State Of Gujarat vs Mehulbhai Ramanlal Desai & 1 Others

A. P. Thaker, J

The appellant - State has preferred this appeal under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order dated

15.07.2005 passed by the learned Special Judge, Fast Track Court No.3, Valsad (hereinafter be referred to as “the Trial Courtâ€) in Special

Corruption Case No.45 of 2002, whereby the learned Special Judge, Fast Track Court No.3, Valsad has acquitted the accused from the offences

punishable under Sections 7, 12, 13(1)(d), 13(2) of the Prevention of Corruption Act (hereinafter be referred to as “the Actâ€​).

Brief facts of the prosecution case is that in the year 1998, the accused No.1 was working as Typist-cum-Clerk in United India Insurance Company

Limited at Valsad and he was a public servant. It is alleged that the complainant Maganbhai Dahyabhai Solanki filed a claim of insurance for death of

one cow to the United India Insurance Company Limited as the cow died during treatment in the hospital. It is alleged that on 26.05.1998, the

complainant went to the office of the Insurance Company and also provided buckle number of the cow along with the papers and surrendered the

policy as well as buckle to the Insurance Company. It is alleged that at that time, accused No.1 assured the complainant to pay Rs.12,000/- after a

week and directed the complainant to collect the cheque from him. It is alleged that though, the complainant visited the accused No.1, he did not pay

any cheque and instead he demanded Rs.1500/- for the cheque. It is alleged that as the complainant was not desired to pay any amount of bribe to the

accused, he lodged the complaint before ACB Police Station, Valsad.

2.1 On receipt of the complaint, the ACB Office has carried out preliminary panchnama in presence of two panshas and, thereafter, they led trap at

the office of accused No.1 and at that time, at the accused No.1 demanded amount from the complainant in presence of panch No.1 and at that time,

accused No.2 was also there. It is alleged that at the instance of accused No.1, the complainant tendered bribe amount to accused No.2 who

accepted the same and when, the complainant made a signal thereupon raiding party along with panch No.2 rushed to the place and, therefore, second

part of panchnama was prepared and both the accused came to be arrested.

2.2 After completion of investigation, the charge-sheet was filed before the Special Court and the learned Special Judge has framed the charge

against the accused wherein they have denied having committed any offence and pleaded for trial. Accordingly, the trial took place wherein the

prosecution has examined six witnesses and produced certain documentary evidence. Thereafter, further statements of the accused under Section 313

of the Criminal Procedure Code were recorded by the learned Trial Court wherein the accused have denied having demanded or accepted any

amount and pleaded that they are innocent. The accused side has neither examined any defence nor examined themselves.

2.3 After completion of the trial and having heard both the sides, the Trial Court has acquitted the accused from the charges levelled against them.

Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred the present appeal.

Heard Mr.K. P. Raval, learned Additional Public Prosecutor for the appellant â€" State and Mr.Rushabh Shah, learned advocate for the

respondents at length. Perused the evidence on record as well as impugned judgment and order of the Trial Court.

While reading the entire evidence on record, Mr.K. P. Raval, learned Additional Public Prosecutor for the appellant â€" State has vehemently

submitted that in this case, the prosecution has proved three ingredients of offences viz. demand, acceptance and recovery of the amount from the

accused. While referring to the evidence of the complainant and panch No.1, Mr.Raval has submitted that from the evidence of both the witnesses, it

is crystal clear that accused No.1 has demanded Rs.1500/- from the complainant in presence of panch No.1 and he has directed the complainant to

pay the amount to accused No.2 and at his instance, accused No.2 has accepted the amount and the same has been recovered from accused No.2 as

per the panchnama and the version of the police witnesses. According to Mr.Raval, there is cogent and reliable evidence on record to establish the

fact that accused No.1 has demanded and accepted the amount through accused No.2 and accused No.2 has also involved in the said offence and the

same has been proved beyond reasonable doubt by the prosecution. Mr.Raval has submitted that the Trial Court has miserably failed to appreciate the

entire evidence in its true perspective and committed an error of law and facts. He has submitted that the impugned judgment and order is bad in law

and, therefore, the same deserves to be quash and set aside and to convict and punish the accused for the said offence. He has prayed to allow the

present appeal.

