[Cites 24, Cited by 0]
Gujarat High Court
Premjibhai Hirabhai Gohil vs State Of Gujarat on 16 April, 2026
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 725 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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PREMJIBHAI HIRABHAI GOHIL
Versus
STATE OF GUJARAT
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Appearance:
MR J.M. PANCHAL SENIOR ADVOCATE WITH MR VAIBHAV A VYAS for
the Appellant(s) No. 1
MR HARDIK DAVE PUBLIC PROSECUTOR WITH MS. MONALI BHATT
APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 16/04/2026
JUDGMENT
1. The present appeal has been filed under Section 27 of
the Prevention of Corruption Act, 1988 (for short the 'Act')
read with Section 374(2) of the Code of Criminal Procedure
Code, 1973 (for short 'Cr.P.C.') challenging the judgment and
order of conviction and sentence dated 30.05.2011 passed by
the learned Additional Sessions Judge, Ahmedabad (Rural)
Mirzapur, Ahmedabad in Special A.C.B. Case No.1-2/2005,
whereby appellant - accused came to be convicted under
Section 13(2) read with section 13(1)(e) of the Prevention of
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Corruption Act, 1988 (for short 'P.C. Act') and was ordered to
undergo two years simple imprisonment with fine of
Rs.10,000/- with default stipulation that in failure to pay the
fine amount, to suffer further six months simple
imprisonment.
1.1 The trial initially, was conducted against three accused
under sections 7 along with section 12, 13(1)(a)(e) and 13(2)
of the P.C. Act. Consequently, accused Nos.2 and 3, who were
brother-in-law and wife respectively of the appellant, were
acquitted from all the charges.
2. As per the prosecution case, the appellant - accused
during the period from 10.06.2002 to 01.10.2002, while
serving as Civil Judge (J.D.) and Judicial Magistrate, First
Class at Pardi, Valsad in abetment with accused No.2,
brother-in-law of accused No.1 and No.3 the wife of accused
No.1, while serving as a public servant, abused the position
and illegally demanded and accepted bribe from prosecution
witnesses.
2.1 Further it was alleged that Rs.7,00,000/- (Rupees Seven
Lakh) was received on 22.11.2002 from the resident of Rajkot,
Sumatilal and his wife Nilamben, by falsely representing the
same to be a gift and the immovable property situated within
the limits of Mangrol Nagar Palika bearing Survey No.7618
admeasuring 746.64 sq.mtrs. valued at Rs.5,51,100/- (Rupees
Five Lacs Fifty One Thousand One Hundred only) together
with a house thereon was purchased in the name of the wife
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of the appellant, the acquitted accused No.3, land valued at
Rs.26,23,200/- (Rupees Twenty Six Lacs Twenty Three
Thousand Two Hundred) and house Rs.9,49,750/- (Rupees
Nine Lakhs Forty Nine Thousand Seven Hundered Fifty only)
aggregating to Rs.35,72,950/- (Rupees Thirty Five Lacs
Seventy Two Thousand Nine Hundred Fifty), the said property
was referred as grossly disproportionate to the known sources
of income of appellant - accused No.1. Accused No.1 as public
servant in collusion with other accused, illegally, apart from
legal remuneration, accepted money and got the above valued
property transferred, while abusing the position of Civil Judge
(J.D.) and Judicial Magistrate (First Class), thereby committed
offence under section 7, 12, 13(1)(a)(e) and 13(2) of the
Prevention of Corruption Act, 1988.
2.2 The prosecution alleged that appellant demanded Rs.4
Lacs for the cases of Shri Chemicals and Rs.3 Lacs for Shivam
Chemicals pending before his Court through advocate Shri
Pravinbhai, and the said advocate and one Shantibhai went to
Pardi and gave Rs.7 Lacs to Pradeepbhai (A2), brother-in-law
of appellant, and in evening the cases were disposed off.
2.3 The conviction which followed for the appellant was for
the allegation that on 22.11.2002, Sobhnaben (A3), wife of
accused-appellant No.1, illegally obtained Rs.7 Lacs as gift
from P.W.18 - Nilamben Sumantilal Kamdar (Exh.92) and got
prepared false gift deed (Exh.91) dated 22.11.2002 and
purchased 746.68 sq. meter property in District Junagadh,
Village -Mangrol at secretariat road, City Survey No.7618
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valued at Rs.5,51,000/- and for that Rs.83,000/- court stamp
fees was used in the name of accused No.3. The price of the
property was assessed worth Rs.9,49,750/-, and the land
assessment by Town Controller of Collector Office, Junagadh
was as Rs.3,500/- per sq. Mtrs., worth Rs.26,23,200/- thus the
total price of the property was Rs.35,72,950/-.
2.4 The complaints were made to the Vigilance Department
of this Court alleging that the appellant was habitually
accepting bribes and therefore was charged under section 7,
13(2) read with section 13(1)(a)(e) of the P.C. Act. Further,
the appellant was found to have purchased property in the
name of his wife - accused No.3 for the amount,
disproportionate to his known source of income, who
thereafter sold it.
3. Learned Senior Advocate Mr. J.M. Panchal assisted by
Advocate Mr. Vaibhav A.Vyas for the appellant - accused,
submitted that the case under Sections 7, 12 and Section
13(1)(a) of the P.C. Act has not been believed. The conviction
against the appellant is under Section 13(1)(e) read with
section 13(2) of the P.c. Act, where actually the demand
acceptance or recovery of any bribe money has not been
believed. The transaction by way of gift amount with P.W.17
and P.W.18 in the name of the wife of the appellant, who have
been acquitted in the matter is legal, as it was by way of
cheque and there was no transaction in cash. Senior Advocate
Mr. Panchal, thus, wanted to submit that none could enter
into the bribe or gratification by payment of cheque
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transaction. It is also submitted that since wife of the
appellant as accused No.3 was acquitted and when the
prosecution has accepted the acquittal by not filing appeal
against the wife of the appellant, nothing now remains against
the accused to consider his case for conviction, and submitted
that the witnesses examined by the prosecution have not been
declared hostile nor there is any re-examination, no
suggestion of any obligation of any parties of any work by the
appellant to prove that the amount received by the wife of the
appellant was in gratification of some judicial work done by
the appellant.
3.1 Senior Advocate Mr. Panchal further submitted that the
gift deed is a Notarized document, the pass-book of P.W.17
and P.W.18 had also been proved by the prosecution and the
details have come on record that the consideration was love
and affection for gift transaction. Senior Advocate Mr.
Panchal stated that the entries in the pass-book by way of
cheque transaction could itself prove that there was no any
case of collusion with the parties or with the Bank nor any
case of forgery to create any suspicion against the accused.
No contradiction has been brought in the statement of P.W.18
and as per the evidence there is no role of the present
appellant as accused No.1, nor acquitted accused No.3 of any
of the transaction in connection with the offence under
Section 13(1)(e) of the P.C. Act. There is no case of abetment
by acquitted accused Nos.2 and 3.
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3.2 Senior Advocate Mr. Panchal submitted that the source
of income were proved by the prosecution themselves and
thus, it becomes the known source of income to the
prosecution and therefore no burden would shift on the
accused to prove any further facts when it becomes explicit on
record that the transaction were legal.
3.3 Learned Senior Advocate Mr. Panchal stated that certain
witnesses were examined to prove that the properties
purchased by the wife of the appellant were under valued.
However, it is stated by Senior Advocate Mr. Panchal that the
evidence comes on record that the sale transaction was in
accordance to the Government approved Jantri price and the
stamp was paid on the basis of the Jantri. The amount of the
sale deed had been paid by the cheque, thereafter the said
property was already sold, so any valuation thereafter done by
the Deputy Executive Engineer and the Town Planner, P.W.21
and P.W.22, would not connect the property at the relevant
time of the purchase.
3.4 Learned Senior Advocate Mr. Panchal submitted that
had there been a case of under valuation, then the State
would have issued notice and would not have accepted the
sale deed for registration. Senior Advocate Mr. Panchal stated
that the prosecution by examining the witnesses P.W.17 and
18 and relying upon the gift deed and the Bank transaction
wants the Court to believe that the property was purchased
from the gift amount. There is no suggestion that the gift deed
or the sale deed were created or use as real to camouflage
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any transaction.
3.5 Senior Advocate Mr. Panchal thus, submitted that the
Court has to only rely upon the testimony of the witnesses
examined by the prosecution to consider that the accused had
already discharged his burden and nothing could be proved of
any sham transaction and when the prosecution themselves
have proved the legal transaction by way of examining the
witnesses, the case would not even assumed under Section
13(1)(e) read with Section 13(1)(2) of the P.C. Act against the
appellant.
3.6 Prosecution by examining the vendor, P.W.20, Senior
Advocate Mr. Panchal stated that it does not come on record
that the property was under valued. There is no suggestion
that though value of the property was higher, the sale deed
was executed for a lesser amount. Senior Advocate Mr.
Panchal submitted that the record itself shows that the
premises was old, which was of more that 60 to 65 years,
there was no renovation or any changes made by the
appellant or his wife in the property to consider it as under
valued. Mr. Panchal further submitted that there is no system
or standard at all for legal valuation of property and general
public would rely only on the Jantri issued by the State
Governemnt and when the sale deed is as per the Jantri, then
no assumption can be made for any under valuation of the
property.
