1. The appellant – State of Gujarat has preferred this appeal under sec. 378 of the Code of Criminal Procedure, against the judgment and order of acquittal dated 20.4.1998 passed by the learned Special Judge, Panchmahals at Godhra, in Special Case No. 16 of 1994, whereby, the learned Judge has acquitted the respondent – accused for the offences under Sections 7, 13(1)(d), & 13(2) of Prevention of Corruption Act, 1988 (for short “the Act”).
2. The brief facts of the prosecution case are as under:
It is the case of the prosecution that on 13.9.1993 the respondent – accused was serving as Mamlatdar at Shahera. It is alleged that the respondent – accused, along with Deputy Mamlatdar and the Supply Inspector at 11.00 O'clock, have visited the business place, named, Iliyas Idrish Brothers” for checking and thereafter they have prepared the papers. The respondent – accused also told said Iliyas that he can seize the goods of his shop and can cancel his licence. It is alleged that Iliyas contacted the complainant and both were thereafter met the respondent – accused in his chamber. It is alleged that thereafter some conversation took place and ultimately the accused, in all, total demanded Rs.75,000/- in instalment and the accused asked said Iliyas to pay Rs.5,000/- at the place of Maiyuddin Kazi, the complainant herein. Thereafter, as the complainant and Iliyas felt that the demand made by the accused is illegal and, therefore, they decided not to give the amount as demanded by the accused and they proceeded to the A.C.B. Office at Godhra where the complainant Mayuddin met Police Inspector Pandey and lodged complaint. After recording the complaint, P.I. arranged for the trap, Panchas were called. The currency notes, duly smeared with anthracene powder, were kept in the right side pocket of the shirt of Iliyas. The raiding party, along with panchas, Iliyas and the complainant proceeded for raid. The complainant, Iliyas and the Panch went to the place of the complainant Mayuddin and waited there for the respondent – accused. After some time the accused came there and after some discussion, the amount was paid by Iliyas, through the complainant. Thereafter, on receiving the signal, the raiding party rushed to the place and caught the accused. The currency notes were seen to have powder marks in the lamp light and so also the fingers and hands of the complainant. Thereafter, necessary procedure was completed.
3. Thereafter, the 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 for the offences, as narrated herein above.
4. Thereafter, the charge was framed against the respondent - accused. The respondent – accused has pleaded not guilty to the charge and claimed to be tried.
5. In order to bring home the charge levelled against the respondent - accused, the prosecution has examined the witnesses and also relied upon the documentary evidence.
6. Thereafter, after examining the witnesses, further statement of the respondent - accused under sec. 313 of Cr PC was recorded in which the respondent - accused has denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 29.03.1993 acquitted the respondent – accused from the charges alleged against him.
8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Ahmedabad (Rural), the present appellant – State has preferred this appeal.
9. Heard Ms. Jirga Jhaveri, learned APP, appearing on behalf of the appellant – State and Learned Advocate Mr. Goswami, appearing on behalf of the respondent – original accused.
10. Learned APP, appearing for the appellant – State has read the charge and the oral as well as documentary evidence produced on the record. She has contended that, no doubt, the complainant has expired pending the trial, but, the panchas and other witnesses have supported the case of the prosecution and from their evidence the demand is proved beyond reasonable doubt. She has contended that the presence of anthracene powder was found on finger tips of right hand and the muddamal notes were also recovered from the respondent – accused in presence of panchas and, therefore, demand, acceptance and the recovery of amount from the possession of the accused is proved beyond reasonable doubt. She has contended that looking to the evidence produced on the record, the demand, acceptance and recovery is proved beyond reasonable doubt and, therefore, the prosecution has proved its case beyond reasonable doubt. She has, therefore, contended that looking to the evidence, produced on the record, the learned Judge has committed grave error in acquitting the respondent – accused and, therefore, the Judgment and order of acquittal passed by the learned Judge may be quashed.
11. Learned Advocate, appearing on behalf of the respondent – accused has supported the Judgment and order passed by the learned trial Judge. He has contended that the trial Court, after considering the oral as well as documentary evidence produced on the record, has acquitted the respondent – accused from the charges alleged against him and, therefore, no interference may be called for. He has contended that when the demand and acceptance is not proved beyond reasonable doubt then the presumption under Section 20 does not arise in the facts of the present case.
12. I have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witnesses and also perused the charge framed against the appellant. In a case of corruption 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 pertinent to note that pending the trial the complainant, who is material witness, had expired. The learned Judge, in the Judgment, has categorically observed that the prosecution has not produced any evidence to show that the accused was to accept the alleged amount from the hand of the complainant. In the present case, pending the trial, the complainant has expired. Therefore, the prosecution has not proved its case beyond reasonable doubt that before raid, the accused had demanded illegal gratification from Iliyas. Witness Iliyas in his deposition has categorically deposed that the money was with him and as per his deposition there was no talk between the complainant Mayuddin and the accused. As per his deposition, complainant Mayuddin has taken Rs.5000/- from Iliyas which was to be given to the accused, and when Mayuddin had raised his hand towards the accused for giving the amount, at that time, the raiding party of A.C.B. have rushed there and the currency notes were fallen down on earth. As per the deposition of Iliyas, he does not know that thereafter, panchnama was drawn and experiment of ultra-violet lamp was done. The Panch witness Arvind Prasad, in his cross examination, in Para-11 has deposed that there was talk between Mayuddin and the accused for about 10 minutes, but, he does not know about which type of took place between them. He has also admitted that he was away from the place and due to darkness he does not know what happened there. I have also gone through the oral as well as documentary evidence and from the over-all evidence, in my opinion, the prosecution could not be established its case beyond reasonable doubt. There are also material contradictions in the evidence of witnesses. From the oral as well as material evidence, produced on the record, I am of the opinion that the demand is not established against the respondent and, therefore, the learned Judge has rightly acquitted the respondent – accused from the charges alleged against him. The independent witnesses have not supported the case of the prosecution and the evidence of panch No.1 also creates some doubt and, therefore, the presumption is not required to be drawn against the respondent – accused. When the demand is not proved then mere recovery of amount would not be sufficient to hold the person guilty of the offences charged against him.
14. Looking to the overall evidence of the prosecution witnesses, it is clearly established that the demand and acceptance is not proved beyond reasonable doubt. The evidence of panchs are also not fully supported the case of the prosecution. The complainant had expired, pending the trial, and other independent witnesses have also not supported the case of prosecution. From the evidence of panch witness, it clearly appears that he had not heard anything about the demand made by the accused from the complainant. I am, therefore, of the opinion that the learned Judge has not committed any error in acquitting the respondent – accused from the charges of corruption alleged against him. In the 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 not sufficient to prove the offence. Even in the present case the demand is not established. In that view of the matter, I am of the opinion that so far as the offence of bribery is concerned, the demand of bribe amount is required to be proved beyond reasonable doubt. Therefore, in absence of any cogent evidence regarding the demand of bribe, it is difficult to believe the case of prosecution and hence, this appeal deserves to be dismissed.
15. It is settled legal position that in acquittal appeal, the Appellate Court is not required to re-write the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents – accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed.
16. In view of above, the Appeal is dismissed. The Judgment and order dated 20.04.1998 passed by the learned Special Judge, Panchmahals at Godhra, in Special Case No. 16 of 1994 is hereby confirmed. Bail Bonds, if any, shall stand cancelled. Record & Proceeding to be sent back to the trial Court immediately.
(Z.K.SAIYED, J.) sas