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2015 Supreme(Guj) 35
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL
RAVI R.TRIPATHI and MOHINDER PAL, JJ.
A M DESAI - Petitioner(s)
Versus
STATE OF GUJARAT & 1 - Respondent(s)
CIVIL APPLICATION NO. 125 of 2012
Decided on: 20/01/2015
Advocate Appeared
MR PERCY KAVINA, Senior Advocate, with MR BIREN A VAISHNAV, Advocate for the Petitioner(s) No. 1
MR H A SHAH, ADVOCATE for the Petitioner(s) No. 1 MR RASHESH RINDANI, AGP for the Respondent(s) No. 1
MR SHALIN MEHTA, Senior Advocate with MR HEMANG M SHAH, Advocate for the Respondent(s) No. 2
The main legal point established is the need for the prosecution to prove guilt beyond reasonable doubt in corruption cases, the presumption of gratification, and the burden of proof on the accused to rebut the presumption.
Headnote:
Bribery - Judicial Misconduct - Prevention of Corruption Act 1988, Indian Penal Code - Sec. 20, 7, 11, 13, 12, 14 - The court discussed the charges against the petitioner, the trap laid, and the evidence presented. It highlighted the legal provisions of the Prevention of Corruption Act 1988, the presumption of gratification, and the burden of proof. The court found that the petitioner proved the amount recovered was for a business transaction, not gratification, and set aside the dismissal, ordering reinstatement with back salary and interest.
Fact of the Case:
The petitioner, a judicial officer, was dismissed from service based on allegations of bribery and judicial misconduct. The charges were related to accepting illegal gratification and unbecoming conduct as a judicial officer.
Finding of the Court:
The court found that the evidence presented did not establish that the petitioner accepted gratification. It highlighted the burden of proof, presumption of gratification, and the failure of the authorities to prove guilt beyond reasonable doubt. The dismissal was set aside, and the petitioner was ordered to be reinstated with back salary and interest.
Issues: The issues revolved around the allegations of bribery, judicial misconduct, and the burden of proof in establishing guilt beyond reasonable doubt.
Ratio Decidendi: The court emphasized the need for the prosecution to prove guilt beyond reasonable doubt, the presumption of gratification, and the burden of proof on the accused to rebut the presumption. It held that the petitioner proved the amount recovered was not gratification but for a business transaction.
Final Decision: The petition succeeded, and the dismissal from service was set aside. The petitioner was ordered to be reinstated with full back salary and seniority, along with interest. The High Court was also directed to pay a token cost of Re.1 to the petitioner.
(PER : HONOURABLE MR.JUSTICE MOHINDER PAL)
1. This petition has been filed under Article 226 of the Constitution of India challenging notification dated 14.09.2011 of the Legal Department, State of Gujarat, dismissing the petitioner from service of Civil Judge (Senior Division) & JMFC, on the basis of the recommendations of the High Court (on its administrative side).
2. Petitioner joined the judicial service as Civil Judge (Junior Division) & JMFC on 24.10.1991. In July 2000, he was promoted as Civil Judge (Senior Division). On 10.10.2001 while in service, a chargesheet was served upon the petitioner alleging that, while he was working as JMFC at Surat, an accused Jasubhai Oad, facing Criminal Case No.751 of 1987 pending with Metropolitan Court at Ahmedabad, had contacted him to settle the case by misplacing the file. In this regard, Jasubhai Oad, in all, would pay a sum of rupees one lakh, out of which Rs.50,000/-was to be paid immediately and the remaining Rs.50,000/-was to be paid within a period of 2-3 months. As the second installment of Rs.50,000/-was not paid, it was decided that the petitioner would be paid interest @ 4% per month on the remaining amount of Rs.50,000/-. The amount of interest @ 4% per month was being paid to the petitioner since 1998. However, since October 2001, Jasubhai Oad failed to pay the interest of Rs.2000/-per month and accordingly a sum of Rs.10,000/-was outstanding against Jasubhai Oad. It is further case of the complainant that the petitioner made demand for this amount of Rs.10,000/-. The matter was then brought to the notice of the High Court. A trap was laid and Vigilance Cell of the High Court caught the accused red-handed while accepting Rs.10,000/- on 18.02.2001.
3. The chargesheet further narrates that on examination of Rojnama of Criminal Case No.752 of 1997, it was found that orders were having rubber stamp without signature of the Magistrate and, therefore, for some obvious reasons during the period from March 1997 to March 2001, the case was not placed before the Magistrate and, therefore, the act of the petitioner amounted to indulging in corruption, thus unbecoming of a judicial officer.
4. The imputation was denied by the petitioner by filing a detailed report to the chargesheet on 11.6.2002 taking various grounds, some of which are as under:
(1) Chargesheet was frivolous and false. The complainant and the petitioner were known to each other since their college-days and were residing in the same locality till the petitioner started practicing at Ahmedabad;
(2) On the date of trap, i.e. 18.02.2001, petitioner in a detailed statement had explained that the charges were motivated and false inasmuch as:
(i) the amount of Rs.10,000/-which the petitioner alleged to have accepted as an amount of outstanding interest for five months (on the outstanding bribe of Rs.50,000/-) was in fact the amount outstanding towards a business transaction between the petitioner’s brother Karamshibhai and complainant’s brother-in-law Keshavsinh Mali. That the petitioner had come to complainant’s office with his brother to accept this outstanding amount of business transaction, as a mediator, on behalf of his brother, at the complainant’s behest on a call made the previous day of the trap on 17.2.2001. That while he was sitting at his brother’s residence on the day of trap, he was called to the complainant’s office where he went along with his brother Karamshibhai. His brother was asked to wait outside the office of the complainant and an amount of Rs.10,000/-was offered to the petitioner by the complainant, which was accepted by him. Petitioner was caught while accepting this amount, little knowing that the complainant had enroped him into a false case of accepting interest on outstanding instalment of bribe, when in fact the amount was being accepted by the petitioner as an outstanding amount of a business transaction which the complainant’s brother-in-law owed to the petitioner’s brother