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3.7 Senior Advocate Mr. Panchal submitted that the
examination of the witnesses P.W.21 and P.W.22, as Deputy
Executive Engineer and the Town Planner would be irrelevant
since such valuation could be made only for the Government
land when government interest is involved and then the
witnesses could have relied upon about the guidelines
approved internally for valuing the property and thus,
submitted that the testimony of the witnesses P.W.21 and
P.W.22 cannot be taken into consideration to determine the
value of the property purchased by the wife of the appellant.
Senior advocate Mr. Panchal thus, submitted that it cannot be
said that the valuation of the property is illegal, arbitrary,
against the norms and principles and directives of the State
Government.
3.8 Senior Advocate Mr. Panchal submitted that the case
against the appellant and the co-accused as the brother-in-law
and the wife has not been believed under Section 7 of the P.C.
Act, when the wife has been acquitted and when the appeal
has been filed by the State against the acquittal, the property
in the name of the wife should not be considered for charge
against the present appellant under Section13(1)(e) of the
P.C. Act.
3.9 Senior advocate Mr. Panchal has also submitted that it is
not the case of the prosecution that some person has given
the gift to the wife as a bribe on behalf of the appellant Judge.
It is also not the case of the prosecution that the Judge has
favoured any person and had sought consideration in the form
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of cash or purchase of the property.
3.10 According to Senior advocate Mr. Panchal, the
prosecution themselves have proved the case for the accused.
The prosecution has proved the legal transfer of money by
way of gift, Senior advocate Mr. Panchal submitted that the
gift document has not been challenged; the money transaction
is through the Bank, and the payment is by cheque. The
person, who has sold the property has affirmed about the sale
price, and the gift transaction has been proved by the
prosecution themselves by examining the donor, P.W.18 and
her husband P.W.17.
3.11 Senior Advocate Mr. Panchal has contended that the
standard of proof required in criminal proceeding, is different
from that of the departmental proceedings. The appellant
cannot be made liable for the purchase of property by the wife
when no rules are produced to restrict such transfer of gift
money and purchase of property from the gift amount.
3.12 Senior Advocate Mr. Panchal submitted that no
prescribed form has been produced by the prosecution to
substantiate the allegation of breach of any service rules and
if at all there is any breach of service of rule, then the
appellant can be subjected to only disciplinary action and
even in departmental proceedings nothing except the breach
was found. Senior Advocate Mr. Panchal submitted that in
departmental proceedings there was no finding that non-
informing the higher authority would amount to criminal
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offence.
3.13 Mr. Panchal, Senior Advocate, submitted that the
discloser of income in the income tax return itself would
satisfy the requirement and since the wife is acquitted and in
absence of appeal, the appellant cannot be made liable.
3.14 Learned Senior Advocate Mr. Panchal stated that the
appellant by the Notification of the High Court of Gujarat at
Ahmedabad dated 03.04.1997 was appointed as a Civil Judge
Junior Division and Judicial Magistrate, First Class, Bharuch,
where he served upto 13.06.1999; thereafter, was transferred
to Civil Court, Surat as a Civil Judge Junior Division and
Judicial Magistrate, First Class and served at courts in Surat
district upto 09.06.2002, and thereafter was transferred to
Civil Court, Pardi district, Valsad.
3.15 Learned Senior Advocate Mr. Panchal stated that the
appellant took charge on 10.06.2002 in Pardi district, Valsad
and served there upto 30.09.2002, thereafter was transferred
to Civil Court, Valsad District as a Civil Judge Junior Division
and Judicial Magistrate, First Class.
3.16 Senior Advocate Mr. Panchal submitted that when the
appellant was performing his duty as Civil Judge Junior
Division and Judicial Magistrate, First Class at Pardi from
10.06.2002 to 30.09.2002, he started issuing warrants against
the accused persons of the matters, which were under Water
Pollution and Food Adulteration Act and complainant was the
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Advocate of the partners of Shri Chemicals, Synochem and
Shivam Chemicals which were 8 to 10 years old cases,
wherein too warrants were issued which prompted the
Advocate to file complaint.
3.17 Learned Senior Advocate Mr. Panchal referring to the
observation in the impugned judgment submitted that the trial
Court committed error in accepting the sanction as valid,
which in fact, is void ab initio, Learned Senior Advocate Mr.
Panchal submitted that I.O. (P.W.36) had no authority to
investigate, who had retired from the Police Department. The
investigation by the retired police officer has caused prejudice
to the appellant.
3.18 Learned Senior Advocate Mr. Panchal referring to para-
12 of the judgment of learned Trial Court Judge submitted
that Vishnukumar Patel (P.W.34), who accorded sanction
Exh.184, had stated that Rajendra's statement was not found
amongst the paper sent to him and thus submitted that
adverse inference should be drawn against the prosecution, as
it affects the validity of the sanction.
3.19 Learned Senior Advocate Mr. Panchal further submitted
that section 13(1)(a) and section 13(1)(e) of the P.C. Act are
inter connected with each other and that if accused No.1 was
not habitually accepting the bribe amounts, it would
prejudicially affect his conviction under section 13(2) read
with section 13(1)(e) of the Act. Senior Advocate Mr.Panchal
stated that most important question not been examined by the
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learned Judge was that the property purchased by accused
No.3 was already sold. Thus, Senior Advocate Mr. Panchal
stated that prosecution has failed to prove that accused No.1
possessed ill-gotten wealth, had the appellant so possessed,
the requisite amount could have been actually recovered from
him after the sale of property.
3.20 Learned Senior Advocate Mr. Panchal submitted that
findings that the transactions were not brought to the notice
of the higher authorities under the Conduct Rules, would be
mere irregularity on the part of appellant - accused No.1. Mr.
Panchal stated that probability of lack of income on the part of
accused No.3 and not having filed Income Tax Returns cannot
be made a base for the finding against appellant accused
No.1.
3.21 Learned Senior Advocate Mr. Panchal relied on the
judgment of (i) M. Krishna Reddy v. State, reported in
(1992) 4 SCC 45; (ii) Ashok Tshering Bhutia Vs.
State of Sikkim, reported in (2011) 4 SCC 402 (iii) State
of Uttar Pradesh Vs. Kanhaiya Lal, 1976 Cr.LJ 1230, to
support his arguments.
4. Countering the arguments, learned Public Prosecutor
Mr. Hardik Dave assisted by learned APP Ms. Monali Bhatt for
the State submitted that the case has to be concentrated for
the charges against the appellant under Section 13(1)(e) read
with Section 13(2) of the P.C. Act. Learned P.P. Mr. Dave
submitted that if a public servant accepts gift from unknown
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person even if in the name of his wife, would be a source
unknown to the prosecution authority, as the only legal source
for a judicial officer is his salary. The accused has failed to
prove the burden, which has been shifted on him, when prima
facie by examining about 36 prosecution witnesses, the
allegation of disproportionate asset to the known sources of
the appellant-accused had been proved by the prosecution
witnesses, more specifically, by P.W.14 to P.W.36.
4.1 Learned Public Prosecutor Mr. Dave submitted that the
property valued about Rs.35 Lacs, was purchased only at the
value of Rs.5,51,100/-. The accused had not satisfactorily
proved as a public officer, the legal transfer of money and
submitted that the gift deed of Rs.7 Lacs in the name of the
wife of appellant through the Bank, itself would prove that the
money received was not from the legal source. Learned Public
Prosecutor Mr. Dave contended that a person residing at
Sudan giving money as gift without any cause would amount
to windfall in the hands of the appellant and it has always to
be assumed that such amount received as gift was taken for
some motive or reward. Learned Public Prosecutor Mr. Dave
relying on the judgments of (i) State of Karnataka v. J.
Jayalalitha, (2017) 6 SCC 263; (ii) N. Ramakrishnaiah v.
State of A.P., (2008) 17 SCC 83; (iii) K. Ponnuswamy
v. State of T.N., (2001) 6 SCC 674; (iv) P. Nallammal v.
State, 2025 SCC OnLine SC 1040, submitted that if the
public servant would be permitted to accept money from any
person irrespective of their relation, then that would
encourage the public officers to indulge in corrupt practices
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and such receipt of money would get legalise through the
institution, which cannot be permitted for public servant, who
is required to show his commitment towards his job with full
integrity.
4.2 Learned Public Prosecutor Mr. Dave submitted that any
receipt from windfall, or gains of graft, crime of immoral
secretions by any persons prima facie would not be receipt
from the 'known sources of income' of a public servant. The
prosecution has proved with all the documentary evidence
supported by the testimony of the witnesses, the illegal
receipt of the cash money and the illegal purchase of property
and submitted that the appellant as a judicial officer is guided
by the Gujarat Civil Services (Conduct) Rules, 1971 and
cannot therefore, express his ignorance about the rules, for
maintaining absolute integrity and devotion to duty and not
doing any act unbecoming of the public servant. Learned
Public Prosecutor Mr. Dave stated that appellant was
governed by Rule 19 of the Gujarat Civil Services (Conduct)
Rules, 1971, whereby he had to give full details about the
movable, immovable and valuable property belonging to him,
who he could acquire or dispose of any immovable property in
his name or in the name of his family member only on the
previous sanction of the prescribed authority. Learned P.P.
