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 27.10.1998 rendered by the learned Special Judge, Ahmedabad Rural, in Special Case No.3 of 1993. The said case was registered against the present respondents original accused for the offence under Sections 7, 13 and 7 read with 12 of the Prevention of Corruption Act.
2. According to the prosecution case, the accused No.1 Jitendra Narmadshanker Vyas was holding post as Junior Clerk in 1991 and therefore he was Government servant. The accused No.2 Sureshchandra Bhagvandas Soni was working as Assistant Labour Officer and therefore he was Government servant. The accused No.2 as a Assistant Labour Officer gave notice to Motibhai Jesingbhai, resident of Mubarakpur, asking as to why he is not maintaining labour register for wages as per Minimum Wages Act. On 2.12.1991, pursuant to that notice the complainant Dineshbhai Motibhai Patel came to the office and met both the accused persons. The accused No.1 informed the complainant that as the other agriculturists are giving Rs.200/ the complainant have to give Rs.200/ or else case will be filed against him. After discussion the accused reduced the demand amount from Rs.200/ to Rs.150/ and gave the date on 9.12.1991. The complainant again on 9.12.1991 at 13:40 hours visited the accused persons, the accused No.1 demanded Rs.300/ and after discussion with the complainant reduced to Rs.250/ and accepted the amount. The complainant lodged the complaint with the A.C.B. After completing necessary formalities the raid was carried out, statement of the witnesses were recorded by the trapping officer and then before the learned Special Judge chargesheet was filed.
3. Thereafter, the charge was framed against the respondents to which the respondents – accused pleaded not guilty and claimed to be tried.
4. Thereafter, after filing closing pursis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.
5. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondents – accused.
6. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 27.10.1998 rendered by the learned Special Judge, Ahmedabad Rural, in Special Case No.3 of 1993, the appellant – State has preferred the present appeal before this Court.
7. Heard Ms.Jirga Jhaveri, learned APP for the appellant – State. She has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. She has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspectives.
8. She has contended that the learned Judge has not properly appreciated the evidence of Dineshbhai Motibhai Patel Ex.20. The learned Judge has failed to appreciate the evidence of Sanjay Thakorlal Ex.13 who has supported the case of the prosecution. The learned Judge has failed to appreciate the important fact that from the evidence of Sanjay Thakorlal Ex.13 the demand and acceptance was duly proved by the prosecution and panchnama Ex.14 was duly proved.
9. She has contended that the learned Judge has failed to appreciate the evidence of Jayantilal Ambaram Patel Ex.26 who is the Investigating Officer and he has also supported the case of the prosecution. The learned Judge ought to have raised presumption under Section 20 of the Act because the marks of anthracene powder were found from the person of the accused as well on the clothes of the respondents. Lastly, she has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
10. Heard Mr.R.R.Trivedi, learned advocate for the respondent No.1 and Mr.J.B.Dastoor, learned advocate for the respondent No.2. They have read charge and contended that it is the duty of the prosecution to prove demand, acceptance and recovery beyond reasonable doubt. They have read judgment and order and contended that the learned Judge has rightly observed that said three factors of the prosecution case are lacking in. Lastly they have contended that no interference is required in the judgment and order passed by the learned Judge.
11. Heard learned advocates for the respective parties. 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 accused. I have also considered the submissions advanced by the learned advocates for the respective parties.
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. It is true that from the oral and documentary evidence prosecution has failed to prove that demand of illegal gratification is made by the present respondents from the complainant. Even it is primafacie established that trap amount is thrusted into the pocket of the accused. The learned Judge has rightly observed that prosecution has failed to prove demand and acceptance. I have minutely perused the panchnama. It is proved beyond reasonable doubt that the said trap amount is thrusted into pocket of the respondent. Both, the complainant and panch, have not supported to the prosecution case. When the demand, acceptance or misconduct is not proved beyond reasonable doubt through oral as well as documentary evidence, then learned Judge has rightly acquitted the respondents.
14. 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 respondents 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.
15. In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 27.10.1998 rendered by the learned Special Judge, Ahmedabad Rural, in Special Case No.3 of 1993, 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