THE STATE OF GUJARAT versus NAVINBHAI CHANDRAKANT JOSHI ETC. on 17 July 2018

[2018] 9 S.C.R. 329

THE STATE OF GUJARAT

v.

NAVINBHAI CHANDRAKANT JOSHI ETC.

(Criminal Appeal Nos. 895-896 of 2018)

JULY 17, 2018

[RANJAN GOGOI AND R. BANUMATHI, JJ.]

Prevention of Corruption Act, 1988 – ss. 7 and 13(1)(d) –Illegal gratification – On facts, accused no. 1 demanded bribe fromthe complainant, trap arranged and tainted currency notes seizedfrom accused no. 2 – Trial court held that the demand andacceptance of illegal gratification proved by the prosecution byevidence of the complainant and prosecution witness as alsopresence of anthracene powder with the accused – Conviction ofboth the accused u/s. 7 and 13(1)(d) and sentenced accordingly –High Court holding that there was no recovery from accused no. 1,acquitted the accused – On appeal, held: Since it is establishedthat accused was possessing the bribe money, it was for them toexplain that how the bribe money has been received by them and ifhe failed to offer any satisfactory explanation, it would be presumedthat he has accepted bribe – Accused have not offered anyexplanation to rebut the presumption u/s. 20 – Evidence of thecomplainant that accused demanded bribe appears to be natural –When the findings recorded by the trial court is based uponappreciation of evidence, the High Court was not right in reversingthe judgment of the trial court – Thus, the order passed by the HighCourt set aside.

Allowing the appeals, the Court

HELD: 1.1 It is well-settled that to establish the offenceunder Sections 7 and 13(1)(d) of the Prevention of CorruptionAct, 1988 particularly those relating to the trap cases, theprosecution has to establish the existence of demand as well asacceptance by the public servant. [Para 8] [334-B]

1.2 From the evidence of PW-1, demand by accused No.1and accused No.2 is proved by the prosecution. The same iscorroborated by the test of the ultra violet light showing the

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Apresence of anthracene powder on the shirt worn by accused No.2and the right hand of accused No.1. Evidence of PW-1 iscorroborated by the evidence of PW-3. The trial court recordedthe findings that the evidence of PWs 1 and 3 is consistent andthey are reliable witnesses. Upon appreciation of evidence,adduced by the prosecution, the trial court convicted accusedBNos. 1 and 2. [Para 9] [335-A-C]

1.3 The High Court acquitted the accused on the groundthat there was no recovery from accused No.1 and that the demandby the accused persons has not been established by theprosecution. The High Court took the view that accused No.2Chad no idea for what purpose the money was given to accusedNo.1 by PW-1 and therefore, it cannot be said that accused No.2had accepted the bribe amount upon demand to PW-1. The HighCourt was not right in brushing aside the evidence of PW-1 whohas clearly stated that accused No.1 demanded bribe of Rs.1,000/D- and the same was settled for Rs.500/- for expediting the matterfor conversion of the plot for non-agricultural purpose. Recoveryof the tainted currency notes from accused No.2 and the presenceof anthracene powder in the right hand of accused No.1 and thepocket of the shirt of accused No.2 clearly show that they actedin tandem in the demand and acceptance of the bribe amount.EWhen the demand and acceptance of illegal gratification has beenproved by the evidence of PWs 1 and 3, the High Court was notright in holding that the demand and acceptance was not proved.[Para 10][335-C-F]

1.4 It is settled law that the presumption raised underFSection 20 of the Act is a rebuttable presumption, and that theburden placed on the appellant for rebutting the presumption isone of preponderance of probabilities. Since it is established thatthe accused was possessing the bribe money, it was for them toexplain that how the bribe money has been received by them andGif he fails to offer any satisfactory explanation, it will be presumedthat he has accepted the bribe. The accused have not offered anyexplanation to rebut the presumption under Section 20 of theAct. On the other hand, from the evidence of PW-1 that accusedNo.1 demanded the bribe appears to be natural. The applicationfor approval of revised plan was earlier rejected. When theH

complainant and his advocate met TDO and on whose directionPW-1 has paid the requisite fine amount, the file has to necessarilymove. It was at that point of time accused No.1 demanded bribeamount from PW-1. While appreciating the evidence, the HighCourt should have given proper weight to the views of the trialcourt as to the credibility of all evidence of PWs 1 and 3. Whenthe findings recorded by the trial court is based upon appreciationof evidence, the High Court was not right in reversing thejudgment of the trial court. Thus, the impugned judgment of theHigh Court is set aside and conviction of accused No.1 and 2under section 7 and section 13(1)(d) of the Act, is affirmed.[Paras 11, 12, 14] [335-G-H; 336-C-F, H; 337-A]