Mr. Dave submitted that Gujarat Civil Services (Conduct)
Rules, 1971 has provided for gifts and it has been very
categorically laid down that no public servant shall accept or
permit any of his family member or any other person acting on
his behalf to accept any gift, and thus submitted that the
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prosecution had proved the case beyond all reasonable
doubts, hence, made a prayer to upheld the judgment of
conviction and sentence.
5. Having heard learned Senior Advocate Mr. Panchal
assisted by Mr. Vyas and learned Public Prosecutor Mr. Dave
assisted by learned APP Ms. Bhatt, perused the testimonies of
the witnesses and the exhibited documents proved on record.
P.W.36 was the Investigating Officer and P.W.35 was the
inspector assisting P.W.36. Both the witnesses have in their
depositions stated about the statements recorded by them and
specifically P.W.36 had detailed out in his testimony about the
procedure adopted for the investigation, after reading the
complaint and registering as F.I.R. and the documents
received and process adopted by him through the witnesses to
file the charge sheet.
6. P.W.36 was the Investigating Officer, Abdul Gani Husen
Malik, examined to state about the investigation conducted by
him under the order given to him to file a case against the
appellant P.A. Gohil serving as Judicial Magistrate, First
Class, Pardi. Such order was by the vigilance officer on
20.12.2002 through the order of the Chief Justice and the
administrative judge of Valsad District. The witness stated
that after he received the papers, he found the statement of
Pravin V.Shah recorded by the vigilance officer and when he
found the elements of the offence, he registered criminal
registration No.2/2002 in High Court Vigilance Police Station
under Section 7, 12, 13(1), 13(b)(2) and had signed the report
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under Section 157 of the Procedure Code to the competent
authority. The investigation officer has referred to the search
conducted at the house of the appellant. The statement of
Pravin B.Shah was considered as complaint before the
vigilance officer and after finding sufficient evidence he under
the order had filed the charge sheet against Shri Gohil and
thereafter on the ground of abetment finding sufficient
evidence, he filed supplementary charge sheet against rest of
the two accused, informing the complainant under Section
173(b) of the Cr.P.C. The witness has referred to all the
documents in his deposition and has referred to the gift of
cash of Rs.7 Lacs received by the wife of the appellant, as well
as about the property purchased in the name of the wife of the
appellant. The witness stated that as per the Executive
Engineer report and Town Planner's report the value of the
property and the land was of Rs.35 Lacs.
6.1 P.W.35 - Jaswantsinh Mohabatsinh Rathod was a
vigilance inspector in vigilance branch in Gujarat High Court
along with him was another inspector R.J. Raol. Witness
stated that his vigilance supervision was retired D.S.P. Malik
(P.W.36). Their duty was to follow the orders of Maliksaheb.
The witness has referred to the statement recorded by him. In
the cross-examination, he stated that Exh.91 - gift letter was
given by Sumatilal (P.W.17).
7. The sanction for prosecution of the accused was granted
by the Joint Secretary to Government of Gujarat, Legal
Department by the order dated 11.11.2004, which was placed
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in evidence by P.W.34 - Vishnukumar Prabhudas Patel at
Exh.184. The scan copy of the order of sanction dated
11.11.2004 is reproduced herein below for ready reference:
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8. The prosecution was initiated against the present
accused, his wife and brother-in-law on the complaint made by
P.W.1, the practicing lawyer of Vapi-Valsad, Mr. Pravinbhai
Vajechand Shah, while he was president of Pardi Bar and
according to the deposition at that time, appellant Shri Gohil
was the Judge, who had come from Surat. Complainant has
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deposed that after the transfer of appellant from Pardi to
Valsad, he was called by Vigilance Officer, Gujarat High Court
in connection with the investigation regarding allegation of
bribe against appellant Shri Gohil. When he reached the High
Court Vigilance Office at that time the president of Valsad Bar
President, Mr. Vasantbhai Patel and Mr. Kureshi as Secretary
were present there.
9. P.W.1 stated that till the time Shri Gohil was serving at
Pardi, Bar had not made any representation against the
judicial officer. The complaint was regarding the demand of
bribe amount in connection with Shri Chemicals and Shivam
Chemical, which was represented by him as an advocate. Shri
Gohil as a Judge had issued warrant against the accused and
for cancellation of the warrant the demand was made. P.W.1
as an Advocate stated that one Shantilal informed him that
the appellant was issuing warrant against accused of the
matter and would not cancel it and would direct them to
remain in jail. P.W.1 stated that he has also made
representation before District Judge and the Vigilance
Department of the High Court as well as before the Unit
Judge.
10. The prosecution had examined Anwarbhai Pirmohammad
Makrani as P.W.2 against whom warrant was issued, P.W.3 -
Arvindbhai Pragjibhai Desai, partner in Shree Chemicals and
Sinochem Product company against whom summon was
issued, P.W.4 - Chandrakantbhai Pragjibhai Desai, brother of
P.W.3 - Arvindbhai, P.W.5 - Chandrakantbhai Navnitlal
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Dhami, person against whom food related case was lodged,
P.W.6 - Hirachand Devchand Shah, who was a retired
Advocate, P.W.7 - Mehta Shrenikkumar Seventilal, P.W.8 -
Vikrambhai Ratilal Shah, Accountant in Shivam Chemical,
P.W.9 - Gunwantrai Maganlal Desai, Senior Clerk at Pardi
Court, P.W.10 - Prasantbhai Jawaharlal Desai, Advocate at
Pardi Court, P.W.11 - Magansinh Gumansinh Rathod, retired
APP., P. W. 29. Dilipbhai Narayan Irawa ,Junior clerk RTO
Surat, P. W. 30. Syed Ahmed Rashid Shaikh, buyer of car of
Pradeep bhai Jaimal Bhai Makwana, P. W. 31 Jaykerbhai
Shantilal Majethiya secretary, APMC Surat. P.W.32.
Gorangbhai Upendra Bhai Patel - Insurance agent. P.W.33 -
Maheshbhai Ambelal Mistry, staff of Mahesh Car Broker Firm,
to prove the case under section 7, 12 and 13(1)(a) of the P.C.
Act.
10.1 The prosecution had examined P.W.23 - Kasushik
Narvarbhai Patel, Account Officer in Zilla Panchayat,
Mehsana to remain as a panch for the search to be made at
the rental house of the appellant Shri Gohil. The investigation
officer Shri Malik from the vigilance branch of High Court on
23.12.2002 along with the panchas had gone to the house of
Shri Gohil and his wife and the things and articles, which
were found in the house were recorded as per the panchnama
and photographs were also taken. The panchnama was was
produced at Exh.118. P.W.24 - Jayendrabhai Pragibhai
Chudasma, Senior Clerk in Sales Tax office remained as a
panch for making a search at the house of Premjibhai
Haribhai Gohil, the father of the appellant. The panchnama
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was produced at Exh.121 and the receipt given to the
appellant's father Exh.122 was produced in evidence.
11. P.W.25 - Deputy Mamlatdar of Junagadh was a panch of
Exh.134 and a signatory to the receipt of Exh.135. The
witness was taken as a panch for search to be conducted at
the house of acquitted accused No.2 - Pradipbhai and his
mother Sarojben.
12. The offence with regard to sections 7, 12 and 13(1)(a)
could not be proved by the prosecution, hence, accused nos.2
and 3 came to be acquitted, while accused no.1 the present
appellant has been convicted for the offence under section
13(1) (e) read with section 13(2) of the P.C. Act. It was alleged
that the appellant had collected illegal wealth of lakhs of
rupees as bribe in Pollution and Food Adulteration cases
through his brother-in-law, Pradipbhai Makwana, acquitted
accused No.2. On 07.12.2002, the wife of the appellant,
acquitted accused No.3, had purchased a house showing the
value as Rs.5,51,000/- by showing cash as gift received from
N.R.Is P.W.17 and P.W.18, while the actual price of the
premises was Rs.36 Lakhs.
13. P.W.34, the sanctioning officer Vishnukumar Prabhudas
Patel was examined to prove the sanction Exh.184 referred
herein above. The officer stated that he received the file for
prosecution sanction, when he was serving as a joint
secretary, and had given evidence of reading the reports,
documents, statement of witnesses, complaint and
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documentary evidence and after deep study having found
prima faice case had given the sanction, Exh.184, which he
had sent to the High Court. In connection to the property
which was purchased in the name of wife of the present
appellant as a gift, the sanctioning officer, affirmed that he
had read the statements from the file of the persons, who
have given the gift. The sanctioning officer was also asked the
question in relation to the statements of the persons who had
given money in the form of gift to Shobhnaben, who answered
that on reading the statements and the gift letter, there was
reference of Rs.7 Lakhs given as gift. The Gift-letter dated
22.11.2002 was before the Notary R.S. Jani. P.W.34 denied
the suggestion that it was in the statements of Sumatilal -
P.W.17 and Nilam Kumari P.W.18 that they had given the
money to Shobhnaben as their daughter.
14. The prosecution had examined P.W.12 - Hemant
Naginbhai and P.W.13 - Jaywantbhai Bhikhubhai Modi in
connection with the flat, which was rented by the brother-in-
law (acquitted accused No.2) of the present appellant.
15. Section 13(1)(e) read with section 13(2) of the P.C. Act
requires mention here to appreciate the evidence, thus
reproduced herein under for ready reference:
"13 Criminal misconduct by a public servant - (1)
A public servant is said to commit the offence of
criminal misconduct -
(a)...
