{"id":42451,"date":"2010-06-29T00:00:00","date_gmt":"2010-06-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arvindbhai-vs-appearance-on-29-june-2010"},"modified":"2017-01-26T08:53:10","modified_gmt":"2017-01-26T03:23:10","slug":"arvindbhai-vs-appearance-on-29-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arvindbhai-vs-appearance-on-29-june-2010","title":{"rendered":"Arvindbhai vs Appearance : on 29 June, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Arvindbhai vs Appearance : on 29 June, 2010<\/div>\n
Author: H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\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\n\n \n\n\n\t \n\nCR.A\/585\/1993\t 34\/ 37\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. 585 of 1993\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMS.JUSTICE H.N.DEVANI\n \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 \n\nARVINDBHAI\nRAMNIKLAL TRIVEDI & 3 - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================\n \nAppearance : \nMR\nKB ANANDJIWALA for\nAppellant(s) : 1 - 4. \nMR YN RAVANI for\nRespondents \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\tMS.JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 29\/06\/2010 \n\n \n\n \n \nCAV\nJUDGMENT \n<\/pre>\n
This
\n\tAppeal is directed against the judgment and order dated 30th
\n\tApril 1993 passed by the learned Special Judge, Court No.3,
\n\tAhmedabad in Special Case No.32 of 1986, whereby the appellant
\n\therein has been convicted for the offences punishable under Section
\n\t161 of the Indian Penal Code (IPC) and Section 5(2) of the
\n\tPrevention of Corruption Act, 1947 (the P. C. Act). For the offence
\n\tunder section 5(2) of the P.C. Act he has been sentenced to suffer
\n\trigorous imprisonment for two years and to pay a fine of Rs.400\/-,
\n\tin default to suffer rigorous imprisonment for a period of two
\n\tmonths and for the offence under Section 161 of the P. C. Act he has
\n\tbeen sentenced to suffer rigorous imprisonment for one year and to
\n\tpay a fine of Rs.400\/-, in default to suffer rigorous imprisonment
\n\tfor a period of two months. Both the substantive sentences have been
\n\tdirected to run concurrently. During the pendency of this appeal,
\n\tthe appellant-convict has expired, however, his three sons being his
\n\theirs and legal representatives had filed an application for being
\n\tbrought on record and vide order dated 23.7.1998 they had been
\n\tpermitted to be joined as appellants in this appeal.\n<\/p>\n
Briefly
\n\tstated, the case of the prosecution is that at the relevant time the
\n\tappellant herein was working as Branch Manager, State Bank of
\n\tSaurashtra, Mota Devalia Branch, District Amreli, during the period
\n\t26.12.1984 to 17.03.1986.  The appellant received a loan application
\n\tfrom one Rameshbhai Shamjibhai Patel, resident of village Khijadia
\n\tKotda, Taluka Babra, District Amreli, (hereinafter referred to as
\n\t the complainant ) in the month of February 1985 for Rs.8,800\/-
\n\talong with quotations and other documents from the Taluka Panchayat
\n\tOffice, Babra. This loan application was for the purchase of
\n\tbullock-cart. Since the application was not granted, the complainant
\n\tapproached the appellant in the said branch and was told that the
\n\tscheme was closed and that he would be informed as and when the
\n\tscheme was resumed. The complainant again met the appellant after
\n\tthree months and inquired about his loan application. At that time
\n\talso, he was told by the accused that he was not likely to get the
\n\tloan amount and that he would inform the complainant when the same
\n\tis due. Since there was a drought in the village, the complainant
\n\thad to go to village Vav for labour work. Two months thereafter, the
\n\tcomplainant approached the appellant and inquired about his loan and
\n\twas told that he would have to submit fresh quotations for bullock
\n\tcart and tyres. The complainant collected fresh quotations of
\n\tRs.2,500\/- and gave these quotations to Gram Sevak Shri Kantibhai
\n\tPatel of his village, who in turn, sent these papers to State Bank
\n\tof Saurashtra, Mota Devalia Branch. The complainant then went to the
\n\tbank on 10.03.1986 and met the appellant, who asked him to come
\n\tafter two days.  Accordingly, the complainant approached the
\n\tappellant on 12.03.1986 when he scrutinized his ration card etc. and
\n\tdemanded a bribe of Rs.400\/- as a motive or reward.\n<\/p>\n
It
\n\tis further the case of the prosecution that the appellant asked the
\n\tcomplainant to meet Shri Sejpal, an advocate at Amreli with
\n\tdocuments like revenue record etc.,, pursuant to which, the
\n\tcomplainant went to Amreli on 13.03.1986 and met the said advocate
\n\tat about 09.00 hours. Shri Sejpal scrutinized and verified the
\n\trevenue record and returned the said papers to the complainant with
\n\tinstructions to file affidavit of Gigabhai and Ranchhodbhai in token
\n\tof having sanctioned the loan to him. Thereafter, the complainant
\n\tmet the accused and showed him the papers, at which point of time,
\n\tthe accused repeated the demand for the bribe amount of Rs.400\/-,
\n\tsaying that unless the amount was paid, he would not sanction the
\n\tloan. The appellant asked the complainant to pay the amount to him
\n\ton the next day i.e. 14.03.1986 at about 10.30 hours in the bank.\n<\/p>\n
Since
\n\tthe complainant did not want to pay the bribe amount of Rs.400\/- to
\n\tthe appellant, he went to the office of the Anti Corruption Bureau,
\n\tat Amreli, and contacted Police Jamadar Harshadbhai Pandya, who was
\n\tpresent in the ACB Office, Amreli. The said Police Jamadar asked the
\n\tcomplainant to go to the ACB Office, Rajkot and to lodge his
\n\tcomplaint before Shri D. N. Manjaria, Police Inspector, ACB, Rajkot.
\n\t On the basis of the complaint lodged by the complainant, on 14th
\n\tMarch, 1986, Shri D. N. Manjaria, Police Inspector, Anti-Corruption
\n\tBureau, Rajkot, laid a trap with the help of panch witnesses Shri
\n\tVasantbhai K. Jasani and Shri Jagannath C. Pandya and caught the
\n\tappellant red-handed while demanding and accepting the bribe of
\n\tRs.400\/- from the complainant, near Ramji Mandir, situated in
\n\tvillage Mota Devalia between 10.20 to 10.40 hours. Thus, according
\n\tto the prosecution, the accused had committed the offence punishable
\n\tunder Section 161 IPC and under Section 5(2) read with Section 5(1)\n<\/p>\n
\t(d) of the P.C. Act.\n<\/p>\n
The
\n\tinvestigation of the offence came to be entrusted to Police
\n\tInspector   M. M. Patel of CBI on 14th April, 1986.  On
\n\treceipt of the case papers, the offence came to be registered as
\n\tR.C. No.6\/1986. After obtaining sanction for prosecution, upon
\n\tconclusion of the investigation, charge sheet came to be filed in
\n\tthe Court on 16th Decembe,r 1986.  Thereafter, the charge
\n\tcame to be framed at Exhibit 12 on 13th November, 1987.
