Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 550 (GUJ)

Bhaskerbhai Nandlal Singh v. State of Gujarat

2017-03-09

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. Both these appeals arise out of same incident and involve common question of law and facts and hence they are being decided by this common judgment. 2. Criminal Appeal No. 1130 of 2005 is preferred by the appellant-Bhaskerbhai Nandlal Singh original accused under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 31/05/2005 rendered by the learned Special Judge (ACB), Mahesana in Special Case (ACB) No. 7 of 2004 whereby the appellant has been convicted for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs. 10,000/- and in default to pay fine, simple imprisonment for a period of one month. The accused is also convicted for the offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of three years and fine of Rs. 20,000/- and in default to pay fine, simple imprisonment for a period of three months. It is also ordered to run both the sentence concurrently. 3. Another appeal being Criminal Appeal No. 1410 of 2005 is preferred by the appellant-Patel Satishkumar Prabhudas under Section 351 of the Code of Criminal Procedure, 1973 against order dated 10/06/2005 rendered by the learned Special Judge (ACB), Mahesana below Exh. 37 in Special Case (ACB) No. 07 of 2004 whereby present appellant is imposed imprisonment for the period of three months with fine of Rs. 500/- and in default of payment of fine, shall suffer imprisonment for the period of one week. 4. The short facts giving rise to Criminal Appeal No. 1130 of 2005 are that FIR came to be lodged by one Satishkumar Prabhudas alleging that a truck bearing registration No. GJ-2-T-6934 owned by his elder brother Mahesh was driven by the driver Babubhai Patel. The said truck met with an accident on 21/05/2004 with a Santro car bearing registration No. GJ-2-R-679. The driver of santro car lodged an FIR against the truck as well as driver before Unjha Police Station. Therefore, the complainant contacted the present appellant who was Police Sub Inspector at Unjha Police Station and at that time, the appellant allegedly demanded illegal gratification of Rs. 10,000/- for further actions in favour of the complainant. The driver of santro car lodged an FIR against the truck as well as driver before Unjha Police Station. Therefore, the complainant contacted the present appellant who was Police Sub Inspector at Unjha Police Station and at that time, the appellant allegedly demanded illegal gratification of Rs. 10,000/- for further actions in favour of the complainant. Ultimately an amount of Rs. 5,000/- was settled and the complainant allegedly paid an amount of Rs. 1,000/-. Despite unwilling of the complainant to pay further amount, the complainant was threatened of further consequence as well as arrest of the driver and therefore, a complaint was lodged before the Police Inspector, Anti Corruption Bureau, Ahmedabad. Thereafter, it was decided to carry out a trap and trap was carried out on 24/06/2004 and in the trap the appellant was caught red handed with tainted currency notes. Thereby the appellant-accused committed offence punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Hence, the complaint came to be lodged against the appellant-accused. 5. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant-accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 5.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced several documentary evidences. 5.2 At the end of the trial, after recording the statement of the accused under Section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 6. Being aggrieved by the same, Criminal Appeal No. 1130 of 2005 is preferred by the appellant-original accused against the judgment and order of conviction. 7. Ms. Bhavini Jani, learned advocate with Mr. Adityasinh Jadeja, learned advocate for Mr. Jayprakash Umot, learned advocate for the appellant has argued that the learned Special Judge observed that leaving aside the evidence of the complainant, rest of the evidence is sufficient to record the conviction and doing the same, the learned Special Judge failed to consider that vital ingredients as regards to demand, acceptance and recovery are not proved from the evidence of the complainant as well as panch No. 1 who accompanied at the time of trap. Taking into consideration the complaint, previous demand is also not proved in accordance with law and therefore, the learned Special Judge has wrongly recorded the conviction. She has further argued that evidence of the complainant who happened to be habitual in filing complaint against officials of various departments is required to be evaluated in that terms and is required to be discarded as such. She has further argued that even on going through the recitals of the complaint, there is time gap of about one month from the date of raising the initial demand, second demand and therefore also, entire case of the prosecution should not be believed. Further she has argued that there is a material variance as regards to evidence of demand and acceptance so far as the deposition of the complainant as well as panch witness No. 1 are concerned. Consequently, therefore, in absence of uniformity of evidence even, their evidence should not be believed for convicting the appellant-accused as such. She has also argued that as per the deposition of the complainant, there was two other police officials as well as driver who were available in the office and it is alleged that procedure of trap have been seen and viewed by them but they have not been examined as independent witnesses and, therefore, also the case of the prosecution should not be believed. 