1. This appeal is directed against the judgment and order dated 28th July, 2004 passed by the learned Additional Sessions Judge, Fast Track Court, Surendranagar, in Special Case No.1/2000. The charge against the respondent accused is that on 8th June, 1999, he was discharging duties as a Talati- cum-Mantri of the Ninama Gram Panchayat situated in Sayla taluka of Surendranagar district and was a public servant. On that day at 21.15 hours, the complainant Ghelabhai Ramabhai Bharwad upon going to take possession of the residential plots allotted in favour of his relatives for the purpose of constructing houses under a Government scheme, the accused had told him that the allotment of the plots had been cancelled and that fresh proceedings would be required to be initiated for the purpose of obtaining allotment of plots and that in respect of each plot, each of the persons concerned would have to pay Rs.2,000/-. Thus in all, in respect of four plots, Rs.8,000/- would have to be paid. Thus, the accused had for his own personal benefit demanded illegal gratification other than his legal remuneration and in this manner, committed the offence punishable under section 7 of the Prevention of Corruption Act, 1988.
2. In connection with the aforesaid illegal demand, the accused had demanded that the first instalment of Rs.4,000/- be paid on 8th June, 1999 and the remaining Rs.4,000/- be paid when the plots are handed over to the four persons. Such arrangement was arrived at with the complainant and accordingly in respect of the first instalment of Rs.4,000/-, the complainant had registered a complaint with the Anti- Corruption Bureau pursuant to which a trap had been arranged and on 8th June, 1999 at 21.15 hours, the accused had accepted Rs.4,000/- as Talati-cum-Mantri of Ninama at his residence from the complainant by way of illegal gratification and thereby misused his position as a public servant and committed the offence punishable under section 13(1)(d) and 13(2) of the Prevention of Corruption Act.
3. The prosecution case is that the complainant Ghelabhai Ramabhai Bharwad lodged a complaint with the Anti-Corruption Bureau stating that his nephew Khengarbhai Gokalbhai, Kamalbhai and Nazabhai, sons of his nephew Oghadbhai Gokalbhai and Devabhai Varjangbhai, another cousin had been allotted plots of land by the Government about nine years prior thereto in the year 1990 under a scheme meant for the homeless agricultural labourers for residential purposes and applications had been made for the purpose of obtaining financial aid for putting up construction thereon. The above referred four relatives had received orders for the purpose of constructing houses in the year 1990 however, since their economic condition was weak and they were dealing in cattle, time and again they had gone towards Gujarat for the purpose of their goods and for maintaining their cattle hence, they had not constructed any buildings by using the said financial aid. In the current year, his four relatives had decided to construct houses and had talked to him about it. Hence, he had taken orders whereby the loans were sanctioned by the Taluka Development Officer and on Wednesday he had gone to the Gram Panchayat office and met the Talati-cum-Mantri Shri Parmarbhai (the accused) and had talked to him about allotment of the four plots and had shown him the orders of allotment, whereupon the Talati had told him that these orders had been passed nine years prior thereto and that each of the plots had been cancelled and if they wanted to make houses thereon and obtain financial aid for the purpose of constructing houses under the scheme for the homeless, proceedings would have to be started afresh. Whereupon, he had told him that they were illiterate persons and did not understand anything and that it would be better if the plots which were already sanctioned in their favour are allotted, in response to which the Talati-cum-Mantri told him that a fresh process would have to be undertaken for the purpose of which in respect of each plot, they would have to pay Rs.2.000/-, in all, for four plots Rs.8.000/- would be required to be paid and only thereafter, would he take the work in his hands. That he (the complainant) had told him that he was a poor person and that his relatives were also poor like him, and hence, the amount should be reduced, whereupon the accused had told him that nothing could be reduced therefrom, however, he may not pay the entire amount of Rs.8,000/- at a time and that the same could be paid in two instalments of Rs.4,000/- each. That on Tuesday, from the afternoon onwards, he would be in the Gram Panchayat office at Ninama till sunset and thereafter he would be staying at Maganbhai Vitthalbhai’s house and that he can come and pay the first instalment of Rs.4,000/- whereupon he would take his work in his hands and that the remaining Rs.4,000/- could be paid after the plots are allotted, to which he (the complainant) had agreed. Thereafter, he had gone home and informed his above referred four relatives about his talk with the Talati-cum-Mantri and they have told him that they were not willing to pay any bribe and that they wanted to get him trapped while taking a bribe. Therefore, at the instance of his relatives, he had come to lodge the complaint.