\n\tThe accused pleaded not guilty to the charge and claimed to be
\n\ttried.\n<\/p>\n
During
\n\tthe course of trial, the prosecution examined six witnesses. The
\n\tcomplainant, Rameshbhai Shamjibhai Patel, came to be examined as
\n\tPW-1at Exhibit 42, Panch No.1, Vasantrai Keshavji Jasani, came to be
\n\texamined  as PW-2 at Exhibit 46, Danabhai Najabhai Manjaria, Police
\n\tInspector, ACB, Rajkot, who arranged trap, came to be examined as
\n\tPW-3 at Exhibit 48, Kantilal Tulsibhai Patel, Gram Sevak, came to be
\n\texamined as PW-4 at Exhibit 54, Himansu Sudhansu Mukherji, Managing
\n\tDirector of State Bank of Saurashtra, who was the officer who
\n\tgranted sanction to prosecute the appellant, came to be examined as
\n\tPW-5 at Exhibit 57, and Mahendrakumar Mohanbhai Patel, Police
\n\tInspector, CBI (I.C.), the Investigating Officer, came to be
\n\texamined as PW-6 at Exhibit 72.\n<\/p>\n
After
\n\trecording the oral evidence led by the prosecution, incriminating
\n\tmaterial came to be put to the appellant as required under section
\n\t313 of the Code of Criminal Procedure, 1973 (the Code).  While
\n\tdenying in general the accusations made against him by various
\n\tprosecution witnesses, the appellant said that he was falsely
\n\timplicated in the crime. The appellant submitted a detailed further
\n\tstatement, Exhibit 73, in writing, running into 18 pages, which
\n\tshall be referred to hereafter at an appropriate stage.\n<\/p>\n
The
\n\tlearned Special Judge, after hearing the learned advocates for both
\n\tthe sides and appreciating the evidence on record, found that the
\n\tprosecution had established that the appellant was guilty of the
\n\toffences noted hereinabove and convicted him for the same.\n<\/p>\n
This
\n\tCourt has heard Mr. K. B. Anandjiwala, learned advocate for the
\n\tappellant and Mr. Y. N. Ravani, learned Standing Counsel for the
\n\trespondent   C.B.I.\n<\/p>\n
Mr.\n<\/p>\n
\tAnandjiwala, learned advocate for the appellant has taken the Court
\n\tthrough the entire record and has referred to the evidence of the
\n\twitnesses in detail. The learned advocate for the appellant has
\n\tsubmitted that in each and every corruption case, demand is the
\n\tvital and integral part of the prosecution story. It is strenuously
\n\targued that all aspects of evidence of the witnesses show that on no
\n\toccasion, initial demand was made by the accused. Referring to the
\n\timpugned judgment and order of conviction, it is pointed out that
\n\tthe learned Judge has observed on page 31 of the judgment that the
\n\tlack of demand is the only factor, which baffles him in the instant
\n\tcase. There was no demand at any stage prior to laying the trap and
\n\ttherefore, the learned Judge has come to the conclusion that the
\n\tdemand part of the entire episode at a stage prior to laying the
\n\ttrap does not assume the status of proved facts. It is pointed out
\n\tthat an attempt had been made to bring on record that when the
\n\tcomplainant met the accused about seven days prior thereto, the
\n\taccused had told him to give some amount towards consideration and
\n\tthat the complainant had explained his position and poverty.  The
\n\taccused told the complainant to contact Kantibhai and at that time,
\n\tas alleged, Kantibhai had told the complainant that he would have to
\n\tpay Rs.400\/- to the accused.  Kantibhai is examined in this case as
\n\tPW-4, at Exhibit 54. However, he has categorically denied having
\n\tsaid anything about paying Rs.400\/- to the accused. It is further
\n\tpointed out that the complainant has also admitted in his evidence
\n\tat various places that the accused never demanded any amount by way
\n\tof illegal gratification. It is submitted that at the fag end of his
\n\tevidence, the complainant has admitted that the accused did not
\n\tdemand the bribe and did not talk about it to them, therefore, he
\n\tlost patience and took out the currency notes from his pocket and
\n\ttried to give the same to the accused. It is submitted that in the
\n\tcircumstances, in the present case, there is no demand at all,
\n\teither at the initial stage or at any stage prior to and during the
\n\ttrap proceedings. It is submitted that in corruption cases, so far
\n\tas the offence under section 5(1) (d) of the P.C. Act is concerned,
\n\teven demand prior to acceptance is required to be established which
\n\tis not established in the present case. It is urged that the
\n\tevidence of the complainant is thoroughly unreliable and on the
\n\tcontrary, indicates that no demand was made, which would make the
\n\tdefence version that the amount was thrust into the pocket of the
\n\taccused more probable. It is submitted that the evidence of the
\n\tcomplainant proves the defence version rather than prosecution case.
\n\tReferring to the deposition of Shri Vasantrai Keshavji Jasani, PW-2,
\n\twho is the panch witness, it is submitted that there are material
\n\tinconsistencies in the evidence of the complainant and the panch,
\n\tinasmuch as the complainant does not mention about any talk having
\n\ttaken place between him and the accused, whereas the panch states in
\n\tdetail about the talk between the complainant and the accused. It is
\n\tsubmitted that this is a material discrepancy in the evidence of the
\n\ttwo witnesses, which goes to the root of the matter and shakes the
\n\ttestimony of the witnesses. Referring to the sequence of events as
\n\tstated in the depositions of the witnesses and in the panchnama, it
\n\tis pointed out that the sequence of events as narrated in the
\n\tdepositions and the panchnama are different.\n<\/p>\n
10.1
\n  The learned advocate has drawn attention of the Court to the
\ndeposition of Mr. Himansu Sudhansu Mukerji, PW-5, who is the
\nsanctioning authority, to submit that looking to the evidence of the
\nsaid witness, it is clear that he has not considered any
\ninvestigation papers, hence, it becomes clear that he must have acted
\non the draft sent by the CBI. It is contended that the record of the
\ncase was in Gujarati, whereas the sanctioning authority does not know
\nGujarati and there is nothing on record to show that any translation
\nhad been provided to the sanctioning authority and that after
\nconsidering the material, he had come to the conclusion that sanction
\nis required to be granted. It is submitted that, in the
\ncircumstances, the sanction has been granted without application of
\nmind, probably on the basis of the draft. It is submitted that
\nsanction order is not based on the subjective satisfaction of the
\nofficer independently, but due to influence of the draft sent by the
\nCBI. It is, accordingly, submitted that the sanction order suffers
\nfrom the vice of non-application of mind and as such, the cognizance
\ntaken on the basis of an order of sanction, which has been passed
\nwithout application of mind, stands vitiated and as such, the entire
\ntrial stands vitiated.  It is submitted that the appellant is
\nrequired to be acquitted on this count alone.\n<\/p>\n
10.2
\nNext, it is submitted that there are various communications on record
\nbetween the bank authorities, which speak volumes regarding the
\nsituation prevailing at the relevant time. However, it appears that
\nthese communications were not placed before the sanctioning
\nauthority. If such documents had been brought to the notice of the
\nsanctioning authority, in all probabilities, sanction to prosecute
\nwould not have been granted.\n<\/p>\n
It
\n\t\tis submitted that as regards the trap proceedings, there was no
\n\t\tdemand by the accused which is clear from the evidence of the
\n\t\tcomplainant and that the evidence of the complainant is the only
\n\t\tevidence qua the initial demand. It is submitted that the other
\n\t\twitness who is examined in respect of the initial demand is
\n\t\tKantibhai, PW-4, whose evidence is totally silent on the aspect of
\n\t\tdemand through him. It is submitted that in the circumstances,
\n\t\tthere is no corroboration from any independent source in respect of
\n\t\tthe evidence led by the complainant. Referring to the sequence of
\n\t\tevents, it is submitted that the complainant is a desperate person
\n\t\twhose application made earlier prior to a year had lapsed and he
\n\t\thad to file another application. He used to inquire about the
\n\t\tstatus of his application at intervals of two   three months
\n\t\twhenever he came to village. It is submitted that it is the
\n\t\tspecific case of the complainant that while at Amreli, he had
\n\t\tvisited his relatives who had advised him to go to the ACB, there
\n\t\tis no corroboration that he in fact had a talk with the relatives.
