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Gujarat High Court · body

2010 DIGILAW 155 (GUJ)

ARJUNLAL M UPADHYAYA v. STATE OF GUJART

2010-03-16

Z.K.SAIYED

body2010
JUDGMENT 1. By way of this appeal, the appellant-original accused no.1 has challenged the judgment and order of conviction and sentence dated 5.5.1993 in Special (A.C.B.) case No. 1 of 1990 passed by the learned Special Judge, Mahesana. By the said judgment and order, the appellant has been convicted for the offence punishable under sections 7 and 13(1) and 13(2) of the Prevention of Corruption Act and has been ordered to undergo rigorous imprisonment for a period of three years and pay a fine of Rs. 2000/-, in default, further rigorous imprisonment for a period of one year for the offence punishable under section 7 of the said Act; rigorous imprisonment for a period of one year and pay a fine of Rs. 500/-, in default, further imprisonment for a period of six months for the offence punishable under section 13(1) and 13(2) of the said Act. Both the sentences are ordered to run concurrently. The original accused no. 2 who is not before this Court has been acquitted for the offence punishable under section 12 of the said Act, vide the judgment under challenge. 2. Brief facts of the prosecution case are that one Bhaveshkumar Motilal Maniyar was running a shop of electric goods in the name of Ambica Traders. He was owning a house in Mahesana town in the area known as Bagdani Khadki and bearing No.2/222 Tikka No.1/5, city survey no.104. The said house was registered in the name of his father. That on 10.4.1989, his father divided the property amongst the family members and the document to that effect was executed. The above-mentioned house was given in share to the wife of the complainant- Nilaben and his son Harshitkumar. Therefore, they applied for transfer entry before the City Survey office on 17.4.1989. It is alleged that both the accused were working as Maintenance Surveyor in the city survey office. Thereafter, the complainant Bhaveshkumar first met accused no. 2 before about a month and thereafter he met the appellant somewhere in the month of May, 1989 in connection with the above said entry. The appellant told the complainant to come after about a week. It is alleged that at that time the appellant demanded Rs. 1500/- for making entry in city survey register. 2 before about a month and thereafter he met the appellant somewhere in the month of May, 1989 in connection with the above said entry. The appellant told the complainant to come after about a week. It is alleged that at that time the appellant demanded Rs. 1500/- for making entry in city survey register. Therefore, the complainant replied "I will let you know after thinking over." Thereafter on 18.7.1989 at about 1.00 p.m., the complainant approached the appellant and said that Rs. 1500/- are too much and and ultimately the deal was struck at Rs. 700/-. The appellant told the complainant to come on 24.7.1989 as it was Monday and officer of City survey would be present and the entry would be effected. The complainant was not willing to pay the bribe and therefore, he went to the office of ACB at Mahesana and met Police Inspector Puvar and filed his complaint which was duly recorded and signed by the complainant. Thereafter, PI Shri G.K.Puvar sent a yadi to General Manager of District Industries Centre and requested to send two Government servants for acting as panch for A.C.B. Trap. On arrival of panchas, Shri Puvar introduced them to the complainant, read over the complaint and obtained signature of panchas on complaint. Thereafter, he asked the complainant to produce Rs. 700/- which was in denomination of Rs. 100/- each and the numbers of the notes were noted in the panchnama. Thereafter, the notes were smeared with anthracene powder and ultra violet lamp experiment was performed. The notes were handed over to the complainant and were placed in left side pocket of the Jhabba of the complainant. Panch no.1 was instructed to accompany the complainant and hear the talk and if the demand was made he had to see the acceptance and thereafter usual signal was required to be made. After these preliminaries were over, the raiding party went to the office of City Survey. The complainant accompanied by panch no.1 went to the 1st floor in the office of the appellant and the remaining members of the parties were stationed near about. The complainant inquired from the appellant about the entry. At that time, the appellant asked the complainant whether he had brought Rs. 700/- as asked for, which was replied in affirmative by the complainant. The complainant inquired from the appellant about the entry. At that time, the appellant asked the complainant whether he had brought Rs. 700/- as asked for, which was