R/CR.A/725/2011 JUDGMENT DATED: 16/04/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 725 of 2011

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

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Approved for Reporting Yes No

√

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PREMJIBHAI HIRABHAI GOHIL

Versus

STATE OF GUJARAT

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Appearance:

MR J.M. PANCHAL SENIOR ADVOCATE WITH MR VAIBHAV A VYAS for

the Appellant(s) No. 1

MR HARDIK DAVE PUBLIC PROSECUTOR WITH MS. MONALI BHATT

APP for the Opponent(s)/Respondent(s) No. 1

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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

Date : 16/04/2026

JUDGMENT

1.The present appeal has been filed under Section 27 of

the Prevention of Corruption Act, 1988 (for short the ‘Act’)

read with Section 374(2) of the Code of Criminal Procedure

Code, 1973 (for short ‘Cr.P.C.’) challenging the judgment and

order of conviction and sentence dated 30.05.2011 passed by

the learned Additional Sessions Judge, Ahmedabad (Rural)

Mirzapur, Ahmedabad in Special A.C.B. Case No.1-2/2005,

whereby appellant - accused came to be convicted under

Section 13(2) read with section 13(1)(e) of the Prevention of

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Corruption Act, 1988 (for short ‘P.C. Act’) and was ordered to

undergo two years simple imprisonment with fine of

Rs.10,000/- with default stipulation that in failure to pay the

fine amount, to suffer further six months simple

imprisonment.

1.1 The trial initially, was conducted against three accused

under sections 7 along with section 12, 13(1)(a)(e) and 13(2)

of the P.C. Act. Consequently, accused Nos.2 and 3, who were

brother-in-law and wife respectively of the appellant, were

acquitted from all the charges.

2.As per the prosecution case, the appellant - accused

during the period from 10.06.2002 to 01.10.2002, while

serving as Civil Judge (J.D.) and Judicial Magistrate, First

Class at Pardi, Valsad in abetment with accused No.2,

brother-in-law of accused No.1 and No.3 the wife of accused

No.1, while serving as a public servant, abused the position

and illegally demanded and accepted bribe from prosecution

witnesses.

2.1 Further it was alleged that Rs.7,00,000/- (Rupees Seven

Lakh) was received on 22.11.2002 from the resident of Rajkot,

Sumatilal and his wife Nilamben, by falsely representing the

same to be a gift and the immovable property situated within

the limits of Mangrol Nagar Palika bearing Survey No.7618

admeasuring 746.64 sq.mtrs. valued at Rs.5,51,100/- (Rupees

Five Lacs Fifty One Thousand One Hundred only) together

with a house thereon was purchased in the name of the wife

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of the appellant, the acquitted accused No.3, land valued at

Rs.26,23,200/- (Rupees Twenty Six Lacs Twenty Three

Thousand Two Hundred) and house Rs.9,49,750/- (Rupees

Nine Lakhs Forty Nine Thousand Seven Hundered Fifty only)

aggregating to Rs.35,72,950/- (Rupees Thirty Five Lacs

Seventy Two Thousand Nine Hundred Fifty), the said property

was referred as grossly disproportionate to the known sources

of income of appellant - accused No.1. Accused No.1 as public

servant in collusion with other accused, illegally, apart from

legal remuneration, accepted money and got the above valued

property transferred, while abusing the position of Civil Judge

(J.D.) and Judicial Magistrate (First Class), thereby committed

offence under section 7, 12, 13(1)(a)(e) and 13(2) of the

Prevention of Corruption Act, 1988.

2.2The prosecution alleged that appellant demanded Rs.4

Lacs for the cases of Shri Chemicals and Rs.3 Lacs for Shivam

Chemicals pending before his Court through advocate Shri

Pravinbhai, and the said advocate and one Shantibhai went to

Pardi and gave Rs.7 Lacs to Pradeepbhai (A2), brother-in-law

of appellant, and in evening the cases were disposed off.

2.3The conviction which followed for the appellant was for

the allegation that on 22.11.2002, Sobhnaben (A3), wife of

accused-appellant No.1, illegally obtained Rs.7 Lacs as gift

from P.W.18 – Nilamben Sumantilal Kamdar (Exh.92) and got

prepared false gift deed (Exh.91) dated 22.11.2002 and

purchased 746.68 sq. meter property in District Junagadh,

Village -Mangrol at secretariat road, City Survey No.7618

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valued at Rs.5,51,000/- and for that Rs.83,000/- court stamp

fees was used in the name of accused No.3. The price of the

property was assessed worth Rs.9,49,750/-, and the land

assessment by Town Controller of Collector Office, Junagadh

was as Rs.3,500/- per sq. Mtrs., worth Rs.26,23,200/- thus the

total price of the property was Rs.35,72,950/-.

2.4The complaints were made to the Vigilance Department

of this Court alleging that the appellant was habitually

accepting bribes and therefore was charged under section 7,

13(2) read with section 13(1)(a)(e) of the P.C. Act. Further,

the appellant was found to have purchased property in the

name of his wife – accused No.3 for the amount,

disproportionate to his known source of income, who

thereafter sold it.

3.Learned Senior Advocate Mr. J.M. Panchal assisted by

Advocate Mr. Vaibhav A.Vyas for the appellant – accused,

submitted that the case under Sections 7, 12 and Section

13(1)(a) of the P.C. Act has not been believed. The conviction

against the appellant is under Section 13(1)(e) read with

section 13(2) of the P.c. Act, where actually the demand

acceptance or recovery of any bribe money has not been

believed. The transaction by way of gift amount with P.W.17

and P.W.18 in the name of the wife of the appellant, who have

been acquitted in the matter is legal, as it was by way of

cheque and there was no transaction in cash. Senior Advocate

Mr. Panchal, thus, wanted to submit that none could enter

into the bribe or gratification by payment of cheque

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transaction. It is also submitted that since wife of the

appellant as accused No.3 was acquitted and when the

prosecution has accepted the acquittal by not filing appeal

against the wife of the appellant, nothing now remains against

the accused to consider his case for conviction, and submitted

that the witnesses examined by the prosecution have not been

declared hostile nor there is any re-examination, no

suggestion of any obligation of any parties of any work by the

appellant to prove that the amount received by the wife of the

appellant was in gratification of some judicial work done by

the appellant.

3.1 Senior Advocate Mr. Panchal further submitted that the

gift deed is a Notarized document, the pass-book of P.W.17

and P.W.18 had also been proved by the prosecution and the

details have come on record that the consideration was love

and affection for gift transaction. Senior Advocate Mr.

Panchal stated that the entries in the pass-book by way of

cheque transaction could itself prove that there was no any

case of collusion with the parties or with the Bank nor any

case of forgery to create any suspicion against the accused.

No contradiction has been brought in the statement of P.W.18

and as per the evidence there is no role of the present

appellant as accused No.1, nor acquitted accused No.3 of any

of the transaction in connection with the offence under

Section 13(1)(e) of the P.C. Act. There is no case of abetment

by acquitted accused Nos.2 and 3.

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3.2Senior Advocate Mr. Panchal submitted that the source

of income were proved by the prosecution themselves and

thus, it becomes the known source of income to the

prosecution and therefore no burden would shift on the

accused to prove any further facts when it becomes explicit on

record that the transaction were legal.

3.3Learned Senior Advocate Mr. Panchal stated that certain

witnesses were examined to prove that the properties

purchased by the wife of the appellant were under valued.