\n\t\tIt is submitted that it is also the case of the complainant that he
\n\t\thad talked to advocate Mr. Sejpal about his desire to take the help
\n\t\tof ACB; however, the said advocate is also not examined as a
\n\t\twitness. It is contended that the office of the ACB is situated in
\n\t\tAmreli itself, despite which the complainant was asked to go to
\n\t\tRajkot. The ACB Police Inspector Mr. Manjaria, in the midnight at
\n\t\t12.30 hours went in search of panchas and went to a food stall on
\n\t\tthe roadside and selected two panchas out of all the persons
\n\t\tpresent there. It is submitted that it is difficult to believe that
\n\t\tout of all the persons present at the food stall, the investigating
\n\t\tofficer was able to pick out two public servants as panchas from
\n\t\tthe public place. It is urged that the selection of panchas is
\n\t\tstage managed as from several persons standing at the food stall,
\n\t\ttwo public servants were picked up and asked to come early in the
\n\t\tmorning. That the evidence which has come on record shows that the
\n\t\tpanchas were residing in the same area as the investigating officer
\n\t\tand that the brother of panch No.1 was also taken as panch on an
\n\t\tearlier occasion. It is accordingly submitted that the panchas are
\n\t\tnot independent persons and are under the influence of the
\n\t\tInvestigating Officer and as such the testimony of the panchas
\n\t\tcannot be relied without other corroborating evidence.\n<\/p>\n
Next
\n\t\tit is submitted that the ingredient which is required to be proved
\n\t\tby the prosecution is the demand prior to acceptance. In this
\n\t\tcontext, the conversation that has taken place is of utmost
\n\t\timportance as regards the aspect as to whether the demand was made.
\n\t\tIt is submitted that insofar as the question of demand prior to
\n\t\tacceptance is concerned, the evidence of the complainant is most
\n\t\timportant. However, from the deposition of the complainant, it is
\n\t\tapparent that there was no demand prior to acceptance. That the
\n\t\tcomplainant was desperate to give this amount by way of bribe, that
\n\t\the did not wait for the accused to demand money and took out the
\n\t\tmoney and handed it over to him without the demand being made. It
\n\t\tis submitted that out of the three ingredients, which are required
\n\t\tto be satisfied, two of the ingredients are not established. The
\n\t\tthird ingredient namely, acceptance, has to be considered on the
\n\t\ttotality of the circumstances as to whether the bribe was accepted
\n\t\tor thrust into the pocket of the accused. It is submitted that the
\n\t\tpanch is an over enthusiastic panch and has deposed what was not
\n\t\tdeposed by the complainant. Considering the fact that the
\n\t\tcomplainant was walking with the accused and the panch was
\n\t\tfollowing the complainant, it is doubtful as to whether the panch
\n\t\twould have heard the talk between the accused and the complainant.
\n\t\tIt is submitted that the complainant agreed as per his own say that
\n\t\tat all stages till he passed on the money, there was no demand. It
\n\t\tis contended that the evidence of the panch is to corroborate the
\n\t\tevidence of the complainant by way of independent evidence.
\n\t\tAccording to the complainant when no demand was made, so he became
\n\t\timpatient, whereas in the evidence of the panch, there is a totally
\n\t\tdifferent story with regard to demand and acceptance. That as per
\n\t\tthe say of the panch also, there was no demand made in the chamber
\n\t\tand yet at the instance of the accused, they came to the public
\n\t\troad and he demanded money where there would be so many people. It
\n\t\tis submitted that such a proposition is very doubtful. It is
\n\t\tsubmitted that the prosecution witness No.3, D.N. Manjaria, who was
\n\t\tthe trap officer does not say that the complainant took out the
\n\t\tcurrency notes and gave them to the accused and hence, they have
\n\t\tnot seen the passing of the currency notes, whereas the over
\n\t\tenthusiastic panch wants to attribute something to the accused. It
\n\t\tis submitted that the second part of the evidence is also not
\n\t\treliable and the second demand is not established beyond reasonable
\n\t\tdoubt, hence, no reliance can be placed on this aspect.\n<\/p>\n
As
\n\t\tregards the third aspect, namely, acceptance, it is submitted that
\n\t\tneither of the witnesses, namely, the complainant nor the panch,
\n\t\tsay that the accused had counted the currency notes, whereas, under
\n\t\tthe ultraviolet light both his hands were found to be stained.
\n\t\tHence, in the panchnama, story of counting was introduced. It is
\n\t\tsubmitted that the complainant is silent insofar as the signs of
\n\t\tanthracene inside the pocket and so is the panch. This means that
\n\t\tthe currency notes have not been put in the pocket. Though the
\n\t\tcomplainant has said that no demand was made, he has not been
\n\t\ttreated as hostile and that omissions have been brought on record
\n\t\tduring the cross-examination. It is contended that when substantive
\n\t\tevidence is silent regarding the signs of anthracene inside the
\n\t\tpocket, the panchnama cannot be used as evidence to find that there
\n\t\twere signs inside the pocket. It is submitted that the panchnama
\n\t\tcannot be used as a substantive piece of evidence and can be used
\n\t\tonly for the purpose of contradiction and corroboration of the
\n\t\tevidence. In the circumstances, acceptance is not established
\n\t\tbeyond reasonable doubt.\n<\/p>\n
The
\n\t\tlearned advocate has invited the attention of the Court to the
\n\t\tdefence version which consists of a written reply running into 18
\n\t\tpages, to submit that on account of the fact that applications were
\n\t\tbeing made on false demands and the applicant was being
\n\t\tpressurized, he had stopped processing applications which had
\n\t\tinvited the wrath of the people. It is submitted that the appellant
\n\t\twas facing mental torture and agony to such an extent that he had
\n\t\trequested the authority to revert him to the post of clerk. That
\n\t\tthe people of the village had a grudge against him and the trap was
\n\t\tarranged only because loan application of the complainant had not
\n\t\tbeen accepted. It is further submitted that from the evidence of
\n\t\tthe complainant itself, it is evident that no demand had been made
\n\t\tby the accused and that, therefore, the defence version that the
\n\t\tcomplainant had tried to thrust money in his pocket is the more
\n\t\tprobable version. It is submitted that the circumstances
\n\t\tcumulatively show that the defence version is the only probable
\n\t\tversion. Reliance is placed upon the decision of the Apex Court in
\n\t\tthe case of G. V. Nanjundiah v. State (Delhi Administration),
\n\t\tAIR<\/a> 1987 SC 2402, for the proposition that demand is a vital part
\n\t\tinsofar as the trap cases are concerned, and if it is not
\n\t\tsatisfied, the prosecution fails.\n<\/p>\n
Reliance
\n\t\tis also placed on the decision of this Court in State of
\n\t\tGujarat v. Trambaklal Fulshanker Trivedi,<\/a> 1979(2) GLR 60,
\n\t\twherein the Court held that if there is no evidence worth the name
\n\t\tregarding the initial passing of the currency notes from the side
\n\t\tof the complainant to the side of the accused accompanied by
\n\t\tconversation in this behalf which the panch witness was
\n\t\tspecifically directed to so hear, it would be hazardous to record a
\n\t\tfinding with regard to acceptance, simply because on the evidence
\n\t\tof the complainant, the panch and P.S.I., it emerges that from the
\n\t\tbush shirt pocket of the accused, the said notes were found and
\n\t\tthat on the test being carried out, the hands of the accused and
\n\t\this bush shirt pocket revealed presence of the anthracene powder.
\n\t\tReliance is also placed on the decision of this Court in
\n\t\tBharatkumar Jaimanishanker Mehta v. State, 1982(1)
\n\t\tGLR 605, for the proposition that totality of the evidence led at
\n\t\tthe trial must be appreciated. The Court held that the prosecution
\n\t\tevidence alone cannot be considered for the purpose of coming to
\n\t\tthe conclusion as to whether the accused accepted the amount or
\n\t\tnot. The evidence led by the prosecution, the suggestions made by
\n\t\tthe defence in cross-examination of the prosecution witnesses, the
\n\t\tversion given by the defence and the defence witnesses, if any,
\n\t\texamined at the trial, everything is required to be considered in
\n\t\tits totality and it is to be seen as to whether the total effect of
\n\t\tthe entire evidence led before the Court is of a nature by which
\n\t\tthe only conclusion possible was that the accused accepted the
\n\t\tamount. If such a conclusion is possible then alone it can be said
\n\t\tthat the prosecution established the case beyond reasonable doubt.
