[Cites 14, Cited by 0]
Gujarat High Court
Arvindbhai Babarbhai Patel vs The State Of Gujarat on 28 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 445 of 2005
With
R/CRIMINAL APPEAL NO. 1981 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
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Approved for Reporting Yes No
✔
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ARVINDBHAI BABARBHAI PATEL
Versus
THE STATE OF GUJARAT
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Appearance:
MR SATISH A PANDYA(556) for the Appellant(s) No. 1
MS ASMITA PATEL, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 28/11/2025
COMMON ORAL JUDGMENT
1. The present Criminal Appeals Nos.445 of 2005 and 1981 of
2005 have been preferred under Sections 374 and 377 of the
Code of Criminal Procedure, 1973, by the convict and the State,
respectively, and are directed against the judgment and order of
conviction and sentence dated 14.02.2005 passed by the learned
Special Judge, Fast Track Court No.3, Navsari, in Special Case
No.8 of 2001.
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2. By the aforesaid judgment and order of conviction and
sentence, the trial court has held the accused guilty and
convicted him for the offences punishable under Sections 7,
13(1)(d) and 13(2) of the Prevention of Corruption Act, and
consequently, he has been sentenced to undergo imprisonment
as under :-
Section Imprisonment Fine In default of
(Rs.) payment of fine
7 Rigorous Imprisonment 1000 Simple Imprisonment
for six months for one month
13(1)(d) Rigorous Imprisonment 2000 Simple Imprisonment
r/w 13(2) for one year for three months
3. Since both these appeals arise from a selfsame judgment
and order passed by the trial court, they have been heard
together and are being disposed of by this common judgment
and order.
4. Being aggrieved and dissatisfied with the quantum of
sentence awarded by the trial court, the State has preferred the
Criminal Appeal No.1981 of 2005 under Section 377 of the Code
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of Criminal Procedure, 1973, for enhancement of the sentence,
mainly on the ground that the sentence awarded by the trial
court is inadequate and disproportionate to the offences
committed by the accused and the sentence imposed is less than
the minimum prescribed for the offences with which the accused
has been convicted.
5. The Criminal Appeal No.445 of 2005 has been preferred by
the convict under Section 374 of the Code of Criminal Procedure,
1973, against the judgment and order of conviction and sentence
passed by the trial court, whereby the trial court has convicted
him for the offences punishable under Sections 7, 13(1)(d) and
13(2) of the Prevention of Corruption Act and sentenced him to
suffer rigorous imprisonment for one year with fine.
PROSECUTION'S CASE IN A NUT-SHELL :
6. It is the case of the prosecution that on 01.01.2001, the
complainant (PW-1) Sunilkumar Govanbhai Patel had filed a
complaint before the ACB Office, Valsad, inter alia, stating that
the convict Arvindbhai Babarbhai Patel (who was then serving as
Talati-cum-Mantri of village Bamanwada) had demanded a bribe
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of Rs.3,000=00 from him for providing a copy of the
consolidation record pertaining to the land of the complainant's
grandfather and to settle the matter pending before the
Agricultural Lands Tribunal.
7. It is alleged that since the complainant was not willing to
pay the amount of bribe, he had approached the A.C.B. Office,
Valsad, and lodged the complaint. On the strength of the
complaint, a trap was laid by the Police Inspector, ACB, Valsad
(PW-7) Mahavirsinh Pravinsinh Raol, and the accused was
caught red-handed accepting the amount of bribe from the
complainant in presence of the panchas. The raiding party,
thereafter, recovered the currency notes smeared with
anthracene powder from the possession of the accused.
8. On the basis of the complaint, the accused came to be
arrested, and he was charge-sheeted for the offences punishable
under Sections 7, 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act.
9. The trial court, after following due procedure as prescribed
under Section 207 of the Cr.P.C., framed the Charge vide Exh.4
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against the accused. The charge was, thereafter, read over and
explained to the accused, who abjured his guilt and pleaded not
guilty and claimed to be tried.
10. To bring home the charge, the prosecution had examined
eight witnesses and adduced twenty-two documentary evidence
in support of their case, which are as follows :-
NO. WITNESSES NAME EXHIBIT
DOCUMENTARY EVIDENCE
SR.
DESCRIPTION OF THE DOCUMENT EXHIBIT
NO.
pending before the Deputy Mamlatdar, ALT, Chikhli
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4 Judgment of the Tenancy Case No.12148/1993 22
5 Applications submitted in the Tenancy Case 23, 24,
25, 26
9 Letter recruiting Shri B.K.Bhatt as the Deputy 33
District Development Officer
10 Notification of the Gujarat Panchayats Services 34
(Classification and Recruitment) Rules
11 Notification of the Panchayat and Rural Housing 35
Development Department
12 Receipt of the seizure memo provided to the accused 41
13 Appointment of the accused as the Talati-cum- 48
Mantri
11. On completion of the recording of the evidence, the trial
court explained the incriminating circumstances appearing
against the accused. The accused, in his further statement
recorded under Section 313 of the Cr.P.C., denied the allegations
levelled against him by the prosecution of accepting the bribe
and stated that he is innocent and has been falsely implicated in
the alleged offence.