4. Pursuant to the above referred complaint, the Anti- Corruption Bureau arranged a trap. After the trap proceedings were over, a first information report came to be registered being Surendranagar ACB C.R. No.3/99. Upon culmination of the investigation, charge-sheet came to be submitted before the learned Special Judge, Surendranagar and came to be registered as (ACB) Special Case No.1/2000.
5. The trial court, after appreciating the evidence on record, came to the conclusion that the prosecution has not proved its case beyond reasonable doubt and acquitted the accused of the charges levelled against him.
6. Mr. K.L. Pandya, learned Additional Public Prosecutor took the court through the deposition of the witnesses and the documentary evidence on record and submitted that the prosecution had duly proved the initial payment of Rs.4,000/- through the deposition of the complainant, while the demand at the time of the incident and acceptance has been proved through the deposition of the complainant and the panch No.1 which finds corroboration in the panchnama. Recovery of the amount accepted by way of illegal gratification has been proved through the deposition of the complainant, the panch as well as the Investigating Officer. Under the circumstances, the learned Judge was not justified in holding that the prosecution has not established its case beyond reasonable doubt. It was submitted that the learned Judge has given undue weightage to minor inconsistencies in the deposition of the witnesses. It was pointed out that the incident in question had taken place in June, 1999 whereas the depositions of the witnesses were recorded in and after June, 2004, that is, after a considerable period of time. Under the circumstances, when the depositions of the witnesses came to be recorded after a considerable length of time, there was every likelihood of minor discrepancies creeping in. However, that does not mean that the prosecution has not proved its case beyond reasonable doubt. It was pointed out that it was the case of the complainant that in respect of four plots which were allotted to his relatives, he had approached the accused who had informed him that the allotment of the said plots had been cancelled and for the purpose of initiating fresh proceedings in this regard, had demanded illegal gratification of Rs.8,000/- out of which the first instalment was to be paid on 8th June, 1999. Referring to the deposition of the complainant, it was pointed out that he had clearly deposed to the effect that when he met the accused at the house of Maganbhai Mistry, he had asked him whether he had brought the money and had accepted the same. The testimony of the complainant was corroborated through the testimony of the panch No.1 who had also deposed that the accused had demanded the amount from the complainant. The evidence of the aforesaid two witnesses also finds corroboration in the panchnama of the trap proceedings wherein it has been clearly recorded that the accused had demanded an amount of Rs.4,000/- by way of illegal gratification from the complainant and had accepted the same. It was submitted that insofar as recovery is concerned, the ultra-violet lamp proceedings had been carried out and the hands of the accused were found to be stained with Anthracene powder so also were the hands of the complainant. The numbers of the currency notes which were recovered from the accused upon being compared with the numbers recorded in the preliminary panchnama were found to tally. It was submitted that having regard to the evidence which was led by the prosecution, it is amply clear that the prosecution has proved its case against the accused beyond reasonable doubt and as such, the learned Special Judge was not justified in acquitting the accused of the charges levelled against him. Under the circumstances, the impugned judgment and order passed by the learned Special Judge requires to be reversed and the accused is required to be convicted for the alleged offence.
7. Opposing the appeal, Mr. Samir Dave, learned counsel for the respondent drew the attention of the court to the record and proceedings of the case. It was pointed out that there are basic inconsistencies in the prosecution case which cannot be reconciled and strike at the root of the prosecution case. Referring to the panchnama of the trap proceedings, it was pointed out that the same does not reflect any demand having been made by the accused and that on the contrary, it was the complainant who had said that he had brought the money as per their earlier talk. It was submitted that the complainant, the panch witness and the panchnama have given different versions of the same incident which shakes the credibility of the said witnesses. Attention was invited to the fact that at the relevant time when the plots were allotted to the relatives of the complainant, the complainant was the Up- Sarpanch. The authority to allot said plots was vested in the Sarpanch and the Up-Sarpanch. Later on, the appellate committee had got an inquiry made through the accused regarding the status of the plots which had been allotted under the Scheme to ascertain as to whether the conditions subject to which the plots had been allotted had been satisfied; and that it was pursuant to the report submitted by the accused to the effect that the conditions were not satisfied, that the allotment of plots in favour of the relatives of the complainant came to be cancelled. It was further submitted that the accused was not succumbing to the illegal demands of the complainant and he, therefore, deliberately implicated him in a false case. Attention was invited to the defence of the accused before the trial court to submit that the explanation put forth by him was a plausible one, which the trial court had accepted. Under the circumstances, the prosecution having not established its case against the accused beyond reasonable doubt, no case is made out for interference by this court.
