{"id":23212,"date":"2011-08-25T00:00:00","date_gmt":"2011-08-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jayantilal-vs-state-on-25-august-2011"},"modified":"2015-12-01T11:20:02","modified_gmt":"2015-12-01T05:50:02","slug":"jayantilal-vs-state-on-25-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jayantilal-vs-state-on-25-august-2011","title":{"rendered":"Jayantilal vs State on 25 August, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Jayantilal vs State on 25 August, 2011<\/div>\n
Author: Z.K.Saiyed,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/644\/2000\t 25\/ 25\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 644 of 2000\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 805 of 2000\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================\n\n\n \n\nJAYANTILAL\nCHHOTALAL SARVAIYA - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================\n \nAppearance : \nMR\nKB ANANDJIWALA for\nAppellant(s) : 1, \nMR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for\nOpponent(s) : 1, \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\nDate\n: 25\/08\/2011\n \n\nCAV\nJUDGMENT\n<\/pre>\n
Since
\n\tthe present appeals are arising out of the common judgment and order
\n\tdated 13th June, 2000, passed by the learned Special
\n\tJudge, Junagadh, in Special Case No.08 of 1990, the appeals are
\n\tdecided by this common judgment.\n<\/p>\n
So
\n\tfar as Criminal Appeal No.644 of 2000 is concerned, the same is
\n\tfiled by the original accused against the judgment and order of
\n\tconviction and so far as Criminal Appeal No.805 of 2000 is
\n\tconcerned, the same is filed by the State of Gujarat for enhancement
\n\tof sentence.\n<\/p>\n
Appellant
\n\tof Criminal Appeal No.644 of 2000 has preferred the appeal under
\n\tSection 374(2) of the Code of Criminal Procedure, 1973 against the
\n\tjudgment and order of conviction and sentence dated 13th
\n\tJune, 2000 passed by the learned Special Judge, Junagadh, in Special
\n\tCase No.08 of 1990, whereby the
\n\tlearned Special Judge has convicted the appellant for the offence
\n\tpunishable under Section 7 of the Prevention of Corruption Act, 1988
\n\tand sentenced him to undergo rigorous imprisonment for a period of
\n\tone year, and also imposed fine of Rs.2,500\/-, and in default of
\n\tpayment of fine, sentenced him to undergo rigorous imprisonment for
\n\ta further period of three months. The learned Special Judge has also
\n\tconvicted the appellant for the offence punishable under Section
\n\t13(1)(d) read with Section 13(2) of the Prevention of Corruption
\n\tAct, 1988 and sentenced him to undergo rigorous imprisonment for a
\n\tperiod of six months, and also imposed fine of Rs.1,500\/-, and in
\n\tdefault of payment of fine; sentenced him to undergo rigorous
\n\timprisonment for a further period of one month. The learned Judge
\n\thas ordered that the sentences awarded to the accused shall run
\n\tconcurrently.\n<\/p>\n
As
\n\tper the case of the prosecution, the appellant was serving as
\n\tTalati-cum-Mantri at village Datrana, District Junagadh. The
\n\tcomplainant and his brother were having a piece of land admeasuring
\n\t4.31 Acers  in the sim of village. It is the case of the prosecution
\n\tthat the complainant has made an application dated 27th
\n\tJuly, 1989 to the Mamlatdar to separate the names of both the
\n\tbrother and to have different account in panchayat record and to
\n\tobtain ledger books in their names. It is the case of the
\n\tprosecution that when the said application was sent by the Mamlatdar
\n\tto the appellant for following procedure, the appellant demanded
\n\tillegal gratification of Rs.500\/-, which was lastly settled to
\n\tRs.400\/-, from the complainant. It is further the case of the
\n\tprosecution that out of bribe amount of Rs.400\/-, Rs.200\/- was
\n\talready given by the complainant to the appellant. It is the case of
\n\tthe prosecution that the appellant had told the complainant to give
\n\tremaining amount of Rs.200\/- to him on 05th March, 1990
\n\tbetween 18.00 hours and 19.00 hours at the shop of his brother at
\n\tMendarda.\n<\/p>\n
As
\n\tthe complainant was not willing to give Rs.200\/- to the appellant,
\n\the approached the Police Inspector, A.C.B., Junagadh and lodged his
\n\tcomplaint on 05th March, 1990 at about 14.10 hours.