However, it is stated by Senior Advocate Mr. Panchal that the

evidence comes on record that the sale transaction was in

accordance to the Government approved Jantri price and the

stamp was paid on the basis of the Jantri. The amount of the

sale deed had been paid by the cheque, thereafter the said

property was already sold, so any valuation thereafter done by

the Deputy Executive Engineer and the Town Planner, P.W.21

and P.W.22, would not connect the property at the relevant

time of the purchase.

3.4Learned Senior Advocate Mr. Panchal submitted that

had there been a case of under valuation, then the State

would have issued notice and would not have accepted the

sale deed for registration. Senior Advocate Mr. Panchal stated

that the prosecution by examining the witnesses P.W.17 and

18 and relying upon the gift deed and the Bank transaction

wants the Court to believe that the property was purchased

from the gift amount. There is no suggestion that the gift deed

or the sale deed were created or use as real to camouflage

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any transaction.

3.5Senior Advocate Mr. Panchal thus, submitted that the

Court has to only rely upon the testimony of the witnesses

examined by the prosecution to consider that the accused had

already discharged his burden and nothing could be proved of

any sham transaction and when the prosecution themselves

have proved the legal transaction by way of examining the

witnesses, the case would not even assumed under Section

13(1)(e) read with Section 13(1)(2) of the P.C. Act against the

appellant.

3.6Prosecution by examining the vendor, P.W.20, Senior

Advocate Mr. Panchal stated that it does not come on record

that the property was under valued. There is no suggestion

that though value of the property was higher, the sale deed

was executed for a lesser amount. Senior Advocate Mr.

Panchal submitted that the record itself shows that the

premises was old, which was of more that 60 to 65 years,

there was no renovation or any changes made by the

appellant or his wife in the property to consider it as under

valued. Mr. Panchal further submitted that there is no system

or standard at all for legal valuation of property and general

public would rely only on the Jantri issued by the State

Governemnt and when the sale deed is as per the Jantri, then

no assumption can be made for any under valuation of the

property.

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3.7Senior Advocate Mr. Panchal submitted that the

examination of the witnesses P.W.21 and P.W.22, as Deputy

Executive Engineer and the Town Planner would be irrelevant

since such valuation could be made only for the Government

land when government interest is involved and then the

witnesses could have relied upon about the guidelines

approved internally for valuing the property and thus,

submitted that the testimony of the witnesses P.W.21 and

P.W.22 cannot be taken into consideration to determine the

value of the property purchased by the wife of the appellant.

Senior advocate Mr. Panchal thus, submitted that it cannot be

said that the valuation of the property is illegal, arbitrary,

against the norms and principles and directives of the State

Government.

3.8Senior Advocate Mr. Panchal submitted that the case

against the appellant and the co-accused as the brother-in-law

and the wife has not been believed under Section 7 of the P.C.

Act, when the wife has been acquitted and when the appeal

has been filed by the State against the acquittal, the property

in the name of the wife should not be considered for charge

against the present appellant under Section13(1)(e) of the

P.C. Act.

3.9Senior advocate Mr. Panchal has also submitted that it is

not the case of the prosecution that some person has given

the gift to the wife as a bribe on behalf of the appellant Judge.

It is also not the case of the prosecution that the Judge has

favoured any person and had sought consideration in the form

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of cash or purchase of the property.

3.10According to Senior advocate Mr. Panchal, the

prosecution themselves have proved the case for the accused.

The prosecution has proved the legal transfer of money by

way of gift, Senior advocate Mr. Panchal submitted that the

gift document has not been challenged; the money transaction

is through the Bank, and the payment is by cheque. The

person, who has sold the property has affirmed about the sale

price, and the gift transaction has been proved by the

prosecution themselves by examining the donor, P.W.18 and

her husband P.W.17.

3.11Senior Advocate Mr. Panchal has contended that the

standard of proof required in criminal proceeding, is different

from that of the departmental proceedings. The appellant

cannot be made liable for the purchase of property by the wife

when no rules are produced to restrict such transfer of gift

money and purchase of property from the gift amount.

3.12 Senior Advocate Mr. Panchal submitted that no

prescribed form has been produced by the prosecution to

substantiate the allegation of breach of any service rules and

if at all there is any breach of service of rule, then the

appellant can be subjected to only disciplinary action and

even in departmental proceedings nothing except the breach

was found. Senior Advocate Mr. Panchal submitted that in

departmental proceedings there was no finding that non-

informing the higher authority would amount to criminal

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offence.

3.13 Mr. Panchal, Senior Advocate, submitted that the

discloser of income in the income tax return itself would

satisfy the requirement and since the wife is acquitted and in

absence of appeal, the appellant cannot be made liable.

3.14 Learned Senior Advocate Mr. Panchal stated that the

appellant by the Notification of the High Court of Gujarat at

Ahmedabad dated 03.04.1997 was appointed as a Civil Judge

Junior Division and Judicial Magistrate, First Class, Bharuch,

where he served upto 13.06.1999; thereafter, was transferred

to Civil Court, Surat as a Civil Judge Junior Division and

Judicial Magistrate, First Class and served at courts in Surat

district upto 09.06.2002, and thereafter was transferred to

Civil Court, Pardi district, Valsad.

3.15 Learned Senior Advocate Mr. Panchal stated that the

appellant took charge on 10.06.2002 in Pardi district, Valsad

and served there upto 30.09.2002, thereafter was transferred

to Civil Court, Valsad District as a Civil Judge Junior Division

and Judicial Magistrate, First Class.

3.16 Senior Advocate Mr. Panchal submitted that when the

appellant was performing his duty as Civil Judge Junior

Division and Judicial Magistrate, First Class at Pardi from

10.06.2002 to 30.09.2002, he started issuing warrants against

the accused persons of the matters, which were under Water

Pollution and Food Adulteration Act and complainant was the

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Advocate of the partners of Shri Chemicals, Synochem and

Shivam Chemicals which were 8 to 10 years old cases,

wherein too warrants were issued which prompted the

Advocate to file complaint.

3.17 Learned Senior Advocate Mr. Panchal referring to the

observation in the impugned judgment submitted that the trial

Court committed error in accepting the sanction as valid,

which in fact, is void ab initio, Learned Senior Advocate Mr.

Panchal submitted that I.O. (P.W.36) had no authority to

investigate, who had retired from the Police Department. The

investigation by the retired police officer has caused prejudice

to the appellant.

3.18 Learned Senior Advocate Mr. Panchal referring to para-

12 of the judgment of learned Trial Court Judge submitted

that Vishnukumar Patel (P.W.34), who accorded sanction

Exh.184, had stated that Rajendra’s statement was not found

amongst the paper sent to him and thus submitted that

adverse inference should be drawn against the prosecution, as

it affects the validity of the sanction.

3.19 Learned Senior Advocate Mr. Panchal further submitted

that section 13(1)(a) and section 13(1)(e) of the P.C. Act are

inter connected with each other and that if accused No.1 was

not habitually accepting the bribe amounts, it would

prejudicially affect his conviction under section 13(2) read

with section 13(1)(e) of the Act. Senior Advocate Mr.Panchal

stated that most important question not been examined by the

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learned Judge was that the property purchased by accused

No.3 was already sold. Thus, Senior Advocate Mr. Panchal

stated that prosecution has failed to prove that accused No.1

possessed ill-gotten wealth, had the appellant so possessed,

the requisite amount could have been actually recovered from

him after the sale of property.