8. A perusal of the record and proceedings of the case shows that before the trial court, the prosecution has examined, in all, nine witnesses. The complainant Bharwad Ghelabhai Ramabhai has been examined at Exh.18. He has stated that the complaint had been lodged five years prior thereto and at that point of time, he was aged about 70 years and that he was the Up-Sarpanch of Ninama Gram Panchayat. At the time when the incident took place, the accused was the Talati and had taken charge only in that year. He has further deposed that the accused had demanded Rs.2,000/- for each of the plots and that he had paid Rs.4,000/- and Rs.4,000/- remained to be paid and, therefore, he had gone to Rajkot where he met the ACB officer and had handed over the amount to him. He had gone to Rajkot at about 7.00 in the evening and they had returned to Ninama at 8 o’clock at night alongwith raiding party. They had gone to the Gram Panchayat office at 8 o’clock. Two persons had gone, namely, he and the panch No.1. At that time, the panchayat office was closed and was locked. Hence, both of them straightaway went from the panchayat office to Maganbhai Mistry’s house which is situated about 4-5 houses away from the panchayat office. Upon reaching his house, he called out to Maganbhai asking him whether the Talati was there. Maganbhai opened the door and came out and told him that the Talati was inside the house. Hence, he and the panch (whom he has referred to as the policeman) had gone inside and were sitting there. The Talati had asked him whether he had brought the money to which he had answered that he had brought Rs.4,000/-, and that Rs.4,000/- was to be paid after the work was done. He had taken out Rs.4,000/- from his pocket and handed over the same to the accused. Thereafter, he had gone out and given the pre-arranged signal whereupon the raiding party had entered the premises. He has also deposed that at the time when the four plots came to be sanctioned, he was the Up- Sarpanch of the Gram Panchayat and one Sagrambhai Rabari was the Sarpanch. On a query by the court as to how the plots came to be allotted, he had replied that the authority to allot plots was vested in the Sarpanch and Up-Sarpanch, that is, in him and Rabari Sagrambhai. He has further deposed that at the time when the plots were allotted, the papers were prepared and the possession of the plots was handed over to the allottees. He has also deposed to the effect that the possession of the four plots was with the said four persons since the last 5-7 years. He has accepted that at the time when the complaint came to be lodged, none of the four persons had put up any construction on the four plots. He has further deposed that the accused had told him that if the four persons do not construct on the plots, the allotment would be cancelled and the possession would be taken back. He has voluntarily stated that it was because the possession of the plots was to be taken back that the difficulty had arisen. He has accepted the fact that all the four persons were told that they would be required to pay necessary education cess, land revenue and other taxes in respect of the plots from the time when they took over possession thereof, till the time construction is made. Without declaring him to be hostile, the prosecution had sought permission to cross-examine him and has accordingly put certain questions to him in his cross-examination.
9. During the course of his cross-examination by the learned counsel for the accused, it has been revealed that the authority to allot plots in their village was vested in the Sayla Taluka Development Officer. The allotment orders in respect of the plots had been made by the Taluka Development Officer on 19th April, 1990. Under such orders, his three nephews and another relative, viz., a cousin of the complainant, all four, had been handed over possession of their plots on 10th May, 1990. He has admitted that one of the conditions of allotment was that construction should be completed within two years and that necessary permission for constructing a house thereon would be required to be taken. He has also accepted that none of the four persons had put up construction on the plot within two years. He has also admitted that since he did not need any plot, he had not made any request for the same and hence, no plot had been allotted to him. He has stated that he had no dispute with regard to the plots with the Talati. He has also accepted that all the four persons to whom the plots were allotted were not residing at Ninama village and that three of them were residing in Kheda district and one was residing at Rajkot. He has also accepted that none of the four Bharwads had met the accused Talati or had any talk with him. That he on his own and in his own capacity did not have to pay any amount to the Talati as the plots have not been allotted in his name. He has also accepted that at the time when he had the talk with the Talati, none of the four Bharwads to whom the plots had been allotted were present there. He has also admitted that none of the four Bharwads have given him the money for the purpose of handing over the same to the Talati.