(b)...
(c)...
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(d)...
(e) if he or any person on his behalf, is in possession or
has, at any time during the period of his office, been in
possession for which the public servant cannot
satisfactorily account, of pecuniary resources or
property disproportionate to his known sources of
Income.
Explanation: - For the purposes of this section,
"known sources of income" means income received
from any lawful source and such receipt has been
intimated in accordance with the provisions of any law,
rules or orders for the time being applicable to a public
servant."
15.1 In the case of M. Krishna Reddy v. State (supra),
referred by learned Senior Advocate Mr. Panchal. The Hon'ble
Supreme Court has explained that failure to satisfactorily
account for the possession of resources or property becomes
offence, in context of section 13(1)(e) of the P.C. Act. After the
prosecution proves the necessary ingredients, the burden of
satisfactorily accounting for such possession shifts to the
accused. It was held as under:
6. An analysis of Section 5(1)(e) of the Act, 1947 which
corresponds to Section 13(1)(e) of the new Act of 1988
shows that it is not the mere acquisition of property
that constitutes an offence under the provisions of the
Act but it is the failure to satisfactorily account for such
possession that makes the possession objectionable as
offending the law.
7. To substantiate a charge under Section 5(1)(e) of the
Act, the prosecution must prove the following
ingredients, namely, (1) the prosecution must establish
that the accused is a public servant, (2) the nature and
extent of the pecuniary resources or property which
were found in his possession (3) it must be proved as to
what were his known sources of income, i.e. known to
the prosecution and (4) it must prove, quite objectively,
that such resources or property found in possession of
the accused were disproportionate to his known
sources of income. Once the above ingredients are
satisfactorily established, the offence of criminal
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misconduct under Section 5(1)(e) is complete, unless
the accused is able to account for such resources or
property. In other words, only after the prosecution has
proved the required ingredients, the burden of
satisfactorily accounting for the possession of such
resources or property shifts to the accused.
16. P.W.14 - Suryakantbhai Bhagwanbhai, who was serving
in the Sub-registrar office, Mangrol in the year 2003, he
stated that since 1984, he was serving in the Registration
Department. From 2002 till 18.05.2005, his evidence records
that, his office was having an Office Assistant Clerk - Mr. B.M.
Atodariya. His duty included registration of the documents in
the form of sale deed, mortgage deed, gift deed etc. of the
property of Mangrol village and Taluka.
16.1 P.W. 14 stated that he was referred to documents
registered at Mangrol office at Serial No.1046 on 07.12.2002
between 12:00 to 1:00 in the afternoon, and stated that it was
sale deed of Rs.5,51,000/- of the property in the boundary of
Mangrol Nagarpalika of City Survey No.7618, admeasuring
746.64 sq. mtrs., a house on Secretarial Road with old Rukka
Lekh No.17/98, the purchaser was Smt. Shobhnaben, wife of
Premjibhai Gohil, resident of Shahpur Darwaja, Mangrol and
the sellers were Dineshbhai Tarachand Shah, Kirtibhai
Tarachand Shah, Saileshbhai Kishorchand Shah and
Rajeshbhai Kishorchand Shah, with the registration fee of
Rs.8,355/- and photo side fee of Rs.130/- and in total 8,485/-
was recovered by executing Receipt No.1602546 on
07.12.2002, where upon he identified the signature of Mr.
B.N. Atodariya as Sub-registrar. The witness stated that the
stamp used was of Rs.83,000/-, and after the writing of the
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document, there were signatures of the sellers and the
witnesses. The vendors were identified by Maheshkumar
Sumandas Merwana, resident of Mangrol and Mitesh
Dineshchandra Shah. The witness identified the signature and
the seal. Witness had given the certified copy at the time of
recording of his statement to the Investigating Officer and
produced the copy of the sale deed, Exh.75. The receipt
executed for recovery of the registration fee was put in
evidence at Exh.76, where upon the name of Shobhnaben wife
of Premjibhai Gohil was referred, on which her signature was
received. The witness has also referred to the register
maintained in this office with regard to the document at Serial
No.1046 and the said was produced in evidence at Exh.77.
The Index of the sale deed under his signature was produced
at Exh. 78.
16.2 In the cross-examination, P.W.14 affirmed that when the
property was sold and the document was registered, at that
time, initially the valuation of the property was verified. The
witness affirmed that the property was valued as per the price
decided in the Jantri, and if the stamp duty is paid as per the
Jantri price, then there would not be any issuance of notice.
The witness also affirmed that if the stamp duty was used as
per the market price, even then, the document would be
registered. The witness stated that if there would be any
objection to the document, then the document would not be
registered. In the present case, the witness stated that there
was no objection to the registration and therefore it came to
be registered.
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16.3 From the evidence of P.W.14, it transpires that the
registration took place without any objection. The valuation of
the property was verified prior to the registration of the sale
deed.
17. P.W.15 - Govindbhai Jagmalbhai, from 01.06.2001 to
30.09.2006 was serving in Maintenance City Survey Office. As
per his evidence, the process of recording of the name would
be on the basis of 'Utaro' (Index) from the Sub-registrar Office
on the application, which would be moved to the Maintenance
Surveyor and after recording the necessary entry it was
placed before City Survey Superintendent. The entry would be
in the property card as per the Index from Sub-registrar and
with the passage of time, those entries would be certified. The
notice under Section 135D would be sent to the persons,
whose rights get deleted. The witness referred to Exh.78 as
the 'Utaro'. The witness has referred to 135D notice to the
vendors by UPC by relying on Exh.81. Exh.82 is the notice,
which he issued to the vendors as a Maintenance Surveyor,
and has produced in evidence at Exh.83; the change entry at
Serial No.208, in connection with the document No.1046. The
witness stated that the names of the vendors were removed,
and as a purchaser of the property, name of Smt. Shobhnaben
wife of Premjibhai Gohil was recorded with the change entry
dated 17.01.2003. The details recorded the Registration
No.1046 of the sale dated 07.12.2002 for Rs.5,51,000/-. The
entry was certified by the officer.
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18. In the cross-examination the witness P.W.15 referring to
the property card stated that the name of Shobhnaben was
deleted and the name of Dinubhai Solanki got reflected on
06.06.2003.
19. P.W. 16 as a stamp vendor and bond writer referred to
Stamp Serial Nos.158(1) to (12), which he stated that as a
stamp vendor he has sold the stamp to Shobhnaben. He
identified the signature and stated that thereafter on
instruction he typed the sale deed, wherein the purchaser was
Shobhnaben wife of Premjibhai Gohil, thereafter he had
written the names of all the vendors, who were four in
number. According to him the sale deed was for City Survey
No.7618 of old construction. The witnesses were Kishanbhai
Jivabhai and Makwana Pradipbhai Jaimalbhai. Kishanbhai
Jivabhai was resident of Sediyaj and was in the business of
coal and Makwanabahi was the brother of Shobhnaben. In
accordance to the evidence, Exh.75 - sale deed was typed by
witness P.W.16.
20. The evidence of this witness is concentrated with regard
to purchase of stamps and the sale deed being typed by him.
He has given the evidence of the vendor, vendee and
witnesses to the document. The evidence of P.W.14 is with
regard to registration of the sale deed and the evidence of
P.W.16 suggests that on the same day of registration of the
sale deed the stamp were purchased. The sale deed was in the
name of wife of the present appellant, wherein Pradipbhai
Makwana, acquitted accused No.2 was a witness to the
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document. On comparison of the evidence of the Registrar
P.W.14 and the evidence of P.W.15 - City Survey Maintenance
Surveyor, it becomes clear that the property which was
purchased on 07.12.2003 in the name of the wife of the
present appellant was sold to one Dinesh Solanki where name
was reflected in the property card on 06.06.2003.
21. The prosecution sanction were on the ground that on
07.12.2002, the wife of the appellant had purchased the house
valued at Rs.5,51,100/- by showing that the said amount was
received by her as gift from NRIs, while the actual price of the
house purchased by her is of Rs.36 Lacs. The prosecution
examined P.W.17 - Sumatilal Amrutlal Kamdar, P.W.18 -
Nilamben Sumatilal Kamdar as the NRIs from whom the
money was received by the wife of the appellant as gift.
21.1 P.W.17 - Sumatilal Amrutlal Kamdar testimony shows
that he at that relevant time was residing at Rajkot with his
wife. His birth place was Sudan, as his father, at that time,
was at Sudan in the year 1942, because of the war, he and his
mother come down to Jetpur and in the year 1950 they again
went back to Sudan and had come in the year 1953 at Jetpur
and after marriage he returned back to Sudan. His father died
in the year 1986 at Sudan.
21.2 He stated that his education is upto standard 11. His
wife's name is Nilamben and he has two daughters and two
sons. Both his sons were the residents of Sudan, who were
born there, where they are having business of cycle spare
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parts, which was handled by both the sons. The witness stated
that in the year 2002, he came back to Rajkot from Sudan
along with his wife. Initially they resided at Silver Gold
Complex and thereafter started staying in Gita Apartment. At
that time he had opened his account in Union Bank of India,
showing the residence as Silver Gold Complex. He got his
passport renewed in the year 1996.
21.3 Since they were residing at Rajkot and as there was
necessity for the monetary transaction from Sudan therefore
he and his wife got opened a joint account in Union Bank of
India and in that account mostly the amount would be
deposited in dollar by cheque transfer. The witness stated that
since he is now aged, he is having a retired life.
