and they
were given necessary instructions. That he was instructed
to remain with the complainant and they sat in the
government vehicle and went to Nandasan village. That he
and the complainant went walking to the Panchayat Office
but the office was locked and they came back to the jeep
and went to Kadi Panchayat Office. That they halted the
vehicle and he and the complainant went walking to the
Taluka Panchayat Office and there was a meeting and they
inquired as to whether the accused had come but the
accused was not there and they waited for him. That after
some time, the accused came and the complainant went
and asked the accused whether he had brought his copies
and the accused told him that he had some work and he
would complete his work and come. That they waited for the
accused and after some time the accused came and the
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complainant went towards the accused and asked him
whether was giving his copies and the accused told him that
he did not have the copies with him. That the complainant
told the accused that he had brought the money as asked
by him and the complainant took the tainted currency notes
from his pocket and gave it to the accused and the accused
accepted with his right hand and kept in his fist. That the
complainant gave the predetermined signal and the
members of the raiding party and the other panch came and
caught the accused. That the panch no. 2 took the
currency notes in a paper and the complainant, accused,
panch witnesses and the members of the raiding party went
to the rest house at Kadi where the accused was searched
and the tests were conducted. The witness has produced the
panchnama at Exh. 17 and the seizure memo at Exh. 18.
During the cross-examination by the learned advocate for
the accused, the witness has stated that he does not know
as to whether the accused had looked towards them when
he had come but the complainant and he went to meet the
accused. That when the complainant told the accused that
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he had come to take the copies, the accused told him to wait
outside and hence, they waited and thereafter, once again
he and the complainant had gone to the accused. That the
complainant had himself told the accused that he had
brought the money and had given the money to the accused
but the accused did not say anything. That the incident
occurred so quickly that he could not say what did the
accused do after he had accepted the amount. The witness
has stated that they went to the rest house and at that time,
the panch no. 2 had taken the tainted currency notes from
the accused and the currency notes were taken at the
Veranda from the accused. That he had read the
panchnama before his deposition.
9.1 The prosecution has examined PW2 - Ambalal Kalidas
Patel at Exh. 19 and the witness is the Competent Authority
who has give the order of sanction for prosecution at Exh.
20.
9.2 The prosecution has examined PW3 - Yasinali
Kayamali Saiyed at Exh. 21 and the witness is the
complainant who has stated that he has cattle and he is
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keeping his cattle in the courtyard which was a government
land. That his father possessed the land for the past 60
years and he had demanded the land from the Collector but
the demand was rejected and he had filed a case before the
Additional Secretary. That he wanted a copy of the village
Form No. 6 of that land and had sent an application by
Registered Post AD at the Nandasan Gram Panchayat and
the same was received on 22.03.2005 and he had received
the acknowledgment but did not receive the copies of the
land. That he went and met the accused on 29.03.2005
between 03.00 to 04.00 pm and demanded for the copies
and the accused had told him that he had received the
application. That the accused told him to meet him on the
30th after the Taluka Panchayat meeting and on the 30th he
went at around 12.00 noon and met the accused and at that
time, the accused demanded for the amount of Rs. 500/- as
illegal gratification. That he did not want to give the amount
of illegal gratification and went to the ACB Office and filed
the complaint which is produced at Exh. 16. That he was
called on 31.03.2005 and he reached the ACB Office at
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09.00 am and thereafter, the ACB Officer called two panch
witnesses and introduced them to him. That he gave Rs.
500/- and powder was applied on the currency notes and
they were placed in his pocket. That he was told not to
touch the amount till they were given to the accused. That
he and the panch witnesses went in the vehicle from
Mehsana and came to Nandasan Cross-roads and he and
the panch witness went but the Panchayat Office was closed
and they did not meet the accused and thereafter, they went
to Kadi. That they parked the vehicle and he and the panch
witness went into the compound and met the accused and
he called the accused but the accused told him that he
would come after five minutes and after some time, the
accused came outside. That Ashokbhai was with the
accused and he had a conversation with the accused and
asked him about the copies. That he told the accused that
he had brought the amount and the accused told him to
give the amount and only then he would give the copies.
