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2012 Supreme(Guj) 311
IN THE HIGH COURT OF GUJARAT
Hon’ble Mr. Justice Z.K. Saiyed
Shantilal Vallabhji Joshi
Versus
State of Gujarat
Criminal Appeal No. 18 of 1997—Decided on 02/07/2012
Appearance :
Mr. Nitin M. Amin, for the Appellant No. 1.
Mr. Jirga Jhaveri, APP for the Opponent No. 1.
Point in Issue :
Whether in the fact and circumstances of the case conviction appellant under the Act sustainable.
Headnote:Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 374(2) — Prevention of Corruption Act — Sections 7, 7A, 13(2) read with Sections 13(1)(d) and 20 — Demand and acceptance of illegal gratification — Conviction — Appeal — Scope of — The prosecution has proved beyond reasonable doubt that appellant accused being a public servant demanded the bribe amount and also accepted the same from complainant — Thus gives rise to presumption under Section 20 of the Act that he has agreed to accept illegal gratification and accepted the same as a motive or reward — The presumption is rebuttable by accused but in the case accused has not explained by discharging his burden of statutory presumption of guilt against him — In the facts and circumstances Court held that no other presumption except the one reached by the Learned trial Court is possible in the instant case — There does not exist any valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence.
Held :
Court is of the opinion that the prosecution has proved beyond reasonable doubt that the appellant - accused, being a public servant, demanded the bribe amount and also accepted the said bribe amount from the complainant. The accused has not explained by discharging his burden of rebutting the statutory presumption of guilt against him. From the facts and evidence on record it is clearly established beyond reasonable doubt that the amount by way of bribe was demanded by the accused and he accepted the same voluntarily as an illegal gratification. [Para 30]
Court is in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the learned trial Court and Court is of the view that no other conclusion except the one reached by the learned trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. [Para 31]
Law Laid Down :
Demand and acceptance of the amount as illegal gratification is the sine qua non for constituting an offence under the Act.
Z.K. Saiyed, J.—The appellant – original accused has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 18.12.1996 passed by the learned Special Judge, Jamnagar, in Special Case No. 8 of 1989, whereby, the learned Special Judge has convicted the appellant – accused for the offence under Section 7 of the Prevention of Corruption Act and sentenced him to undergo R.I. of 6 (six) months and to pay a fine of Rs. 1,000/-, in default, to undergo further R.I. for one week. The appellant is also convicted for the offence under Section 13(2) read with Section 13(1)(d) of the P.C. Act and sentenced him to undergo R.I. for a period of 1 (one) year and to pay a fine of Rs. 1,000/-, in default, to undergo further RI for one week, which is impugned in this appeal.
2. The brief facts of the prosecution case are as under:
The complainant was running an oil mill with the name and style as Natvar Oil Mill. In the year 1988 he received an electric consumption bill for Rs. 1,93,056.48 ps. in connection with the power theft. Being aggrieved by the said bill the complainant moved the Court of Civil Judge, J.D. Khambhalia and obtained stay against the execution of the said bill and payment could not be made to the GEB. One and half month before dated 15.4.1988, the accused Shantilal V. Joshi, who is office bearer of the Akhil Gujarat Vidyut Mandal, came to the Mill of the complainant and informed him that some bills are likely to be received from the GEB as he has made application in the form of complaint. While confirming it, the accused was shown application to this effect to the complainant wherein details of his factory’s complaint and name of other factories were also included in it regarding power theft. The accused told the complainant that to get his name deleted he has to incur some expenses to which the complainant agreed. On 13.4.1989 the accused came to the Mill of the complainant and told that name of his Mill has been deleted from the list of power theft and the accused demanded Rs. 3,500/- as illegal gratification other than the legal remuneration. As the complainant was not willing to pay any amount as illegal gratification to the accused, he approached the Inspector of Anti-corruption Bureau and lodged the FIR. On receipt of the complaint, the Investigating Officer called the panchas and completed the necessary formalities and thereafter they proceeded at the spot in the Government vehicle. Upon reaching at Khambhalia the complainant and the panch went to the Oil Mill of the complainant and took over seat in the office. Remaining persons including panch No. 2 and the Inspector of ACB remained unnoticed out of the office of the complainant and took their position in the compound. Thereafter the accused came to the office of the complainant. The complainant welcomed the accused saying “Avo Joshibhai”. The accused thereafter took the chair lying near the complainant. The complainant told the accused that the amount of Rs. 3,500/- is more and it should be reduced. The accused refused by saying that, ‘nothing will be reduced’. On the contrary, he should pay Rs. 200/- more as I am your Gor. The complainant told that he has only Rs. 1,000/- as per their talk. In reply to that the accused told give me Rs. 1,500/- I have to go to Baroda. The complainant took out the tainted currency notes from his pocket of the shirt by his right hand and gave it to the accused, who willingly accepted the tainted currency notes of Rs. 1,000/- from the complainant. The complainant then gave the pre-planned. The raiding party thereafter rushed to the spot and recovered currency notes of Rs. 1,000/- from the physical and conscious possession of the appellant.
3. Thereafter, investigation was carried out and after following the necessary procedure, and on grant of sanction, the charge-sheet against the accused came to be submitted before the Court.
4. Thereafter, the