12. On completion of the trial, the trial court, vide judgment
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and order dated 14.02.2005, convicted the accused for the
offences punishable under Sections 7, 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act.
13. Being aggrieved and dissatisfied with the aforesaid
judgment and order of conviction and sentence, the convict has
preferred the captioned Criminal Appeal No.445 of 2005 before
this Court, which came to be admitted on 11.03.2005 vide order
passed by a Coordinate Bench of this Court.
SUBMISSIONS ON BEHALF OF THE ACCUSED :
14. Learned advocate Mr.Satish Pandya appearing for the
convict, while taking this Court through the evidence adduced by
the prosecution as well as the impugned judgment, has
contended that the entire case of the prosecution is false and
fabricated. It is argued that the prosecution has failed to produce
any cogent and convincing evidence to exhibit the essential
elements of the alleged offence, more particularly, the demand,
acceptance and recovery, beyond reasonable doubt.
15. Learned advocate Mr.Pandya has made detail submissions
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before this Court. The important points of which are determined
as under :
(1) The conduct of the complainant, as reflects from the
evidence on record, raises reasonable doubt about the case of
the prosecution.
(2) There are significant inconsistencies in the complaint at
Exh.11 and the deposition of the complainant at Exh.10.
(3) There is no material on record to substantiate the alleged
initial demand. Moreover, the evidence of the core witnesses
concerning the alleged demand of the accused at the time of the
trap is mutually inconsistent and contradictory. Not only that,
the version narrated in the panchnama regarding the alleged
demand is altogether different, which raises a reasonable
suspicion about the story of the prosecution.
(4) The entire evidence of the complainant is vague since the
entry for which the complainant has levelled allegations against
the accused, was already made and the consolidation record
pursuant to the land of the complainant's grandfather was also
produced before the Mamlatdar (Agricultural Lands Tribunal) for
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its consideration, which clearly reflects from paragraph-4 of the
judgment and order of the Mamlatdar (ALT) in Tenancy Case
No.32(G)/12148/93 dated 08.11.2001, which is produced at
Exh.22.
(5) The Mamlatdar (ALT), by the aforesaid judgment and order,
had held that the name of the complainant's grandfather was
wrongly entered into the record of rights of the land in question.
(6) The evidence clearly indicates that the core witnesses of
the prosecution have concealed and suppressed the material
facts concerning the events that took place on the day of the
trap. Moreover, the testimony of all the witnesses regarding the
entire trap proceedings are mutually inconsistent and
contradictory.
(7) The evidence on record clearly reveals that the core
witnesses have narrated conflicting and contradictory version as
to the second part of the panchnama whether the same was
drawn in the premises of the cooperative society or in the office
of the Talati-cum-Mantri. Such inconsistencies and
contradictions cast serious doubt about the veracity of the case
of the prosecution.
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(8) The sanctioning authority did not apply its mind before
according the sanction for prosecution.
16. In addition to the aforesaid points, learned advocate
Mr.Pandya has argued that it is an important factor to bear in
mind that, whether the accused had received the illegal
gratification as a motive or reward for doing or forbearing to do
any official act or for showing any favour or disfavour in the
exercise of his official function ? In the case on hand, it is alleged
that the accused had demanded a bribe of Rs.3,000=00 from the
complainant for providing copy of the consolidation entry and to
settle the matter pending before the Agricultural Land Tribunal.
However, the entry for which the complainant has levelled
allegation against the accused, was already made. Therefore,
there was no reason for the accused to demand bribe for
providing a copy of the consolidation entry to the complainant.
This also casts a serious doubt on the complainant's version.
17. Learned advocate Mr.Pandya has submitted that the trial
court, while appreciating the evidence, has laid much emphasis
on Section 20 of the Prevention of Corruption Act, which raises
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presumption once it is established that the accused accepted the
amount. However, for the purpose of arriving at the conclusion
whether the accused accepted the amount of illegal gratification
or not, the totality of the evidence led by the prosecution at the
trial is required to be appreciated. It is settled legal position that
in absence of any proof of demand, the legal presumption under
Section 20 of the Prevention of Corruption Act would not arise
since the proof of demand and its subsequent acceptance is a
sine qua non for the offence punishable under Sections 7, 13(1)
(d), 13(2) of the Prevention of Corruption Act. Therefore, only on
the basis of acceptance of amount without there being any proof
of demand, the accused cannot be held guilty of the offence
under Sections 7, 13(1)(d), 13(2) of the Prevention of Corruption
Act. It is submitted that the trial court, while appreciating the
evidence in this regard, has completely lost sight of the aforesaid
settled legal position. It is further submitted that except the bare
averments in the complaint, no evidence has been led by the
prosecution to prove the essential ingredients of the offence,
more particularly, the proof of demand of illegal gratification and
its subsequent acceptance, beyond reasonable doubt.
18. Thus, it is submitted that considering the entire evidence
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on record, it clearly establishes that the prosecution has failed to
prove the essential elements of the offence, i.e. demand,
acceptance and recovery, beyond reasonable doubt, and in
absence of proof of demand and its acceptance, the trial court
has fall in serious error in raising a presumption under Section
20 of the Act. In such circumstances, learned advocate
Mr.Pandya has implored the court to allow the appeal preferred
by the accused-convict, set-aside the impugned judgment and
direct the acquittal of the accused-convict from the charges
levelled against him.