\n\t\tIt is submitted that none of the aspects which are required to be
\n\t\testablished have been established by the prosecution; that, the
\n\t\tprosecution is not in a position to stand on its own legs and as
\n\t\tsuch, the prosecution having miserably failed to establish the
\n\t\tcharge against the appellant beyond reasonable doubt, the appeal is
\n\t\trequired to be allowed and the appellant is required to be
\n\t\tacquitted of all the charges.\n<\/p>\n
Mr.\n<\/p>\n
\tY. N. Ravani, learned standing counsel for the respondent   C.B.I.
\n\thas supported the judgment and order impugned in the appeal.
\n\tAttention is invited to the deposition of the complainant, PW-1 to
\n\tsubmit that the evidence of the complainant clearly spells out
\n\tdemand prior to the trap proceedings. It is submitted that the
\n\tdemand may not be verbal it may be by conduct. Though the demand for
\n\ta specific amount was not made directly, the complainant was told
\n\tthat he would have to consider monetary aspect and as regards the
\n\tspecific amount, he was asked to contact Kantibhai who told him that
\n\the would have to pay the appellant Rs.400\/- Thus the demand for
\n\tspecific amount was made through Kantibhai who is an accomplice in
\n\tthe crime.\n<\/p>\n
Next
\n\t\tit is submitted that this Court is required to consider as to
\n\t\twhether on the evidence on record, the explanation given by the
\n\t\taccused is believable or as to whether the prosecution story is
\n\t\timprobable. Referring to the deposition of the complainant, the
\n\t\tpanch and the investigating officer, it is submitted that the
\n\t\tevidence of these three witnesses corroborate each other. It is
\n\t\tsubmitted that though certain discrepancies have been pointed out,
\n\t\tthese are minor discrepancies which are insignificant in nature and
\n\t\tare required to be discarded. It is submitted that the incident in
\n\t\tquestion took place in the year 1986, whereas the deposition was
\n\t\trecorded in October 1992, after a considerable gap of almost six
\n\t\tyears. The witness do not have a photographic memory, therefore, it
\n\t\tis but natural that there would be some discrepancies in the
\n\t\tevidence of the witnesses. It is submitted that though the manner
\n\t\tin which the demand prior to acceptance as has been narrated by the
\n\t\tpanch and the complainant may be different, there is no material
\n\t\tcontradiction in the evidence of the two witnesses. It is submitted
\n\t\tthat the discrepancies pointed out by the defence are not of a
\n\t\tsubstantial nature and as such, do not affect the prosecution case.\n<\/p>\n
Referring
\n\t\tto the deposition of the panch witness, it is pointed out that
\n\t\tthrough the evidence of the said witness, the prosecution has
\n\t\tproved that there was a demand for an amount as well as an
\n\t\tassurance that on paying the said amount, the work would be done.
\n\t\tIt is submitted that in the circumstances, demand and acceptance
\n\t\tare both duly proved by the prosecution beyond doubt. As regards
\n\t\tthe discrepancies in the evidence of the witnesses, namely that the
\n\t\tcomplainant has stated that he had given the signal, whereas the
\n\t\tpanch had stated that he had given the signal, it is submitted that
\n\t\tboth could have independently given signals and it is only then
\n\t\tthat the raiding party came, therefore, there is no contradiction
\n\t\tin that regard. It is submitted that the discrepancies shown by the
\n\t\tdefence prima facie do not alter the case of the prosecution
\n\t\tregarding demand, acceptance and recovery, which are duly proved.
\n\t\tIt is submitted that a perusal of the entire judgment of the Trial
\n\t\tCourt would indicate that there is no serious infirmity in the
\n\t\tjudgment and the findings recorded by the Trial Court.\n<\/p>\n
Reliance
\n\t\tis placed upon a decision of the Apex Court in B. Noha v.
\n\t\tState of Kerala and<\/a> another, (2006) 12 SCC 277, for the
\n\t\tproposition that once acceptance and recovery is proved, there is
\n\t\tno need for the prosecution to prove the demand. It is submitted
\n\t\tthat in the facts of the present case, assuming that prior demand
\n\t\tis not established, there is a voluntary and conscious acceptance
\n\t\tof illegal gratification on the part of the accused and in view of
\n\t\tthe law laid down by the apex Court in the said decision, there is
\n\t\tno burden on the prosecution to prove the demand.\n<\/p>\n
As
\n\t\tregards independence of the panchas, it is submitted that having
\n\t\trelation with Mr. Sejpal, advocate for the bank, would not in any
\n\t\tmanner affect the independence of the panchas and that the
\n\t\tproposition canvassed on behalf of the appellant is too far-fetched
\n\t\tto believe. It is submitted that since the panchas were to go early
\n\t\tin the morning, they were to be informed in advance at night,
\n\t\thence, despite the fact that it was late at night, the panchas were
\n\t\tsummoned at night. It is submitted that the defence has not been
\n\t\table to show any personal interest on the part of the panchas who
\n\t\tare shown to be working at Rajkot. It is also submitted that
\n\t\tnothing has been brought on record that there was any kind of
\n\t\trelation between the panch and the accused and that the panchas
\n\t\thave not been selected at the instance of the complainant. Reliance
\n\t\tis placed upon a decision of the Supreme Court in State of
\n\t\tU.P. v. Zakaullah,<\/a> (1998) 1 SCC 557, for the proposition
\n\t\tthat mere acquaintance with police officers would not make a
\n\t\twitness non-independent. Every citizen is presumed to be
\n\t\tindependent until proved to be dependent on police for any purpose
\n\t\twhatsoever. It is, accordingly, submitted that merely because
\n\t\tdistant relatives of the panchas are known to the trap officer, is
\n\t\tno ground to hold that the panchas are not independent.\n<\/p>\n
As
\n\t\tregards the validity of the sanction order, it is submitted that
\n\t\tthe issue of sanction has been raised by the appellant for the
\n\t\tfirst time before this Court in the present appeal by way of an
\n\t\tafterthought, though the same had not been raised before the trial
\n\t\tCourt at any stage of the trial, hence, the trial Court has not
\n\t\trecorded any findings in this regard. It is contended that the
\n\t\tpublic servant must show that serious prejudice is caused by
\n\t\tgranting sanction to prosecute, whereas in the present case, no
\n\t\tprejudice is shown. Inviting attention to the deposition of PW-5,
\n\t\tit is pointed out that the sanctioning officer has himself dictated
\n\t\tthe order after recording satisfaction though format may have been
\n\t\tgiven by the CBI. It is submitted that the sanction order is a
\n\t\tdetailed one which discloses application of mind. When the order
\n\t\titself discloses application of mind, the contention that material
\n\t\tparticulars were not placed before the sanctioning authority is not
\n\t\tsustainable. In support of the said submission, the learned
\n\t\tStanding Counsel has placed reliance on the decision of this Court
\n\t\tin Dharmendra Kumar Mohanji Mishra v. State of Gujarat,
\n\t\t2009 (3) GLR 1963, wherein the Court  has observed as under:\n<\/p>\n
 [15]
\n\tThe point which falls for determination in this Revision is squarely
\ncovered by the decision rendered in the case of C.S. Krishnamurthy v.
\nState of Karnataka,<\/a> reported in 2005 (4) SCC 81 wherein at paragraphs
\n7 and 9 of the judgment it has been held,   That the sanction
\norder should speak for itself and in case the facts do not so appear,
\nit should be proved by leading evidence that all the particulars were
\nplaced before the sanctioning authority for due application of mind.
