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Gujarat High Court · body

2016 DIGILAW 1029 (GUJ)

Pandya Rajnikant Chimanlal v. State of Gujarat

2016-06-06

S.G.SHAH

body2016
JUDGMENT : S.G. Shah, J. 1. All these appeals are arising out of the common impugned judgment and order dated 13.02.2009 by Special Judge, Fast Track Court No. 1, Patan in Special ACB Case No. 1 of 2005 whereby both the accused in such case were convicted and sentenced is awarded as under: Section Sentence Fine In default of payment of fine 13(1)(d)(i)(ii)(iii) 1 year R.I. Rs. 1000/- 15 days S.I. 13(2) 1 year R.I. Rs.1000/- 15 days S.I. 1.1 However, the Special Court has directed to undergo such sentence concurrently and thereby practically accused were awarded imprisonment of 1 year with fine of Rs. 2000/-. 2. Criminal Appeal No. 590 of 2009 is preferred by original accused No. 2 Mr. R.C. Pandya whereas Criminal Appeal No. 598 of 2009 is preferred by original accused No. 1 Mr. N.D. Vyas and Criminal Appeal No. 755 of 2009 is preferred by the State being prosecuting agency against both the accused for enhancement of sentence. Therefore, all these appeals are decided together by this common judgment and order. 3. The prosecution case before the Special Court is to the effect that the accused No. 1 Mr. N.D. Vyas was serving as Police Sub-Inspector, was involved in activity of collecting money as a bribe and illegal gratification from the truck owners, who are passing from Radhanpur towards Ahmedabad, more particularly with coal contending that there is no permission to transport coal from one place to another. On receipt of such intimation, Investigating Officer Mr. H.B. Chavda, Police Inspector of ACB office at Palanpur has managed a dummy driver to offer a bribe and arrange a trap as alleged in the charge-sheet and thereafter confirmed that the trap was positive and hence, filed charge-sheet against both the accused. Therefore, the first and foremost fact is quite clear that actually there is no reason complaint or intimation about prior demand of any amount as bribe or illegal gratification by the appellants, which is punishable under the Act and which is the basic requirement for instituting any criminal proceedings against such accused. Thereby basic ingredients for conviction in such case i.e. prior demand is absolutely absent in the present case. Thereby basic ingredients for conviction in such case i.e. prior demand is absolutely absent in the present case. To be more precise, it is to be noted again that in the present case, there is no complaint by anyone from the public or otherwise that accused have demanded illegal gratification and bribe, but complaint does not want to pay such amount and, therefore, he lodged a complaint and thereupon trap was arranged. Even at the cost of repetition, it is to be noted again that said Police Inspector Mr. Chavda of Banaskantha district at Palanpur has received a secret information that on Radhanpur - Varahi road, when trucks are transporting coal, officers of the police department, forest department and RTO department are collecting an amount between Rs. 500/- to Rs. 10,000/- as bribe by stopping such vehicle on highway from driver of such truck. Therefore, Police Inspector has called upon two Panch Witnesses namely Jayantilal and S.S. Chavda from the office of the District Panchayat of Banaskantha at Palanpur and raiding party was formed including ASI Mr. M.M. Joshi, A.B. Ghasura and M.V. Harsh and carry out the requisite exercise for trap on 25.05.2004 and drawn panchnama to that effect, which is proved on record at exhibit 38. Thereafter, they started in police Jeep No. GJ 1 G 986 at about 9:40 p.m. and about 5 kms away from Radhanpur, they were waiting with their Jeep for searching a truck transporting coal. At about 10:50 p.m. one truck bearing No. GJ 8 T 4465 has stopped where such raiding party was waiting. Such truck was driven by one Salimbhai Sipahi and one Dharmesh Thakkar, native of Viramgam but residing at Radhanpur at the relevant time was also travelling in the truck. Mr. Chavda has, therefore, inquired about coal loaded in the truck and witness Dharmesh has conveyed that he is owner of the coal and such 230 begs of coal are loaded from Chhansara village of Santalpur taluka and that owner of the truck is Girishkumar. Thereupon Police Inspector has conveyed secret information received by him regarding illegal activities by officers of different department and asked for corporation of Dharmesh, to arrange a trap/raid for which Dharmesh has agreed and, therefore, Police Inspector Chavda has given an amount in 20 currency notes of Rs. 500/- on which Mr. Thereupon Police Inspector has conveyed secret