8. Ms. Bhavini Jani, learned advocate has placed reliance upon judgment rendered by the Hon'ble Supreme Court in the case of Gulam Mahmood A. Malek v. State of Gujarat reported in 1980 (Supp) SCC 684, more particularly, para-6, which reads as under: "6. In appreciating the evidence in this case the background should not be forgotten. The complaint was prepared by Natvarlal who was accused in at least four cases. He did of have the least compunction in saying that he used to give money to the accused on several occasions. His case that he gave a bribe on July 7, 1972 was rejected. His complaint that bribe was demanded on July, 1972 was lodged only on July 17, 1972. Apart from the fact that the complainant is in the nature of an accomplice, his story prima facie is suspect. Before any court could act on his testimony, corroboration in material particulars is necessary. The prosecution relies only on the evidence of Kirti Kumar, the panch witness for corroboration. Apart from the fact that the complainant is in the nature of an accomplice, his story prima facie is suspect. Before any court could act on his testimony, corroboration in material particulars is necessary. The prosecution relies only on the evidence of Kirti Kumar, the panch witness for corroboration. Kirti Kumar is a student and employed in the office of Tube-Well Maintenance Department which is in the same building as that of the Anti-Corruption Department which is in the same building as that of the Anti-Corruption Department. No doubt there is no evidence that he is inimically disposed against the accused but he admitted that though his office usually starts at 10.30 a.m. he came to his office on that date at 8.45 a.m. and joined the party who conducted the raid. Though the panch witness corroborates the complainant, regarding the recovery, the delay in effecting the recovery of the money, the failure to examine independent witnesses who were admittedly in the court hall and in the next room to which the accused was taken, and the recovery made, makes the entire prosecution case unacceptable." 9. Ms. Bhavini Jani, learned advocate has also placed reliance on head note of reported judgment of this Court rendered in Criminal Appeal No. 1467 of 2007 which reads as under: "Prevention of Corruption Act, 1988 - S. 7, 13(1)(d), 13(2) - illegal gratification - demand and acceptance - appeal against conviction - there must be cogent and reliable or evidence by the prosecution to prove that (1) thee is prior demand of bribe amount by the accused, (2) there must be demand and acceptance at the time of raid, (3) there must be passing off tainted currency notes just before the trap/raid and (4) there must be acceptance and thereby possession of tainted currency notes by the accused - when there is material contradiction in the evidence of witness and when there is no clarity or certainty about actual demand and passing of tainted currency notes in the hand of accused, the conviction can certainly not be sustained - mere acceptance of any amount alone by way of illegal gratification or recovery thereof dehors the proof of demand, ipso facto, would not be sufficient to bring home the charge - conviction set aside - appeal allowed." 10. As regard Criminal Appeal No. 1410 of 2005, Mr. Viral Vyas, learned advocate for Mr. As regard Criminal Appeal No. 1410 of 2005, Mr. Viral Vyas, learned advocate for Mr. Ashish Dagli, learned advocate has argued that the learned Special Judge has wrongly convicted the complainant believing that he had not supported in toto as regards to his previous complaint and statement made to the police and has read out the entire deposition and has argued that the complainant has constantly supported the case of the prosecution and even otherwise also there may be some discrepancy or contradictory statements that itself is not sufficient to arrive at a finding that the complainant has committed offence of perjury. Further he has argued that the learned Special Judge has merely issued show cause notice and the learned Special Judge failed to carry out the requisite procedure laid down under Section 344 of the Code of Criminal Procedure where the learned Special Judge was required to summarily try the offender which is not done so far and solely based upon the show cause notice and general allegations that he has restricted his previous statement, recorded findings of conviction which is not permissible under the