\n\tThereafter, services of two panchas were sought, facts of the case
\n\twere narrated to them and thereafter experiment of U.V. Lamp was
\n\tcarried out with the help of anthrecene powder. The basic
\n\tingredients of the anthrecene powder were explained and made
\n\tunderstood to the panchas as well as to the complainant. Thereafter,
\n\tcurrency notes produced by the complainant were smeared with
\n\tanthrecene powder. Number of notes were noted in the preliminary
\n\tpart of panchnama. The said currency notes were put in the left
\n\tpocket of bush-shirt of the complainant. Thereafter, the Police
\n\tInspector, A.C.B., gave necessary instructions to the complainant as
\n\twell as to the panchas. Thereafter, preliminary part of the
\n\tpanchnama was drawn and signature of the panchas were taken below
\n\tthe panchnama. Thereafter, the complainant, panchas and members of
\n\tthe raiding party proceeded to Mendarda to carry out raid in a taxi.\n<\/p>\n
 \tIt
\n\t\tis the case of the prosecution that they reached Mendarda at about
\n\t\t18.00 hours. The complainant and panch No.1 went towards shop of
\n\t\tbrother of the appellant, where the appellant was to be contacted.
\n\t\tThe panch No.2 and members of raiding party spread in the
\n\t\tsurrounding area waiting for signal of the complainant. When the
\n\t\tcomplainant entered in the shop, accused was present in the shop.
\n\t\tThe complainant went inside the shop whereas panch No.1 was
\n\t\tstanding near the steps of the otta of the shop. The appellant
\n\t\twelcomed the complainant and offered chair just opposite to him by
\n\t\tsaying come and sit. Thereafter, the appellant asked the
\n\t\tcomplainant as to whether he had brought the amount or not and
\n\t\tfurther told that if the complainant would give him the amount,
\n\t\tbook would be given to him. Thereupon the complainant said that he
\n\t\thas brought the amount and took out the smeared currency notes from
\n\t\tleft pocket of bush-shirt by his right hand and gave the same to
\n\t\tthe accused, which the accused accepted by his right hand and kept
\n\t\tthe same in the left pocket of his bush-shirt.\n<\/p>\n
Thereafter,
\n\tthe complainant gave pre-decided signal to the members of raiding
\n\tparty. Thereupon the members of the raiding party rushed at that
\n\tplace and caught the appellant. Thereafter, after giving his
\n\tidentity, P.I. inquired from panch No.1 as to whether the amount has
\n\tbeen accepted by the appellant, to which panch No.1 replied in
\n\taffirmative. Thereafter, the P.I. told the panch No.1 to take out
\n\tthe currency notes from the pocket of the bush-shirt and accordingly
\n\tpanch No.1 took out the currency notes. Thereafter, experiment of
\n\tU.V. Lamp was carried out on the members of raiding party, excluding
\n\tthe complainant, panch No.1 and the appellant, but fluorescent marks
\n\tof anthrecene powder was not found. Thereafter, the said experiment
\n\twas carried out on the hands the complainant where on the right hand
\n\tfinger tips and palmer aspect light blue fluorescent marks were
\n\tfound. On border of the bush-shirt’s pocket and inner side of pocket
\n\talso, light blue fluorescent marks were found. Thereafter the hands
\n\tof the appellant were seen in U.V. Lamp and on right hand finger
\n\ttips and on the border of the pocket and inside the pocket of the
\n\tbush-shirt, light blue fluorescent marks were found. Thereafter the
\n\thands of panch No.1 were seen in U.V. Lamp and on both the hands,
\n\tblue colour marks were found. The number of the currency notes were
\n\tgot tallied with the number noted in the preliminary panchnama.
\n\tThereafter, Khatavahi Book of the complainant was seized. From the
\n\tbook, one currency note of Rs.100\/- was found, which was also seized
\n\tunder the panchnama. The bush-shirt of the appellant was also
\n\tseized. Thereafter, second part of panchnama came to be drawn.
\n\tThereafter, certain papers pertaining to the case of the complainant
\n\talso came to be seized from the Panchayat Office at Datrana.\n<\/p>\n
Thereafter,
\n\tF.I.R. against the present appellant came to be registered for the
\n\toffences punishable under the Prevention of Corruption Act, 1988.
\n\tThereafter Investigating Officer carried out investigation and
\n\trecorded statements of various persons. Thereafter, after obtaining
\n\tsanction, charge-sheet came to be filed against the
\n\tappellant-accused.\n<\/p>\n
Thereafter,
\n\tvide Exhibit 13 charge was framed against the appellant. The charge
\n\twas read over and explained to the appellant, to which the appellant
\n\tpleaded not guilty and claimed to be tried.\n<\/p>\n
In
\n\torder to bring home the charges levelled against the appellant, the
\n\tprosecution has examined in all four witnesses and also produced
\n\tdocumentary evidence in support of its case.\n<\/p>\n
Thereafter,
\n\tafter completing the evidence of prosecution, further statement of
\n\tthe appellant under Section 313 of the Code of Criminal Procedure,
\n\t1973 came to be recorded wherein the appellant has categorically
\n\tdenied the incident of trap. He has denied the case of demand. The
\n\tappellant in his further statement submitted that an application for
\n\tmaking entries regarding the land was received and he performed the
\n\tnecessary procedure by issuing notice under Section 135D of the Land
\n\tRevenue Code. Thereafter, he recorded statement of both the brothers
\n\tand also pasted one copy of the said notice on the notice board of
\n\tGram Panchayat. The appellant has also submitted that as huge amount
\n\tis to be levied towards taxes from the complainant and his brother,
\n\the told the complainant to pay up the amount first. Thereafter some
\n\tdispute arose between the brothers with regard to payment of tax
\n\t(tagavi) amount. The complainant pressurised the appellant to
\n\trecover the said tax amount from his brother. But brother of the
\n\tcomplainant, viz. Arjan Meghji, did not come to give statement
\n\tregarding tax amount and as there was no confirmation from Arjan
\n\tMeghji, the proceeding was pending. The appellant has categorically
\n\tstated that on the date of trap, neither the complainant came to him
\n\tnor he had accepted any money from him. The appellant has also
\n\tstated that on the day of incident, after the duty hours, he was
\n\tsitting in the shop of his brother where the complainant came and
\n\ttold him to accept the panchayat tax amount and took out the
\n\tcurrency notes from his pocket and tried to give the same to him.
