1. This appeal is directed against the judgment and order dated 15th October, 1993 passed by the learned Special Judge in Special Case No.24 of 1991 whereby, she has acquitted the respondents (hereinafter referred to as “the accused”) of the charges levelled against them.
2. The facts of the present case are that one Ibrahimbhai Mustakbhai Shaikh, resident of Bungalow No.124, Mustak Society, Vatva, Ahmedabad, lodged a complaint stating that his society does not have sewerage lines and hence maintains cesspools. Upon the cesspools getting filled up, the same were got cleaned by the employees of the Sanitary Department of the Municipal Corporation. There was a common cesspool between seven bungalows. Shri Wasimbhai Siddiki, resident of Bungalow No.122 of their society, on 18.8.1990, got a complaint registered with the office of the Sanitary Department of the Municipal Corporation for cleaning up the said cesspool; however, the same was not being cleaned. Wasimbhai Siddiki had time and again gone to the said office but there was no response thereto. Hence, he himself had gone to the said office for such purpose but to no avail. Then on the previous day, that is, on 13.9.1990, he had sent his friend Shri Nazir Nabubhai Ajmeri (hereinafter referred to as “Ajmeri”), resident of Delhi Chakla, Ahmedabad between 12.00 to 3.00 o’clock in the afternoon to visit the concerned office for the purpose of cleaning of the cesspool, at that time, the officers sitting there, whose names he did not know, one was a heavily built and dark person and the other person whose name was Bipin, were sitting there, and both the said persons had told Ajmeri that for the purpose of getting the work done, he would have to understand. Upon asking them what he was required to understand, they had said that if he wanted the cesspool to be cleaned expeditiously, he would be required to pay them Rs.50/- and it was only after such money was received that the work would be done, otherwise the work would not be done. Ajmeri had told the said officers that he had not brought such amount with him, whereupon they had told him that he should come and pay such amount by the evening of 14.9.1990, after which his work would be done. The aforesaid facts were narrated to the complainant by Ajmeri. Since the complainant did not want to pay any amount by way illegal gratification for getting his legal work done, he approached the Anti Corruption Bureau for taking necessary action in this regard. Pursuant to the aforesaid complaint, preparations were made for laying a trap by the ACB after which, necessary procedure was followed. Subsequently, the complaint came to be registered and investigation came to be carried out. After obtaining sanction to prosecute the respondents, the charge-sheet against the accused came to be submitted on 22.8.1991. After framing the charge, evidence was recorded and upon appreciation of the evidence on record, the court found that the prosecution had not proved its case against the accused and acquitted them of all the charges levelled against them.
3. Mr. K. L. Pandya, learned Additional Public Prosecutor took the court through the entire record and proceedings as well as the depositions of all the witnesses in great detail. It was submitted that there are no discrepancies or material inconsistencies in the evidence led by the prosecution and as such, the learned Judge was not justified in acquitting the accused of the offences alleged. It was submitted that the prosecution has duly proved the initial demand through the deposition of P.W.2 – Nazir Ajmeri, whose testimony was corroborated by the testimony of the complainant. It was submitted that the demand at the time of the incident and the acceptance thereof had also been duly established by the prosecution through the testimony of Nazir Ajmeri and panch No.1 and that the recovery has been duly proved through the deposition of panch No.1 as well as the trapping officer. Under the circumstances, the prosecution having successfully established all the four ingredients necessary for proving the charges in a trap case, the learned Judge was not justified in holding that the prosecution had not proved its case.
4. Referring to the impugned judgement and order, it was submitted that the learned Judge has misdirected herself in doubting the motive of the complainant in not acting as the decoy witness himself and instead sending Ajmeri. It was submitted that it was Ajmeri from whom the demand had been made, and as such as a necessary corollary it was he who was required to be made a decoy witness.
5. On the other hand, Ms. Kruti Shah, learned advocate for the respondents drew the attention of the court to the order dated 14th September, 2012 made by this court in Criminal Miscellaneous Application No.10589 of 2012 whereby, the court has held that the appeal has abated qua the accused No.1 who has expired during the pendency of the appeal. It was submitted that from the evidence on record, it is apparent that the demand and acceptance, if any, is on the part of the accused No.1, against whom the appeal has abated. Insofar as the accused No.2 is concerned, there is no evidence whatsoever to indicate any demand at the time of the incident or acceptance on his part. Under the circumstances, evidently the prosecution has not proved its case against the second respondent, and hence, there is no warrant for interference by this court.
6. A perusal of the record and proceedings of the case indicates that during the course of trial, the prosecution had examined in all five witnesses. The defence has also examined two witnesses who are employees of the Municipal Corporation.
