1. This appeal is directed against the judgment and order dated 5th March, 2001 passed by the learned Special Judge, Vadodara in Special Case No.24/1994 whereby the respondent accused has been acquitted of the offence punishable under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act.
2. Shri L.M. Vaghela, Police Inspector, ACB Police Station, Vadodara lodged a complaint against the accused alleging that he has received confidential information that the Talati-cum-Mantri of Ranoli Gram Panchayat was taking Rs.100/- to Rs.500-600/- by way of illegal gratification for furnishing copies of village form No.7/12 as well as certificates of income, etc. and as such the accused being a Government servant, was actually committing illegal acts. For the purpose of ascertaining the veracity of such information and for taking steps in accordance with law, the complainant requisitioned the services of a decoy witness-Shri Jagdishbhai Vitthalbhai Patel who agreed to work as the punter. He also requisitioned the services of Kantibhai Keshavbhai Vankar and Kalidas Akhamsinh Damor for working as panchas. With the assistance of the ACB staff whom he had summoned to his chamber, he acquainted them with the information received by him. The amount to be given by way of illegal gratification was Rs.600/- in the form of currency notes of the denomination of Rs.100/- which they had taken from the ACB grant. Thereafter the procedure of smearing the currency notes with anthracene powder and conducting ultraviolet lamp demonstration followed. Thereafter, they had left for Ranoli village in a vehicle. Upon reaching Ranoli village, they had alighted from the vehicle and Jagdishbhai had started going towards the office of the Talati-cum-Mantri, Ranoli. Panch No.2 and other members of the ACB staff were behind them and were told to remain in contact with each other. Panch No.1 and Jagdishbhai went inside the office of the Talati-cum-Mantri. Jagdishbhai requested the Talati-cum-Mantri-Ratilal Ravjibhai Patel for 7/12 and 8-A extracts in respect of his lands bearing survey No.243, 244 and 379 as well as lands of his father bearing survey No.421, 432 and 318. Ratilal Ravjibhai Patel demanded Rs.100/- per copy by way of illegal gratification. Upon request made by Shri Jagdishbhai, he reduced the same by Rs.200/- and it was decided that Rs.600/- be given by way of illegal gratification. The Talati-cum-Mantri told Jagdishbhai to go to his Khali (barn) and that he would come there with the copies of the extracts of the village forms. He had also asked him to keep the money ready. Thereafter, panch No.1 and Jagdishbhai came to Ranoli- Padmala Road. The Talati-cum-Mantri-Ratilal Ravjibhai Patel came to the said spot on his Hero Honda motorbike alongwith the extracts of the forms and demanded Rs.600/- by way of illegal gratification from Jagdishbhai for handing over the copies of the forms and accepted the same. Thereafter, the panch and Jagdishbhai came outside the office and gave the pre-decided signal at about 14:20 hours whereupon the panch No.2 and the ACB staff who were stationed outside, came in and thereafter the six currency notes of the denomination of Rs.100/-, (in all, Rs.600/-) which were tainted with anthracene powder were recovered from the accused. Upon examining the same under the light of the ultraviolet lamp, glittering bluish signs of anthracene powder were seen on both his hands as well as on the left pocket of his shirt as well as inside the pocket. Copies of share debenture deposits were also recovered from his pocket and stains of anthracene powder were also found on the keys of the Hero Honda motorcycle. The panch No.1 and Jagdishbhai Vitthalbhai Patel had accepted the fact that the Talati-cum-Mantri had demanded and accepted the illegal gratification. Accordingly, the complaint came to be lodged alleging commission of the offences punishable under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. Upon conclusion of the trial, the learned Special Judge found that the prosecution has not established its case against the accused and acquitted him of the charges levelled against him.
3. Mr. K.P. Rawal, learned Additional Public Prosecutor drew the attention of the court to the depositions of the witnesses as well as the documentary evidence in the nature of the panchnama as well as other documents which have been brought on record by the prosecution. It was submitted that the evidence of the witnesses is consistent with each other as regards demand, acceptance and recovery. The complainant namely, the punter had given the narration as regards how the demand had been made and also as regards the acceptance of illegal gratification. It was submitted that a major part of the evidence of the witnesses namely, the complainant – Jagdishbhai, panch No.1 – Kantibhai Keshavbhai Vankar and the Investigating Officer is consistent with each other. Moreover, the version given by the Investigating Officer is corroborated by the panchnama which had been drawn at the time of the trap proceedings. It was argued that the learned Special Judge has given undue weightage to minor inconsistencies, which ought to have been ignored inasmuch as the main version given by the complainant remains intact. It was submitted that the demand and acceptance having been proved, the court below was not justified in holding that the prosecution has not been able to prove its case against the accused.