Mr.Rushabh Shah, learned advocate for the respondents has vehemently submitted that in this case, the prosecution has miserably failed to prove all

the three ingredients which are necessary for conviction in the cases of corruption. He has submitted that the Trial Court has properly appreciated the

entire facts and circumstances of the case and properly acquitted the accused from the charges levelled against them. According to him, there is no

illegality or perversity in the impugned judgment and order of the Trial Court and the same is not required to be interfered with by this Court. He has

prayed to dismiss the appeal.

It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the

order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the

accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be

presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption

of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of

acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not

ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived

at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are

possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court

has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a

manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate

the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the

commission of the crime with which he is charged.

It is well settled by the Apex Court in the case of A. Subair Vs. State of Kerala, reported in (2009) 6 SCC 587, while dwelling on the purport of the

statutory prescription of Sections 7 and Section 13(1)(d) of the Act ruled that the prosecution has to prove the charge under beyond reasonable doubt

like any other criminal offence and that the accused should be considered innocent till it is established otherwise by proper proof of demand and

acceptance of illegal gratification, which are vital ingredient necessary to be established to record a conviction.

In the case of State of Kerala and another Vs. C. P. Rao, reported in (2011) 6 SCC 450 the Apex Court reiterating its earlier dictum, vis-a-vis the

same offences held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of

bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

In the recent enunciation by the Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in the

case of B. Jayaraj v. State of A.P, reported in AIR 2014 SC (Suppl.) 1837 in unequivocal terms that mere possession and recovery of the currency

notes from an accused without proof of demand would not establish the offence under Section 7 as well as Section 13(1) (d)(i) and (ii) of the Act. It

has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a

public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an

indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a

presumption as envisaged therein it has been held that while it is extendable only in respect of the offence under Section 7 and not the offence under

Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official

act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held

that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable or cogent evidence beyond

reasonable doubt as has been submitted by Mr.Raval, learned Additional Public Prosecutor, to convict the accused.

It appears from the evidence of the complainant Maganbhai Dahyabhai Solanki, P.W.1 at Exhibit 17 that he is author of the alleged demand of

Rs.1500/- by accused No.1 for clearing his insurance for the death of cow of his son. It appears from his evidence that when he approached ACB

Police, he has no money and, therefore, the police inspector has given him Rs.1500/- and for that purpose, some writing was made and at that time,

there was duration of three hours and there was nobody present except himself and other two persons. Regarding demand, it appears from the

evidence of this witness that in the hotel, at the instance of Mehulbhai, he has handed over Rs.1500/- to Kusumbhai and, thereafter, Kusumbhai, after

counting it, handed over the same to Mehulbhai. At that time, as he has made signal, the police inspector and other staff members came there and

amount of Rs.1500/- was recovered from the pocket of Mehulbhai. This fact has been narrated by him in his chief-examination, whereas, in his cross-

examination, he has stated that he has borrowed Rs.1500/- from the Police Inspector, ACB. He has stated that when he and panch No.1 met in the

office of accused No.1, there was no talk regarding the demand and, thereafter, they went to the hotel. He has also stated that at that time, Mehulbhai

demanded amount and at his instance, the said amount was given to Kusumbhai and Kusumbhai has handed over it to Mehulbhai and Mehulbhai kept

it in his shirt pocket. According to his version, at that time, he alone went to the ground floor and both the panchas stayed in the hotel and, thereafter,

as he was called by ACB Inspector, he went on third floor and at that time, both the accused were in handcuffs and, thereafter, they all were brought

to the office of the ACB and some writing was prepared. According to him, before eight months of trap, Mehulbhai demanded the amount from him,

but he has not given any complaint to higher officer. He has admitted that he neither knew Kusumbhai nor any talked with him.

