Gujarat High Court
Dineshbhai Ramanlal Dabhi vs State Of Gujarat on 18 March, 2026
NEUTRAL CITATION
R/CR.A/94/2005 JUDGMENT DATED: 18/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 94 of 2005
With
R/CRIMINAL APPEAL NO. 282 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO: Sd/-
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Approved for Reporting Yes
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DINESHBHAI RAMANLAL DABHI
Versus
STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Appellant(s) No. 1
MS NIYATI B KATIRA(5095) for the Appellant(s) No. 1
MR. ADITYA JADEJA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/03/2026
COMMON ORAL JUDGMENT
1. These appeals have been filed by the appellants –
original accused under Section 374 of Code of Criminal
Procedure, 1973 against the judgement and order of
conviction passed by the learned Special Judge, Court No.
5, Ahmedabad (hereinafter referred to as “the learned Trial
Court”) in Special Case No. 19/2000 on 10.01.2005,
whereby, the learned Trial Court was pleased to convict the
appellants and sentence the appellants to rigorous
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imprisonment of three years and fine of Rs. 1500/- each
and in default, simple imprisonment for three months for
the offence punishable under Sections 7 of the Prevention of
Corruption Act, 1988 (hereinafter referred to as “the PC
Act“), rigorous imprisonment of three years and fine of Rs.
1500/- each and in default, simple imprisonment for three
months for the offence punishable under Sections 12 of the
PC Act and rigorous imprisonment of three years and fine of
Rs. 1500/- each and in default, simple imprisonment for
three months for the offence punishable under Sections
13(2) of the PC Act. All the sentences were ordered to run
concurrently.
1.1 Criminal Appeal No. 94/2005 has been filed by the
original accused no. 1 and Criminal Appeal No. 282/2005
has been filed by the original accused no. 2 against the
same impugned judgement and order passed by the learned
Trial Court in Special Case No. 19/2000 on 10.01.2005 and
hence, both the appeals have been disposed of by this
common judgement.
1.2 The appellant of Criminal Appeal No. 94/2005 and
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appellant of Criminal Appeal No. 282/2005 are referred as
the accused in the rank and file as they stood in the original
case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 The accused no. 1 was working as a PSI and the
accused no. 2 was a Police Constable and both were posted
at the Rakhiyal Police Station in September 1999 and were
public servants. On 08.09.1999 an offence at Rakhiyal
Police Station I – C.R. No. 93 of 1999 was registered and the
complainant of this case Umashankar Brahmjitsinh
Bhadoriya was named as an accused in the FIR. Both the
accused came to the cycle stand of the complainant situated
in ESI General Hospital, Bapunagar and demanded an
amount of Rs. 20,000/- as a legal gratification to remove the
name of the complainant from the FIR and to not beat him
and to produce him directly before the concerned
Magesterial Court and after bargaining the amount was
settled at Rs. 15,000/-. On the same day an amount of Rs.
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1000/- was accepted by the accused no. 2 for the benefit of
the accused no. 1 and thereafter, an amount of Rs. 250/-
was accepted on 13.01.2000 by the accused no. 2. Once
again on 16.01.2000 an amount of Rs. 1000/- was accepted
as illegal gratification and in all an amount of Rs. 2,250/-
was accepted by both the accused. On 18.01.2000, at
around 05.30 pm, the accused no. 2 came to the cycle stand
of the complainant and told him that he would come on the
next day between 04.00 pm and 05.00 pm at the cycle stand
and to keep an amount of Rs. 4000/- ready. The
complainant did not want to pay the amount of illegal
gratification and on 19.01.2000 went to the ACB Police
Station, Ahmedabad and the complaint of the complainant
was registered.
