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Gujarat High Court · body

2020 DIGILAW 287 (GUJ)

State of Gujarat v. Tapubhai Keshaji Pedhaliya

2020-02-14

A.P.THAKER

body2020
JUDGMENT : A.P. THAKER, J. 1. These three appeals have been filed against the judgment and order dated 18.05.2005 passed by the learned Additional Special Judge, 6th Fast Track Court, Rajkot (hereinafter be referred to as “the Trial Court”) in Special A.C.B. Sessions Case No. 4 of 1992 whereby the Trial Court has convicted the original accused No. 1-Nathabhai Meghabhai Vinzuda and imposing sentence and acquitted original accused No. 2-Tapubhai Keshavji Pedhaliya from the charges levelled against him for the offence under Section 7, 12, 13(1)(i)(ii)(iii) and Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter be referred to as “the P.C. Act.”) 2. Criminal Appeal No. 2486 of 2005 has been filed by the State under Section 378 (1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal passed by the Trial Court acquitting the accused No. 2-Tapubhai Keshavji Pedhaliya. Whereas, Criminal Appeal No. 2487 of 2005 has been filed by the State for enhancement of the punishment imposed on accused No. 1-Nathabhai Meghabhai Vinzuda. Criminal Appeal No. 1129 of 2005 has been filed by the convict accused-Nathabhai assailing the judgment and order of conviction. 3. As all these criminal appeals having been arise from the judgment and order, all these appeals are heard together and are being disposed of by this common judgment. 4. For the sake of brevity and convenient, Nathabhai Meghabhai Vinzuda and Tapubhai Keshavji Pedhaliya are referred to as accused No. 1 and accused No. 2 in this judgment and order. 5. Brief facts of the prosecution case is that one Babubhai, who was plying the rickshaw, was parking his rickshaw on parking stand situated at Usha Cinema on 15.01.1991 in Rajkot. It is also the case of the prosecution that accused No. 1 Nathabhai Meghabhai, Constable, who had raided the Usha Cinema for the purpose of arresting black marketers and seized tickets of picture and at that point of time, brother of complainant-Jivanbhai Vatabhai Sitapara was standing near the cinema and during the course of raid, the other brother of the complainant ran away from that place. It is further the case of the prosecution that accused No. 1 has seized 28 tickets from Babubhai and he was interrogated. It is further the case of the prosecution that accused No. 1 has seized 28 tickets from Babubhai and he was interrogated. It is the case of the prosecution that on making inquiry from Babubhai, it was stating by Babubhai that there was no share of other persons in tickets which were meant for the purpose of selling in black market. It is also the case of the prosecution that accused No. 1 told the complainant that though Labhubhai has run away, as half of the tickets were of Labhubhai and he will register the case against him by attributing the fault of half of the tickets were of Labhubhai. It is further alleged that at that time, the complainant informed accused No. 1 that his brother is innocent and he is not involved in the offence. According to the prosecution, accused No. 1 informed Jivanbhai to keep present Labhubhai before him and informed him that in case, if he is not produced before him, then he would not allow to go scot free and he would file criminal case of liquor to involve Lalubhai in the offence and further informed the complainant that earlier, Labhubhai was also arrested in connection with the offence of prohibition and now he would also lodge second case of prohibition by placing bottle of liquor in Labhubhai’s residence. 5.1 It is the case of the prosecution that thereafter, the complainant had informed the accused not to act in this fashion and at that point of time, accused No. 1 demanded Rs. 1,000/- for the purpose of settlement with the complainant and thereupon, the complainant had informed him that he would make arrangement for giving bribe of Rs. 1,000/-. It is further the case of the prosecution that on second day, the brother of the complainant on hearing the say of his brother about the demand of Rs. 1,000/- he told that he was not aware about black marketing. It is further the case of the prosecution that on the next day, the complainant met accused No. 1 and asked to reduce the amount and, thereupon, the amount of bribe was reduced to Rs. 500/- and it was agreed to make payment on 19.09.1991 in evening hours and the brother of the complainant was asked to remain present with Rs. 500/- at Usha Cinema. 500/- and it was agreed to make payment on 19.09.1991 in evening hours and the brother of the complainant was asked to remain present with Rs. 500/- at Usha Cinema. 5.2 It is the case of the prosecution that thereafter, the complainant lodged the complaint before the Police Officer of ACB Rajkot, who had called two panchas and carried out the first part of panchnama and, thereafter, the raid was carried out at the relevant point of time in presence of the complainant, panch No. 1, panch No. 2 and raiding party. That the complainant, as per direction of accused No. 1, has handed over the amount of bribe to accused No. 2 and he kept this money into pocket of his pant and thereafter, the signal was given by the complainant and, therefore, the raiding party rushed there and in presence of panchas, the amount of bribe was collected from accused No. 2. It is further the case of the prosecution that the experiment of ultraviolet lamp was carried out and marks of anthracene powder was found on the hands of accused No. 2. Thereafter, necessary second part of panchnama was drawn and Police Inspector has recorded the statement of the various witnesses and having found sufficient materials, the charge-sheet came to be led before the Trial Court. 6. The charge against the accused came to be framed by the Trial Court, vide Exhibit 11 for the aforesaid offences. The charge was denied by the accused. The accused pleaded not guilty to the charge and pleaded for trial. 