Gujarat High Court
Rameshkumar Bababhai Prajapati vs State Of Gujarat on 6 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 583 of 2007
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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RAMESHKUMAR BABABHAI PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR. K.B. ANANDJIWALA for the Appellant(s) No. 1
MR ND GOHIL(334) 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 : 06/09/2024
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
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by the learned Special Judge, ACB and Presiding Officer,
Fast Track Court No. 2, Ahmedabad Rural, Ahmedabad
(hereinafter referred to as "the learned Trial Court") in
Special ACB Case No. 28/2003 on 22.03.2007, whereby, the
learned Trial Court has convicted the appellant - original
accused for the offence punishable under Section 7, 13(1)
(d), 1, 2, 3 read with 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 The accused - Rameshkumar Bababhai Prajapati was
working as a Junior Engineer in the Gujarat Electricity
Board (GEB) in the year 2003 and was a public servant. The
complainant - Shivlal Kikabhai Purohit residing at 7/35,
Abhivruddhi Flats, Behind Ajanta Commercial Centre,
Income Tax, Ashram Road, Ahmedabad had a Mosaic Tile
Factory in the name of Sabar Tiles near Gota Railway
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Crossing and had 20 vighas agricultural land in partnership
with Ashokbhai Mangaldas Patel at village Santej. The
complainant had taken an electric connection from the GEB
five years prior to the complaint and Consumer No.
20430/00098/7 and Meter No. 43173 was allotted to him.
On 25.01.2001, the Officers of the GEB came for checking
and found that the complainant was using 33.5 HP instead
of the 25 HP allotted to him and an amount of ₹32,832.71/-
was levied as fine. The complainant thereafter, on
24.07.2002 gave an application for LTP-III Scheme and on
18.10.2002, the LTP-III Meter was allotted to him with
meter no. 295139. The meter was given without charging
any amount and the accused was a Junior Engineer in the
Low Tension Installation Checking Squad and the accused
told the complainant that the meter was costing ₹12,000/-
in the market but he was being given the meter free of cost
and as he had benefited to the tune of ₹12,000/-, the
accused demanded an amount of ₹6000/- as illegal
gratification. The complainant did not have the amount and
the accused frequently demanded the same and frequent
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checks were conducted at Sabar Farm. On 06.02.2003,
baby squirrels were found in the GEB meter box and the
electric connection was shut down and the baby squirrels
had died. The complainant gave an application for restarting
the electricity connection and ₹50/- was paid as fees by the
complainant on 07.02.2003 and the receipt was issued to
him. That on 07.02.2003, employees from the Vadsar
Substation, GEB came to his farmhouse and changed the
wires and the electricity connection was restored but the
meter box was not sealed and when he brought the same to
the notice of the GEB employees, they stated that they could
not seal the meter box and went away, leaving the meter box
unsealed. After four days, the complainant spoke to the
accused on the telephone and the accused came to his farm
on 22.02.2003 and found that the seal was broken and got
angry on the complainant and told the complainant that
another case would be filed against him and he would have
to pay a fine of ₹50,000/-. The accused demanded the
amount of ₹6000/- and ₹5000/ for sealing the meter and
after bargaining, the amount was fixed at ₹10,000/-. The
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complainant did not have the amount and told the accused
that he would pay it later and the accused gave him his
residence telephone number 95276422974 and threatened
the complainant that if the amount of ₹10,000/- was not
paid, his work could not be done. The complainant did not
want to pay the amount of illegal gratification of ₹10,000/-
and went to the ACB Police Station, Ahmedabad City and
filed the complaint under Section 7, 13(1)(d), 1, 2, 3 and
13(2) of the PC Act which was registered at C.R. No. 9/2003
on 05.03.2003.
2.2 The Trap Laying Officer called the panch witnesses
and the complainant was introduced to the panch witnesses
and the details of the complaint of the complainant were
explained to the witnesses and their signatures were taken
on the complaint. The complainant gave 20 currency notes
of the denomination of ₹500/- each and Unarmed Head
Constable Arjunsinh T. Thakor under instructions of the
Trap Laying Officer conducted the demonstration of
phenolphthalein powder and solution of sodium carbonate
and explained the characteristics of phenolphthalein powder
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and solution of sodium carbonate to the complainant and
the panch witness. All the currency notes given by the
complainant were smeared with phenolphthalein powder
and folded and Unarmed Head Constable Arjunsinh T.
Thakor placed the currency notes in the front right pant
pocket of the complainant and the Trap Laying Officer gave
necessary instructions to the complainant and the panch
witnesses. The panchnama part-I was drawn and the panch
witnesses and the Trap Laying Officer affixed their
signatures on the panchnama part-I. The complainant
panch witnesses and members of the raiding party left in
the government vehicle and reached Gota Railway Crossing
to the showroom of Sabar Tiles and halted the vehicle at a
little distance away and the complainant and the shadow
witness went walking to the Sabar Tiles Showroom and the
other members of the raiding party stood scattered around.
The complainant and the panch no. 1 went into the office of
the complainant where Narayan - the younger brother of the
complainant was seated in a revolving chair and the
complainant and the panch no. 1 sat in the other chairs
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and at about 10.00 am, the accused came into the chamber
of the complainant and had a conversation with the
complainant and the complainant told the accused that he
had arranged for the amount of ₹10,000/- and the
complainant gave the currency notes smeared with
phenolphthalein powder from his right pant pocket with his
right hand and gave it to the accused who accepted the
same with his right hand and placed it with his left hand in
his left shirt pocket. On the pretext of ordering tea, the
complainant came out and gave the predetermined signal
and the members of the raiding party came and caught the
accused. The tests were conducted and the tainted currency
notes were recovered from the possession of the accused
and panchnama part-II was drawn and the Trap Laying
Officer and the members of the raiding party affixed their
signatures on the panchnama part-II.