\n\tThe appellant refused to accept the same saying that the same cannot
\n\tbe accepted here and in that process, his hand might have touched
\n\tthe currency notes. He has also submitted that when this  talk going
\n\ton, all of a sudden, members of the raiding party rushed into the
\n\tshop and raid was carried out.\n<\/p>\n
After
\n\tconsidering the oral as well as documentary evidence produced on
\n\trecord and after hearing the parties, the learned Special Judge,
\n\tJunagadh vide impugned judgment and order dated 13th
\n\tJune, 2000 held the appellant-accused guilty to the charges
\n\tlevelled against him as mentioned aforesaid.\n<\/p>\n
Being
\n\taggrieved by and dissatisfied with the impugned judgment and order
\n\tof conviction and sentence passed by the learned Special Judge,
\n\tJunagadh, the appellant has preferred the present appeal.\n<\/p>\n
Heard
\n\tMr.K.B. Anandjiwala, leaned counsel for the appellant and Mr.H.L.
\n\tJani, learned Additional Public Prosecutor for the respondent-State.\n<\/p>\n
Mr.Anandjiwala,
\n\tlearned counsel appearing for the appellant, has contended that the
\n\tjudgment and order of conviction and sentence is erroneous, illegal
\n\tand unwarranted on the facts of the case. He has also contended that
\n\tin the case of corruption, demand of illegal gratification is vital
\n\tpart, which the prosecution has to prove beyond reasonable doubt. It
\n\tis submitted by learned counsel for the appellant that so far as
\n\tinitial demand is concerned, the evidence is of only the complainant
\n\tand there is no corroboration available to the evidence of the
\n\tcomplainant from any independent sources. He has read oral evidence
\n\tof P.W. No.1-complainant and contended that the appellant had called
\n\tthe complainant at the Gam Chora and told that his work will be done
\n\tonly after the appellant would have received amount. Therefore, P.W.
\n\tNo.1 asked as to how much amount he has to pay, to which the
\n\tappellant told to give Rs.500\/-. The P.W. No.1 made request to
\n\treduce the amount as he is a poor person, but the appellant was not
\n\tagreed with the request of the P.W. No.1. Therefore, P.W. No.1 gave
\n\tRs.100\/- to the appellant at that point of time. Again after lapse
\n\tof some time, the appellant called P.W. No.1-complainant and asked
\n\thim for money. At that time, again P.W. No.1 paid Rs.100\/- to the
\n\tappellant. Thereupon, the appellant told the complainant that as to
\n\twhy he is giving money in installments and also told that if the
\n\tcomplainant wants book, then between 18.00 hours and 19.00 hours,
\n\tremaining amount should be given to him. As the complainant was not
\n\tready to give the said amount, he has filed the complaint.
\n\tMr.Anandjiwala has read the said evidence and contended that in
\n\tconnection with this evidence of complainant, some corroboration is
\n\trequired, but the prosecution has failed to corroborate the said
\n\tevidence of P.W. No.1-complainant. It is further contended by the
\n\tlearned counsel for the appellant that on the day of trap, the
\n\tcomplainant alleged to have given Rs.200\/- to the appellant, which
\n\tis not in connection with the demand of Rs.500\/- which is alleged to
\n\tbe made by the appellant. It is also contended by Mr.Anandjiwala
\n\tthat there was no agreement to accept Rs.400\/- and therefore, on the
\n\tday of trap, as alleged, Rs.200\/- was paid and accepted by the
\n\tappellant is in direct conflict with the initial demand of Rs.500\/-.
\n\tThus, when the prosecution has failed to prove its case for demand,
\n\tthe learned Special Judge has erred in convicting the appellant. He
\n\thas also contended that in examination-in-chief, the complainant
\n\tsays that P.I. sprinkled the powder on the currency notes and the
\n\tsaid notes were shown in lamp, which showed light blue colour mark
\n\tand thereafter the said notes were put in his bush-shirt pocket.  He
\n\thas further contended that this part of evidence does not show as to
\n\twhich powder was used. He has also contended that it was the case of
\n\tthe prosecution that anthrecene powder was used, but the prosecution
\n\thas failed to prove the said contents from the oral evidence of P.W.
