THE STATE OF GUJARATversusNAVINBHAI CHANDRAKANT JOSHI ETC.

                         [2018] 9 S.C.R. 329                            329


                    THE STATE OF GUJARAT                                A
                                 v.
          NAVINBHAI CHANDRAKANT JOSHI ETC.
              (Criminal Appeal Nos. 895-896 of 2018)
                           JULY 17, 2018                                B
        [RANJAN GOGOI AND R. BANUMATHI, JJ.]
       Prevention of Corruption Act, 1988 – ss. 7 and 13(1)(d) –
Illegal gratification – On facts, accused no. 1 demanded bribe from
the complainant, trap arranged and tainted currency notes seized
                                                                        C
from accused no. 2 – Trial court held that the demand and
acceptance of illegal gratification proved by the prosecution by
evidence of the complainant and prosecution witness as also
presence of anthracene powder with the accused – Conviction of
both the accused u/s. 7 and 13(1)(d) and sentenced accordingly –
High Court holding that there was no recovery from accused no. 1,       D
acquitted the accused – On appeal, held: Since it is established
that accused was possessing the bribe money, it was for them to
explain that how the bribe money has been received by them and if
he failed to offer any satisfactory explanation, it would be presumed
that he has accepted bribe – Accused have not offered any
                                                                        E
explanation to rebut the presumption u/s. 20 – Evidence of the
complainant that accused demanded bribe appears to be natural –
When the findings recorded by the trial court is based upon
appreciation of evidence, the High Court was not right in reversing
the judgment of the trial court – Thus, the order passed by the High
Court set aside.                                                        F
      Allowing the appeals, the Court
     HELD: 1.1 It is well-settled that to establish the offence
under Sections 7 and 13(1)(d) of the Prevention of Corruption
Act, 1988 particularly those relating to the trap cases, the
prosecution has to establish the existence of demand as well as         G
acceptance by the public servant. [Para 8] [334-B]
     1.2 From the evidence of PW-1, demand by accused No.1
and accused No.2 is proved by the prosecution. The same is
corroborated by the test of the ultra violet light showing the
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330            SUPREME COURT REPORTS                       [2018] 9 S.C.R.


A     presence of anthracene powder on the shirt worn by accused No.2
      and the right hand of accused No.1. Evidence of PW-1 is
      corroborated by the evidence of PW-3. The trial court recorded
      the findings that the evidence of PWs 1 and 3 is consistent and
      they are reliable witnesses. Upon appreciation of evidence,
      adduced by the prosecution, the trial court convicted accused
B
      Nos. 1 and 2. [Para 9] [335-A-C]
             1.3 The High Court acquitted the accused on the ground
      that there was no recovery from accused No.1 and that the demand
      by the accused persons has not been established by the
      prosecution. The High Court took the view that accused No.2
C     had no idea for what purpose the money was given to accused
      No.1 by PW-1 and therefore, it cannot be said that accused No.2
      had accepted the bribe amount upon demand to PW-1. The High
      Court was not right in brushing aside the evidence of PW-1 who
      has clearly stated that accused No.1 demanded bribe of Rs.1,000/
D     - and the same was settled for Rs.500/- for expediting the matter
      for conversion of the plot for non-agricultural purpose. Recovery
      of the tainted currency notes from accused No.2 and the presence
      of anthracene powder in the right hand of accused No.1 and the
      pocket of the shirt of accused No.2 clearly show that they acted
      in tandem in the demand and acceptance of the bribe amount.
E     When the demand and acceptance of illegal gratification has been
      proved by the evidence of PWs 1 and 3, the High Court was not
      right in holding that the demand and acceptance was not proved.
      [Para 10][335-C-F]
             1.4 It is settled law that the presumption raised under
F     Section 20 of the Act is a rebuttable presumption, and that the
      burden placed on the appellant for rebutting the presumption is
      one of preponderance of probabilities. Since it is established that
      the accused was possessing the bribe money, it was for them to
      explain that how the bribe money has been received by them and
G     if he fails to offer any satisfactory explanation, it will be presumed
      that he has accepted the bribe. The accused have not offered any
      explanation to rebut the presumption under Section 20 of the
      Act. On the other hand, from the evidence of PW-1 that accused
      No.1 demanded the bribe appears to be natural. The application
      for approval of revised plan was earlier rejected. When the
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 STATE OF GUJARAT v. NAVINBHAI CHANDRAKANT JOSHI                       331