4. On the other hand, Mr. P.J. Kanabar, learned counsel for the respondent supported the impugned judgment and order. Attention was invited to the documentary evidence which has come on record, and more particularly the extract of the register which indicated that the copies of the forms had been given to the complainant on the date of the trap, that is on 2nd February, 1994 in the panchayat office. Attention was invited to the various discrepancies in the complaint, the panchnama, the deposition of the complainant as well as the deposition of the panch No.1 and the Investigating Officer to submit that contradictory versions have been given by the different witnesses, and in particular, the deposition of panch No.1. It was submitted that what was elicited by the defence in the cross-examination of panch No.1, completely demolishes the case of the prosecution that the respondent had demanded illegal gratification. Attention was invited to the fact that it was the case of the defence that the complainant – Deputy Sarpanch had put up illegal construction on survey No.26 in respect of which the accused had given an adverse report. Moreover, in respect of outstanding revenue dues, the accused had issued notice to the complainant as well as other members of the family. It was submitted that thus, the complainant had an axe to grind against the accused and hence, he had falsely implicated him in the offence in question. It was submitted that insofar as the copies of the forms are concerned, the same had been handed over to the complainant in the office of the accused itself, and that, subsequently, the accused had gone to the office of the complainant to recover the outstanding revenue dues. It was submitted that the prosecution has not been able to establish its case against the respondent accused and as such, the learned Special Judge was justified in holding accordingly and acquitting the respondent. It was submitted that the appeal being devoid of merit, deserves to be dismissed.
4.1 In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of State of Rajasthan v. Mohan Lal, AIR 2009 SC 1872, for the proposition that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.
5. The contents of the complaint lodged by the Police Inspector ACB Police Station have already been referred to in detail hereinabove. The prosecution in support of its case has examined, in all, four witnesses namely, the complainant/punter-Jagdishbhai Vitthalbhai Patel, panch No.1– Kantibhai Keshavbhai Vankar, panch No.2–Kalidas Akhamsinh Damor and the Investigating Officer namely, L.M. Vaghela.
6. The complainant, in his deposition, has stated that at the relevant time, he was the Deputy Sarpanch of Ranoli village. At that time, the respondent-Ratilal Ravjibhai Patel was the Talati of the village. Since he wanted extracts of village form No.7/12 and 8-A, he had met the accused at the Gram Panchayat office and requested for copies of the same. At that time, the accused had told him that the papers would be ready and that the complainant should also look towards him. Upon asking him, he said that he should arrange for some money. Thereafter, the complainant contacted the Anti-Corruption Bureau and met Shri L.M. Vaghela, the then Police Inspector who told him that he should fix the amount of money with the accused after which he would arrange everything. That Rs.1000/- were demanded from him and he said that the amount should not be so much and ultimately the accused settled for Rs.700/-. Such amount was for the purpose of giving copies of extracts of village form No.7/12 and 8-A. He has further deposed that Laxmansinh Vaghela had given him currency notes of the denomination of Rs.100/- from the Government treasury and that after taking the money, he had gone to the panchayat office and met the accused and demanded the papers. The accused told him that he should go to his office and that he would come there with the papers. Thereafter, he had gone to his office and after half-an-hour or so, the accused came with his papers to his office and he had taken the papers from him. Thereafter, as agreed earlier he had given the money to the accused. He has deposed that the ACB office had instructed him to blow the horn of his motorcycle twice after the money is given, accordingly he had blown the horn after he had given the money. Thereafter, P.I. Vaghela and the anti-corruption staff had come to his office and searched the accused and recovered the notes from him. Thereafter, the requisite ultra-violet lamp procedure had been followed.