That he took the tainted currency notes with his right hand
and gave it in the right hand of the accused who took it and
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closed his fist. That he gave the predetermined signal and
the officer came and caught the accused. That they were
taken outside and a paper was placed and the notes were
kept on the paper and they were taken to the rest house
and the paper was placed at the rest house. During the
cross-examination by the learned advocate for the accused,
the witness has stated that he had sent the application by
Registered Post AD so that he would have evidence that the
application is sent. That he had gone to the Panchayat
Office on 29.03.2005 at around 12.00 noon and at that
time, the accused and Ashokbhai were sitting. That he had
seen Ashokbhai at that time for the first time and the
accused had told him to come on the 30 th. That besides
that, no other conversation had taken place. That when he
went to the Panchayat Office on the 30 th between 11.30 and
12.00 noon, he met the accused and he does not remember
who were present at that time. That the demand for Rs.
500/- was made at that time and he agreed and left
immediately. That he went to the Nandasan Gram
Panchayat as the accused had told him that he would meet
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him at Nandasan Cross-roads or at Kadi Taluka Panchayat.
That when they went to the Panchayat Office, the accused
had come to him and he had told the accused that he had
brought the amount as per their conversation. That the
accused took the amount with his right hand and closed his
fist and he gave the predetermined signal and when the
Officer came, the currency notes were in the hands of the
accused. That he does not know who had placed the paper
and they had taken the paper and gone to the rest house.
That the currency notes which were wrapped in the paper
were not with the panch witness.
9.3 The prosecution has examined PW4 - Umedji Ravaji
Thakore at Exh. 23 and the witness is the Trap Laying
Officer who has fully supported the case of the prosecution
and has narrated all the events that had unfolded on
30.03.2005 when the complainant - Yasinali Kayamali
Saiyed came to the ACB Office and thereafter, on
31.03.2005, when the complainant and the panch witnesses
came to the ACB Office. The witness has narrated about the
introduction of the complainant and the panch witnesses to
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each other and the demonstration of phenolphthalein
powder and solution of sodium carbonate and thereafter,
the currency notes which were given to the complainant
were smeared with phenolphthalein powder and placed in
the left shirt pocket of the complainant and the trap was
arranged. That after the predetermined signal was given, the
witness and other members of the raiding party went and
caught the accused and at that time, the currency notes
were in the right hand of the accused which were placed in
a blank paper and as no room was available in the
Panchayat Office and the rest house was close-by; the
complainant, panch witnesses and the accused were taken
in the government vehicle to the rest house. That the tests
were done at the rest house and the panchnama was drawn.
During the cross-examination by the learned advocate for
the accused, the witness has stated that the amount was in
the right hand of the accused and the accused was told to
place the currency notes on a blank paper. That he had
instructed the accused to place the amount in the blank
paper and thereafter, he had folded the paper and kept it
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with him and when they went to the rest house, the tainted
currency notes were with him.
9.4 The prosecution has examined PW5 - Ratansinh
Gobarsinh Rathod at Exh. 24 and the witness is the
Investigating Officer who has seized the necessary
documents including the service record of the accused. That
the solution of sodium carbonate was sent to the FSL,
Ahmedabad and after the report was received, he had sent
the papers for receiving the order of sanction for prosecution
and after it was received, Police Inspector - Mr. Kotde had
filed the charge-sheet.
10. After the closing pursis was filed by the learned APP at
Exh. 27, the further statement of the accused under Section
313 of Code of Criminal Procedure was recorded and it was
the main contention of the accused that he did not meet the
complainant - Yasinali Kayamali Saiyed on 29.03.2005 and
on 30.03.2005, as he was busy with meetings the whole
day. The accused has stepped into the witness-box and has
deposed on oath at Exh. 29 as DW1 and has stated that as
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he had the charge of Nandasan Gram Panchayat, he would
go to Nandasan Gram Panchayat on Tuesdays and
Saturdays. That he had taken charge at Nandasan Gram
Panchayat on 10.03.2005 and had gone to Nandasan Gram
Panchayat for about seven times. That he had gone
10.03.2005, 12.03.2005, 15.03.2005, 19.03.2005,
22.03.2005, 29.03.2005 and on 30.03.2005. That he had
gone on 29.03.2005 from 09.30 am till 06.30 pm and on
30.03.2005, he had gone from 09.45 am as there was a
meeting on that day. That he had received the application of
the complainant by Registered Post AD on 22.05.2005 and
the copies were prepared on 29.03.2005. That he had met
the complainant for the first time on 31.03.2005 and prior
to that he had never met the complainant in person. That
on 29.03.2005, when he went to the Panchayat Office, his
peon and one Prahladbhai were with him till 06.00 pm and
Prahladbhai was constantly with him as the documents for
tractor loan of Prahladbhai was to be prepared. That he did
not meet the complainant in person on 29.03.2005. That on
30.03.2005, there was a Gram Panchayat Meeting and he
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was at the Gram Panchayat from 09.45 am till 12.45 pm
and had thereafter, gone to Dangarwa Gram Panchayat.