provisions of law in absence of carrying procedure as laid down under Section 344 of the Code of Criminal Procedure. In support of his argument, he has also placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of Amarsing Nathaji v. Hardik Harshadbhai Patel reported in 2017 (1) SCC 113 , more particularly he has placed reliance upon para-9 to 11 of the said decision, which reads as under: "9. Having heard the learned counsel appearing on both sides and having gone through the impugned order and also having regard to the subsequent development whereby the parties have decided to amicably settle some of the disputes, we are of the view that the matter needs fresh consideration. Having heard the learned counsel appearing on both sides and having gone through the impugned order and also having regard to the subsequent development whereby the parties have decided to amicably settle some of the disputes, we are of the view that the matter needs fresh consideration. We are also constrained to form such an opinion since it is fairly clear on a reading of the order that the court has not followed all the requirements under Section 340 of the CrPC as settled by this Court in the decisions referred to above regarding the formation of the opinion on the expediency to initiate an inquiry into any offence punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 of the IPC, when such an offence is alleged to have been committed in relation to any proceedings before the court. On forming such an opinion in respect of such an offence which appears to have been committed, the court has to take a further decision as to whether any complaint should be made or not. 10. No doubt, such an opinion can be formed even without conducting a preliminary inquiry, if the formation of opinion is otherwise possible. And even after forming the opinion also, the court has to take a decision as to whether it is required, in the facts and circumstances of the case, to file the complaint. Only if the decision is in the affirmative, the court needs to make a complaint in writing and the complaint thus made in writing is then to be sent to a Magistrate of competent jurisdiction. 11. Under Section 343 of the CrPC, the Magistrate has to deal with the complaint referred to in Section 340 of the CrPC as if it was instituted on a police report. Therefore, on the offences referred to under Section 195(1)(b)(i) of the CrPC, all falling within the purview of warrant case, the Magistrate has to follow the procedure for trial of warrant cases under Chapter XIX Part A comprising of Sections 238 to 243 of the CrPC. It is only in view of such seriousness of the matter, Section 340 of the CrPC has provided for a meticulous procedure regarding initiation of the inquiry." 11. On the other hand Mr. It is only in view of such seriousness of the matter, Section 340 of the CrPC has provided for a meticulous procedure regarding initiation of the inquiry." 11. On the other hand Mr. K.P. Raval, learned APP has taken this Court through the entire record and proceedings and he has argued that the case is proved beyond reasonable doubt and vital ingredients as regards to demand, acceptance and recovery are proved and he supported the judgment rendered by the learned Special Judge. Further he has argued that though there may be some discrepancy or contradiction in the evidence of the complainant and panch No. 1, however, the material which is requisite to establish the demand and acceptance is clearly spelled out from their depositions and therefore, though there may be verbal similarity in the evidence of both the witnesses, that itself should not be a ground for total discard of their evidence and the learned Special Judge has rightly relied and rightly convicted the accused which calls for no interference. So far as conviction of the complainant, learned APP has submitted that necessary order may be passed and he has argued that though even in the cross examination also the complainant has stuck to his earlier conversation and it is in consonance with the complaint as well as statement before the police. 12. This Court has heard learned advocates for the appellants in both the appeals and Mr. K.P. Raval, learned Additional Public Prosecutor for the respondent-State. 13. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. The complaint at Exh. -16 came to be lodged by the complainant on 23/06/2004 inter alia alleging that his driver Babubhai has committed accident while he was driving the truck with one Santro car belonging to one Vishnubhai within the jurisdiction of Unja Police Station and a complaint came to be lodged against his driver and his driver was required to be apprehended and therefore, he inquired as regards to the aforesaid case before the Unava Out Post Police Station. At that time, he met PSI Bhaskarbhai-original accused whereas his writer Bhikhabhai was also present. The accused told him to produce the driver as he has absconded to which the complainant told that he will secure his presence. At that time, said Bhaskarbhai demanded Rs. At that time, he