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 22.2.1995 rendered by the learned Special Judge, Panchmahal at Godhra, in Special Case No.4 of 1991. The said case was registered against the present respondents original accused for the offence under Sections 120(B), 420 and 471 of the Indian Penal Code and under Sections 5(1)(g) and 5(2) of the Prevention of Corruption Act.
2. According to the prosecution case that, during the period from dated 18.3.1982 to 13.10.1982 it was proposed by the Government to make construction of 80 residential units for landless persons at Kanjari Village of Taluka Halol and the construction of the said residential units was entrusted to accused No.4, who is a contractor under the supervision of accused Nos.1, 2 and 3. During this period the accused persons had agreed for construction of 7 residential units in place of 80 residential units and dug pit for some units only and thereby without constructing all the units and by producing bogus certificates pocketed Rs.2,12,000/ and committed offence under Sections 120(B) and 420 of the Indian Penal Code. 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. Thereafter, the charge was framed against the respondents to which the respondents – accused pleaded not guilty and claimed to be tried.
4. Thereafter, after filing closing pursis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.
5. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondents – accused.
6. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 22.2.1995 rendered by the learned Special Judge, Panchmahal at Godhra, in Special Case No.4 of 1991, 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 learned Judge has failed to appreciate the fact that as per the prosecution case the respondent No.4 had taken contract to build 50 residence for landless people which were to be constructed under the supervision of accused Nos.1, 2 and 3. The respondent did not construct 50 residence, he constructed only 6 residence and got a false certificate in collusion with accused No.1 and 3 that all the residence are built up and on the basis of such false certificate, recovered the money for the whole construction.
9. She has contended that the learned Judge has failed to appreciate the fact that the prosecution witnesses Chandu Magan and Punja Mani have stated in their evidence that their houses were not constructed by the contractor and they have constructed on their own. 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.
10. Heard Mr.H.J.Shah, learned advocate for the respondent NO.1 accused. He has read charge and contended that it is the duty of the prosecution to prove demand, acceptance and recovery beyond reasonable doubt. He has read judgment and order and contended that the learned Judge has rightly observed that said three factors of the prosecution case are lacking in. Lastly he has contended that no interference is required in the judgment and order passed by the learned Judge.
11. 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.
12. 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.
13. Mr.R.B.Chauhan, Police Inspector, A.C.B. has admitted that none of the respondents has made any attempt for illegal gratification and even from the statement of the witnesses it is not established. When the demand, acceptance or misconduct is not proved beyond reasonable doubt through oral as well as documentary evidence, then learned Judge has rightly acquitted the respondents.
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 respondents 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 22.2.1995 rendered by the learned Special Judge, Panchmahal at Godhra, in Special Case No.4 of 1991, acquitting the respondents – accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks