ORAL JUDGMENT

1. The appellant, at the relevant time, in the year 1993-94, was posted as Circle Inspector in the office of Taluka Panchayat, Khambhalia. He was put on trial for the commission of the offences under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred ‘the Act’). The learned Special Sessions Judge, Jamnagar, in Special Case No. 18 of 1993 passed judgment and order of conviction and sentence dated 7th June, 1997, whereby the learned Sessions Judge was pleased to convict the appellant-accused under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and awarded sentence to the appellant to suffer rigorous imprisonment for 2 years and to pay fine of Rs. 500/-, i/d, to further undergo simple imprisonment for 3 months. The appellant was also ordered to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, i/d to suffer simple imprisonment for three months for the offence punishable under Sections 7 of the Prevention of Corruption Act. All the sentences shall run concurrently.

2. According to the prosecution, the complainant at the time of filing of FIR, was residing in village Sagar Nagda, but in fact, at that time, he was at Bhivandi, District: Thane. He had ancestral land property in the joint ownership of three persons viz. Veljibhai and Meghjibhai (brothers of the complainant) and the complainant himself. Brothers of the complainant died and in the life time of Meghjibhai, said land was partitioned on the basis of mutual understanding. Even then in the revenue record, it continued to remain in the name of Meghjibhai and for getting the note as to the inheritance of the said land incorporated in the revenue records, the complainant met the accused, who was Talati-cum-Mantri, on 14.4.1993 at about 4:00 p.m, residing at Khambhalia. The accused demanded Rs. 1350/- by way of illegal gratification. The complainant requested to reduce the amount, but the accused told that out of the said amount of Rs. 1350/-, he would have to give Rs. 1000/- to the Mamlatdar. Ultimately, the complainant agreed to the demand of the accused and paid said amount of Rs. 1350/-. On 16.4.1993, when the complainant went to the house of accused at about 4:00 p.m, the complainant told the accused that he had forgotten to tell on that day that he would have yet to give Rs. 300/- for getting the name of his nephew Virchand incorporated in the revenue record. The complainant told him that he do not have Rs. 300/- with him and therefore, the accused asked him to come on the next day with Rs. 300/- in the noon hours and further told him that he would keep ready the relevant record about the inheritance rights. Therefore, the complainant decided to lay the trap and approached the ACB Office and filed complaint. On 17.4.1993 at about 2:35 p.m the raiding party went to Khambhalia and reached at about 8:00 p.m Thereafter, the complainant and panch No. 1 went to the house of the accused and the accused told that all papers were ready and he demanded Rs. 300/- from the complainant. The complainant asked him to refund some amount to him and therefore, the accused gave Rs. 50/- back to the complainant. The accused kept three notes of Rs. 100/- (trap amount) between two registers. The first part of the trap panchnama at Exhibit 16 was drawn by P.I Mavani on 17.4.1993 between 12:35 and 2:35 p.m at the ACB office Jamnagar and second part was drawn on 18.4.1997 at about 1:15 a.m

3. After usual investigation, the Investigating Agency submitted the charge-sheet. In order to bring home the charge, prosecution had examined the witnesses and got exhibited a large number of documents. The witnesses examined by the prosecution viz. PW-1, Karamsinh Punjabhai Shah, complainant at Exhibit 12, whereas PW-2, Digvijaygiri Bhupatgiri Gosai, serving as Industrial Supervisor in office of Jill Udyog, panch witness at Exhibit 13, PW-3, A.S Goswami, Jr. Clerk serving in District Panchayat, at Exhibit 17, P.W.4 - Ghanshyamsinh Bhujrajsinh Jadeja, Police Inspector of ABC Office Exhibit 18, P.W 5 - Ghanshyamsih Gagubha Jadeja, serving at ACB office at Exhibit 20, P.W No. 6 - Manubhai Hemubhai Jadeja, serving as Revenue Circle Officer, at Exhibit 23, P.W No. 7 - Priykant Vanravan Vadhvana, Sr. Clerk at Jilla Panchayat, Exhibit 25. Thereafter, the documentary evidence viz. list of Muddamal at Exhibit 9, D.E List at Exhibit 10, Yadi at Exhibit 14, 15 and 21, Panchnama Exhibit 16, Copy of service book at Exhibit 19, FIR at Exhibit 21, letters at Exhibit 26 to 28 were examined. The appellant was put on trial, where he abjured his guilt and claimed to be tried and the learned Judge has recorded the statement of the present appellant-accused under Section 313 of the Code of Criminal Procedure, 1973.