met PSI Bhaskarbhai-original accused whereas his writer Bhikhabhai was also present. The accused told him to produce the driver as he has absconded to which the complainant told that he will secure his presence. At that time, said Bhaskarbhai demanded Rs. 10,000/- which was scaled down to Rs. 5,000/-, and the complainant handed over Rs. 1,000/- and rest of Rs. 4,000/- was required to be paid while producing the driver. At that time, accused Bhaskarbhai told that Rs. 5,000/- is required to be paid to him and Rs. 1,000/- to Bhikhabhai. Thereafter, he went to the office of accused on 23/05/2004 and at that time, the complainant was told to come with remaining money upon being informed. Thereafter on 19/06/2004, the accused called the complainant and directed him to produce the driver otherwise he would be apprehended. At that time, the complainant told him that he will produce him. Thereafter, the accused Bhaskarbhai called him on 22/06/2004 for producing the driver as well as handing over the rest of the amount to which he told that he will report on the following day at afternoon. As he was not willing to pay such amount, he lodged the aforesaid complaint on 23/06/2004. 14. PW-2 Satishkumar Prabhudas Patel, the complainant has deposed that he is doing agriculture work and Maheshbhai is his brother and they are four brothers and he is looking after transport business and was having a truck owned by his elder brother bearing registration No. GJ-2-T-6934. He has deposed that said truck met with an accident in between Unja and Unava with Santro Car. He has deposed that upon receiving call of driver, he inquired about the accident. He has deposed that he went to Unava Police Chowki where he met Bhaskarbhai and told him that his driver has absconded and he will produce him as well as produce papers of the vehicle. He has deposed that at that time, the accused demanded initially Rs. 10,000/- which was scaled down to Rs. 5,000/- and at that time, he handed over Rs. 1,000/- to Bhikhabhai which was paid to said Bhaskarbhai and thereafter he took away his truck. He has deposed that thereafter the accused called him for production of driver and at that time, he told that he will produce him. 10,000/- which was scaled down to Rs. 5,000/- and at that time, he handed over Rs. 1,000/- to Bhikhabhai which was paid to said Bhaskarbhai and thereafter he took away his truck. He has deposed that thereafter the accused called him for production of driver and at that time, he told that he will produce him. He visited Unja Police Station on 23/06/2004 and thereafter he lodged the complaint before the ACB, Ahmedabad in which he has stated whatever has happened to him. He has identified his signature over the complaint and also identified the accused before the Court. He has also deposed that he produced Rs. 5,000/-. The notes were in the denomination of Rs. 100/- and Rs. 500/-. Thereafter ACB arranged for the panchas. Two panchas were introduced to him. Test of phenolphthalein powder was carried in his presence and the currency notes were smeared with the said powder. Panch No. 1 was directed to remain with him on the following day i.e. on 24/06/2004. The accused called him with which the complainant as well as other raiding party member reached Unava Police Chowki. The accused was not present there and therefore he called accused from STD booth and said Bhaskarbhai told him to come over to Unja due to which he as well as driver and panch No. 1 reached to Unja Police Chowki. At that time, the accused told the complainant to send the driver to Unava Police Chowki and thereafter the accused told him as to whether he has brought the money to which he said that he has brought the money as agreed and thereafter the accused told how much money is there to which the complainant replied that Rs. 5,000/- and thereafter he handed over the same to the accused which the accused accepted and placed in the pocket of his pant and thereafter other persons of raiding party came over to the place where the test by deepening hands of the accused in the water was made and thereby the water turned into pink colour and the test was found to be positive. Thereafter recovery of tainted currency notes was made by panch No. 2 from the pocket of accused. Numbers of currency notes were tallied. Test over the currency notes was also found positive as it was found pink by pouring water drops over it. Thereafter recovery of tainted currency notes was made by panch No. 2 from the pocket of accused. Numbers of currency notes were tallied. Test over the currency notes was also found positive as it was found pink by pouring water drops over it. The said transaction of handing over money happened in the compound of ST stand. In the cross examination, he has admitted that Rs. 1,000/- which was to be paid to Bhikhabhai was handed over to the accused. He has also admitted that he had also named said Bhikhaji as accused in the complaint. He has admitted that said Bhikhaji took out Rs. 1,000/- from him. He also admitted that he did not lodge any complaint though Rs. 1,000/- was