information received by him regarding illegal activities by officers of different department and asked for corporation of Dharmesh, to arrange a trap/raid for which Dharmesh has agreed and, therefore, Police Inspector Chavda has given an amount in 20 currency notes of Rs. 500/- on which Mr. Harsh has applied powder and explained chemical test with sodium carbonate to the Dharmesh and Panch witnesses and instructed them that how trap is to be performed and how to assign signal by saying loudly that "driver bring machis" so as to enable raiding party to immediately raid the place where there is probability of passing off of currency notes meant as illegal gratification or bribe to the proposed accused. Thereupon they have at about 00:40 a.m. ask one panch witness as well as one decoyer to seat in cabin of the truck and started in two different vehicles i.e. truck and police jeep towards Tharad and at about 00:55 hrs they stopped at weighing bridge to weigh the truck. It is the case of the prosecution that thereupon when truck of the Dharmesh Thakkar was on weight bridge, accused No. 1 has came in a Jeep and stopped the jeep in front of truck and accused No. 1 has came out of the jeep and asked the decoyar and Panch No. 1 who were sitting in the truck that what is lodged in the truck. Thereupon decoyar has conveyed the accused that truck is of Girish of Varahi which is taken on rent for transporting the coal from Chhansara to Morbi. It is further contended that during such inquiry when it was disclosed that the coal loaded in the truck are without permit, thereby, either stolen or illegal transportation of the coal, accused No. 1 has asked the truck driver to take his truck at the police station so as to lodge a case and thereupon accused No. 1 has taken his seat in his Jeep, and started towards Radhanpur. 4. Therefore, prima facie the prosecution case is clear, wherein there is no specific demand of any illegal gratification or bribe at the place of incident and when it was revealed that coal is being transported illegally, accused No. 1 has simply asked the driver to take the truck at the police station, so as to initiate appropriate proceedings against him. Therefore, prima facie the prosecution case is clear, wherein there is no specific demand of any illegal gratification or bribe at the place of incident and when it was revealed that coal is being transported illegally, accused No. 1 has simply asked the driver to take the truck at the police station, so as to initiate appropriate proceedings against him. However, though it is further stated that when accused No. 1 has started his Jeep towards Radhanpur unfortunately to confirm that trap was genuine and successful, it is contended by the prosecution that, at such time, when accused No. 1 has inquired about goods in the truck, the accused No. 1 has demanded Rs. 25,000/- for not initiating proceedings against them but decoyar has shown inability to pay Rs. 25,000/- and offered Rs. 5000/- to accused No. 1 but accused No. 1 was not agreed to accept Rs. 5000/- and ultimately he has offered Rs. 10,000/-. Thereupon, accused No. 1 has agreed to accept it and tell decoyar to give it to accused No. 2 and when accused No. 2 was counting money, decoyar has given a sign to the raiding party and when raiding party has caught accused No. 2 and performed a chemical test by liquid of sodium carbonate, it was positive so as to confirm that accused No. 2 was possessing tained currency notes, which were given to him by the decoyar. Therefore, investigating agency is considering such trap is successful trap and lodged FIR and filed a charge-sheet and after, trial special Court has convicted the accused as recorded herein above. 5. When accused have challenged such order of conviction, we have to scrutinize the available evidence so as to verify that whether there is cogent and reliable evidence beyond reasonable doubt so as to confirm that four basic ingredients for confirming conviction in such cases are not only present but properly proved by the prosecution. 5. When accused have challenged such order of conviction, we have to scrutinize the available evidence so as to verify that whether there is cogent and reliable evidence beyond reasonable doubt so as to confirm that four basic ingredients for confirming conviction in such cases are not only present but properly proved by the prosecution. It is now settled legal position that for confirming conviction in such case, the prosecution has to prove beyond reasonable doubt that; (1) there was prior demand of bribe or illegal gratification by the accused, for which complaint is filed before the ACB, (2) there must be demand of bribe or illegal gratification at the time of raid, (3) there must be proper acceptance of tained currency notes or illegal gratification by the accused and (4) possession of tained currency notes by the accused. Therefore, though all above four acts require to be proved beyond reasonable doubt for confirming conviction under the Prevention of Corruption Act, even if we consider, that in the present case, admittedly, when there is no prior demand, at least for remaining three points, there must be positive proof on record for confirming conviction. 