7. It appears from the record that to prove the case, the prosecution has examined the following witnesses:- PW-1 Jivanbhai Vastabhai Complainant Exh.48 PW-2 Dineshkumar Narmashankar Panch No. 1 Exh.52 PW-3 Natvarlal Narshibhai Investigating Officer Exh.56 8. The prosecution has also produced the following documentary evidence:- S. No. Particulars Exhibit 1 First Information Report 44 2 Complaint 49 3 Original Panchnama 53 4 Record of the Lower Court 59 5 F.I.R. Being C.R. No. I-102/91 60 6 Arrest Panchnama 61 7 Yadi of confiscated persons 62 8 Xerox copy of page of register regarding arrested persons 63 9 Case diary 64 10 Seizure Memo 65 11 Service Record 66 12 Xerox copy of the order of Civil Suit No. 942/89 67 9. On the basis of the evidence, further statements of the accused under Section 313 of the Criminal Procedure Code, 1973 came to be recorded, wherein also, the stand of the accused is that the complainant has to pay money to accused No. 2 as there was money transaction between them and as he was not paying the amount to accused No. 2, accused No. 1 has told the complainant to give the amount to accused No. 2 which he directed to pay him and the amount came to be given by the complainant at the time of raid which was not the amount of bribe, but, it was the outstanding amount which was payable by the complainant to accused No. 2. 10. After hearing both the sides and considering the evidence on record, ultimately, the Trial Court has convicted the accused No. 1 and imposed sentence on him to the effect that accused has to undergo simple imprisonment of six months and to pay fine of Rs. 500/- in default, to undergo further simple imprisonment of one month for the offence punishable under Section 7 of the P.C. Act and to undergo simple imprisonment of one year for the offence punishable under Section 13(1)(d) (i)(ii)(iii) and 13(2) of the P.C. Act and to pay fine of Rs. 500/- in default, to undergo further simple imprisonment of two months. The learned Special Judge has ordered that all the sentences shall run concurrently. 10.1 Whereas, accused No. 2 has been acquitted from the charges levelled against him. 11. Being aggrieved by the judgment and order of conviction and sentence, the accused has filed Criminal Appeal No. 1129 of 2005, whereas, the State has preferred Criminal Appeal No. 2486 of 2005 against acquittal of accused No. 2 and Criminal Appeal No. 2487 of 2005 for enhancement of punishment of accused No. 1. 12. The grounds of the appeals are almost common. It is alleged by the respective appellants that the Trial Court has not properly appreciated the evidence on record and has committed serious error of facts and law in passing the impugned judgment and order. The contention on behalf of accused No. 1 is that his conviction is not proper. 12. The grounds of the appeals are almost common. It is alleged by the respective appellants that the Trial Court has not properly appreciated the evidence on record and has committed serious error of facts and law in passing the impugned judgment and order. The contention on behalf of accused No. 1 is that his conviction is not proper. That the Trial Court has failed to appreciate the material contradiction coming out from the contemporaneous reading of the deposition of PW-1 Jivanbhai, complainant, in which, he has, categorically, deposed that the alleged amount was given to accused No. 2, whereas, PW-2 Dineshbhai has deposed that the amount was given to accused No. 1. It is further contended that even the complainant has also deposed that there was money transaction between him and accused No. 2. It is contended that the Trial Court has committed serious error of facts and law in convicting him. He has urged to quash and set aside the judgment and order of his conviction and to acquit him from the charges levelled against him. 13. The contention raised in Criminal Appeal No. 2486 of 2005 and Criminal Appeal No. 2487 of 2005 by the State is that the judgment and order of acquittal of accused No. 2 is not proper as there is ample evidence on record to connect accused No. 2 with the alleged offence and the observation made by the Trial Court is not proper and the same requires interference by this Court by convicting accused No. 2 and to impose punishment upon him. Regarding punishment and conviction imposed upon accused No. 1, it is contended that the Trial Court has not properly appreciated the fact that the offence is already proved by the prosecution and, therefore, the Trial Court ought to have imposed maximum punishment on accused No. 1. 14. Heard Ms. Shruti Pathak, learned Additional Public Prosecutor for the appellant-State and Mr. Ashish Dagli, counsel for the accused. Perused the materials placed on record and the decisions cited at the Bar. 15. Ms. Shruti Pathak, learned Additional Public Prosecutor for the appellant-State has submitted that the Trial Court has committed serious error of facts and law in imposing lesser sentence on accused No. 1 when the State has properly proved the offence against accused No. 1 by leading evidence. 