paid for about a month prior to lodging of complaint. He has also admitted that accused was calling him through his mobile. He has also admitted that investigation of accidental case was being carried out by said Bhikhaji. He has also admitted that custody of his truck was handed over to him without carrying out any procedure. He has also admitted that the incident of accepting the amount of bribe was taken place at police chowki nearby the bus stand. He has also admitted that driver was also with him as well as three-four constables were also present there and they were also standing nearby the place and they were in a position to hear conversation between them. He has admitted that transaction of money took place within the view of constables and drivers. He has also admitted that the accused accepted the amount of bribe in presence of constables as well as driver. 15. PW-1 Pradipbhai Kantilal was requisitioned as panch No. 1 by the ACB. He has deposed that while his was on duty on 23/06/2004, one ACB official visited his office and talked with his officer and therefore his officer asked him and one Harjibhai to go with that ACB officials, due to which they came to ACB Office at Shahibaug where he was introduced with the complainant as well as other police officials and panch. He has deposed that the complaint was read over by them and their signature was also obtained over the complaint. He has deposed that the complaint was read over by them and their signature was also obtained over the complaint. He has deposed that procedure of smearing of phenolphthalein powder over the currency notes were made to understand in his presence as well as other members and the panchnama was drawn and a detailed procedure as regards to trap was described to him and he was directed to remain along with the complainant during the course of trap. He has further deposed that on 24/06/2004, he was called and on that day, they proceeded from the Circuit House, Mehsana to Unava upon motor cycle of the complainant and other members of raiding party were following them on another vehicle and they reached Unava Police Chowki. He has deposed that at that time, the accused was not present there due to which the complainant called the accused from STD booth. He has deposed that thereafter the complainant told him that they were called by the accused to Unja High Way Police Chowki. He has deposed that again they proceeded on motor cycle along with the complainant to Unja High Way Police Chowki and other raiding party members followed them. He has deposed that thereafter when they reached the Police Chowki, at that time, the accused was found present in the Chowki and two other police constables in simple dress were found there and the accused was writing something. He has deposed that at that time, the complainant asked the accused as to how he was. He has deposed that thereafter some time, the accused went out of his office and was talking over mobile and went into another room where the complainant was called due to which he as well as the complainant went to another room. He has deposed that at that time, the accused asked about him. He has deposed that the complainant introduced him as his elder brother Maheshbhai. He has deposed that after some time, the accused went to ST compound and also directed the complainant to follow him due to which he also went along with them and thereafter the accused was talking over his mobile to somebody and told that the driver is present and the complainant asked whether the driver would be released or not to which the accused told that he would be released. He has deposed that thereafter the complainant was directed to pay Rs. 2,000/- and ultimately agreed for Rs. 1,000/-. He has deposed that thereafter the accused asked as to whether the complainant has brought Rs. 6,000/- for him to which the complainant said the he has already paid Rs. 1,000/- and Rs. 5,000/- is remained unpaid to which the accused told him to give him the same and the complainant took out money from pocket of his pant and handed over to the accused which the accused accepted and placed into his pocket and thereafter he had gone to his chamber and took his seat. He has deposed that at that time, the complainant raised pre arranged signal due to which other members of raiding party arrived there. He has deposed that at that time, it was dark. He has deposed that thereafter the raiding party affected recovery through panch No. 2 from pocket of the complainant and tainted currency notes were found from his pocket and the numbers were tallied which were noted down in the panchnama as well as test of phenolphthalein powder was carried out which was found to be positive. In the cross examination, he has admitted that while they reached first in the police chowki, at that time, he could not hear conversation between the complainant and the accused as he was away and he also did not hear any conversation between the accused and Bhikhaji. He has admitted that on the first day, the raid failed and therefore, he went to his home. He has