2.2 The Trap Laying Officer called the panch witnesses and
the complainant gave 8 currency notes of the denomination
of Rs. 500/- each. Assistant Sub-Inspector – Manikant
Shukal under the instructions of the Trap Laying Officer
conducted the demonstration of ultraviolet lamp and
anthracene powder and explained the characteristics of the
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same to the complainant and the panch witnesses. All the
currency notes were smeared with anthracene powder and
placed in the left shirt pocket of the complainant and
necessary instructions to all were given and the Panchnama
Part-I was drawn. As decided, the complainant, panch
witnesses and members of the raiding party left in
government Tata Sumo registration no. GJ-1-G-2942 and
went to the ESI General Hospital, Bapunagar and halted the
vehicle in a lane near the Bapunagar Municipal School. The
complainant and the panch no. 1 alighted and walked to the
General Hospital, Bapunagar and at around 17.30 hours,
the accused no. 2 came walking to the cycle stand and sat
on a bench and took the Daily Sandesh in his hand and
started reading the newspaper. The accused no. 2 sat on the
same bench where the panch no. 1 was seated and after
some time, he went to the complainant and asked the
complainant whether it was done. The complainant told him
that the money was arranged for and tried to bargain for the
Rs. 4000/- and the accused no. 2 refused to reduce the
amount and accepted the amount of Rs. 4000/- which was
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given by the complainant with his right hand from his left
shirt pocket. The accused no. 2 accepted the amount with
his left hand and placed it in the front pocket of his jeans
and at that time, the complainant told the accused no. 2 to
give the amount to the accused no. 1. The complainant gave
the predetermined signal and the members of the raiding
party came and the accused no. 2 was caught red-handed.
The offence was registered at Ahmedabad City ACB Police
Station C.R. No. 2 of 2000 under Sections 7, 12, 13(1)(d) (1)
(2)(3) and 13(2) of the PC Act.
2.3 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the Sessions Court,
Ahmedabad and the case was registered as Special Case No.
19/2000.
2.4 The accused were duly served with the summons and
the accused appeared before the learned Trial Court and
after the procedure under Section 207 of Code of Criminal
Procedure, 1973 was followed, a charge was framed by the
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learned Trial Court at Exh. 1 and the statements of the
accused were recorded at Exhs. 2 and 3 respectively. The
accused denied all the contents of the charge and the entire
evidence of the prosecution was taken on record.
2.5 The prosecution examined 4 witnesses and produced 4
documentary evidences on record in support of their case
and after the learned Additional Public Prosecutor filed the
closing pursis, the further statement of the accused under
Section 313 of the Code of Criminal Procedure, 1973 were
recorded. The accused denied the evidence and refused to
step into the witness box or lead any evidence and stated
that a false case has been filed against them. After the
arguments of the learned APP and learned advocates for the
accused were heard, the learned Trial Court, by the
impugned judgment and order dated 10.01.2005, was
pleased to find the accused nos. 1 and 2 guilty and
sentence them to rigorous imprisonment of three years and
fine of Rs. 1500/- each and in default, simple imprisonment
for three months for the offence punishable under Sections
7 of the PC Act, rigorous imprisonment of three years and
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fine of Rs. 1500/- each and in default, simple imprisonment
for three months for the offence punishable under Sections
12 of the PC Act and rigorous imprisonment of three years
and fine of Rs. 1500/- each and in default, simple
imprisonment for three months for the offence punishable
under Sections 13(2) of the PC Act. All the sentences were
ordered to run concurrently.
3. Being aggrieved and dissatisfied with the judgment
and order of conviction, the appellant of Criminal Appeal
No. 94 of 2005 who is the original accused no. 1 has filed
the appeal mainly stating that the judgment and order of
conviction is illegal contrary to the principles of criminal
jurisprudence and is liable to be quashed and set aside. The
learned Trial Court has not properly appreciated that the
charge has not been proved beyond reasonable doubts and
has failed to appreciate that the prosecution has not
established their case of demand, acceptance and recovery
from the appellant. The prosecution has not examined any
independent witnesses and no recovery of the alleged money
is made from the appellant. The appellant has been
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convicted only on the basis of the statement made by the
accused no. 2 and only on the basis of the deposition of the
complainant that the appellant had taken Rs. 1000/-, the
learned Trial Court has convicted the appellant. The learned
Trial Court has failed to appreciate that the complainant
has categorically stated that the accused no. 2 had
demanded the alleged bribe amount for not implicating the
complainant and there is no iota of evidence that the
appellant had ever demanded any amount of illegal
gratification and accepted any amount at any time from the
complainant and that no amount of illegal gratification was
recovered from the appellant. The impugned judgement and
order is perverse and illegal and has been passed without
considering that no ingredients of demand, acceptance and
recovery are proved and hence, the appeal may be allowed
and the appellant be acquitted from the offence.