15. Ms. Shruti Pathak, learned Additional Public Prosecutor for the appellant-State has submitted that the Trial Court has committed serious error of facts and law in imposing lesser sentence on accused No. 1 when the State has properly proved the offence against accused No. 1 by leading evidence. According to her submission, when accused No. 1 was convicted, the proper sentence ought to have imposed upon him by the Trial Court. While reading the entire evidence on record, she has submitted that the Trial Court has committed serious error of facts and law in, inflicting lesser punishment on accused No. 1. She has submitted that the impugned judgment and order of conviction and sentence is required to be interfered with and punishment is required to be enhanced as per the provisions of the P.C. Act. 15.1 Regarding acquittal of accused No. 2, Ms. Pathak, learned Additional Public Prosecutor has submitted that the evidence produced on record suggests that accused No. 2 has accepted the amount and this fact is corroborated from the evidence of the complainant, panchas and the Investigating Officer. She has submitted that the order of acquittal of accused No. 2 passed by the Trial Court is not sustainable in the eyes of law. She has submitted that though there is main question of production of sanction order, this fact may not be looked into at the appellate stage, as the accused has not raised any such plea before the Trial Court nor has stated in his appeal memo. While relying upon the following decisions, she has submitted that non-production of sanction will not affect the case of the prosecution: (a) Central Bureau of Investigation vs. V.K. Sehgal, AIR 1999 SC 3706 (b) Satyanarayan vs. State of Madhya Pradesh, AIR 2012 SC 1485 (c) Dhanpat vs. State, AIR 1960 All 40 15.2 Ms. Pathak, learned Additional Public Prosecutor has also submitted that the defence raised by the accused is not proved by producing necessary evidence. According to her submission, the defence raised in further statement recorded under Section 313 of the Code of Criminal Procedure, cannot be looked into. She has prayed to allow both the appeals filed by the State and to dismiss the appeal filed by accused No. 1. 16. Per contra, Mr. According to her submission, the defence raised in further statement recorded under Section 313 of the Code of Criminal Procedure, cannot be looked into. She has prayed to allow both the appeals filed by the State and to dismiss the appeal filed by accused No. 1. 16. Per contra, Mr. Ashish Dagli, learned counsel for the accused No. 1 has vehemently submitted that the defence has been disclosed during the course of recording of the evidence of the complainant and the complainant has, in his cross-examination, clearly admitted that he had money transaction with accused No. 2 and he had to pay the amount to accused No. 2 and accordingly, he has paid the same amount to accused No. 2. While reading the evidence on record, he has submitted that the Trial Court has not considered the fact that the accused can place his defence during the course of cross-examination of the prosecution witnesses and the accused need not to lead the evidence separately. He has submitted that in this case, the defence has not been considered by the Trial Court simply on the ground that in cross-examination, the complainant was tutored. 16.1 Mr. Dagli, learned counsel has also submitted that there is contradictory evidence on record regarding tendering of the amount as the complainant deposed that the amount was paid to one of the accused, whereas, the panch deposed different things. While reading the evidence on record which consists of the evidence of the complainant, panch and the Investigating Officer, Mr. Dagli, learned counsel has submitted that on conjoint reading of evidence of all these three witnesses, it is clearly found that there is no proof beyond reasonable doubt and the evidence on record clearly suggests that the defence put up by the accused is duly proved. He has submitted that accused has to prove his defence only on the principle of “preponderance of probability.” He has submitted that in this case, there is evidence on record which supports the defence of the accused. He has submitted that the Trial Court has erred in convicting the accused for the alleged offence. He has prayed to allow the appeal filed by the accused No. 1 and to dismiss the appeals filed by the State for enhancement of sentence. 16.2 Mr. He has submitted that the Trial Court has erred in convicting the accused for the alleged offence. He has prayed to allow the appeal filed by the accused No. 1 and to dismiss the appeals filed by the State for enhancement of sentence. 16.2 Mr. Dagli, learned counsel has relied upon the following decision: Mansukhlal Vithaldas Chauhan vs. State of Gujarat, (1997) 7 SCC 622 17. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 18. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime with which he is charged. 19. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime with which he is charged. 19. It is well settled by the Apex Court in the case of A. Subair vs. State of Kerala, (2009) 6 SCC 587 , while dwelling on the purport of the statutory prescription of Sections 7 and Section 13(1)(d) of the Act ruled that the prosecution has to prove the charge under beyond reasonable doubt like any other criminal offence and that the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredient necessary to be established to record a conviction. 20. In the case of State of Kerala and Another vs. C.P. Rao, (2011) 6 SCC 450 the Apex Court reiterating its earlier dictum, vis-a-vis the same offences held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 21. In the recent enunciation by the Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in the case of B. Jayaraj vs. State of A.P. AIR 2014 SC (Supp.) 1837 in unequivocal terms that mere possession and recovery of the currency notes from an accused without proof of demand would not establish the offence under Section 7 as well as Section 13(1) (d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act, qua Section 20 of the Act, which permits a presumption as envisaged therein it has been held that while it is extendable only in respect of the offence under Section 7 and not the offence under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 22. In the case of Central Bureau of Investigation(supra), which was pertaining to Section 6 of the P.C. Act, 1947, the Apex Court has held and observed in paras 9, 10, 11, 14, 15, 16, 17 and 18 as under:- 9. An endeavour was made before us to show that the sanction ordered by the Controller of Defence Accounts is quite valid and is good enough for prosecuting the accused but we do not think it necessary to consider the merits of that aspect. In these appeals we are only deciding the question whether it was open to the Court of appeal to reverse a conviction and sentence passed by the trial Court on the mere premise that there was no valid sanction to prosecute. In this connection a reference to S. 465 of the Code of Criminal Procedure is appropriate. It reads thus: “465. In this connection a reference to S. 465 of the Code of Criminal Procedure is appropriate. It reads thus: “465. Finding or sentence when reversible by reason of error, omission or irregularity:- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity; in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” (Emphasis supplied) 10. A Court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the Court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate Court. In Kalpnath Rai vs. State through CBI, (1997) 8 SCC 732 : 1997 AIR SCW 4166 : AIR 1998 SC 201 : 1998 Cri. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate Court. In Kalpnath Rai vs. State through CBI, (1997) 8 SCC 732 : 1997 AIR SCW 4166 : AIR 1998 SC 201 : 1998 Cri. L.J. 369, this Court has observed in paragraph 29 thus: “Sub-section (2) of S. 465 of the Code is not a carte blanche for rendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The sub-section only says that the Court shall have regard to the fact that objection has been raised at the earlier stage in the proceedings. It is only one of the considerations to be weighed but it does not mean that if objection was raised at the earlier stage, for that very reason the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial.” 11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant, because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a sur-plusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in S. 465 of the Code of Criminal Procedure. 14. So “unless a different intention appears” in the 1988 Act the repeal of the 1947 Act will not affect any penal liability incurred or any legal proceedings or remedy in respect of any right acquired under the 1947 Act. However, if a different intention can be discerned from the 1988 Act, such intention will have overriding effect. 14. So “unless a different intention appears” in the 1988 Act the repeal of the 1947 Act will not affect any penal liability incurred or any legal proceedings or remedy in respect of any right acquired under the 1947 Act. However, if a different intention can be discerned from the 1988 Act, such intention will have overriding effect. It is said in sub-section (2) of S. 30 of the 1988 Act that any action taken under or in pursuance of the repealed Act such action will be deemed to have been taken under the corresponding provisions of the new Act. 15. It is noticeable that no specific provision was incorporated in the 1947 Act regarding appeal and revision and hence the appeal and revision were entirely governed by the provisions of the Code of Criminal Procedure. However, under the 1988 Act there is a special provision regarding appeal and revision which is incorporated in S. 27. Section 27 is extracted below: “27. Appeal and revision - Subject to the provisions of this Act, the High Court may exercise, so far as they may be applicable, all the powers of appeal and revision conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a High Court as if the Court of the Special Judge were a Court of Session trying cases within the local limits of the High Court.” 16. Thus the powers of appeal and revision of the High Court conferred by the Code of Criminal Procedure shall be “subject to the provisions of” the 1988 Act. It is worthwhile to notice that a trammel has been imposed on a Court of appeal and revision under Section 19(3)(a) of the 1988 Act. It reads thus: (only material portion is extracted): “Notwithstanding anything contained in the Code of Criminal Procedure, 1973 - no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. Explanation - for the purposes of this section (a) error includes competency of the authority to grant sanction.” 17. Explanation - for the purposes of this section (a) error includes competency of the authority to grant sanction.” 17. It is a further inroad into the powers of the appellate Court over and above the trammel contained in S. 465 of the Code which has been dealt with supra. Under S. 19(3)(a) no order of conviction and sentence can be reversed or altered by a Court of appeal or revision even “on the ground of the absence of sanction” unless in the opinion of that Court a failure of justice has been occasioned thereby. By adding the Explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional Courts are debarred from interfering with the conviction and sentence merely on that ground. 18. Thus the legal position to be followed, while dealing with the appeal filed against the conviction and sentence of any offence mentioned in 1947 Act, is that no such conviction and sentence shall be altered or reversed merely on the ground of absence of sanction, much less on the ground of want of competency of the authority who granted the sanction. 23. In the case of Mansukhlal Vithaldas Chauhan (supra), the Apex Court has held and observed in paras-17, 18 and 19 as under:- 17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government Servants against frivolous prosecutions. Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, AIR 1979 SC 677 . Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the innocent but not a shield for the guilty. 18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, materials and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. Jaswant Singh vs. State of Punjab, 1958 SCR 762 : AIR 1958 SC 124 and State of Bihar vs. P.P. Sharma, 1991 Cri. L.J. 1438 : 1991 AIR SCW 1034. 19. Since the validity of “Sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution. 