\n\tNo.1-complainant. He has further contended that the learned Special
\n\tJudge has taken into consideration the contents of the F.I.R., which
\n\tis not substantive part of evidence. The F.I.R. can be used only for
\n\tthe purpose of corroborating or contradicting the maker of the same.
\n\tHe has also contended that for taking into consideration the
\n\tcontents of panchnama, panch has to depose about the same whereas in
\n\tthe instant case, the panch has failed to prove the contents of the
\n\tpanchnama. He has also contended that the panchnama is drawn by the
\n\tTrapping Officer and it was not dictated by the panch witness.
\n\tMr.Anandjiwala has further contended that in the cases of
\n\tcorruption, three important ingredients has to be establish beyond
\n\treasonable doubt by the prosecution, viz. (i) initial demand of
\n\tillegal gratification; (ii) an agreement to pay the same; and (iii)
\n\tacceptance of the same as per agreement. He has read further oral
\n\tevidence of P.W. No.1 and contended that the prosecution has failed
\n\tto prove initial demand as well as second demand made by the
\n\tappellant. He has also read cross-examination of this witness and
\n\tcontended that the said amount accepted by the appellant is the
\n\tlegal dues, which is required to be recovered from the complainant
\n\tand is not illegal gratification. He has also read oral evidence of
\n\tP.W. No.2-panch witness at Exhibit 19 and contended that the
\n\tprosecution has failed to prove the contents of complaint and
\n\tpanchnama at Exhibit 21 through oral evidence of this witness. He
\n\thas also contended that the prosecution has failed to prove that
\n\tappellant has made demand in presence of this panch witness. He has
\n\tcontended that in the instant case, the prosecution has failed to
\n\tprove that the amount was accepted towards illegal gratification and
\n\tfor no other purpose. He has further contended that for determining
\n\tthis aspect, pre-acceptance talk is the essential part of the
\n\tevidence. In the instant case, the same is in direct conflict with
\n\teach other and also in direct conflict with the panchnama. He has
\n\tfurther contended that prosecution has failed to prove seizing and
\n\tsealing of muddamal beyond reasonable doubt. He has contended that
\n\trecovery of trap amount is not proved beyond reasonable doubt.
\n\tMr.Anandjiwala has read explanation of the appellant recorded under
\n\tSection 313 of the Code of Criminal Procedure, 1973 and contended
\n\tthat the appellant has proved it defence and therefore, atleast
\n\tbenefit of doubt should have been given to the appellant. He has
\n\tfurther read Exhibit 27, Village Form No.8B and contended that this
\n\tdocument clearly shows that there was some legal dues to be paid by
\n\tP.W. No.1-complainant and the amount in question, which was accepted
\n\tby the appellant, is the part of the said legal dues and not the
\n\tillegal gratification. He, therefore, contended that the case
\n\tagainst the appellant is absolutely false and is required to be
\n\tacquitted. He has contended that when the documentary evidence is
\n\tproved, then the learned Special Judge must have to consider the
\n\tprobable defence in favour of the appellant.\n<\/p>\n
\t\tMr.Anandjiwala
\n\thas further read oral evidence of P.W. No.3 at Exhibit 33 and
\n\tcontended that this witness in his evidence clearly stated the work
\n\tto be performed by the appellant, which include receiving amount of
\n\tpanchayat taxes, education tax, revenue tax, tagavi, etc., which
\n\tshows that the amount accepted by the appellant was towards the tax
\n\tamount and not illegal gratification.  He has read Exhibit 51 to 57
\n\tand contended that the prosecution has failed to prove the said
\n\tdocuments. He has further read oral evidence of P.W. No.4-Trapping
\n\tOfficer at Exhibit 45 and contended that he is a police officer and
\n\this evidence cannot be considered straightway without any
\n\tcorroboration. He has also contended that the prosecution has failed
\n\tto prove its case beyond reasonable doubt through oral evidence of
\n\tthis witness. This witness has failed to prove the recovery of trap
\n\tamount from the possession of the appellant. This witness has also
\n\tfailed to prove the experiment, which was carried out prior to the
\n\ttrap and after the trap. He, therefore, contended that looking to
\n\tthe evidence produced on record and circumstantial evidence,
\n\tprosecution has failed to prove its case beyond reasonable doubt
\n\tagainst the appellant and therefore, appeal is required to be
\n\tallowed and appellant is required to be acquitted from the charges
\n\tlevelled against him.\n<\/p>\n
 \tSo
\n\tfar as Criminal Appeal No.805 of 2000, i.e. appeal filed by the
\n\tState of Gujarat for enhancement of sentence is concerned,
\n\tMr.Anandjiwala has contended that the alleged incident of offence
\n\thas occurred in the month of March, 1990. Nearly 22 years have
\n\tpassed from the date of alleged offence. He has also contended that
\n\tas stated above, when the prosecution has failed to prove its case
\n\tbeyond reasonable doubt, no question can arise for enhancement of
\n\tsentence. He, therefore, contended that the appeal filed by the
\n\tState Government for enhancement of sentence is required to be
\n\tdismissed.\n<\/p>\n
As
\n\tagainst this, Mr.Jani, learned Additional Public Prosecutor, has
\n\tcontended that the judgment and order passed by the learned Special
\n\tJudge is absolutely just and proper. He has contended that the
\n\tprosecution has proved its case beyond reasonable doubt. He has
\n\tcontended that looking to the overall facts and circumstances of the
\n\tcase, circumstantial evidence and evidence produced on record, the
\n\torder passed by the learned Special Judge is absolutely just and
\n\tlegal and is not required to be interfered with. Mr.Jani has read
\n\toral evidence of P.W. No.1-complainant and contended that initial
\n\tdemand is proved beyond reasonable doubt. He has also read further
\n\toral evidence of the complainant and argued that in connection of
\n\tthe oral evidence of P.W. No.1, conduct of the appellant is required
\n\tto be considered in light of the provision of Section 8 of the
\n\tEvidence Act. He has further contended that the appellant demanded
\n\tRs.500\/- as illegal gratification from the P.W. No.1-complainant.
