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2012 Supreme(Guj) 437
GUJARAT HIGH COURT
Hon’ble Mr. Justice Z.K. Saiyed
Durlabhji Damjibhai Vandra
Versus
State of Gujarat
Criminal Appeal No. 718 of 19971—Decided on 15/09/2012
Appearance :
Criminal Appeal No. 718 of 1997
Mr. J.M. Buddhbhatti, for the Appellant No. 1.
Mr. L.B. Dabhi, APP, for the Opponent No. 1.
Criminal Appeal No. 734 of 1997
Mr. D.M. Devnani, for the Appellant No. 1.
Mr. L.B. Dabhi, APP, for the Opponent No. 1.
Point in Issue :
Whether in the facts of the case finding of conviction of appellant is sustainable.
Headnote:Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 374 — [Indian] Evidence Act, 1872 (Central Act 1 of 1872) — Sections 8 and 35 — Prevention of Corruption Act — Sections 7, 13(1)(d), 13(2), 20 — Illegal gratification — Demand, acceptance and recovery — Conviction — Appeal against — Appreciation of evidence — Finding of — Sustainability — The prosecution has admittedly proved demand of illegal gratification from complainant party for providing seat in the reserved bus by accused No. 2 — The money of illegal gratification was received by accused No. 1 — When search was made money was recovered from him and anthraces no powder was found from his body — These proved facts and evidence of witnesses gives presumption under Section 20 of the Act against both the accused who were driver and conductor of the reserved bus — The presumption so arises is rebuttal one which accused can dislodged by leading credible evidence — In the case no evidence to the effect is produced by appellant accused and explanation offered by appellant is not acceptable — Looking to the facts Court opined that prosecution has proved beyond reasonable doubt that appellants accepted the illegal gratification and committed offence under the Act — The trial Court has committed no illegality in convicting the appellant.
Held :
In the case on hand, the money was admittedly demanded by the original accused No. 2 and recovered from the original accused No. 1 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-appellants 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 33]
Looking to the facts of the case, Court is of the considered opinion that the prosecution has proved beyond reasonable doubt that the appellants accused, being public servants, demanded the bribe amount and also accepted the bribe amount from the complainant. The accused have not discharged their burden of rebutting the statutory presumption of guilt against them. 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 No. 2 and in the result accepted by the accused No. 1 voluntarily as an illegal gratification. [Para 35]
Law Laid Down :
The demand and acceptance of the amount as illegal gratification is the sine qua non for constituting the offence under the Act.
Z.K. Saiyed, J.—The appellant – original accused No. 2, namely, Durlabhji Danjibhai Vandra of Criminal Appeal No. 718 of 1997 has preferred this appeal under Section 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 21.7.1997 passed by the learned Special Judge, City Civil Court No. 10, Ahmedabad, in Special Case No. 26 of 1993, whereby, the learned Special Judge has convicted the accused No. 2 for the offence punishable under Section 7 of the Prevention of Corruption Act and sentenced him to undergo R.I. for 6 (six) months R.I. and to pay a fine of Rs. 300/-, in default, to undergo further R.I. for 15 days. The accused No. 2 is also convicted for the offence punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and sentenced him to undergo R.I. for 1 (one) year and to pay a fine of Rs. 300/-, in default, to undergo further R.I. for 15 days. The learned Judge has ordered that substantive sentences are to run concurrently.
2. The appellant – original accused No. 1, namely, Habibbhai Rahimbhai Kureshi of Criminal Appeal No. 734 of 1997 has preferred this appeal under Section 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 21.7.1997 passed by the learned Special Judge, City Civil Court No. 10, Ahmedabad, in Special Case No. 26 of 1993, whereby, the learned Special Judge has convicted the accused No. 1 for the offence punishable under Section 7 of the Prevention of Corruption Act and sentenced him to undergo R.I. for 6 (six) months R.I. and to pay a fine of Rs. 300/-, in default, to undergo further R.I. for 15 days. The accused No. 1 is also convicted for the offence punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and sentenced him to undergo R.I. for 1 (one) year and to pay a fine of Rs. 300/-, in default, to undergo further R.I. for 15 days. The learned Judge has ordered that substantive sentences are to run concurrently.
3. As both the appeals arise out of the same Special Case, the same are heard together and disposed of by this common judgment.
4. The brief facts of the prosecution case are as under:
Accordingly the raiding party proceeded on the S.T. Bus Stand. During 1st and 2nd December, 1992 the accused No. 1 was working as driver and accused No. 2 was working as conductor in Gujarat State Road Transport Corporation at Savarkundla Depo. Police Inspector, Mr. K.R. Patel of Anti Corruption Bureau had filed a complaint on 2.12.1992 that he had received a definite information that the conductor and driver of the bus plying between Ahmedabad to Savarkundla via Jesar from S.T. Bus-stand, Gitamandir, in the early morning keep the bus in a place other than its regular stand and they allow the passengers to travel who had no reservation by taking Rs. 10 or Rs. 20/- as a bribe from such passengers. On 2nd December, 1992 the accused No. 1 was standing holding the door of the bus bearing No. GJ1Z 1032 at S.T. Bus Depo of Ahmedabad for Saurashtra side at 5:25 in the morning and accused No. 2 was sitting on the steps of the bus keeping the door open. At that time, the accused No. 2, in collusion with the accused No. 1 demanded Rs. 5/- each in total Rs. 15/- from the complainant and two other persons accompanying the complainant for sitting in bus without reservation. Thereafter, the accused No. 2 allowed the complainant and two other persons to sit in the bus near the seat of driver’s cabin and closed the door and started the bus and stopped at Ahmedabad Savarkundla Bus Stand, Platform No. 3 and at 5:50 hours the accused No. 1 from the complainant demanded and accepted Rs. 15/- as illegal gratification in addition to legal charges and thereby committed offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. Thereafter, investigation was carried out and after following the necessary procedure, and on grant of sanction, the charge-sheet agains