3.1 The original accused no. 2 has filed Criminal Appeal
No. 282 of 2005 and has challenged the impugned judgment
and order being aggrieved by the same mainly stating that
the judgment and order of conviction is neither warranted
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by law nor by evidence adduced by the prosecution. The
learned Trial Court has failed to appreciate that the
prosecution has miserably failed in proving its case beyond
reasonable doubts and has not appreciated that the
appellant was not the Writer of the original accused no. 1.
That in fact, the appellant was the Writer of Police Inspector
– D. A. Damor who was posted in the Rakhiyal Police Station
at the relevant time and the Writer of the original accused
no. 1 was one Dashvishsinh Solanki and the appellant was
never serving under the original accused no. 1. The
appellant has never met the complainant on 08.09.1999
and has never demanded any amount from the
complainant. That in fact, the complainant was an
absconding accused in connection with I – C.R. No. 93 of
1999 registered at Rakhiyal Police Station and has totally
filed a false case and trapped the appellant and co-accused
just to get rid of the case registered against him. The
defense raised by the appellant was more probable than the
case of the prosecution as the complainant had a grudge
against the original accused no. 1 as he was absconding
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and with a view to get out of the same, he has filed the false
case against the appellant. The impugned judgment and
order of conviction is illegal, unjust, improper and bad in
law and the same is required to be quashed and set aside
and the appellant must be acquitted for the offence.
4. Heard learned advocate Mr. P.P. Majmudar assisted by
learned advocate Ms. Niyati Katira and learned advocate Mr.
Suraj Matieda for the appellant of Criminal Appeal No.
94/2005 and learned advocate Mr. Mehul Sharma for
learned advocate Mr. Nitin Amin for the appellant of
Criminal Appeal No. 282/2005 and learned APP Mr. Aditya
Jadeja for the respondent State in both the appeals.
5. Learned advocate Mr. P.P. Majmudar assisted by
learned advocate Ms. Niyati Katira and learned advocate Mr.
Suraj Matieda for the appellant of Criminal Appeal No.
94/2005 and learned advocate Mr. Mehul Sharma for the
appellant of Criminal Appeal no. 282/2005 have both taken
this court through the entire evidence of the prosecution
and have submitted that the learned Trial Court has not
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appreciated that no demand of any amount of illegal
gratification was made by the appellant and in fact, the
complainant was an absconding accused in a case
registered at Rakhiyal Police Station. There was no
connection between both the appellants and they could not
have worked on the same case and even though the
probable defense was taken up, the same has not been
considered by the learned Trial Court. In their further
statement under Section 313 of the Code of Criminal
Procedure, 1973, both the appellants have explained the
reason for them being falsely implicated but the same has
not been considered by the learned Trial Court and merely
relying on the evidence of the complainant, who was an
absconding accused in the case registered at Rakhiyal Police
Station I C.R No. 93/1999, has passed the impugned
judgment in order of conviction. As per the case of the
complainant, there were a number of independent witnesses
but no such independent witnesses have been examined
before the learned Trial Court. As far as the demand is
concerned, there is no independent evidence regarding the
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prior demand and the panch witness at the time of the trap
did not hear the demand as per the case of the prosecution.
The appellant of Criminal Appeal No. 282 of 2005 and the
complainant had walked away and there is no iota of
evidence of any demand, acceptance or recovery from the
appellant of Criminal Appeal No. 94 of 2005. It is on record
that the panchnama was dictated by the Trap Laying Officer
to his Writer and the panch witnesses did not dictate the
panchnama. Moreover, there are major contradictions in the
depositions of the complainant and panch witness and the
impugned judgment in order of conviction is illegal,
perverse, bad in law and is required to be quashed and set
aside and the appeals of the appellants must be allowed.
6. Learned APP Mr. Aditya Jadeja for the respondent
State has submitted that the learned Trial Court has
appreciated the evidence and passed the impugned
judgement and order and no interference is required hence,
both the appeals may be rejected.
7. Before appreciating the evidence of the prosecution on
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record, it is necessary to reiterate the cardinal principles of
jurisprudence as settled by the Apex Court in a catena of
decisions and the first cardinal principle is that the
prosecution is required to prove their case beyond
reasonable doubts. The prosecution cannot take any benefit
of the weaknesses of the defense. The second cardinal
principle is that in a criminal trial, the accused is presumed
to be innocent until he/she is proved guilty by the evidence
adduced by the prosecution on record beyond reasonable
doubts and the third cardinal principle is that the onus of
burden never shifts from the prosecution.