SUBMISSIONS ON BEHALF OF THE STATE:
19. Vehemently opposing the appeal filed by the accused-
convict and the submissions canvassed by learned advocate
Mr.Satish Pandya appearing for the accused-convict, learned
APP Ms.Asmita Patel appearing for the State has submitted that
the trial court has convicted the accused for the offences
punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention
of Corruption Act, and consequently, sentenced him to undergo
imprisonment for one year along with fine of Rs.3,000=00. She
has submitted that the prosecution has proved all the three
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essential elements of the offence, i.e. demand, acceptance and
recovery, beyond reasonable doubt through cogent and
convincing evidence of the core witnesses, i.e. the complainant
(PW-1) Sunilkumar Govanbhai Patel, the shadow witness (PW-2)
Kantilal Bavabhai Patel, the second panch witness (PW-3)
Arvindbhai Govindbhai Kansara, the clerk of the cooperative
society (PW-5) Narendrakumar Natthubhai Patel, and the
trapping officer (PW-7) Mahavirsinh Pravinsinh Raol. Learned
APP Ms.Patel has, therefore, urged that the conviction recorded
by the trial court does not call for any interference by this Court
and the criminal appeal preferred by the accused-convict,
challenging his conviction, may be dismissed.
20. Learned APP Ms.Patel, while referring to the evidence of the
core witnesses, i.e. the complainant (PW-1) Sunilkumar
Govanbhai Patel, the shadow witness (PW-2) Kantilal Bavabhai
Patel, the second panch witness (PW-3) Arvindbhai Govindbhai
Kansara, the clerk of the cooperative society (PW-5)
Narendrakumar Natthubhai Patel, and the trapping officer (PW-
7) Mahavirsinh Pravinsinh Raol, has submitted that the evidence
of the complainant (PW-1) Sunilkumar Govanbhai Patel and the
evidence of the shadow witness (PW-2) Kantilal Patel, who had
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accompanied the complainant at the time of the trap, are clear,
cogent and convincing. It is further submitted that the evidence
of all these witnesses have remained unshaken and the same are
in corroboration with the evidence of the witness (PW-7)
Mahavirsinh Pravinsinh Raol, the police officer who laid the trap.
It is also submitted that the evidence of all these witnesses are in
corroboration with the allegations made by the complainant (PW-
1) Sunilkumar Govanbhai Patel in his complaint at Exh.11.
21. So far as the quantum of sentence awarded by the trial
court to the accused-convict is concerned, learned APP Ms.Patel
has submitted that despite there being overwhelming evidence
against the accused-convict, the trial court has, without
assigning adequate and special reasons, awarded inadequate
and improper sentence. It is a settled position of law that while
awarding the punishment, the court should take into
consideration the nature of the offence, the circumstances under
which it was committed and the degree of deliberation shown by
the accused. Thus, the measure of punishment should be
proportionate to the gravity of the offence. In the facts of the
present case, the accused has been held guilty of the offences
punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention
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of Corruption Act, for which the maximum punishment is
imprisonment for a term which may extend to seven years along
with a fine. Despite there being overwhelming evidence against
the accused, the trial court has awarded a meager sentence of
imprisonment for one year only upon the accused. Learned APP
Ms.Patel has, therefore, submitted that awarding a meager
punishment to the accused-convict for the alleged offence will
result in travesty of justice and also spread a wrong message to
the society.
22. In the aforesaid circumstances, learned APP Ms.Patel has
urged before this Court to modify the sentence imposed by the
trial court by imposing the maximum punishment for the offence
with which the accused-convict has been charged and convicted.
Hence, she has urged that the order of sentence recorded by the
trial court is required to be interfered with, and the appeal
preferred by the State for enhancement of the sentence may be
allowed.
FINDINGS AND ANALYSIS :
23. Before adverting to the facts and circumstances of the
case, it would be apt to reiterate the fundamental principle of
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criminal jurisprudence as affirmed by the highest court that, in
criminal trial it is for the prosecution to bring home the guilt of
the accused since the burden of proving the guilt beyond
reasonable doubt always rests upon the prosecution. It is also
settled that the prosecution has to stand on its own legs and
cannot take advantage or undue advantage of the defence put
forth by the accused. The Supreme Court, in the case of
Rabindra Kumar Dey vs. State of Orissa, AIR 1977 SC 170,
reiterated three cardinal principles, namely, (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 unless he is proved to be guilty; and (iii) that the onus
of the prosecution never shifts. Thus, it is well-settled that in
criminal trial, the guilt of the accused must be proved beyond
reasonable doubt in order to convict him.
24. The Supreme Court, in the case of State of Uttar Pradesh
vs. Krishna Gopal, reported in (1988) 4 SCC 302, has held that
the person has, no doubt, profound rights not to be convicted of
an offence, which is not established by the evidential standard of
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proof beyond reasonable doubt.
