1. The present acquittal Appeal has been filed by the appellant – original complainant, State of Gujarat under Section 378(1)(3) of the Cr. P.C., against the Judgment and order dated 20.4.1999 rendered by the learned Special Judge, Ahmedabad Rural, in Special Case No.12 of 1994. The said case was registered against the present respondent original accused for the offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act.
2. According to the prosecution case, the accused in March and April, 1994 being a public servant employed as Secretary in Bavla Nagar Panchayat demanded bribe of Rs.300/ about 15 days prior to the date of lodging of the complaint by the complainant, when the complainant asked for the amount of his bill of Rs.1950/ plus Rs.660/ towards the electrical work carried out by him in Bavla Nagar Panchayat. The complainant agreed to pay the bribe amount on receipt of the cheque by him. On 11.4.1994 at about 1:30 p.m. the accused went to his shop and demanded the bribe amount of Rs.300/. 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. On the basis of above allegations, charge was framed, readover and explained to the accused for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the P.C.Act. The accused pleaded not guilty to the charge 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 20.4.1999 rendered by the learned Special Judge, Ahmedabad Rural, in Special Case No.12 of 1994, the appellant – State has preferred the present appeal before this Court.
7. Heard Ms.Hansa Punani, learned APP for the appellant – State. She has read contents of the complaint and the panchnama and contended that from the complaint and oral evidence, prosecution has proved contents of the panchnama. She has contended that the demand of Rs.300/ by way of bribe by the accused is proved by the evidence of P.W. No.1 beyond reasonable doubt. The accused had given the cheque to P.W. No.1 with condition that he shall pay Rs.300/ on clearance of the cheque.
8. She has contended that learned Judge has failed to appreciate that amount of Rs.300/ given by P.W. No.1 and accepted by the accused and put in the black coloured tobacco box was recovered from the drawer of the table of the accused, and hands of the accused and currency notes found in said box, when examined with the ultra violet lamp were found glittering with blue flourosent marks. Thus, recovery of bribe amount from the possession of the accused is also proved by the prosecution beyond reasonable doubt. She has also contended that looking to the facts of the case presumption under Section 20 of the P.C. Act is required to be drawn against the present appellant – accused. Lastly, she has read observations of the learned Judge and contended that 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.Nitin Amin, learned advocate for the respondent – accused. He has contended that from the evidence of the P.W. No.1 it becomes very clear that no amount was due to the P.W. No.1 from the Bavla Nagar Panchayat on 13.4.1999 on which day he lodged the complaint Ex.12. He has contended that the evidence of P.W. No.1 in respect of demand of Rs.300/ by the accused is not at all believable. He has contended that from the oral version of the P.W. No.1 it is clear that when the complainant approached the respondent – accused with the panchas he has not made any demand of Rs.300/. He has contended that one Shri Hemant Raval was present in the office of the accused when P.W. No.1 and P.W. No.2 met the accused and alleged to have paid the bribe of Rs.300/. Shri Hemant Raval is an independent witness, but the prosecution has not examined him. Lastly he has contended that no interference is required in the judgment and order passed by the learned Judge.
10. Heard learned advocates for both the 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 is not proved beyond reasonable doubt through oral version of the complainant that in presence of the panch demand of Rs.300/ was made by the respondent – accused. I have perused oral and documentary evidence of the P.W. No.2, contents of panchnama Ex.10. The learned Judge has rightly observed that from the oral version of the panch demand of Rs.300/ is not proved and even no cogent evidence is produced on record to show that in presence of the panchas demand is made by the respondent – accused.
13. In the present case, prosecution has failed to prove that respondent – accused demanded any amount from the complainant. Even from the physical possession of the respondent – accused muddamal trap amount is not recovered.
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 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.
15. In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 20.4.1999 rendered by the learned Special Judge, Ahmedabad Rural, in Special Case No.12 of 1994, 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