10. In his cross-examination, it has further been revealed that when he went to the house of Maganbhai, the Talati was sitting on the swing and Maganbhai and his wife were sitting near the swing. He has also accepted that when he went there, he had seated himself next to the swing and was sitting there for about an hour. He has also accepted that while they were talking for about an hour, Maganbhai and his wife were also listening.
11. The panch No.2, in his deposition, has inter alia stated that when they went to the panchayat office, the same was locked. A person was sitting next to the panchayat office from whom the complainant enquired about the whereabouts of the Talati and he told him that he was sitting in the house of so and so in the village. He did not know the name of the person and that both of them had gone from the panchayat office to the house of the said person. It took about 5-7 minutes to reach the house of the said person. When they reached the house, the main door was closed and the complainant knocked on the door and asked whether the mantri (the accused) was sitting inside. In response, a reply came from inside that the mantri is sitting inside and hence, they should come in. They, therefore, pushed the door, which opened. Upon entering, firstly there was a yard and on the right side thereof, plants had been planted. Thereafter at little distance, there was a verandah where the mantri was sitting. The mantri was sitting on a swing and the owner of the house was also sitting nearby. In a corner of the verandah, a lady was sitting who appeared to be the lady of the house. The complainant had told the accused that they had gone to the panchayat office but it was locked whereupon he had said that since there was no light in the panchayat office, he was sitting there. Thereafter, the accused had asked him whether he had brought the money to which the complainant replied that yes, he had brought it. The complainant asked him whether the plots would be transferred in his name and the work would be done. The accused replied in the affirmative, whereupon the complainant took out the money from his pocket and handed it over to the accused who accepted the same and counted it with his hands. After counting it, the accused said that the amount was okay, after which, the accused put the amount in the pocket of his shirt. Thereafter, the accused had inquired about the remaining amount of Rs.4,000/- to which the complainant had said that the remaining amount would be paid after his work was done. Thereafter, the complainant went outside the main door and gave the pre-arranged signal whereupon the officers came in. At that time, he was sitting near the accused on the verandah and the accused was sitting on a swing. Out of the members of the raiding party, two persons caught hold of the hands of the accused. In the meanwhile, Shri Dave asked the accused whether he had taken any money, to which the accused had answered in the negative. Thereafter, upon getting the person of the accused searched through the constable, the money was found from the pocket of his shirt. Thereafter, the ultra-violet lamp procedure was carried out on the verandah itself and both the hands of the accused were found to be stained with Anthracene powder. While carrying out the ultra-violet lamp proceedings, there was an altercation with the landlord and hence, the remaining part of the proceeding was carried out in the panchayat office. He has further deposed that the panchnama was written by one of the members of the raiding party and that the panchas had not dictated the same.
12. A perusal of the panchnama of the trap proceeding shows that upon the complainant and the panch No.1 entering the house of the landlord, there was an open verandah on which there was a swing where one person was sitting. The complainant told the person who was sitting on the swing that they had gone to the panchayat office but it was closed hence, they had straightaway come there. The person sitting there asked them to be seated whereupon the complainant and panch No.1 sat near the swing on the verandah. Thereafter, the complainant told the accused that as per their talk on the previous Wednesday, he had brought the money, to which the person sitting on the swing asked him as to what amount he had brought, in response to which the complainant told him that he had brought Rs.4,000/-. So the person sitting on the swing had told him to hand over the same. Upon his saying so, the complainant took out the money from the left pocket of his shirt with his right hand and handed the same to the person sitting on the swing who took the same with his right hand and counted them with both his hands and asked as to when the remaining Rs.4,000/- would be paid, to which the complainant said that as agreed, the remaining amount would be paid immediately upon the possession of the plots being handed over. Thereafter, immediately the complainant went outside and gave the pre-arranged signal whereupon the raiding party entered the house. The complainant had told that the person sitting on the swing was the mantri Parmarbhai whereupon immediately, instructions were given to the police constable to catch hold of both his hands. Thereafter, the police inspector gave his identification to the accused and inquired about details regarding his name etc. Thereafter, the ultra-violet lamp experiment was carried out and the panch No.1 was asked to take the currency notes from the hands of the accused. Upon carrying out the ultra-violet lamp procedure, it was found that the hands of the accused were stained with Anthracene. Thereafter, both hands of the complainant were examined and they were found to be stained with Anthracene. Thereafter, his pocket was examined and it was found that there were marks of Anthracene on the left side pocket of the shirt as well as inside the pocket and on the border thereof. It was also found that the pocket was empty. Thereafter, the hands of the remaining members of the raiding party were examined under the ultra-violet lamp and it was found that none of their hands were stained with Anthracene powder. Thereafter, the remaining part of the proceedings was carried out at the panchayat office. Since there was no electricity in the panchayat office, the proceedings were carried out under the torch light.