replied in affirmative by the complainant. Therefore, the appellant told the complainant to sit there and he straightaway went downstairs to inquire from the accused no. 2 about the entry. Thereafter, the appellant returned within about 5 minutes and told the complainant that the entries are not signed by the officer. Therefore, he should go downstairs to see accused no.2 and to pay Rs. 700/- to him. Thereafter, the complainant asked the appellant that the money was required to be paid to you as per talk and so you finish up the work and take this money. Thereafter, the appellant took out one khakhi envelope and told the panch no.1 to sit there in the chair and took the complainant with him in the adjoining room and near the door of that room the appellant opened the envelope and told the complainant to put Rs. 700/- in the same. In the meanwhile, panch no.1 came there and accused no.2 also came upstairs. Therefore, the appellant handed over the envelope to accused no.2 who accepted the same with his right hand and held it in his right hand. In the meanwhile, the complainant gave the agreed signal and the raiding party alongwith panch no. 2 arrived there. Seeing this, accused no. 2 threw away the envelope on the staircase which fell on the step of the staircase. P.I. Shri Kuver asked the accused about the said money and accused no.2 pointed out by signing the envelope which was lying on the step of the staircase. Therefore, PI told the panch no. 2 to pick up the envelope and after the usual experiment of ultra violet lamp was carried out, the notes and the envelope were attached and panchnama was made. Thereafter, the case was registered against the appellant and co-accused and thereafter on completion of investigation, charge-sheet was submitted. 3. Upon conclusion of the trial, the appellant-original accused no. 1 has been convicted and sentenced as above. 4. The defence of the appellant-accused was that he was not at all concerned with the entry as the said premises did not fall within his jurisdiction. He had nothing to do with the demand or acceptance of the bribe. 3. Upon conclusion of the trial, the appellant-original accused no. 1 has been convicted and sentenced as above. 4. The defence of the appellant-accused was that he was not at all concerned with the entry as the said premises did not fall within his jurisdiction. He had nothing to do with the demand or acceptance of the bribe. He explained that a false case was foisted against him as 2 Congress leaders from Mahesana city Shri Yogesh Thaker and Krushnakant Thaker were annoyed as the appellant had initiated proceedings about encroachment over Government land and, therefore, Krushnakant Thaker had threatened the appellant with dire consequences. The complainant was partner of Krushnakant Thaker and at the instance of Krushnakant Thakar, a false case was fabricated against him. Thus, the case of the defence was of denial of having asked and accepted the bribe. 5. In this case, the prosecution has examined three witnesses, namely, complainant Bhaveshbhai Motilal at exh. 31, panch Rajuji Gemarji Solanki at exh. 42 and Police Inspector Gajendrasingh Pratapsingh at exh. 44. The prosecution has also produced documentary evidence on record. Complaint is produced at exh. 32. Secret yadi written by the Trapping Officer to the General Manager, District Industries Officer, Mahesana at exh. 45, Panchnama of trap at exh. 43, sanction of prosecution for accused no.1 and accused no. 2 at exhs. 47 and 48. The defence side has also produced documentary evidence at exh. 33, one true copy of Civil Suit No. 243 of 1988 at exh. 34, copy of injunction application of the said Civil Suit at exh. 35, copy of withdrawal pursis at exh. 36, copy of panchnama at exh. 38, copy of Civil Suit no. 78 of 2002 at exh. 39, copy of the reply at exh. 40 and list of documents of Civil Suit no. 78 of 1992 at exh. 41. 6. I have heard learned advocate Mr. H.N.Joshi for M/s. Thakkar Associates for the appellant-accused. Mr. Joshi has contended that charge was framed at exh. 13 against the accused and the prosecution has never proved its case against the appellant-accused beyond reasonable doubt. He has also read the oral evidence of the complainant as well as that of the panch witnesses and Trapping Officer. Mr. Joshi has vehemently argued that so far as sanction regarding prosecution of the accused is concerned, it was produced through prosecution witness no. 3 at exh. He has also read the oral evidence of the complainant as well as that of the panch witnesses and Trapping Officer. Mr. Joshi has vehemently argued that so far as sanction regarding prosecution of the accused is concerned, it was produced through prosecution witness no. 3 at exh. 44 and it was exhibited by the learned Special Judge at exhs. 