2.3 The Investigating Officer recorded the statements of
the connected witnesses and the documents of the service
record of the accused and after the order of sanction for
prosecution were received, a charge-sheet was filed before
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the Sessions Court, Ahmedabad Rural at Mirzapur which
was registered as Special ACB Case No. 28/2003.
2.4 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. 7 was
framed against the accused and the statement of the
accused was recorded at Exh. 8, wherein, the accused
denied all the allegations made in the charge and the entire
evidence of the prosecution was taken on record.
2.5 The prosecution produced the following oral evidence
to bring home the charge against the accused.
Sr. No. PW Particulars Exh.
2.6 The prosecution also produced the following
documentary evidence to bring home the charge against the
accused.
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Sr. No. Particulars Exh.
13. Slips 27 & 28
2.7 After the oral and documentary evidence of the
prosecution was taken on record, the learned APP filed a
closing pursis at Exh. 55 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 has not
demanded any amount of illegal gratification and at the time
of the incident of short circuit at Sabar Farm, he was
working at Mehsana and had no connection whatsoever
with Kalol GEB Sub Division-I and there was no question of
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the accused sealing the meter. Sabar Tiles Factory is
situated at Khatraj and on 25.01.2001, the accused and his
staff members had gone for a checking at the factory of
Sabar Tiles and found that the complainant was using more
power than the allotted horsepower of 25 HP and a penalty
bill of ₹32,832.71/- was given to the complainant and as
the complainant had lost in the appeal and had to pay the
amount of the fine, the complainant had a grievance against
the accused. The accused had himself advised the
complainant to apply for LTP-III and complainant filed an
application on 24.07.2002. That the accused was
transferred from Kalol to Mehsana on 09.07.2002 and was
working at Mehsana since that date. The new meter of the
complainant was allocated on 04.10.2002 by Kalol Sub
Division and at that time, Junior Engineer B.A.
Brahmbhatt, Junior Engineer - H.S. Patel and other
engineers had gone to change the meter and he had no
relationship whatsoever with the Kalol Sub Division. That
the meter of the complainant was changed and signatures
were taken and the necessary record is produced regarding
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the change of meter. That after the checking incident, the
relations between the complainant and the accused
improved but Naranbhai - the brother of the complainant
had a grievance against the accused and at that time, the
children of the accused were studying in Asia High school,
IFFCO, Kalol and as the accused was transferred midterm
he was commuting to Mehsana and residing at Kalol. That
on 06.02.2003, the incident of short circuit due to the
squirrels had taken place and the employees from Vadsar
GEB, Kalol Sub Division-I had come and changed the wires
and reconnected the electricity connection and the accused
was not authorised to seal any meters in that area. The
complainant knew that the accused was coming to
Ahmedabad at Asia School on 05.03.2003 to pay the fees of
his children and on 04.03.2003 at night, the complainant
telephoned the accused and called him to his factory to take
some advice and the trap was arranged. That in fact, three
days prior to the trap, the demand draft of Sabar Tiles
Factory was returned for some reason and the complainant
apprehended that his connection would be cut off and due
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to a misunderstanding, had filed the complaint. The
complainant has admitted that he had telephoned the
accused on 05.03.2003 during the cross examination and
that his draft was not accepted and as he was apprehending
that his connection would be cut, he had called the accused
and told him to come to the factory personally. The witness
has refused to step into the witness-box but has examined
defence witness - Ambalal Madhavdas Patel at Exh. 76 and
produced the following oral and documentary evidence in
support of his case.
Oral Evidence
Sr. No. DW Particulars Exh.
Documentary Evidence
Sr. No. Particulars Exh.
Farm Santej
Mehsana, GEB
GEB
raid at Sabar Tile Factory
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regarding change of meter along with
the receipt of money paid
2.8 The accused filed the closing pursis at Exh. 82 and
after the arguments of the learned Additional Public
Prosecutor and the learned advocate for the accused were
heard, the learned Trial Court by the impugned judgement
and order dated 22.03.2007 was pleased to convict the
accused and sentence him to rigorous imprisonment of one
year and fine of Rs. 2500/- for the offence under Section 7
of the PC Act and rigorous imprisonment of two years and
fine of Rs. 2500/- for the offence under Section 13(1)(d), 1,
2, 3 read with Section 13(2) of the PC Act. The learned Trial
Court was further pleased to order that 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 contrary to law, against the express provisions
of statute and against the evidence on record and the
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learned Trial Court has failed to appreciate that a false
complaint has been filed against the appellant and in fact,
the complainant had called the appellant to help him. The
incident of short circuit occurred in February 2003 and at
that time, the accused was working at Mehsana and he had
no connection whatsoever with Kalol GEB Sub Division-I
and had no jurisdiction or power to seal the meter as alleged
by the complainant. That in January 2001, the complainant
was caught using more than the allocated 25 HP of
electricity and an additional bill of ₹32,832.71/- was issued
to him and the complainant had filed an appeal before the
Appellate Authority in which he lost his case and the
complainant has a prejudice against the appellant. The
learned Trial Court has failed to consider that the
complainant gave an application for 33.5 HP electricity on
24.07.2002 and before that on 09.07.2002, the appellant
was transferred from Kalol to Mehsana. The new connection
was sanctioned on 04.10.2002 and at that time, Junior
Engineers - B.A. Brahmbhatt and H.S. Patel of Kalol
Division had replaced the meter and the appellant had no
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connection with the transaction and hence there was no
question of demanding any amount of illegal gratification
from the complainant. The learned Trial Court has failed to
consider that the appellant has not visited the factory of the
complainant for affixing the seal as he had no jurisdiction to
do so and the learned Trial Court has wrongly relied upon
the deposition of the complainant in which he has stated
that he had initially given ₹10,000/- which were currency
notes of the denomination of ₹100/- each and thereafter the
currency notes of ₹100/- were replaced with currency notes
of the denomination of ₹500/-. The learned Trial Court has
failed to consider that at the time of the trap, there was no
demand and the complainant had given the amount to the
appellant without any demand being made. The
complainant has not produced any evidence on record to
show that he is the owner or partner of Sabar Tiles and it is
the defence of the appellant that the amount was given to
the appellant for payment of his bill as his demand draft
was rejected and the complainant apprehended that his
electric connection would be cut off. The complainant has
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himself admitted that his draft was returned by the GEB
and the amount of the complainant was to be accepted by
cash only and the learned Trial Court has failed to consider
this aspect in the cross-examination of the complainant.