21.4 The witness stated that he was inquired by Rathod
Saheb of High Court Vigilance Department, his statement was
recorded and thereafter Malik Saheb also inquired from him.
The witness was referred to the copy of the pass-book of
Union Bank of India Exh.89 and he stated that on page no.3,
there were transaction of his account. The copy of the
passport was produced at Exh.90.
21.5 Referring to the passbook copy Exh.89, the witness
stated that the account shows a withdrawal of Rs.7 Lac by
cheque no.4784 dated 23.11.2002 and he said that the said
amount was given to Shobhnaben as gift. The witness stated
that he does not know the full name of Shobhnaben.
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21.5.1 This evidence of the witness P.W.17 becomes very
crucial. He does not know the full name of the person to
whom they had gifted Rs.7 Lacs by way of cheque.
21.6 The witness P.W.17 further stated that he had not got
any work done on payment of Rs.7 Lacs to Shobhnaben nor
had be purchased anything from her. He also stated that
Shobhnaben was not his relative and his wife had studied upto
4th standard. The witness also stated that all these facts were
informed to Rathod Saheb and Malik Saheb. The witness also
further stated that he was not knowing Shobhnaben while
Shobhnaben was known to his wife.
21.7 This evidence of the witness P.W.17 creates doubt to the
transaction in the form of gift. The witness does not know the
donee nor does he know the full name of donee. He has
clarified that Shobhnaben i.e. wife of the appellant is not his
relative, then under what circumstances, Rs.7 Lacs were
given as gift to Shobhnaben becomes suspicious.
21.8 In the cross-examination of the witness, it has been
elicited from the side of the accused and the witness stated
that his wife Nilamben is from Jetpur and his wife's friend was
Jivuben. He affirmed that at the time of their marriage,
Jivuben had assisted them monetarily, who according to him
was very financially strong. The last prince of Porbandar was
considering Jivuben as his daughter and Jivuben's marriage
was performed at the hands of the prince. The witness stated
that his wife Nilamben was very close to Shobhnaben, the
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relation between the two was of love and affection. This fact
has been brought on record by way of cross-examination. The
witness P.W.17 had not stated such details in his examination-
in-chief.
21.9 The witness P.W.17 further stated that the business of
his father in Sudan started from 1920, they earned a lot in the
business and they were affluent. The witness stated that both
the sons of his son Kailesh were suffering from Thalassemia
and the younger son was operated at Velure for that they
expended to 15 to 20 Lacs. He stated that he was receiving
dollar from Sudan and was getting it exchanged at Dev Forex
Pvt. Ltd. And those money he was depositing in Union Bank
Rajkot, which was in his and his wife name as NRIs.
21.10 The witness stated that he had come in November,
2002 from Sudan and in that month he had opened the Bank
Account. He also affirmed that on 21.11.2002, in Dev Forex
Pvt. Ltd. 5000 dollars were received in his and his wife's name
separately. Those were converted in rupees and deposited in
the Bank.
21.11 The witness was also questioned about notarized gift
deed and he stated that for drawing the deed he had
appointed a Lawyer. His wife could sign in English and he had
given the details in his own handwriting. The witness stated
that they as husband and wife since long were often thinking
to give gift to Shobhnaben and for that purpose they had
conversation with their sons and the children agreed to fulfill
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the wish. The witness stated that they have movable and
immovable property in large quantity in Sudan and that
children would always fulfill their wish.
21.12 In the cross-examination from the side of accused
Nos.2 and 3, the evidence was recorded that the writing of the
gift was executed in the notary's office, which was read in
English and explained to them and after having affirmed, they
had signed. The witness stated that he had given the copy of
the document to Rathod Saheb and Malik Saheb when his
statement was recorded. The witness was shown document
Exh.91 and he affirmed his and his wife's signature thereon.
The Scan Copy of Exh.91 is as below:
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22. The document Exh.91 as referred above shows Mrs.
Nilamkumari Sumatilal P.W.18 as donor of Rs.7 Lacs with
donee as Mrs. Shobhnaben P.Gohel. Stamp paper valued at
Rs.20/- appears to be purchased on 22.11.2002 in the name of
the donor and the document was executed before the Notary -
R.S. Jani on 25.11.2002. The gift amount was given by way of
cheque No.0004784 dated 22.11.2002. The gift letter does not
show the relation between donor and donee.
22.1 Nilamben Sumatilal Kamdar had been examined as
P.W.18, the donor of gift letter Exh.91. She stated that from
her birth she was residing at Jetpur. Her father was in the
business of Hosiery and cutlery. Thereafter, she said that in
the year 1953 they had gone to Sudan. She has referred the
names of her two daughters and two sons. She stated that
since last 5 to 7 years she was staying at Rajkot looking after
the treatment of Thelassemia of two grandchildren along with
the daughter-in-law at Rajkot. Her son from Sudan would
come for six to twelve months and thereafter, would return
back.
22.2 The witness P.W. 18 stated that she has a joint saving
account with her husband at Union Bank of India. She has no
knowledge of the limit of money she could bring and stated
that it would be in the knowledge of her husband. She does
not understand about bank or cheque transactions. All the
transactions would be done by the sons and the husband. She
stated that whenever her sons and husband would instruct her
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to put signature, she would do so, otherwise she would have
no knowledge.
22.3 The witness stated that she has no knowledge about the
deed executed in favour of Shobhnaben. She had signed as
she was asked to do so by her son. Then she volunteered to
clarify that the signature was with her consent. The copy of
the passport was placed in evidence at Exh.93. The witness
was shown the xerox copy of counterfoil of cheque book and
xerox copy of counter foil of the slip used for depositing the
money in the Bank, while identifying the seal of the Bank, she
stated that the details were written by her husband.
23. Here, it transpires that the gift letter Exh.91, executed in
favour of Shobhnaben was not within the knowledge of this
witness. She stated that she had put the signature under the
instruction of her son. The fact of execution of the gift letter,
for the money given by cheque of Rs.7 Lacs, out of love and
affection to Shobhnaben wife of the appellant becomes a
doubtful aspect. It appears that the donor without her
knowledge and understanding was asked to put her signature
on the gift letter. The bank transaction was by the witness
husband.
23.1 In the cross-examination from the side of the present
appellant, the witness P.W.18 stated that she knows to sign in
English. Whenever she would have to go for monetary
transaction she would be accompanied by her husband. Her
Natal house is at Jetpur. She knows Jivuben of Jetpur.
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According to the witness, Jivuben is the grandmother of
Shobhnaben. The witness stated that Jivuben had monetarily
helped her at the time of her marriage and the last prince of
Porbandar Ranasaheb had adopted Jivuben whose marriage
was performed through him. The witness stated that from the
beginning, she and Jivuben had affectionate relation. Since
Jivuben financially helped her at her marriage, she always
considered it to be an obligation to her. The witness also
stated that her relation with Shobhnaben was of love and
affection and practically she consider Shobhnaben as her own
daughter and since long she and her husband were
considering to give something as gift to Shobhnaben so out of
love and affection she had gifted Rs.7 Lacs to Shobhnaben and
for that she and her husband together had drawn a writing
before the Notary and on the writing regarding gift she had
put her signature on her own volition with full understanding.
She stated that one cheque of Rs.7 Lac was given to
Shobhnaben as gift. She stated that there was relaxation of
bringing 10,000 dollars from Sudan and often her children
would bring money from Sudan.
23.2 The evidence as stated in the examination-in-chief does
not reflect of any special bond between this witness and the
wife of the appellant. While in the cross-examination, the
relation has been joined through Jivuben of Jetpur, who has
been referred as being grandmother of Shobhnaben. No
evidence has been produced to prove the relation of donor
and donee and of Jivuben with the wife of appellant.
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24. P.W.28 - Vishal Mahendrabhai Raichuda was the witness
from Dev Foreign Pvt. Ltd. Company, he stated that he was
one of the Director. The vigilance officer had inquired from
him and he had given the details on the letter head and
according to his office record (1) on 14.11.2002, 100/- U.S.
dollars, under Bulk Purchase no.155, were purchased from
Union Bank of India. (2) by Bulk Purchase No.2160 on
20.11.2002 U.S. dollars 2050/- were purchased. (3) U.S.
dollar 5,000/- from Milan Kumari through encashment no.471
(sic.) and had paid Rs.6,26,169/- (4) With encashment no.478,
U.S. dollars 5,000/- were purchased from Shri Sumatilal
Kamdar (P.W.17) and (5) U.S. dollars 4750/- on 22.11.2002
were purchased through purchase no.162 from Union Bank of
India and (6) 2,650/- British Pound on 29.11.2002 were
purchased from Union Bank of India. The statement with
regard to the purchase price and the payment was produced
in evidence at Exh.154. The witness stated that he has no
knowledge about who was paid the money for the referred
transaction nos.1-2-4 and 5, and further affirmed that for the
entry nos.3 and 4 the transaction was legal and the payment
was done in cash. The document at Exh.154 shows that the
amount at serial no.3 to Nilamkumari Sumatilal (P.W.18) was
made by cheque no.626169 of ICICI Bank and the payment to
Sumatilal A. Kamdar (P.W.17) was made by cheque no.626170
of ICICI Bank.