3.20 Learned Senior Advocate Mr. Panchal submitted that

findings that the transactions were not brought to the notice

of the higher authorities under the Conduct Rules, would be

mere irregularity on the part of appellant – accused No.1. Mr.

Panchal stated that probability of lack of income on the part of

accused No.3 and not having filed Income Tax Returns cannot

be made a base for the finding against appellant accused

No.1.

3.21 Learned Senior Advocate Mr. Panchal relied on the

judgment of (i)M. Krishna Reddy v. State , reported in

(1992) 4 SCC 45; (ii)Ashok Tshering Bhutia Vs.

State of Sikkim, reported in (2011) 4 SCC 402 (iii)State

of Uttar Pradesh Vs. Kanhaiya Lal , 1976 Cr.LJ 1230, to

support his arguments.

4.Countering the arguments, learned Public Prosecutor

Mr. Hardik Dave assisted by learned APP Ms. Monali Bhatt for

the State submitted that the case has to be concentrated for

the charges against the appellant under Section 13(1)(e) read

with Section 13(2) of the P.C. Act. Learned P.P. Mr. Dave

submitted that if a public servant accepts gift from unknown

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person even if in the name of his wife, would be a source

unknown to the prosecution authority, as the only legal source

for a judicial officer is his salary. The accused has failed to

prove the burden, which has been shifted on him, when prima

facie by examining about 36 prosecution witnesses, the

allegation of disproportionate asset to the known sources of

the appellant-accused had been proved by the prosecution

witnesses, more specifically, by P.W.14 to P.W.36.

4.1 Learned Public Prosecutor Mr. Dave submitted that the

property valued about Rs.35 Lacs, was purchased only at the

value of Rs.5,51,100/-. The accused had not satisfactorily

proved as a public officer, the legal transfer of money and

submitted that the gift deed of Rs.7 Lacs in the name of the

wife of appellant through the Bank, itself would prove that the

money received was not from the legal source. Learned Public

Prosecutor Mr. Dave contended that a person residing at

Sudan giving money as gift without any cause would amount

to windfall in the hands of the appellant and it has always to

be assumed that such amount received as gift was taken for

some motive or reward. Learned Public Prosecutor Mr. Dave

relying on the judgments of (i)State of Karnataka v. J.

Jayalalitha, (2017) 6 SCC 263 ; (ii)N. Ramakrishnaiah v.

State of A.P., (2008) 17 SCC 83 ; (iii)K. Ponnuswamy

v. State of T.N., (2001) 6 SCC 674; (iv)P. Nallammal v.

State, 2025 SCC OnLine SC 1040 , submitted that if the

public servant would be permitted to accept money from any

person irrespective of their relation, then that would

encourage the public officers to indulge in corrupt practices

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and such receipt of money would get legalise through the

institution, which cannot be permitted for public servant, who

is required to show his commitment towards his job with full

integrity.

4.2Learned Public Prosecutor Mr. Dave submitted that any

receipt from windfall, or gains of graft, crime of immoral

secretions by any persons prima facie would not be receipt

from the ‘known sources of income’ of a public servant. The

prosecution has proved with all the documentary evidence

supported by the testimony of the witnesses, the illegal

receipt of the cash money and the illegal purchase of property

and submitted that the appellant as a judicial officer is guided

by the Gujarat Civil Services (Conduct) Rules, 1971 and

cannot therefore, express his ignorance about the rules, for

maintaining absolute integrity and devotion to duty and not

doing any act unbecoming of the public servant. Learned

Public Prosecutor Mr. Dave stated that appellant was

governed by Rule 19 of the Gujarat Civil Services (Conduct)

Rules, 1971, whereby he had to give full details about the

movable, immovable and valuable property belonging to him,

who he could acquire or dispose of any immovable property in

his name or in the name of his family member only on the

previous sanction of the prescribed authority. Learned P.P.

Mr. Dave submitted that Gujarat Civil Services (Conduct)

Rules, 1971 has provided for gifts and it has been very

categorically laid down that no public servant shall accept or

permit any of his family member or any other person acting on

his behalf to accept any gift, and thus submitted that the

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prosecution had proved the case beyond all reasonable

doubts, hence, made a prayer to upheld the judgment of

conviction and sentence.

5.Having heard learned Senior Advocate Mr. Panchal

assisted by Mr. Vyas and learned Public Prosecutor Mr. Dave

assisted by learned APP Ms. Bhatt, perused the testimonies of

the witnesses and the exhibited documents proved on record.

P.W.36 was the Investigating Officer and P.W.35 was the

inspector assisting P.W.36. Both the witnesses have in their

depositions stated about the statements recorded by them and

specifically P.W.36 had detailed out in his testimony about the

procedure adopted for the investigation, after reading the

complaint and registering as F.I.R. and the documents

received and process adopted by him through the witnesses to

file the charge sheet.

6.P.W.36 was the Investigating Officer, Abdul Gani Husen

Malik, examined to state about the investigation conducted by

him under the order given to him to file a case against the

appellant P.A. Gohil serving as Judicial Magistrate, First

Class, Pardi. Such order was by the vigilance officer on

20.12.2002 through the order of the Chief Justice and the

administrative judge of Valsad District. The witness stated

that after he received the papers, he found the statement of

Pravin V.Shah recorded by the vigilance officer and when he

found the elements of the offence, he registered criminal

registration No.2/2002 in High Court Vigilance Police Station

under Section 7, 12, 13(1), 13(b)(2) and had signed the report

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under Section 157 of the Procedure Code to the competent

authority. The investigation officer has referred to the search

conducted at the house of the appellant. The statement of

Pravin B.Shah was considered as complaint before the

vigilance officer and after finding sufficient evidence he under

the order had filed the charge sheet against Shri Gohil and

thereafter on the ground of abetment finding sufficient

evidence, he filed supplementary charge sheet against rest of

the two accused, informing the complainant under Section

173(b) of the Cr.P.C. The witness has referred to all the

documents in his deposition and has referred to the gift of

cash of Rs.7 Lacs received by the wife of the appellant, as well

as about the property purchased in the name of the wife of the

appellant. The witness stated that as per the Executive

Engineer report and Town Planner’s report the value of the

property and the land was of Rs.35 Lacs.

6.1P.W.35 – Jaswantsinh Mohabatsinh Rathod was a

vigilance inspector in vigilance branch in Gujarat High Court

along with him was another inspector R.J. Raol. Witness

stated that his vigilance supervision was retired D.S.P. Malik

(P.W.36). Their duty was to follow the orders of Maliksaheb.

The witness has referred to the statement recorded by him. In

the cross-examination, he stated that Exh.91 - gift letter was

given by Sumatilal (P.W.17).

7.The sanction for prosecution of the accused was granted

by the Joint Secretary to Government of Gujarat, Legal

Department by the order dated 11.11.2004, which was placed

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in evidence by P.W.34 – Vishnukumar Prabhudas Patel at

Exh.184. The scan copy of the order of sanction dated

11.11.2004 is reproduced herein below for ready reference:

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8.The prosecution was initiated against the present

accused, his wife and brother-in-law on the complaint made by

P.W.1, the practicing lawyer of Vapi-Valsad, Mr. Pravinbhai

Vajechand Shah, while he was president of Pardi Bar and

according to the deposition at that time, appellant Shri Gohil

was the Judge, who had come from Surat. Complainant has

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deposed that after the transfer of appellant from Pardi to

Valsad, he was called by Vigilance Officer, Gujarat High Court

in connection with the investigation regarding allegation of

bribe against appellant Shri Gohil. When he reached the High

Court Vigilance Office at that time the president of Valsad Bar

President, Mr. Vasantbhai Patel and Mr. Kureshi as Secretary

were present there.