The complainant has also admitted that he had filed the
complaint because of the pressure of his relatives and the
impugned judgement and order of conviction is contrary to
law and evidence on record and deserves to be quashed and
set aside.
4. Heard learned Senior Advocate Mr. K.B. Anandjiwala
with learned advocate Mr. N.D. Gohil 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 Senior Advocate Mr. K.B. Anandjiwala with
learned advocate Mr. N.D. Gohil submits that it is on record
that the complainant had taken a 25 HP electric connection
for his factory Sabar Tiles and thereafter, a LTP-III
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connection of 33.5 HP metee was obtained. The complainant
in the complaint has stated that for fitting the meter, the
appellant had gone to the factory and had demanded an
amount of ₹12,000/- and ultimately it was settled at
₹6000/-. That one squirrel gave birth to babies in the meter
box which was at Sabar Farm of the complainant due to
which a short circuit took place and the complainant gave
an application to the Deputy Engineer, Kalol and the
electricity connection was restored. However, the employees
who had come to restore the connection did not seal the
meter and the complainant had requested the appellant to
seal the meter but the appellant threatened the complainant
that he would be fined to the tune of ₹50,000/- and
demanded an amount of ₹6000/- for the previous meter
and ₹5000/- for the second time and in all an amount of
₹11,000/- was demanded and after bargaining the amount
was fixed ₹10,000/-. That in the evidence of the
prosecution, it is on record that the appellant was
transferred from Mehsana GEB on 09.07.2002 and as his
children were studying in a school at Ahmedabad, he had to
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pay the amount of fees and on the date of the trap, he came
to Ahmedabad to pay the school fees of his children. The
complainant knew this fact and called the accused to the
factory office and the electricity bill of the complainant was
outstanding and the bill was paid by draft by the
complainant but the draft was returned and not accepted by
Kalol, GEB and a request was made by a letter dated
26.03.2003 to pay the amount in cash. The complainant
had given the amount to be paid in the GEB Kalol on behalf
of the complainant for the electric bill and and it is on
record that the appellant was a member of the checking
team and the bill of ₹32,837.71/- was given to the
complainant which had to be paid by him as he lost his
appeal. That the accused did not favour the complainant
and it is on record that the complainant was under heavy
pressure from his brothers and relatives and from the bare
reading the deposition, it it is proved that the appellant
never demanded any amount from the complainant. The
complainant has stated that somebody was calling him on
phone by the name of Prajapati and was demanding the
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amount but no demand was ever made by the appellant in
person. In the evidence, it has also come on record that the
complainant was carrying a sense of guilt and after this
incident, he started feeling that because of his brothers, he
took a wrong action against the appellant and by way of
repentance, he left the factory permanently. In the entire
evidence of the complainant, there is no evidence that the
appellant had ever demanded any amount of illegal
gratification from him and even on the date of the trap, no
demand was made by the appellant but the complainant
himself offered the amount and hence, the most important
aspect of demand is not established by the prosecution
beyond reasonable doubts. The panch witness -
Jagdishchandra Kantilal Joshi has stated that on
05.03.2003 in the early morning at 05:30 or 06:00 am, he
was called on phone by the Trap Laying Officer - Mr. Jani
and was called at Shahibaug Office to act as a panch and
Mr. Jani had informed him that someone was demanding
the bribe amount and the trap has to be arranged. In the
evidence of the panch, it has also come on record that the
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complainant gave ₹10,000/- which were currency notes in
the denomination of ₹100/- each, however, Mr. Jani himself
changed the currency notes into the denomination of
₹500/- each and in the deposition of the panch witness,
there is no evidence that at the time of the trap, in the
presence of the panch witness, the appellant had demanded
any amount of illegal gratification. After the trap, the
pockets of the appellant were searched, the receipts of
payment of school fees of the children of the appellant were
found and no experiment was carried out on the currency
notes as per the panchnama. The prosecution has not
proved the demand and acceptance of illegal gratification by
the appellant and it is proved on record that the appellant
was discharging his duty at Mehsana and not at Kalol and
there was no question of doing any work for the
complainant and the work of fixing the meter was done by
other officers of GEB. The learned Trial Court has not
examined the totality of the circumstances and if
circumstances do not prove the guilt of the appellant, the
appellant cannot be convicted for the same. In the evidence
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of the prosecution, it is also on record that the draft
sanction order was sent along with the papers to the
Competent Authority for the order of sanction for
prosecution and in the papers sent for the order of sanction
for prosecution, there was no evidence about the ownership
of Sabar Farm and the Sanction Authority has not received
any information about the connection given to Sabar Farm
from the Deputy Engineer, GEB Kalol. It is on record that
the new electric meter LPT-III of 33.5 HP was not installed
by the appellant as he was transferred from GEB Kalol to
GEB Mehsana office and the Sabar Tiles Factory, Santej at
Kalol was not within the jurisdiction of the appellant and
even though without proper application of mind, the
Sanction Authority has accorded the order of sanction for
prosecution. The evidence of the prosecution does not prove
the demand and acceptance and the appellant has come up
with a defence that the amount was accepted to be paid
towards the outstanding bill of the complainant which has
been admitted by the complainant but the learned Trial
Court has not considered the same and has convicted the
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appellant. The impugned judgement and order of conviction
is illegal and perverse and is required to be quashed and set
aside and the appellant must be acquitted for all the
offences.