\n\tThe appellant has called the complainant at Gam Chora and told the
\n\tcomplainant that his work will be done only after he would pay the
\n\tamount and told to give Rs.500\/-. Thus, the initial demand of
\n\tRs.500\/- is proved through the oral evidence of P.W. No.1. This
\n\twitness has stated in his evidence that therefore, he had given
\n\tRs.100\/- to the appellant at that point of time. Mr.Jani has further
\n\tcontended that on the day of trap P.W. No.1 had visited the shop of
\n\tbrother of the appellant where the appellant called the complainant.
\n\tAt that time P.W. No.2-panch witness was with him and in presence of
\n\tP.W. No.2, the appellant asked the complainant as to whether he has
\n\tcome with money or not. Thus, second demand is also proved beyond
\n\treasonable doubt. This second demand is corroborated by the evidence
\n\tof P.W. No.2.  On being demanded money by the appellant, P.W. No.1
\n\tgave the currency notes smeared with anthrecene powder to the
\n\tappellant, which was accepted by the appellant and the same was
\n\tinserted into left pocket of the shirt. Thus, acceptance is also
\n\tproved beyond reasonable doubt from the oral evidence of P.W. No.1.
\n\tHe has further contended that in a case of corruption when demand
\n\tand acceptance is proved beyond reasonable doubt, then it can be
\n\tsaid that the amount accepted by the accused is in connection with
\n\tthe illegal demand made by him. He has also contended that when the
\n\tsearch was carried out, the trap amount was recovered from the
\n\tpossession of the appellant and presence of anthrecene powder was
\n\tfound on the hand of the appellant. Thus, recovery is also proved
\n\tbeyond reasonable doubt. Mr.Jani has read oral evidence of P.W. No.2
\n\tand contended that this witness has supported the case of the
\n\tprosecution. He is a public servant and his integrity cannot be
\n\tdoubted. He has no enmity with the appellant to falsely involve the
\n\tappellant in a case.  He has also contended that prior to the first
\n\tpart of panchnama, complaint was read over to the panch witnesses
\n\tand it was signed by them. This witness has narrated the whole
\n\tincident as to how the demand was made by the appellant in his
\n\tpresence and acceptance by the appellant. P.W. No.2 is an
\n\tindependent witness and has supported the case of the prosecution.
\n\tHe has further read the evidence of this witness and contended that
\n\tsearch was carried out in his presence and experiment of U.V. Lamp
\n\twas carried out in his presence. He has further contended that
\n\tanthrecene powder was found on the hand on shirt of the appellant.
\n\tThe said shirt was taken as muddamal and the same is identified by
\n\tP.W. No.2-panch witness. Mr.Jani has contended that thus, the
\n\tevidence of P.W. No.2 is in corroboration with the evidence of P.W.