1.5 So far as the sentence of imprisonment is concernedfor conviction under Section 13(1)(d) of the Act, the trial courtimposed sentence of imprisonment of two years upon each of theaccused. The occurrence was of the year 1991 that is about 27years ago. Considering the passage of time, it appropriate toreduce the sentence of imprisonment of two years to the statutoryminimum imprisonment of one year. [Para 13] [336-F-H]

B. Jayaraj v. State of A.P. (2014) 13 SCC 55 : [2014] 4SCR 554 ; C.M. Girish Babu v. C.B.I. Cochin, HighCourt of Kerala (2009) 3 SCC 779 : [2009] 2 SCR1021 – referred to.

Case Law Reference

[2014] 4 SCR 554 referred to[2009] 2 SCR 1021 referred to Para 8Para 11

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 895-896 of 2018.

From the Judgment and Order dated 16.04.2015 of the High Courtof Gujarat at Ahmedabad in Criminal Appeal Nos. 477 and 478 of 2000.

Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Vishakha, Ms. MamtaSingh, Parthiv Goswami, Pradhuman Gohil, Vikash Singh, Ms. TarunaSingh Gohil, Himanshu Chaubey, Vikash Singh, Advs. for the appearingparties.

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AThe Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

2. These appeals arise out of the judgment dated 16.04.2015 passedby the High Court of Gujarat in Criminal Appeal Nos. 477-78 of 2000 inand by which the High Court reversed the verdict of conviction passedBby the trial court in Special (ACB) Case No.10 of 1992 and therebyacquitting the respondents under Section 7 and Section 13(1)(d) of thePrevention of Corruption Act, 1988 (‘the Act’).

3. Briefly stated case of the prosecution is that accusedNo.1/respondent No.2 – J.D. Patel was working as a Junior Clerk inCNon-Agriculture Department and accused No.2/respondent No.1 –Navinbhai Chandrakant Joshi (Navinbhai) was also working in the samedepartment. The complainant-Bhagwandas (PW-1) is a businessmandealing in the business of sugar as a wholesale retailer. The complainant/PW-1 was desirous of starting a new firm by name Purvi MonomalDPvt. Ltd. for manufacturing of acrylic monomal and for this purpose, hehas purchased a plot at Village Chhatral from one Sandeep Agrawaland Manoj Agrawal. The agreement to sell was executed in December,1990 and the sale deed was executed in March, 1991. Though the originalowners of the plot had got the plot converted into non-agricultural plotfor different purpose, PW-1 had to place the revised plan for necessaryENon-Agricultural permission.

4. It is the case of PW-1 that accused No.1-J.D. Patel used totime and again assure PW-1 that he would see to it that the necessarypermission is approved for the revised plan of PW-1. On 27.03.1991,PW-1 learnt through accused No.1-J.D. Patel that the revised plan ofFPW-1 was not accepted and his application was rejected. On the directionof Taluka Development Officer (TDO), PW-1 paid a fine of Rs.368.30on 02.04.1991 in the office of Gram Panchayat, Chhatral and the receiptwas produced before the TDO. At that time, PW-1 requested accusedNo.1-J.D. Patel with whom the file of PW-1 used to remain to ensureGthat the matter is expedited at the earliest and necessary permission isaccorded. At that point of time, accused No.1-J.D. Patel had demandedRs.1,000/- for expediting the matter and ultimately it was settled forRs.500/-. Accused No.1-J.D. Patel told PW-1 that he should pay himRs.500/- on 03.04.1991 before recess hours and after he receives the money, he would see to it that necessary order of permission is passed infavour of PW-1. PW-1 approached the ACB Office and lodged thecomplaint against the accused. After registration of the case and afterfollowing the procedural formalities, a trap was arranged. On 03.04.1991,PW-1 went with PW-3-Devendra Kumar to accused No.1-J.D. Patel.Accused No.1-J.D. Patel showed accused No.2-Navinbhai Joshi to PW-1 and asked PW-1 to give the money to accused No.2-Navinbhai Joshiin the gallery. PW-1 paid the money to accused No.2-Navinbhai Joshiwho kept it in his left side shirt pocket and went near accused No.1-J.D.Patel and sat there. On showing the pre-arranged signal, the police partycame inside and the currency notes were seized from accused No.2-Navinbhai. On throwing the ultra violet light on the shirt of accusedNo.2-Navinbhai Joshi, white colour of light blue light of anthracenepowder could be seen on the left side pocket of the shirt worn by accusedNo.2-Navinbhai. Likewise, upon throwing of ultra violet light on thehands of accused No.1-J.D. Patel, white shining of light blue colour ofanthracene powder could be seen on the four fingers of right hand ofaccused No.1. After completion of investigation, charge sheet was filed.