complainant and his advocate met TDO and on whose direction            A
PW-1 has paid the requisite fine amount, the file has to necessarily
move. It was at that point of time accused No.1 demanded bribe
amount from PW-1. While appreciating the evidence, the High
Court should have given proper weight to the views of the trial
court as to the credibility of all evidence of PWs 1 and 3. When
                                                                       B
the findings recorded by the trial court is based upon appreciation
of evidence, the High Court was not right in reversing the
judgment of the trial court. Thus, the impugned judgment of the
High Court is set aside and conviction of accused No.1 and 2
under section 7 and section 13(1)(d) of the Act, is affirmed.
[Paras 11, 12, 14] [335-G-H; 336-C-F, H; 337-A]                        C
      1.5 So far as the sentence of imprisonment is concerned
for conviction under Section 13(1)(d) of the Act, the trial court
imposed sentence of imprisonment of two years upon each of the
accused. The occurrence was of the year 1991 that is about 27
years ago. Considering the passage of time, it appropriate to          D
reduce the sentence of imprisonment of two years to the statutory
minimum imprisonment of one year. [Para 13] [336-F-H]
      B. Jayaraj v. State of A.P. (2014) 13 SCC 55 : [2014] 4
      SCR 554 ; C.M. Girish Babu v. C.B.I. Cochin, High
      Court of Kerala (2009) 3 SCC 779 : [2009] 2 SCR                  E
      1021 – referred to.
                       Case Law Reference
      [2014] 4 SCR 554           referred to          Para 8
      [2009] 2 SCR 1021          referred to          Para 11          F

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 895-896 of 2018.
      From the Judgment and Order dated 16.04.2015 of the High Court
of Gujarat at Ahmedabad in Criminal Appeal Nos. 477 and 478 of 2000.   G

       Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Vishakha, Ms. Mamta
Singh, Parthiv Goswami, Pradhuman Gohil, Vikash Singh, Ms. Taruna
Singh Gohil, Himanshu Chaubey, Vikash Singh, Advs. for the appearing
parties.
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332            SUPREME COURT REPORTS                          [2018] 9 S.C.R.


A           The Judgment of the Court was delivered by
            R. BANUMATHI, J. 1. Leave granted.
             2. These appeals arise out of the judgment dated 16.04.2015 passed
      by the High Court of Gujarat in Criminal Appeal Nos. 477-78 of 2000 in
      and by which the High Court reversed the verdict of conviction passed
B     by the trial court in Special (ACB) Case No.10 of 1992 and thereby
      acquitting the respondents under Section 7 and Section 13(1)(d) of the
      Prevention of Corruption Act, 1988 (‘the Act’).
             3. Briefly stated case of the prosecution is that accused
      No.1/respondent No.2 – J.D. Patel was working as a Junior Clerk in
C     Non-Agriculture Department and accused No.2/respondent No.1 –
      Navinbhai Chandrakant Joshi (Navinbhai) was also working in the same
      department. The complainant-Bhagwandas (PW-1) is a businessman
      dealing in the business of sugar as a wholesale retailer. The complainant/
      PW-1 was desirous of starting a new firm by name Purvi Monomal
D     Pvt. Ltd. for manufacturing of acrylic monomal and for this purpose, he
      has purchased a plot at Village Chhatral from one Sandeep Agrawal
      and Manoj Agrawal. The agreement to sell was executed in December,
      1990 and the sale deed was executed in March, 1991. Though the original
      owners of the plot had got the plot converted into non-agricultural plot
      for different purpose, PW-1 had to place the revised plan for necessary
E     Non-Agricultural permission.
             4. It is the case of PW-1 that accused No.1-J.D. Patel used to
      time and again assure PW-1 that he would see to it that the necessary
      permission is approved for the revised plan of PW-1. On 27.03.1991,
      PW-1 learnt through accused No.1-J.D. Patel that the revised plan of
F     PW-1 was not accepted and his application was rejected. On the direction
      of Taluka Development Officer (TDO), PW-1 paid a fine of Rs.368.30
      on 02.04.1991 in the office of Gram Panchayat, Chhatral and the receipt
      was produced before the TDO. At that time, PW-1 requested accused
      No.1-J.D. Patel with whom the file of PW-1 used to remain to ensure
G     that the matter is expedited at the earliest and necessary permission is
      accorded. At that point of time, accused No.1-J.D. Patel had demanded
      Rs.1,000/- for expediting the matter and ultimately it was settled for
      Rs.500/-. Accused No.1-J.D. Patel told PW-1 that he should pay him
      Rs.500/- on 03.04.1991 before recess hours and after he receives the

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 STATE OF GUJARAT v. NAVINBHAI CHANDRAKANT JOSHI                            333
                [R. BANUMATHI, J.]