\n\tNo.1. Mr.Jani has further read the oral evidence of Trapping Officer
\n\tand contended that from the evidence of this witness, panchnama,
\n\tcomplaint and recovery is proved beyond reasonable doubt. He has
\n\tfurther contended that when the signal was given by P.W. No.1, the
\n\tTrapping Officer rushed to the place and carried out the search and
\n\tfrom the possession of the appellant, trap amount was found. Thus,
\n\tthere arises no question to say that the Trapping Officer has not
\n\tproperly carried out the search as per the provisions of law. He
\n\thas contended that even if it is assumed that there is some
\n\tcontradiction in the oral evidence of the complainant and witnesses
\n\tas per the say of Mr.Anandjiwala, it is not fatal to the prosecution
\n\tcase, more particularly when demand, acceptance and recovery is
\n\tproved beyond reasonable doubt. He has further contended that the
\n\tappellant has failed to establish the probable defence.  Thus, when
\n\tdemand, acceptance and recovery is proved beyond reasonable doubt
\n\tand when the appellant has failed to establish probable defence,
\n\tappeal of the appellant is required to be rejected.\n<\/p>\n
 \tSo
\n\tfar as Criminal Appeal No.805 of 2000, i.e. appeal filed by the
\n\tState of Gujarat for enhancement of sentence is concerned, Mr.Jani
\n\thas contended that as stated above, demand, acceptance and recovery
\n\tis proved beyond reasonable doubt, sentence awarded to the appellant
\n\tis inadequate. He has further contended that the learned Special
\n\tJudge has committed error in showing leniency to undeserving person.
\n\tHe has also contended that the learned Special Judge has failed to
\n\tconsider the provisions of Section 13(2) of the Prevention of
\n\tCorruption Act, 1988. Mr.Jani has further contended that when the
\n\tdemand is proved, the appellant shall be punished with imprisonment
\n\tof either description for a term which may extend to three years, or
\n\twith fine, or with both. The learned Special Judge has He,
\n\ttherefore, contended that the sentence imposed upon the appellant is
\n\trequired to be enhanced.\n<\/p>\n
Heard
\n\tlearned counsel for the respective parties and perused the papers
\n\tproduced before me. I have also considered the submissions advanced
\n\tby the learned counsel for the parties. I have perused the oral
\n\tevidence of P.W. No.1-complainant and it appears from the oral
\n\tevidence of this witness that the appellant had called P.W. No.1 at
\n\tGam Chora and told that his work will be done only after he would
\n\tpay an amount of Rs.500\/-. Thus, initial demand is proved from the
\n\toral evidence of this witness. It also appears from the oral
\n\tevidence of this witness that again after some time, the appellant
\n\thad demanded the amount from P.W. No.1. As per the evidence of this
\n\twitness after lodging the complaint with A.C.B., when P.W. No.1 and
\n\tP.W. No.2 went to the shop of brother of the appellant, where they
\n\tdecided to meet, the appellant specifically asked P.W. No.1 as to
\n\twhether he has come with money or not. Thus, second demand is also
\n\tproved beyond reasonable doubt. This second demand is corroborated
\n\tby the evidence of P.W. No.2. The evidence of P.W. No.2 is in
\n\tcorroboration with the evidence of P.W. No.1. I have also perused
\n\toral evidence of P.W. No.2-panch witness. This witness has supported
\n\tthe case of the prosecution. He has specifically admitted that in
\n\this presence, the appellant had demanded the money from the
\n\tcomplainant and the same was accepted by the appellant. Thus, demand
\n\tand acceptance is proved beyond reasonable doubt. It appears from
\n\tthe papers that when search was made out, the amount in question was
\n\tfound out from the possession of the appellant and light blue marks
\n\tof anthrecene powder was also found from the hand of the appellant.
\n\tThus, recovery is also proved beyond reasonable doubt. The P.W.
\n\tNo.2-panch has narrated the whole case of the prosecution. The
\n\tevidence of P.W. No.1-complainant is corroborated by the evidence of
\n\tP.W. No.2-panch witness, who is an independent witness. It appears
\n\tfrom the evidence of P.W. Nos.1 and 2 that their evidence is free
\n\tfrom all doubt and infirmities about the demand raised by the
\n\tappellant. The P.W. Nos.1-complainant and P.W. No.2-panch witness
\n\twerer not having any enmity with the appellant. They were not biased
\n\tand they have no interest to involve the appellant in a false case.
\n\tA close and careful scrutiny of the evidence of P.W. Nos.1 and 2
\n\tsuggests that these witnesses have not made any mistake in narrating
\n\tthe entire episode in their deposition, which inspires confidence
\n\tabout their credibility and reliability. In the instant case, main
\n\tpart of the prosecution in relation to the demand raised by the
\n\tappellant is corroborated by the evidence of P.W. Nos.1 and 2
\n\tcoupled with the contents of panchnama.\n<\/p>\n
 \tSo
\n\tfar as contention raised by Mr.Anandjiwala that panchnama at Exhibit
\n\t21 is not dictated by panchas, but straightway drawn by Trapping
\n\tOfficer, is concerned, I have perused panchnama at Exhibit 21 and
\n\talso perused oral evidence of P.W. No.2 in this regard. It appears
\n\tfrom the oral evidence of P.W. No.2 that panchnama was drawn as per
\n\tthe say of panchas. The panchas have explained in the panchnama that
\n\tthe said panchnama (Exhibit 21) is written as per their say and it
\n\tis true and proper. It appears that P.W. No.2 has specifically
\n\tadmitted in his evidence that the said panchnama at Exhibit 21 was
\n\tdrawn in their presence and also submitted that the contentions of
\n\tthe said panchnama was verified by them and it was proper and as per
\n\ttheir say. So, looking to the explanation made by P.W. No.2,
\n\tcontention of learned counsel for the appellant that panchnama was
\n\tdictated by the Trapping Officer and not by the panchas is not fatal
\n\tto the case of the prosecution. So far as the contention of
\n\tMr.Anandjiwala, learned counsel for the appellant, that there was
\n\tsome outstanding dues in the name of P.W. No.1-complainant, which
\n\twas required to be recovered from him is concerned, I have perused
\n\tExhibit 27 document. At the end of that document, figure of
\n\tRs.2,485\/- is shown and other amount is also shown. I have also
\n\tperused probable defence of the appellant and as per the probable
\n\tdefence of the appellant, he has accepted Rs.200\/- from P.W.