\nBut, when the sanction order is itself eloquent enough, then in that
\ncase only formal evidence has to be produced by the sanctioning
\nauthority or by any other evidence that the sanction was accorded by
\na competent person with due application of mind. In case, the
\nsanction speaks for itself, then the satisfaction of the sanctioning
\nauthority is apparent by reading the order. When the sanction itself
\nis very expressive, then in that case, the argument that particular
\nmaterial was not properly placed before the sanctioning authority for
\naccording sanction and the sanctioning authority has not applied its
\nmind becomes unsustainable.\n<\/p>\n
Next
\n\t\tit is contended that the conduct of the accused person is also a
\n\t\trelevant consideration inasmuch as it is not in dispute that no
\n\t\texplanation whatsoever has come forth as to why the application of
\n\t\tthe complainant was kept pending for such a long time. It is
\n\t\tsubmitted that the conduct of the appellant of leaving the branch
\n\t\tat the beginning of working hours with a view to collect bribe
\n\t\tmoney from the complainant, itself shows the character of the
\n\t\taccused. It is further submitted that the accused has tried to give
\n\t\tan explanation which is difficult to digest and believe. As regards
\n\t\tthe explanation regarding pressures etc., it is submitted that in
\n\t\tfact, no document shows that there was such pressure. In fact, the
\n\t\tdocuments show that the accused was insincere in the discharge of
\n\t\this duties. The explanation regarding vendetta etc. is vague and
\n\t\tthat, no enmity to any particular person is shown by the accused.\n<\/p>\n
Reliance
\n\t\tis placed upon the decision of the Apex court in Shankerbhai
\n\t\tLaljibhai Rot  v. State of Gujarat,<\/a> (2004) 13 SCC 487, for
\n\t\tthe proposition that minor variance as regards the mode of demand
\n\t\tis really of no consequence to corrode the credible and cogent
\n\t\tevidence of prosecution witnesses. It is submitted that the
\n\t\tprevious demand is also required to be believed. It is contended
\n\t\tthat prior demand ought not to have been disbelieved merely on the
\n\t\tbasis of deposition of Kantibhai who was also an accomplice. It is
\n\t\tsubmitted that when the complainant’s deposition is otherwise found
\n\t\tto be trustworthy, the evidence as regards previous demand should
\n\t\talso be believed. Reliance is placed upon a decision of the Supreme
\n\t\tCourt in Raj Rajendra Singh Seth alias R.R.S. Seth v. State
\n\t\tof Jharkhand and another, (2008) 11 SCC 681.\n<\/p>\n
\t\tReliance is also placed on the decision of the Supreme Court in
\n\t\tState of A.P. v. K. Punardana Rao, AIR<\/a> 2004 SC 4194.
\n\t\tIt is, accordingly, submitted that the prosecution has proved the
\n\t\tcharge against the appellant beyond reasonable doubt.  The Trial
\n\t\tCourt has upon due appreciation of the evidence led before it,
\n\t\trecorded findings and arrived at the conclusion regarding the guilt
\n\t\tof the appellant and that there being no infirmity in the order of
\n\t\tthe Trial Court, there is no warrant for this court to take a
\n\t\tdifferent view, hence, the appeal deserves to be dismissed.\n<\/p>\n
In
\n\trejoinder, Mr. K. B. Anandjiwala, learned advocate for the appellant
\n\thas submitted that insofar as the validity of the sanction order is
\n\tconcerned, there is no evidence on record to indicate that all the
\n\tpapers of investigation were placed before the sanctioning
\n\tauthority. The sanctioning authority before entering the witness box
\n\thas not refreshed his memory. It is contended that the decision
\n\treported in Dharmendra Kumar Mohanji Mishra v. State of
\n\tGujarat (supra) would not be applicable to the facts of the
\n\tpresent case. The sanctioning authority has not gone through any
\n\tinvestigation papers independently. The letters which form part of
\n\tthe evidence were not placed before the sanctioning authority and
\n\tthe order granting sanction suffers from the vice of total
\n\tnon-application of mind.  It is submitted that there is no evidence
\n\ton record to show as to whether the charge-sheet form was sent to
\n\tthe sanctioning authority or that the investigation papers were sent
\n\tto him. As regards the contention raised by the learned advocate for
\n\tthe C.B.I. that the issued regarding the validity of the sanction
\n\twas being raised for the first time in appeal, the learned advocate
\n\tfor the appellant has submitted that the points for determination
\n\tare to be formulated by the Trial Court. It is further submitted
\n\tthat in appeal, all evidence is required to be re-appreciated and
\n\tany question of law can always be urged even at this stage.\n<\/p>\n
This
\n\tCourt has perused the record of the case and has considered the
\n\trival submissions advanced by the learned advocates for the parties
\n\tas well as the decisions cited at the bar.\n<\/p>\n
It
\n\tis well settled that in a trap case the testimony of the complainant
\n\tand the panch witness are of prime importance. In the circumstances
\n\tthe evidence of these two witnesses is required to be scrutinized
\n\tminutely.  The complainant PW-1, Rameshbhai Shamjibhai Patel has
\n\tbeen examined at Exhibit 42. He has deposed that in the year 1986 he
\n\twas working as a diamond polisher and was also engaged in
\n\tagriculture. One year prior to the incident he had heard that loans
\n\tcould be availed from the bank for the purpose of purchasing openers
\n\tand bullock-carts and such loans were being given to small farmers.
\n\tHe, therefore, met Kantibhai who was a Gram Sevak of the
\n\tneighbouring village Devalia and obtained necessary information from
\n\thim and decided from where to buy a bullock-cart. The Gram-sevak
\n\tgave him a form for getting quotations. Thereafter he had gone out
\n\tof station for diamond polishing and returned after about three
\n\tmonths and met Kantibhai Patel and asked him as to why when all
\n\tothers in the village had been granted loans, he not been granted a
\n\tloan. Whereupon he was told that he should meet Trivedi Saheb at
\n\tDevalia village. He, therefore, met the accused who told him that he
\n\twas late and that the scheme was closed and when the scheme is again
\n\tstarted he would call him. Thereafter, he again went out of station
\n\tin connection with the work of diamond polishing. Two months prior
\n\tto the incident he had again come back to his village and met
\n\tKantibhai and at his instance he met the accused. The accused told
\n\thim that the earlier quotation would be required to be changed. He
\n\ttherefore, obtained quotations for two tyres from Gondal. The
\n\taccused then told him that as and when the loan is to be disbursed
\n\the would be called. Thereafter he again went away for diamond
\n\tpolishing work. He, thereafter, met Kantibhai two to three times and
\n\tinquired from him, but was told that his loan had not been
\n\tsanctioned. Once again, seven days prior to the incident he went to
\n\tKantibhai and told him that if he was not likely to get a loan, his
\n\tpapers should be returned to him and that he does not want a loan.
\n\tWhereupon Kantibhai told him that all his papers had been given to
\n\tTrivedi Saheb, Manager of the State Bank and that he should go and
\n\tmeet him. He, therefore, met the accused who told him that he had
\n\theard that he (the complainant) does not reside at Khijadia village.
\n\tThe complainant told him that he does reside at Khijadia, whereupon
\n\tthe accused told him to bring evidence in the form of certificate of
\n\tthe panchayat as well as his ration card, and that after
\n\tscrutinizing all the papers he would be able to tell him whether or
\n\tnot he can get a loan. Thereafter on Monday, 10th March,
\n\t1986, he met the accused at the State Bank with the ration card and
\n\tcertificate of the Panchayat and the accused told him to come again
\n\ton Wednesday. On Wednesday when he met the accused, he told him that
\n\the should open an account with the bank, hence he got his account
\n\topened and deposited Rs.100\/- The accused told him that he would get
\n\ta loan and that he would have to understand the dealing to which he
\n\treplied that he was a poor person and it would be nice if he shows
\n\tsome mercy towards him. Whereupon the appellant told him to go and
\n\tmeet Kantibhai. The witness met Kantibhai, who told him that if he
\n\twanted the loan he would have to give the appellant Rs.400\/-.