25. Bearing in mind the aforesaid legal position, this Court
has considered the submissions canvassed by the respective
parties and carefully perused the materials produced on record.
It is well-settled that for establishing the commission of an
offence under Section 7 of the Prevention of Corruption Act, the
proof of demand of illegal gratification and the subsequent
acceptance is sine qua non. Moreover, the presumption under
Section 20 of the Prevention of Corruption Act can be invoked
only on proof of facts in issue, namely, the demand of illegal
gratification by the accused and the acceptance thereof. The
Constitutional Bench of the Supreme Court in the case of Neeraj
Dutta vs. State (Government of NCT of Delhi), reported in
(2023) 4 SCC 731 has, in paragraph-68 of the judgment, held 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
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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:
(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
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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 is accepted by the
public servant which would make it an offence.
Similarly, a prior demand by the public servant when
accepted by the bribe giver and in turn there is a
payment made which is received by the public servant,
would be an offence of obtainment under 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
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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 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 of law under Section
20 of the Act is distinct from presumption of fact referred to
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above in point (e) as the former is a mandatory presumption
while the latter is discretionary in nature."
26. Thus, it is held by the Supreme Court that in order to
bring home the charge, the prosecution has to prove beyond
reasonable doubt the "demand of illegal gratification" and the
"subsequent acceptance" either by direct or by circumstantial
evidence.
27. The cases of corruption largely depends on the testimonies
of three crucial witnesses; (i) the complainant, (ii) the panch
witness, and (iii) the trapping officer. These witnesses play a
decisive role in determining the fate of the accused. As such, the
testimonies of the complainant (PW-1) Sunilkumar Govanbhai
Patel, the shadow witness (PW-2) Kantilal Bavabhai Patel, the
second panch witness (PW-3) Arvindbhai Govindbhai Kansara,
the clerk of the cooperative society (PW-5) Narendrakumar
Natthubhai Patel and the trapping officer (PW-7) Mahavirsinh
Pravinsinh Raol, must be examined with great care and caution.
It is expected that their statements should be consistent,
credible and of sterling quality. If there are significant
contradictions in their evidence on material aspects, such
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discrepancies cannot be overlooked. In such circumstances
where the evidence allows for two possible interpretations, the
one which is in favour of the accused, must be considered. This
is because the law firmly upholds the principle that "no innocent
persons should be wrongfully punished".
28. Keeping in mind the aforesaid legal position of law and also
keeping in mind the ratio of the above-mentioned judgments, the
evidence led by the prosecution, in the instant case, is to be
analyzed to find out, whether the prosecution has proved the fact
that the accused-convict demanded and accepted the amount of
illegal gratification from the complainant.
29. This Court has given anxious consideration to the evidence
on record. It appears that there are glaring inconsistencies in the
evidence led by the prosecution. As per the original complaint at
Exh.11 and the charge at Exh.4, it is the case of the prosecution
that the complainant's grandfather, Chhitlabhai Uklabhai, had
lawfully obtained the agricultural lands of village Bamanwada,
bearing Block Nos.139, 143, 154, 166 and 170 as 'Ganotiya'
(tenant) under the Tenancy Law. Following the death of the said
Chhitlabhai Uklabhai in the year 1995, the names of the
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complainant's father, his two uncles and two aunts were duly
entered into the revenue record as late Chhitlabhai Uklabhai's
legal heirs. Subsequently, in or around Diwali, a registered
envelope addressed to the late Chhitlabhai Uklabhai was
received by post from the office of the Mamlatdar (ALT), Chikhli.
Since the addressee had died, the postman did not deliver the
cover to the complainant. Thereafter, the complainant along with
his father and uncles visited the office of the Mamlatdar (ALT),
Chikhli, to inquire and thereafter learnt that the hearing
concerning the aforesaid lands has been fixed on 09.11.2000.
Accordingly, they appeared before the Mamlatdar (ALT) and
submitted requisite revenue records. Later on, on 21.12.2000,
when they again appeared before the Mamlatdar (ALT), they were
instructed by the Mamlatdar (ALT) to produce a copy of the
consolidation record pertaining to the said lands. Subsequently,
on 29.12.2000, the complainant approached the Talati-cum-
Mantri of Bamanwada at his office to obtain the said
consolidation record. At that time, the accused allegedly
demanded a bribe of Rs.5,000=00 to provide the aforesaid
record. After some negotiation, the accused agreed to accept
Rs.3,000=00 and instructed the complainant to pay the said
amount on 30.12.2000. In compliance, the complainant met the
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accused on 30.12.2000 at his office, where the accused
reiterated that the copies would be provided only after the
payment of Rs.3,000=00. When the complainant explained that
he is a labourer and could not immediately pay the amount, the
accused told him to come to the office of the Talati-cum-Mantri
at village Kaliyari on Tuesday, 02.01.2001, with the said
amount, and that upon payment, he would hand over the copies
and even help to finalize the matter pending before the
Mamlatdar (ALT), Chikhli. However, since the complainant was
not willing to pay the amount of bribe, he had approached the
ACB office, Valsad on 01.01.2001, and lodged the complaint.
