2007 Supreme(Guj) 310

Gujarat High Court
Judgename :C.K.BUCH
AMRISHBHAI MANUBHAI BRAHMBHATT - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL APPEAL 526 Of 1993
Decided On : 05/10/2007

Headnote:Point in Issue :

       Whether circumstances and fact situation sufficient to draw presumption that appellant demanded and accepted bribe?

       Head Note :

       (a) Prevention of Corruption Act, 1988 (Central Act 49 of 1988) - Sections 7, 12, 13(1)(d)(i) and (ii) read with Section 13(2) - Illegal gratification - Acceptance of - Appreciation of evidence - Finding as to - The accused are alleged to be posted on duty at octroi checkpost Odhav at the relevant time where they demanded and accepted Rs. 20/- as bribe for under valuation of goods to less determine the amount of octroi payable - Considering the statement of complainant, panchas and Investigating Officer Court held that clinching circumstances say that this is a case where Court ought not to draw any presumption of acceptance of bribe by accused because alleged acceptance of amount given by complainant was mainly to recover the octroi fee - There was no reason to demand Rs. 20/- more nor there was any necessity for complainant to give Rs. 20/- more when receipt of Rs. 60/- was practically prepared and Form-F was also ready with the figure of the value of the goods - Even if it is accepted that on account of presence of anthracene powder found by ultra violet lamp and tallying of the currency notes with the number of notes mentioned in the first part of Panchanama recorded by Investigating Officer on complaint there is scope to draw any presumption against accused then there are ample circumstances and facts situation which are sufficient to rebut such presumption on the principles of preponderance of probabilities - In view of the above Court observed that the finding recorded by Trial Court is invalid and cannot be sustained - Court accordingly allowed the appeal and set aside conviction and sentences imposed.

       Held :

       Keeping in mind all these settled legal principles and oral as well as documentary evidence available on record in the present case, the Court is of the view that the finding recorded by the learned Trial Judge is invalid and cannot sustain in the eye of law being a finding based on erroneous interpretation and improper appreciation of the evidence and the learned Trial Judge has wrongly observed that presumption in the present case has not been rebutted to the satisfaction of the Court. On the contrary, the clinching circumstances say that this is a case where the learned Trial Judge ought not to have drawn any presumption because alleged acceptance of the amount given by the complainant was mainly to recover the octroi fees. There was no reason to demand Rs. 20/ more nor there was any necessity for the complainant to give Rs. 20/ more when receipt of Rs. 60/- was practically prepared and Form: F was also ready with the figure of the value of the goods. So, this is a case where the presumption could not have been drawn, has been drawn. Even if it is accepted that there is a scope to raise presumption against the accused, then also, there are ample circumstances and facts situation which are sufficient to rebut such presumption on the principles of preponderance of probabilities. [Para 27]

       Head Note :

       (b) Criminal Jurisprudence - Finding of Court - Nature of - It should not be a moral finding only but it should be legal and based on the facts legally proved.

       Held :

       Time and again, it is observed by the Apex Court that the finding of the Court may be moral, but it should not be a moral finding only. Firstly, the finding should be legal and based on the facts legally proved. The Courts have limited jurisdiction to draw inference on the strength of proved facts and conjectures and surmises drawn on moral conviction of a Judge has no room to play, is the accepted proposition of our criminal jurisprudence. [Para 26]

       Head Note :

       (c) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Section 313 - Statement of accused - Incriminating circumstances - Supposed to be explained - Except where explanatory situation as automatically emerging.

       Held :

       It is settled legal position that the accused is supposed to explain about all incriminating circumstances and if need be he can give evidence to rebut the same.

       But it is also an accepted principle of criminal jurisprudence of our country that the explanatory situation as automatically emerging, if has emerged from the evidence led during the course of trial, then the accused cannot be said to have any obligation to put up his own explanation and he can point out the probability at the time of arguments. [Para 21]

       Law Laid Down :

       Finding of Court must not be only moral but should be legal and based on the facts legally proved.

       Case Law Analysis :

       Dhanvantrai Desai vs. State of Maharashtra, AIR 1964 SC 575 [Para 21];; Kantilal H. Patel vs. State of Gujarat, 2007 (1) GLH 736 [Para 25].-Applied

       Conclusion :

       The finding of guilty recorded against accused by trial Court is invalid and cannot be sustained.

       Decided in Favour of :

       Appellant

       Appeal Allowed