8. As far as conviction appeals are concerned, the Apex
Court in Goverdhan & Anr. Vs. State of Chattisgarh
reported in 2025 INSC 47 has observed in para 23 to 26 as
under:
23. The concept of reasonable doubt has to be also understood in
the Indian context, keeping in mind the social reality and this
principle cannot be stretched beyond a reasonable limit to avoid
generating a cynical view of law as observed by this Court in
Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2
SCC 793 as follows:
“6. Even at this stage we may remind ourselves of a
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necessary social perspective in criminal cases which suffers
from insufficient forensic appreciation. The dangers of
exaggerated devotion to the rule of benefit of doubt at the
expense of social defence and to the soothing sentiment that
all acquittals are always good regardless of justice to the
victim and the community, demand especial emphasis in the
contemporary context of escalating crime and escape. The
judicial instrument has a public accountability. The
cherished principles or golden thread of proof beyond
reasonable doubt which runs through the web of our law
should not be stretched morbidly to embrace every hunch,
hesitancy and degree of doubt. The excessive solicitude
reflected in the attitude that a thousand guilty men may go
but one innocent martyr shall not suffer is a false dilemma.
Only reasonable doubts belong to the accused. Otherwise
any practical system of justice will then break down and
lose credibility with the community. The evil of acquitting a
guilty person light heartedly as a learned Author [ Glanville
Williams in ‘Proof of Guilt’.] has sapiently observed, goes
much beyond the simple fact that just one guilty person has
gone unpunished. If unmerited acquittals become general,
they tend to lead to a cynical disregard of the law, and this
in turn leads to a public demand for harsher legal
presumptions against indicted “persons” and more severe
punishment of those who are found guilty. Thus, too frequent
acquittals of the guilty may lead to a ferocious penal law,
eventually eroding the judicial protection of the guiltless. For
all these reasons it is true to say, with Viscount Simon, that
“a miscarriage of justice may arise from the acquittal of the
guilty no less than from the conviction of the innocent ….” In
short, our jurisprudential enthusiasm for presumedPage 15 of 34
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innocence must be moderated by the pragmatic need to
make criminal justice potent and realistic. A balance has to
be struck between chasing chance possibilities as good
enough to set the delinquent free and chopping the logic of
preponderant probability to punish marginal innocents. We
have adopted these cautions in analysing the evidence and
appraising the soundness of the contrary conclusions
reached by the courts below. Certainly, in the last analysis
reasonable doubts must operate to the advantage of the
appellant. In India the law has been laid down on these
lines long ago.”
24. Further, what would be the standard degree of “proof” which
would be required in any particular case was also discussed in
the aforesaid case of Ramakant Rai (supra) in the following
words:
“23. A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is,
however, no absolute standard. What degree of probability
amounts to “proof” is an exercise particular to each case.
Referring to (sic) of probability amounts to “proof” is an
exercise, the interdependence of evidence and the
confirmation of one piece of evidence by another, as learned
author says : [see The Mathematics of Proof II : Glanville
Williams, Criminal Law Review, 1979, by Sweet and
Maxwell, p. 340 (342)]
“The simple multiplication rule does not apply if the
separate pieces of evidence are dependent. Two events
are dependent when they tend to occur together, and
the evidence of such events may also be said to bePage 16 of 34
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dependent. In a criminal case, different pieces of
evidence directed to establishing that the defendant did
the prohibited act with the specified state of mind are
generally dependent. A juror may feel doubt whether to
credit an alleged confession, and doubt whether to infer
guilt from the fact that the defendant fled from justice.
But since it is generally guilty rather than innocent
people who make confessions, and guilty rather than
innocent people who run away, the two doubts are not
to be multiplied together. The one piece of evidence may
confirm the other.”
24. ……………….. ………………..
25. The concepts of probability, and the degrees of it, cannot
obviously be expressed in terms of units to be
mathematically enumerated as to how many of such units
constitute proof beyond reasonable doubt. There is an
unmistakable subjective element in the evaluation of the
degrees of probability and the quantum of proof. Forensic
probability must, in the last analysis, rest on a robust
common sense and, ultimately, on the trained intuitions of
the judge. While the protection given by the criminal process
to the accused persons is not to be eroded, at the same time,
uninformed legitimisation of trivialities would make a
mockery of the administration of criminal justice. This
position was illuminatingly stated by Venkatachaliah, J. (as
His Lordship then was) in State of U.P. v. Krishna Gopal
[(1988) 4 SCC 302 : 1988 SCC (Cri) 928 : AIR 1988 SC
2154].”