5. To prove the guilt of the accused, prosecution has examined sixwitnesses and produced documentary evidence. Upon consideration oforal and documentary evidence, the trial court held that the demand andacceptance of the illegal gratification was proved by the prosecution bythe evidence of PWs 1 and 3 and also by the presence of anthracenepowder in the shirt pocket of accused No.2-Navinbhai and the righthand of accused No.1-J.D. Patel. The trial court convicted both accusedNos. 1 and 2 under Sections 7 and 13(1)(d) of the Act and sentencedeach of them to undergo rigorous imprisonment for one year and twoyears respectively and also imposed fine with default clause.

6. Being aggrieved, the accused preferred appeals before the HighCourt. The High Court, by the impugned judgment, reversed the judgmentof the trial court by holding that there was no recovery from accusedNo.1-J.D. Patel and the demand and acceptance by the accused personshas not been proved by the prosecution and acquitted the accused. Beingaggrieved, the State has preferred these appeals, challenging thecorrectness of acquittal.

7. We have heard Ms. Hemantika Wahi, learned counsel appearingon behalf of the State of Gujarat and Mr. Parthiv Goswami, learned AB

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Acounsel appearing on behalf of the respondents. We have perused theimpugned judgment and also the judgment of the trial court and othermaterials placed on record.

8. It is well-settled that to establish the offence under Sections 7and 13(1)(d) of the Act, particularly those relating to the trap cases, theBprosecution has to establish the existence of demand as well asacceptance by the public servant. In B. Jayaraj v. State of A.P., (2014)13 SCC 55, it was held as under:-

“7. Insofar as the offence under Section 7 is concerned, it is asettled position in law that demand of illegal gratification is sineCqua non to constitute the said offence and mere recovery ofcurrency notes cannot constitute the offence under Section 7 unlessit is proved beyond all reasonable doubt that the accused voluntarilyaccepted the money knowing it to be a bribe. The above positionhas been succinctly laid down in several judgments of this Court.DBy way of illustration reference may be made to the decision inC.M. Sharma v. State of A.P. (2010) 15 SCC 1 and C.M. GirishBabu v. CBI (2009) 3 SCC 779.”

9. In the present case, demand of the money by accused No.1-J.D. Patel and acceptance of the bribe amount by accused No.2-ENavinbhai at the behest of accused No.1-J.D. Patel is proved by theevidence of PWs 1 and 3. In his evidence, PW-1 had clearly statedabout the demand by accused No.1-J.D. Patel for expediting the matterregarding the approval of revised plan for Non-Agricultural permission.PW-1 further stated that when he met accused No.1-J.D. Patel on03.04.1991, accused No.1-J.D. Patel told him that it would not look properFif he takes the amount from PW-1 in office and showed him accusedNo.2-Navinbhai and asked PW-1 to give the money to him. PW-1 furtherstated that he went to the gallery and gave muddamal currency notes toaccused No.2-Navinbhai. Thereafter, accused No.2-Navinbhai had gonenear accused No.1-J.D. Patel and sat down. On showing the pre-Garranged signal, the police team went inside and questioned accusedNos.1 and 2. On search of accused No.2-Navinbhai, muddamalcurrencies were recovered from the left side shirt pocket. Throwinglight of ultra violet lamp had shown presence of anthracene powder inthe left side shirt pocket of accused No.2-Navinbhai. Likewise, throwing H

light of ultra violet lamp on the hands of accused No.1-J.D. Patel shownthe presence of anthracene powder. From the evidence of PW-1, demandby accused No.1-J.D. Patel and accused No.2-Navinbhai is proved bythe prosecution. The same is corroborated by the test of the ultra violetlight showing the presence of anthracene powder on the shirt worn byaccused No.2-Navinbhai and the right hand of accused No.1-J.D. Patel.Evidence of PW-1 is corroborated by the evidence of PW-3-DevendraKumar. The trial court recorded the findings that the evidence of PWs1 and 3 is consistent and they are reliable witnesses. Upon appreciationof evidence, adduced by the prosecution, the trial court convicted accusedNos. 1 and 2.