money, he would see to it that necessary order of permission is passed in   A
favour of PW-1. PW-1 approached the ACB Office and lodged the
complaint against the accused. After registration of the case and after
following the procedural formalities, a trap was arranged. On 03.04.1991,
PW-1 went with PW-3-Devendra Kumar to accused No.1-J.D. Patel.
Accused No.1-J.D. Patel showed accused No.2-Navinbhai Joshi to PW-
                                                                            B
1 and asked PW-1 to give the money to accused No.2-Navinbhai Joshi
in the gallery. PW-1 paid the money to accused No.2-Navinbhai Joshi
who kept it in his left side shirt pocket and went near accused No.1-J.D.
Patel and sat there. On showing the pre-arranged signal, the police party
came inside and the currency notes were seized from accused No.2-
Navinbhai. On throwing the ultra violet light on the shirt of accused       C
No.2-Navinbhai Joshi, white colour of light blue light of anthracene
powder could be seen on the left side pocket of the shirt worn by accused
No.2-Navinbhai. Likewise, upon throwing of ultra violet light on the
hands of accused No.1-J.D. Patel, white shining of light blue colour of
anthracene powder could be seen on the four fingers of right hand of
                                                                            D
accused No.1. After completion of investigation, charge sheet was filed.
       5. To prove the guilt of the accused, prosecution has examined six
witnesses and produced documentary evidence. Upon consideration of
oral and documentary evidence, the trial court held that the demand and
acceptance of the illegal gratification was proved by the prosecution by
the evidence of PWs 1 and 3 and also by the presence of anthracene          E
powder in the shirt pocket of accused No.2-Navinbhai and the right
hand of accused No.1-J.D. Patel. The trial court convicted both accused
Nos. 1 and 2 under Sections 7 and 13(1)(d) of the Act and sentenced
each of them to undergo rigorous imprisonment for one year and two
years respectively and also imposed fine with default clause.               F
       6. Being aggrieved, the accused preferred appeals before the High
Court. The High Court, by the impugned judgment, reversed the judgment
of the trial court by holding that there was no recovery from accused
No.1-J.D. Patel and the demand and acceptance by the accused persons
has not been proved by the prosecution and acquitted the accused. Being     G
aggrieved, the State has preferred these appeals, challenging the
correctness of acquittal.
      7. We have heard Ms. Hemantika Wahi, learned counsel appearing
on behalf of the State of Gujarat and Mr. Parthiv Goswami, learned
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334            SUPREME COURT REPORTS                           [2018] 9 S.C.R.


A     counsel appearing on behalf of the respondents. We have perused the
      impugned judgment and also the judgment of the trial court and other
      materials placed on record.
            8. It is well-settled that to establish the offence under Sections 7
      and 13(1)(d) of the Act, particularly those relating to the trap cases, the
B     prosecution has to establish the existence of demand as well as
      acceptance by the public servant. In B. Jayaraj v. State of A.P., (2014)
      13 SCC 55, it was held as under:-
            “7. Insofar as the offence under Section 7 is concerned, it is a
            settled position in law that demand of illegal gratification is sine
C           qua non to constitute the said offence and mere recovery of
            currency notes cannot constitute the offence under Section 7 unless
            it is proved beyond all reasonable doubt that the accused voluntarily
            accepted the money knowing it to be a bribe. The above position
            has been succinctly laid down in several judgments of this Court.
D           By way of illustration reference may be made to the decision in
            C.M. Sharma v. State of A.P. (2010) 15 SCC 1 and C.M. Girish
            Babu v. CBI (2009) 3 SCC 779.”
             9. In the present case, demand of the money by accused No.1-
      J.D. Patel and acceptance of the bribe amount by accused No.2-
E     Navinbhai at the behest of accused No.1-J.D. Patel is proved by the
      evidence of PWs 1 and 3. In his evidence, PW-1 had clearly stated
      about the demand by accused No.1-J.D. Patel for expediting the matter
      regarding the approval of revised plan for Non-Agricultural permission.
      PW-1 further stated that when he met accused No.1-J.D. Patel on
      03.04.1991, accused No.1-J.D. Patel told him that it would not look proper
F     if he takes the amount from PW-1 in office and showed him accused
      No.2-Navinbhai and asked PW-1 to give the money to him. PW-1 further
      stated that he went to the gallery and gave muddamal currency notes to
      accused No.2-Navinbhai. Thereafter, accused No.2-Navinbhai had gone
      near accused No.1-J.D. Patel and sat down. On showing the pre-
G     arranged signal, the police team went inside and questioned accused
      Nos.1 and 2. On search of accused No.2-Navinbhai, muddamal
      currencies were recovered from the left side shirt pocket. Throwing
      light of ultra violet lamp had shown presence of anthracene powder in
      the left side shirt pocket of accused No.2-Navinbhai. Likewise, throwing

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 STATE OF GUJARAT v. NAVINBHAI CHANDRAKANT JOSHI                               335
                [R. BANUMATHI, J.]

