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 24.2.1995 rendered by the learned Special Judge, Jamnagar, in Special Case No.6 of 1987. The said case was registered against the present respondent original accused for the offence under Section 161 of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act.
2. According to the prosecution case that, the accused was working as Principal in Primary School, at Aher Sihan Village in 1986 as Government servant. The complainant was working as Attendant to lookafter cooking of Madhyahan Bhojan Scheme. There were about 160 to 180 boys present daily, as per the Scheme. The accused was signing in the register to be maintained for the presence. The accused demanded Rs.100/ p.m. for signing in register as bribe from the complainant. The accused told the complainant that if bribe of Rs.100/ p.m. is not given he will show less presence of the children. The complainant lodged the complaint with the A.C.B. After completing necessary formalities the raid was carried out on 3.3.1986 and the accused was caught redhanded accepting the bribe amount of Rs.100/. 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 respondent to which the respondent – accused pleaded not guilty and claimed to be tried.
4. Thereafter, after filing closing pursis by the prosecution, further statements of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused person has denied the case of the prosecution and submitted that a false case is filed against him.
5. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent – accused.
6. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 24.2.1995 rendered by the learned Special Judge, Jamnagar, in Special Case No.6 of 1987, the appellant – State has preferred the present appeal before this Court.
7. Heard Ms.Hansa Punani, 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 accused demanded illegal gratification of Rs.100/ from the complainant and the complainant gave it to the accused in presence of panch witness and the accused had taken the said currency note and kept in his left side pocket of shirt. She has contended that the complainant has supported the prosecution case. The panch witness Rameshbhai Jamsubhai and Police Inspector Shri G.K.Ravel has also supported the prosecution case. The panchnama speaks everything that happened at the scene of offence in the presence of panch witness. She has contended that marks of anthracene powder were found on the left hand side pocket of shirt and on the lungi of the accused. 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.
9. Heard Mr.H.M.Prachchhak, learned advocate for the respondent accused. He has contended that in case of corruption demand, acceptance, recovery and presumption must have to be proved through oral as well as documentary evidence beyond reasonable doubt. He has contended that the complainant has not supported his complaint. From the deposition of panch No.1 it is not proved that at which place transaction of bribe took place. The currency note was found lying from the floor. Lastly he has contended that no interference is required in the judgment and order passed by the learned Judge.
10. 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.
11. 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.
12. It appears that the complainant has not supported the case of the prosecution and he has been declared hostile. Even he has not admitted any fact of the complaint in his crossexamination. I am in agreement with the submission of learned advocate for the respondent that evidence of panch witness No.2 is also not supporting the contents of the panchnama. From the deposition of the panch witness it clearly appears that there are material contradiction. The learned Judge has rightly observed that the demand is not proved through oral version of the panch witnesses. It also appears from the explanation of the accused that trap amount was thrusted in his pocket and it was found lying on the floor. Due to force of the Trapping Officer the currency note was lifted by him from the floor and therefore, marks of anthracene powder were found.
13. 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.
14. In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 24.2.1995 rendered by the learned Special Judge, Jamnagar, in Special Case No.6 of 1987, acquitting the respondent – accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks