Gujarat High Court

The State Of Gujarat vs Sureshbhai Pannalal Nayak on 15 May, 2025

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                           R/CR.A/1602/2008                                        JUDGMENT DATED: 15/05/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/CRIMINAL APPEAL NO. 1602 of 2008


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR.JUSTICE D.N.RAY

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                                   Approved for Reporting                        Yes            No

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                                                    THE STATE OF GUJARAT
                                                            Versus
                                                 SURESHBHAI PANNALAL NAYAK
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                      Appearance:
                      MR SOAHAM JOSHI, APP for the Appellant(s) No. 1
                      MR PR ABICHANDANI(102) for the Opponent(s)/Respondent(s) No. 1
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                         CORAM:HONOURABLE MR.JUSTICE D.N.RAY

                                                          Date : 15/05/2025

                                                          ORAL JUDGMENT

1. Heard Mr. Soaham Joshi, learned APP for the

Appellant - State and Mr. P. R. Abichandani, learned

advocate for the Respondent.

2. Feeling aggrieved and dis-satisfied with the

judgment and order of acquittal dtd. 1.11.2007 passed by

the learned Special Judge, FTC No.6, Vadodara in

Special (ACB) Case No.8/2004, whereby the Respondent(s)

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accused came to be acquitted for the offences punishable

under Section 7, 13(1)(d) & 13(2) of the Prevention of

Corruption Act, 1988, the Appellant-State has preferred

this Appeal.

3. The facts of the case are narrated in the impugned

judgment and order of acquittal in great detail. The

same are not disputed by the learned Additional Public

Prosecutor appearing on behalf of the Appellant -State.

Therefore, the same are not repeated herein but briefly

recapitulated as under:

3.1 The petitioner, resident of Village Padra, Ta. Padra,

Dist. Vadodara, is a farmer (Khatedar). The complainant purchased the land bearing survey no. 752 and 282/2/2

along with sale deed in village Jhanjhod, Ta. Shinore,

Dist. Vadodara. Upon wanting to register the sale deed

with his name in the revenue record, the Mamlatdar of

Shinore directed the complainant to produce the farmer's

certificate of Padra Taluka. It is the case of the

complainant that the accused, in order to mark certain

7/12 extracts in a total of 5 entries, had demanded a

total of Rs.25,000/- as bribe. After negotiation, the same

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was alleged to be settled for Rs.5,000/- which was to be

paid on 21.11.2003 upon which the complainant was to

be given the necessary copies. At this point, the

complainant approached the ACB, Vadodara and filed his

complaint. A trap for the said amount was set up which,

according to the prosecution case succeeded and charges

against the accused for offences punishable under

sections 7, 13(1)(d), & 13(2) of the Prevention of

Corruption Act, 1988 were framed.

4. The learned Trial Court had recorded that the

complainant was unavailable to depose. Further, there

were discrepancies in the testimonies of the other

witnesses. Taking note of the above, the learned Trial

Court had acquitted the accused. It is not in dispute

that the complainant did not depose in the trial and

therefore the accused did not get an opportunity to cross-

examine the complainant on his complaint before the

authorities prior to the trap. Learned APP, Mr. Soaham

Joshi had relied upon the decision of the Hon'ble Apex

Court in the case of Neeraj Dutta Vs. State

(Government of NCT of Delhi) reported in (2023) 4 SCC

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731 [CB] particularly, para 88 thereof. Learned APP

submitted that upon placing reliance on para 88.3 and

88.6 that even if the deposition of the complainant is

absent in the trap, the guilt of the accused can be

proved through other witnesses or by documentary

evidence or even by circumstantial evidence.

5. Upon perusal of the entire evidence, I am of the

view that no other prosecution witness has deposed

regarding the demand allegedly made by the accused to

the complainant. Therefore, while the second part i.e.

acceptance of the money by the accused can be said to

be proved, there is no proof that the said money which

was paid by the complainant to the accused was in lieu

of illegal gratification or bribe. Therefore, according to

para 88(2) of Neeraj Dutta (CB) (supra), the prosecution

has failed to prove the demand of illegal gratification

and therefore, the subsequent acceptance, on its own will

not lead to the conviction of the accused. The Hon'ble

Apex Court has held as under:

"88. What emerges from the aforesaid discussion is summarised as under:

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88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of Criminal Appeal No.1669 of 2009 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

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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 is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is Criminal Appeal No.1669 of 2009 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.

88.5. (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.

88.6. (f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

88.7 (g) 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 Criminal Appeal No.1669 of 2009 presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.

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88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5 (e), above, as the former is a mandatory presumption while the latter is discretionary in nature."

6. Mr. P. R. Abichandani, learned counsel appearing on

behalf of the accused, has relied upon the decision of the

Hon'ble Apex Court in the case of Neeraj Dutta Vs.

State (Government of NCT of Delhi) reported in (2023) 18 SCC 251 [DB].

7. The aforesaid judgment was passed following the

Constitution Bench Decision of Neeraj Dutta (C.B.) (supra) where the decision on the facts of the case was eventually rendered by the Hon'ble Apex Court speaking through a Division Bench (Coram: Abhay S. Oka, J. &

Rajesh Bindal, J.). Referring to Neeraj Dutta (C.B.), the

Hon'ble Apex Court has held as under:

"25. Rest of the examination-in-chief deals with the acceptance by the appellant and recovery. Now the question is whether, on the basis of the evidence on record, the prosecution has proved the demand of gratification by the accused. When we consider the issue of proof of demand within the meaning of

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Section 7, it cannot be a simpliciter demand for money but it has to be a demand of gratification other than legal remuneration. All that PW-5 says is when the appellant visited the shop of the complainant, she asked the complainant to give papers regarding the electricity meter and Rs.10,000/- to her by telling him that she was in a hurry. This is not a case where a specific demand of gratification for providing electricity meter was made by the appellant to the complainant in the presence of the shadow witness. PW-5 has not stated that there was any discussion in his presence between the appellant and the complainant on the basis of which an inference could have been drawn that there was a demand made for gratification by the appellant. The witness had no knowledge about what transpired between the complainant and the appellant earlier. PW-5 had admittedly no personal knowledge about the purpose for which the cash was allegedly handed over by the complainant to the appellant."

8. In the instant case also, it will be seen that what

in effect is the evidence of the raiding party as well as

the shadow witness is that the words actually spoken by

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the accused was either "what about my money ?" or

"give my money". While admittedly there is a slight variation in the two versions but the meat of the matter

is that there is no explanation as to why the money was

actually paid to the accused by the complainant.

Therefore in terms of the decisions of the Hon'ble Apex

Court in Neeraj Datta (C.B.) (supra) and Neeraj Datta