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 28.8.1992 rendered by the learned Special Judge, Court No.2, Ahmedabad, in Special Case No.3 of 1990. The said case was registered against the present respondents original accused for the offence under Sections 7, 13(1)(d)(i) and (ii) and 13(2) of the Prevention of Corruption Act.
According to the prosecution case, the complainant Gordhanbai Mangilal Gosai lodged a complaint with the Anti Corruption Bureau at Ahmedabad on 30.12.1988 that the accused No.1 is demanding illegal gratification of Rs.300/- from him for not filing a case under the Prohibition Act against his friend Subhash Pande. The facts as alleged are that the complainant is a truck-driver with Raol Roadways and is driving heavy goods vehicle; he is staying near Narol Courts, Saraniya-Vas. That on 29.12.1988 his friend Subhash Pande had come to Ahmedabad with a truck from Bombay and the complainant had invited him at his residence for dinner. The complainant and his friend Subhash Pande are habituated to consume liquor and as such liquor was brought to the aforestated place of residence of the complainant on 29.12.1988, both the complainant and his friend truck-driver Subhash Pande after dinner were consuming liquor and were in drunkard condition. At that time, it is alleged that the accused No.1 who was the Police Sub-Inspector on duty at Narol Police Chowki on receiving information that the complainant has indulged in anti-prohibition activities, raided the house of complainant. However, the complainant was not inclined to give gratification amount of Rs.300/- to the accused no.1 and hence he approached the A.C.B. office whereupon the complaint was registered. On the basis of the said complaint raid was carried out by the A.C.B. and the bribe amount was found from the table of the accused.
Thereafter, charge came to be framed and explained to the accused persons, to which the accused persons not pleaded guilty and claimed to be tried.
In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence.
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.
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.
Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 28.8.1992 rendered by the learned Special Judge, Court No,2, Ahmedabad, in Special Case No.3 of 1990, the appellant - State has preferred the present appeal before this Court.
Heard Ms.Jirga Jhaveri, learned APP for the appellant - State. She has read charge Ex.7 and contended that looking to the allegations made against both the respondents - accused in connection of the demand made by the original accused No.1 and trap amount accepted by the son of the accused No.2 it shows that there was understanding between both the accused and in the result of understanding and agreement ingredients of Sections 107 and 108 of the Indian Penal Code the accused No.2 has accepted the trap amount from the complainant. She has read oral evidence of the P.W. No.1 - complainant and contended that looking to the evidence of P.W.No.1 it is disclosed by the P.W.No.1 at Ex.19 that present accused No.1 is abetted by the order of this Court passed in Criminal Misc. Application No.4724 of 2007 on 2.2.2012. She has contended that version of the complainant has proved that the demand was made by the accused No.1 and on non-availability of the accused No.1 at the time of first trap the complainant could not offer the trap amount to accused No.1 and in the result second trap was carried out by the Trapping Officer in presence of the panchas and then said amount of the trap is accepted by the accused No.2 as a abettor of accused No.1.
She has contended that Section 12 of the Act can come into way of prosecution. The definition of abetment is not described by P.C.Act, but its meaning can be considered from the provisions of Sections 107 and 108 of the Indian Penal Code.
She has contended that so far as main ingredients of abetment and abettor are concerned, it is proved beyond reasonable doubt from the evidence of the complainant. She has contended that some minor contradiction is proved in cross-examination of P.W. No.1 that minor contradiction cannot come into the way of the prosecution to show that the prosecution has failed to prove its case beyond reasonable doubt. She has contended that prosecution has examined P.W. No.2 who is a public servant and he has no enmity with the accused Nos.1 and 2.
She has contended that the defence has failed to prove defence version on probable defence. She has contended that from the evidence of the Trapping Officer the case of the prosecution is proved yet learned Judge has wrongly acquitted the respondent and abetted. She has contended that the sanction is not challenged by the defence. She has read judgment and order passed by the learned Judge and contended that the observations made by the learned Judge is not as per the provisions of law. The learned Judge has wrongly considered that when the demand is not proved beyond reasonable doubt the question regarding recovery of trapping amount cannot come into the way of the prosecution.