9. P.W.1 stated that till the time Shri Gohil was serving at

Pardi, Bar had not made any representation against the

judicial officer. The complaint was regarding the demand of

bribe amount in connection with Shri Chemicals and Shivam

Chemical, which was represented by him as an advocate. Shri

Gohil as a Judge had issued warrant against the accused and

for cancellation of the warrant the demand was made. P.W.1

as an Advocate stated that one Shantilal informed him that

the appellant was issuing warrant against accused of the

matter and would not cancel it and would direct them to

remain in jail. P.W.1 stated that he has also made

representation before District Judge and the Vigilance

Department of the High Court as well as before the Unit

Judge.

10.The prosecution had examined Anwarbhai Pirmohammad

Makrani as P.W.2 against whom warrant was issued, P.W.3 -

Arvindbhai Pragjibhai Desai, partner in Shree Chemicals and

Sinochem Product company against whom summon was

issued, P.W.4 - Chandrakantbhai Pragjibhai Desai, brother of

P.W.3 – Arvindbhai, P.W.5 - Chandrakantbhai Navnitlal

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Dhami, person against whom food related case was lodged,

P.W.6 - Hirachand Devchand Shah, who was a retired

Advocate, P.W.7 - Mehta Shrenikkumar Seventilal, P.W.8 -

Vikrambhai Ratilal Shah, Accountant in Shivam Chemical,

P.W.9 - Gunwantrai Maganlal Desai, Senior Clerk at Pardi

Court, P.W.10 - Prasantbhai Jawaharlal Desai, Advocate at

Pardi Court, P.W.11 - Magansinh Gumansinh Rathod, retired

APP., P. W. 29. Dilipbhai Narayan Irawa ,Junior clerk RTO

Surat, P. W. 30. Syed Ahmed Rashid Shaikh, buyer of car of

Pradeep bhai Jaimal Bhai Makwana, P. W. 31 Jaykerbhai

Shantilal Majethiya secretary, APMC Surat. P.W.32.

Gorangbhai Upendra Bhai Patel - Insurance agent. P.W.33 –

Maheshbhai Ambelal Mistry, staff of Mahesh Car Broker Firm,

to prove the case under section 7, 12 and 13(1)(a) of the P.C.

Act.

10.1The prosecution had examined P.W.23 – Kasushik

Narvarbhai Patel, Account Officer in Zilla Panchayat,

Mehsana to remain as a panch for the search to be made at

the rental house of the appellant Shri Gohil. The investigation

officer Shri Malik from the vigilance branch of High Court on

23.12.2002 along with the panchas had gone to the house of

Shri Gohil and his wife and the things and articles, which

were found in the house were recorded as per the panchnama

and photographs were also taken. The panchnama was was

produced at Exh.118. P.W.24 – Jayendrabhai Pragibhai

Chudasma, Senior Clerk in Sales Tax office remained as a

panch for making a search at the house of Premjibhai

Haribhai Gohil, the father of the appellant. The panchnama

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was produced at Exh.121 and the receipt given to the

appellant’s father Exh.122 was produced in evidence.

11.P.W.25 – Deputy Mamlatdar of Junagadh was a panch of

Exh.134 and a signatory to the receipt of Exh.135. The

witness was taken as a panch for search to be conducted at

the house of acquitted accused No.2 – Pradipbhai and his

mother Sarojben.

12.The offence with regard to sections 7, 12 and 13(1)(a)

could not be proved by the prosecution, hence, accused nos.2

and 3 came to be acquitted, while accused no.1 the present

appellant has been convicted for the offence under section

13(1) (e) read with section 13(2) of the P.C. Act. It was alleged

that the appellant had collected illegal wealth of lakhs of

rupees as bribe in Pollution and Food Adulteration cases

through his brother-in-law, Pradipbhai Makwana, acquitted

accused No.2. On 07.12.2002, the wife of the appellant,

acquitted accused No.3, had purchased a house showing the

value as Rs.5,51,000/- by showing cash as gift received from

N.R.Is P.W.17 and P.W.18, while the actual price of the

premises was Rs.36 Lakhs.

13.P.W.34, the sanctioning officer Vishnukumar Prabhudas

Patel was examined to prove the sanction Exh.184 referred

herein above. The officer stated that he received the file for

prosecution sanction, when he was serving as a joint

secretary, and had given evidence of reading the reports,

documents, statement of witnesses, complaint and

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documentary evidence and after deep study having found

prima faice case had given the sanction, Exh.184, which he

had sent to the High Court. In connection to the property

which was purchased in the name of wife of the present

appellant as a gift, the sanctioning officer, affirmed that he

had read the statements from the file of the persons, who

have given the gift. The sanctioning officer was also asked the

question in relation to the statements of the persons who had

given money in the form of gift to Shobhnaben, who answered

that on reading the statements and the gift letter, there was

reference of Rs.7 Lakhs given as gift. The Gift-letter dated

22.11.2002 was before the Notary R.S. Jani. P.W.34 denied

the suggestion that it was in the statements of Sumatilal –

P.W.17 and Nilam Kumari P.W.18 that they had given the

money to Shobhnaben as their daughter.

14.The prosecution had examined P.W.12 - Hemant

Naginbhai and P.W.13 – Jaywantbhai Bhikhubhai Modi in

connection with the flat, which was rented by the brother-in-

law (acquitted accused No.2) of the present appellant.

15.Section 13(1)(e) read with section 13(2) of the P.C. Act

requires mention here to appreciate the evidence, thus

reproduced herein under for ready reference:

“13 Criminal misconduct by a public servant – (1)

A public servant is said to commit the offence of

criminal misconduct -

(a)…

(b)…

(c)…

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(d)…

(e) if he or any person on his behalf, is in possession or

has, at any time during the period of his office, been in

possession for which the public servant cannot

satisfactorily account, of pecuniary resources or

property disproportionate to his known sources of

Income.

Explanation: - For the purposes of this section,

“known sources of income” means income received

from any lawful source and such receipt has been

intimated in accordance with the provisions of any law,

rules or orders for the time being applicable to a public

servant.”

15.1 In the case of M. Krishna Reddy v. State (supra),

referred by learned Senior Advocate Mr. Panchal. The Hon’ble

Supreme Court has explained that failure to satisfactorily

account for the possession of resources or property becomes

offence, in context of section 13(1)(e) of the P.C. Act. After the

prosecution proves the necessary ingredients, the burden of

satisfactorily accounting for such possession shifts to the

accused. It was held as under:

6. An analysis of Section 5(1)(e) of the Act, 1947 which

corresponds to Section 13(1)(e) of the new Act of 1988

shows that it is not the mere acquisition of property

that constitutes an offence under the provisions of the

Act but it is the failure to satisfactorily account for such

possession that makes the possession objectionable as

offending the law.