30. On the strength of the complaint, a trap was led by the
Police Inspector, ACB Police Station, Valsad (PW-7) Mahavirsinh
Pravinsinh Raol, and the accused caught red-handed accepting
the amount of bribe from the complainant in presence of the
panchas. In view of the aforesaid allegations regarding the
factum of demand and the subsequent acceptance of illegal
gratification, the evidence led by the prosecution; both, ocular
and documentary, as well as the arguments advanced by the
learned advocates for the respective parties are required to be
considered. First and foremost, it is noteworthy that the entire
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case of the prosecution is based upon the fact that in the
proceedings before the Mamlatdar (ALT), Chikhli regarding the
land received by the grandfather of the complainant by way of
the occupancy right, the Mamlatdar (ALT) had directed the
complainant to produce a copy of the land consolidation record.
Accordingly, when the complainant approached the present
accused to obtain such copies, the accused demanded
Rs.5,000=00, and after some negotiation, he agreed to accept
Rs.3,000=00.
31. The prosecution has examined Naranbhai Ratanji Mistri
(PW-4), who at the time of the alleged incident, was serving in
the capacity as the Mamlatdar (ALT), Chikhli. In his evidence at
Exhibit 19, he asserts that he holds the post of Mamlatdar (ALT),
Chikhli and Navsari during the period from 01.06.1999 to
30.10.2003. He further stated that during the said period, one
case bearing Case No.32-D-12148-93 initiated under Section
32D of the Tenancy Act concerning the applicant Chhitlabhai
Uklabhai of village Bamanwada was pending before him. During
the hearing of the said case, on 18.10.2000, a notice was issued
to Chhitlabhai Uklabhai. The notice was returned with an
endorsement stating that he has passed away. Therefore, his
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son, Govanbhai Chittlabhai Patel appeared and submitted an
application on 09.11.2000 to be included as a party. The
application was allowed and time was granted to produce
additional evidence. Subsequently, since the heirs of Chittlabhai
Uklabhai did not have the sufficient funds, adjournments were
sought and granted on 11.12.2000 and 21.12.2000. During the
hearing of the said case, the consolidation record pertaining to
the land was required, which are ordinarily maintained by the
Talati-cum-Mantri and the District Land Records Office. In the
testimony of this witness, the certified copies of the original
record of the aforesaid Tenancy Case No.32-D-12148-93 were
produced.
32. In his cross-examination, this witness has clearly elicited
that during the entire course of the proceedings of the case, he
never issued any summons or notice to the Talati, requiring him
to remain present with the relevant record. He has further
elicited in a significant and in an unequivocal manner that he
did not issue any direction or order to the heirs of Chittlabhai
Uklabhai or to the opponents of the case, to produce documents
pertaining to the consolidation of the land in question. Thus,
from his testimony, it becomes evident that not the complainant,
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but his father had applied to be joined in the case as the heir of
late Chittlabhai Uklabhai, and having insufficient evidence, he
repeatedly sought adjournments.
33. It is also established that the Mamlatdar (ALT), Chikhli,
had never issued any direction or order to any of the parties for
production of the documents pertaining to the consolidation of
the land in question. In this context, considering the judgment
and final order of the aforesaid Tenancy Case produced at
Exh.22, it is clearly evident from paragraph 4 on page 3 of the
judgment that a copy of the consolidation record (Ekatrikaran
Takhta) had already been produced in the case and the same
was also taken into consideration. It is further evident that the
Mamlatdar (ALT) has, by this judgment, directed deletion of the
names of the applicants of the case, i.e. the father of the
complainant and others, from the record as the same had been
incorrectly entered therein.
34. Thus, upon evaluating the evidence, reasonable doubt
arises regarding the fact put forward by the complainant that the
Mamlatdar (ALT) had directed him to submit a copy of the
consolidation record, and when he approached the accused for
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this purpose, the accused allegedly demanded a bribe. It is the
case of the prosecution that on 29.12.2000, the complainant had
approached the present accused in his office to obtain a
consolidation record of the lands in question in the Tenancy
Case. At that time, the accused made an initial demand of
Rs.5,000=00 as illegal gratification, and after some negotiations,
he agreed to accept Rs.3,000=00.