24. Considered the contentions raised by both the sides and the materials placed on record. It appears from the evidence of Jivanbhai Vastabhai Sitapara, PW-1 at Exhibit 48 that he has, while narrating the fact that Bachubhai and Labhubhai are his brothers and they are plying rickshaw, deposed that on 15.09.1991, Babubhai was standing with his rickshaw in rickshaw stand of Usha Cinema and at that time, police constable of concerned Police Station has raided the place and arrested certain persons and at that time, his younger brother Labhubhai ran away from that place. It is deposed by this witness that when he went to the scene of offence, he found that the constable-Nathabhai (accused No. 1) was counting the tickets which were found from Babubhai and, thereafter, he was asking Babubhai as to who were the sharers thereof and at that time, Babubhai told that nobody has sharer in the tickets. He has deposed that at that time, Labhubhai had run away from the place and due to that the constable has told him that though Labhubhai has run away from the place, he would file the case of half of the tickets against him. At that time, the complainant told the constable that Labhubhai is his brother and he is innocent and, therefore, not to take action against him and at that time, the accused-Nathabhai has told that Labhubhai is his brother and he would take necessary action and would file cases against him and if no consideration is paid by him then he will also file case of prohibition. It is deposed by this witness that at that time, Babubhai requested the constable not to take any action as both are line boys. According to this witness, accused has told that if Rs. 1,000/- is not paid, he would not help him. According to this witness, he himself told the constable that he would meet him in next morning. 24.1 He has further deposed that he has met on the next day and told his brother Labhubhai that accused-Nathabhai is demanding Rs. 1,000/- for not filing false case against him and at that time, Labhubhai told him that he has no such money and some negotiation be made with him. He has deposed that thereafter, ultimately, Nathabhai has reduced the amount from Rs. 1,000/- to Rs. 500/-. This witness told the accused that he would pay the same on 19th September and would bring his brother. It is his version that as he did not want to pay anything to Nathabhai, he approached the ACB office on 19.09.1991 and after narrating, the procedure made by the ACB in the ACB Office, he has deposed that he along with panch No. 1 went to Usha Cinema. It is his version that as he did not want to pay anything to Nathabhai, he approached the ACB office on 19.09.1991 and after narrating, the procedure made by the ACB in the ACB Office, he has deposed that he along with panch No. 1 went to Usha Cinema. He has deposed that he was instructed by the Police Inspector that unless and until the occasion to pay the amount has arisen, he should not touch the currency notes which were smeared in the anthracene powder and to give signal after acceptance of the amount by the accused. 24.2 This witness has further deposed that at 8.00 o’clock in the evening, Nathabhai came to receive the amount and Nathabhai has demanded the amount and told him that “you have to pay the amount and give it.” He has deposed that therefore, he has tendered the amount to Nathabhai and at the time, the accused did not touch the amount and told him to handover it to Tapubhai and, therefore, Tapubhai has accepted this amount. According to this witness, thereafter, he has given signal to the ACB and, therefore, the raiding party came there and, thereafter, the panchnama was prepared therein. 24.3 Now, on perusal of cross-examination of Jivanbhai, it reveals that he has admitted that he told the ACB that he was going to pay the amount on the next day and, therefore, the officer of the ACB has called him on the next day and the complaint at Exhibit 49 was written by the police at that time and his signature was taken. He has admitted that he has put the currency notes in his pant pocket. He has stated that he does not know whether the police has asked anything to the panchas or not. He has deposed that there was no search of everybody in the Police Station. He has admitted that the police has instructed him to keep present Labhubhai. That after coming near the door of the cinema, the panch has asked him where is Labhubhai and at that time, after seeing one person standing there, he told that he is his brother, but he was not his real brother. He has also deposed that accused No. 2 is Plant Operator in Dharam Cinema (earlier known as ‘Usha Cinema’). That after coming near the door of the cinema, the panch has asked him where is Labhubhai and at that time, after seeing one person standing there, he told that he is his brother, but he was not his real brother. He has also deposed that accused No. 2 is Plant Operator in Dharam Cinema (earlier known as ‘Usha Cinema’). He has deposed that he knew Tapubhai since many years prior to the incident and there was money transaction with him. He has deposed that at the time of incident, he has borrowed Rs.1500/- from accused No. 2 and he has paid Rs. 500/- and remaining amount was to be paid to accused No. 2 by him. He has deposed that Tapubhai told Nathabhai to see to it that his amount should be paid by the complainant and due to that Nathabhai was demanding such money frequently. He has deposed that on the day of incident, he has to pay Rs. 500/- to Tapubhai and Nathabhai has asked him whether he has brought money or not and at that time, he has ascertained that he has brought Rs. 500/- and at that time, accused Nathabhai told him to pay it to Tapubhai as it belongs to Tapubhai. 24.4 This witness-complainant has deposed that he does not know that at the time of incident, his brother Labhubhai had run away. However, he has deposed that he has narrated in his complaint that at the time of raid, his brother Labhubhai ran away. He has deposed that Tapubhai demanded Rs. 500/- since last eight months and Tapubhai informed Nathabhai that he (complainant) was not paying his money and, therefore, Nathabhai insisting the complainant to give the amount to Tapubhai. He has admitted that on the day of incident, he went to tender the amount to Tapubhai which was payable to Tapubhai and that was the amount, which he has borrowed from Tapubhai. 