47 and 48. He has contended that as per the provisions of law, sanction was not proved beyond reasonable doubt. He has also contended that the prosecution has never examined Sanctioning Authority by whom sanction at exhs. 47 and 48 was issued. Mr. Joshi has also read the contents of exhs. 47 and 48 and vehemently argued that from the contents of the sanction, it is established beyond reasonable doubt before the lower court that it was not given with application of mind. He has also contended that said exhs. 47 and 48 are not admitted by the defence, so without examination of the Sanctioning Authority, it cannot be accepted in evidence. He has also further argued that as per the provisions of Indian Evidence Act, that document cannot be said to be proved document in favour of the prosecution. He has also contended that the maker of the sanction is not examined and so it cannot be said that it is a proved document. That signature and contents of the said document are not proved through oral evidence. Even Subordinate officer has not entered into witness box and he has not proved the contents of the said document. He has also argued that as per Section 19 of the Prevention of Corruption Act, the sanction which is not given by the Sanctioning Authority in a proper way of the provisions of law, the Court cannot take cognizance and the whole case of the prosecution falls to the ground on this ground alone. He has also further submitted that it is also not proved by the prosecution whether maker of the sanction is a competent authority or not and it is also not proved beyond reasonable doubt by the prosecution. So the sanction at exh. 47 and 48 creates doubt and the same is not legal and valid sanction and further in view of the said conduct of the prosecution, the prosecution has not proved its case beyond reasonable doubt against the present appellant. So the sanction at exh. 47 and 48 creates doubt and the same is not legal and valid sanction and further in view of the said conduct of the prosecution, the prosecution has not proved its case beyond reasonable doubt against the present appellant. As a result, the conviction and sentence against the appellant deserves to be quashed and set aside by this Court. Mr.Joshi has also read the provisions of Sections 56 and 57 of the Indian Evidence Act and contended that when Sanctioning Authority is not examined by the prosecution, then the provisions of Section 56 and 57 can come in the way of the prosecution and the Court cannot take into consideration the contents of the said sanction. Mr. Joshi has also read the provisions of Section 68 of the Indian Evidence Act and vehemently argued that the prosecution has to follow the provisions of Sections 58, 59, 60 and 61 of the said Act just to prove the contents of the sanction and where it is not proved as per the provisions of law, then it can be fatal to the prosecution case. Mr. Joshi has also read the oral evidence of the complainant and vehemently argued that appellant has already disclosed his defence before the learned Special Judge that due to enmity with the political leader of Congress party, the appellant was threatened by that leader and in connection thereto, and as the complainant was the partner of that person, the appellant has been wrongly booked by the present complainant. He has also further argued that from the conduct of the complainant, a presumption can be drawn against the complainant himself. He has also read the oral evidence of the complainant and argued that demand is not proved beyond reasonable doubt as the trap amount was not recovered from the possession of the present appellant or accused no. 2 who is acquitted by the learned Special Judge. Mr. Joshi has also contended that from the oral evidence of the panch witness it is clear that the panch was not present at the place of offence and at the time of receiving the alleged amount and so his evidence cannot at all be taken into consideration. 2 who is acquitted by the learned Special Judge. Mr. Joshi has also contended that from the oral evidence of the panch witness it is clear that the panch was not present at the place of offence and at the time of receiving the alleged amount and so his evidence cannot at all be taken into consideration. He has also vehemently argued that recovery of the trap amount was from the staircase and the prosecution has no right to say that the muddamal trap amount was recovered from the possession of the appellant-accused no.1. He has also contended that the role of the Trapping Officer is also doubtful. Panch and Trapping Officer both are interested persons and due to fear of Trapping Officer and just to avoid future consequences due to non-cooperation in the present case by not supporting prosecution case, the oral evidence was