5.1 Learned Senior Advocate Mr. K.B. Anandjiwala has
relied on Neeraj Dutta V. State (Govt. of NCT of Delhi)
reported in (2023) 4 SSC 731, 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
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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:
(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
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gratification without anything more would not
make it an offence under Section 7 or Section
13 (1)(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order
to bring home the offence, there must be an
offer which emanates from the bribe giver which
is accepted by the public servant which would
make it an offence. Similarly, a prior demand by
the public servant when accepted by the bribe
giver and 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
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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.
(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 Senior Advocate Mr. K.B. Anandjiwala has
relied on B.Jayaraj Vs. State Of A.P reported in 2014 (13)
SCC 55, wherein, the Apex Court has observed in paras 8
and 9 as under:
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8. In the present case, the complainant did not support the
prosecution case in so far as demand by the accused is
concerned. The prosecution has not examined any other
witness, present at the time when the money was allegedly
handed over to the accused by the complainant, to prove
that the same was pursuant to any demand made by the
accused. When the complainant himself had disowned
what he had stated in the initial complaint (Exbt.P-11)
before LW-9, and there is no other evidence to prove that
the accused had made any demand, the evidence of PW-1
and the contents of Exhibit P-11 cannot be relied upon to
come to the conclusion that the above material furnishes
proof of the demand allegedly made by the accused. We
are, therefore, inclined to hold that the learned trial court
as well as the High Court was not correct in holding the
demand alleged to be made by the accused as proved. The
only other material available is the recovery of the tainted
currency notes from the possession of the accused. In fact
such possession is admitted by the accused himself. Mere
possession and recovery of the currency notes from the
accused without proof of demand will not bring home the
offence under Section 7. The above also will be conclusive
in so far as the offence under Section 13(1)(d)(i)(ii) is
concerned as 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
established.
9. In so far as the presumption permissible to be drawn
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under Section 20 of the Act is concerned, such
presumption can only be in respect of the offence under
Section 7 and not the offences under Section 13(1)(d)(i)(ii)
of the Act. In any event, it is only on proof of acceptance of
illegal gratification that presumption can be drawn under
Section 20 of the Act that such gratification was received
for doing or forbearing to do any official act. Proof of
acceptance of illegal gratification can follow only if there is
proof of demand. As the same is lacking in the present case
the primary facts on the basis of which the legal
presumption under Section 20 can be drawn are wholly
absent.
6. Learned APP Ms. Jirga Jhaveri for the respondent -
State has submitted that the learned Trial Court has
appreciated all the evidence in proper perspective and the
prosecution has proved that even though the appellant was
not authorised to visit the Sabar Farm of the complainant,
had demanded the amount of ₹6000/- for fixing of the
meter and an amount of ₹5000/- to seal the meter of the
complainant at Sabar Farm. The appellant had demanded
an amount of ₹11,000/- in all and after bargaining, the
amount was fixed at ₹10,000/- and even though the
appellant did not have any jurisdiction over the electric
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meters of the complainant and the appellant was
transferred to Mehsana, had demanded the amount of
₹10,000/- from the complainant. On the day of the trap, the
complainant was in his office along with the panch witness
and the appellant came to accept the amount of illegal
gratification and at that time, the trap was successful. The
prosecution has proved all the ingredients of demand,
acceptance and recovery and the defence put up by the
appellant has not been believed by the learned Trial Court
and the learned Trial Court has appreciated all the oral and
documentary evidence produced by the prosecution and has
passed the impugned judgement and order of conviction.
There is no perversity or illegality in the judgement and
learned APP Ms. Jirga Jhaveri as 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:
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(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
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 - Shivlal Kikabhai Purohit
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at Exh. 19 and the witness is the complainant who has
narrated the facts stated in the complaint. The complainant
has stated that he had a Mosaic Tile factory on the Khatraj -
Vadsar Road and a shop Sabar Tiles at the Gota Railway
Crossing. That they had taken electricity connection in the
year 1991 and in the year 2000, the officers from the GEB
had come for checking and as he had a 25 HP electric
connection and was using 32 HP electricity, he was fined an
amount of ₹32,832/- and he paid 25% of the amount and
had filed an appeal. That he had also applied for 32 HP
electric connection which was given to him and the staff
from the GEB Kalol had come to fix his meter. That the
accused had come to fix the meter and told the complainant
that the meter cost ₹12,000/- but it was fixed for him
without any cost and to understand his transaction. That
thereafter, the accused frequently telephoned the
complainant and inquired about his transaction and the
complainant was avoiding the issue. That in 2003, a
squirrel had given birth to babies in the meter box and there
was a short circuit in the meter box at his Sabar Farm and
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the electricity connection was cut off. That he gave an
application to the GEB Kalol and the employees had come
and restored the connection but the meter was not sealed
and the complainant had frequently telephoned the accused
and informed him about the meter box remaining unsealed.