\n\tNo.1-complainant towards outstanding dues of P.W. No.1. As per
\n\tExhibit 27 document total outstanding dues is more than Rs.2,485\/-,
\n\tthen why the appellant has accepted only Rs.200\/- from P.W.
\n\tNo.1-complainant is not explained by the appellant. The appellant
\n\thas failed to explain this aspect of the matter in his further
\n\tstatement recorded under Section 313 of the Code of Criminal
\n\tProcedure, 1973. Thus, the probable defence of the appellant cannot
\n\tbe considered in his favour. I have also perused Section 20 of the
\n\tPrevention of Corruption Act, 1988, which reads as under:\n<\/p>\n
“Section
\n\t20-Presumption where Public Servant accepts gratification
\n\tother than legal remuneration:– (1)
\n\tWhere in any trial of an offence punishable under section 7 or
\n\tsection 11 or clause (a) or clause (b) of sub-section (1) of Section
\n\t13 it is proved that an accused person has accepted or obtained, or
\n\thas agreed to accept or attempted to obtain, for himself or for any
\n\tother person, any gratification (other than legal remuneration) or
\n\tany  valuable thing from any person, it shall be presumed unless the
\n\tcontrary is proved that he accepted or obtained, or agreed to accept
\n\tor attempted to obtain, that gratification or that valuable thing,
\n\tas the case may be, as a motive or reward such as is mentioned in
\n\tsection 7 or, as the case may be, without consideration or for a
\n\tconsideration which he knows to be inadequate.\n<\/p>\n
 \t(2)<\/span><\/p>\n
\tWhere in any trial of an offence punishable under section 12 or
\n\tunder clause (b) of Section 14, it is proved that any gratification
\n\t(other than legal remuneration) or any valuable thing has been given
\n\tor offered to be given or attempted to be given by any accused
\n\tperson, it shall be presumed unless the contrary is proved that he
\n\tgave or offered to give or attempted to give that gratification or
\n\tthat valuable thing, as the case may be, as a motive or reward such
\n\tas is mentioned in Section 7 or, as the case may be, without
\n\tconsideration or for a consideration which he knows to be
\n\tinadequate.\n<\/p>\n
\t \t(3)<\/span><\/p>\n
\tNotwithstanding anything contained in sub-sections (1) and (2), the
\n\tcourt may decline to draw the presumption referred to in either of
\n\tthe said sub-sections, if the gratification or thing aforesaid is,
\n\tin its opinion, so trivial that no inference of corruption may
\n\tfairly be drawn.”\n<\/p>\n
 \tI
\n\thave perused the said provision of law and it appears that the main
\n\tingredient of Section 20 of the Prevention of Corruption Act is
\n\tproved beyond reasonable doubt. I have also perused explanation of
\n\tthe appellant. The appellant has failed to explain that for what
\n\tpurpose he has accepted the said amount and how the said amount is
\n\trecovered from his possession. In further statement recorded under
\n\tSection 313 of the Code of Criminal Procedure, It is the duty of the
\n\tappellant to rebut the presumption drawn against him. In the instant
\n\tcase, the appellant has failed to rebut the presumption drawn
\n\tagainst him.\n<\/p>\n
 \tThe
\n\tappellant has failed to rebut the presumption by leading probable
\n\tdefence. Thus, when demand and acceptance is proved and when the
\n\tappellant has failed to rebut the presumption under Section 20 of
\n\tthe Prevention of Corruption Act, 1988, I am of the opinion that
\n\tprosecution has proved its case beyond reasonable doubt. I have not
\n\tfound anything to accept the defence version. The learned Special
\n\tJudge has rightly convicted the appellant for the offence under
\n\tSection 7 and under Section
\n\t13(1)(d) read with Section 13(2) of the Prevention of Corruption
\n\tAct, 1988. I have also perused the judgment relied upon by
\n\tMr.Anandjiwala, learned counsel for the appellant, reported in
\n\t1998(1) GLH 924. I have perused the judgment and order of conviction
\n\tand sentence and also perused evidence of prosecution witnesses.