Heard Ms.Jyoti Mehta, learned advocate appearing for Mr.Vijay Patel, for the respondents. She has read charge and contended that accused No.1 is abetted by order of this Court on account of his death. She has contended that present respondent No.2 is cited as co-accused and abettor of the accused No.1. She has read oral version of the complainant and co-accused and contended that it is the duty of the prosecution to prove the case of the prosecution from the oral version to show that the appellant No.1 has abetted and in the result that amount of trap was accepted by him. She has contended that it is also the duty of the prosecution to prove that there was previous agreement with the accused No.1 and accused No.2 and in the result he was present at the place of Police Chowki and under the instructions of accused No.1 that trap amount is accepted by him. When the main ingredients of the word 'abetment' is not proved prima-facie, the role of the respondent No.2 cannot be covered within the meaning of abettor.
She has contended that from the oral version of the P.W. No.1 place of the demand is shown at his residence but in the cross-examination he has stated that the demand was made at Police Chowki. She has contended that at the time of the trap accused No.1 was not present and trap was failed. She has contended that the role of the Trapping Officer is totally negligent and it was the duty of the Trapping Officer to close the panchnama and at the time of second trap it should be started in a fresh manner. She has contended that so far as second trap is concerned, the evidence is not disclosed by P.W. No.1 - complainant that whether second demand was made by the accused No.1 is proved or not.
She has contended that from oral version of the complainant it shows that when he was convicted by the learned Magistrate Court for the offence punishable under the provisions of Prohibition Act an amount of Rs.75/- was paid by the respondent No.2 and it is not disclosed before the learned Judge that why the amount of Rs.75/- is paid by the respondent No.2. From the evidence of the complainant it shows that he is a interested witness and when he was booked by the respondent No.1 in a case of Prohibition just to take revenge forged complaint was registered at the A.C.B. Ahmedabad, against the respondents. The learned Judge has rightly observed that the prosecution has not proved the demand beyond reasonable doubt hence the respondents - accused cannot be convicted under the provisions of Sections 7, 13(1)(d)(i) and (ii) and 13(2) of the Prevention of Corruption Act.
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 APP.
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.
On a perusal of oral evidence of P.W. No.1 complainant he has disclosed ingredients of the demand through his oral version but as per say of the P.W. No.1 demand was not made at his residence. In the cross-examination it is admitted by him that, demand was not made at his residence but was made at the Police Chowki. I have minutely perused cross-examination of the P.W. No.1. He was convicted by the learned Magistrate Court prior to the trap for the offence punishable under the provisions of Prohibition Act. It also appears that at the first visit with the panchas at the place of Police Chowki he was not present. The material witness - Sadabhai Saryani, owner of the tea-stall is not examined by the prosecution. As per evidence of the complainant, when the material witness is not examined in support of the complaint then it creates some doubt. As per evidence of the prosecution witness he disclosed that Subhash Pande was present at the place of offence but his statement was not recorded by the Trapping Officer or Investigating Officer on the same date. It was disclosed by the Investigating Officer that Subhash Pande was not present therefore so his statement was not recorded at that time.
So far as contention of Ms.Mehta relating to conduct of the Trapping Officer being doubtful is concerned, I have perused conduct of the Trapping Officer and from the oral version of the P.W. No.1, 2 and 3 and from the contents of the panchnama and complaint it appears that Trapping Officer has committed some irregularities. From oral version of the P.W. No.2 panch who is star witness of the prosecution and also member of the raiding party at the time of trap, the demand is not disclosed through his oral version. So far as accused No.2, who is cited as abettor of accused No.1 and trap amount is accepted by him is concerned, he has disclosed that he was present at Police Chowki and he was called by the complainant outside the Police Chowki and amount was forcefully thrashed in his pocket and later on when it was verified by the accused No.1 he had seen that amount was thrashed by him. On overall perusal of the evidence of the prosecution case, Rs.75/- fine amount which is deposited with the learned Magistrate Court by the accused No.2 is not explained by the P.W.No.1. That conduct also creates doubt. As per evidence of the Trapping Officer it shows that in connection of the trap laid by the member of the raiding party they have to prove the case of the prosecution for the first demand which has failed and as far as second demand is concerned, it is the duty of the prosecution to prove beyond reasonable doubt that on which date and time demand was made to the complainant and by whom.
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.
In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 28.8.1992 rendered by the learned Special Judge, Court No,2, Ahmedabad, in Special Case No.3 of 1990, 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 Top