13. The prosecution has also examined Maganbhai Mistry, the landlord of the house where the incident is alleged to have taken place. He has not supported the prosecution case and has stated that as soon as the complainant came to his house to look for the Talati, he had replied in the affirmative. Thereafter the complainant and the Talati had gone away from his house. In his cross-examination by the learned advocate for the accused, he has stated that it was true that the work of laying metal on the road and the financial transactions in this regard were being done by the Sarpanch and the Up-Sarpanch. That two hand-pumps had been installed in the village, however, till date, in neither of the pumps could water be pumped out. He has further accepted that the bills of the work done on the road and the vouchers are required to be placed before the Talati and are thereafter processed further. That the Talati had told the Up-Sarpanch that metal had not been spread in the entire village and that water was not coming from the hand-pumps and hence, he would not make a bill on the basis of a false voucher. That it was true that the complainant Up-Sarpanch and the Sarpanch had in connection with the Talati not making a bill on the basis of the voucher, threatened to implicate him in some offence. He has voluntarily stated that it is for this reason that a false case has been created by the Up-sarpanch.
14. One Narendradev Dwijendrarai Pandey who was also discharging duties in the ACB office, Rajkot at the relevant time has also been examined by the prosecution. This witness has deposed in terms of the panchnama. One Vanrajbhai Raimalbhai Chavda, a junior clerk in the taluka panchayat office, Sayla has been examined at Exh.33. He has produced various documentary evidences in the form of the applications made by the four relatives of the complainant, as well as other proceedings in that regard. He has deposed that the Land Committee had decided to review the case of allotment of plots made by the Taluka Panchayat Office, Sayla on 7th May, 1999 and in this regard, a communication was sent to the Circle Inspector (Panchayat), Sayla and opinion was called for. The Land Committee had called for a report as regards the position at site within a period of three to five days. In his cross-examination at the instance of the learned advocate for the accused, it has come out that there was a scheme for allotment of plots to homeless persons residing in village Ninama. A perusal of the documents produced by the said witness reveals that the Taluka Development Officer had, by a communication dated 19th August, 1999, informed that the plots allotted in favour of the four relatives of the complainant had been cancelled. The prosecution has also examined one Kalubhai Kanubha Zala, a junior clerk of the Sayla taluka panchayat who has deposed that for those persons who had not put up any constructions on plots allotted to them for a period of ten years, a report had been called for from the Talati-cum-Mantri regarding the status of such lands and on the basis of such reports, the allotment had been cancelled. He had produced a copy of the register in this regard. He has also deposed that the Committee had, in all, taken in review 791 cases out of which 648 plots including the plots allotted to the four relatives of the complainant came to be cancelled. In his cross-examination by the learned advocate for the accused, he has reiterated that the accused Talati had collected information prior to the meeting held on 7th May, 1999 and it was on the basis of the information sent by him that the allotment of the four disputed plots had been cancelled by the Land Committee and that such allotments were cancelled on 9th December, 1999.