The accused came to Sabar Farm to seal the meter but the
complainant does not remember the date when he had come
and at that time, the accused refused to seal the meter and
after the complainant telephoned the accused, he told him
to understand his transaction and then he would think of
getting the meter sealed. That on 04.03.2003, the
complainant telephoned to the accused and called him to
his office on the next day and the complainant went to the
ACB Office and filed the complaint. The complainant has
stated that he had an animosity with the accused as he had
to pay an amount of ₹32,832/- as fine in the year 2001. The
complainant has identified the complaint produced at Exh.
20 and has narrated that on the next day, he went with the
currency notes of ₹100/- each and gave it to the police who
changed the notes to currency notes of ₹500/- but he does
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not know where the currency notes were changed.
Phenolphthalein powder was applied on the currency notes
and he was instructed to give the predetermined signal and
they all left from the ACB Office to go to his Sabar Tiles
Shop. That he does not know whether the panchnama was
written and when they went to the Sabar Tiles Shop, he and
the panch no. 1 went in his office and his brother -
Naranbhai Kikabhai Purohit was sitting on the revolving
chair and at that time, the accused came and sat on the
sofa and the complainant told him that he would
understand his transaction and the accused replied 'okay',
but no other conversation took place and the complainant
took the tainted currency notes from his right pant pocket
and gave it to the accused who accepted it and put it in his
left shirt pocket. The complainant went out and gave the
predetermined signal and the members of the raiding party
came and recovered the amount from the shirt pocket of the
accused. That the tests were done and the panchnama was
written. The complainant has stated that three days prior to
05.03.2003, he had sent a draft of Ahmedabad District
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Cooperative Bank for his GEB bill but it was not accepted
and a notice was given to him that his electricity connection
would be cut off and he apprehended that the GEB would
cut off his electricity connection. During the cross-
examination by the learned advocate for the accused, the
witness has stated that Khatraj and Santej both are within
the jurisdiction of Kalol GEB Sub Division Office and when
he had the 25 HP electricity connection, his factory was
checked and it was found that he was using 8 HP more than
the allotted connection and a checking sheet was prepared.
That he was given a bill of ₹32,832.71/- and he had paid
₹16,000/- and filed an appeal and had lost the appeal and
had to pay the remaining amount of the bill. That when he
went to pay the remaining amount of bill, Junior Engineer -
D.N. Patel and Y.A. Patel and the Deputy Engineer were
present and he had threatened them saying that they had
falsely fined him. That after he had paid the amount of fine,
the accused had advised him to take the LTP-III scheme
connection and the accused was transferred from Kalol to
Mehsana on 09.07.2002 and thereafter his relationship with
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the accused had improved. As per the advice of the accused,
he had applied for an LTP-III connection on 24.07.2002 and
had received the LTP-III connection on 18.10.2002. That at
that time he had received the meter and the accused had
told him not to pay any amount to any person of the Sub
Division, if any person demanded for any amount. That he
had paid his bill with a draft, three days prior to filing the
complaint and an endorsement was made that the bill of
this party should not be accepted by check or draft or pay
order and was to be accepted only by cash and the draft was
returned. That his connection was cut-off and he had paid
an amount of ₹500/- for reconnection and the connection
was restored. The accused was residing at Kalol and would
meet him whenever he would come to Ahmedabad and was
paying the school fees of his children who were studying in
Asia School, Kalol at the bank in Ahmedabad situated at
Gurukul and had told him that as he was not working at
Kalol, he could not personally help him. That he had a
doubt that his draft was not accepted due to the accused
and the telephone calls that he had received from
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18.10.2002 to 04.03.2003 for the transaction were made by
some person in the name of Prajapati and he had the
impression that it was the accused. That on 18.10.2002, the
accused did not come to fit his LTP-III meter connection but
two other officers had come and they had affixed their
signature and the date on the report of fixing the meter.
That when he had asked the accused to seal the meter, the
accused had told him to phone the Kalol Sub Division and it
was not in his jurisdiction to affix the seal. That he had
called the accused as his draft was not accepted on
04.03.2003 on his house telephone and the accused had
told him that he was to come to Ahmedabad on the next day
to pay the school fees of his children and he would come to
his office. That after the trap, the receipts of the school fees
of the children of the accused were found from the pocket of
the accused and he had discussed with his brother about
the corruption case and told his brother that the accused
would come on the next day to Ahmedabad as he was
delayed in paying the school fees of his children and he
would definitely come on the next day. That between
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25.01.2002 and 04.03.2003, whenever the accused met him
in person, he did not demand ₹6000/- to fit the meter or
₹5000/- for the squirrel incident and after the trap when
the ACB Officer inquired from the accused, he had
explained that he was called and was wrongly implicated in
the offence. That after the incident, he felt guilty that
because of his brothers, a wrong has taken place with the
accused and he left the factory. The complainant has
admitted that due to pressure from his relatives, as a
grievance for the penalty and interest that had to be paid,
he has filed the present complaint.