\n\tThereafter the witness approached the appellant and told him that he
\n\twas ready to give Rs.400\/- but his work should be done by the next
\n\tday as he already had come several times. Whereupon the appellant
\n\ttold him that his work would be done. Thereafter the appellant gave
\n\thim a file which contained his papers and asked him to take the file
\n\tand go and meet advocate Mr. Sejpal at Amreli. The appellant told
\n\thim to get the papers checked and bring them back soon. Hence, on
\n\tThursday, 13th March, 1986 at 9:00 a.m., the complainant
\n\tmet Mr. Sejpal, and gave him the papers. The advocate told him to
\n\ttake back the papers after an hour. Since the witness had time on
\n\this hands, he decided to meet some relatives at Amreli and
\n\taccordingly went to meet them and told them that the Gram Sevak
\n\tKantibhai and the Bank Manager were harassing him since a year, and
\n\tnow that he had agreed to pay Rs.400\/- his loan was likely to be
\n\tsanctioned. He asked them what he should do in this regard. They
\n\tadvised him that there was an anti-corruption department there and
\n\tif he wanted the work done without having to pay any money he should
\n\tgo there. Hence, he went to the ACB office.  At the ACB Office, two
\n\tJamadars, namely, Chhaganbhai and Harshadbhai were present who told
\n\thim that they would record his complaint when he comes there the
\n\tnext time. The witness then went to meet Advocate Mr. Sejpal. He
\n\ttold the advocate that he did not want to pay the bribe money and
\n\tthat he wanted the work to be done without paying any money. He also
\n\ttold him that he wanted to lodge a complaint in that regard with the
\n\tAnti Corruption Bureau.  Advocate, Mr. Sejpal advised him that there
\n\twas no problem in doing so and that, it could be done. Thereafter,
\n\the took the papers which were signed by Mr. Sejpal and went to
\n\tDevaliya. Mr. Sejpal had told him that he would have to obtain
\n\taffidavits of his relatives Gigabhai and Ranchhodbhai. Thereafter,
\n\the met the appellant at Devaliya with the papers, who told him to
\n\tcome with the affidavits of Ranchhodbhai and Gigabhai. Thereafter,
\n\the again met Kantibhai, who told him to come on the next day at 10
\n\to’clock in the morning with the money. He, therefore, directly went
\n\tto his village Khijadiya and arranged for Rs.400\/- and went to the
\n\tACB office at Amreli in the evening. There, Jamadars Harshadbhai and
\n\tChhaganbhai told him that their superior was not present and that he
\n\twould have to go to Rajkot.  He, along with two Jamadars, proceeded
\n\tto Rajkot at night. On reaching Rajkot the superior officer was
\n\tcalled and the complainant was told to rest on a bench. In the
\n\tmorning after he woke up, Mr. Manjaria had summoned two panchas and
\n\trecorded his complaint and read it over to him. Thereafter, Mr.
\n\tManjaria asked him for Rs.400\/-, whereupon he produced four currency
\n\tnotes of the denomination of Rs.100\/- and the numbers of the
\n\tcurrency notes were noted down in the panchnama.  Thereafter, a
\n\tbottle and a lamp were taken out from a cupboard and procedure
\n\tregarding the ultraviolet experiment was explained to them. They
\n\twere told that the bottle contained anthracene powder which could
\n\tnot be seen under ordinary light. Under instructions of Mr.
\n\tManjaria, anthracene powder was smeared on both sides of the
\n\tcurrency notes and the person who smeared the anthracene powder on
\n\tthe notes thereafter washed his hands. Before washing his hands, the
\n\tnotes were put in the pocket of the complainant. A preliminary
\n\tpanchnama was drawn and signed by the panchas. Thereafter, Mr.
\n\tManjaria instructed them that they would all be going to Devaliya.
\n\tAt about 8:15 in the morning, they set off in a jeep and reached
\n\tDevaliya at about 10:15 hours. After alighting from the jeep, the
\n\tcomplainant and panch No.1 Jasanibhai went upstairs in the building
\n\tof the State Bank of Saurashtra where the appellant was sitting. The
\n\tappellant told him,  Come Ramesh, so you have come .  Whereupon
\n\the said,  yes sir, I have come .  The appellant then told them,
\n\t Come, let us go to Kantibhai’s house .  Kantibhai’s house was
\n\ton the way and there was a temple near his house and there was a
\n\tcorner in between. At the corner, they stopped and he gave four
\n\tcurrency notes of the denomination of Rs.100\/- to the appellant.
\n\tThereafter, the complainant gave the pre-arranged signal, whereupon
\n\tMr. Manjaria and the panch and other members of the raiding party
\n\tcame there. Mr. Manjariya and other officers introduced themselves
\n\tto the appellant. The appellant was frightened. As it was not
\n\tpossible to carry out the experiment with the lamp on the road and
\n\tthe bank was situated nearby they went there and the procedure was
\n\tcarried out and thereafter, the complainant was permitted to leave
\n\tand was told that he would be called whenever necessary. The
\n\tcomplainant has further stated that after they went back to the
\n\tbank, the panch took out the money from the left side pocket of the
\n\tbush shirt of the appellant. The ultraviolet light was thrown on the
\n\tnotes and pocket of the appellant and the signs of anthracene powder
\n\tcould be seen on the edge of the bush shirt pocket.  The complainant
\n\thas further deposed that the appellant had accepted the money from
\n\thim with his right hand and put it in his pocket.  During the course
\n\tof his cross-examination, the complainant has admitted that when he
\n\thad handed over the documents which had been given by Sejpal to the
\n\tappellant, the appellant had not said anything about the amount
\n\twhich should be given to him.  He has further admitted that while
\n\tlodging his complaint before Mr. Manjaria, he had not said that
\n\tthereafter he had met Kantibhai and Kantibhai had told him that he
\n\tshould come on the next morning at 10 or 11 o’clock with the money.
\n\tIt has also come out in the cross-examination that the spot where
\n\tthey were standing at the corner of the temple was in front of the
\n\tappellant s house and that there was no talk between the
\n\tcomplainant and the appellant regarding money. The complainant has
\n\tfurther admitted that since the appellant was not talking about the
\n\tmoney and was not demanding money, he had lost his patience and had
\n\ttaken out the money from his pocket.\n<\/p>\n
The
\n\tother important witness is the panch-witness. Vasantrai Keshavji
\n\tJasani, Panch No.1, who has been examined at Exhibit 46. Insofar as
\n\tthe procedure regarding application of anthracene powder and conduct
\n\tof ultra violet lamp experiment as well as the manner in which the
\n\traid is carried out at Devalia, the version given by him though more
\n\tdetailed, is more or less similar to the version given by the
\n\tcomplainant. With regard to the manner in which the incident
\n\toccurred at Mota Devalia, PW-2 said that after reaching there, they
\n\twent near the office of the State Bank of Saurashtra. There they
\n\tfound the lower gate of the bank closed and therefore, they were
\n\tloitering here and there in that area. After sometime, the bank was
\n\topened and the Manager came there.  He (PW-2) and the complainant
\n\twent upstairs with the Manager. The Manager asked the complainant
\n\twhether he had come, to which the complainant replied that he had
\n\tcome. Further, according to PW-2, since two other persons were
\n\tpresent in the bank, the Manager said  Let us go down-stairs and
\n\tfinish our work , and thereafter, they proceeded in the eastern
\n\tdirection. After stepping down from the bank, the accused asked the
\n\tcomplainant who this man was, whereupon the complainant said that he
\n\twas an acquaintance and that after the work was over they wanted to
\n\tgo out hence, they would directly go from there. In the meanwhile
\n\tthey reached the corner of Ramji Mandir. In front of the Mandir, the
\n\taccused stood facing the north and the complainant was facing the
\n\tsouth. Thereafter, the accused asked the complainant whether he had
\n\tbrought with him the thing which was agreed upon between them, to
\n\twhich the complainant replied in the affirmative, whereupon the
\n\taccused asked the complainant to give the same to him and told him
\n\tthat his work would be done. The complainant, therefore, took out
\n\tfour currency notes sprinkled with anthracene powder with his right
\n\thand from the left pocket of his bush-shirt and handed over the same
\n\tto the accused.  The complainant further said that he was a poor and
\n\ta small man and therefore, his interest should be taken care of and
\n\this work should be done, whereupon the accused said that his work
\n\twould be done; he should not worry.  While this conversation was
\n\tgoing on, he (Panch No.1) gave the pre-arranged signal and informed
\n\tthe members of the raiding party. At that time, the raiding party
\n\twas at a distance of about 7 to 8 feet from there and immediately on
\n\tgiving the signal, Mr. Manjaria, panch No.2 and the Police
\n\tConstables came over to the spot and Mr. Manjaria gave his
\n\tintroduction to the accused and told him to keep the money as it is
\n\tin his pocket. Further, according to PW-2, since this place was a
\n\tpublic road, it was not possible to carry out the experiment of
\n\tultraviolet lamp and therefore, all of them along with Mr. Manjaria
\n\tproceeded to the bank premises. Mr. Manjaria spoke to the accused
\n\tthat the complainant had complained that the accused had demanded
\n\tmoney for sanctioning loan and that the accused had accepted the
\n\tbribe money from the complainant. Further, according to PW-2, Mr.