6. However, considering the rival submission and scrutiny of the Record and Proceedings makes it clear that in addition to admitted position regarding absence of prior demand for which, raid may required to be arranged, there is no cogent and reliable evidence beyond reasonable doubt, so as to confirm that in fact, there was a demand, acceptance and possession of tained currency notes as bribe or illegal gratification by the appellant - even accused at the time of raid, so as to confirm their conviction and thereby confirming the impugned judgment. 7. The law is already well settled that while appreciating the evidence, there cannot be presumption against the accused in absence of specific positive evidence when otherwise such evidence is available and, therefore, if independent witness like complainant and panch witness are either not supporting the prosecution case or when their deposition is proved to be non-reliable, then conviction cannot be confirmed which would otherwise result into stigma in the life of the accused, who are otherwise government servants. Though offenders under the Prevention of Corruption Act needs to be convicted and punished for accepting bribe, it cannot be said that it is to be done in casual manner and in absence of cogent and reliable evidence beyond reasonable doubt. 8. To prove its case, prosecution has examined as many as five witnesses and produced 19 documents on record amongst which in addition to documents regarding investigation and collected during investigation, there is panchnama of the raid and sanction letter so also FSL report. 8.1 If we peruse the oral evidence, PW No. 1 at exhibit 29 is Dharmesh Thakkar. Though he has narrated the story as per FIR and charge-sheet, during cross - examination, on internal page 7 of his deposition, he has categorically admitted that, it is true that when Vyas Saheb i.e. accused No. 1 has asked him about permit of the coal and when truck is loaded with the coal, he replied that he does not have any permit. Therefore, accused No. 1 has told him that since you do not have a permit to transport the coal, take your truck to Radhanpur Police Station to file a case against him, so this is an interaction between accused No. 1 and so called complainant, who admits that at the time of such conversation accused No. 1 has not asked for bribe from him and he has not asked any of the person from the truck to come down and to sit in his jeep nor he asked any of the man from his jeep to sit down in the truck so as to avoid running of the truck without following police jeep without reaching Radhanpur Police Station. Thereafter he further deposed that truck has started towards Radhanpur Police Station where jeep of accused No. 1 was going in front and truck was going behind them, now complainant has taken a U turn while going towards Radhanpur Police Station saying that he is holding a permit to transport coal in his pocket for which, he has said that he has conveyed the Investigating Officer and accused that he does not have permit. He further admits that thereupon he wants to show his permit to accused No. 1 and, therefore, after one and half kms. He further admits that thereupon he wants to show his permit to accused No. 1 and, therefore, after one and half kms. he stopped truck and thereupon police jeep was also stopped at about 15 steps away and at that time light of the truck was shut off and he started towards jeep and accused No. 1 who was coming towards him and when accused No. 1 has asked him that why they stopped the truck he conveyed that he has a permit to transport the coal and, therefore, did not take him to the police station. Thereupon accused No. 1 has asked him to show the permit and conveyed the accused No. 2 to verify if the permit is there. Thereupon he and accused No. 2 has started towards police jeep and at that time, instead of showing the permit it is the say of the witness that he passed on currency notes to the accused No. 2 and thereupon raiding party has caught both the accused confirming that raid is successful. It is pertinent to note that at about 1:00 a.m. i.e. after mid night and in absence of any light and, therefore, when there is no possibility or evidence regarding prior demand before arranging trap and again now when there is specific evidence that in fact, there is no demand at the time of trap and as the currency notes were handed over to accused No. 2 under the pretext of showing permit, raid was declared successful. Such piece of evidence specifically confirms that it cannot be relied upon to confirm the conviction as per impugned judgment. 