Thakkar Rameshkumar Mafatlal vs State of Gujarat

Z.K. Saiyed, J.—The present Appellant has preferred this appeal u/s 374 of the Code of Criminal Procedure, against the judgment and

order of conviction and sentence dated 25.5.2001 passed by the learned Special Judge (ACB), Mehsana in Special (ACB) Case No. 14 of 1993,

whereby, the learned Judge has held guilty the Appellant under Sections 7 and Section 13(2) of the Prevention of Corruption Act (for short ""Act"")

and sentenced conjointly for both the offences to undergo R.I. for one year and to pay a fine of Rs. 500/- i/d to further undergo S.I. for 15 days.

The brief facts of the prosecution case is as under:

It is the case of the prosecution that the Appellant was serving as Unarmed Police Constable, having Buckle No. 2065 at Mehsana Taluka Police

Station. On 20.6.1993, P.I. Mr. Rana of the aforesaid Police Station took three persons namely Raghuji, brother of complainant Sardarji Bhemaji,

Sartanji Prajapati and one lady Urmilaben Laljibhai Patel in custody as they were found on the highway in dark hours of night. Therefore, the

complainant and one Rabari Kanjibhai Nathabhai came to Mehsana for necessary inquiry at Taluka Police Station, Mehsana and they saw Raghuji

and Sartanji were in police lock up. Thereafter, they contacted Appellant - accused and at about 4 p.m., the complainant and said Kanjibhai went

to the police station and again contacted the accused and said Kanjibhai told that they had come only for the release of Raghuji. Therefore, the

accused told the complainant to give him Rs. 500/- for release of Raghuji and it is also alleged that the Appellant told the complainant that without

accepting Rs. 500/-, he would not release Raghuji and he told the complainant to come with the amount. As the complainant and said Kanjibhai

were not willing to pay the amount of Rs. 500/- to the accused and, therefore, they approached ACB Police Station and lodged complaint against

the accused. After completing the formalities, preliminary part of panchnama was drawn. Two panchas were called and necessary instructions

were given to the complainant by the ACB party. The complainant along with panch and raiding party members proceeded to the Mehsana Taluka

Police Station. On reaching there, the complainant, Kanjibhai and panch No. 1 proceeded to Taluka Police Station situated on the 3rd Floor of the

building and these three persons went inside the Taluka Police Station. They contacted the accused and at that time, the accused was doing some

other work. After about 10 minutes, the accused went outside the chamber and he was being followed by the complainant, said Kanjibhai and

panch No. 1. It is alleged that the accused thereafter came with Raghuji and while standing in the corridor, the demand was made and the amount

was passed on. Initially, the amount of Rs. 400/- was offered, however, the accused insisted for Rs. 500/- and, therefore, Rs. 100/- was later on

passed on and that is how the amount of Rs. 500/- was given to the accused. According to the prosecution, the prearranged signal was given and

immediatley the raiding party rushed upstairs and the accused threw those currency notes from the 3rd Floor balcony to the ground floor and the

notes were found lying on the ground.

Thereafter, the complaint was registered against the Appellant. Statement of the complainant and other witnesses were recorded. Necessary

sanction was obtained from the concerned Authority and after the investigation was over the charge-sheet was filed against the Appellant u/s 7 and

13(2) of Act.

Thereafter, the charge was framed against the Appellant at Exhibit 12. The Appellant - accused pleaded not guilty to the charge and claimed to

be tried.

In order to bring home the charge levelled against the Appellant- accused, the prosecution has examined the witnesses Viz. P.W. 1 Sardarji

Bhemaji, complainant at Exhibit 15, P.W. 2 Kanjibhai Nathabhai Rabari at Exhibit 17, P.W. 3 Bharatkumar Jayantilal Trivedi at Exhibit 18 and

P.W. 4 Gajendrasinh Pratapsinh Puvar, P.I. ACB at Exhibit 24 and also relied upon the various documentary evidence.

Thereafter, after examining the witnesses, further statement of the Appellant-accused u/s 313 of Code of Criminal Procedure was recorded in

which the Appellant-accused has denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge vide impugned judgment and

order dated 25.5.2001 held the Appellant - accused guilty to the charge levelled against him and convicted and sentenced the Appellant accused,

as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge

(ACB), Mehsana, the present Appellant has preferred this appeal.

Heard Mr. K.B. Anandjiwala, learned advocate for the Appellant and Mr. H.L. Jani, learned APP for the Respondent-State.