4. The trial court on appreciation of the evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts. While doing so it considered the defence version and rejected the same. Accordingly the appellant was convicted and sentenced as above by the trial court 5. Learned senior advocate Mr. K.J Shethna appearing on behalf of the appellant submitted that the judgment and order is bad in law and against weigh of evidence. Even charge and examination of the accused are not in conformity with the provisions of the Code. He further submitted that the prosecution has come out with the case that the relevant entries and records were prepared on 17.4.1993 at about 10:15 p.m or at the time the hush monies were accepted by the accused. 2 forms dated 6.3.1993 as also application dated 14.12.1992, the Rozkam prepared on 16.12.1992 the notice under Section 135 D of the Bombay Land Revenue Code, death certificate of Meghji Punja issued by the Bombay Municipal Corporation were seized. The prosecution has chosen to examine P.W 6 Manubha Premubha Jadeja Exhibit 23 and he had shown the register, muddamal, Article 3 and entry No. 580 recorded therein on 16.12.1992 by the accused for bringing the heirs of the deceased on record and Article 6 of Rojkam in matter of entry No. 580, which is in the handwriting of the accused. Article 7, Section 135 D notice is in the handwriting of the accused and the both are dated 6.12.1992 All these three documents were seen and were certified by him of 28.12.1993 At that time, the accused was a Talati-Cum-Mantri and it is his duty to give the proof on the basis of this entry. Articles Nos. 13 and 14 are the forms into which the details are entered in the handwriting of the accused. In his cross-examination, it is stated that he cannot say whether the accused took over the charge as the Circle Inspector on 11.3.1993 but he has an idea that he got a promotion. The accused handed over his charge to Bharatbhai Joshi and the village forms No. 6 & 8 are written and signed by Talati. Mr. Shethna, learned senior counsel submitted that the witness P.W 6 Karansinh Jadeja Exhibit 23 is not star witness and he has not uttered any single word regarding demand and acceptance. It is very much clear from the evidence of this witness that the accused has never made any demand and even has not accepted any amount of bribe.

6. Mr. Shethna, learned senior counsel has read the oral evidence of P.W 2 Digvijaygiri at Exhibit 13 and submitted that the said witness supported the case of the prosecution due to fear and therefore, his evidence is not reliable. He further submited that from the oral evidence of the witnesses, the fact about the presence of anthrance powder is not proved and even the aspects of demand and acceptance are not proved beyond reasonable doubt, therefore, conviction and sentence imposed upon the accused, is required to be quashed and set aside. Even the panch witness No. 2 is unable to prove the contents of the panchnama Exhibit 16 and there is no any corroborative piece of evidence, which can be said to have proved the case against the accused. He further submitted that the trapping officer, who expired, was not examined by the prosecution. He has read the oral evidence of P.W 5 Ghanshyamsinh at Exhibit 20 and submitted that even this witness is not reliable witness as he is Police man and also member of trapping party and therefore, he can be considered as interested witness. Even looking to the documentary evidence produced before the learned Sessions Judge, it is not at all proved beyond reasonable doubt that there was demand and acceptance on the part of the accused. The accused made out sufficient defence in the statement recorded under Section 313, before the learned Sessions Judge, but learned Sessions Judge has not properly appreciated his defence. In view of the above submission, he submitted that the judgment and order of conviction and sentence is required to be quashed and set aside by allowing this appeal.

7. Learned APP Mr. R.C Kodekar for the State, vehemently opposed the submissions made by the learned senior counsel Mr. Shethna. He has read the charge at Exhibit 7 and submitted that originally the demand was made by the present appellant of Rs. 300/- on 16.4.1993 and said amount was accepted by him on 17.4.1993 The contents of the complaint are sufficiently proved against the accused and the witnesses have supported the case of the prosecution. He also read the evidence of P.W 2 Digvijaygiri at Exhibit 13 and submitted that this witness is public servant and from his evidence also, the prosecution has proved the case against the accused. The said witness stated that the witness and the complainant went at the residence of the accused, and after 45 minutes, the accused came there. There were two registers on the table and some forms were also filled up and thereafter, the forms were handed over to the complainant and the accused demanded Rs. 300/-, in form of bribe. The complainant made request to refund some amount from it and therefore, Rs. 50/- was given by the accused to the complainant. The accused put the said three currency notes of Rs. 100/- between the two registers and thereafter, the complainant gave signal to the members of raiding party and the members of raiding party went there and upon inquiry, the currency notes were seized. The trap officer made experiment in the ultra violet lamp and the anthracene powder was found from the finger, tips and even from the register and pocket of the appellant accused. He further submitted that P.W No. 5 Ghanshyamsinh at Exhibit 20, stated that due to death of trapping Officer Mavani, he was not examined. Therefore, it cannot be said that non-examination of the said officer, is fatal to the case of prosecution. The writing of the said trapping officer was proved by this witness. P.W 5, who is eye witness, was present at the time of raid, and he stated that when the signal was given by the complainant, he also entered into the house of the accused with police inspector Mr. Mavani and other members of raiding party and his presence and signature of the panchas was obtained at Exhibit 21. He further submitted that the contents of panchnama is also proved from the oral evidence of this witness. In cross-examination of this witness, the presence of dots of anthracene powder was found on the fingers and thumb of the right hand of the accused. Even from the register also the anthracene powder was found in ultra violet lamp. From the first part of the panchnama, it is proved that the trap amount was recovered from the possession of the present appellant. He denied the submissions about sanction and submitted that it was given after application of mind and it cannot be said to be defective sanction. He submitted that judgment and order passed by the learned Sessions is required to be confirmed and the appeal may kindly be dismissed.