25. The admitted position was of appellant being a judicial
officer in service as a public servant and his wife would be his
dependent. The public servant and his dependents are liable
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to disclose all their earnings and had to prove that the
property purchased were from the "known sources of
income". The section 13(1)(e) appended with the explanation
clarifies that "known sources of income" for the purpose of
section 13(1)(e) would mean income received from lawful
source. The explanation thus, impresses upon the source of
the money by way of income. The income received must be
from the lawful source and such receipt should have been
intimated in accordance with the provision of law, rules or
orders for the time being applicable to a public servant. The
appellant as a Judicial Officer has not brought on record that
prior to his wife accepting the gift they had sought any
permission or had got any approval from the administrative
functionary of High Court of Gujarat. Nothing has come on
record as an evidence from the side of the appellant Judicial
Officer of intimating the Registry of the High Court of their
intention to accept the gift from P.W.18.
26. The transaction has been made through Bank Account.
The amount of Rs.7 Lacs given by way of cheque. Jivuben
though has been referred as a grandmother of Shobhnaben,
no such pedigree has been proved on record. Jivuben's
adoption by prince Ranasaheb, has not been proved by any
documentary evidence. The obligation was of Jivuben on
P.W.18 and because of that out of love and affection, the
money has been given to Shobhnaben are mere words not
substantiated by any documentary evidence, and too far-
fetched.
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26.1 The gift letter Exh.91 was drawn on 25.11.2002, the
cheque no.0004784 of Rs.7 Lacs was drawn on 22.11.2002.
The sale deed for purchase of the property was executed on
07.12.2002.
27. It was the argument of learned Senior Advocate Mr.
Panchal that the prosecution has proved the case on their
behalf and that nothing was left open by the prosecution for
the accused to further lead any evidence to disprove the facts,
as contemplated under Section 13(1)(e) of the Act. In
accordance to argument of learned Senior Advocate Mr.
Panchal, the gift letter executed and the transaction by way of
cheque would be considered as legal in the eyes of law. The
money has come from the legal source and the accused
therefore, would not be required to explain further about the
receipt of the money.
28. Further reliance has been placed by the prosecution on
the evidence of P.W.19, the Branch Manager of ICICI Bank
and P.W.20, one of the vendor, who had sold the house at
Rs.5,51,100/-. According to Senior Advocate Mr. Panchal all
the transactions were legally done and when the wife of the
appellant has been acquitted, learned Senior Advocate Mr.
Panchal expressed the view that the appellant cannot be
convicted for the charge under Section 13(1)(e) of the Act.
28.1 P.W.19 - Mahernosh Firoz Kasad was a Branch
Manager at ICICI Bank at Surat Athwaline. He was referred to
Exh.98, which was a letter addressed to the Vigilance Officer
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of Vigilance Cell of High Court of Gujarat on their official
letter pad, informing that Shobhnaben Gohil had opened bank
account on 18.12.2001, and they had informed the transaction
for the period between 01.04.2002 to 30.05.2003. The letter
Exh.98 informed the following details:
1. The correct Savings Bank Account No. of Smt
Sobhanaben P Gohil is 005201015366 and the same was
opened with proper introduction on 18th Dec 2001.
2. Please find attached statement of account as desired
3. There are no accounts in the name of Sri Premjibhai H
Gohil and Pradipbhai J Makwana.
4. There are no fixed deposit accounts in the name of Smt.
Sobhanaben Premjibhai Gohil.
28.2 The witness P.W.19, the Bank Manager, had also
brought the form for the Bank Account No.005201015366 and
the copy of photo identity card and driving license, which he
produced at Exh.99. The witness stated that the amount were
withdrawn in accordance to the details of document Exh.98,
he had brought the copy of cheque no.456676 to 456681 from
the original at their Bank and stated that it did not include
cheque no.456680 and cheque no.76, 77, 78, 79 were given
for preparation of Demand Draft and accordingly as per the
instruction Demand Draft were issued and the witness stated
that the cheque no.456676 of Rs.1,83,366/- was for Demand
Draft in the name of Dineshbhai Tarachand Shah dated
28.11.2002. Cheque No.456677 of Rs.1,83,366/- was for the
Demand Draft in the name of Kiritbhai Tarachand Shah.
Cheque No.456678 and cheque no.456679 each of Rs.92,184/-
were for the Demand Draft in the name of Shailesh
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Kishorchand Shah and Rajesh Kishorchand Shah respectively
and cheque no.456681 was used for cash withdrawal of
Rs.1,50,000/-. The documents were jointly produced at
Exh.100.
29. In the cross-examination, it was stated that on
11.12.2001, by way of pay-in slip Rs.15,000/- was deposited to
open the Bank Account. The slip was produced at Exh.101.
The witness stated that the account was open in the name of
Shobhnaben P.Gohil in their Bank. The four drafts, which
were drawn were on the basis of the cheque issued from the
account of Shobhnaben P.Gohil on 28.11.2002.
30. Prosecution examined P.W.20-Dineshchandra Tarachand
Shah, one of the vendor of the sale transaction in favour of
wife of the appellant Shobhnaben. P.W.20, the resident of
Rajkot was having a retired life staying at Ahiya Apartment.
He stated that he was originally from Mangrol and they had a
house in the name of their mother Manwantiben at Mangrol
on secretariat road. They were three brothers. The eldest
Kishorbhai died living behind Shailesh and Rajesh and his
younger brother is Kiritikumar. Both the brothers and both
the nephews together decided to sell the house and therefore
there was conversation with Shobhnaben and her mother.
Witness does not recollect the date of conversation, but
appropriately he stated that it was on 25.11.2002 and they
had decided to sell the house at Rs.5,51,000/-. There was no
writing for the conversation and stated that Shobhnaben had
given cash amount of Rs.1,100/- and it was decided that the
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sale deed would be executed within a month. The sale deed
was to be executed on seventh so they received the phone call
from Shobhnaben to come down to Mangrol on fourth. So, he
had informed Shobhnaben to bring four Drafts in their share
in connection with the house for him, his brothers and for two
nephews. Witness stated that the sale deed was executed on
07.12.2002 and they had received the Draft of ICICI Bank
Surat of Rs.1,83,00/- in his favour and his brother, while two
drafts of Rs.92,000/- were for the nephews.
31. The witness P.W.20 stated that Exh.75 sale deed was
signed by all of them, and as the consideration amount was
received they handed over the possession to Shobhnaben. The
Vigilance Officer of High Court had recorded his statement.
31.1 In the cross-examination the witness affirmed that the
property, which had been sold to Shobhnaben had a boundary
on the eastern direction known as Mehta Mohanlal and ahead
of that there was a name of Tibabhai Vakil. He affirmed that
there was no secretariat road from Veraval to Porbandar.
From the house sold, there were about ten to fifteen houses
and after leaving Kharaba land thereafter was secretariat
road heading from Veraval to Porbandar, and on the eastern
side of the road there was secretarial building. On the
western side were the house of Tribhuvan Nathuwala and on
northern side was a 'Dhelo' of Khatri Pursotambhai, which
was since very long time remaining close.
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31.2 The witness P.W.20 further stated that Mangrol village
was having the population of approximately 50,000 people,
there were no shops around. The house which was sold to
Shobhnaben. That house was remaining close since many
years and that they had not done any renovation of the house.
The house was constructed by their father 60 to 65 years ago
and they were making efforts since long to sell the house.
Since the house remained unoccupied and deserted therefore,
could not be sold, though many persons had visited it. The
witness also stated that Shobhnaben's mother Sarojben was
serving in GEB Mangrol and therefore they were
acquaintance. After their talks on 25.11.2002 with
Shobhnaben and her mother, on the next day they had agreed
for the sale of the house.
32. P.W.21 - Tapubhai Galabhai was working as an Deputy
Engineer in sub-division in Road and Building Department at
Keshod. The Executive Engineer at that time was Y.M.
Chawda, whose office was at Junagadh. The witness stated
that on 07.08.2003, the Executive Engineer had
communicated of the letter of Shri A.H. Malik, Vigilance
Officer for the valuation of Survey No.7618 and stated that as
per the S.O.R., which meant Schedule Operates Abstracts,
after his discussion with the Executive Engineer he had
valued the house. The witness identified his valuation report
Exh.109, which also had the attachment of Map of the house.
The witness stated that as per his valuation on that day the
price of the house was Rs.9,49,750/-.
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33. In the cross-examination P.W.21 affirmed that nothing is
on record to show that the the owner of the property, Shri
Gohil, was called or any notice was issued to him. The letter of
Shri Malik was produced at Exh.110 and the witness stated
that as per the letter the owner of the property was
Shobhnaben. He had not verified the ownership of the
property at the time of the valuation. The witness stated that
one of the family member of Gohilsaheb was present at the
time of the measurement, who had brought the key of the
house.
34. The witness P.W.21 stated that he does not remember as
to which of the family member of Gohilsaheb was residing in
the house, and while reading the file he stated that he came to
know that the property was of Member of Legislative
Assembly (M.L.A.) of Kodinar, Dinubhai Solanki. He also
affirmed that when the property was valued neither
Shobhnaben nor her husband Shri Gohil were the owner. The
witness stated that when the property was valued he had
written the price of all the items separately, running in the
year 2003 and he had not made estimation of value of the
house at the time when it was constructed. He affirmed that
the property was purchased on 07.12.2002 at Rs.5,51,000/-.