admitted that on the second day, he reached ACB office at about 11:30 a.m. with panch No. 2 and at that time the complainant and other raiding party members were present. He has also admitted that he traveled upon the motor cycle from Ahmedabad to Unava Police Chowki. On the day of trap, when they reached the place of trap, at that time, the accused was found present in the first room and two other police officials were also found present there who were writing something. He has also admitted that they proceeded together to the Chowki. He has also admitted that at that time the complainant told that he has brought the driver. He has also admitted that he saw that the accused was talking with someone on mobile. He has also admitted that they proceeded together to the Chowki. He has also admitted that at that time the complainant told that he has brought the driver. He has also admitted that he saw that the accused was talking with someone on mobile. He has also admitted that the accused went to the compound of ST stand and they also followed the accused and at that time the accused was talking over mobile. He has also admitted that thereafter the accused directed the complainant to produce the driver before Unava Police Chowki and also told that he had talked with Bhikhaji on telephone. He has admitted that it is not true that there was talk of releasing the driver. He has also admitted that thereafter conversation as regards to demand of illegal gratification took place at the gate of the compound and the transaction also took place in the said compound wall and at that time, the complainant and the accused were found nearby to each other and they were within the range so that one can hear the conversation between them. 16. Mr. Dilip Kapilray Vaishnav - PW-3 who was serving as Police Inspector, ACB and who recorded the complainant on 23/06/2004 has deposed that he reduced into writing whatever the fact that was narrated by the complainant. The complaint at Exh. 16 came to be admitted by him and he also identified his signature in his evidence. He has deposed that thereafter, he has arranged for the trap as well as made requisition for panchas and he is the member of raiding party and he also detailed as to how the arrangement of the trap was made. In the cross examination, he has admitted that the complainant had previously lodged complaint against other officials also and those traps were found to be successful. He has also admitted that sometime the complainant has not deposed in conformity with the complaint and he gave his deposition which may be beneficial to the accused. He has also admitted that the complainant appears to have professional attitude. He also admitted that he recorded statements of two constables on 24/06/2004 who were present in the police chowki. He has also admitted that Bhikhaji accepted Rs. 1,000/- and such fact is revealing from the complaint. 17. He has also admitted that the complainant appears to have professional attitude. He also admitted that he recorded statements of two constables on 24/06/2004 who were present in the police chowki. He has also admitted that Bhikhaji accepted Rs. 1,000/- and such fact is revealing from the complaint. 17. PW-4 Maheshbhai Rameshwar Gupta, Investigating Officer has deposed that on 24/06/2004, he was serving as Police Inspector, ACB, Mehsana. He has deposed that he carried out the investigation and recorded the statement of panchas as well as other persons and even obtained sanction accorded by the competent authority and filed the charge sheet. He has also admitted that there was no call from the cell number of the accused. He has also admitted that two constables were not examined. 18. This Court has appreciated the evidence of the complainant as well as panch No. 1. On overall evaluation of the evidence of the complainant, it appears that the complainant has clearly deposed that the demand was raised by the accused for releasing the truck as well as for releasing the driver from the offence of the accident and initially demanded Rs. 10,000/- which was scaled down to Rs. 5,000/-. As the complainant did not produce the driver who was involved in the accident case, he was called after about a month. At that time, the complainant was directed to remain present on the following day due to which he remained present. However, the accused was found absent. Consequently, therefore, on 24/06/2004, whenever the complainant accompanied with panch No. 1 visited Unava High Way Police Chowki, at that time, the accused was found in the first room. While the accused was working, he did not paid any heed to him and thereafter the accused entered in the second room and there also, there was no conversation but whenever he left second room and went into compound of ST stand, at that time, there was a conversation and the accused inquired as to how much amount he has brought to which the complainant said the he has brought Rs. 5,000/- as agreed and thereafter the accused asked to give the same to him and due to which the complainant handed over the amount. These fasts are established in his examination in chief. However, these facts are not even challenged by the defense in the cross examination. 