35. It is an undisputed fact that there is no direct evidence of
the initial demand made by the complainant. It is noteworthy
that normally such initial demand of gratification is not made
publicly or in presence of any third person. Therefore, there
might not be a direct evidence regarding the same. In such
circumstances, if during a trap, the accused had asked for some
demand and accepted it, then that can prove the factum of initial
demand made by the accused. Therefore, the evidence of the core
witnesses, i.e. the complainant, the panch witnesses and the
trapping officer, are required to be examined carefully. It is
needless to say that the evidence of these core witnesses must
reflect consistent version and must be mutually coherent,
reliable and trustworthy. The complainant (PW-1) Sunilkumar
Govanbhai Patel, in his evidence at Exh.10, has deposed that on
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the day of the trap, after demonstrating the anthracene powder
process and its impact under the UV light, the Police Inspector
Mahavirsinh Raol instructed his team to proceed to village
Kaliyari. Accordingly, all of them boarded in the jeep and
reached village Kaliyari. The complainant and the shadow
witness (PW-2) Kantilal Patel then proceeded towards the office
of the Talati. As the office was locked, they sat on the verandah
of the premises of the cooperative society, and at about 1.45 pm,
when the accused arrived and unlocked the office, they both
entered into the office. At that time, the accused was seated on a
chair and two individuals were writing something, whereas, four
other persons were also present in the office. Upon noticing the
complainant, the accused nodded his head and beckoned them
to come out. As the accused proceeded to come out, the
complainant and the shadow witness followed him. Thereafter, in
the open area near the cooperative society, when the
complainant enquired about the consolidation record pursuant
to the land of his grandfather, the accused asked, "Have you
brought the money?" Therefore, the complainant responded in
the affirmative and then took out the tainted currency notes
from his pocket and handed it over to the accused, who accepted
the said amount with his left hand, put the currency notes in the
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left pocket of his pant and assured the complainant that he
would provide a copy of the consolidation record and also ensure
about the disposal of the case pending before the Mamlatdar
(ALT). Thereafter, when the complainant passed the pre-
arranged signal, the accused, sensing suspicion, began to walk
away and entered in the office of the cooperative society where
he told one of the persons present over there to take the money.
Immediately thereafter, the Police Inspector and other members
of the team arrived and apprehended the accused. The accused
was then taken to his office (i.e. the office of the Talati-cum-
Mantri of village Kaliyari), where under UV light, fluorescent
powder marks were found on the right hand of the person from
the cooperative society as well as on the left hand of the accused
and on the left pocket of his pant. The panchnama was then
completed.
36. During the cross-examination, the complainant has
unequivocally elicited the following facts :-
(1) He was neither directed by the Mamlatdar (ALT) to furnish
copy of any document nor his deposition was recorded in the
court of the Mamlatdar (ALT).
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(2) During the period from 1998 to 2000, the accused had
provided the complainant with all the copies/documents that the
complainant had requested for. The complainant was unaware
about the orders passed in the Tenancy Case pending before the
Mamlatdar (ALT), and further he had no conversation regarding
the said matter with his father or uncles.
(3) On 09.11.2000, the complainant's father had produced the
record of rights before the Mamlatdar (ALT). The complainant
was unaware whether the Mamlatdar (ALT), Chikhli had passed
any order directing his father to produce the land consolidation
report.
(4) There was a distance of 10 feet between the office of the
Talati-cum-Mantri of village Kaliyari and the building of the
cooperative society.
(5) Whenever the complainant requested for the copies of any
document, the accused had provided him the same, and at no
point of time, he had demanded any illegal gratification from the
complainant regarding the same.
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(6) Throughout the entire trap proceedings, no tainted
currency notes had fallen on the ground. However, it has been
established through the testimonies of other witnesses that the
complainant misrepresented this fact, and it is proved that the
notes were indeed fallen on the ground and were picked up by
someone.
(7) In respect of the land bearing Block No.170, the
complainant's grandfather Chhitlabhai Uklabai was already
declared as tenant and accordingly his name was entered in the
revenue record as owner and occupant of the same land.
37. Now, with respect to the entire sequence of events that
occurred at the time of the trap, if the evidence of the shadow
witness (PW-2) Kantilal Bavabhai Patel is taken into
consideration, he, in his testimony at Exh.15, has deposed that
when they entered into the panchayat office, the accused made a
gesture to the complainant asking him whether he brought the
money, and after the accused stepped out from his office, he and
the complainant followed him. The accused then asked the
complainant whether he has brought the money. Thereafter, the
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complainant took out the tainted currency notes from his
pocket, which the accused accepted it with his left hand and put
it in the left pocket of his pant. The complainant then passed the
pre-arranged signal, and following the same, the members of the
raiding team arrived at the spot. Therefore, the accused started
running towards the premises of the cooperative society and
handed over the money to one of the persons present over there.
At that time, the Police Inspector apprehended him. Upon
examination under the UV light, fluorescent powder marks were
noticed on the left hand of the accused as well as on the left
pocket of his pant.
38. After obtaining the signature of all in the proceedings of the
trap, he was allowed to leave at 5:00 pm. Apart from this, he
does not recall any other proceedings which had been conducted
in his presence. It is further stated that the amount of
Rs.3,000=00 was recovered from one Narendrakumar, who was
present in the office of the cooperative society.
39. During his cross-examination, this witness has stated that
while he was at village Kaliyari, he had seen the tainted currency
notes lying on the floor, which were picked up by one ACB
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officer. He does not recall whether the hands of the ACB officer
who picked up the notes from the floor were examined under the
UV light. He further stated that the entire panchnama at Exh.16
was written at a stretch at village Kalyari by the ACB officer and
the staff. According to him, the premises of the cooperative
society is situated approximately 25 feet behind the office of the
accused (i.e. the Panchayat office). Thus, from the testimony of
this witness, it significantly comes on record that during the trap
proceedings, he had seen the tainted currency notes lying on the
floor, which were picked up by the ACB officer, but he does not
remember whether that officer's hands were examined under the
UV light or not. It is noteworthy that no such reference has been
found from the panchnama at Exh.16. Furthermore, it also
emerges on record that the entire panchnama at Exh.16 was
written by the ACB officer at a stretch and at the same place at
village Kaliyari. This witness has not stated anywhere that after
the trap, the hands of the complainant were also examined
under the UV light or that any fluorescent powder marks were
found on his hands.