given by the panch witness just to protect his kin and so he is an interested witness and therefore, his evidence cannot be said to be evidence of an independent witness. He has also argued that the Trapping Officer is also an interested person and just to get good remarks in his service book, he has wrongly managed this trap and a poor person-the present appellant-is booked by the Trapping Officer in the said wrong case. He has also argued that so far as the signature regarding sanction is concerned, no doubt, it is produced and accepted during recording of oral evidence of the Trapping Officer, but the contents of exhs. 47 and 48 are not proved. Even from the oral evidence of the Trapping Officer, it is not established before the trial Court that the signature of the Sanctioning Authority is known to him. He has also read the provisions of Section 67 of the Indian Evidence Act and argued that the prosecution has failed to prove demand as well as acceptance of bribe and recovery of bribe amount. 7. In support of his arguments, Learned advocate Mr. He has also read the provisions of Section 67 of the Indian Evidence Act and argued that the prosecution has failed to prove demand as well as acceptance of bribe and recovery of bribe amount. 7. In support of his arguments, Learned advocate Mr. Joshi has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of Karnataka vs. C,Nagarajaswamy reported in (2005) 8 SCC 370 regarding Section 19 of the Prevention of Corruption Act and submitted that the learned Special Judge has no reason to take any cognizance regarding sanction, as a result, the present appellant cannot be prosecuted for the offence in question, in absence of valid sanction. He has also relied on the judgment of this Court in the case of Jamla Hursing Meda vs. The State of Gujarat reported in 1998(1) GLH,823 and vehemently submitted that the judgment and order of conviction is required to be quashed and set aside and the appellant is required to be acquitted of all the charges levelled against him. 8. I have also heard learned Additional Public Prosecutor Mr. A.J.Desai for the respondent State. He has read the charge as well as oral evidence of the complainant, panch witness and Trapping Officer and vehemently argued that from the oral evidence of prosecution witness no.1, it is proved beyond reasonable doubt at exh. 31 that once when the complainant met accused no.1, then he was called by this accused after one week and in the next week, when he met him, then the accused no.1 demanded Rs. 1500/- as bribe amount just to make an entry in the register and in connection of that demand, the complainant has replied that he will inform him and then on 18th July, 1989 again at 1.00 p.m., when he met accused no.1, again he has discussed that the accused no.1 told him that the amount of Rs. 1500/- is a very big amount and requested to reduce the same. Therefore, after lengthy discussion, the accused no.1 agreed to accept Rs. 700/- and told him that on 24th July, 1989 on Monday, during office hours, his officer will be available and he will make entry. So, Mr. Desai has read the oral evidence and the complaint at exh. 1500/- is a very big amount and requested to reduce the same. Therefore, after lengthy discussion, the accused no.1 agreed to accept Rs. 700/- and told him that on 24th July, 1989 on Monday, during office hours, his officer will be available and he will make entry. So, Mr. Desai has read the oral evidence and the complaint at exh. 32 and vehemently argued that the first demand and the second demand are already proved beyond reasonable doubt from the oral as well as documentary evidence. Mr. Desai has further contended that the complainant was not agreeable to give bribe to accused no.1, so he visited the office of ACB, Mahesana and lodged the complaint at exh. 32. He has vehemently argued that the defence has pointed out the portion of the oral evidence of the complainant regarding visit with Panch to accused no.1 and argued that when he met accused no.1 at his office on the first floor at about 2.15 p.m. with panch no.1, accused no.1 told him that whether the entry is made and certified or not. So accused no.1 demanded Rs. 700/- and asked him whether he has come with the amount of Rs. 700/- and then the complainant replied in the affirmative. So, Mr.Desai has also argued from the portion of the said evidence that demand in the presence of the panch witness is also established beyond reasonable doubt from the oral evidence of the complainant. He has also argued from the oral evidence of the prosecution witnesses, it is established that the accused no.1 told him to hand over Rs. 700/- to accused no.2. Therefore, the complainant told him that he has already discussed with him and accused no.1 had agreed to accept. Then