Mr Anandjiwala, learned advocate, appearing for the Appellant submitted that the judgment and order passed by the learned Special Judge is

erroneous, without appreciating the facts and evidence on record. Even there was no specific demand on the part of the accused and the

acceptance of money was not proved by the prosecution as per the provisions of the Prevention of Corruption Act. He submitted that the

complainant was declared hostile and at the police station, as per the evidence of said witness complainant P.W. 1 at Exihibit 15, some policeman

told him that for the purpose of releasing Raghuji, Rs. 500/- was to be paid by way of surety and as the complainant had not possessed that much

amount, at the instance of Kanjibhai, both of them went to the ACB office. After treating him hostile, he deposed that he did not remember as to

whether in his complaint the policeman, who demanded the money was named as Rameshbhai Thakkar, Appellant accused. Learned advocate

further submitted that therefore, whatever is deposed by the complainant with regard to the demand, is required to be accepted as the evidence.

The demand of Rs. 500/- was made for the purpose of taking surety and not towards illegal gratification, other than the procedural aspects.

Therefore, from the evidence, it does not transpire that the object behind the demand was illegal and the amount which was alleged to have been

demanded was towards illegal gratification, but the said amount of Rs. 500/- was as surety. Learned advocate Mr. Anandjiwal further submitted

that P.W. 2 Kanjibhai Nathabhai Rabari at Exhibit 17, was present along with the complainant and this witness is not treated hostile by the

prosecution. This witness deposed that after reaching to Taluka Police Station, they contacted the Head Constable with regard to Raghuji.

Thereafter, some talks had taken place with regard to the bail amount and the amount of bail Rs. 500/- was demanded. Thereafter, this witness

thought to give much amount Rs. 500/- was unwise and, therefore, at the instance of one Ramjibhai, the complaint was lodged before ACB Office.

At the time, when the complainant and said Kanjibhai visited the Police Station, the accused was not present there. He submitted that even this

witness stated in cross-examination that it was not true that he had stated before the police in is statement that PSO told to give Rs. 500/- to the

accused. Therefore, the learned advocate submitted that looking to the evidence of this witness also it cannot be said that the demand of Rs. 500/-

made by the accused is proved by the prosecution. It becomes crystal clear from the evidence of both these witnesses that the PSO - Head

Constable has asked the complainant about the bail amount of Rs. 500/- for releasing the Raghuji on bail and not for any other purpose. Learned

advocate further submitted that in the present case, the most vital part of the evidence in corruption cases i.e. the demand of illegal gratification is

lacking and is not established and the whole case is failed. Learned advocate further submitted that in the present case, it is doubtful as to whether

Sardarji is the complainant and the complaint has been recorded as per his say. According to the evidence of complainant Sardarji, when he went

to ACB Office, along with him, one Kanjibhai, Ramjibhai and other persons were present and Ramjibhai had a talk with the officer in the ACB

office. In cross-examination, the P.W. 1 stated that in Police Station when he had gone for the first time, he sat by the side while Ramjibhai had a

talk with the policeman and this witness had some quarrel with the policeman in past. Even the arrangement of the amount was made by Ramjibhai.

Learned advocate Mr. Anandjiwala further submitted that similarly, Kanjibhai Nathabhai, P.W. 2 examined at Exhibit 18 stated in his cross-

examination that at the ACB office, Ramjibhai went inside and met PI ACB and he had a talk with PI. Therefore, it becomes clear that the

complaint against the accused was lodged at the instance of Ramjibhai. From the evidence of P.W. 3 Bharatkumar Jayantilal Trivedi, the demand,

which was made on the part of the accused is not at all established. He also read the oral evidence of P.W. 4 - Gajendrasinh Pratapsinh Puwar at

Exhibit 24. Therefore, learned advocate submitted that the judgment and order of conviction and sentence passed by the learned Special Judge is

required to be dismissed by allowing this Appeal.

Mr. Advocate has also relied upon a decision in the case of Banarsi Dass Vs. State of Haryana, and contended that in absence of proof of

demand,the prosecution has failed to prove its case beyond reasonable doubt and the judgment of the trial Court be quashed and set aside and the

Appellant is required to acquitted from the charges alleged against him.

As against this, Mr H.L. Jani, learned APP appearing for the Respondent - State has supported the judgment and order passed by the learned

Special Judge. He has contended that the learned Judge has not committed any error in holding the Appellant guilty of the charges levelled against

him. He has contended that looking to the evidence of the complainant, Panch witness and the Trapping Officer, the demand and acceptance of

bribe amount by the accused and recovery thereof is proved and, therefore, no interference is called for by this Court. He has contended that the

learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper judgment and order of conviction.

Therefore also, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed.

I have gone through the impugned judgment and order passed by the learned trial Judge and oral as well as documentary evidence produced

on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the Appellant. I have

also considered the submissions advanced by the parties.