25. At this point, it may be also relevant to mention an
observation made by Lord Denning, J. in Miller v. Miller of
Pensions (1947) 2 All ER 372, 373 H:
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“That degree is well settled. It need not reach certainty, but it
must carry a high degree of probability. Proof beyond
reasonable doubt does not mean proof beyond the shadow of
a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the court of
justice….”
26. Thus, the requirement of law in criminal trials is not to prove
the case beyond all doubt but beyond reasonable doubt and such
doubt cannot be imaginary, fanciful, trivial or merely a possible
doubt but a fair doubt based on reason and common sense.
Hence, in the present case, if the allegations against the
appellants are held proved beyond reasonable doubt, certainly
conviction cannot be said to be illegal.
9. With regard to the cases under the PC Act, the Apex
Court, in the case of Aman Bhatia Vs. State (GNCT of
Delhi) reported in 2025 INSC 618 has observed in Para No.
51 to 54 and paras 63 to 65 as under:
51. It is well settled that mere recovery of tainted money, by
itself, is insufficient to establish the charge against an accused
under the PC Act. To sustain a conviction under Sections 7 and
13(1)(d) of the Act respectively, it must be proved beyond
reasonable doubts that the public servant voluntarily accepted
the money, knowing it to be a bribe. The courts have consistently
reiterated that the demand for a bribe is a sine qua non for
establishing an offence under Section 7 of the PC Act.
52. A five-Judge Bench of this Court in Neeraj Dutta v. State
(Government of NCT of Delhi), reported in (2023) 4 SCC 731,
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the public servant have to be proved by the prosecution as a fact
in issue for conviction under Sections 7 and 13(1)(d)(i) and (ii) of
the PC Act. Mere acceptance of illegal gratification without proof
of offer by bribe-giver and demand by the public servant would
not make an offence under Sections 7 and 13(1)(d)(i) and (ii)
of the PC Act. The relevant observations are reproduced
hereinbelow:
“88.4. (d) In order to prove the fact in issue, namely, the
demand and acceptance of illegal gratification by the public
servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver without there
being any demand from the public servant and the latter
simply accepts the offer and receives the illegal gratification, it
is a case of acceptance as per Section 7 of the Act. In such a
case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand
and the bribe-giver accepts the demand and tenders the
demanded gratification which in turn is received by the public
servant, it is a case of obtainment. In the case of obtainment,
the prior demand for illegal gratification emanates from the
public servant. This is an offence under Sections 13(1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe-
giver and the demand by the public servant respectively have
to be proved by the prosecution as a fact in issue. In other
words, mere acceptance or receipt of an illegal gratification
without anything more would not make it an offence under
Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home
the offence, there must be an offer which emanates from the
bribe-giver which is accepted by the public servant which
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would make it an offence. Similarly, a prior demand by the
public servant when accepted by the bribe-giver and in turn
there is a payment made which is received by the public
servant, would be an offence of obtainment under Sections
13(1)(d)(i) and (ii) of the Act.”
53. It was further explained by this Court in P. Satyanarayana
Murthyv. State of A.P., reported in (2015) 10 SCC 152, as
follows:”
23. The proof of demand of illegal gratification, thus, is the
gravamen of the offence under Sections 7 and13(1)(d)(i) and
(ii) of the Act and in absence thereof,unmistakably the charge
therefor, would fail. Mere acceptance of any amount allegedly
by way of illegal gratification or recovery thereof, dehors the
proof of demand, ipso facto, would thus not be sufficient to
bring home the charge under these two sections of the Act. As
a corollary, failure of the prosecution to prove the demand for
illegal gratification would be fatal and mere recovery of the
amount from the person accused of the offence under Section
7 or 13 of the Act would not entail his conviction thereunder.”
54. From the above exposition of law, it may be safely concluded
that mere possession and recovery of tainted currency notes
from a public servant, in the absence of proof of demand, is not
sufficient to establish an offence under Sections 7 and 13(1)(d) of
the PC Act respectively. Consequently, without evidence of
demand for illegal gratification, it cannot be said that the public
servant used corrupt or illegal means, or abused his position, to
obtain any valuable thing or pecuniary advantage in terms of
Section 13(1)(d) of the PC Act.
