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2012 Supreme(Guj) 364
IN THE HIGH COURT OF GUJARAT
Hon’ble Mr. Justice Z.K. Saiyed
Manubhai Jawanji Zala
Versus
State of Gujarat
Criminal Appeal No. 1060 of 1999—Decided on 30/07/2012
Appearance :
Mr. Bomi H. Sethna, for the Appellant No. 1.
Ms. Jirga Jhaveri, APP for the Opponent No. 1.
Point in Issue :
Whether in the facts and circumstances of the case conviction of appellant accused is just and proper.
Headnote:Prevention of Corruption Act — Sections 7, 13(2) and 20 — Gratification other than illegal remuneration — Demand and acceptance — Trial — Conviction — Appreciation of evidence — Finding of — Sustainability — Considering the oral and documentary evidence produced by prosecution and looking to the facts of the case Court held that prosecution has proved beyond reasonable doubt that appellant accused being a public servant demanded the bribe amount and also accepted the same from complainant — The accused has not explained by discharging his burdon of rebutting the statutory presumption of guilt against him — Court held that no other conclusion except the one reached by the trial Court is possible in the instant case — There is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence — Court therefore confirmed the order and judgment passed by trial Court.
Held :
In the case on hand, the money was admittedly recovered from the possession of the accused-appellant and therefore a presumption under Section 20 of the Act becomes obligatory. It is a presumption of law and it casts an obligation on the court to apply it in every case brought under Section 7 of the Act. The said presumption is a rebuttable one. In the present case, the explanation offered by the accused-appellant has not been accepted and there is no evidence on the basis of which it can be said that the presumption has been rebutted. [Para 31]
All the witnesses have supported the case of the prosecution. The currency notes were recovered from the possession of the appellant. In the cross-examination nothing has really been elicited to doubt his presence and veracity of the testimony. The appellant in his further statement under Section 313 of the Code of Criminal Procedure has made an adroit effort to explain his stand but Court has no hesitation in holding that he miserably failed to dislodge the presumption. Thus analysed and understood, there remains no shadow of doubt that the accused-appellant had demanded the bribe and accepted the same to provide license. Therefore, the conviction recorded by the learned trial Judge does not warrant any interference. [Para 32]
Court is in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and Court is of the view that no other conclusion except the one reached by the 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 34]
Law Laid Down :
Demand and acceptance of the amount of 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 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 20.9.1999 passed by the learned Special Judge, Ahmedabad City, in Special Case No. 4 of 1995, 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. 300/-, in default, to undergo further R.I. for 15 (fifteen) days. The appellant is also convicted for the offence under Section 13(2) 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. 300/, in default, to undergo further R.I. for 15 (fifteen) days, which is impugned in this appeal. The learned Judge has ordered that substantive sentences are to run concurrently.
2. The brief facts of the prosecution case are as under:
That one Rajendra Jivanlal Soni gave a complaint to ACB Police on 29.7.1994 mainly alleging that he had a goldsmith shop situated at Ganesh Apartments, Naroda, Ahmedabad. On 26.7.1994 at about 9:30 a.m. Sanitary Inspector of Ahmedabad Municipal Corporation named Manubhai, J. Jhala came to his shop and inquired, whether he had license for hand operated machine situated in his shop? Then complainant replied that his hand operated machine does not require any license, then Mr. Jhala told that without license, no machine can be operated and case is to be filed against you and if you want that case should not be filed against you, then he should understand something and told that Rs. 1,000/- is to be paid to him. Then complainant told that he cannot pay this much amount and so finally Mr. Jhala told that Rs. 200/- be paid to him at his Ahmedabad Municipal Corporation Office, at Naroda. He was called to give Rs. 200/- to him on 29.7.1994 and so he has filed this complaint to police. Two panchas were called by A.C.B. police. After following the due procedure raid was carried out and Mr. Jhala was caught red handed. 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.
3. Thereafter, the charge was framed against the appellant to which the appellant – accused pleaded not guilty and claimed to be tried.
4. In order to bring home the charge levelled against the appellant accused, the prosecution has examined witnesses and also produced documentary evidence on record of the trial Court.
5. After examining the witnesses, further statement of the appellant-accused under Section 313 of CrPC was recorded wherein the appellant-accused denied the case of the prosecution.
6. After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, Ahmedabad City, in Special Case No. 4 of 1995, vide impugned judgment and order dated 20.9.1999, held the appellant – accused guilty of the charge levelled against him and convicted and awarded the sentence as stated herein above.
7. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Ahmedabad City, the present appellant has preferred this appeal.
8. Heard Mr. Bomi H. Sethna, learned advocate for the appellant and Ms. Jirga Jhaveri, learned APP for the respondent State.
9. Mr. Sethna has read the charge and contended that the learned Special Judge has failed to appreciate that there are four stages which are required to be proved through the evidence of the complainant and there should be corroboration to all those stages i.e. (i) initial demand (ii) second demand to be made in presence of panch (iii) acceptance and (iv) recovery. He has contended that prosecution has examined the complainant, panchas, trapping officer, Sanctioning Officer as well as Investigating Officer. From the evid