8. Mr. Kodekar has also contended that looking to the facts of the case presumption under Section 20 of the P.C Act is required to be drawn against the present appellant - accused. Section 20 of the P.C Act reads as under:

“20. Presumption where public servant accepts gratification other than legal remuneration -

(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.”

9. Heard the parties and perused the record. It appears from the judgment that learned Sessions Judge has specifically made attempt to frame the charge in connection of the demand and acceptance. From the oral evidence of the P.W 1, it appears that his evidence is totally doubtful. In such type of circumstances, when material witnesses are examined then in that case, the evidence of material witnesses are required to be considered. I have perused the oral evidence of the P.W.2 who is examined at Exhibit 13, serving as Industrial Supervisor in District Industry Department. He is a public servant and even from his cross-examination, the defence has failed to prove that he is interested witness and he has animosity with the accused and therefore, the appellant was booked in the present case. From the perusal of the evidence of this witness, it is true that he is star witness of this case being public servant. He has explained the contents of panchnama by way of oral version. From the cross-examination of this witness, the defence has failed to establish that the prosecution has failed to prove the contents of the demand made by the appellant. From the perusal of oral evidence of this witness, it is proved that the demand was made by the present appellant accused. The P.W 1 stated in his oral evidence that the amount of Rs. 300/- was accepted by the accused and in connection with the request made by the complainant, P.W 1, for refund of Rs. 50/-, the same was returned back to the complainant by the accused. So the conduct of the appellant is to be considered in connection with the oral evidence of P.W.2 at Exhibit 13. Even in his presence, when the forms were filled in by the present appellant accused and the accused straightway demanded Rs. 300/- from the complainant and in his presence, the complainant had given Rs. 300/- to the accused and subsequently, upon request, Rs. 50/- was given back to the complainant by the accused. It is established by the prosecution that the trap amount of Rs. 300/- was accepted by the appellant - accused and upon a request, Rs. 50/- was reduced and it was given back to the complainant, which shows the conduct of the appellant - accused and therefore, same is required to be considered in light of the provisions of Section 8 of the Evidence Act. The conduct of the accused to make demand of Rs. 300/- and on demand, the accused had returned back Rs. 50/- to the complainant and the deal was satisfied by accepting Rs. 250/- by the accused which shows the conduct of the accused and that can be considered that there was motive of the accused to commit the offence and just to get some illegal gratification. Therefore, the contention of the appellant - accused that the accused was wrongly involved in the commission of offence is not believable. I have perused the oral evidence of P.W 3 and it is evident from the evidence that during the experiment of ultra violet lamp, which was carried out in light of battery, anthracene powder was found from the fingers, thumb and pocket of the accused. Even the oral evidence of the P.W.5 at Exhibit 20, who is a member of the raiding party, supported the case of the prosecution case. No doubt he is a member of raiding party. The evidence of the said witness is corroborative evidence. The P.W 5 has also explained about the recovery of the trap amount and anthracene powder was found on fingers, thumb and also on the pocket of the accused.

10. It is true that it was not duty of the appellant - accused to prepare that form and other document but from the perusal of the oral evidence of other witnesses who were examined by prosecution, it is established that the handwriting is proved beyond reasonable doubt and so far as Section 8 of the Evidence Act is concerned, the conduct of the accused appellant is required to be considered. In light of the evidence led before the Sessions Court and from the evidence of the panch witnesses, it appears that when the demand was made by the appellant - accused of Rs. 300/- and when the request was made for refund and same was reduced to Rs. 250/-. Therefore, the conduct of the appellant - accused is required to be seen and evidence of witness supported the case of prosecution which is a corroborative piece of evidence.

11. In this case, the demand and acceptance is very well established beyond reasonable doubt and in the statement under Section 313 of the Code of Criminal Procedure of the accused, he has never bothered to explain the issue of recovery of trap amount as well as presence of anthracene powder, which was found on the finger, thumb as also on the pocket of the appellant - accused.

12. From the above observation, I do not have the slightest hesitation in accepting the broad submissions that demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, I am of the opinion that both the ingredients to bring the act within the mischief of Sections 7 and 13(1)(d)(ii) of the Act are satisfied. From the evidence led on behalf of the prosecution it is evident that the appellant demanded the money from the complainant in connection with the forms prepared by the accused and in the presence of P.W 2, that demand was made and the amount was accepted by the appellant - accused. The presence anthracene powder vis-Ã-vis on the fingers, thumb and pocket of Kurta of the appellant go to show that he voluntarily accepted the bribe. Thus there is evidence of demand of illegal gratification and the voluntary acceptance thereof.

12. All the submissions made on behalf of the appellant being devoid of any substance, I do not find any merit in this appeal and it is dismissed accordingly. Appellant is on bail and in view of dismissal of appeal, his bail bonds are cancelled and he is directed to surrender before the Jail Authority within four weeks from the date of this order, failing which, the concerned Court shall issue non-bailable warrant to effect the arrest of the appellant. Rest of the judgment of the learned Sessions Court shall remain unaltered. R & P to be sent back to the trial Court, forthwith.