The witness stated that it was not within his jurisdiction to
decide whether the market price of the property valued at
Rs.5,51,000/- was paid. The witness also affirmed that neither
he nor his assistant Shri Katodiya had inquired about any
changes or renovation or plastering by the new purchaser
after the property was sold away by Shobhnaben. The witness
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also stated that it was not their duty to value the property by
comparing it with the sale value of the neighboring houses.
The witness stated that it was only their duty to value the
house and the Town Planner had not informed them to value
the price of the land.
35. Prosecution has produced the evidence through P.W.22
- Ashwinbhai Ambalal Borad of the valuation of the land, on
which the house was situated. The witness as town planner
has given the evidence with regard to process undertook prior
to visiting the place. The witness stated that on 7.12.2002, per
square meter price of the land was Rs.3500. The report was
finalised by the meeting of the valuation committee on 28-1-
2004, and was communicated to the collector, Junagadh dated
30-1-2004. According to the witness, the value of the land
746.64 sq. metre of survey number 7618 on 07.12.2002 was
Rs.26,13,240/-.
35.1 In the cross examination, the witness was asked about
the base adopted for the valuation of the property. According
to his reply, the base was the one which was used for valuing
government property. The witness specified the valuation was
only of the land and not of the house upon it. The witness has
affirmed about the yadi of the price decided of land of the
area by the government is recognised as Jantri. The witness
stated that he has not taken to consideration the Jantri while
evaluating the value of the land, as according to him, the
circular of the revenue department, dated 30.09.2002 the
Jantri prize is fixed for the government to examine the stamp
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duty and stated that Jantri prize could in no circumstances be
considered for Land valuation. The witness also affirmed that
in the meeting on 28-1-2004. about 11 incidence were
considered for deciding the price and except the incident
referred at serial number, six others were both of the question
of sale or lease, belonging to the government.
36. The law governing the public servant conduct becomes
relevant to be noted. No public servant can deny that he is not
regulated by conduct rules. Rule 19 of the Gujarat Civil
Services (Conduct) Rules, 1971 mandates every Government
servant to inform on the first appointment to his service or
post by submitting a return of his immovable assets on the
proforma as may be prescribed by the government giving full
details regarding the immovable property inherited, owned
acquired or held by him on lease or mortgage either in his
own name or in the name of any other family or in the name of
any other person. The Rule 19(2) obligates the government
servant to put to the knowledge of his prescribed authority
prior to acquiring or disposing of any immovable property by
lease, mortgage, purchase, gift or otherwise either in his own
name or in the name of any member of his family. Rule 13 of
the Conduct Rules makes provision for gifts which restricts
public servant from receiving gifts and also restrains to accept
gift except as provided under rules.
37. The appellant has not proved by way of any documentary
evidence of communication to the authority, whereby from the
High Court any sanction to receive money in the form of gift
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from P.W.18 in the name of his wife, was taken.
38. The appellant has failed to show and prove the relation
of his wife with P.W.18. Under Income Tax law the gifts could
be received only from the relatives, who could be (a) spouse of
the individual; (b) brother and sister of the individual; (c)
brother or sister of spouse of the individual; (d) brother or
sister of either of the parents of the individual; (e) any lineal
ascendant or descendant of the individual; (f) any lineal
ascendant or descendant of the spouse of the individual; (g)
spouse of the persons referred to in (b) to (f).
39. In the case as referred of M.Krishna Reddy Vs. State
(supra), the Hon'ble Supreme Court while delineating the
ingredients of Section 13(1)(e) of the P.C. Act, 1988 has laid
down that after establishing that the accused is a public
servant, the prosecution has to prove the nature and extent of
the pecuniary resources of the property, which were in the
accused possession and must prove the source of income of
the accused known to the prosecution and thereby objectively
prove that the resources or property found in the possession
of the accused were disproportionate to his known sources of
income. Once these ingredients are satisfactorily established,
the offence of criminal misconduct under Section 13(1)(e) is
complete. Once the prosecution has proved the required
ingredients, the burden of satisfactorily accounting for the
possession of such resources or property shifts to the accused.
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40. Here in this present matter, the prosecution by
examining P.W.15 to P.W.22 and P.W.28 has prima facie
proved on record that the money received from P.W.18 and
the property purchased from P.W.20 and his brother and
nephews were not from the known sources of the income of
the present appellant. The known source of income of
appellant would only be his salary.
41. In the case of N. Ramakrishnaiah v. State of A.P.,
(2008) 17 SCC 83, it was held as under:
17. "5. Section 13 of the Prevention of Corruption Act,
1988 (in short 'the Act') deals with various situations
when a public servant can be said to have committed
criminal misconduct. Clause (e) of sub-section (1) of the
section is applicable when the public servant or any
person on his behalf, is in possession or has, at any
time during the period of his office, been in possession,
for which the public servant cannot satisfactorily
account, of pecuniary resources or property
disproportionate to his known sources of income.
[Clause (e) of sub-section (1) of Section 5 of the old Act
was on similar lines.] But there have been drastic
amendments. Under the new clause, the earlier
concept of 'known sources of income' has undergone a
radical change. As per the Explanation appended, the
prosecution is relieved of the burden of investigating
into 'source of income' of an accused to a large extent,
as it is stated in the Explanation that 'known sources of
income' means income received from any lawful
source, the receipt of which has been intimated in
accordance with the provisions of any law, rules, orders
for the time being applicable to a public servant. The
expression 'known sources of income' has reference to
sources known to the prosecution after thorough
investigation of the case. It is not, and cannot be
contended that 'known sources of income' means
sources known to the accused. The prosecution cannot,
in the very nature of things, be expected to know the
affairs of an accused person. Those will be matters
'specially within the knowledge' of the accused, within
the meaning of Section 106 of the Evidence Act, 1872.
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6. [The emphasis of the phrase 'known sources of
income' in Section 13(1)(e) {old Section 5(1)(e)} is
clearly on the word 'income'.] It would be primary to
observe that qua the public servant, the income would
be what is attached to his office or post, commonly
known as remuneration or salary. The term 'income' by
itself, is elastic and has a wide connotation. Whatever
comes in or is received, is income. But, however wide
the import and connotation of the term 'income', it is
incapable of being understood as meaning receipt
having no nexus to one's labour, or expertise, or
property, or investment, and having further a source
which may or may not yield a regular revenue. These
essential characteristics are vital in understanding the
term 'income'. Therefore, it can be said that, though
'income' is receipt in the hand of its recipient, every
receipt would not partake the character of income. Qua
the public servant, whatever return he gets from his
service, will be the primary item of his income. [Other
income which can conceivably be] income qua the
public servant, will be in the regular receipt from (a)
his property, or (b) his investment. A receipt from
windfall, or gains of graft, crime or immoral secretions
by persons prima facie would not be receipt from the
'known sources of income' of a public servant.
7. The legislature has advisedly used the expression
'satisfactorily account'. The emphasis must be on the
word 'satisfactorily' and the legislature has, thus,
deliberately cast a burden on the accused not only to
offer a plausible explanation as to how he came by his
large wealth, but also to satisfy the court that his
explanation was worthy of acceptance."
41.1 In the above referred judgment of N.
Ramakrishnaiah (Supra), the Hon'ble Supreme Court by
emphasising on the phrase 'know source of income' in section
13(1)(e) of the P.C. Act has made a special emphasis on the
word 'income', primarily to observe that qua the public
servant, the income would be what is attached to his office or
post, commonly known as remuneration or salary. Any
windfall or gains of graft, crime or immoral secretions by
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persons prima facie would not be receipt from the known
source of income of a public servant.
42. Section 13(1)(e) of the P.C. Act has a very relevantly
used expression 'satisfactorily account', which cast the
burden on the accused not only to offer a plausible
explanation as to how he came by his large wealth, but also to
satisfy the Court that his explanation was worthy of
acceptance, as observed in State of Madhya Pradesh Vs.
Awadh Kishore Gupta, (2004) 1 SCC 691.
43. The prosecution herein had proved, that the source
which had been proved by examining the witnesses, was not
worthy of acceptance. The appellant as accused could not
prove that his wife was legally entitle to accept money as gift
from P.W.18. No blood relation of the spouse of the appellant
is proved with P.W.18. The legal entitlement of receiving the
cash amount as gift should be in accordance to the accepted
provisions of conduct rules. Acceptance of money as gift from
person not being the member of the family, more specifically,
those not approved by the law, would always be a windfall
gain to be termed as illegal. This aspect can be well
understood by making a relevant reference of the case of K.