55.xxxxx
56.xxxxx
57.xxxxx
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58.xxxxx
59.xxxxx
60.xxxxx
61.xxxxx
62.xxxxx
v. Presumption under Section 20 of the PC Act
63. Insofar as the presumption under Section 20 of the PC Act is
concerned, such presumption is drawn only qua the offence
under Sections 7 and 11 respectively and not qua the offence
under Section13(1)(d) of the PC Act. The presumption is
contingent upon the proof of acceptance of illegal gratification to
the effect that the gratification was demanded and accepted as
a motive or reward as contemplated under Section 7 of the PC
Act. Such proof of acceptance can follow only when the demand
is proved.
64. In that case, the prosecution evidence alone cannot be
considered for the purpose of coming to the conclusion. The
evidence led by the prosecution and, the suggestions made by
the defence witnesses, if any, are also required to be considered.
It is then to be seen as to whether the total effect of the entire
evidence led before the court is of a nature by which the only
conclusion possible was that the public servant accepted the
amount. If the answer is in affirmative, then alone it can be held
that the prosecution established the case beyond reasonable
doubt.
65. Undoubtedly, the presumption under Section 20 arises once
it is established that the public servant accepted the
gratification. However, in determining whether such acceptance
occurred, the totality of the evidence led at the trial must be
appreciated. The evidence led by the prosecution, the
suggestions made by the defence witnesses, if any, the entire
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record is required to be considered. Only if the cumulative effect
of all the evidence is such that the sole possible conclusion is
that the public servant accepted the gratification can it be said
that the prosecution has established its case beyond reasonable
doubt.
10. As per the settled principles of law in conviction
appeals and as observed by the Apex Court in the case of
Goverdhan (supra), when the appellate Court finds that the
findings of fact was based on a wholesome erroneous
approach and the very basis of reasoning was not in the
right perspective and the intrinsic merit of the evidence of
the witness was not considered and the trial was perversely
disposed of permitting manifest errors and glaring
infirmities, the appellate Court can interfere and exercise
the powers in a conviction appeal and a finding on merits,
after considering and meticulously dissecting the evidence
on record, is imperative. As far as a conviction under the PC
Act is concerned it is settled by the Apex Court that the
prosecution has to prove the case beyond reasonable doubts
and proof of demand is a sine qua non for an offence under
the PC Act. Only if the demand is proved beyond reasonable
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doubts with cogent and convincing evidence, the
prosecution would benefit by the presumption under
Section 20 of the PC Act and the conviction would be
sustained.
11. In light of the above settled principles of law the
evidence on record is minutely dissected and PW1 –
Umashankar Panikar examined at Exh. 23 is the
complainant who has narrated the facts as stated in the
complaint which is produced at Exh. 24. The complainant
has narrated the events that had taken place on the day of
the trap and in the cross examination by the learned
advocate for the accused, the witness has stated that he
was running a cycle stand at the ESI General Hospital,
Bapunagar and a tender for the cycle stand is issued every
year. From the year 1981 for a period of 2-3 years, the
contract of the cycle stand was with Udayvir Singh and
from the year 1983 to 1999, the contract was with some
other person. He was working in the New Textile Mill,
Dyeing Department and he was being paid whenever he
was present at the mill. One Sajansingh Bhardoriya was
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the Security Guard at the ESI General Hospital, Bapunagar
and the security point is near the gate of the cycle stand.
Kanubhai Koshti, Pratap Punjabhai Parmar and Deepak
Manilal Chaudhary were working at the cycle stand on the
day of the incident and on 08.09.1999, he was at the
hospital campus at around 11.45 and at that time as
Shivam was injured with a knife, there was a stampede at
the hospital and Shivam was immediately taken to
Shardaben Hospital. He had gone away from the
Bapunagar Hospital Campus at that time and he does not
know what procedure was undertaken by the Rakhiyal
Police Station Mobile Van. The offence that was registered
wherein Shivam was injured was being investigated by the
accused no. 1 and on 08.09.1999, he did not have any
conversation with the accused no. 1. He did not have any
contact with the accused from 08.09.1999 to 08.01.2000.