\n\tTrapping Officer, who has recorded complainant of the complainant,
\n\tP.W. No.1. Thereafter, two panchas were called by the Trapping
\n\tOfficer and then preliminary part of panchnama was drawn and then
\n\tlater on the Trapping Officer carried out search and the amount is
\n\trecovered from the possession of the appellant. Thereafter,
\n\tstatement of appellant, panchas and other witnesses came to be
\n\trecorded by the Trapping Officer. I have considered the contention
\n\traised by the learned counsel for the appellant that Trapping
\n\tOfficer cannot be the Investigating Officer, I am of the opinion
\n\tthat in real sense, when most of the investigation was completed
\n\tduring the investigation, except the issue of sanction, the said
\n\tcontention raised by the learned counsel for the appellant is not
\n\tfatal to the case of the prosecution.\n<\/p>\n
 \tAs
\n\tper above observation, I found that demand of illegal gratification
\n\tmade by the appellant is proved beyond reasonable doubt through oral
\n\tevidence of P.W. No.1-complainant and P.W. No.2-panch witness as
\n\twell as through documentary evidence produced on the record.
\n\tPresence of anthrecene powder is also found on the hands of the
\n\tappellant-accused and the appellant has failed to explain the
\n\tpresence of anthrecene powder. As per the provision of Section 5 of
\n\tthe Prevention of Corruption Act, 1988, presumption is required to
\n\tbe drawn against the present appellant and when the appellant has
\n\tfailed to rebut the said presumption, defence version cannot be
\n\tconsidered, which is tried to establish by the learned counsel for
\n\tthe appellant. Hence, Criminal Appeal No.644 of 2000, i.e. appeal
\n\tagainst conviction filed by the appellant, is hereby dismissed.\n<\/p>\n
 \tA
\n\tpublic servant is expected to serve or to perform his\/her duties
\n\twith utmost honesty and devotion. In the instant case, the
\n\tappellant, who is a public servant, has demanded the amount of
\n\tRs.500\/- and accepted the same from the complainant. This conduct of
\n\tthe appellant is required to be looked into. This shows that the
\n\tappellant is guilty of criminal misconduct.\n<\/p>\n
 \tSo
\n\tfar as Criminal Appeal No.805 of 2000, i.e. appeal filed by the
\n\tState of Gujarat for enhancement of sentence is concerned, it
\n\tappears that the alleged incident has occurred in March, 1990 and
\n\ttoday after more than 21 years, this appeal is finally heard. Thus,
\n\tmore than 21 years have passed from the date of alleged offence. I
\n\thave also considered the submission of learned counsel for the
\n\tappellant that as the appellant is removed long back from service,
\n\the has suffered sufficiently. Looking to the facts of the case, I am
\n\tof the opinion that after such a long time it will not be
\n\tappropriate to enhance the sentence awarded by the learned Special
\n\tJudge. Hence, appeal of the State Government for enhancement is
\n\thereby dismissed.\n<\/p>\n
Hence,
\n\tin view of the foregoing reasons, Criminal Appeal No.644 of 2000,
\n\ti.e. appeal filed by the appellant against conviction, is hereby
\n\tdismissed. The judgment and order of conviction and sentence dated
\n\t13th
\n\tJune, 2000, passed by the learned Special Judge, Junagadh, in
\n\tSpecial Case No.08 of 1990, is
\n\thereby confirmed qua appeal against conviction. The appellant is on
\n\tbail. His bail bond shall stand cancelled. The
\n\tappellant is, therefore, directed to surrender himself before the
\n\tJail Authority within a period of four weeks from today to serve the
\n\tremaining sentence, if any, failing which the Court concerned is
\n\tdirected to issue Non-bailable warrant against the appellant to
\n\teffect his arrest. Record and Proceedings, if any, be sent back to
\n\tthe trial Court concerned, forthwith.\n<\/p>\n
 \tSo
\n\tfar as Criminal Appeal No.805 of 2000, i.e. appeal filed by the
\n\tState of Gujarat for enhancement of sentence, is concerned, the same
\n\tis hereby dismissed and the judgment and order of conviction and
\n\tsentence dated 13th June, 2000, passed by the learned
\n\tSpecial Judge, Junagadh, in Special Case No.08 of 1990, is hereby
\n\tconfirmed qua appeal for enhancement. Record and Proceedings, if
\n\tany, be sent back to the trial Court concerned, forthwith.\n<\/p>\n
(Z.\n<\/p>\n
\tK. Saiyed, J)<\/p>\n
Anup<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Jayantilal vs State on 25 August, 2011 Author: Z.K.Saiyed, Gujarat High Court Case Information System Print CR.A\/644\/2000 25\/ 25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 644 of 2000 With CRIMINAL APPEAL No. 805 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================= 1 Whether Reporters […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-23212","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nJayantilal vs State on 25 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jayantilal-vs-state-on-25-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jayantilal vs State on 25 August, 2011 - 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