accused no.1 had taken out one brown envelope and told the complainant to accompany him and panch no.1 was instructed to take his seat on the same chair and just near the door of that room, that envelope was opened by accused no.1 and the complainant was told by accused no.1 to put the amount in the envelope and thereafter the envelope was inserted in the pocket by the accused no.1 and signal was given by the panch and the complainant. From the oral evidence of the witnesses, learned Additional Public Prosecutor Mr. Desai has argued that the acceptance of bribe amount is proved beyond reasonable doubt. From the oral evidence of the witnesses, learned Additional Public Prosecutor Mr. Desai has argued that the acceptance of bribe amount is proved beyond reasonable doubt. He has also further read the evidence of this witness and argued that signal was given to Trapping Officer and therefore, all members of raiding party rushed to the place of offence and accused no.2 conveyed to Trapping Officer that the said envelope containing the trap amount is lying on the staircase. Hence, the said envelope was recovered through panch no.2 which was opened and then experiment of ultraviolet lamp was made on the hands of the complainant as well as of the accused nos. 1 and 2 and envelope which was recovered from the staircase. Mr. Desai has also argued that presence of anthracene powder was found from the hands of accused no.1. Therefore, the prosecution has proved demand, acceptance and recovery of the bribe amount. He has also read the oral evidence of panch nos. 1 and 2 and vehemently submitted that in the presence of panch witness no.2, demand was made by accused no.1 and it is proved beyond reasonable doubt. He has also further read the evidence of panch witness no. 2 and vehemently submitted that in his presence, envelope was opened and as per instructions given by accused no.1, the complainant inserted the trap amount inside the envelope and it was recovered from the staircase and accused no. 2 was also present and as per the reply of accused no. 2, the trap amount which was thrown away by him was enveloped. Therefore, Mr. Desai has argued that from the oral evidence of the complainant as well as that of panch, it is established beyond reasonable doubt. He has also read the oral evidence of p.w. 3 Trapping Officer and submitted that no doubt, at the time when the demand was made by accused no.1, this Trapping Officer was not present, but after receiving signal, when he rushed to the place, the Muddamal was recovered at the instance of accused no.1 and during the experiment of ultraviolet lamp, presence of anthracene powder was found on the hands of the accused no.1. He has also argued that from the oral evidence of Trapping Officer, the prosecution has proved its case beyond reasonable doubt. He has also argued that the panch witness has no enmity with the accused. He has also argued that from the oral evidence of Trapping Officer, the prosecution has proved its case beyond reasonable doubt. He has also argued that the panch witness has no enmity with the accused. The whole evidence is required to be considered in favour of the prosecution. 9. In support of his submissions, learned Additional Public Prosecutor Mr. Desai has relied upon the judgments in the case of State of Gujarat vs. Laxmansinhji Dansinhji Gohil and another reported in 2009(30 GLR, 1919 and in the case of State represented by CBI, Hyderabad vs. G.Prem Raj reported in (2010) 1 SCC 398 and submitted that as per Section 20 of the Prevention of Corruption Act, presumption is required to be rebutted by the accused, but he has not come out from such presumption. Mr. Desai has also read the statement of accused no.1 which was recorded under Section 313 of Criminal Procedure Code and argued that even in connection with demand and acceptance of bribe, the accused has never bothered to reply in a proper manner and as per provisions of Section 20 of the Prevention of Corruption Act, presumption was not removed by the accused no.1. Mr. Desai has also submitted that when presence of anthracene powder was found from the body of the accused, it is his duty to explain how and in which manner, it was found on his body. He has read the judgment of the Division Bench of this Court referred to above and argued that in the said judgment, this Court has observed that when presumption is not removed by the accused, then judgment and order of conviction is required to be recorded in favour of the prosecution. He has also relied upon some observations made by the Apex Court in the judgment in the case of State represented by CBI, Hyderabad vs. G.Prem Raj (Supra) and argued that the prosecution case is already proved beyond reasonable doubt. He has also contended that sanction exhs. 47 and 48 respectively are produced on record and from the oral evidence of the prosecution witness no. 3 Trapping Officer, it was proved and it was prepared by a public servant and so non-examination of Sanctioning Authority is not fatal to the prosecution case. He has read the cross-examination of the witness and argued that defence has never challenged exhibition of exhs. 47 and 48. 