STATE OF GUJARAT Vs. VELJIBHAI MITHABHAI SOLANKI

JUDGEMENT

(1.) Heard learned APP Mr. Manan Mehta for the applicant and learned advocate Mr. R.D. Kinariwala for the respondent. The applicant - State being the prosecuting agency, wants to challenge the judgment and order dated 25.4.2016 in Special (A.C.B.) Case No.8 of 2006. The respondent has been charged under Sections 7, 15 and 13(2) of the Prevention of Corruption Act, 1988 with allegation that respondent has demanded Rs.3,000/- towards illegal gratification and bribe from the complainant to connect his T.C. for electric connection at the earliest. As usual, the story thereafter is stereotype and common that since the complainant does not want to pay the amount of bribe, he lodged an FIR with the investigating officer, who has arranged the trap and chargesheeted the accused.

(2.) However, when there is an order of acquittal of the respondent, we have to verify that whether there is any reason or substance in the application, so as to grant the leave to appeal as prayed for. The law is well settled that in such cases, there must be clear and positive evidence beyond reasonable doubt to prove (1) prior demand, (2) demand at the time of trap and raid, (3) acceptance of tainted currency notes by the accused, and (4) possession of tainted currency notes by the accused at the time of trap. Whereas, scrutiny of available record confirms that, practically, there is no such evidence so as to confirm the conviction of the respondent, though prosecution has examined as many as five witnesses and produced certain documentary evidence. On the contrary, judgment shows that in fact, at Exh.25, there is an application to drop the proceedings against the accused, but it seems that the Special Court has deemed it fit to try the accused, but after fullfledged trial, in absence of cogent and reliable evidence, Special Court has no option, but to acquit the respondent. While acquitting the respondent, trial Court has categorically recorded that as per the prosecution evidence, the actual demand, if any, by the respondent towards bribe, was not from the complainant, but it was from his cousin, namely, Babubhai, but ultimately, Babubhai was never examined during the trial to prove the prior demand.

(3.) The scrutiny of oral evidence of PW-1 at Exh.12, namely, Ashwinbhai Dayabhai Pansuriya, makes it clear that the story of demand is initiated with Babubhai, cousin of the complainant. Whereas, in cross-examination, complainant specifically admits that he has disclosed in his statement before the I.O. that in fact, he had never been to the accused for the connection of T.C. and he has never met him and there was no talk or discussion whatsoever between the complainant and the respondent - accused and there was no talk regarding demand of any amount by the accused to the complainant. The complainant further admits that he had never gone to the GEB office also for getting T.C. connection and therefore, he has never met even Pandya Sir or any other employee of GEB. The witness also categorically confirms that he has never conveyed in his statement to the I.O. that Solanki has conveyed him that Rs.2,000/- is to be paid and thereby, he has paid Rs.2,000/- to Solankibhai i.e. present respondent. He also admits in his cross-examination that in fact T.C. was already changed and thereby connected before the complaint was lodged and that they have never visited GEB office repeatedly or never had gone to the house of respondent for making payment as alleged. He further admits that the T.C. to be replaced, has been brought to the place by one Rameshbhai Chudasama, rickshaw driver in his rickshaw and though he does not admit in clear words, it can certainly be ascertained from his cross-examination that practically, amount used for trapping the accused, is the amount of the transportation i.e. rickshaw charges and charges for the T.C. and therefore, though it is to be paid to rickshaw driver Chudasama, the complainant wants to pay it only to the accused and thereby, immediately raid was conducted. Therefore, there is quite clear reason of transmission of currency notes at the time of trap, but there is no clear and reliable evidence beyond reasonable doubt that such amount was towards bribe and not towards rickshaw fare and other charges to be paid for changing the T.C.