The accused no. 2 was the Writer of Police Inspector Damor
and the accused no. 2 would frequent his cycle stand to
have tea. He knew that in the investigation, it had emerged
that with regard to the incident on 08.09.1999, he was the
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person who had assaulted Shivam with a knife and he
wanted that his name should be removed from the FIR as
the person who had assaulted Shivam. On 08.09.1999, the
accused no. 1 had come to the cycle stand and had
recorded the statements of all the persons working at the
cycle stand and the security person and the statements
were recorded at the cycle stand at around 04.30 pm. He
had taken the copy of the complaint about the incident of
assault by knife from the Gheekanta Court after two days
and he knew that he was an accused in that case. His elder
brother Udayvir Singh had a lot of influence with the police
and he was not arrested by the Rakhiyal Police. He was
produced in the court and released on bail on 28.03.2000
and the charge sheet was filed against him before the
Magisterial Court. In his complaint with regard to the
incident and conversation on 18.01.2000 with the accused
no. 2, there was no reference about the accused no. 1 and
he had earlier gone twice to the ACB Office. They had
reached the cycle stand at General Hospital, Bapunagar at
about 04.30 pm and the accused no. 2 came after about
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half an hour. He had gone with the accused no. 2 a little
away and at that time the panch no. 1 was sitting on the
bench.
11.1 PW2 – Madhubhai Patel examined at Exh. 29 is the
panch witness who has narrated the entire procedure
undertaken by the Trap Laying Officer on 19.01.2000 when
he and the other panch witness Girishkumar Hirabhai
Vaghela had gone to the ACB Office until the trap was
successful. The witness has stated that he was the shadow
witness and at the time of the trap, the accused no. 2 came
and sat on the bench and thereafter, the complainant and
the accused no. 2 walked for a distance of about 10 feet
away and had a conversation and he saw the complainant
take out the currency notes from his left shirt pocket and
give it to the accused no. 2 who took it and placed it in the
left pocket of his trousers. The complainant gave the
predetermined signal and the members of the raiding party
came and caught the accused. The witness has stated that
the test of ultraviolet lamp was done at the same place and
the panchnama was drawn and the trousers of the accused
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no. 2 including the currency notes were seized. The
panchnama is produced at Exh. 30. In the cross-
examination by the learned advocate for the accused the
witness has stated that he does not know who had come
from the ACB Office to call them and he did not wish to go
to the ACB Office but had gone as per the instructions of
his superior officer. He is aware that if he does not depose
as per the panchnama, steps can be taken against him and
he would face difficulty in his service. The panchnama was
dictated by the Trap Laying Officer and the Writer was
writing the panchnama and he or the other panch witness
did not dictate the panchnama. At the time of the trap, the
complainant and the accused no. 2 had gone at a distance
of about 10 feet away and from a distance he felt that they
were arguing. The accused no. 2 was caught at the table
which is placed near the shed but he does not know who
had caught the accused no. 2. He was given a copy of the
panchnama to read before his deposition in the learned
Trial Court and the Panchnama Part-II was written at the
cycle stand. The Panchnama Part-II was also dictated by
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the Trap Laying Officer and written by the Writer and
thereafter they were asked to affix their signatures. They
were called to the ACB Office after two days where their
statements were recorded and they were asked to affix their
signature.
11.2 PW3 – Laxmanbhai Solanki examined at Exh. 33 is the
Trap Laying Officer who has narrated the entire procedure
undertaken by on 19.01.2000 until the trap was successful.
In the cross examination by the learned advocate for the
accused the witness has stated that he was not aware
whether the complainant was an accused in the assault by
knife incident that had taken place on 08.09.1999 as the
complainant did not bring a copy of the FIR with him when
he came to file the complaint. The complainant was not
arrested till 19.01.2000 and he did not inquire as to why
the complainant was not arrested in the offence. He did not
have any information that the complainant was a wanted
accused in a case at Rakhiyal Police Station and he himself
had gone to call the panch witnesses and at that time the
complainant was seated in his office. At the time of the
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trap, the panch no. 1 was seated on the bench and the
complainant and the accused no. 2 went walking for a
distance of about 6 to 7 feet. The accused no. 2 was not
arrested at that same place and he had walked a little away
from the place where he was with the complainant towards
the gate.
11.3 PW4 – Hirabhai Nayak examined at Exh. 36 is the
Investigating Officer who has narrated the procedure
undertaken by him during investigation. The witness has
produced the order of sanction for prosecution at Exh. 37.
In the cross examination by the learned advocate for the
accused, the witness has stated that the complainant was
an accused in Rakhiyal Police Station, I – C.R. No. 93 of
1999 and the trap was in relation to that offence. He had
seized a copy of the FIR of Rakhiyal Police Station I – C.R.