9.1 The prosecution has examined PW2 - Jagdishchandra
Kantilal Joshi at Exh. 25 the witness is the panch witness
who has fully supported the case of the prosecution and has
stated that on 05.03.2003, he had gone to the ACB Police
Station along with the other panch witness - Maheshbhai
Ramanbhai Desai. The witness has stated that they were
introduced to the complainant and the witness has fully
supported the case of the prosecution and has described in
detail the demonstration of phenolphthalein powder and
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solution of sodium carbonate that was done in their
presence and thereafter, the necessary instructions were
given to them and the trap was arranged. The witness
stated that he was instructed to be the shadow witness and
he went along with the complainant to the showroom of the
complainant and while they were sitting in the office, the
brother of the complainant was sitting in a chair and the
accused came on a scooter to the showroom of the
complainant. The accused came into the office and sat on
the sofa and the accused and the complainant had a
conversation about the meters and the complainant told the
accused that he was ready to give the transaction and the
money was ready and took the currency notes from his
pocket and gave it to the accused and told him that they
would have tea. The complainant went outside and the
members of the party came in the office and caught the
accused. The currency notes were taken from the accused
and put in a paper and sealed and the witness has
identified the signature on the panchnama produced at Exh.
26. During the cross-examination by the learned advocate
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for the accused, the witness has stated that the ACB Officer
- Mr. Jani is his friend and he has his telephone number
and he was called to the ACB Office on 05.03.2003 by a call
on the telephone. ACB Inspector - Jani Saheb had told him
that he would get him the necessary permission if required
and when he and the panch no. 2 went to the ACB Office,
the complainant was present in the office. That when the
accused came to the office of the complainant, he told the
complainant that he was a little late as he had gone to pay
the school fees of his children and also told the complainant
that he had come to Ahmedabad only to pay the fees
otherwise he did not have any program to come to
Ahmedabad. That the shirt of the accused was seized by the
officer but he does not know who had brought the
alternative shirt and from where the shirt was procured.
That after the trap, the accused had stated that he was
falsely implicated in the offence and the panchnama was
written by Jani Saheb, and the panch witnesses and Jani
Saheb had signed the panchnama. That the solution of
sodium carbonate was filled in a bottle and sealed but no
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slip with the signatures of the panch witnesses was placed
on the bottles and the bottles were placed in the brown
paper and were sealed with a thread but no slips with the
signatures of the panch witnesses were placed in the brown
packet. At the time of the trap, the complainant and the
accused had a common conversation and the complainant
gave the amount to the accused and told him to accept the
amount as it was ready.
9.2 The prosecution has examined PW3 - Kantilal
Prabhudas Patel at Exh. 33 and the witness is the
Competent Authority who has accorded the order of
sanction for prosecution which is produced at Exh. 34.
During the cross-examination by the learned advocate for
the accused, the witness has stated that in the documents
submitted for the order of sanction for prosecution, there
was no document regarding the ownership of Sabar Farm or
the GEB meter and in the sanction order produced Exh. 30,
it is mentioned that Sabar Farm is within the jurisdiction of
Deputy Engineer - Kalol GEB but he has not made any
correspondence with the Deputy Engineer, GEB Kalol. That
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GEB had taken an amount of ₹32,832.71/- from the
complainant and he had not verified the documents
regarding the ownership of Sabar Farm given by the
complainant and had not verified who was the owner of
Sabar Farm.
9.3 The prosecution had examined PW4 - Vijaykumar
Manharlal Jani at Exh.36 and the witness is the Trap
Laying Officer who was the Police Inspector, ACB Police
Station on 04.03.2003 when the complainant came to the
ACB Police Station and narrated the facts of his complaint
and thereafter, the witness called the complainant on the
next day i.e. on 05.03.2003. The witness has narrated in
detail all the procedure that he had undertaken on
05.03.2003 when the complainant had come to the ACB
Police Station early in the morning and he had called the
panch witnesses and the complainant had given the amount
of ₹10,000/- on which the demonstration of
phenolphthalein powder and solution of sodium carbonate
was done by his staff Arjunsinh Rathod under his
instructions and the currency notes were smeared with
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phenolphthalein powder and placed in the right pant pocket
of the complainant and the trap was arranged. That they
had all gone to the showroom of the complainant and after
the predetermined signal was given, he had rushed into the
office of the complainant along with the panch no. 2 and the
members of the raiding party and had recovered the tainted
currency notes from the possession of the accused. The
necessary tests were done and the panchnama was drawn
and the witness has narrated in minute detail all the events.
That after the panchnama was drawn and the investigation
was handed over to Police Inspector - M.J. Pancholi. During
the cross-examination by the learned advocate for the
accused, the witness has stated that the farmhouse (Sabar
Farm) is situated in Santej village and the factory of Sabar
Tile situated in Kathraj village and both are in the
jurisdiction of Kalol Taluka of Mehsana District and he was
having the jurisdiction of Ahmedabad City. That he had
instructed the panch witnesses to remain present and had
called him on their residence telephone number and had
taken their consent on the telephone and the complaint was
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taken down on 04.03.2003 at around 10:15 pm and it was
concluded at 11:30 pm. The complainant was instructed to
remain present on the next day at 06:00 am for the trap.
That normally a requisition yadi is sent to get the panch
witnesses but he had called both panch witnesses on the
telephone. The witness has denied that the complainant had
produced 100 currency notes of the denomination of ₹100/-
each and he had exchanged it to the denomination of
₹500/- each and after he heard the complaint of the
complainant, he felt that a cognizable offence had taken
place. That after the trap was successful, he brought the
accused to the Police Station and registered the complaint
and after the panchnama was concluded, he inquired the
facts from the accused. That after the trap during the
panchnama, the receipts of Asia High School of the fees of
the son and daughter of the accused were found and the
shirt of the accused was seized during investigation. That a
test of filter paper was done on the shirt pocket of the
accused but the filter paper was destroyed and the shirt of
the accused was not sent to the FSL. The panchnama does
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not mention where the alternate shirt of the accused was
arranged from and after the complaint was registered, he
had investigated the offence till 12.03.2003. That after the
complaint was recorded and the trap was successful, he had
investigated the offence and knew that the offence was
within the jurisdiction of ACB Police Station and
Ahmedabad (Rural) but he did not send the matter towards
Ahmedabad (Rural) for investigation. During investigation,
he did not collect any document regarding the ownership of
Sabar Farm situated at Santej and did not see any evidence
that the accused was working in GEB Kalol on 06.02.2003.