5,000/- as agreed and thereafter the accused asked to give the same to him and due to which the complainant handed over the amount. These fasts are established in his examination in chief. However, these facts are not even challenged by the defense in the cross examination. The defense tried to bring on record every transaction of handing over of the money. The panch No. 1 was also within the position to view act of handing over the money and hear the conversation. On overall analysis of evidence on record, the evidence given by the complainant in his examination in chief remains unchallenged, so far as the demand and acceptance is concerned. 19. Similarly, so far as evidence of PW-1 who was panch No. 1 and who accompanied along with the complainant at the time of trap is concerned, he has also clearly narrated that they went first into the first room. Thereafter the accused shifted to another room and thereafter the accused left for the compound of the ST stand where there was conversation between the accused and complainant. He was able to hear and view the conversation between them. So far as the demand as regards to the accused is concerned, there is clear and constant evidence forthcoming from the panch that the accused clearly asked for Rs. 6,000/- to which the complainant replied that he had already paid Rs. 1,000/- and he has brought rest of the amount of Rs. 5,000/- to which the accused told him to give. At that time, he took out and he handed over the amount to the accused as per the demand. Even in the cross examination, at page-66 of his deposition, the defense itself has established that the conversation as regards to handing over amount of illegal gratification took place within the compound nearby the gate. Even it is also established that the said transaction took place there. It is also established that at that time, the complainant as well as panch No. 1 himself were standing nearby and it is also established that they were within the position of hearing and viewing the entire episode. 20. In view of aforesaid nature of evidence, it is clear that evidence of the complainant as well panch No. 1, both are consistent so far as instant demand of Rs. 5,000/- by the accused from the complainant is concerned. 20. In view of aforesaid nature of evidence, it is clear that evidence of the complainant as well panch No. 1, both are consistent so far as instant demand of Rs. 5,000/- by the accused from the complainant is concerned. Not only that but in pursuance of the instant demand, transaction of handing over of money also took place within the view of panch which is also duly corroborated from the evidence of the panch and even in the cross examination of both the witnesses, the factum as regards to demand and acceptance is being clearly established. 21. So far as the contention raised by Ms. Bhavini Jani, learned advocate that though two police officials were present in the police chowki, their evidence were not recorded. Therefore, also in absence of evidence of independent witnesses, conviction could not have been recorded. On that point, on the overall evaluation of the evidence on record and on overall analysis of both the witnesses i.e. complainant as well as panch No. 1, both the aforesaid police constables were found to be present in the first room and at that time, the police officials were busy in their work as per the prosecution case and thereafter the accused shifted into the second room. Nothing happened in the first room so far as demand and acceptance is concerned. As per the defense also, admittedly demand took place in the compound of the ST depot nearby the police chowki where presence of aforesaid two police officials are not established and therefore, their evidence are not helpful so far as actual trap is concerned, however, in the cross examination, the complainant has accepted that three to four police officials were present as well as driver was also present there. This fact is not getting corroboration on the overall evaluation of other evidence on record. The driver was sent from Unja to Unava for getting release from the accident case. Therefore, he was there at the time of trap. Similarly, taking into consideration other evidence on record, presence of other police officials as stated by the complainant in the cross examination is not established when the incident of handing over the bribe amount happened in the compound of ST. Therefore, also, their evidence so far as the actual incidence or conversation as regards to demand of illegal gratification is concerned, is of no help. 22. Therefore, also, their evidence so far as the actual incidence or conversation as regards to demand of illegal gratification is concerned, is of no help. 22. In view of aforesaid nature of evidence, in the considered opinion of this Court, the learned Special Judge has rightly appreciated the evidence on record and rightly recorded the finding that the main vital ingredients such as demand, acceptance and recovery are established and rightly convicted the accused. Therefore, in view of aforesaid nature of evidence, the judgment of conviction recorded by the learned Trial Court requires no interference by this Court. 