7. To substantiate a charge under Section 5(1)(e) of the

Act, the prosecution must prove the following

ingredients, namely, (1) the prosecution must establish

that the accused is a public servant, (2) the nature and

extent of the pecuniary resources or property which

were found in his possession (3) it must be proved as to

what were his known sources of income, i.e. known to

the prosecution and (4) it must prove, quite objectively,

that such resources or property found in possession of

the accused were disproportionate to his known

sources of income. Once the above ingredients are

satisfactorily established, the offence of criminal

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misconduct under Section 5(1)(e) is complete, unless

the accused is able to account for such resources or

property. In other words, only after the prosecution has

proved the required ingredients, the burden of

satisfactorily accounting for the possession of such

resources or property shifts to the accused.

16. P.W.14 – Suryakantbhai Bhagwanbhai, who was serving

in the Sub-registrar office, Mangrol in the year 2003, he

stated that since 1984, he was serving in the Registration

Department. From 2002 till 18.05.2005, his evidence records

that, his office was having an Office Assistant Clerk – Mr. B.M.

Atodariya. His duty included registration of the documents in

the form of sale deed, mortgage deed, gift deed etc. of the

property of Mangrol village and Taluka.

16.1 P.W. 14 stated that he was referred to documents

registered at Mangrol office at Serial No.1046 on 07.12.2002

between 12:00 to 1:00 in the afternoon, and stated that it was

sale deed of Rs.5,51,000/- of the property in the boundary of

Mangrol Nagarpalika of City Survey No.7618, admeasuring

746.64 sq. mtrs., a house on Secretarial Road with old Rukka

Lekh No.17/98, the purchaser was Smt. Shobhnaben, wife of

Premjibhai Gohil, resident of Shahpur Darwaja, Mangrol and

the sellers were Dineshbhai Tarachand Shah, Kirtibhai

Tarachand Shah, Saileshbhai Kishorchand Shah and

Rajeshbhai Kishorchand Shah, with the registration fee of

Rs.8,355/- and photo side fee of Rs.130/- and in total 8,485/-

was recovered by executing Receipt No.1602546 on

07.12.2002, where upon he identified the signature of Mr.

B.N. Atodariya as Sub-registrar. The witness stated that the

stamp used was of Rs.83,000/-, and after the writing of the

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document, there were signatures of the sellers and the

witnesses. The vendors were identified by Maheshkumar

Sumandas Merwana, resident of Mangrol and Mitesh

Dineshchandra Shah. The witness identified the signature and

the seal. Witness had given the certified copy at the time of

recording of his statement to the Investigating Officer and

produced the copy of the sale deed, Exh.75. The receipt

executed for recovery of the registration fee was put in

evidence at Exh.76, where upon the name of Shobhnaben wife

of Premjibhai Gohil was referred, on which her signature was

received. The witness has also referred to the register

maintained in this office with regard to the document at Serial

No.1046 and the said was produced in evidence at Exh.77.

The Index of the sale deed under his signature was produced

at Exh. 78.

16.2 In the cross-examination, P.W.14 affirmed that when the

property was sold and the document was registered, at that

time, initially the valuation of the property was verified. The

witness affirmed that the property was valued as per the price

decided in the Jantri, and if the stamp duty is paid as per the

Jantri price, then there would not be any issuance of notice.

The witness also affirmed that if the stamp duty was used as

per the market price, even then, the document would be

registered. The witness stated that if there would be any

objection to the document, then the document would not be

registered. In the present case, the witness stated that there

was no objection to the registration and therefore it came to

be registered.

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16.3 From the evidence of P.W.14, it transpires that the

registration took place without any objection. The valuation of

the property was verified prior to the registration of the sale

deed.

17. P.W.15 – Govindbhai Jagmalbhai, from 01.06.2001 to

30.09.2006 was serving in Maintenance City Survey Office. As

per his evidence, the process of recording of the name would

be on the basis of ‘Utaro’ (Index) from the Sub-registrar Office

on the application, which would be moved to the Maintenance

Surveyor and after recording the necessary entry it was

placed before City Survey Superintendent. The entry would be

in the property card as per the Index from Sub-registrar and

with the passage of time, those entries would be certified. The

notice under Section 135D would be sent to the persons,

whose rights get deleted. The witness referred to Exh.78 as

the ‘Utaro’. The witness has referred to 135D notice to the

vendors by UPC by relying on Exh.81. Exh.82 is the notice,

which he issued to the vendors as a Maintenance Surveyor,

and has produced in evidence at Exh.83; the change entry at

Serial No.208, in connection with the document No.1046. The

witness stated that the names of the vendors were removed,

and as a purchaser of the property, name of Smt. Shobhnaben

wife of Premjibhai Gohil was recorded with the change entry

dated 17.01.2003. The details recorded the Registration

No.1046 of the sale dated 07.12.2002 for Rs.5,51,000/-. The

entry was certified by the officer.

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18. In the cross-examination the witness P.W.15 referring to

the property card stated that the name of Shobhnaben was

deleted and the name of Dinubhai Solanki got reflected on

06.06.2003.

19.P.W. 16 as a stamp vendor and bond writer referred to

Stamp Serial Nos.158(1) to (12), which he stated that as a

stamp vendor he has sold the stamp to Shobhnaben. He

identified the signature and stated that thereafter on

instruction he typed the sale deed, wherein the purchaser was

Shobhnaben wife of Premjibhai Gohil, thereafter he had

written the names of all the vendors, who were four in

number. According to him the sale deed was for City Survey

No.7618 of old construction. The witnesses were Kishanbhai

Jivabhai and Makwana Pradipbhai Jaimalbhai. Kishanbhai

Jivabhai was resident of Sediyaj and was in the business of

coal and Makwanabahi was the brother of Shobhnaben. In

accordance to the evidence, Exh.75 - sale deed was typed by

witness P.W.16.

20.The evidence of this witness is concentrated with regard

to purchase of stamps and the sale deed being typed by him.

He has given the evidence of the vendor, vendee and

witnesses to the document. The evidence of P.W.14 is with

regard to registration of the sale deed and the evidence of

P.W.16 suggests that on the same day of registration of the

sale deed the stamp were purchased. The sale deed was in the

name of wife of the present appellant, wherein Pradipbhai

Makwana, acquitted accused No.2 was a witness to the

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document. On comparison of the evidence of the Registrar

P.W.14 and the evidence of P.W.15 - City Survey Maintenance

Surveyor, it becomes clear that the property which was

purchased on 07.12.2003 in the name of the wife of the

present appellant was sold to one Dinesh Solanki where name

was reflected in the property card on 06.06.2003.

21.The prosecution sanction were on the ground that on

07.12.2002, the wife of the appellant had purchased the house

valued at Rs.5,51,100/- by showing that the said amount was

received by her as gift from NRIs, while the actual price of the

house purchased by her is of Rs.36 Lacs. The prosecution

examined P.W.17 – Sumatilal Amrutlal Kamdar, P.W.18 –

Nilamben Sumatilal Kamdar as the NRIs from whom the

money was received by the wife of the appellant as gift.

21.1 P.W.17 – Sumatilal Amrutlal Kamdar testimony shows

that he at that relevant time was residing at Rajkot with his

wife. His birth place was Sudan, as his father, at that time,

was at Sudan in the year 1942, because of the war, he and his

mother come down to Jetpur and in the year 1950 they again

went back to Sudan and had come in the year 1953 at Jetpur

and after marriage he returned back to Sudan. His father died

in the year 1986 at Sudan.