Ponnuswamy v. State of T.N., (2001) 6 SCC 674, where it
was observed as under:
28. Now, let us see the facts of this case. The
prosecution has established beyond a reasonable
doubt, that prior to the check period Accused 1, 2 and
3 had no real source of income, except some meagre
income i.e. Accused 1 only earned a small salary as a
Lecturer and Accused 2 had a small agricultural and
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other income. Accused 3 being a student had no real
source of income. Prior to the check period the
financial condition of the family was such that Accused
1 could not even repay his small debts. The creditors
had to recover their amounts by filing suits and
executing decrees. We are presuming that Accused 4
had independent income. However, prior to the check
period Accused 4 had not been afflicted by any love and
affection and had not made any gifts to any member of
the family of Accused 1. Prior to the check period
Accused 4 did not even extend help to pay off the small
debts of Accused 1 even after the decrees had been
passed against Accused 1. Yet suddenly, during the
check period i.e. when Accused 1 is a Minister,
Accused 4 donates large sums of money to Accused 2
and 3. The natural presumption, considering the
common course of natural events and human conduct is
that Accused 1 would have used his nephew Accused 4
to transfer his (Accused 1's) monies to Accused 2 and
3. This is the supposition which any prudent man under
these circumstances would act upon considering the
natural course of events. The trial court and the High
Court thus rightly took this as proved by legal
evidence. The prosecution having established by legal
evidence that the monies were transferred by Accused
1 to Accused 2 and 3 through Accused 4 and that these
were monies of Accused 1 in the hands of Accused 2
and 3, it was for the appellant to satisfactorily account
for the gifts. He could have done so by showing that
even before the check period Accused 4 had made gifts
of substantial amounts. It has not been claimed by
Accused 2 and/or 3 and/or 4 that before the check
period also Accused 4 had made any such gifts. It is
also not their case that after the check period gifts
were made. Thus the trial court and the High Court
were right in not believing the case of gifts supposedly
made out of a sudden burst of love and affection. Both
the trial court and the High Court were right in
convicting the appellant. As we are told that the State
is going to file an appeal against the acquittal of
Accused 2 and 3, we are not making any comments
thereon.
44. In K. Ponnuswamy (supra), the Hon'ble Supreme
Court was dealing with the aspects of gift to the members of
the family of the accused out of love and affection. The natural
presumption was drawn considering the course of events and
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human conduct and it was held that the money in the hands of
the accused and his family member was for accused to
satisfactorily account. The Apex Court had appreciated that
the Trial Court and the High Court were right in not believing
the case of gifts supposedly made out of sudden burst of love
and affection.
45. Learned Senior Advocate Mr. Panchal submitted that
everything was disclosed in the income tax return and
therefore there cannot be any doubt with regard to the
amount received as gift and the property purchased by the
wife of the appellant. This argument of learned senior
advocate Mr. Panchal can be dealt with by making a reference
of the case of State of Karnataka v. J. Jayalalitha, (2017)
6 SCC 263, it was observed as under:
● In tax regime, the legality or illegality of the
transactions generating profit or loss is
inconsequential qua the issue whether the Income is
from a lawful source or not. The scrutiny in an
assessment proceeding is directed only to quantify the
taxable income and the orders passed therein do not
certify or authenticate that the source(s) thereof to be
lawful and are thus of no significance vis-à-vis a charge
under Section 13(1)(e) of the 1988 Act.
● Though considerable exchanges had been made in
course of the arguments, centring around Section 43
of the Evidence Act, 1872, those need not be
expatiated in detail. Suffice it to state that even
assuming that the income tax returns, the proceedings
in connection therewith and the decisions rendered
therein are relevant and admissible in evidence as
well, nothing as such, turns thereon definitively as
those do not furnish any guarantee or authentication of
the lawfulness of the source(s) of income, the pith of
the charge levelled against the accused. It is the plea
of the defence that the income tax returns and orders,
while proved by the accused persons had not been
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objected to by the prosecution and further it
(prosecution) as well had called in evidence the income
tax returns/orders and thus, it cannot object to the
admissibility of the records produced by the defence.
To reiterate, even if such returns and orders are
admissible, the probative value would depend on the
nature of the information furnished, the findings
recorded in the orders and having a bearing on the
charge levelled. In any view of the matter, however,
such returns and orders would not ipso facto either
conclusively prove or disprove the charge and can at
best be pieces of evidence which have to be evaluated
along with the other materials on record. Noticeably,
none of the accused has been examined on oath in the
case in hand. Further, the Income tax returns relied
upon by the defence as well as the orders passed in the
proceedings pertaining thereto have been filed/passed
after the charge-sheet had been submitted.
Significantly, there is a charge of conspiracy and
abetment against the accused persons. In the overall
perspective therefore neither the Income tax returns
nor the orders passed in the proceedings relatable
thereto, either definitively attest the lawfulness of the
sources of income of the accused persons or are of any
avail to them to satisfactorily account the
disproportionateness of their pecuniary resources and
properties as mandated by Section 13(1)(e) of the 1988
Act.
● Where there is unexplained cash credit, it was open to
the Income Tax Officer to hold that it is the Income of
the assessee and no further burden lies on the Income
Tax Officer to show that that income is from any
particular source and that it is for the assessee to
prove that even if the cash credit represented income,
It is an income from a source which had already been
taxed.
● Though the IT returns and the orders passed in the IT
proceedings in the instant case recorded the Income of
the accused concerned as disclosed in their returns, in
view of the charge levelled against them, such returns
and the orders in the IT proceedings would not by
themselves establish that such Income had been from
lawful source as contemplated in the Explanation to
Section 13(1)(e) of the PC Act, 1988 and that
Independent evidence would be required to account
for the same.
● Property in the name of the income tax assessee itself
cannot be a ground to hold that it actually belongs to
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such an assessee and if this proposition is accepted, it
would lead to disastrous consequences. In such an
eventuality it will give opportunities to the corrupt
public servant to amass property in the name of known
person, pay income tax on their behalf and then be out
from the mischief of law.
45.1 The Hon'ble Supreme Court while making a reference of
the case of State of T.N. Vs. R.Soundirarasu, reported in
(2023) 6 SCC 768, in the recent judgment in case of P.
Nallammal v. State, 2025 SCC OnLine SC 1040, has made
observation:
16. We must also keep in mind that insofar as
corruption cases under section 13(1)(e) of the PC Act
are concerned, the burden of proof is reversed, and it
becomes the responsibility of the accused to dislodge
the presumption against him. This position has been
reiterated by this Court in State of T.N. v. R.
Soundirarasu, (2023) 6 SCC 768:
"83. Section 13(1)(e) of the 1988 Act makes a
departure from the principle of criminal jurisprudence
that the burden will always lie on the prosecution to
prove the ingredients of the offences charged and
never shifts on the accused to disprove the charge
framed against him. The legal effect of Section 13(1)(e)
is that it is for the prosecution to establish that the
accused was in possession of properties
disproportionate to his known sources of income but
the term "known sources of income" would mean the
sources known to the prosecution and not the sources
known to the accused and within the knowledge of the
accused. It is for the accused to account satisfactorily
for the money/assets in his hands. The onus in this
regard is on the accused to give satisfactory
explanation..."
In the present case, the prosecution succeeded in
establishing that the accused were in possession of
assets hugely disproportionate to their known sources
of income. The prosecution had successfully discharged
its initial burden. Thereafter, it was for the accused to
satisfy the Court, through cogent evidence, that the
assets are from legitimate sources. Upon perusal of the
material on record and considering the concurrent
findings of the Courts below, I am of the opinion that
the accused miserably failed to discharge this burden
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of satisfactorily explaining the source of income behind
the 'disproportionate assets'.
46. The law, thus makes it clear that the 'known sources of
income' would mean the sources known to the prosecution
and not the sources known to the accused and within the
knowledge of the accused. The accused had to satisfy the
Court through cogent evidence that the assets are from
legitimate sources and had been informed to the prescribed
authority.
47. Here in this present matter, under Section 13(1)(e) of
the P.C. Act, the accused has failed to prove that the amount
received as gift by the wife had been intimated to the High
Court in accordance with the provisions of law, Rules or
orders applicable to the appellant. The receipt of the money
as gift, the purchase of the property in the name of the wife,
and the sale of the property to Dinubhai Solanki had not been
proved, to have been informed to the High Court by a prior
sanction. Explanation under Section 13(1)(e) of the P.C. Act
further clarifies that for the purpose of section 13(1)(e) the
meaning of income would be the income received from lawful
source and such receipt has been intimated, as provided by
law, rules or orders for the time being applicable to a public
servant. The phrase "known source of income", in Section
13(1)(e) has clearly laid the emphasis on the word "income". It
would be primary to observe that qua the public servant, the
income would be what is attached to his office or post,
commonly known as remuneration or salary.
NEUTRAL CITATION
R/CR.A/725/2011 JUDGMENT DATED: 16/04/2026
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48. In the analysis of the evidence of witnesses and law
under the provision of section 13(1)(e) of the P.C. Act, with its
explanation, the appellant has miserably failed to discharge
his burden, which got shifted to him after the prosecution had
examined the witnesses to prove that the amount received as
gift was legal and the purchase of the property in the name of
wife was from the legal source, known to the High Court. The
appellant failed to prove that the gift transaction, purchase
and sale transaction of house was informed to the High Court
for prior sanction. The prosecution had proved the case
beyond reasonable doubt. The judgment of conviction and
sentence of the Trial Court under Section 13(1)(e) read with
section 13(2) of the P.C. Act does not require any interference
of this Court.
49. In the result the appeal is dismissed. The judgment of
conviction and sentence dated 30.05.2011 passed by the
learned Additional Sessions Judge, Ahmedabad (Rural)
Mirzapur, Ahmedabad in Special A.C.B. Case No.1-2/2005 is
upheld. Bail bond stands cancelled.
49.1 The appellant-accused to surrender before the jail
authority within fifteen days of this judgment, to serve the
sentence. Record and Proceedings be sent back to the
concerned Trial Court forthwith.
(GITA GOPI,J)
Pankaj/1