That he did not see any evidence, whether the complainant
was a partner or administrator of Sabar Tiles situated at
Gota Railway Crossing.
9.4 The prosecution has examined PW5 - Naranbhai
Kikabhai Purohit at Exh.44 and the witness is the younger
brother of the complainant who has stated that on
05.03.2000 he was at his office in Gota and his brother had
brought some officer with him. That at 10:05 hours, the
accused came on a scooter and parked his scooter and
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came into the office and sat on the sofa and had a
conversation with his brother. That his brother gave the
accused ₹10,000/- and told him that the amount was for
the LPT-III meter and for sealing the meter of Saber Farm
and the accused took the amount and placed it in a shirt
pocket. That his brother went to give order for the tea and
the ACB Officers came and caught the accused. That after
the ACB Officers came and asked the accused to sit, the
accused stood up asking the officers to listen to him and to
settle the matter and he was confused and he went outside
of the office and sat on the sofa. The witness has not
supported the case of the prosecution and has been
declared hostile and has been cross-examined at length by
the learned APP. During the cross-examination by the
learned advocate for the witness stated that they were using
more HP electricity then the allotted electricity in their
Sabar Tiles Factory and they were fined and an appeal was
preferred. The factory is situated in Khatraj village of Kalol
Taluka and the office is situated in Gota village of
Ahmedabad District. That the sale deed of Sabar Farm was
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in the name of his relative Ashokbhai Mangaldas Patel as
they were not farmers and any transaction to be done
regarding Sabar Farm was to be done in the name of
Ashokbhai but they had not taken any power of attorney
from Ashokbhai. That after the squirrel incident, during one
year, they had not given the accused any money and the
meter was changed on 18.10.2003 by Kalol Sub Division.
That the transaction of Sabar Farm was benami and they
were in possession but they were not in possession as
tenants. That the employees of GEB who came to reconnect
the connection had told him that the seals on the meter
would be done by their superior officer.
9.5 The prosecution has examined PW6 - Madankumar
Jayantilal Pancholi at Exh.49 and the witness is the
Investigating Officer who has stated that he had seized the
necessary documents and after the order of sanction for
prosecution was received from the Competent Authority and
FSL report was received, he has filed the charge sheet before
the Sessions Court, Ahmedabad (Rural). During the cross-
examination by the learned advocate for the accused, the
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witness has stated that he had received information that he
had to go for a trap late night on 04.03.2003 and he was
present during the entire trap proceedings on 05.03.2003.
From 04.03.2003 to 12.03.2003, the investigation was with
Police Inspector - V.M. Jani and besides them, a third Police
Inspector was present. That Sabar Tiles, Khatraj and Sabar
Farm Santej are within the jurisdiction of Mehsana District
and the revenue documents of Sabar Farm have not been
examined. That he has not investigated whether the
electricity connection was in the name of the complainant
and has not investigated where the accused was working on
04.03.2003 and 05.03.2003. The complainant has stated in
the complaint that the accused had gone to fix the meter at
Sabar Tiles, Khatraj on 18.10.2003 but he has not
investigated about the same and has not investigated as to
which officers had gone to fix the meter. That on the date of
the trap, the receipts of school fees of the children of the
accused of Asia High School were found from the pocket of
the accused and he has not recorded the statement of
Ashok Mangaldas who is the owner of Sagar Farm. During
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investigation, the shirt was not sent for investigation to the
FSL.
10. After the closing pursis was filed by the learned APP at
Exh. 82, the further statement of the accused under Section
313 of Code of Criminal Procedure, 1973 was recorded,
wherein, the accused denied all the evidence on record by
the prosecution and the accused refused to step into the
witness-box but stated that he wanted to examine a witness
and has examined Defence Witness no. 1 - Ambalal
Madhavdas Patel at Exh. 76. The witness has stated that he
was working as the Executive Engineer in the Kalol Sub
Division and Sabar Farm is situated within his jurisdiction.
That Ashok Mangaldas Patel - the owner of Sabar Farm,
Santej had filed an application for electricity connection on
17.04.2001 and whenever any person files an application
for an electricity connection, they take the documents from
that person such as A1 Form, Electricity Form, NOC from
the Gram Panchayat, copy of village form no. 7/12 and form
no. 8A and thereafter, an estimate is given to the party. As
per the record, an estimate was given to Ashokbhai
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Mangaldas Patel and he was given an electricity connection
with consumer no. 1182. That after the connection was
given the Deputy Engineer, Kalol Sub Division is responsible
for any break in wire or stoppage of electricity connection
and Thasra Sub Division has no jurisdiction about the
electricity connection at Saber Farm. That no papers were
filed in the name of Shivlal Kikabhai Purohit and the
documents were in the name of Ashokbhai Mangaldas Patel
and the documents are produced at Exh. 77 to Exh. 81.
During the cross-examination by the learned APP, the
witness has stated that the accused was working in the Low
Tension Installation Checking Squad and the squad has the
jurisdiction and power to check the electricity connection of
consumers. That while the accused was working as a Junior
Engineer in the Low Tension Installation Checking Squad,
the witness was a Deputy Engineer at Chhatral which is in
Sub Division Kalol and the accused was working in Kalol
Sub Division.