8.2 It is also admitted position that thereafter remaining part of investigation was not carried out at the place of incident but it was carried out at the government guest house near Radhanpur Circle on road towards Varahi. One more reason is now came on record during cross examination of the PW No. 1 complainant, which prima facie confirms the genuineness of the accused that, in fact, because of his strictness coal merchants have decided to trap him since he has arrested once coal merchant and he has been strict against such coal merchant when they were transporting coal illegally. 8.3 When witness was cross-examined to prove such fact. 8.3 When witness was cross-examined to prove such fact. Witness has admitted that immediately after the incident i.e. after midnight, ten traders of coal of Radhanpur and Varahi including his uncles had gathered at the Radhanpur Circuit House. The witness has also disclosed name of all such persons and, therefore, there is no reason to disbelieve him in any manner. So far as his version in the complaint and examination-in-chief against the accused are concerned, now witness has disclosed that in fact his signature was taken on each page after recording his statement by the Police Inspector but he is not aware about contents of such statement. Witness also admits that in addition to such case he had filed two similar complaint, one at Surendranagar and one at Vadhwan, wherein he has appeared before the Court as witness and his uncle has also filed one complaint at Santalpur. But most important admission is regarding a statement uttered by Ashwinbhai, brother of Bharatbhai, who were amongst coal traders gathered immediately after the raid at Radhanpur Circuit House when witness confirms that it is true that immediately after the trap Ashwinbhai has told the accused that, "look, see your result when you have snapped me before 15 days". However, he denies his knowledge about theft wherein coal of forest department worth Rs. 88,77,875/- was stolen by some of such traders and for that I - C.R. No. 68 of 2000 was registered at Varahi Police Station and though A - summary was filed, accused No. 1 has reopen such file wherein name of Ashvinbhai Thakkar was open and, therefore, coal traders have conspired to transfer accused No. 1 and, therefore, they have arranged such raid. There are so many other admission by the witness in his lengthy cross - examination. However, at present we are concerned with the relevant evidence to confirm that whether there is cogent and reliable evidence against accused No. 1 to confirm his conviction, therefore only material part of evidence is recollected here. One such other issue is regarding territorial jurisdiction of the investigating agency when witness specifically confirms that the place of raid was in fact within Patan district whereas Investigating teem is of ACB office, Palanpur and they have never bothered to keep the local police either informed or to remain present at the time of raid. One such other issue is regarding territorial jurisdiction of the investigating agency when witness specifically confirms that the place of raid was in fact within Patan district whereas Investigating teem is of ACB office, Palanpur and they have never bothered to keep the local police either informed or to remain present at the time of raid. He has also admitted inter se relation of other coal traders and Ashvindbhai against whom there was case of theft and that brother of such Arvindbhai namely Dineshbhai is an advocate. He also admits that first part of panchnama and activities were carried out in the hotel on the way and not at the place of incident which is also negative proof against prosecution. He also admits that after raid, he was asked to sit outside and Investigating Officer Mr. Chavda was talking with other coal traders. Therefore, there is no prior demand by any of the accused so also no demand at the time of raid and when complainant has to show an accused, who has right to ask for permit for transporting coal, more particularly, under the background that huge quantity of coal has been stolen and transferred during night hours and at such juncture when police officer on duty was asking about the permit instead of passing on permit, if witness - complainant in dark night passed on tained currency notes in the hands of the accused and then immediately raiding party caught them, more particularly in background of theft of huge quantity of coal, there is reason to believe that in fact raid is arranged only with a view to trap the accused by any means, so as to ruin his carrier and transfer from the place since he is creating hindrance in the illegal activity. Therefore, evidence of such complainant cannot be relied upon to convict the accused as done by the Special Judge in impugned judgment. 