That he had a meeting of the Social Justice Committee at
Dangarwa from 01.00 pm to 02.00 pm and thereafter, the
Gram Panchayat meeting from 02.30 pm to 05.00 pm and
had done the regular work of the Panchayat from 05.00 pm
to 08.00 pm. That during this time, the complainant did not
meet him and the Sarpanch, Deputy Sarpanch and
members of Board were continuously with him. That on
30th, the application of the complainant - Yasinali Kayamali
Saiyed was discussed in the meeting as he had given an
application seeking permission to allot land for the purpose
of trading in goats and a resolution was passed as per the
government rules on that application. That on the 31 st he
had come to Nandasan Cross-roads and gone to the Kadi
Gram Panchayat but did not meet anyone and while he was
coming out of the Kadi Gram Panchayat Office and was
hurrying towards the Bank, an unknown person had placed
something in his hands and he had thrown the same.
Thereafter, three to four persons came and took him to the
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Veranda and instructed him to sit there. That the ACB
Inspector had introduced himself and the currency notes
were placed in one handkerchief. That he was not informed
anything and they had taken him to the rest house where
he was made to sit on a bench outside and his hand-wash
was taken. That no panchnama was prepared in his
presence. The accused has been cross-examined by the
learned APP and he has stated that no unpleasant event
had taken place between him and the complainant -
Yasinali prior to this incident and no altercation had taken
place regarding the resolution of the Panchayat passed on
30th on the application of the complainant.
On perusal of the cross-examination by the learned
APP, it appears that the version stated by the accused in the
examination-in-chief has not been challenged at all and the
say of the accused regarding the chronology of his routine
on 29.03.2005, 30.03.2005 and 31.03.2005 is not
challenged.
10.1 The accused has examined DW2 - Prahladbhai
Shivdas Patel at Exh. 30 and the witness has stated that he
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is known to both the complainant and the accused and on
29.03.2005, he had gone to the Gram Panchayat Office at
around 10.00 am and his papers for loan of a tractor were
to be prepared. That he was with the accused and the peon
till 06.30 pm and he had received his papers. That during
the entire time, the complainant did not come to the
Panchayat Office and he did not see the complainant at the
Panchayat Office on the 29th. The witness has not been
cross-examined by the learned APP and the version of the
witness has remained unchallenged.
10.2 The accused has examined DW3 - Babubhai Mafatlal
Limbachiya at Exh. 31 and the witness is the Sarpanch of
Dangarwa Gram Panchayat from the year 2002 and he has
stated that on 30.03.2005, he was present at the Dangarwa
Gram Panchayat Office from 10.00 am for the whole day.
That the accused had come at around 12.45 pm and both of
them were present in the Social Justice Committee meeting.
That thereafter, the meeting of the Panchayat was convened
till 05.00 pm and the accused was in the office till 07.00 pm
and he too was present with the accused. That during this
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entire time, the complainant did not come to the Dangarwa
Gram Panchayat. During the cross-examination by the
learned APP, the witness has stated that he has good
relation with the accused as he is the Sarpanch.
10.3 The accused has examined DW4 - Mohammadbhai
Hasambhai Kureshi at Exh. 32 and the witness was the
Deputy Sarpanch of Nandasan Gram Panchayat. The
witness has stated that on 30.03.2005, the Gram Panchayat
meeting was convened at 10.00 am which concluded at
12.00 noon and he was present at the Gram Panchayat
Office from 09.45 am. That the Sarpanch and the peon were
present and the accused came at around 10.00 am and
after the meeting, the accused went with the Sarpanch and
during the entire time, he was present with the accused.
That the complainant did not meet the accused during the
entire time and he did not see the complainant from the
time the meeting began till the meeting was concluded.