7. In his cross-examination, he admitted that since he was the Up-Sarpanch, whenever he called the accused for any work, he would come there. He has admitted that at the relevant time Ranoli Gram Panchayat had received a grant of rupees three and a half lakhs for execution of the Jawahar Rozgar Scheme from which development works of the village were to be taken. At the time of the incident, the amount of grant had been deposited with the panchayat. That his lands are situated in the sim of Ranoli village and he mainly cultivates and deals in tobacco. His barn is situated at a distance of about half a kilometre from the gram panchayat office and that the road is a deep and kutcha road. He has admitted that he had a talk with the accused and the Sarpanch for getting a pucca road made from the funds received under the Jawahar Rozgar Scheme. He has admitted that the accused had told him that he alone could not do it and that the consent of the entire gram panchayat would be necessary. He has denied the fact that as the Talati has not done his work, he was displeased with him. He has admitted that on 21st April, 1993, the Revenue Secretary had visited the Ranoli Gram Panchayat. He has denied that lands bearing survey No.29 and 26 situated in the sim of village Ranoli belong to him. He has accepted that he and his five brothers have put up constructions on revenue survey No.26. He has also admitted that after the visit of the Revenue Secretary, an inquiry was made with regard to breach of condition in respect of survey No.26 and instructions had been given by way of communication dated 26th April, 1993 which has been produced at Exh.17. He has also admitted that on the basis of the letter of the Revenue Secretary, on 27th May, 1993, the D.O. had instructed the T.D.O. and the accused to give a report in this regard. The said document has been produced at Exh.18. He has submitted that he does not know that on the basis of that letter the accused had given a report dated 14th October, 1993 to the Taluka Development Officer with regard to breach of condition and in which the accused had stated that survey No.26 had been converted into N.A. land for the purpose of poultry farm, however, residential houses had been built thereon. He has admitted that the revenue dues were outstanding in respect of his lands situated in the sim of village Ranoli and that the accused had issued notice in this regard, copies whereof have been produced at Exh.19. He has also admitted that at the time of the incident, the accused had issued notices in respect of the outstanding dues to several members of the gram panchayat who have been named therein. In his cross-examination, he has stated that the accused had not given him the extracts of 7/12 and other record but had told him that he would deliver the same at his office and had also asked him to pay the outstanding revenue dues. He has denied the suggestion that at the time when both of them were drinking tea, the accused had told him that he had brought the details of the outstanding revenue dues. He had told the accused that take the amount towards revenue dues, however, the accused had said that only if he pays the entire amount would the receipt be issued. He has denied that the Talati had told him that he should pay up the entire amount together and had returned the said amount. He has denied that after saying so, the accused had placed the money on the table. He has denied that he had told the accused that he should take the money and that he would pay the remaining amount afterwards. He has admitted that while the incident of the accused refusing to take the money and his trying to give the money was going on, he had gone outside his office and blown the horn of his motorcycle twice.
8. Before delving into the merits of the case, two things are required to be taken note of. Firstly, that the record of the case indicates that there were outstanding dues of Rs.16,925.20 pending against the complainant and his father and secondly, that the extract of the register of the panchayat bears out the case of the accused that the documents demanded by the complainant were supplied to him on 2nd February, 1994 and in acknowledgment thereof the complainant has put his signature.
9. Shri Kantibhai Keshavbhai Vankar, panch No.1 has been examined at Exh.30. He, in his deposition, has stated that the Investigating Officer had acquainted them with the facts of the case and had introduced them to the complainant and thereafter the procedure with regard to anthracene powder and ultraviolet lamp demonstration had been taken after which they had set out towards Ranoli in a Government vehicle. Upon reaching Ranoli village, the jeep was stopped and he and Jagdishbhai went walking to the office of the Talati, Ranoli. The second panch and the other staff members had positioned themselves outside the Talati’s office. Jagdishbhai asked the person who was sitting in the office “How are you, Ratibhai?” whereupon Ratibhai asked them to be seated, hence, they sat there. Jagdishbhai requested for copies of village form No.7/12 and 8-A in respect of his and his father’s properties whereupon Ratibhai called Jagdishbhai and him outside and said “your extracts are about eight in number, hence, you will have to pay me about Rs.800/-“. Jagdishbhai requested him to slightly reduce the same, whereupon Ratibhai had said “All right, give Rs.600/-“. Thereafter Ratibhai had told them that “I will prepare the papers and come to your barnyard. You go there.” Hence, he and Jagdishbhai went towards his barnyard. On the way, they met the Investigating Officer and narrated the incident. Thereafter, they had gone to the barnyard and in a short while, Ratibhai came there on a Hero Honda motorcycle. Ratibhai came and sat where they were sitting in the office at the barnyard. There, he took out extracts of village form No.7/12 and 8-A, and gave them to Jagdishbhai. Jagdishbhai examined the 7/12 record given to him and said that they were in order and thanked him. Thereafter Ratibhai told him “give me Rs.600/- as per the talk between us so that I can go”, therefore Jagdishbhai took out Rs.600/- from his pocket and handed over the same to Ratibhai who took the currency notes and counted them with both his hands and put them in his pocket. Thereafter, he said that he was leaving and went to his Honda motorcycle at which point of time, he and Jagdishbhai went outside and Jagdishbhai gave the pre-arranged signal whereupon the members of the raiding party had come running. Mr. Vaghela asked him about the incident whereupon he informed him about the incident. Upon inquiring from Jagdishbhai, he too informed about the incident and gestured towards the person sitting on the Hero Honda. Hence, Mr. Vaghela went near the said person and introduced himself as the ACB Inspector. Thereafter they came inside the barn-yard office. The accused was searched and the muddamal currency notes were recovered from the pocket of his shirt along with other things. Thereafter the ultraviolet lamp procedure was carried out and both the hands of the accused were found to be stained with anthracene powder. Anthracene marks were also seen inside and on the border of his shirt pocket.