15. The prosecution has also examined Shri Mahendrarai Jayashankar Dave namely, the trapping officer who has stated that the complainant had come to his office on 8th June, 1999 at about 17:00 hours. That he had immediately sent a yadi for calling the panchas and at 18:00 hours, the procedure in respect of the first part of the panchnama was commenced. That after carrying out the ultra-violet lamp procedure, they had gone to Ninama village and reached there at 20:55 hours. When the complainant and the panch No.1 reached the panchayat office, the same was closed hence, they had gone to the house of Maganbhai and the members of the raiding party had positioned themselves outside. That the door of the compound was closed hence, the complainant had called out to Maganbhai and asked him whether the Mantri was inside whereupon he had answered in the affirmative and called him inside. He has further deposed that after some talk between the complainant and the accused, the complainant had told the accused that he had brought the money as per the talk that had taken place on Wednesday, whereupon the accused asked him how much he had brought, to which the complainant said that he had brought Rs.4,000/- and told him to take the same. After saying this, he had taken out the money from his pocket and handed over the same to the accused who had counted the same by using both his hands and had kept the money in his right hand. That immediately thereafter, the complainant came outside and gave the pre- arranged signal whereupon the panch No.2 and the members of the raiding party immediately came inside. That he had immediately given his identification. That the complainant had identified the person sitting on the cot as the Talati-cum-Mantri whereupon he asked Shri Mahendrabhai, a member of his staff to catch hold of the wrists of the accused and identified himself. Thereafter, the panch No.1 was asked to take the currency notes from the accused and the ultra-violet lamp demonstration was carried out and it was found that both the hands of the accused were stained with Anthracene powder. Such Anthracene stains were also found on the hands of the complainant and the panch No.1. There were anthracene stains on the border of the right pocket of the shirt worn by the complainant. At that time, people from the neighbourhood gathered outside and hence, they had carried out the remaining procedure in the panchayat office. There was no light at the panchayat office hence, they used the ultra-violet lamp, torch, searchlight etc. for the purpose of completing the proceedings. In his cross-examination, he has stated that the complainant and the panch No.1 came out five to seven minutes after they had entered the house of the landlord. He has admitted that they had carried out the ultra-violet lamp procedure in the house of the landlord because there was electricity. The prosecution has also examined the Investigating Officer-Ranjitsinh Jesabhai Vala. In his cross- examination, it has come out that it was true that before the four disputed plots had been cancelled by the Land Committee, the Circle Inspector had been asked to review the report given by the accused-Talati and since the report of the Talati appeared to be true, the Land Committee had cancelled out the four plots and that the order of the Land Committee cancelling the four plots had been produced on record.
16. From the evidence which has come on record as noted hereinabove, it is apparent that the case of the complainant is that four plots had been allotted to his above referred relatives and that the same had been cancelled. That when he met the accused to enquire about the status of the plots, he was told that the allotment had been cancelled and that the process would have to be started afresh and that the Talati demanded Rs.2,000/- per plot. That he met his relatives who did not want to make such payment and wanted to see that a trap is laid in this regard. He had, therefore, approached the ACB office at Rajkot after which the trap had been laid. That when he and the panch No.1 reached the panchayat office, the office was locked hence, they went to Maganbhai’s house. Upon the complainant calling Maganbhai and asking him as to whether the accused was inside, he had said that he was there and had called him inside. As per the say of the complainant, the accused was inside the house and they had gone inside the house where the accused was sitting and he had asked whether he had brought the money whereupon he had said that he had brought Rs.4,000/- and the remaining Rs.4,000/- would be given after the work is over. In this regard, the panch No.1 in his deposition has stated that when they went to the panchayat office, the same was locked, hence they went to the house of so and so. The outer door was closed hence, the complainant knocked on the outer door and called out whether the accused was inside whereupon a voice called out that he was inside and called them inside. Hence, they had pushed the door and gone inside where initially there was a yard and on one side there were plants and in front there was an open verandah where the Talati was sitting on a swing. The landlord was also there and that his wife was also sitting on one side of the verandah. The accused had asked the complainant whether he had brought the money whereupon the complainant had said that yes, he had brought the money.
The complainant had asked him whether the plot would be transferred in his name to which the accused had replied in the affirmative and the complainant had taken out the money and handed it over to the accused who had counted the money with both his hands and put them in his shirt pocket. He, thereafter, asked the complainant what about the remaining Rs.4,000/- to which the complainant replied that the same would be given after the work was over. In the panchnama of the trap proceedings, it has been recorded that after they entered the house of the landlord, the accused was sitting on a cot and he told them that since there was no light at the panchayat office, he had come there. The complainant told the accused that he had brought the money as per the talk that had taken place on Wednesday whereupon the accused asked him how much money he had brought and the complainant said that he had brought Rs.4,000/- to which the accused had said alright, hand over the same.
17. Thus, it is apparent that insofar as the complainant is concerned, he says that the accused had demanded the amount whereupon he had handed over the same to the accused. The panch witness has stated that the accused had asked the complainant whether he had brought the money to which the complainant had replied in the affirmative and thereafter handed over the money to the accused who counted the same with both his hands and put them in the pocket. Insofar as the complainant is concerned, he does not mention that the accused had counted the money and put the same in his pocket. In the panchnama, the version is entirely different inasmuch as the panchnama does not refer to any demand having been made by the accused. As per the panchnama, the complainant had told the accused that he had brought the money as per the talk that had taken place on Wednesday whereupon the accused had said that alright, hand over the same. Thus, three different versions have come on record as regards the manner in which the incident has taken place. Besides, there is a major inconsistency in the deposition of panch No.1 and the complainant inasmuch as the panch No.1 says that the accused had counted the money with both his hands and put them in his pocket whereas the complainant has not mentioned anything as regards the accused counting the amount.