40. In this context, if we look at the evidence of the second
panch witness (PW-3) Arvindbhai Govindbhai Kansara, he, in his
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evidence at Exh.18 has stated that when the complainant and
the shadow witness went to the office of the accused, the
accused nodded his head and beckoned them to come outside.
Thereafter, the complainant gave the money to the accused in an
open area near the premises of the cooperative society,
whereupon the accused accepted it with his left hand and put it
in the left pocket of his pant. After the complainant passed the
pre-arranged signal, the accused, sensing suspicion, ran into the
office of the cooperative society and handed over the money to
one of the clerks of the society. While he was attempting to
escape, he was apprehended by the ACB staff. Thereafter, he was
taken to the panchayat office, and upon examination under the
UV light, fluorescent powder marks were found on his left hand
and on the left pocket of his pant. During the cross-examination,
this witness stated that at village Kaliyari, the currency notes
were actually lying on the floor and had been picked up by one
Narendrakumar Natthubhai Patel, Clerk of the cooperative
society, and not by any ACB officer. He further admitted that no
currency notes were recovered from the accused. Thus, this
witness also corroborates that the notes which were fallen on the
floor were picked up by one Narendrakumar Patel, a clerk of the
cooperative society. As noted earlier, no such reference has been
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found from the panchnama at Exh.16. It is apt to note here that
from the testimony of this witness, it does not reflect that the
appellant-accused had made any demand of bribe to the
complainant.
41. Mr.Narendrakumar Patel, Clerk of the cooperative society,
has been examined by the prosecution as PW-5 at Exh.29.
Although, he tried to support the case of the prosecution,
however, his cross-examination reveals that he himself had
collected the tainted currency notes which were lying on the floor
of the office of the cooperative society and that no panchnama
was drawn there. Even at the risk of repetition, it is worthwhile
to note here that no such reference or mention was made in the
panchnama.
42. The prosecution has examined the trapping officer (PW-7)
Mr.Mahavirsinh Pravinsinh Raol at Exh.38. He, in his evidence
has affirmed and reiterated the very same facts as narrated in
details in the panchnama at Exh.16. However, his testimony
brings on record that when he asked the complainant to give the
amount intended to be given as bribe, the complainant gave
Rs.500=00, and by pleading pauper, he requested that the
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remaining amount will be provided from the government funds,
whereupon he had sanctioned the balance amount from the
government funds. During his cross-examination, this witness
has admitted that in the anti-corruption law, for the purpose of
conducting a trap, government funds cannot be used for the
payment of the bribed money. He has further admitted that no
notification has ever been issued regarding use of government
funds for the same. He has explicitly admitted that at village
Kaliyari, during the trap proceedings, certain tainted currency
notes had fallen on the floor, and no panchnama was drawn in
respect of those currency notes. Furthermore, he has also
admitted that the fallen notes were picked up by one
Narendrakumar and that no seizure memo was prepared in
relation to the notes recovered from the said Narendrakumar.
This witness has further admitted the fact of the currency notes
having fallen on the floor and picked up by the clerk of the
cooperative society, and that it was not recorded in the
panchnama at Exh.16. Furthermore, he has attempted to
explain this omission by stating that the incident did not occur
in presence of either of the two panch witnesses or in his own
presence. This explanation of the witness appears to be false, as
both the panch witnesses have stated that they had seen the
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currency notes lying on the floor.
43. Ms.Bhadrasila Bhatt, the then Deputy TDO, has been
examined as PW-6. She has accorded the sanction for
prosecution against the accused. She, during the cross-
examination, has admitted that for withdrawing the amount
from the government funds, a written application and an order of
approval are required.
44. Upon evaluating the foregoing evidence, it becomes evident
that the testimonies of the core witnesses of the case of the
prosecution are not only mutually inconsistent but also
contradictory. The evidence of the complainant (PW-1)
Sunilkumar Govanbhai Patel clearly suggests that in the tenancy
proceedings pending before the Mamlatdar (ALT), Chikhli, no
order had ever been passed directing production of the
consolidation record pertaining to the land of the complainant's
grandfather. Moreover, a fair reading of the judgment of the
Mamlatdar (ALT), Chikhli, in that case makes it apparently clear
that the same consolidation record had already been produced
and was duly taken into consideration at the time of deciding the
case. The complainant also admitted in his testimony that on all
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previous occasions, whenever he had requested the accused to
provide copies of any document, the accused had provided it,
and at no point of time, he had demanded any bribe for doing so.
45. It is also noteworthy that the complainant (PW-1)
Sunilkumar Govanbhai Patel, in his testimony, has denied the
fact that during the trap proceedings, the tainted currency notes
had fallen on the floor. However, the shadow witness (PW-2)
Kantilal Bavabhai Patel, the second panch witness (PW-3)
Arvindbhai Govindbhai Kansara as well as the trapping officer
(PW-7) Mahavirsinh Pravinsinh Raol have admitted that the
tainted currency notes had indeed fallen on the floor. The
shadow witness (PW-2) Kantilal Patel has stated that the tainted
currency notes which had fallen on the floor were picked up by
the ACB officer, but he does not recall whether that officer's
hands were examined under the UV light or not.