7. From the deposition of Nazir Ajmeri, exhibit-12, viz. the person who had visited the sanitary department of the Ahmedabad Municipal Corporation where the accused were working as sanitary inspectors, it appears that when he visited the said office on 13.9.1990 at the request of the complainant there were two persons sitting there, one officer who was dark and heavily built and the other officer was named Bipinbhai. They had told him that he would have to understand. Upon asking them as to what he was required to understand, they had said that if he wanted the cesspool to be cleaned expeditiously, he would be required to pay them Rs.50/- and it was only after such money was received that the cesspool would be cleaned. The prosecution has also examined the complainant Ibrahimbhai Shaikh, at exhibit-13 who has corroborated the say of Nazir Ajmeri to that extent. Thus, insofar as the initial demand is concerned, to a certain extent, it can be said that the prosecution has proved the same.
8. The next ingredient which is then required to be satisfied by the prosecution is the demand at the time of incident, acceptance and recovery of the amount paid towards illegal gratification.
9. Insofar as the demand at the time of incident is concerned, a perusal of the deposition of Nazir Ajmeri indicates that on 14.9.1990, they had gone to the Sanitary Department of the Municipal Corporation, however, on that day, the accused were busy and therefore, asked him to come on the next day. Hence, the trap proceedings were closed on that day and they were asked to come again on the next day. On the next day, that is, on 15.9.1990, the raiding party again carried out the ultraviolet lamp procedure and thereafter, they visited the office of the Municipal Corporation. He (Ajmeri) along with the panch No.1 had gone inside the office where they were required to wait for about half an hour. Thereafter, they had gone inside again and met both the accused. Bipinbhai had asked him as to who was the person who was accompanying him, whereupon he has stated that it was his friend. He had talked with both the officers and asked them as to what had happened about his work. Bipinbhai told him that they had already talked about it, in response to which he asked what was the talk about. Ashokbhai told him that they had talked about Rs.50/-, in response to which he had asked whether the sum could be reduced and Ashokbhai told him that it could not be reduced. He had, therefore, taken out Rs.50/- from his pocket and handed over the same to Ashokbhai who had counted the same and thereafter placed the same on the table and covered it with a paper. Thereafter, he had given pre- determined signal and the members of the raiding party came inside after which, the ultraviolet lamp procedure was carried out and the bluish glowing marks were found on both the hands of Ashokbhai. Thereafter the currency notes were recovered from the table, the serial numbers whereof were matched with the numbers of the currency notes mentioned in the preliminary panchnama and the same were found to tally. The currency notes were also found to be stained with anthracene powder when observed under the ultra violet light.
10. At this stage, it may also be germane to refer to the deposition of the prosecution witness No.1, namely, panch No.1, who has deposed that on 15.9.1990, he had accompanied the complainant and other staff members of the Sanitary Department of the Municipal Corporation. He and Ajmeri had visited the office of the Sanitary Department of the Municipal Corporation. Upon reaching there, two officers who were sitting there had asked him to come after sometime. Therefore, he and Ajmeri left the office and stood outside for half an hour. Thereafter, Ajmeri went inside again. Ajmeri alone was standing at the table of the accused, while he was roaming around nearby. When he came to know that Ajmeri had handed over the money, he gave the pre-determined signal and the raiding party came in. He has testified to the effect that the notes which were given by Ajmeri, were stained with anthracene powder and prior to the notes being handed over, he had not heard any talk. He was also not aware as to which of the two accused had taken the same in his hands as he had not seen it. He had seen that the currency notes were kept on the table. Thereafter, Ajmeri gave the pre-determined signal and the raiding party came in. He has further deposed that when the ultraviolet lamp test was carried out, except for the Ashokbhai and Ajmeri, the hands of the none of the other members of the raiding party were found to be stained with anthracene powder. Thus, insofar as Nazir Ajmeri is concerned, he says that the currency notes had been handed over to Ashokbhai who had thereafter placed the same on the table. However, the panch No.1 says that he is not aware as to who had accepted the currency notes and that Ajmeri had placed the same on the table and he was not aware as to who out of the two accused persons had picked them up. However, the evidence on record indicates that the notes must have been accepted by the accused No.1 – Ashokbhai whose hands were found to be stained with anthracene powder.
11. From the facts noted hereinabove, it is apparent that insofar as the demand at the time of the incident is concerned, according to Ajmeri, the amount had been demanded by both the accused inasmuch as, Bipinbhai had asked him as to whether he had brought the amount as decided earlier and Ashokbhai had confirmed the same upon his inquiring in this regard. However, insofar as the acceptance is concerned, he has stated that the amount had been handed over to Ashokbhai. The ultraviolet lam proceedings also indicate that the hands of Ashokbhai were stained with anthracene powder. However, insofar as the panch witness is concerned, he appears to be ignorant about the entire aspect of acceptance inasmuch as, according to him, he had not seen Ajmeri handing over the currency notes to the accused. As per the version given by the panch, he was not aware as to which of the two accused had accepted the notes and that Ajmeri had placed the notes on the table and he had not seen as to which of the two accused had picked up the same. According to him, the currency notes were lying on the table and prior to handing over the currency notes, he had not heard any talk between the accused and Ajmeri.