8.4 PW No. 2 Jayantilal Parsottamdas Jadav is a panch witness. Therefore, evidence of such complainant cannot be relied upon to convict the accused as done by the Special Judge in impugned judgment. 8.4 PW No. 2 Jayantilal Parsottamdas Jadav is a panch witness. He has not only contradicted so many things when he was examined after the examination of the complainant, because now he has added a new story disclosing that accused No. 1 has came from the Jeep and identify the accused No. 1 only because of his dress and revolver and contrary to the statement and version of the complainant now this witness has stated that it was accused No. 2 who has stopped the truck while going towards Radhanpur Police Station and demanded Rs. 25,000/- by calling decoyar and when he has stated that he does not have Rs. 25,000/- the person who was holding revolver has conveyed to pay Rs. 10,000/- to accused No. 2 and thereupon accused No. 2 has accepted such amount and at that time decoyar has given a signal to the raiding party. Rest of the story in his deposition is not much material since it is describing preparation of raid and activity carried out after raid but being a government servant he has no option but to support prosecution case. However, he has no valid reason to explain that how he was selected from the office of District Panchayat of Banaskantha at Palanpur to lay a trap after midnight on Radhanpur - Patan road and that too in Patan district. 8.5 Whereas during cross - examination he has no option but to admit that initially when accused No. 1 has asked for permit, the complainant has stated that he does not have a permit and that accused No. 1 has never asked for any bribe and they were there at weighing bridge for 10 months but during such 10 months accused No. 1 has never asked for bribe and ultimately complainant has conveyed him that instead of taking to the police station, the matter may be settled there. Thereupon accused has told him that case is to be registered and, therefore, they have to go to the police station. It is admitted position that thereafter they have started towards Radhanpur Police Station and they have stopped at about 1.5 kms. from such weighing bridge. Thereupon accused has told him that case is to be registered and, therefore, they have to go to the police station. It is admitted position that thereafter they have started towards Radhanpur Police Station and they have stopped at about 1.5 kms. from such weighing bridge. This piece of evidence is also clear to confirm that there was no prior demand so also there was no demand at the time of raid. On the contrary when complainant has offered some amount by asking to settle the issue, in fact, instead of making any demand, accused No. 1 has asked him to come to police station to register a case. But the most surprising admission by the witness is his denial to accept the version of the complainant regarding decreasing the amount from Rs. 25,000/- to Rs. 10,000/- as narrated by the complainant in his deposition. The deposition of the witness is also lengthy, wherein he could not support the prosecution case without reasonable doubt and, therefore, benefit of doubt would certainly goes in favour of the accused, when he admits that he has never shown the currency notes while preparing first part of panchnama and when there are other contradictions between panchnama, statement and deposition of the complainant and this panch-witness. But the fact remains that so called truck was stopped at the distance of 1.5 kms. from weighing bridge and in absence of any light and, therefore, such piece of evidence cannot be considered as cogent and reliable evidence beyond reasonable doubt. Now when there is positive evidence regarding absence of demand and acceptance by accused No. 1 both in the deposition of the complainant and this witness also and when complainant has admitted that though he has to pass on permit to accused No. 2 he has pass on tained currency notes. This panch witness has also admitted that in fact there was no demand by accused No. 2 also at such point of time and that both the accused were at the distance and in fact complainant has to show permit to the accused No. 2 and he has to show the papers to the accused that he has admitted that in place of papers he has pass on currency notes. Therefore, evidence of this witness cannot be relief upon for confirming conviction. Therefore, evidence of this witness cannot be relief upon for confirming conviction. 