No. 93 of 1999 and the same is produced at Exh. 38. He
had also seized a copy of the case diary of the offence. He
had recorded the statement of the complainant on
23.01.2000 but does not know whether the complainant
was arrested in Rakhiyal Police Station I – C.R. No. 93 of
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1999. When he recorded the statement of the complainant,
he knew that the complainant was an absconding accused
at Rakhiyal Police Station, I – C.R. No. 93 of 1999 but he did
not arrest him. The accused no. 2 was not the Writer of the
accused no. 1 but was the Writer of Police Inspector – V.D.
Damor.
12. Upon a meticulous reappreciation of the entire
evidence on record, this Court finds that the prosecution
has failed to establish the foundational requirement of
demand of illegal gratification which is sine qua non for an
offence under the Prevention of Corruption Act. As per the
complaint, the initial demand is alleged to have been made
on 08.09.1999 at the cycle stand in the compound of ESI
General Hospital, Bapunagar shortly after the alleged
incident, when both accused had arrived in a mobile van. It
is further alleged that an amount of Rs. 20,000/- was
demanded and settled at Rs. 15,000/- and that on the very
same day an amount of Rs. 1000/- was paid at
Hardasnagar Crossroads at the milk shop of one Umesh
Tomar. However, the complainant has admitted in his
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evidence that he had no conversation with accused no.1 on
the said date and the alleged presence of independent
witnesses namely the workers at the cycle stand, has not
been substantiated by their examination before the learned
Trial Court. The alleged payment at the milk shop also
remains uncorroborated as neither the said Umesh Tomar
nor any other independent witness from the shop has been
examined. The complainant has further admitted that he
did not meet the accused between 08.09.1999 and
08.01.2000, thereby rendering the alleged continuity of
demand doubtful. In these circumstances, the prosecution
has failed to prove the initial demand. Insofar as the alleged
subsequent demands and the trap proceedings are
concerned, the evidence is equally deficient. The prosecution
case that on 16.01.2000 accused no.2 reiterated the
demand at the cycle stand and accepted the tainted
amount, is not supported by reliable evidence. The panch
witness has categorically stated that the conversation
between the complainant and accused no.2 took place at a
distance and was not audible to him, thereby rendering the
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alleged demand at the time of trap unproved. There are
material contradictions between the evidence of the
complainant and the panch witness with regard to the
manner in which the panchnama was prepared. While the
prosecution asserts that the panchnama was drawn
contemporaneously, the panch witness has deposed that
both parts of the panchnama were dictated by the Trap
Laying Officer and merely signed by the panchas, casting
serious doubt on its evidentiary value. Further, the
ultraviolet lamp test is stated to have been conducted at an
open public place and there is no cogent evidence as to the
handling or preservation of the clothes of accused no.2
including the unexplained change of garments, which
further weakens the prosecution case. Significantly, there is
no reliable evidence to establish any nexus between accused
no.1 and accused no.2. The Investigating Officer himself has
admitted that accused no.2 was not attached to accused
no.1 but was a writer to another officer at the Police Station.
In the absence of proof of demand, acceptance and recovery
in accordance with law, and in light of the failure of the
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prosecution to examine material witnesses who were
allegedly present at the time of demand and payment, the
prosecution case is rendered doubtful. The learned Trial
Court has failed to properly appreciate these material
infirmities and has also not adequately considered the
defence raised by the accused. In view of the aforesaid
deficiencies and inconsistencies, this Court is of the
considered opinion that the prosecution has not proved its
case beyond reasonable doubt. The conviction recorded by
the learned Sessions Court is therefore unsustainable in law
and deserves to be set aside. The accused are entitled to the
benefit of doubt and are accordingly acquitted of the
charges levelled against them. Consequently, the appeals
succeed and are allowed.
13. The impugned judgment and order of conviction
passed by the learned Special Judge, Court No. 5,
Ahmedabad in Special Case No. 19/2000 on 10.01.2005, is
hereby quashed and set aside and the appellant of Criminal
Appeal No. 94/2005 and the appellant of Criminal Appeal
No. 282/2005 are acquitted from all the charges against
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them.
14. Bail bonds stand cancelled. Fine to be refunded to the
accused after due verification. Record and proceedings, if
any, be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VASIM S. SAIYED
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