\n\tManjaria gave instructions to make use of the ultraviolet lamp. On
\n\tthrowing the light of the ultraviolet lamp on the pocket of the
\n\taccused as well as the hands of the accused, light blue stains could
\n\tbe seen on the border of the pocket and on both the hands of the
\n\taccused. The numbers recorded in the panchnama were compared with
\n\tthe numbers of the currency notes recovered from the pocket of the
\n\taccused and the same were found to be tallying with each other.
\n\tThereafter, Mr. Manjaria seized the bush-shirt of the accused and
\n\ttook signature of both the panchas on the pocket of the bush-shirt.
\n\tIn his cross-examination, it has come out that when they went to the
\n\tbank, the complainant had not given any documents to the appellant
\n\tand there was no talk regarding documents pertaining to the loan
\n\tbetween them.  It has further come out in his cross-examination that
\n\tafter carrying out ultraviolet experiment on the pocket of the
\n\taccused, he had taken out the money from his pocket.  That the marks
\n\tof anthracene powder on the pocket were not marked by ball pen or
\n\tink or with any other thing.  That they had not signed on the pocket
\n\tor on any part of the shirt in the presence of Mr. Manjaria.  He has
\n\tdenied the suggestion that the complainant had attempted to thrust
\n\tthe money in the pocket of the appellant near Ramji Mandir.\n<\/p>\n
Another
\n\timportant witness is Kantibhai Tulsibhai Patel, who at the relevant
\n\ttime was discharging duties as Gram Sevak at Mota Devalia, has been
\n\texamined as prosecution witness No.4 at Exhibit 54. In his
\n\tdeposition, he has categorically stated that there was never any
\n\ttalk between him and the complainant regarding any money to be given
\n\tto the Branch Manager of the bank.\n<\/p>\n
From
\n\tthe evidence of the aforesaid witnesses, it is found that according
\n\tto the complainant the appellant had told him that he would get a
\n\tloan and that he would have to understand the dealing and had also
\n\ttold him to go and meet Kantibhai, whereupon he had met Kantibhai,
\n\twho told him that if he wanted the loan he would have to give the
\n\tappellant Rs.400\/-. Thereafter the witness approached the appellant
\n\tand told him that he was ready to give Rs.400\/- but his work should
\n\tbe done by the next day as he already had come several times.
\n\tWhereupon the appellant told him that his work would be done. To
\n\tcorroborate the say of the complainant the prosecution has examined
\n\tKantibhai Patel as PW-4. However, Kantibhai has not supported the
\n\tversion given by the complainant and in his examination-in-chief he
\n\thas categorically stated that there was no talk between him and the
\n\tcomplainant as regards giving any amount to the Branch Manager of
\n\tthe Taluka office.  Though Kantibhai has not supported the
\n\tprosecution case on this significant aspect, the prosecution has not
\n\tthought it fit to declare him hostile to the prosecution case. In
\n\tthe circumstances, the Court has to proceed on the footing that the
\n\tprosecution does not challenge the version given by Kantibhai. Thus,
\n\ton scrutiny of the evidence of the complainant and Kantibhai it is
\n\tapparent that on the question of initial demand, two conflicting
\n\tversions have been brought on record by the prosecution. One is the
\n\tversion of the complainant who states that the demand for Rs.400\/-
\n\thad been made through Kantibhai and the other is the version of
\n\tKantibhai who denies any such talk between him and the complainant.
\n\tThus, the say of complainant as regards initial demand is not
\n\tcorroborated by the other prosecution witness. Thus, in view of the
\n\tconflicting versions given by the two prosecution witnesses, it
\n\twould be hazardous to place reliance upon the evidence of the
\n\tcomplainant qua the initial demand. In the impugned judgement, the
\n\tlearned Judge has observed that,  The only factor which baffles
\n\tus in the facts and circumstances of the case is the lack of demand
\n\tby the accused at a stage prior to laying the trap.  The complainant
\n\tstates in his examination in-chief firstly, that after repeatedly
\n\tmeeting the accused, he was told by the accused that monetary aspect
\n\twould have to be understood, but the complainant did not clarify
\n\twhether any amount was specified by the accused.  In the
\n\tcircumstances, it is not possible for the Court to state that the
\n\tinitial demand has been proved beyond reasonable doubt.\n<\/p>\n
The
\n\tnext ingredient which the prosecution is required to establish is
\n\tthe demand prior to acceptance and acceptance. In this regard, from
\n\tthe evidence of the complainant, the Court finds that while
\n\tdescribing what had happened after they came out of the bank
\n\tpremises the complainant has stated that after they came down stairs
\n\tfrom the bank premises and proceeded towards Ramji Mandir, he took
\n\tout the money from his pocket and gave it to the appellant who
\n\taccepted it with his right hand and put it in his pocket. Thus, the
\n\tcomplainant does not refer to any talk as regards his loan
\n\tapplication or as regards demand for money prior to his giving the
\n\tmoney to the appellant. In his cross-examination, the complainant
\n\thas admitted that he had felt that the appellant was not talking
\n\tabout the money and was not demanding any money; hence, he had lost
\n\tpatience and had taken out the money from his pocket. Thus, insofar
\n\tas the evidence of the complainant is concerned, it is not his case
\n\tthat there was any demand made by the appellant prior to the
\n\tacceptance. However, there is a significant discrepancy in the
\n\tversion of Shri V. K. Jasani, Panch No.1 in this regard. The said
\n\twitness has testified that when they reached Ramji Mandir, the
\n\taccused asked the complainant whether he had brought what was agreed
\n\tupon between them, to which the complainant replied in the
\n\taffirmative, whereupon the accused asked the complainant to give the
\n\tsame to him and told him that his work would be done. That the
\n\tcomplainant took out the four currency notes and handed over the
\n\tsame to the accused and further said that he was a poor and a small
\n\tman and therefore, his interest should be taken care of and his work
\n\tshould be done, whereupon the accused said that his work would be
\n\tdone and he should not worry. Thus, there are two different versions
\n\tcoming on record. One of the complainant who does not refer to any
\n\tconversation between him and the appellant in his examination in
\n\tchief and during the course of his cross examination the defence has
\n\tbeen able to bring on record the fact that the appellant had not
\n\ttalked about the money or demanded any money and that it was the
\n\tcomplainant who had lost patience and taken out the money and given
\n\tit to the appellant. The other version is that of the panch who
\n\ttalks about conversation having taken place between the complainant
\n\tand the appellant prior to handing over the currency notes regarding
\n\tdemand of money by the appellant as well as assurance on the part of
\n\tthe appellant that the work would be done; as well as at the time of
\n\thanding over the currency notes when the complainant said that he
\n\twas a poor and a small man and therefore, his interest should be
\n\ttaken care of and his work should be done, whereupon the appellant
\n\tsaid that his work would be done and he should not worry. Thus,
\n\twhile the testimony of the complainant is totally silent as regards
\n\tany conversation between him and the appellant as well as any demand
\n\tprior to acceptance, the testimony of the panch is otherwise,
\n\tinasmuch as the same refers to conversation between the two as well
\n\tas demand prior to acceptance. It may be that a considerable time
\n\thad elapsed between the date of the incident and the recording of
\n\tthe evidence, however, the discrepancy in the evidence of the two
\n\twitnesses certainly cannot be said to be a minor discrepancy which
\n\tcan be overlooked. The evidence of the panch is in the nature of
\n\tcorroborative evidence, to corroborate the say of the complainant.