3 Trapping Officer, it was proved and it was prepared by a public servant and so non-examination of Sanctioning Authority is not fatal to the prosecution case. He has read the cross-examination of the witness and argued that defence has never challenged exhibition of exhs. 47 and 48. He has also argued that when exhibition of exh. 47 and 48 is not challenged by the defence, then there is no question of proving it. It is an admitted fact that exhs. 47 and 48 are admitted by the defence. He has also argued that both the sanctions which are admitted by the defence, now the defence has no right to say that it was issued without application of mind. He has also read the contents of exhs. 47 and 48 and argued that from the contents of both the sanctions, it clearly transpires that they were issued with due application of mind. Summarising his submissions, Mr. Desai has submitted that the lower court has not committed any error in passing judgment and order of conviction and sentence and therefore, the judgment and order of the lower court is required to be upheld and the appeal is required to be dismissed. 10. I have heard learned advocates for both sides. I have perused oral as well as documentary evidence produced on record. Now, so far as sanction exhs. 47 and 48 are concerned, the same are challenged by the defence at the time of hearing of this Appeal, though it was not challenged before the trial court. Even defence has never made any question to Trapping Officer in his cross-examination regarding exhibition of sanction orders. Even from the statement of the accused recorded under Section 313 of the Criminal Procedure Code, it reveals that the accused has never uttered any word and has never taken any objection regarding exhibition of both the sanction orders. Even from the oral evidence of the Trapping Officer, it appears that he has sent a letter to the Appointing Authority of the appellant-accused no.1 and in that regard, both the sanctions were received by him and they were placed on record as documentary evidence. It was proved through oral evidence of the Trapping Officer. I have also perused the contents of exhs. 47 and 48. It was proved through oral evidence of the Trapping Officer. I have also perused the contents of exhs. 47 and 48. It is on record to say that the author of the sanction is a public servant and so far as the question regarding law is concerned, Section 17 of the Indian Evidence Act is required to be referred. Section 17 of the Indian Evidence Act reads as under: "17: Admission defined:- An admission is a statement, oral or documentary (or contained in electronic form), which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons, and under the circumstances, hereinafter mentioned." I have perused Section 17 of the said Act and also perused Exhs. 47 and 48. Sanction orders are relevant in the present case. Even the provisions of Section 21 of the Indian Evidence Act provides as under: "21. Proof of admission against persons making them, and by or on their behalf- Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:- (1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under Section 32. (2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. "(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission." Considering the arguments advanced by the learned Additional Public Prosecutor it appears that both the sanction letters were issued by a public servant. "(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission." Considering the arguments advanced by the learned Additional Public Prosecutor it appears that both the sanction letters were issued by a public servant. It is true that in connection with the request made by ACB, both the sanctions were issued after perusal of the documents and it is also proved from the provisions of Section 21 of the Evidence Act that it was not challenged by the defence during the cross-examination of the Trapping Officer, panch witnesses as well as complainant and the defence have kept mum and never bothered to make any attempt to disprove the contents of the sanction letters. From the provisions of Section 21(3) of the Indian Evidence Act, it is clear that an admission may be proved by or on behalf the accused if it is relevant otherwise than as an admission. 