46. In contrast, the second panch witness (PW-3) Arvindbhai
Govindbhai Kansara has stated that the tainted currency notes
were picked up by one Narendrakumar, a clerk of the co-
operative society, and that his hands were examined under the
UV light. The trapping officer (PW-7) Mahavirsinh Pravinsinh
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Raol, in this context, has stated that although the tainted
currency notes had fallen on the floor, yet the said incident was
not occurred in presence of either of the two panch witnesses or
in his own presence. It is also noteworthy that the complainant
(PW-1) Sunilkumar Patel, in his evidence, has stated that at the
time of the trap, the accused had demanded a bribe, whereas,
the second panch witness (PW-3) Arvindbhai Govindbhai
Kansara states that in the open area near the co-operative
society, the complainant had given the money to the accused,
which he had accepted. His testimony is silent so far as the
element of demand of bribe is concerned.
47. Thus, it clearly appears from the entire evidence that the
testimonies of all the core witnesses are highly inconsistent and
contradictory.
48. So far as the elements of demand and acceptance of the
bribe amount is concerned, the prosecution's evidence is
inconsistent and contradictory. The testimonies of the core-
witnesses, i.e. the complainant (PW-1) Sunilkumar Govanbhai
Patel, the shadow witness (PW-2) Kantilal Bavabhai Patel, the
second panch witness (PW-3) Arvindbhai Govindbhai Kansara,
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the clerk of the cooperative society (PW-5) Narendrakumar
Natthubhai Patel, and the trapping officer (PW-7) Mahavirsinh
Pravinsinh Raol, are mutually inconsistent which creates
reasonable doubt towards the prosecution's version.
49. The Supreme Court, in the case of Mallappa vs. State Of
Karnataka, reported in (2024) 3 SCC 544, has held thus :-
"26. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The two-
views theory has been judicially recognized by the Courts
and it comes into play when the appreciation of evidence
results into two equally plausible views. However, the
controversy is to be resolved in favour of the accused. For,
the very existence of an equally plausible view in favour of
innocence of the accused is in itself a reasonable doubt in
the case of the prosecution. Moreover, it reinforces the
presumption of innocence. And therefore, when two views
are possible, following the one in favour of innocence of the
accused is the safest course of action...."
50. In view of the aforesaid, and considering the discrepancies
in the evidence of the three core witnesses regarding the
acceptance of the illegal gratification, when two views are
possible, certainly, the one in favour of innocence of the accused,
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must be considered.
51. Thus, on examination of the entire evidence, this Court is
of the considered opinion that the prosecution has failed to
establish beyond reasonable doubt, the essential element of
demand of bribe and the subsequent acceptance of illegal
gratification.
52. Since the prosecution has failed in establishing the
foundational fact by leading cogent and convincing evidence
regarding the aspect of demand and its subsequent acceptance,
the question of presumption under Section 20 of the Prevention
of Corruption Act does not arise in the present case.
53. In view of the aforesaid discussion and re-appreciation of
the entire evidence on record, the Court is of the considered
opinion that the prosecution has not proved the case beyond
reasonable doubt by leading cogent and convincing evidence and
the trial court has not appreciated the entire evidence in its true
perspective.
54. Before parting with the judgment, it would be apt to
reiterate the fundamental principle of criminal jurisprudence as
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affirmed by the highest court that, in criminal trial it is for the
prosecution to bring home the guilt of the accused since the
burden of proving the guilt beyond reasonable doubt always
rests upon the prosecution. It is also settled that the prosecution
has to stand on its own legs and cannot take advantage or
undue advantage of the defence put forth by the accused.
55. As noted earlier, the Supreme Court, in the case of
Rabindra Kumar Dey (supra), has reiterated three cardinal
principles, namely, (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 unless he is proved to
be guilty; and (iii) that the onus of the prosecution never shifts.
56. Keeping in mind the cardinal principles of the criminal
jurisprudence as stated herein above and considering the
evidence on record, this Court is of the considered opinion that
in the instant case it cannot be said that the prosecution has
proved the case beyond reasonable doubt by leading cogent and
convincing evidence and, therefore, the benefit of doubt goes in
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favour of the appellant-accused. Thus, it appears that the trial
court has made an error while convicting the present appellant
for the alleged offence and, therefore, interference by this Court
is warranted.
57. In the result, the appeal preferred by the accused-convict
succeeds, and the same is hereby allowed. The impugned
judgment and order of conviction and sentence dated
14.02.2005 passed by the learned Special Judge, Fast Track
Court No.3, Navsari, in Special Case No.8 of 2001, is hereby
quashed and set-aside. Bail bonds stand cancelled. The amount
of fine, if any, paid by the accused-convict shall be refunded.
Consequently, the appeal preferred by the State for enhancement
of the sentence fails, and the same is hereby dismissed.
(VIMAL K. VYAS, J.)
/MOINUDDIN