8.6 Remaining witnesses being PW No. 3 Mafatlal Manchharam Joshi at exhibit 48, PW No. 4 Prakash Vinayakrav Mane at exhibit 53 are members of the raiding party and ASI and PSI respectfully in the ACB department and, therefore, they have categorically supported the case of prosecution. However, in absence of positive evidence by the complainant and the panch witness their statement cannot be considered as a final evidence to confirm the conviction, because it does not got corroboration by the evidence of other witnesses. During cross - examination this witness has admitted that Police Inspector Chavda has not shown them the secret information received by him which is in writing. So far as conversation between accused and complainant and panch witness are concerned, these witnesses have stated that they have not properly heard the conversation, though they have an audacity to support the prosecution case and, therefore, only because of such witness conviction cannot be confirmed. Whereas PW No. 5 at exhibit 61 is Police Inspector Mr. Rehmtulla Savaikhan Sindhi, who has after taking over the charge of the investigation, filed charge - sheet. Therefore he has narrated his part of activity and proved several documentary evidence on record. However, in absence of cogent and reliable evidence in form of complaint and panch witness, there is nothing in his deposition so as to confirm the conviction. On the contrary he admits certain preposition which is coming on record from the documentary evidence which would otherwise not be admitted by the Police Inspector Mr. Chavda who has arranged the trap. 8.7 Rest of the documentary evidence including sanction, though narrating the commission of offence as alleged in the charge - sheet, in absence of any independent evidence, panch nama and sanction letter alone cannot be believed as gospel truth for confirming conviction. 9. Chavda who has arranged the trap. 8.7 Rest of the documentary evidence including sanction, though narrating the commission of offence as alleged in the charge - sheet, in absence of any independent evidence, panch nama and sanction letter alone cannot be believed as gospel truth for confirming conviction. 9. It may be recollected here that practically complainant has admitted in categorical terms in his deposition (internal page 8) that when he was asked to show permit to accused No. 2 by accused No. 1, instead of passing papers of permit, he has pass on tained currency notes and it is admitted position that incident has taken place on highway and witness has admitted that lights of the truck was not on at the relevant time and when there is positive evidence regarding absence of demand at the time of raid, only passing of such currency notes without knowledge of the accused No. 2 and thereby possession of such currency notes by accused No. 2 cannot be considered as a sufficient evidence to confirm conviction relying upon other evidence of police officers as done by the special Judge in the impugned judgment. 10. It is also settled legal position that in such criminal trial though prosecution has to prove the commission of offence by cogent and reliable evidence beyond reasonable doubt, the accused has to prima facie show that how and why he could not be convicted for complaint. In the present case, at least accused No. 1 has successfully proved the intention of the complainant for arranging such trap both during cross examination of the complainant and in his further statement at exhibit 66, wherein he has successfully shown that there was reason for the complainant and traders of the coal of the area against whom there was a complaint about theft of huge quantity of coal of forest department. He has also shown the contacts between investigating officer and other witnesses and categorically alleged that in fact Police Inspector Mr. Chavda was collecting regular installment of bribe and whenever it is not agreed to pay he harass him as done in the present case. He has also shown and produced on record a certified copy of order and judgment of this High Court dated 24.10.2007 in Criminal Misc. Application No. 4550 of 2007, wherein there is adverse observations against investigation done by Police Inspector Mr. Chavda. He has also shown and produced on record a certified copy of order and judgment of this High Court dated 24.10.2007 in Criminal Misc. Application No. 4550 of 2007, wherein there is adverse observations against investigation done by Police Inspector Mr. Chavda. Once accused was able to disclose all such things during cross - examination of the first witness being complainant, then it is the duty of the prosecution to rebut such preposition. Therefore, when prosecution has failed to do so, there is reason to believe that accused is right in blaming the prosecution agency, more particularly when there is no positive evidence to confirm his involvement as believed by the Special Judge in the impugned judgment. 