11. On minute appreciation of the entire evidence of the
prosecution. The following facts emerge on record of the
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case.
1. The accused was working as Junior Engineer in
the Kalol Sub Division and was a member of the Low
Tension Installation Checking Squad and the squad
had checked the the electricity connection of Sabar
Tiles factory on 25.01.2001 and it was found that the
factory premises was consuming more electricity power
than the allocated 25 HP electricity and in fact, the
consumption was of 30 HP of electricity. A complaint
was against Sabar Tiles factory for the excess power
used and a bill of the amount of ₹32,837.71/- was
given and the factory had filed an appeal before the
Appellate Authority and the factory lost the appeal and
they had to pay the entire amount of bill.
2. The accused had advised the complainant to
apply for an LTP-III connection and the and the LTP-III
connection was sanctioned on 04.10.2002 and Junior
Engineers - B.A. Brahmbhatt and H.S. Patel from Kalol
GEB Sub Division came to the factory premises on
18.10.2002 and fixed the meter. The accused did not
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go to fix the meter at the premises of the complainant
on 18.10.2002.
3. The accused was transferred to Mehsana GEB on
09.07.2002 and had no connection whatsoever with
the Kalol GEB Sub Division from 09.07.2002 onwards.
4. As per the complainant, a short circuit incident in
the meter box of Saber Farm occurred in the year 2003
and the electricity connection was shut off and an
application was given for reconnection of the electricity
and the staff persons of GEB Vadsar Sub Station came
to Saber Farm and the wiring was changed and the
connection was reconnected but the staff persons did
not seal the meter box. At the time of this incident, the
accused was working at Mehsana GEB and had no
connection whatsoever with the Vadsar Sub Station
and Kalol Sub Division.
5. The complainant has filed the complaint on
04.03.2003 and the first demand is said to have been
made on 18.10.2002 at the time when the LTP-III
meter was fixed but it is on record that the accused did
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not go to fix the LTP-III meter, as by then, the accused
was transferred to Mehsana GEB from Kalol GEB.
6. The complainant has stated that the accused had
demanded an amount of ₹6000/- for the meter and
₹5000/- to seal the meter of Saber Farm but it is on
record that the accused did not go to fix the LTP-III
meter and as he was transferred to Mehsana GEB, the
sealing of the meter of Saber Farm was not within his
jurisdiction.
7. The complainant has admitted that from the year
2001 till the day of the trap in the year 2003, the
accused had never demanded any amount from him in
person and the demand was made on the telephone by
a person named Prajapati and he had the impression
that the person is the accused.
8. On 04.03.2003, the complainant was aware that
the accused would come to Ahmedabad to pay the
school fees of his children on the next day and the
complainant telephoned the accused and called him to
his office on the next day i.e. the day of the trap and
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the accused did not go voluntarily to the office of the
complainant on the day of the trap.
9. The panch witnesses were contacted on the
phone by the Trap Laying Officer and no requisition
letters for the services of the panch witnesses were sent
to any office.
10. After the trap, no test was done on the currency
notes and the panchnama was prepared and only the
signatures of the panch witnesses have been proved.
11. A draft sanction order was sent along with the
papers for the order of sanction for prosecution and the
order of sanction for prosecution produced at Exh. 34
does not mention that the documents were considered
for according the order of sanction for prosecution.
12. The complainant has admitted that after the
incident, he carried a sense of guilt and felt that
because of his brothers and relatives, a wrong action
has been taken against the accused and by way of
repentance, he permanently left his factory. The
complainant has deposed that the accused did not
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demand any amount of illegal gratification in person
from him.
13. The panchnama was not written by the panch
witnesses but was dictated by the Trap Laying Officer.
14. The solution of the hand wash of the accused was
sealed but the panch slips with the signatures of the
panch witnesses was not placed with the bottles.
12. In view of the above infirmities that have emerged in
the case of the prosecution that go to the root of the matter
and strike a vital blow on the case of the prosecution, it
appears that these infirmities have not been considered by
the learned Trial Court. There is no explanation from the
prosecution regarding the fact that when the accused was
already transferred to Mehsana GEB, how could he demand
amounts of illegal gratification from the complainant for
work done by Kalol GEB Sub Station and when the
complainant was aware that he has to give the application
to Kalol GEB Sub Division and the accused was no longer
working at Kalol GEB Sub Division, how would he agree to
pay the amount of illegal gratification to the accused? The
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complainant has categorically stated that from the year
2001 onwards till the time he had filed the complaint, the
accused had not demanded any amount of illegal
gratification in person and the only demand was made on
the telephone but no telephone call details have been
produced on record to prove that the telephone calls were in
fact made, by the accused to the complainant. The prior
demand has not been established beyond reasonable doubts
by the prosecution and in the evidence of the panch
witness, it has come on record that the accused had stated
that he had come to Ahmedabad to pay the school fees of
his children or he would not have come to Ahmedabad and
had no program to come to Ahmedabad. This proves that
the accused did not voluntarily come to collect the amount
of illegal gratification and the complainant had called the
accused to his office.
13. 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 of
the PC Act and as there is no iota of evidence of demand,
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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. 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
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.
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14. The impugned judgement and order of conviction
passed by the learned Special Judge, ACB and Presiding
Officer, Fast Track Court No. 2, Ahmedabad Rural,
Ahmedabad in Special ACB Case No. 28/2003 on
22.03.2007 is hereby quashed and set aside and the
appellant is acquitted from all the charges levelled against
him.
15. 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