light of ultra violet lamp on the hands of accused No.1-J.D. Patel shown       A
the presence of anthracene powder. From the evidence of PW-1, demand
by accused No.1-J.D. Patel and accused No.2-Navinbhai is proved by
the prosecution. The same is corroborated by the test of the ultra violet
light showing the presence of anthracene powder on the shirt worn by
accused No.2-Navinbhai and the right hand of accused No.1-J.D. Patel.
                                                                               B
Evidence of PW-1 is corroborated by the evidence of PW-3-Devendra
Kumar. The trial court recorded the findings that the evidence of PWs
1 and 3 is consistent and they are reliable witnesses. Upon appreciation
of evidence, adduced by the prosecution, the trial court convicted accused
Nos. 1 and 2.
                                                                               C
       10. The High Court acquitted the accused on the ground that
there was no recovery from accused No.1-J.D. Patel and that the demand
by the accused persons has not been established by the prosecution.
The High Court took the view that accused No.2-Navinbhai had no idea
for what purpose the money was given to accused No.1-J.D. Patel by
PW-1 and therefore, it cannot be said that accused No.2-Navinbhai had          D
accepted the bribe amount upon demand to PW-1. The High Court was
not right in brushing aside the evidence of PW-1 who has clearly stated
that accused No.1-J.D. Patel demanded bribe of Rs.1,000/- and the
same was settled for Rs.500/- for expediting the matter for conversion
of the plot for non-agricultural purpose. Recovery of the tainted currency     E
notes from accused No.2-Navinbhai and the presence of anthracene
powder in the right hand of accused No.1-J.D. Patel and the pocket of
the shirt of accused No.2-Navinbhai clearly show that they acted in
tandem in the demand and acceptance of the bribe amount. When the
demand and acceptance of illegal gratification has been proved by the
evidence of PWs 1 and 3, the High Court was not right in holding that          F
the demand and acceptance was not proved. The findings of the trial
court did not suffer from any infirmity and the High Court was not justified
in setting aside the conviction of the accused.
       11. So far as the presumption raised under Section 20 of the Act
for the offence under Section 7 of the Act is concerned, it is settled law     G
that the presumption raised under Section 20 of the Act is a rebuttable
presumption, and that the burden placed on the appellant for rebutting
the presumption is one of preponderance of probabilities. In C.M. Girish

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336            SUPREME COURT REPORTS                          [2018] 9 S.C.R.


A     Babu v. C.B.I. Cochin, High Court of Kerala (2009) 3 SCC 779, this
      Court held as under:-
            “21. It is well settled that the presumption to be drawn under
            Section 20 is not an inviolable one. The accuse charged with the
            offence could rebut it either through the cross-examination of the
B           witnesses cited against him or by adducing reliable evidence…….
            22. It is equally well settled that the burden of proof placed upon
            the accused person against whom the presumption is made under
            Section 20 of the Act is not akin to that of burden placed on the
            prosecution to prove the case beyond a reasonable doubt…”
C            Since it is established that the accused was possessing the bribe
      money, it was for them to explain that how the bribe money has been
      received by them and if he fails to offer any satisfactory explanation, it
      will be presumed that he has accepted the bribe.
             12. In the case in hand, the accused have not offered any
D     explanation to rebut the presumption under Section 20 of the Act. On
      the other hand, from the evidence of PW-1 that accused No.1 demanded
      the bribe appears to be natural. The application for approval of revised
      plan was earlier rejected. When the complainant and his advocate met
      TDO and on whose direction PW-1 has paid the requisite fine amount,
E     the file has to necessarily move. It was at that point of time accused
      No.1 demanded bribe amount from PW-1.While appreciating the
      evidence, the High Court should have given proper weight to the views
      of the trial court as to the credibility of all evidence of PWs 1 and 3.
      When the findings recorded by the trial court is based upon appreciation
      of evidence, the High Court was not right in reversing the judgment of
F     the trial court.
            13. In so far as the sentence of imprisonment is concerned for
      conviction under Section 13(1)(d) of the Act, the trial court imposed
      sentence of imprisonment of two years upon each of the accused. The
      occurrence was of the year 1991 that is about 27 years ago. Considering
G     the passage of time, we deem it appropriate to reduce the sentence of
      imprisonment of two years to the statutory minimum imprisonment of
      one year.
            14. In the result, the impugned judgment of the High Court dated
      16.04.2015 in Criminal Appeal Nos.477-78 of 2000 is set aside and these
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 STATE OF GUJARAT v. NAVINBHAI CHANDRAKANT JOSHI                             337
                [R. BANUMATHI, J.]

appeals are allowed affirming the conviction of the accused Nos.1 and 2      A
under Section 7 and Section 13(1)(d) of the Act. The sentence of
imprisonment under Section 13(1)(d) of the Act imposed upon each of
the accused is reduced from two years to one year. The respondents/
accused Nos.1 and 2 shall surrender themselves to serve the remaining
sentence within two weeks from today, failing which, they shall be taken
                                                                             B
into custody.


Nidhi Jain                                                Appeals allowed.


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