11. Now, both the sanction letters which are on record and proved through oral evidence of the Trapping Officer. It is required to be considered in light of the provisions of Section 35 of the Indian Evidence Act. Section 35 of the Evidence Act reads as under: "35. Relevancy of entry in public record, made in performance of duty-An entry in any public or other official book, register or record (or an electronic record) stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty especially enjoined by the law of the country in which such book, register or record (or an electronic record) is kept, is itself a relevant fact." In this provision of law, if during discharge of official duty of a public servant, if any record or any document is prepared by a public servant, then it is a relevant fact and it can be considered as a proved document. 12. I have perused Sections 17, 21 and 35 of the Indian Evidence Act and also perused the oral as well as documentary evidence and cross-examination made by the learned advocate for the accused before learned Special Judge. 12. I have perused Sections 17, 21 and 35 of the Indian Evidence Act and also perused the oral as well as documentary evidence and cross-examination made by the learned advocate for the accused before learned Special Judge. It is proved beyond reasonable doubt on record that defence has never made any attempt to put any question to the witness just to disprove the contents of the sanction letters. So, it is proved from the oral evidence of the Trapping Officer that both the sanction letters were given by a public servant during official discharge of his duty. So, the provisions of Section 35 of the Evidence Act would be straightway applicable to this issue. Even I have perused the contents of sanction letters and by no stretch of imagination, it can be said that the said sanction letters were issued without application of mind. Hence, sanction orders are legal, valid and are issued after due application of mind. 13. No doubt, learned advocate Mr. Joshi has also argued that once document is admitted, contents thereof are also admitted though that document may not be a conclusive evidence. I have perused the said document in light of the provisions of Section 35 of the Indian Evidence Act and I am of the opinion that both the documents fall within the ambit of Section 35(3) of the Evidence Act. So far as appreciation of evidence is concerned, it is considered by the Hon'ble Supreme Court in the case of R.M.Malkani vs. State of Maharashtra reported in AIR 1973 SC 157 . Relevant portion of para-26 of the said judgment reads as under: "26............The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the Police. The reason is that Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the Police. The reason is that Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused, the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the surrounding circumstances." In the case of State of Bihar and others vs. Sir Radha Krishna Singh and others reported in AIR 1983 SC 684 , the Apex Court has laid down three issues regarding Section 35 of the Indian Evidence Act. Relevant portion of para-35 of the said judgment reads as under: "35......... (1) the document must be in the nature of an entry in any public or other official book, register or record (2) it must state a fact in issue or a relevant fact, (3) the entry must be made by a public servant in the discharge of his official duties or in performance of his duties especially enjoined by the law of the country in which the relevant entry is kept." From the perusal of both the sanction letters, it is proved that those documents are proved in nature of a paper prepared by a public servant in discharge of his official duties. From the perusal of the above documents, when relevant facts alleged by the prosecution or in the document produced on record and when it is admitted and not a single objection is raised by the appellant-accused for exhibiting such document and even not a single question is put to the witnesses, then there can be no question of any prejudice having been caused to the accused and in view of the above observations of the Hon'ble Supreme Court, the present appellant has failed to disprove both the documents of sanction of prosecution. 