23. At this juncture, Ms. Bhavini Jani, learned advocate has pointed out that the offence took place for about 13 years back and the accused is 46 years old and for about 13 years he has faced several departmental proceedings as well as this criminal proceeding and thereby he has been sufficiently punished and he has been dismissed from the service. In that view of the matter, she has urged that minimum sentence as provided under the provisions of the Prevention of Corruption Act at the prevailing period may be imposed rather than the maximum imposed by the learned Special Judge at the relevant time, to which Mr. K.P. Raval, learned APP submitted that the Court may exercise appropriate discretion for imposing appropriate sentence. 24. Taking into consideration rival submissions and taking into consideration the time lag between the incident and delivery of judgment of the present appeal, this Court is of the considered opinion that let minimum sentence provided under the Prevention of Corruption Act at the relevant time under Section 7 and Section 13(2) (1) may be imposed as "one year" on both the count. 25. Accordingly, sentence imposed is reduced to one year from three years. The accused shall surrender within 12 weeks. 26. So far as other Criminal Appeal No. 1410 of 2005 preferred by the appellant-Patel Satishkumar Prabhudas is concerned, in view of the aforesaid nature of evidence, in the considered opinion of this Court, the learned Special Judge has misread the evidence of the complainant and wrongly recorded the finding that the complainant has committed offence of perjury. 26. So far as other Criminal Appeal No. 1410 of 2005 preferred by the appellant-Patel Satishkumar Prabhudas is concerned, in view of the aforesaid nature of evidence, in the considered opinion of this Court, the learned Special Judge has misread the evidence of the complainant and wrongly recorded the finding that the complainant has committed offence of perjury. His evidence, in the considered opinion of this Court, is clear and consistent and even his evidence is duly getting corroboration from the evidence of panch No. 1 as well as other contemporaneous record in the nature of panchnama. In that view of the matter, the conviction recorded by the learned Judge so far as the accused is concerned is in accordance with law, however, finding recorded that "leaving aside the evidence of the complainant also, the conviction of the accused could be made" is not in consonance with the evidence available on record. In order to establish the factum of demand and acceptance, the evidence of the complainant is sine qua non. 27. On overall analysis of the evidence of the complainant as well as discussion made while dealing with the conviction appeal, it appears that foregoing evidence of the complainant is consistent and even evidence so far as demand and acceptance of illegal gratification remained unchallenged. In that view of the matter, finding recorded by the learned Judge that the complainant made perjury during the course of his oral deposition is not in accordance with law and evidence available on record and even otherwise also while inflicting punishment under Section 344 of the Criminal Procedure Code, mandatory procedure provided under the aforesaid provision of law is not followed. On that point also, punishment inflicted upon the complainant is not acceptable. 28. Therefore, in the end, Criminal Appeal No. 1130 of 2005 filed by appellant-accused Bhaskerbhai Nandlal Singh is partly allowed and the impugned judgment and order dated 31/05/2005 passed by learned Special Judge (ACB), Mehsana in Special Case (ACB) No. 7 of 2004 is modified to the extent that instead of sentence of imprisonment for three years for the offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, the appellant-accused shall undergo the sentence of imprisonment for one year. Rest of the impugned judgment is not disturbed. Rest of the impugned judgment is not disturbed. The appellant accused - Bhaskarbhai Nandlal Singh is ordered to surrender to custody within a period of twelve weeks from today for undergoing the remainder sentence, if he has not undergone so far, failing which the investigating agency shall be at liberty to take necessary action in accordance with law. The impugned judgment and order stands modified accordingly. Bail bond, if any, stands cancelled. 29. Criminal Appeal No. 1410 of 2005 succeeds. The impugned judgment and order dated 10/06/2005 passed by learned Special Judge (ACB), Mehsana in Special Case (ACB) No. 7 of 2004 is quashed and set aside. The appellant-accused herein i.e. Patel Satishkumar Prabhudas-original complainant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. Fine if any paid, the same shall be refunded to the appellant. R & P be sent back to the trial Court, forthwith.