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 20.4.1998 rendered by the learned Special Judge, Surat, in Special Case No.7 of 1994. The said case was registered against the present respondent original accused for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act.
2. According to the prosecution case, on 30.4.1993, the accused was working as Mamlatdar, Nizar Taluka. The complainant Narsinhbhai T. Patel had given an application for permission to cut Arun tree situated in Survey No.426. On 20.5.1993, the accused came for visit at site and met the complainant and demanded Rs.500/ as illegal gratification in addition to regular charges. The complainant requested to reduce the amount as he is poor, therefore the amount was reduced to Rs.200/ and the accused told the complainant to come and give Rs.200/ at the office on 26.5.1993 in between 3:00 to 6:00 p.m. The complainant approached the A.C.B. Office and lodged complaint about the same. 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 Prevention of Corruption 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 20.4.1998 rendered by the learned Special Judge, Surat, in Special Case No.7 of 1994, the appellant – State has preferred the present appeal before this Court.
7. Heard Mr.L.B.Dabhi, learned APP for the appellant – State. He 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. He has contended that in connection of the demand made by the respondent to the complainant, the complainant approached investigating agency and then preliminary panchnama was carried out in presence of panchas and that contention is proved through oral version of the prosecution witnesses.
8. He has contended that the accused has received the amount. There was marks of anthracene powder on the hands and on the pocket of shirt of the accused. He has contended that the demand and acceptance of bribe is proved in this case. He has contended that the learned Judge has committed grave error in not considering the case of the prosecution. He has contended that the amount is recovered from the table of the respondent – accused but the learned Judge has wrongly considered that provisions of Section 7 of the Prevention of Corruption Act is not proved beyond reasonable doubt. Lastly, he has read the observations of the learned Judge and contended that the observation of the learned Judge is not proper in eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
9. Notice is served to the other side. Mr.V.M.Pancholi, learned advocate is appearing for the respondent.
10. Heard Mr.V.M.Pancholi, learned advocate for the respondent – accused. He has contended that in case of corruption demand, acceptance, recovery and presumption must have to be proved through oral as well as documentary evidence beyond reasonable doubt. He has contended that the prosecution has failed to prove contents of the complaint and panchnama. He has contended that simple recovery of amount is not sufficient to convict the accused. He has read contents of the panchnama and contended that sufficient contradictory version is proved beyond reasonable doubt. Lastly he has contended that no interference is required in the judgment and order passed by the learned Judge.
11. 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.
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. I have minutely perused evidence of the complainant and from the evidence of the complainant it is not proved beyond reasonable doubt that present respondent has made any demand. It is true that in case of corruption demand is required to be proved beyond reasonable doubt. Simple recovery of the muddamal trap amount or any other article is not sufficient to convict the accused for the offence punishable under the provisions of Corruption Act. The evidence of the complainant does not get corroboration from the evidence of panch witness. On the contrary, they contradict each other.
14. In the present case, prosecution has failed to prove that respondent – accused demanded any amount from the complainant. Even recovery from the table of the respondent – accused creates some doubt.
15. 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.
16. In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 20.4.1998 rendered by the learned Special Judge, Surat, in Special Case No.7 of 1994, acquitting the respondent – accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.
(Z.K.SAIYED, J.) kks