10. In the cross-examination of this witness, it has come out that before and after the raid, Mr. Vaghela had not put anything in writing. He has admitted that Mr. Vaghela had given information that the Ranoli Talati-cum-Mantri Ratilal Patel was demanding money for issuing village forms No.7/12 and 8-A and that for the purpose of ascertaining the same, the raid had been arranged. He has admitted that Mr. Vaghela had not told them as to in what manner, the said information had been received and through whom. He has further admitted that they were not shown that any entry had been made in the ACB register with regard to receipt of such information. He has admitted that Jagdishbhai had entered the Talati’s office first and that he had followed him. He has admitted that Jagdish Patel had told the Talati that he required the 7/12 extracts for the purpose of taking a loan from the bank and that the accused had asked Jagdishbhai Patel to sit and had asked the second Talati, Shri Mori to furnish copies of 7/12 and 8-A to Jagdish Patel. He has further admitted that at that time, the panchayat clerk Shri Champak and two three other persons were also present in the office. He has further admitted that after the copies were ready, the accused had made entry in the register and Jagdish Patel had signed the same and the copies had been given to Jagdishbhai. He has further admitted that Jagdishbhai’s work, namely the copies of extracts which he had demanded was already over in the office itself and the accused had handed over the copies to him. He has further admitted that after the copies were given by the accused to Jagdish Patel, the accused had told Jagdish Patel that there were outstanding revenue dues which he should pay. He has admitted that at that time, Jagdish Patel had told the accused that he does not have any money with him at present and that he should prepare the details of the revenue dues and come to his barnyard where he would pay the same. The accused at that point of time had told him that he would prepare the details of the revenue dues and come to his office. He has admitted that after they reached the barnyard, Jagdishbhai was sitting in the office. After half an hour, the accused had come and Jagdishbhai had called for tea through his man. While they were having tea, the accused had taken out the details of the revenue dues from his pocket and was discussing the same with the Jagdishbhai.
11. Prosecution Witness No.3 – Kalidas Akhamsinh Damor is the second panch who had accompanied the raiding party and it is not necessary to refer to his evidence in detail. The Investigating Officer – Laxmanbhai Muljibhai Vaghela has been examined at Exh.52. He hes deposed that he had received information through informers that the Talati-cum- Mantri of Ranoli village was demanding Rs.100/- to Rs.500- 600/- for the purpose of furnishing extracts of village form No.7/12 and income certificates by way of illegal gratification other than legal remuneration. For the purpose of ascertaining the same, he had arranged the trap and had called two panchas and decoy-witness Jagdishbhai Vitthalbhai Patel who had agreed to be a punter. He has further deposed regarding the manner in which the currency notes were recovered from the accused and the ultraviolet lamp demonstration was conducted, and has more or less, deposed in consonance with the panchnama of the trap proceedings.
12. From the above referred evidence, it is apparent that there is a basic inconsistency in the prosecution case inasmuch as prosecution witness No.1 Jagdishbhai Patel has deposed to the effect that an amount of Rs.600/- had been demanded from him by the Talati-cum-Mantri for the purpose of furnishing copies of village form No.7/12 and 8-A in respect of which he had contacted the ACB Department and had met the Investigating Officer L.M. Vaghela. That after talking with him, he had asked him to get the amount of illegal gratification fixed after which he would take steps in this regard whereupon he (the complainant) had approached the accused who had demanded Rs.1000/- and on his request, had reduced such request to Rs.700/-. Per contra, as per the say of the Investigating Officer, he had received confidential information to the effect that the Talati-cum-Mantri of Ranoli Gram Panchayat was demanding Rs.100/- to Rs.500-600/- by way of illegal gratification for furnishing copies of village form No.7/12 and income certificates. That he had, therefore, decided to arrange a decoy trap and had called Jagdishbhai who had expressed willingness to act as a punter as well as two panchas. According to the version of Jagdishbhai, a demand of Rs.1,000/- had been made which came to be reduced to Rs.700/- whereas in the version given by the Investigating Officer as well as by the panchas, there is a reference to the demand of Rs.800/- which had been subsequently reduced to Rs.600/-.
13. Before proceeding further, reference may be made to the decision of the Supreme Court in the case of Chandrappa and Ors. vs. State of Karnataka, 2007 (4) SCC 415 wherein the following general principles have been laid down regarding the power of the appellate court while dealing with an appeal against an order of acquittal:-
1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
The facts of the present case are required to be examined in the light of the above referred principles.
14. It is settled legal position that insofar as the trap proceedings under the Prevention of Corruption Act are concerned, the testimony of the complainant and the panch would form the basis thereof. The prosecution is also required to prove that there was an initial demand, demand and acceptance at the time of the incident and recovery. In case of a running trap where the trap is laid on the basis of information alone, (as per the say of the Investigating Officer the present case is one of a running trap) the prosecution is required to prove demand and acceptance at the time of the incident and recovery thereof. Since in such a case the trap is laid on the basis of information alone, there would be no question of a prior demand. In the facts of the present case, insofar as Jagdishbhai Vitthalbhai Patel is concerned, he refers to a prior demand made by the accused pursuant to which he had approached the Anti-Corruption Bureau office whereas, as per the say of the Investigating Officer and the version given by the panchas, on the basis of confidential information that the Talati-cum-Mantri was demanding Rs.100/- to Rs.500-600/- for furnishing copies of village form No.7/12 and income certificates, the trap proceedings had been arranged. Thus, there are two contradictory versions coming on record as regards whether this was a case of an ordinary trap or a running trap.
15. Without further dilating on such controversy, the next factor which is required to be examined is as to whether the prosecution has established the requisite ingredients of a trap proceeding, viz. demand, acceptance and recovery. Insofar as the trap proceedings are concerned, the complainant Jagdishbhai has deposed that when they went to the panchayat office he met the accused and requested for his papers whereupon the accused told him to go to his office and that he would prepare the papers and come there. The panch No.1 has deposed that when they went to the panchayat office Jagdishbhai requested for copies of village forms No.7/12 and 8A in respect of his and his father’s lands whereupon the accused had called them outside and told that there were about eight copies hence, he would have to pay Rs.800/-. Upon the complainant requesting him to reduce the amount he agreed to take Rs.600/-. Thus, from the deposition of Jagdishbhai, it appears that there was a demand prior to the trap proceedings, whereas from the deposition of the panch No.1, it appears that the demand was made when they went to the Panchayat office to meet the accused. Thereafter, according to both the witnesses, the accused had asked Jagdishbhai to go to his office and that he would prepare the papers and come there. Thereafter, the accused came to Jagdishbhai’s barnyard office and handed over the extracts demanded by Jagdishbhai and asked him to pay the agreed amount pursuant to which Jagdishbhai handed over the muddamal currency notes to the accused. However, the panch No.1 in his cross-examination has taken a total u-turn and admitted that the copies of the village form No.7/12 had been handed over to Jagdishbhai in the office of the accused itself in the presence of other employees of the panchayat and that in acknowledgement thereof, Jagdish Patel had signed the panchayat register indicating that such copies had been furnished to him. He has also admitted that it was true that the work for which Jagdish Patel had gone was completed at the office itself and that the accused had given him copies of the extracts of the village forms. He has also stated that after such copies were furnished, the accused had informed Jagdish Patel that there were outstanding revenue dues which he was required to pay and Jagdish Patel had asked him to come to his office after getting the details and collect such amount, pursuant to which the accused had come to the office of Jagdish Patel. Thus, in his cross-examination the panch No.1 has totally demolished the prosecution case to the effect that the true copies of extracts of the village forms were not furnished to Jagdishbhai at the office of the village panchayat and that the said copies were delivered at the office of Jagdishbhai where the amount of Rs.600/- was demanded, paid, accepted and recovered by the personnel of the ACB office. Thus, the case of the prosecution that the accused had demanded Rs.600/- by way of illegal gratification other than legal remuneration stands shaken to a great extent.