11. If we peruse the impugned judgment it becomes clear that the Special Judge has mainly relied upon the outcome of the trap, considering it as a successful trap and the contents of the sanction letter. Therefore, trial Court has failed to appreciate the evidence properly for confirming the conviction of the appellants and hence impugned judgment certainly needs to be interfered with. 12. Therefore, there is substance in the submission by the appellant that; "1. The place of trap is near Radhanpur in Patan district, whereas the investigator is ACB office of Palanpur, Banaskantha which is beyond the jurisdiction of Patan district. 2. There is no demand nor acceptance from the present appellant. No philanthropic powder or substance is found from the hands of the cloths of the appellant - accused No. 1 no recovery of any notes from the appellant A-1. Contradiction in the version of decoy witness Dharmeshkumar Kaushikbhai Thakkar and panch witness Jayantibhai Parsottamdas Jadavas regarding the occurrence of the incident. 3. There is no mention of Rs. 10,000/- currency notes in first part of the Panchnama and no explanation how the said notes come to PI Mr. Chavda in 2nd part of Panchnama. 4. Decoy witness is chosen and in fact was not dealing with the coal business and was traveling on this route with permit and is habitual witness on the part of the police. 5. Panch one PW - 2 says panchnama was written in the hand righting of Mr. Ghasura whereas witness Shri Mafatlal Manchharam, ASI, member of raiding party says he had written the entire panchanam in his hand writing. 6. 5. Panch one PW - 2 says panchnama was written in the hand righting of Mr. Ghasura whereas witness Shri Mafatlal Manchharam, ASI, member of raiding party says he had written the entire panchanam in his hand writing. 6. The trap was preplanned at the instance of Coal business men as evident from FAX message exh.52 which was set on the morning of the same day of the incident by the private Coal businessmen to Anti Corruption Bureau, Ahmedabad. 7. The decoy witness was relative of one of the coal businessmen. The incident is about 1:40 a.m. and all Coal businessmen were present which is indicative of the fact that it was preplanned trap. 8. The defense of the accused No. 1 is that several Coal businessmen were doing illegal business of coal in an around Radhanpur area and one Farsubhai M. Goklani, Rameshchand Harshad Chimanlal, Bharatkumar Chhaganlal Thakkar, Ashwinkumar Thakkar, Chandrakant Thakkar hatched conspiracy with the help of P.I. Mr. H.B. Chavada and gave wrong information to accused No. 1 to call him on Radhanpur-Thara road on 26.05.2004 at about 1:00 a.m., as he was in night patrolling duty. The said thing has happened because the accused No. 1 i.e. present appellant had re-opened the investigation of CR No. I - 68/2000 registered at Varahi Police Station, involving theft of coal to the tune of Rs. 88 lacs from forest land in which earlier A summary was filed and during the inquiry he called one of the Coal businessmen for interrogation and, therefore, keeping grudge against, him all have conspired to involve him the present appellant in preplanned trap. 9. Police Inspector Mr. Chavda who is original complainant is not examined as he had died and the strictures were passed against PI Chavda by the Hon'ble High Court in CRMA No. 4550 of 2007. 10. The source of information has not been disclosed or noted by PI Chavda which is confirmed by the investigating officer - Prakash Vinayakrav Mane and Rehemtulla Savaikhan Sindhi. 11. The decoy and Panch Witnesses are selected and are not independent witnesses and are habitual person for deposing in ACB cases. 12. 10. The source of information has not been disclosed or noted by PI Chavda which is confirmed by the investigating officer - Prakash Vinayakrav Mane and Rehemtulla Savaikhan Sindhi. 11. The decoy and Panch Witnesses are selected and are not independent witnesses and are habitual person for deposing in ACB cases. 