18. Apart from the above inconsistencies in the prosecution case, the most significant aspect of the case is that the accused in his defence had stated that he was falsely implicated in the case by the complainant who was the Up- Sarpanch of the village as he had not succumbed to his demands to do any illegal work. The complainant and the Sarpanch wanted to get illegal work done through him. In his defence, he has stated that he had been posted as the Talati- cum-Mantri of Ninama village on 31st May, 1998 and that he was also working as a Talati at Shekhdodh and Nanaharania villages. Hence, every Tuesday and Friday, he was going to Ninama village for the purpose of discharging duties as Talati- cum-Mantri in terms of the order of the Taluka Development Officer. Since only two days were assigned in respect of village Ninama and the workload was more, he used to stay overnight at Ninama village. That the Government has framed a scheme for allotment of plots measuring 100 yards to homeless persons. Hence, plots had been allotted to 80-85 homeless persons residing at Ninama village. That the Bharwads (the relatives of the complainant) named by the prosecution had also been allotted plots and that no plot had been allotted to the complainant Ghelabhai. That the Bharwads had been residing at Kheda and they also had houses of their own in village Ninama. Hence, the Taluka Development Officer, Sayla and the members of the Committee had called for an investigation report from him and after due verification he had given true information to the Taluka Development Officer in writing that all the said four persons were not residing at Ninama village and that plots had been wrongly allotted to them and hence, the same should be cancelled. That on the basis of the information given by him, the Sayla Taluka Development Officer as well as the Land Committee had got the matter inquired once again through the Circle Inspector of the Panchayat who had agreed with the veracity of the report given by the accused and on the basis of such reports, the plots allotted to the said four persons came to be cancelled. That the complainant – Ghelabhai was at the time of the incident the Up-sarpanch of village Ninama and when the accused came to the panchayat office at Ninama, the complainant had told him that the plots allotted to the aforesaid four Bharwads should be transferred in his name and that such process should be carried out by him. That if the work is not done, it would be difficult for him to enter Ninama village. That he would falsely implicate the accused in a serious offence and that he was very influential. That he had further threatened to get his services terminated. However, he had discharged his duties in accordance with law and as per the instructions of the higher officer and had told the complainant that he was not in a position to do anything in this regard and that he may give whatever he wants in writing to the Taluka Development Officer and the Land Committee and that he would not do anything in this regard. That since he had refused to do any work in connection with the allotment of plots to the complainant, he was displeased with him and was giving threats of implicating him. Since he had given information, pursuant to which the allotment of plots had been cancelled, the complainant had falsely implicated him in the present case. He has further stated that on the date of the incident, he had reached his office at 11 o’clock at which point of time, the complainant had come to his office and asked him whether he was going to stay to which he has replied that there was lot of work and that he would stay there and work till next morning. After obtaining such information, the complainant had arranged the trap. On the night of the incident, till 7 o’clock in the evening, he was doing the work of recovery of revenue. However, since there was no light in the office, the work of receipts regarding recovery and writing of names was still remaining and therefore, since the lights were on in the house of Maganbhai Mistry who was residing next to the panchayat office, he had taken the remaining work with him and had gone there.
19. He has, in his defence, also denied the entire incident and has stated that the complainant and another person had asked him to immediately come to the panchayat office as it was necessary to see some record and that the person who had come with the complainant had said that he was a person from the police and had caught hold of his hands and had taken him to the panchayat office where the Anthracene stained currency notes were forcibly put in his hands for the purpose of implicating him. He has further stated that as per his information, the complainant knew P.I. Shri Dave of ACB office, Rajkot since many years and had good relations with him. That village Ninama is located in Surendranagar district and there was an ACB office at Surendranagar also. However, the complainant had intentionally gone to Rajkot as he had good relations with Mr. Dave and had falsely implicated him in the case.
20. The facts of the case are required to be examined in the light of the defence taken by the accused. The Supreme Court in the case of C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 has held that it is well- settled that the presumption to be drawn under section 20 of the Prevention of Corruption Act, 1988 is not an inviolable one. The accused charged with the offence could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption, the same would stick and then it can be held by the court that the prosecution has proved that the accused received the amount towards gratification. It is equally well-settled that the burden of proof placed upon the accused person against whom the prosecution is made under section 20 of the Act is not akin to the burden placed on the prosecution to prove the case beyond reasonable doubt. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts, that is, of establishing on the whole case, the guilt of the accused beyond a reasonable doubt.