10. The High Court acquitted the accused on the ground thatthere was no recovery from accused No.1-J.D. Patel and that the demandby the accused persons has not been established by the prosecution.The High Court took the view that accused No.2-Navinbhai had no ideafor what purpose the money was given to accused No.1-J.D. Patel byPW-1 and therefore, it cannot be said that accused No.2-Navinbhai hadaccepted the bribe amount upon demand to PW-1. The High Court wasnot right in brushing aside the evidence of PW-1 who has clearly statedthat accused No.1-J.D. Patel demanded bribe of Rs.1,000/- and thesame was settled for Rs.500/- for expediting the matter for conversionof the plot for non-agricultural purpose. Recovery of the tainted currencynotes from accused No.2-Navinbhai and the presence of anthracenepowder in the right hand of accused No.1-J.D. Patel and the pocket ofthe shirt of accused No.2-Navinbhai clearly show that they acted intandem in the demand and acceptance of the bribe amount. When thedemand and acceptance of illegal gratification has been proved by theevidence of PWs 1 and 3, the High Court was not right in holding thatthe demand and acceptance was not proved. The findings of the trialcourt did not suffer from any infirmity and the High Court was not justifiedin setting aside the conviction of the accused.

11. So far as the presumption raised under Section 20 of the Actfor the offence under Section 7 of the Act is concerned, it is settled lawthat the presumption raised under Section 20 of the Act is a rebuttablepresumption, and that the burden placed on the appellant for rebuttingthe presumption is one of preponderance of probabilities. In C.M. Girish A

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ABabu v. C.B.I. Cochin, High Court of Kerala (2009) 3 SCC 779, thisCourt held as under:- “21. It is well settled that the presumption to be drawn underSection 20 is not an inviolable one. The accuse charged with theoffence could rebut it either through the cross-examination of theBwitnesses cited against him or by adducing reliable evidence…….

22. It is equally well settled that the burden of proof placed uponthe accused person against whom the presumption is made underSection 20 of the Act is not akin to that of burden placed on theprosecution to prove the case beyond a reasonable doubt…”C

Since it is established that the accused was possessing the bribemoney, it was for them to explain that how the bribe money has beenreceived by them and if he fails to offer any satisfactory explanation, itwill be presumed that he has accepted the bribe.

12. In the case in hand, the accused have not offered anyDexplanation to rebut the presumption under Section 20 of the Act. Onthe other hand, from the evidence of PW-1 that accused No.1 demandedthe bribe appears to be natural. The application for approval of revisedplan was earlier rejected. When the complainant and his advocate metTDO and on whose direction PW-1 has paid the requisite fine amount,Ethe file has to necessarily move. It was at that point of time accusedNo.1 demanded bribe amount from PW-1.While appreciating theevidence, the High Court should have given proper weight to the viewsof the trial court as to the credibility of all evidence of PWs 1 and 3.When the findings recorded by the trial court is based upon appreciationof evidence, the High Court was not right in reversing the judgment ofFthe trial court.

13. In so far as the sentence of imprisonment is concerned forconviction under Section 13(1)(d) of the Act, the trial court imposedsentence of imprisonment of two years upon each of the accused. Theoccurrence was of the year 1991 that is about 27 years ago. ConsideringGthe passage of time, we deem it appropriate to reduce the sentence ofimprisonment of two years to the statutory minimum imprisonment ofone year.

14. In the result, the impugned judgment of the High Court dated16.04.2015 in Criminal Appeal Nos.477-78 of 2000 is set aside and theseH

appeals are allowed affirming the conviction of the accused Nos.1 and 2under Section 7 and Section 13(1)(d) of the Act. The sentence ofimprisonment under Section 13(1)(d) of the Act imposed upon each ofthe accused is reduced from two years to one year. The respondents/accused Nos.1 and 2 shall surrender themselves to serve the remainingsentence within two weeks from today, failing which, they shall be takeninto custody.

Nidhi Jain

Appeals allowed.

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