12. The decoy witness Dharmeshkumar Thakkar in his examination-in-chief, at internal page No. 4, has admitted that the colour of currency notes which were handed over by him to accused No. 2 Jamadar Rajnikant Pandya did not turn into any colour and nothing has happened. 13. The Panch Witness Jayantilal Parsottamdas Jadav has admitted in the cross-examination, at internal page No. 15, that he did not object to the facts narrated because the same were written in Panchnama narrated the story, which had never happened. (13A) The Panch Witness has admitted in the cross - examination, at internal page No. 8, that many trucks have passed but PI Chavda did not stop them. At page No. 13 also there is admission that 100 to 150 vehicles have passed. In panchnama, there is reference that truck in question came there and stopped. But this panch witness denies the same in cross examination. 14. The entire incident does not inspire confidence as the currency note was given at 1:50 a.m. whereas the decoy witness shouted for 'Machis' at 1:40 a.m. Though admittedly the conversation lasted only for 1-2 minutes. 15. The appellant has explained each and every circumstances in his 313 statements. The decoyer Dharmeshkumar Thakkar has admitted in cross examination, which shows that there was no demand or acceptance of any money from the accused and the said witness has given money instead of permit to accused No. 2. This admission completely dislodges the case of the prosecution. The aspect of habitual decoy also comes in his cross examination at internal page No. 8 of his evidence which shows that there was no demand or acceptance of any money from the accused and the said witness has given money instead of permit to accused No. 2. The motive for false implication has also come at internal page No. 10 of his evidence. 16. The appellant is relying upon following judgments: (1) 1980 Cr.L.J. 1096 Gulam Moh. The motive for false implication has also come at internal page No. 10 of his evidence. 16. The appellant is relying upon following judgments: (1) 1980 Cr.L.J. 1096 Gulam Moh. v. State of Gujarat (2) 1982 Cr.L.J. 1314 Bharatkumar J. Mehta v. State of Gujarat (3) 1999 (1) GLH 947 State of Gujarat v. Jaugarshil (4) AIR 1977 SC 170 Ravindrakumar Dey v. State of Orissa (5) AIR 2006 SC 836 T. Subrahmaniam v. State of Tamil Nadu (6) 2006 (1) GLH 567 State of Gujarat v. Gunvantlal H. Shah (7) 2004 SCC (Criminal) 1130 Punjabro v. State of Maharashtra (8) AIR 1977 SCC 666 Trilockchand Jain v. State of Delhi (9) 1988 Cr.L.J. (SC) page 152 (10) 2015 (1) Supreme 8 (11) 2015 (10) SCC 152 " 12. For the purpose reference to the case of B. Jayraj v. State of A.P. reported in 2014 (2) GLH 149 and case of M.R. Purushotham v. State of Karnataka reported in 2015 (3) SCC 247 are material. In both the above referred cases, the Honourable Supreme Court has reconfirmed that mere possession of recovery of currency notes from the accused without proof of admission, will not bring offence under Section 7 of the Prevention of the Corruption Act and that presumption cannot be drawn for all the offences in absence of any proof of demand of illegal gratification and, thereby the Honourable Supreme Court has set aside the conviction of the accused, which was confirmed by the High Court. The Honourable Supreme Court has also confirmed that when complainant himself disowned, what he has stated in his initial complaint and when there is no evidence that accused has made any demand, evidence regarding mere possession of currency notes would not be sufficient to attract conviction and, therefore, conviction was set aside. 13. As aforesaid, none of the four ingredients are proved in the present case to confirm that appellant has committed an offence as alleged in the charge-sheet. 14. In view of such facts and circumstances, the impugned order cannot sustain. Therefore, appeal needs to be allowed by quashing and set aside the judgment and order of convicting the appellant. Therefore, appeal is allowed. The appellants are acquitted from the charges levelled against them. Bail Bond shall stand cancelled. Records and Proceedings be sent back to the concerned trial Court forthwith. 15. Therefore, appeal needs to be allowed by quashing and set aside the judgment and order of convicting the appellant. Therefore, appeal is allowed. The appellants are acquitted from the charges levelled against them. Bail Bond shall stand cancelled. Records and Proceedings be sent back to the concerned trial Court forthwith. 15. In view of such decision in conviction appeal holding that there is no evidence to confirm the conviction, there is no reason or substance to allow the appeal by the State for the enhancement of sentence awarded to the appellant by impugned judgment. Therefore, Criminal Appeal 755 of 2009 stands dismissed.