12. A perusal of the panchnama of the trap proceeding reveals that the panch No.1 and Ajmeri had gone to Bipinbhai’s office. At that time, one dark heavily built person and Bipinbhai were sitting there and upon asking both the officers about their complaint for cleaning up the cesspool, they made demand of money whereupon Ajmeri took out the anthracene stained currency notes and handed over the same to the said dark heavily built person, who accepted the Rs.50/- currency notes which were stained with anthracene powder and after counting the same, he kept the notes on the table and covered the same with paper. Thus, the version given by Ajmeri, panch No.1 and that which has been recorded in the panchnama, are inconsistent with each other.
13. The learned counsel for the respondents has drawn the attention of the court to the statement of accused No.2 recorded under section 313 of the Code of Criminal Procedure, 1973 wherein he had raised a defence to the effect that on 15.9.1990, when panch No.1 came along with Ajmeri to their office and Ajmeri had asked him as to what was the status of the complaint No.196 made on 18.8.1990, he had informed him that the said complaint was already attended to on 14.9.1990 and nothing remains to be done. At that time, they had gone away and after some time, Ajmeri had come alone and had placed Rs.50/- on his table stating that the same was for tea and snacks.
14. The defence had also examined two witnesses in support of its case, namely, Balvantrai Mansukhlal Bhatt who was discharging duties as a Sanitary Inspector. The said witness had produced the complaint register maintained by the Sanitary Department, and had pointed out that complaint No.196 was registered on page 56 of the said register. He has further deposed to the effect that a Bandobast Register is also maintained by their office which indicates the date and time when the complaint was attended to and that he had also brought the said register with him. He had pointed out that complaint No.196 had been attended to on 14.9.1990, by the vehicle No.3455 whose driver was Shankerbhai Jivabhai. The defence has also examined the said Shankerbhai, driver of the vehicle who had stated that he was required to visit the society as per the work assigned to him.
15. At this juncture, it may be germane to refer to the decision of the Supreme Court in the case of C.M. Girish Babu Vs. C.B.I, Cochin, (2009) 3 SCC 779, wherein it has been held that it is well settled that presumption to be drawn under section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross- examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that the accused received the amount towards gratification. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.
16. The facts of the present case are required to be examined in the light of the above principles. As noted earlier, the accused had raised a defence that the complaint in respect of which the illegal gratification is alleged to have been demanded, had already been attended to prior to the date of the trap. In support of their defence, the accused had examined the Sanitary Inspector of the Sanitary Department of the Municipal Corporation, who had brought along with him the original registers. The complaint registered revealed that the complaint given by Wasimbhai Siddiki was registered as complaint No.196 and the Bandobust Register revealed that the complaint had been attended to and disposed of on 14th September, 1990. Thus, the accused have led reliable evidence in the nature of the original registers maintained by the Sanitary Department of the Municipal Corporation to prove that the complaint had already been attended to prior to the date when the trap proceedings came to be conducted. Under the circumstances, it is apparent that the accused had successfully rebutted the charges levelled against them by adducing reliable evidence. It was, therefore, for the prosecution to prove that the accused had received the amount towards illegal gratification.
17. The events that had taken place during the course of trap proceedings are, therefore, required to be examined in the light of the defence of the accused. A perusal of the testimonies of the witnesses indicates that the anthracene stained currency notes were recovered from the table of the accused and not from the hands of the accused. Though Ajmeri had stated that there was a demand made by both the officers pursuant to which, he had handed over Rs.50/- currency notes to Ashokbhai, the panch has stated that he was not a witness to such acceptance and that Ajmeri had placed the notes on the table and he was not aware as to which of the two accused had picked the same up. That he had seen the notes lying on the table. Moreover, according to the panch No.1, there was no conversation between the accused and Ajmeri at the time of trap proceedings. Thus, the defence of the accused appears to be quite probable, namely, that the complaint had already been attended to on the previous day and that, Ajmeri had placed currency notes on the table saying that the same were for tea and snacks with a view to see that the trap succeeds.
18. As held by the Supreme Court in the case of C.M. Girish Babu (supra), the onus of proof lying upon the accused person is to prove his case by a preponderance of probability. In the facts of the present case, the accused have succeeded in proving their case on a preponderance of probability whereas, the prosecution has not been able to discharge the burden of establishing the guilt of the accused beyond a reasonable doubt.
19. In the light of the inconsistency in the testimonies of the panch No.1, Ajmeri, namely, the decoy witness and the panchnama as well as considering the defence case which appears to be quite probable, though this court does not agree with the reasoning adopted by the learned Special Judge, no infirmity can be found in the final conclusion arrived at by the learned Special Judge so as to warrant interference.
20. In the light of the above discussion, the appeal fails and is, accordingly, dismissed.
Record & Proceedings to be sent back forthwith.
(HARSHA DEVANI, J.) parmar*