During the cross-examination by the learned APP, the
witness has stated that Mohammadbhai Jivabhai was the
Sarpanch and he has no dispute with the accused. That he
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is aware that a case under the Prevention of Corruption Act
has been filed against the accused and he has good
relations with the complainant as they are of the same
village.
10.4 The accused has examined DW5 - Ahmedhusain
Jivamiya Saiyed at Exh. 35 and the witness has stated that
he was the Sarpanch of Nandasan Gram Panchayat and had
reached the Panchayat Office at 09.30 am on 30.03.2005 as
the meeting was convened and he was the President. That
the accused had come after he had arrived and the meeting
concluded between 11.30 am to 12.00 noon and during the
meeting, the complainant did not come. That in the meeting,
a resolution about the application received from the
Collector regarding the encroachment made by the
complainant was passed and the complainant had also
given an application seeking permission to allot land for the
purpose of trading in goats but as the place was not within
the jurisdiction of Panchayat, no resolution was passed.
That after the meeting, as he was going with his vehicle, the
accused told him that he had to go to Dangarwa and he had
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dropped the accused to Nandasan Cross-Roads. That on the
day of meeting, he did not see the complainant. During the
cross-examination by the learned APP, the witness has
stated that the accused is a resident of village Kayyal and is
a Talati for many years. That he got news that a case was
filed on the accused but the police did not record his
statement.
10.5 The accused has examined DW6 - Dhanjibhai
Varubhai Pandya at Exh. 37 and the witness has stated
that he was a member of the Social Justice Committee and
on 30.03.2005 at around 12.30 pm, he had gone to the
Panchayat Office for the meeting. That the accused had
come at around 12.45 pm and the meeting began at 01.00
pm and concluded at 02.00 pm and the accused was in the
office till 05.00 pm. That during the time he was in the
office, no one had come to meet the accused. During the
cross-examination by the learned APP, the witness has
stated that he had worked as a teacher at Kayyal village for
13 years and he knew that a case was filed against the
accused.
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11. On minute dissection and reappreciation of the entire
evidence of the prosecution, the infirmities in the case of the
prosecution have come on record and in the entire evidence,
there is no iota of any demand made by the accused. As per
the case of the prosecution, the prior demand has been
made on 30.03.2005 and the complainant has stated that
he met the accused on 29.03.2005 at the Gram Panchayat
Office and the accused told him to come to meet him on
30.03.2005. The accused has examined five defence
witnesses and all the witnesses have stated that they were
present with the accused on 29.03.2005 and on 30.03.2005
during the entire day and during this time, the complainant
did not come to meet the accused. The accused has himself
stepped into the witness-box and has deposed on oath at
Exh. 29 about the routine that was undertaken along with
the time on 29.03.2005 and 30.03.2005 but the same has
not been challenged by the learned APP during the cross-
examination. There is ample evidence on record to show
that the complainant did not meet the accused on
29.03.2005 or 30.03.2005 at Kadi Gram Panchayat Office or
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Nandasan Gram Panchayat Office and even the depositions
of the witnesses examined by the accused regarding his
presence at the meetings on 29.03.2005 and 30.03.2005
have not been challenged by the learned APP. The witnesses
who are the Sarpanch, Deputy Sarpanch and member of the
Social Justice Committee were known to the complainant
and the accused and they have stated that the application
of the complainant regarding seeking permission to allot
land for trading in goats was discussed in the meeting and
it appears that the members who were present in the
meeting were known to the complainant and they did not
see the complainant in the Gram Panchayat Office on
29.03.2005 or 30.03.2005. Hence, the say of the
complainant that he met the accused on 29.03.2005 and
thereafter, on 30.03.2005 is not proved beyond reasonable
doubts.
11.1 As far as the demand at the time of the trap is
concerned, the complainant - Yasinali Kayamali Saiyed
examined at Exh. 21 and the panch witness - Kasturbhai
Shakrabhai Vanand examined at Exh. 15, have both stated
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that when they met the accused at the time of the trap, the
complainant had himself told the accused that he had
brought the amount with him as discussed and at that time,
the accused did not demand for any amount of illegal
gratification. That in the evidence of the panch witness, it
has also emerged that the accused did not look at the
complainant and if the accused had in fact demanded the
amount of illegal gratification, he would have come directly
to the complainant and would have accepted the amount
and would have placed it in his pocket. Hence, the factum of
demand at the time of the trap which is a sine qua non for
the offence under the PC Act is not proved beyond
reasonable doubts in the entire evidence of the prosecution.
