1. The present acquittal Appeal has been filed by the appellant – original complainant, State of Gujarat under Section 378 of the Cr.
P.C., against the Judgment and order dated 10.3.1993 rendered by the learned Special Judge, Nadiad, in Sessions Case No.3 of 1989. The said case was registered against the present respondents original accused for the offence under Sections 161, 165(A) and 34 of the Indian Penal Code and under Sections 5(1) (d) and 5(2) of the Prevention of Corruption Act.
2. According to the prosecution case, both the accused were working in the office of Labour Officer. Accused No.1 – Girishkumar Prabhudas Dhobi was working as clerk in the office of Labour Office, Anand. Accused No.2 – Lakshmikant Shankerlal Trivedi was also working in the office of Labour Officer. On 11.7.1986, the complainant gave complaint in the office of A.C.B. against the accused No.1 having demanded Rs.200/ for endorsing wage book as right. On the basis of the said complaint raid was carried out by the A.C.B. and the bribe amount was found from the table of the accused. The accused were charge sheeted thereafter.
3. The prosecution has produced documents evidence/muddamal. The accused have also produced documents. On the basis of oral as well as documentary evidence the learned Special Judge acquitted both the accused as stated above.
4. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 10.3.1993 rendered by the learned Special Judge, Nadiad, in Sessions Case No.3 of 1989 the appellant – State has preferred the present appeal before this Court.
5. Heard Ms.Hansa Punani, learned APP for the appellant – State. She read the charge, oral evidence of the complainant, panch witness and both the Investigating Officer and contended that the learned Judge has wrongly acquitted respondent No.1. She has further contended that the order of acquittal is bad in law and against the evidence on record. The learned Judge has committed error in not believing the prosecution evidence which has resulted into miscarriage of justice. She has also read oral evidence of the prosecution witness and contended that from the oral version of the prosecution witness demand and acceptance are proved beyond reasonable doubt. The learned Judge has not considered cogent and reliable evidence led by the prosecution. She has read oral evidence of the complainant, panch witness and contended that evidence of the complainant is supported by the panch witness.
6. She has read oral version of the complainant and complaint and contended that from the oral evidence of the complainant it appears that there was no enmity between the complainant and accused and therefore, it cannot be said that the accused are wrongly implicated in the offence by the complainant.
7. She has contended that the learned Judge has erred in not believing that the prosecution has proved the demand and acceptance by cogent and reliable evidence. It is contended that the learned Judge ought to have seen that the evidence of the complainant is supported by panch witness. The learned Judge has given more weightage to the minor contradictions and omissions appearing in the evidence of the prosecution witness. The learned Judge ought to have held that the evidence of the complainant is supported by independent witness i.e. panch and hence there is no reason to disbelieve the case of the prosecution.
8. She has contended that sanctioning authority has granted sanction for the prosecution against the accused which shows that there is primafacie case made out against the present respondents accused. However, the learned Judge has wrongly considered defence version of the present respondent accused. So far as defence raised by the present respondent accused is concerned, there is no direct acceptance of the trap amount but recovery is made by the Trapping Officer and it is proved beyond reasonable doubt. She has read the relevant provisions of the Prevention of Corruption Act and contended that presumption is required to be drawn against present respondent accused. Lastly she has contended that primafacie it appears that the learned Judge has committed grave error in acquitting the present respondent accused and therefore, the judgment and order of the learned Judge is required to be quashed and set aside.
9. The notice is served to the respondent accused but none is present in the Court.
10. 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 witnesscomplainant and also perused the charge framed against the accused. I have also considered the submissions advanced by the learned APP.
11. As per the case of the prosecution the amount is recovered from the table of the respondent accused No.1. As per further say of the prosecution trap amount was accepted by the respondent No.1 and it was under the file and therefore, recovery is made from physical possession of the respondent No.1. I have perused probable defence made by the respondent accused further statement of the accused recorded under Section 313 of Code of Criminal Procedure and defence version shows that at the time of the trap the amount was not accepted by the present respondent accused. As per defence version of the accused when the accused tried to pickup wageslip from the cupboard, at that time trap amount was inserted by the complainant under the file. This is a concocted story of the prosecution. So far as question regarding demand is concerned, I have minutely perused the oral evidence of the prosecution and panch. As per evidence of both the witnesses demand of trap amount is required to be proved beyond reasonable doubt. As per evidence of the complainant and panch when the demand is not proved, then the question of acceptance cannot arise to consider case of the prosecution.
12. It is pertinent to note that in corruption cases, four things are required to be appreciated, viz. (I) initial demand, (ii) second demand to be made in presence of Panch, (iii) voluntary acceptance and (iv) recovery of amount.
13. In the present case recovery is made from the table of the accused No.1 and that file is also recovered but nothing is proved to show that present respondent has made demand and trap amount is accepted by him. The learned Judge has observed at paras 19, 20, 21 and 22 of the judgment and rightly considered that demand is not proved beyond reasonable doubt and therefore, only on the point of acceptance and recovery, accused cannot be convicted for the alleged offence. From the evidence of the crossexamination of the witnesses it is proved beyond reasonable doubt that in presence of panch present respondents have never made any demand and trap amount is not accepted by him. The learned Judge has rightly considered that the prosecution has failed to prove its case beyond reasonable doubt.
14. 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 respondent accused and hence, this appeal deserves to be dismissed.
15. In the latest decision of the Supreme Court in the case of Banarsi Das Vs. State of Haryana, reported in AIR 2010 SC 1589, 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 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 respondent accused and hence, this appeal deserves to be dismissed. 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 respondent accused. Even the recovery is also not proved as per law.
16. In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 10.3.1993 passed by the learned Special Judge, Nadiad in Special Case No.3 of 1989 acquitting the respondents – accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks