TaxTMI 
TaxTMI 
2012 (5) TMI 603
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....month and further convicted them under Section 13(2) of the Act and sentenced them to undergo rigorous imprisonment for a period of one year with a fine of Rs. 5,000/- each, in default, to suffer simple imprisonment for a period of one month with the stipulation that both the sentences would be concurrent. 2. The broad essential facts of the prosecution case are that the complainant, Gajendra Jagatsinh Jadeja, was residing in Plot No. 1 in Virbhadranagar Society. As in the City Survey Office record, the name of his grandfather stood recorded in respect of the premises in question, the complainant in order to obtain the property card and the sketch of the same, went to the office of the City Survey Office, Bhavnagar on 11th March, 1994, to submit an application for the aforesaid purpose and he was asked by Mr. Jagani, Clerk in the said office to come on 15th of March, 1994. On the said date, the complainant at about 1.30 p.m. went to the City Survey Office and gave the application to Mr. Jagani, who asked him to hand over the application to Narendra Champaklal Trivedi, the appellant in Criminal Appeal No. 97 of 2012, sitting in the opposite room who told him that it would take a we....
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.... note. On those currency notes, light blue fluorescent marks were found with the numbers mentioned on the first part of the panchnama. On being asked about the rest of the money, Trivedi had said that he had given it to Chauhan. Experiment of U.V. Lamp was made on the hands and pockets of Trivedi and Chauhan and light blue fluorescent marks of anthrecene powder was found. The currency notes were tallied with the numbers mentioned on the first part of the panchnama. From both the accused-appellants, currency notes were recovered, marks of anthrecene powder were found and the second part of the panchnama was prepared. The Investigating Officer carried out further investigation, recorded the panchnama and after obtaining requisite sanction, he laid the chargesheet before the Competent Court on 25th of August 1994. 4. The learned trial Judge framed charges in respect of the offences that have been mentioned hereinbefore. The appellants pleaded not guilty and sought to be tried. 5. In order to bring home the charges levelled against the appellants, the prosecution examined number of witnesses and produced documentary evidence in support of the case. 6. The accused-appellants in their....
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....er made any demand from the complainant. He referred to various documents on record and the testimony of the witnesses that the charges levelled against the accused persons had been proven to the hilt and there was nothing on record which would remotely suggest that they had been falsely implicated. The relationship between the complainant and the ACB officer could not be taken into consideration to come to a conclusion that the complaint was false, malafide and the accused persons had been deliberately roped in. It was canvassed by him that the amount had been recovered from the pocket of Trivedi and the demand had been made by the accused Chauhan to handover the amount of illegal gratification to Trivedi. The offence was committed with the consent of both and the same had been established by the oral and documentary evidence. The learned counsel for the State gave immense emphasis on the version of the Panch witnesses, the scientific proof and the testimony of the trapping officer. The principle of presumption was pressed into service and the said contention was edificed by putting forth the stance that the cumulative effect of the evidence on record clearly satisfied the ingredi....
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....emand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the accused. This has been so stated in T. Subramanian v. The State of Tamil Nadu[AIR 2006 SC 836]. 13. The demand and acceptance of the amount as illegal gratification is the sine qua non for constituting an offence under the Act. It is also settled in law that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than the motive or reward as stipulated under Section 7 of the Act. It is obligatory on the part of the court to consider the explanation offered by the accused under Section 20 of the Act and the consideration of the explanation has to be on the anvil of preponderance of probability. It is not to be proven beyond all reasonable doubt. It is necessary to state here that the prosecution is bound to establish that there was an illegal offer of bribe and acceptance thereof. The same has to be founded on facts. In this context, we may refer with profit to the decision in M. Narsinga Rao v. State of A.P.[ (2001) 1 SCC 691] wh....
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....well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification." 17. In the case at hand, the money was recovered from the pockets of the accused-appellants. A presumption under Section 20 of the Act becomes obligatory. It is a presumption of law and casts an obligation on the court to apply it in every case brought under Section 7 of the Act. The said presumption is a rebuttable one. In the present case, the explanation offered by the accused-appellants has not been accepted and rightly so. There is no evidence on the base of which it can be said that the presumption has been rebutted. 18. The learned counsel for the appellant has submitted with immense force that admittedly there has been no demand or acceptance. To bolster the said aspect, he has drawn inspiration from the statement of the complainant ....
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..... As is demonstrable from the impugned judgment, the learned trial court has imposed the minimum sentence and the High Court has affirmed the same. 20. The submission of the learned counsel for the appellants, if we correctly understand, in essence, is that power under Article 142 of the Constitution should be invoked. In this context, we may refer with profit to the decision of this Court in Vishweshwaraiah Iron and Steel Ltd. V. Abdul Gani and Ors AIR 1998 SC 1895 wherein it has been held that the constitutional powers under Article 142 of the Constitution cannot, in any way, be controlled by any statutory provision but at the same time, these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in any statute dealing expressly with the subject. It was also made clear in the said decision that this Court cannot altogether ignore the substantive provisions of a statute. 21. In Keshabhai Malabhai Vankar v. State of Gujarat 1995 Supp (3) SCC 704 it has been held as follows: - "6. It is next contended that this Court in exercise of power under Article 142 of the Constitution has plenary power to reduce th....