25. Now, on perusal of the evidence of this witness, it clearly transpires that this witness has destroyed the prosecution case in his cross-examination. Now, it is well settled principle of law that while appreciating the evidence on record, the entire evidence i.e. entire deposition which include chief-examination, cross-examination and re-examination, if any, of the witness to be taken into consideration. Now, on perusal of the evidence of this witness, it clearly transpires that this witness has destroyed the prosecution case in his cross-examination. Now, it is well settled principle of law that while appreciating the evidence on record, the entire evidence i.e. entire deposition which include chief-examination, cross-examination and re-examination, if any, of the witness to be taken into consideration. Now, on appreciation of the deposition of complainant, it clearly transpires that he has changed his version in his cross-examination and has specifically stated that whatever amount was tendered by him was pertaining to the outstanding amount payable to Tapubhai by him. At this stage, it is pertinent to note that this witness has entirely changed his version in cross-examination. Though he has go-bye his version in chief-examination, in his cross-examination, the prosecution did not choose to re-examine him. The prosecution ought to have re-examined him on the contradictory statement made in the chief-examination as well as cross-examination. 26. Further, it also appears that the Trial Court has observed in its judgment and order that during the cross-examination, he was tutor it. However, the facts remains that he has given go bye to their own version of the complaint and chief-examination, in cross-examination. 27. On perusal of the evidence of Dineshkumar Narmadashankar Thaker, PW-2 at Exhibit 52, while narrating the procedure adopted at ACB office, regarding first part of panchnama and experiment of ultraviolet lamp and anthracene powder and instruction given to panchas and raiding party and he is having introduced by the officer of the ACB to the complainant, has stated that after preparation of the panchnama, raiding party including himself went to the place where the other members of the raiding party were standing nearby. He has deposed that he along with the complainant went near the scooter-cycle stand of Dharam Cinema. He has deposed that when they reached near the scooter stand within 5-10 minutes, the complainant’s brother Labhubhai came there. It is his version that when they were standing near the scooter stand within 15-20 minutes, one police constable was coming from a distance and at that time, the complainant told him that the person, who first came, is a police constable Nathabhai. He has deposed that after arriving there, Nathabhai has asked Jivanbhai-complainant that whether he has arranged the money. Thereupon, the complainant answered in the affirmative and that he has arranged the money. He has deposed that after arriving there, Nathabhai has asked Jivanbhai-complainant that whether he has arranged the money. Thereupon, the complainant answered in the affirmative and that he has arranged the money. He has deposed that at that point of time, accused Nathabhai inquired regarding him and at that point of time, the complainant told him that he was his friend and if in case there is need of bail bond for his brother Labhubhai, that person is called for bail. It is his version that at that time, Nathabhai told the complainant that let Labhubhai be remained there and both of them followed with him and, thereafter, they went in the cycle stand, where the table and chair were lying and at that time, Nathabhai demanded the amount and, therefore, the complainant tendered Rs. 500/- to Nathabhai which Nathabhai accepted and, thereafter, Nathabhai gave this amount to the person, who was sitting in the chair and the amount was tendered to that fellow (Tapubhai) and Nathabhai told Tapubhai to receive the amount and he may leave from the place. It is his version that thereafter, Tapubhai put the amount in his pant pocket and was about to leave, due to signal given by the complainant, the raiding party came there. He has stated that thereafter, the panchnama of second part was prepared. He was told to get the amount collected from the pocket of Tapubhai and accordingly, he received the amount from the right side pant pocket of Tapubhai. 27.1 During his cross-examination, he has admitted that they were not present, when the complainant tendered his complaint. He has deposed that he was not knowing Labhubhai and he cannot say as to the person who was standing there was really Labhubhai or not. He has also deposed that no conversation between the complainant and accused were made in his presence. He has stated that there was no conversation regarding purpose of tendering the amount. 27.2 Thus, on evaluation of the evidence of this witness, it reveals that according to him, the amount was tendered by the complainant to accused No. 1 who accepted the same and, thereafter, accused No. 1 handed over it to accused No. 2 i.e. Tapubhai. He has stated that there was no conversation regarding purpose of tendering the amount. 