21. Examining the facts of the present case in the light of the principles enunciated in the aforesaid decision, the first aspect to be examined is as to whether the accused has been able to rebut the charge against him.
22. A perusal of the evidence on record indicates that the defence of the accused appears to be quite plausible inasmuch as the case of the accused is that since he was not succumbing to the illegal demands of the complainant, who was an Up-sarpanch, he had falsely implicated him in the offence in question. The say of the accused finds support from the documentary as well as the oral evidence which has been brought on record by the prosecution. The documents which have been brought on record through the deposition of the Junior Clerk Vanraj Raimal Chavda indicate that in terms of the Government Resolution, it is the taluka and district level committees which are empowered to make allotment of plots in the scheme to the homeless. Thus, the record indicates that the Talati-cum-Mantri does not have any power or authority to make allotment of any plot. The record also indicates that the four plots which had been allotted to the relatives of the complainant who at the relevant time was the Up-Sarpanch and had a hand in the allotment, were wrongly allotted as such persons were not residing in the said village and had their own houses in the village. That pursuant to instructions issued by Taluka Development Officer, the accused-Talati-cum-Mantri had upon verification of the facts and the status of the land, submitted an adverse report as regards the status of the plot allotted to the relatives of the complainant. That the Land Committee had got an inquiry made through the Circle Inspector of village Ninama who had supported the veracity of the report given by the accused pursuant to which the Land Committee had cancelled the allotment of the plots made in favour of the four relatives of the complainant. From the testimony of the complainant and more particularly, his cross- examination, it has come on record that none of the four relatives had given him any money for the purpose of the trap proceedings. None of the four persons have been examined by the prosecution in support of its case. The stand of the accused is that the complainant wanted the four plots to be transferred in his name. The say of the accused also finds support in the say of the landlord Maganbhai who had stated that certain work of the village regarding spreading metal on the roads and setting up of handpumps were not done properly inasmuch as the metal was not laid down in the entire village and no water was coming out from the handpumps and hence, the accused had refused to prepare bills on the basis of the vouchers submitted by the Sarpanch and the Up-sarpanch in respect of which they had threatened to involve him in a false case due to which, a false case had been created against the accused. The panch No.1 in his deposition has stated that the complainant had asked the accused whether the work of transferring the four plots in his name would be done. Thus, the say of the accused finds support from the deposition of the panch witness also. The say of the accused finds further corroboration in the testimony of the Investigating Officer Ranjitsinh Jesabhai Vala who has accepted that it was on the basis of the report made by the accused that the allotment of plots in favour of the four relatives of the complainant had been cancelled.
23. Another notable aspect of the matter is that one of the defences raised by the accused is that the complainant had very good relations with the trapping officer namely, Shri Mahendrarai Jayashankar Dave and who had, therefore, co- operated in falsely implicating the accused. The say of the defence is required to be given some weightage in the light of the fact that village Ninama is situated within Surendranagar district where also there is an ACB office. Under the circumstances, the fact that the complainant instead of going to the ACB office at Surendranagar went to the office at Rajkot lends certain credence to the say of the defence.
24. In the backdrop of the aforesaid facts, it appears that the defence raised by the accused is a plausible defence which finds corroboration with the documentary and oral evidence which has been brought on record by the prosecution. Under the circumstances, the accused has succeeded in proving a preponderance of probability in his favour. The burden has, therefore, shifted to the prosecution to discharge its onus of establishing the guilt of the accused beyond a reasonable doubt.
25. In the light of the evidence which has come on record, wherein there are material inconsistencies in the deposition of the complainant, the panch No.1 and in the panchnama of the trap proceedings as regards the manner in which the offence has taken place and having regard to the plausible defence put forth by the accused, it cannot be stated that the prosecution has been able to prove its case against the accused beyond reasonable doubt.
26. The learned Additional Sessions Judge, in the impugned judgment and order, has given cogent evidence and sufficient reasons for the purpose of holding that the prosecution has not established its case against the accused beyond doubt. For the reasons stated hereinabove, this court is in agreement with the reasoning adopted by the learned Additional Sessions Judge and does not find any reason to take a different view.
27. In the result, the appeal fails and is accordingly dismissed.
( Harsha Devani, J. ) hki