21.2 He stated that his education is upto standard 11. His

wife’s name is Nilamben and he has two daughters and two

sons. Both his sons were the residents of Sudan, who were

born there, where they are having business of cycle spare

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parts, which was handled by both the sons. The witness stated

that in the year 2002, he came back to Rajkot from Sudan

along with his wife. Initially they resided at Silver Gold

Complex and thereafter started staying in Gita Apartment. At

that time he had opened his account in Union Bank of India,

showing the residence as Silver Gold Complex. He got his

passport renewed in the year 1996.

21.3 Since they were residing at Rajkot and as there was

necessity for the monetary transaction from Sudan therefore

he and his wife got opened a joint account in Union Bank of

India and in that account mostly the amount would be

deposited in dollar by cheque transfer. The witness stated that

since he is now aged, he is having a retired life.

21.4 The witness stated that he was inquired by Rathod

Saheb of High Court Vigilance Department, his statement was

recorded and thereafter Malik Saheb also inquired from him.

The witness was referred to the copy of the pass-book of

Union Bank of India Exh.89 and he stated that on page no.3,

there were transaction of his account. The copy of the

passport was produced at Exh.90.

21.5 Referring to the passbook copy Exh.89, the witness

stated that the account shows a withdrawal of Rs.7 Lac by

cheque no.4784 dated 23.11.2002 and he said that the said

amount was given to Shobhnaben as gift. The witness stated

that he does not know the full name of Shobhnaben.

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21.5.1 This evidence of the witness P.W.17 becomes very

crucial. He does not know the full name of the person to

whom they had gifted Rs.7 Lacs by way of cheque.

21.6 The witness P.W.17 further stated that he had not got

any work done on payment of Rs.7 Lacs to Shobhnaben nor

had be purchased anything from her. He also stated that

Shobhnaben was not his relative and his wife had studied upto

4

th

standard. The witness also stated that all these facts were

informed to Rathod Saheb and Malik Saheb. The witness also

further stated that he was not knowing Shobhnaben while

Shobhnaben was known to his wife.

21.7This evidence of the witness P.W.17 creates doubt to the

transaction in the form of gift. The witness does not know the

donee nor does he know the full name of donee. He has

clarified that Shobhnaben i.e. wife of the appellant is not his

relative, then under what circumstances, Rs.7 Lacs were

given as gift to Shobhnaben becomes suspicious.

21.8 In the cross-examination of the witness, it has been

elicited from the side of the accused and the witness stated

that his wife Nilamben is from Jetpur and his wife’s friend was

Jivuben. He affirmed that at the time of their marriage,

Jivuben had assisted them monetarily, who according to him

was very financially strong. The last prince of Porbandar was

considering Jivuben as his daughter and Jivuben’s marriage

was performed at the hands of the prince. The witness stated

that his wife Nilamben was very close to Shobhnaben, the

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relation between the two was of love and affection. This fact

has been brought on record by way of cross-examination. The

witness P.W.17 had not stated such details in his examination-

in-chief.

21.9The witness P.W.17 further stated that the business of

his father in Sudan started from 1920, they earned a lot in the

business and they were affluent. The witness stated that both

the sons of his son Kailesh were suffering from Thalassemia

and the younger son was operated at Velure for that they

expended to 15 to 20 Lacs. He stated that he was receiving

dollar from Sudan and was getting it exchanged at Dev Forex

Pvt. Ltd. And those money he was depositing in Union Bank

Rajkot, which was in his and his wife name as NRIs.

21.10 The witness stated that he had come in November,

2002 from Sudan and in that month he had opened the Bank

Account. He also affirmed that on 21.11.2002, in Dev Forex

Pvt. Ltd. 5000 dollars were received in his and his wife’s name

separately. Those were converted in rupees and deposited in

the Bank.

21.11 The witness was also questioned about notarized gift

deed and he stated that for drawing the deed he had

appointed a Lawyer. His wife could sign in English and he had

given the details in his own handwriting. The witness stated

that they as husband and wife since long were often thinking

to give gift to Shobhnaben and for that purpose they had

conversation with their sons and the children agreed to fulfill

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the wish. The witness stated that they have movable and

immovable property in large quantity in Sudan and that

children would always fulfill their wish.

21.12 In the cross-examination from the side of accused

Nos.2 and 3, the evidence was recorded that the writing of the

gift was executed in the notary’s office, which was read in

English and explained to them and after having affirmed, they

had signed. The witness stated that he had given the copy of

the document to Rathod Saheb and Malik Saheb when his

statement was recorded. The witness was shown document

Exh.91 and he affirmed his and his wife’s signature thereon.

The Scan Copy of Exh.91 is as below:

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22.The document Exh.91 as referred above shows Mrs.

Nilamkumari Sumatilal P.W.18 as donor of Rs.7 Lacs with

donee as Mrs. Shobhnaben P.Gohel. Stamp paper valued at

Rs.20/- appears to be purchased on 22.11.2002 in the name of

the donor and the document was executed before the Notary –

R.S. Jani on 25.11.2002. The gift amount was given by way of

cheque No.0004784 dated 22.11.2002. The gift letter does not

show the relation between donor and donee.

22.1 Nilamben Sumatilal Kamdar had been examined as

P.W.18, the donor of gift letter Exh.91. She stated that from

her birth she was residing at Jetpur. Her father was in the

business of Hosiery and cutlery. Thereafter, she said that in

the year 1953 they had gone to Sudan. She has referred the

names of her two daughters and two sons. She stated that

since last 5 to 7 years she was staying at Rajkot looking after

the treatment of Thelassemia of two grandchildren along with

the daughter-in-law at Rajkot. Her son from Sudan would

come for six to twelve months and thereafter, would return

back.

22.2 The witness P.W. 18 stated that she has a joint saving

account with her husband at Union Bank of India. She has no

knowledge of the limit of money she could bring and stated

that it would be in the knowledge of her husband. She does

not understand about bank or cheque transactions. All the

transactions would be done by the sons and the husband. She

stated that whenever her sons and husband would instruct her

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to put signature, she would do so, otherwise she would have

no knowledge.

22.3 The witness stated that she has no knowledge about the

deed executed in favour of Shobhnaben. She had signed as

she was asked to do so by her son. Then she volunteered to

clarify that the signature was with her consent. The copy of

the passport was placed in evidence at Exh.93. The witness

was shown the xerox copy of counterfoil of cheque book and

xerox copy of counter foil of the slip used for depositing the

money in the Bank, while identifying the seal of the Bank, she

stated that the details were written by her husband.

23. Here, it transpires that the gift letter Exh.91, executed in

favour of Shobhnaben was not within the knowledge of this

witness. She stated that she had put the signature under the

instruction of her son. The fact of execution of the gift letter,

for the money given by cheque of Rs.7 Lacs, out of love and

affection to Shobhnaben wife of the appellant becomes a

doubtful aspect. It appears that the donor without her

knowledge and understanding was asked to put her signature

on the gift letter. The bank transaction was by the witness

husband.

23.1 In the cross-examination from the side of the present

appellant, the witness P.W.18 stated that she knows to sign in

English. Whenever she would have to go for monetary

transaction she would be accompanied by her husband. Her

Natal house is at Jetpur. She knows Jivuben of Jetpur.

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According to the witness, Jivuben is the grandmother of

Shobhnaben. The witness stated that Jivuben had monetarily

helped her at the time of her marriage and the last prince of

Porbandar Ranasaheb had adopted Jivuben whose marriage

was performed through him. The witness stated that from the

beginning, she and Jivuben had affectionate relation. Since

Jivuben financially helped her at her marriage, she always

considered it to be an obligation to her. The witness also

stated that her relation with Shobhnaben was of love and

affection and practically she consider Shobhnaben as her own

daughter and since long she and her husband were

considering to give something as gift to Shobhnaben so out of

love and affection she had gifted Rs.7 Lacs to Shobhnaben and

for that she and her husband together had drawn a writing

before the Notary and on the writing regarding gift she had

put her signature on her own volition with full understanding.