27.2 Thus, on evaluation of the evidence of this witness, it reveals that according to him, the amount was tendered by the complainant to accused No. 1 who accepted the same and, thereafter, accused No. 1 handed over it to accused No. 2 i.e. Tapubhai. On conjoint reading of the evidence of this witness as well as of the complainant referred to hereinabove, it is crystal clear that according to the complainant, the amount was not received by Nathabhai and Nathabhai directed him to pay directly to Tapubhai. Whereas, according to panch witness, the amount was accepted by Nathabhai and, thereafter, Nathabhai has handed over the same to Tapubhai. It also reveals from the evidence of panch witness that no conversation was made between the complainant and the accused at the relevant time. At this juncture, it is also pertinent to note that the panch witness has also destroyed the case of the prosecution in his cross-examination and he has given contradictory version in his chief-examination and cross-examination. However, the prosecution has not chosen to re-examine this witness. On reading of the entire evidence of this witness, it transpires that though in the chief-examination, he has supported the case of the prosecution to some extent, but he has added facts of tendering amount to Nathabhai and acceptance thereof by Nathabhai. This fact has been brought on record by the prosecution itself in his chief-examination. Thus, this fact is accepted by the prosecution. 28. On perusal of the evidence of Natvarlal Narshibhai Nagar, PW-3 at Exhibit 56, it appears that he is raiding officer, who has carried out everything from registering the complaint till filing of the charge-sheet. While narrating the entire proceedings including preparation of first part of panchnama as well as second part of panchnama and the facts of instruction given to all and application of anthracene powder on currency notes and arresting the accused and filing the charge-sheet, he has supported the prosecution case. While narrating the entire proceedings including preparation of first part of panchnama as well as second part of panchnama and the facts of instruction given to all and application of anthracene powder on currency notes and arresting the accused and filing the charge-sheet, he has supported the prosecution case. On reading of his chief-examination, it appears that according to his version especially para-4 (Page No. 167 of the paper-book) that the amount was paid by the complainant to the policeman and the policeman has tendered the same to one person, who was sitting on the chair and when that fellow was leaving the place, the complainant has given signal and, thereupon, the raiding party had gone there. Thus, the version of this witness is that the amount was, initially, accepted by the accused No. 1-Nathabhai and he has tendered it to accused No. 2-Tapubhai. It also reveals from his chief-examination that at the place of raid, the experiment of ultraviolet lamp was carried out on the hands of accused No. 1- Nathabhai and sign of anthracene powder was found on the finger tips of both hands of Nathabhai and the sign was found on the right hand finger tips of Tapubhai. It is his version that the hands of panch No. 1 were also seen in ultraviolet lamp and at that point of time, the sign of anthracene powder was found on the finger tips of panch No. 1. During his chief-examination, certain documentary evidence referring to the police record and arrest panchnama as well as muddamal receipt and the complaint filed by the accused against the brother of the complainant have been produced. 28.1 During his cross-examination, he has admitted that the anthracene power is not a conclusive proof. He has admitted that he was not in a position to hear the conversation between the accused and the complainant. He has admitted that the complaint was written on plain paper. He has denied the suggestion of the defence that accused No. 2 has lend money to the complainant and when he was demanding his amount, the complainant was not paying it and he had requested accused No. 1 to see to it that the complainant to pay the amount. He has denied the suggestion that the amount was payable by the complainant to accused No. 2. He has denied the suggestion that the amount was payable by the complainant to accused No. 2. He has denied the suggestion that there was no conversation regarding purpose of tendering the money. He has deposed that he does not know the brother of the complainant and at the time of raid, the brother of the complainant was not present. 28.2 Now, on perusal of the evidence of this witness, it is clearly found that he has carried out the investigation on the complaint, which was received by him and he has done everything from recording of the complaint till filing of the charge-sheet. 29. On perusal of the entire evidence on record, it is pertinent to note that there are contradictory versions of the complainant and the panch witness. It also reveals that the accused side has put their defence regarding the fact that there was money transaction between the complainant and accused No. 2 -Tapubhai and the complainant was to repay outstanding amount to Tapubhai (accused No. 2). 30. At this juncture, it is pertinent to note that the submissions made on behalf of learned Additional Public Prosecutor that the defence has not examined any witnesses and there is no evidence on record to prove its defence by the accused is concerned, it is pertinent to note that the accused can put his defence by way of cross-examination of the prosecution witnesses and there is no straitjacket formula that the defence should examine independent witnesses. The defence of the accused could be brought on record by way of putting question in the cross-examinations of the prosecution witnesses. Now, in this case, since from the very beginning i.e. examination of the complainant, the accused have put up their defence in cross-examination which has been accepted by the complainant himself that he had to pay the outstanding amount to Tapubhai as he has earlier borrowed the amount from Tapubhai. The accused has also narrated this fact in further statement recorded under Section 313 of the Code of Criminal Procedure. It is pertinent to note that the prosecution has to prove its case on the principle of beyond reasonable doubt. The accused has also narrated this fact in further statement recorded under Section 313 of the Code of Criminal Procedure. It is pertinent to note that the prosecution has to prove its case on the principle of beyond reasonable doubt. Whereas, the accused has to prove his defence on principle of the “preponderance of probability.” Thus, in the present case, on perusal and reappreciation of the entire evidence, it is clearly found that the accused side has been able to substantiate their defence by way of cross-examination of the prosecution witness. 