On perusal of the evidence of panch witness, Ajitkumar Rameshbhai Patel at Exhibit 19 who has alleged to be with the complainant, it transpires

that at the time of demand and acceptance of the bribe amount, he was not with the complainant, but he was six feet away from them. According to

him, one person has told the complainant that if he brought the amount then he directed to make it, that too, his friend and he was near the window of

the hotel and after tendering the amount, the complainant went away from the hotel and Raul Saheb of ACB led raid there. He has stated that the

panchnama was prepared in the hotel and other panch Hemantbhai was there with him and, thereafter, they all went to the office of ACB where

nothing was carried out.

14.1 During his cross-examination, he has admitted that he being a government servant, he is afraid of ACB. According to him, the accused were six

feet away from him and till the police came, he was standing near the window of hotel i.e. six feet away from him. According to him, the amount was

found from the friend of Mehulbhai and panchnama was dictated by the officer of the ACB. He has stated that both the accused were in handcuffs

and went to the office of ACB and the shirt of accused No.2 was seized in the doctor house itself. He has stated that neither the amount was

recovered from the pocket of accused No.1 nor his shirt was seized. He has stated that he was on terrace of the hotel. He has admitted that

Mehulbhai told the complainant that his cheque would not be available within 2 to 4 days. He has admitted that in the office of the Insurance

Company, accused Mehulbhai has not made any demand of money from the complainant. He has stated that he was standing near the widow of hotel

i.e. six feet away from the complainant and the accused and he was there for ten minutes. He has admitted that he was instructed by the ACB to be

with the complainant and to hear and see what is happening between them. He has stated that when he was standing near the window, without

meeting him, the complainant went to the ground floor and, thereafter, he did not come in hotel. According to him, both the accused and he himself and

officer of the ACB went to the office of the Insurance Company, till then, the complainant was not returned there and, thereafter, the complainant

directly went to the office of the ACB. According to him, the experiment of ultra-violate lamp was not carried out in the office of the Insurance

Company nor it was carried out in the hotel. According to them, they were called after three days and they were directed to sign the panchnama and

both the panchas have signed therein and at that time almost one and half hours was spent in writing such panchnama. He has admitted that he was

not knowing accused No.2.

On perusal of the evidence of other panch witness Hemantbhai Chhibubhai Patel, P.W.3 at Exhibit 22, it appears that the facts remains that he

was panch and whatever stated by him is in the nature of hearsay. However, he has specifically stated that the panchnama was dictated by the

officer of the ACB and he has not dictated anything and the entire panchnama was prepared in the office of Insurance Company and it was not

written in the hotel. According to him, Raul Saheb, Police Inspector ACB, was with him till he was in the office of the Insurance Company and he

stayed in the doctor house, till then, he did not go to the hotel. He has stated that it is not so happened that he has collected the amount from the

pocket of accused No.2. According to him, the version of the panchnama is false one.

Now, so far as the evidence of the police witnesses are concerned, they have supported the version of the prosecution.

On perusal of the entire evidence on record, it clearly transpires that there is no clear cut evidence regarding demand of any illegal gratification by

both the accused. Mere recovery is only made from accused No.2, but for that purpose also, there is contradiction in the evidence of both the panchas

and the complainant himself. It transpires that the acceptance of the amount is also doubtful. The fact which emerges from the evidence on record

does not inspire any confidence for connecting the accused with the alleged crime. There is contradictory evidence on record as stated hereinabove.

The ingredients of demand and acceptance are missing in the present case. The evidence on record is not sufficient to connect the accused with the

alleged crime.

On perusal of the impugned judgment and order of the learned Special Judge, it clearly transpires that the learned Special Judge has taken into

consideration all the facts while acquitting the accused. It also appears from the impugned judgment and order that the learned Special Judge has

appreciated the entire evidence evidence in its true perspective and has reached to the right conclusion in acquitting the accused. The impugned

judgment and order of the learned Special Judge is not perverse one and it is based on the evidence on record. The same does not warrant any

interference at the hands of this Court and the same is sustainable in the eyes of law. This Court is in complete agreement with the impugned

judgment and order of the learned Special Judge.

For the foregoing reasons, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned

judgment and order dated 15.07.2005 passed by the learned Special Judge, Fast Track Court No.3, Valsad in Special Corruption Case No. 45 of 2002

is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.