She stated that one cheque of Rs.7 Lac was given to

Shobhnaben as gift. She stated that there was relaxation of

bringing 10,000 dollars from Sudan and often her children

would bring money from Sudan.

23.2 The evidence as stated in the examination-in-chief does

not reflect of any special bond between this witness and the

wife of the appellant. While in the cross-examination, the

relation has been joined through Jivuben of Jetpur, who has

been referred as being grandmother of Shobhnaben. No

evidence has been produced to prove the relation of donor

and donee and of Jivuben with the wife of appellant.

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24.P.W.28 – Vishal Mahendrabhai Raichuda was the witness

from Dev Foreign Pvt. Ltd. Company, he stated that he was

one of the Director. The vigilance officer had inquired from

him and he had given the details on the letter head and

according to his office record (1) on 14.11.2002, 100/- U.S.

dollars, under Bulk Purchase no.155, were purchased from

Union Bank of India. (2) by Bulk Purchase No.2160 on

20.11.2002 U.S. dollars 2050/- were purchased. (3) U.S.

dollar 5,000/- from Milan Kumari through encashment no.471

(sic.) and had paid Rs.6,26,169/- (4) With encashment no.478,

U.S. dollars 5,000/- were purchased from Shri Sumatilal

Kamdar (P.W.17) and (5) U.S. dollars 4750/- on 22.11.2002

were purchased through purchase no.162 from Union Bank of

India and (6) 2,650/- British Pound on 29.11.2002 were

purchased from Union Bank of India. The statement with

regard to the purchase price and the payment was produced

in evidence at Exh.154. The witness stated that he has no

knowledge about who was paid the money for the referred

transaction nos.1-2-4 and 5, and further affirmed that for the

entry nos.3 and 4 the transaction was legal and the payment

was done in cash. The document at Exh.154 shows that the

amount at serial no.3 to Nilamkumari Sumatilal (P.W.18) was

made by cheque no.626169 of ICICI Bank and the payment to

Sumatilal A. Kamdar (P.W.17) was made by cheque no.626170

of ICICI Bank.

25.The admitted position was of appellant being a judicial

officer in service as a public servant and his wife would be his

dependent. The public servant and his dependents are liable

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to disclose all their earnings and had to prove that the

property purchased were from the “known sources of

income”. The section 13(1)(e) appended with the explanation

clarifies that “known sources of income” for the purpose of

section 13(1)(e) would mean income received from lawful

source. The explanation thus, impresses upon the source of

the money by way of income. The income received must be

from the lawful source and such receipt should have been

intimated in accordance with the provision of law, rules or

orders for the time being applicable to a public servant. The

appellant as a Judicial Officer has not brought on record that

prior to his wife accepting the gift they had sought any

permission or had got any approval from the administrative

functionary of High Court of Gujarat. Nothing has come on

record as an evidence from the side of the appellant Judicial

Officer of intimating the Registry of the High Court of their

intention to accept the gift from P.W.18.

26.The transaction has been made through Bank Account.

The amount of Rs.7 Lacs given by way of cheque. Jivuben

though has been referred as a grandmother of Shobhnaben,

no such pedigree has been proved on record. Jivuben’s

adoption by prince Ranasaheb, has not been proved by any

documentary evidence. The obligation was of Jivuben on

P.W.18 and because of that out of love and affection, the

money has been given to Shobhnaben are mere words not

substantiated by any documentary evidence, and too far-

fetched.

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26.1 The gift letter Exh.91 was drawn on 25.11.2002, the

cheque no.0004784 of Rs.7 Lacs was drawn on 22.11.2002.

The sale deed for purchase of the property was executed on

07.12.2002.

27.It was the argument of learned Senior Advocate Mr.

Panchal that the prosecution has proved the case on their

behalf and that nothing was left open by the prosecution for

the accused to further lead any evidence to disprove the facts,

as contemplated under Section 13(1)(e) of the Act. In

accordance to argument of learned Senior Advocate Mr.

Panchal, the gift letter executed and the transaction by way of

cheque would be considered as legal in the eyes of law. The

money has come from the legal source and the accused

therefore, would not be required to explain further about the

receipt of the money.

28.Further reliance has been placed by the prosecution on

the evidence of P.W.19, the Branch Manager of ICICI Bank

and P.W.20, one of the vendor, who had sold the house at

Rs.5,51,100/-. According to Senior Advocate Mr. Panchal all

the transactions were legally done and when the wife of the

appellant has been acquitted, learned Senior Advocate Mr.

Panchal expressed the view that the appellant cannot be

convicted for the charge under Section 13(1)(e) of the Act.

28.1 P.W.19 – Mahernosh Firoz Kasad was a Branch

Manager at ICICI Bank at Surat Athwaline. He was referred to

Exh.98, which was a letter addressed to the Vigilance Officer

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of Vigilance Cell of High Court of Gujarat on their official

letter pad, informing that Shobhnaben Gohil had opened bank

account on 18.12.2001, and they had informed the transaction

for the period between 01.04.2002 to 30.05.2003. The letter

Exh.98 informed the following details:

1. The correct Savings Bank Account No. of Smt

Sobhanaben P Gohil is 005201015366 and the same was

opened with proper introduction on 18

th

Dec 2001.

2. Please find attached statement of account as desired

3. There are no accounts in the name of Sri Premjibhai H

Gohil and Pradipbhai J Makwana.

4. There are no fixed deposit accounts in the name of Smt.

Sobhanaben Premjibhai Gohil.

28.2 The witness P.W.19, the Bank Manager, had also

brought the form for the Bank Account No.005201015366 and

the copy of photo identity card and driving license, which he

produced at Exh.99. The witness stated that the amount were

withdrawn in accordance to the details of document Exh.98,

he had brought the copy of cheque no.456676 to 456681 from

the original at their Bank and stated that it did not include

cheque no.456680 and cheque no.76, 77, 78, 79 were given

for preparation of Demand Draft and accordingly as per the

instruction Demand Draft were issued and the witness stated

that the cheque no.456676 of Rs.1,83,366/- was for Demand

Draft in the name of Dineshbhai Tarachand Shah dated

28.11.2002. Cheque No.456677 of Rs.1,83,366/- was for the

Demand Draft in the name of Kiritbhai Tarachand Shah.

Cheque No.456678 and cheque no.456679 each of Rs.92,184/-

were for the Demand Draft in the name of Shailesh

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Kishorchand Shah and Rajesh Kishorchand Shah respectively

and cheque no.456681 was used for cash withdrawal of

Rs.1,50,000/-. The documents were jointly produced at

Exh.100.

29.In the cross-examination, it was stated that on

11.12.2001, by way of pay-in slip Rs.15,000/- was deposited to

open the Bank Account. The slip was produced at Exh.101.

The witness stated that the account was open in the name of

Shobhnaben P.Gohil in their Bank. The four drafts, which

were drawn were on the basis of the cheque issued from the

account of Shobhnaben P.Gohil on 28.11.2002.