31. Now, on perusal of the impugned judgment and order, it clearly transpires that the Trial Court has misread the entire evidence on record and has committed serious error of facts and law, in convicting the accused No. 1-Nathabhai. Therefore, the order of conviction relating to accused No. 1 is not sustainable in the eyes of law. However, the acquittal of Tapubhai (accused No. 2) is proper. 32. It is one of the grounds raised by accused No. 1 that in this case, sanction was not produced and, therefore, the Trial Court ought not to have taken into consideration the case of the prosecution as in absence of legal sanction no proceedings could be initiated against the accused. Whereas, the contention of the prosecution is that even if no consent is produced, as the accused side has not taken any objection during the course of trial of the case by the Trial Court, the said ground cannot be raised in the appeals. For this purpose, the prosecution has relied upon the aforesaid decisions. 33. At this juncture, it is worthwhile to refer to the provisions of Section 19 of the P.C. Act, 1988 which reads as under:- 19. Previous sanction necessary for prosecution - (1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction - [save as otherwise provided in the Lokpal and Lokayukta Act, 2013] (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government. (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government of that Government. (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority; such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973:- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice. (c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation - For the purposes of this section:- (a) error includes competency of the authority to grant sanction. (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature. 34. Explanation - For the purposes of this section:- (a) error includes competency of the authority to grant sanction. (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature. 34. On analysis of the aforesaid provisions contained in Section 19 of the P.C. Act, it is crystal clear that under Sub-Section (1) of Section 19, the sanction is pre-condition for taking cognizance by the concerned Court. It means that at the initial stage, at the Trial Court leveled, the concerned Court has to see to it that the sanction of prosecution under Section 19 is produced by the prosecution in the matter and it has also been taken into consideration that whether the sanction is valid or not. However, Sub-Section (3) of Section 19 is material provision which relates to power of the Appellate Court. It is specifically provided in Sub-Section (3) of Section 19 that the Court in appeal cannot reverse the judgment of the Trial Court only on the basis of absence of or any error, omission or irregularity in, the sanction unless the Court finds that the failure of justice has, in fact, been occasioned thereby. Thus, the Appellate Court has very much limited power to interfere with the judgment of the Trial Court in case of absence of or any error, omission or irregularity in, the sanction required under Section 19(1) of the Act. 35. Admittedly, in this case, no sanction order has been produced during the course of trial. It appears from the judgment and order of the Trial Court that he has in cursory manner referred in page-45 (Page No. 245 of the compilation) to the effect that no objection has been raised in the matter regarding validity or otherwise of sanction and, therefore, it was not dealt with. In view of this peculiar fact that the accused has not raised such plea before the Trial Court and in view of Sub Section (3) of Section 19 of the P.C. Act, this Court cannot go into that aspect of the matter at the appellate stage. 36. In view of this peculiar fact that the accused has not raised such plea before the Trial Court and in view of Sub Section (3) of Section 19 of the P.C. Act, this Court cannot go into that aspect of the matter at the appellate stage. 36. Now, on re-appreciating the entire evidence on record as aforesaid, it is crystal clear that the Trial Court has not committed any serious error of law and facts in acquitting accused No. 2-Tapubhai Keshavji Pedhaliya for the alleged offence. However, the order of conviction as rendered by the Trial Court in respect of the accused No. 1-Nathabhai Meghabhai Vinzuda and imposition of sentence on him is not sustainable in the eyes of law and it requires to be set aside to that extent. 37. (1) In view of the above, Criminal Appeal No. 1129 of 2005 filed by accused No. 1- Nathabhai Meghabhai Vinzuda is allowed. The judgment and order of conviction and sentence passed by learned Additional Special Judge, 6th Fast Track Court, Rajkot in Special A.C.B. Sessions Case No. 4 of 1992 against accused No. 1-Nathabhai Meghabhai Vinzuda is hereby quashed and set aside. The appellant-Nathabhai Meghabhai Vinzuda is acquitted from the charges levelled against him for the offence under Sections 7, 13(1)(d)(i)(ii)(iii) and 13(2) of the Prevention of Corruption Act. Fine, if any, paid by the appellant-accused No. 1 to be refunded to him. (2) Criminal Appeal No. 2486 of 2005 filed by the State against the acquittal of accused No. 2-Tapubhai Keshavji Pedhaliya and Criminal Appeal No. 2487 of 2005 filed by the State for enhancement of punishment imposed upon accused No. 1-Nathabhai Meghabhai Vinzuda are hereby dismissed. 38. Bail bond stands cancelled. Record and Proceedings to be sent back to the Trial Court forthwith.