11.2 As far as the recovery of the tainted currency notes is
concerned, as per the case of the prosecution, the currency
notes were found in the hands of the accused and he had
made a fist and thereafter, the currency notes were placed
on a white paper and taken to the rest house at Kadi. There
are major contradictions with regard to the recovery as the
panch witness states that the incident happened so quickly
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that he is not aware what happened about the amount,
whereas, the complainant has stated that the amount was
with one officer and was not with the panch witness. As per
the panchnama, the panch no. 2 had carried the tainted
currency notes to the rest house at Kadi Gram Panchayat,
whereas, the Trap Laying Officer states that he had taken
the tainted currency notes wrapped in a blank paper with
him. Hence, there are major contradictions regarding the
taking of the tainted currency notes to the rest house and
also this cast a doubt on the case of the prosecution.
11.3 The panchnama is produced at Exh. 17 and on perusal
of the same, part-I of the panchnama shows that the
panchnama was drawn from 08.15 am to 10.25 am on
31.03.2005 at the ACB Office, Mehsana but the
complainant has categorically stated that he came to the
ACB Office on 31.03.2005 at 09.00 am and it appears that
the writing of the panchnama was started prior to the
complainant reaching the ACB Office.
11.4 The learned Trial Court in the impugned judgement
and order has observed that as it was proved that the
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accused was holding the currency notes when he was
caught red handed by the members of the raiding party, the
Court is left with no option except to raise a presumption as
provided under Section 20 of the PC Act. The learned Trial
Court has not considered the evidence of the defence
witnesses that the complainant did not meet the accused on
29.03.2005 or 30.03.2005 and has observed that as the
accused was a public servant and having a strong will
power, if his defence that he was thrusted with the currency
notes forcibly, he would not have kept silent till the
conclusion of the trial and the constant deep silence is a
result of afterthought and none else. The learned Trial Court
has not appreciated that the accused has himself stepped
into the witness-box and his say on oath, has not been
challenged by the learned APP during the cross-
examination. Moreover, the entire say of the accused on
oath about his routine on 29.03.2005 and on 30.03.2005
has been corroborated with the evidence of the defence
witnesses and the evidence of those witnesses have not been
challenged. As per the settled principles of law, the defence
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of the accused must be a plausible defence and the accused,
by stepping into the witness-box and examining defence
witness and when the evidence of the accused on oath and
the evidence of the defence witnesses have not been
challenged during the cross-examination, it can safely be
said that the accused has raised a plausible defence and in
the entire evidence of the prosecution, there is no iota of
evidence that the complainant had met the accused on
30.03.2005 and the prior demand for illegal gratification
was made by the accused on 30.03.2005. Moreover, there is
no cogent and convincing evidence regarding the demand of
illegal gratification at the time of the trap in the entire
evidence of the prosecution. As the foundational facts of
demand have not been proved beyond reasonable doubts,
the learned Trial Court could not raise the presumption
under Section 20 of the PC Act.
12. In light of the judgement of the Apex Court in case of
Neeraj Dutta (supra), proof of demand is a sine qua non in
order to establish the guilt of the accused under Section 7,
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13(1)(d) and 13(2) of the PC Act and as there is no evidence
of demand, the conviction cannot be sustained. The
prosecution has to first prove the demand of illegal
gratification and subsequently the acceptance, in order to
bring home the charge against the accused. In the instant
case, the prior demand on 30.03.2005 or the demand of
illegal gratification at the time of the trap, has not been
proved by the prosecution beyond reasonable doubts. As the
factum of demand has not been proved by the prosecution
beyond reasonable doubts and there is no iota of evidence
that even at the time of the trap, the accused had demanded
for any amount of illegal gratification from the complainant,
it can safely be said that the prosecution has failed to bring
home the charge against the accused and has miserably
failed to prove the case beyond reasonable doubts and 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
of the appellant and the learned Trial Court has failed to
appreciate the evidence of the prosecution and the defence
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in a proper perspective and has come to a wrong conclusion
and has convicted the accused. That the entire evidence is
contradictory and far from convincing and requires
interference and consequently, the appeal succeeds.
13. The impugned judgement and order of conviction
passed by the learned Special Judge, Mehsana in Special
Case (ACB) No. 2/2005 on 30.11.2005 is hereby quashed
and set aside and 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