From the perusal of the oral evidence of P.W. 1 - complainant, it appears that he has turned hostile before the learned Special Judge. Said

witness, during the course of his deposition, has stated that after giving the money to the accused, he had no knowledge about the acceptance of

bribe amount by the accused and even where the accused put the said bribe amount and he had not known even the name of the accused. In his

cross-examination, it is stated that said Ramjibhai is a leader of the village and it is very well reflected that the complainant has tried to put the

amount of Rs. 500/- in the pocket of the accused and at that time, the accused told that what he was doing and pulled the hand of the accused and

the accused had not accepted the money, therefore, the currency notes were thrown on the ground. From the evidence of P.W. 2 Kanjibhai

Rabari at Exhibit 17, it appears that this witness had no knowledge where the accused put the said amount of bribe. Cross-examination of this

witness shows that Ramjibhai had some talk with ACB Officer and thereafter, the signature of the complainant was taken on the complaint. He has

also stated that when the amount, was given to the accused, at that time, the accused told the complainant that what the complainant was doing and

the accused had not accepted the money, and the amount of bribe was found on the ground. From the cross-examination of this witness, nothing

come out about demand and acceptance on the part of the accused and it is not transpired that the amount which was given to the accused, was

bribe money or for other purpose. I have also perused the oral evidence of P.W. 4 - Gajendrasinh Pratapsinh Puwar at Exhibit 24 and from his

evidence, it has come out that the marks of anthracene powder were found on the fingers, tip of the right hand and pent of the accused, but it is not

established that the said money was accepted by the accused on his own, because the currency notes were found on the ground. It is doubtful as

to whether the accused demanded the money from the complainant or the complainant at his own put the money in the pocket of the accused or

the accused accepted by his hand the said money.

I have gone through the evidence produced before the learned Special Judge, but, it has not come out from the evidence that the anthracene

powder was found from the body parts like finger, tips of hand and the cloth of the accused and even in the experiment of the ultra violet lamp, it

has not been found that on the currency notes, anthracene powder was found. In this case, the demand is not at all proved by the prosecution

against the accused and so far as the recovery is concerned, the same is not found from the physical possession of the accused and, therefore,

mere allegation levelled against the accused by the complainant about the demand is not sufficient to convict the present Appellant - accused and

hence, this appeal deserves to be allowed.

I have perused the statement of the Appellant - accused recorded u/s 313 of the Code of Criminal Procedure and the probable defence is

established by the present Appellant beyond reasonable doubt. In the instant case, the complainant has turned hostile and evidence of other

witnesses do not corroborate with each other, therefore, the demand aspect is not established. I have perused the complaint and other evidence. It

appears that the said complaint against the accused was lodged at the instance of Ramjibhai who is a leader of the village. It is also not established

that the money, which was asked from the complainant was for bail purpose or for any other purpose and, therefore, the demand and acceptance

on the part of the Appellant is not proved. As the basic aspects of demand and acceptance are not proved, it can be said that the accused was

falsely implicated in the case. Merely the marks of the anthracene powder on the hand of the Appellant do not prove that the said money was for

bribe purpose or the Appellant himself accepted, by his own, the money and put it in the pocket of his pent. In the latest decision of the Supreme

Court in the case of Banarsi Dass Vs. State of Haryana, the Hon''ble Supreme Court has observed that mere proof of recovery of bribe money

from accused is not sufficient to prove the offence. In that view of the matter, I am of the opinion that so far as the offence of bribery is concerned,

the demand and acceptance of money is required to be proved beyond reasonable doubt and mere recovery of bribe money from accused is not

sufficient to prove the offence and to hold the person guilty. Presumption cannot be raised when demand is not proved in this case. Therefore, in

absence of any evidence regarding the demand, mere alleged recovery is not sufficient to convict the present Appellant and hence, this appeal

deserves to be allowed. The ratio laid down in aforesaid decision is squarely applicable to the facts of the present case because in the case on

hand, the demand is not proved and the complainant had not stated about the demand made by the accused and, therefore, mere alleged recovery

is not sufficient to prove the case against the Appellant accused. Even the recovery is also not proved as per law. Further, it has come on record

that the complaint is filed at the behest of one Ramjibhai, who hatched conspiracy and colluded to falsely arraign the Appellant as an accused in

false trap case.

In view of the above, the impugned judgment and order dated 25.5.2001 passed by the learned Special Judge (ACB), Mehsana in Special

(ACB) Case No. 14 of 1993 is quashed and set aside and the Appellant - accused is hereby acquitted from all the charges alleged against him.

Bail bonds, if any, stands cancelled. Fine, if any paid, shall be refunded to the Appellant. R & P, if received, be sent back to the trial Court,

forthwith.