\n\tIn the facts of the present case, nothing comes out in the testimony
\n\tof the complainant, and it is only the testimony of the panch that
\n\trefers to demand. Moreover, though the complainant has not supported
\n\tthe prosecution case as regards demand or any conversation having
\n\ttaken place, he has not been declared hostile to the prosecution
\n\tcase. Hence, the prosecution has brought on record two conflicting
\n\tversions, neither of which is challenged by the prosecution, by
\n\tsubjecting the witness to cross-examination. In the circumstances,
\n\tit would be not be safe to place reliance on the evidence of the
\n\tpanch for the purpose of holding that there was a demand prior to
\n\tacceptance. In the impugned judgment, the learned Judge has observed
\n\tthat,  Whatever happened during the trap proceedings has been
\n\tamply corroborated by the panch witness.  It could, therefore, not
\n\tbe said in the instant case without any certainty that the evidence
\n\tof the complainant has not been corroborated in the material
\n\tparticulars by the panch witness.   However, from the facts
\n\tnoted hereinabove, it is apparent that insofar as the evidence of
\n\tthe complainant is concerned, there is nothing on record to indicate
\n\tthat there was any demand made by the accused whereas, the case of
\n\tdemand etc. only comes out in the evidence of the panch witness. In
\n\tfact in the cross-examination of the complainant the defence has
\n\tsuccessfully brought on record that there was no demand for money
\n\tfrom the appellant and that the complainant having lost patience
\n\ttook out the money and gave it to the appellant.  Hence, it cannot
\n\tbe said that the evidence of the complainant has been corroborated
\n\tby the panch witness in material particulars. In fact, the evidence
\n\tof the complainant does not make out any case of demand by the
\n\tappellant, whereas it is the evidence of the panch witness which
\n\tmakes out a case of demand. In the circumstances, it cannot be said
\n\tthat the discrepancies about the evidences of the two witnesses are
\n\tminor discrepancies which can be ignored. This infirmity in the
\n\tprosecution case goes to the root of the matter and strikes a fatal
\n\tblow to the prosecution case.\n<\/p>\n
Insofar
\n\tas the aspect of acceptance is concerned, the complainant has stated
\n\tthat he had given the currency notes to the appellant who took them
\n\twith his right hand and put them in his pocket. It is neither the
\n\tcase of the complainant nor of the panch witness that the appellant
\n\thad counted the notes on the same being given to him. However, the
\n\tultra violet lamp experiment shows that signs of anthracene were
\n\tfound on the fingers and palms of both the hands of the appellant.
\n\tMoreover, from the evidence of the witnesses it has come on record
\n\tthat the currency notes were not taken out of the pocket of the
\n\tappellant on the spot but only after they went back to the Bank for
\n\tthe purpose of carrying out the ultraviolet lamp experiment. It has
\n\talso come on record that no marking had been made on the pocket of
\n\tthe appellant to indicate the signs of anthracene nor was the same
\n\tsigned by the Investigating Officer or the panchas. It has been
\n\tcontended on behalf of the prosecution that the marked currency
\n\tnotes were found from the pocket of the accused as is evident from
\n\tthe fact that on the anthracene powder test being carried out with
\n\tthe ultraviolet lamp, powder was found on the bush shirt pocket as
\n\twell as on the notes of the accused, a presumption about the
\n\tacceptance of money should be raised.  Such a submission cannot be
\n\tcountenanced when there is no evidence worth the name regarding
\n\tinitial passing of the currency notes from the side of the
\n\tcomplainant to the side of the accused accompanied by conversation
\n\tin this behalf. In these circumstances, it would be hazardous to
\n\trecord a finding with regard to acceptance, simply because on the
\n\tevidence of the complainant, the panch and the PSI, it emerges that
\n\tfrom the bush shirt pocket of the accused, the said notes were found
\n\tand that on the test being carried, the hands of the accused and his
\n\tbush shirt pocket revealed presence of the anthracene powder.  In
\n\tsuch a case, it would be unsafe to rely on the oral evidence of the
\n\tthree witnesses in this connection when there is a missing link with
\n\tregard to the initial demand, as well as the demand prior to
\n\tacceptance, when the notes are alleged to have passed from the side
\n\tof the complainant to the side of the accused. Thus, considering the
\n\taforesaid evidence in the light of the conflicting versions as
\n\tregards demand prior to acceptance, it cannot be stated that the
\n\tprosecution has established acceptance of illegal gratification
\n\tbeyond reasonable doubt.\n<\/p>\n
In
\n\tthe light of the evidence which has come on record, it cannot be
\n\tsaid that there is any cogent, reliable and unimpeachable evidence
\n\testablishing that the appellant-convict had received from the
\n\tcomplainant the amount of Rs.400\/- as and by way of illegal
\n\tgratification. The question of presumption, therefore, will not
\n\tarise in the present case. In the circumstances, it is not necessary
\n\tto enter into a discussion as to whether the appellant has
\n\tsuccessfully rebutted the case of the prosecution. It would be
\n\tunsafe and not prudent in the facts and circumstances of this case
\n\tto record a finding of demand and acceptance solely on the evidence
\n\tof the panch witness when it is not even the case of the complainant
\n\tthat the appellant had demanded any money from him.\n<\/p>\n
Insofar
\n\tas the contention regarding the panchas not being independent
\n\tpanchas as they were known to the Investigating Officer the same
\n\tdoes not merit acceptance when considered in the light of the
\n\tdecision of the apex court in the case of State of U.P. v.
\n\tZakaullah<\/a> (supra) wherein it has been held thus:\n<\/p>\n
 10.
\nThe necessity for  independent witness  in cases involving police
\nraid or police search is incorporated in the statute not for the
\npurpose of helping the indicated person to bypass the evidence of
\nthose panch witnesses who have had some acquaintance with the police
\nor officers conducting the search at some time or the other.
\nAcquaintance with the police by itself would not destroy a man s
\nindependent outlook. In a society where police involvement is a
\nregular phenomenon many people would get acquainted with the police.
\nBut as long as they are not dependent on the police for their living
\nor liberty or for any other matter, it cannot be said that those are
\nnot independent persons. If the police in order to carry out official
\nduties, have sought the help of any other person he would not forfeit
\nhis independent character by giving help to police action. The
\nrequirement to have independent witness to corroborate the evidence
\nof the police is to be viewed from a realistic angle. Every citizen
\nof India must be presumed to be an independent person until it is
\nproved that he was a dependant of the police or other officials for
\nany purpose whatsoever. [Hazari Lal v. State
\n(Delhi Admn.).<\/a>] <\/p>\n
Insofar
\n\tas the challenge to the validity of the sanction order is concerned
\n\tthe same must also fail, inasmuch as the sanctioning authority has
\n\tbeen examined as a witness and he has categorically deposed that he
\n\thad passed the order granting sanction after being satisfied with
\n\tthe facts of the case. In his cross examination, nothing has been
\n\telicited to impeach the credibility of the said witness.\n<\/p>\n
In
\n\tthe light of the aforesaid discussion, in the opinion of this Court,
\n\tthough the facts of the case give rise to grave suspicion against
\n\tthe appellant, the prosecution has failed to establish the guilt of
\n\tthe appellant beyond reasonable doubt. In the circumstances, the
\n\tappeal must succeed and is accordingly allowed. The impugned order
\n\tdated 30th April, 1993 of conviction and sentence made by the
\n\tlearned Special Judge, Court No.3, Ahmedabad in Special Case No.32
\n\tof 1986, is set aside and the appellant is acquitted.\n<\/p>\n
[HARSHA
\nDEVANI, J.]<\/p>\n
parmar*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Arvindbhai vs Appearance : on 29 June, 2010 Author: H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print CR.A\/585\/1993 34\/ 37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 585 of 1993 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= 1 Whether Reporters of Local Papers may be allowed […]<\/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-42451","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nArvindbhai vs Appearance : on 29 June, 2010 - 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\/arvindbhai-vs-appearance-on-29-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arvindbhai vs Appearance : on 29 June, 2010 - 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