16. Next, it may be noted that what is admitted by the panch No.1 in his cross-examination finds further corroboration in the documentary evidence which has been brought on record and has been admitted by Jagdishbhai in his deposition namely, the extracts of the panchayat register where Jagdishbhai has put his signature on 2nd February, 1994 indicating receipt of the documents which he had demanded. Besides, copies of documents showing that Jagdishbhai had outstanding revenue dues have also been brought on record and have been admitted by Jagdishbhai in his deposition. Thus, the defence taken by the accused to the effect that the amount of Rs.600/- was paid by Jagdishbhai towards his outstanding revenue dues stands established. Besides, the defence has also led sufficient evidence to show that Jagdishbhai had an axe to grind against the accused in view of the fact that pursuant to the instructions of the Revenue Secretary, he (the accused) had submitted an adverse report in respect of the buildings constructed by Jagdishbhai and his brothers on revenue survey No.26.
17. The Investigating Officer has, in his deposition, more or less, reiterated what is stated in the panchnama. However, in the light of the contradictory versions which have come on record, viz., Jagdishbhai states that the entire exercise had been conducted at his instance namely, upon his informing the Investigating Officer about the demand of illegal gratification made by the accused whereas according to the Investigating Officer that he had arranged a decoy trap upon receipt of confidential information with regard to demand of illegal gratification by the Talati-cum-Mantri for furnishing extracts of village form No.7/12 and income certificates, in the opinion of this court the testimony of the Investigating Officer cannot be said to be very reliable so as to base a conviction thereon.
18. Besides, there are also other inconsistencies in the versions of the witnesses inasmuch as according to Jagdishbhai, he had been asked to blow the horn of the motorcycle twice by way of a pre-arranged signal after the amount is accepted, whereas the panch witness and the panchnama and the Investigating Officer have stated that by way of the pre-decided signal, Jagdishbhai was required to move his left hand over his head in a circular movement. Though much significance cannot be attached to such a minor inconsistency, in the light of the major inconsistencies which have come on record, this is an additional factor.
19. Besides, another notable aspect of the matter is that Jagdishbhai Patel is a Deputy Sarpanch of Ranoli village and, therefore, a superior officer of the accused Talati-cum- Mantri. Under the circumstances, it is difficult to believe that an employee namely, the Talati-cum-Mantri would have the temerity to demand illegal gratification from a superior officer. Under the circumstances, the conduct of the Investigating Officer in requesting a superior officer of the Talati-cum-Mantri to act as a punter itself defies logic.
20. In the light of the overall evidence which has come on record namely that Jagdishbhai and his father had outstanding revenue dues in respect of which notice had been issued to him by the accused; the accused had given adverse report in respect of breach of N.A. permission in relation to revenue survey No.26 of village Ranoli as well as the fact that the accused had not acceded to the request of Jagdishbhai that a pucca road leading to his office be constructed out of the funds received under the Jawahar Rozgar scheme, it cannot be ruled out that Jagdishbhai may have falsely implicated the accused in the offence in question as he definitely had an axe to grind against him. Moreover, in the light of the deposition of the panch which is corroborated by the documentary evidence on record, viz., that the documents in question had been handed over to Jagdishbhai in the office of the Talati-cum- Mantri itself and that he (Jagdishbhai) had signed the register in acknowledgment thereof and that the amount of Rs.600/- was paid towards outstanding revenue dues, it is apparent that the respondent has put forth a plausible defence.
21. At this juncture reference may be made to the decision of the Supreme Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779, wherein the court has held thus:
“18. In Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725 this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the cir- cumstances under which it is paid is not sufficient to con- vict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.”
“21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to dis- prove 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 gratifica- tion.
22. It is equally well settled that the burden of proof placed upon the accused person against whom the pre- sumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.
“4. … It is well established that where the burden of an issue lies upon the accused, he is not required to dis- charge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has dis- charged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him un- der Section 4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. 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. The onus of proof lying upon the accused per- son is to prove his case by a preponderance of probabil- ity. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to dis- charge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.”(emphasis supplied)(See V.D. Jhingan v. State of U.P, AIR 1966 SC 1762.)
22. It is against this background of principles that this court has considered the contention of the respondent that the charge against him has not been proved. Having regard to the evidence discussed hereinabove as well as the findings recorded by the trial court, this court is satisfied that the respondent has proved his case by the test of preponderance of probability. The record of the case leads to the belief that the respondent had not taken the amount by way of illegal gratification but by way of payment of outstanding revenue dues of the complainant and his father. The prosecution has failed in establishing the guilt of the accused beyond reasonable doubt that the accused had received any illegal gratification.
23. In the result, the appeal fails and is, accordingly, dismissed.
( Harsha Devani, J. ) hki