14. In corruption cases, three issues are required to be proved. First, demand of bribe, second acceptance and third, recovery of bribe amount. In this case, so far as demand is concerned, from the oral evidence of the complainant at exh. 31, both demands and acceptance are proved beyond reasonable doubt and and even from the contents of the complaint at exh. First, demand of bribe, second acceptance and third, recovery of bribe amount. In this case, so far as demand is concerned, from the oral evidence of the complainant at exh. 31, both demands and acceptance are proved beyond reasonable doubt and and even from the contents of the complaint at exh. 32, it is also proved through documentary evidence. Even from the oral evidence of panch no. 2 exh. 42, it is also proved through this witness that in his presence, demand was made by the present appellant-accused and panchnama exh. 43 is also proved through oral evidence of the Trapping Officer-prosecution witness no. 3. He has also proved such demand which is made by the present appellant-accused from the complainant. Even so far as the issue of acceptance is concerned, I have perused the oral evidence of the complainant and that of the panch witness and even from the cross-examination of both the witnesses, I find that the defence has failed to establish its defence. Even from the oral evidence of both the witnesses, it is established that the trap amount was accepted by the accused no.1 and the conduct of the appellant-accused no.1 is required to be considered in light of the provisions of Section 8 of the Indian Evidence Act. Once demand was made from the complainant and then that amount was reduced from Rs. 1500/- to Rs. 700/- and then at the time of acceptance of the amount, the complainant was directed by the appellant-accused no.1 to put that amount in the envelope and then it was accepted by the appellant-accused and so th conduct of the appellant shows that it can be considered in favour of the prosecution. I have also perused the oral evidence of panch witness no.2, complainant-prosecution witness no.1 and Trapping Officer-prosecution witness no. 3. It also appears from the contents of the panchnama as well as oral evidence of witness that accused no.2 who is acquitted by the trial Court, conveyed to the Trapping Officer that the Trap amount is lying on the staircase and then that brown envelope was picked up by panch witness no. 2 and it was opened and then ultraviolet lamp was used and proper experiment was made and during experiment of ultraviolet lamp, presence of anthracene powder was found from the tips of the accused no.1 and from the complainant. 2 and it was opened and then ultraviolet lamp was used and proper experiment was made and during experiment of ultraviolet lamp, presence of anthracene powder was found from the tips of the accused no.1 and from the complainant. I have also perused the contents of the panchnama as well as oral evidence of witnesses. It is established beyond reasonable doubt that the Trap amount was recovered at the instance of the accused no.2. No doubt, he is acquitted by the trial court and the prosecution has not filed any Appeal against his acquittal but at this stage, I have also perused the provisions of Sections 107 and 108 of the Criminal Procedure Code regarding abetment, but when the question regarding acquittal Appeal of this accused is concerned, it is not before this Court and so it is not necessary for this Court to observe anything in connection with abetment in light of Section 12 of the Prevention of Corruption Act. From the perusal of the statement of the appellant-accused no.1 recorded under Section 313 of the Criminal Procedure Code, it was the duty of the accused to explain as to how and in which manner, anthracene powder was found from his tips, but he has not explained anything regarding presence of anthracene powder. I have also perused cross-examination of the prosecution witnesses and the defence has never made any attempt to bring on proper explanation as to in which manner anthracene powder was found from the body and tips of the accused. 15. In view of the above factual position and discussion, it is on record to say that presumption is required to be rebutted by the accused in view of Section 20 of the Prevention of Corruption Act, but the appellant-accused has not made any attempt and in light of the said provisions of law, I am of the opinion that the the ratio laid down in judgment of the Hon'ble Supreme Court in the case of State represented by CBI, Hyderabad (Supra) and in the judgment of this Court in the case of State of Gujarat vs. Laxmansinhji Dansinhji Gohil (Supra) is fully applicable to the facts of the present case. I am in full agreement with the reasons assigned by the learned Special Judge and the conviction and sentence awarded by the trial Court is required to be upheld and no interference is called for by this Court. 16. For the reasons recorded above, this Appeal is hereby dismissed. The judgment and order dated 5th May, 1993 in Special (ACB) Case No.1 of 1990 passed by the learned Special Judge, Mahesana is hereby confirmed. The appellant-accused is on bail. His bail bond stands cancelled. The appellant-accused shall surrender to judicial custody within a period of six weeks from today, failing which the concerned Court shall issue non-bailable warrant against the appellant for securing his judicial custody.