30.Prosecution examined P.W.20-Dineshchandra Tarachand

Shah, one of the vendor of the sale transaction in favour of

wife of the appellant Shobhnaben. P.W.20, the resident of

Rajkot was having a retired life staying at Ahiya Apartment.

He stated that he was originally from Mangrol and they had a

house in the name of their mother Manwantiben at Mangrol

on secretariat road. They were three brothers. The eldest

Kishorbhai died living behind Shailesh and Rajesh and his

younger brother is Kiritikumar. Both the brothers and both

the nephews together decided to sell the house and therefore

there was conversation with Shobhnaben and her mother.

Witness does not recollect the date of conversation, but

appropriately he stated that it was on 25.11.2002 and they

had decided to sell the house at Rs.5,51,000/-. There was no

writing for the conversation and stated that Shobhnaben had

given cash amount of Rs.1,100/- and it was decided that the

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sale deed would be executed within a month. The sale deed

was to be executed on seventh so they received the phone call

from Shobhnaben to come down to Mangrol on fourth. So, he

had informed Shobhnaben to bring four Drafts in their share

in connection with the house for him, his brothers and for two

nephews. Witness stated that the sale deed was executed on

07.12.2002 and they had received the Draft of ICICI Bank

Surat of Rs.1,83,00/- in his favour and his brother, while two

drafts of Rs.92,000/- were for the nephews.

31.The witness P.W.20 stated that Exh.75 sale deed was

signed by all of them, and as the consideration amount was

received they handed over the possession to Shobhnaben. The

Vigilance Officer of High Court had recorded his statement.

31.1In the cross-examination the witness affirmed that the

property, which had been sold to Shobhnaben had a boundary

on the eastern direction known as Mehta Mohanlal and ahead

of that there was a name of Tibabhai Vakil. He affirmed that

there was no secretariat road from Veraval to Porbandar.

From the house sold, there were about ten to fifteen houses

and after leaving Kharaba land thereafter was secretariat

road heading from Veraval to Porbandar, and on the eastern

side of the road there was secretarial building. On the

western side were the house of Tribhuvan Nathuwala and on

northern side was a ‘Dhelo’ of Khatri Pursotambhai, which

was since very long time remaining close.

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31.2 The witness P.W.20 further stated that Mangrol village

was having the population of approximately 50,000 people,

there were no shops around. The house which was sold to

Shobhnaben. That house was remaining close since many

years and that they had not done any renovation of the house.

The house was constructed by their father 60 to 65 years ago

and they were making efforts since long to sell the house.

Since the house remained unoccupied and deserted therefore,

could not be sold, though many persons had visited it. The

witness also stated that Shobhnaben’s mother Sarojben was

serving in GEB Mangrol and therefore they were

acquaintance. After their talks on 25.11.2002 with

Shobhnaben and her mother, on the next day they had agreed

for the sale of the house.

32.P.W.21 – Tapubhai Galabhai was working as an Deputy

Engineer in sub-division in Road and Building Department at

Keshod. The Executive Engineer at that time was Y.M.

Chawda, whose office was at Junagadh. The witness stated

that on 07.08.2003, the Executive Engineer had

communicated of the letter of Shri A.H. Malik, Vigilance

Officer for the valuation of Survey No.7618 and stated that as

per the S.O.R., which meant Schedule Operates Abstracts,

after his discussion with the Executive Engineer he had

valued the house. The witness identified his valuation report

Exh.109, which also had the attachment of Map of the house.

The witness stated that as per his valuation on that day the

price of the house was Rs.9,49,750/-.

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33.In the cross-examination P.W.21 affirmed that nothing is

on record to show that the the owner of the property, Shri

Gohil, was called or any notice was issued to him. The letter of

Shri Malik was produced at Exh.110 and the witness stated

that as per the letter the owner of the property was

Shobhnaben. He had not verified the ownership of the

property at the time of the valuation. The witness stated that

one of the family member of Gohilsaheb was present at the

time of the measurement, who had brought the key of the

house.

34.The witness P.W.21 stated that he does not remember as

to which of the family member of Gohilsaheb was residing in

the house, and while reading the file he stated that he came to

know that the property was of Member of Legislative

Assembly (M.L.A.) of Kodinar, Dinubhai Solanki. He also

affirmed that when the property was valued neither

Shobhnaben nor her husband Shri Gohil were the owner. The

witness stated that when the property was valued he had

written the price of all the items separately, running in the

year 2003 and he had not made estimation of value of the

house at the time when it was constructed. He affirmed that

the property was purchased on 07.12.2002 at Rs.5,51,000/-.

The witness stated that it was not within his jurisdiction to

decide whether the market price of the property valued at

Rs.5,51,000/- was paid. The witness also affirmed that neither

he nor his assistant Shri Katodiya had inquired about any

changes or renovation or plastering by the new purchaser

after the property was sold away by Shobhnaben. The witness

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also stated that it was not their duty to value the property by

comparing it with the sale value of the neighboring houses.

The witness stated that it was only their duty to value the

house and the Town Planner had not informed them to value

the price of the land.

35. Prosecution has produced the evidence through P.W.22

– Ashwinbhai Ambalal Borad of the valuation of the land, on

which the house was situated. The witness as town planner

has given the evidence with regard to process undertook prior

to visiting the place. The witness stated that on 7.12.2002, per

square meter price of the land was Rs.3500. The report was

finalised by the meeting of the valuation committee on 28-1-

2004, and was communicated to the collector, Junagadh dated

30-1-2004. According to the witness, the value of the land

746.64 sq. metre of survey number 7618 on 0 7.12.2002 was

Rs.26,13,240/-.

35.1 In the cross examination, the witness was asked about

the base adopted for the valuation of the property. According

to his reply, the base was the one which was used for valuing

government property. The witness specified the valuation was

only of the land and not of the house upon it. The witness has

affirmed about the yadi of the price decided of land of the

area by the government is recognised as Jantri. The witness

stated that he has not taken to consideration the Jantri while

evaluating the value of the land, as according to him, the

circular of the revenue department, dated 30.09.2002 the

Jantri prize is fixed for the government to examine the stamp

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duty and stated that Jantri prize could in no circumstances be

considered for Land valuation. The witness also affirmed that

in the meeting on 28-1-2004. about 11 incidence were

considered for deciding the price and except the incident

referred at serial number, six others were both of the question

of sale or lease, belonging to the government.

36.The law governing the public servant conduct becomes

relevant to be noted. No public servant can deny that he is not

regulated by conduct rules. Rule 19 of the Gujarat Civil

Services (Conduct) Rules, 1971 mandates every Government

servant to inform on the first appointment to his service or

post by submitting a return of his immovable assets on the

proforma as may be prescribed by the government giving full

details regarding the immovable property inherited, owned

acquired or held by him on lease or mortgage either in his

own name or in the name of any other family or in the name of

any other person. The Rule 19(2) obligates the government

servant to put to the knowledge of his prescribed authority

prior to acquiring or disposing of any immovable property by

lease, mortgage, purchase, gift or otherwise either in his own

name or in the name of any member of his family. Rule 13 of

the Conduct Rules makes provision for gifts which restricts

public servant from receiving gifts and also restrains to accept

gift except as provided under rules.

37.The appellant has not proved by way of any documentary

evidence of communication to the authority, whereby from the

High Court any sanction to receive money in the form of gift

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from P.W.18 in the name of his wife, was taken.

38.The appellant has failed to show and prove the relation

of his wife with P.W.18. Under Income Tax law the gifts could

be received only from the relatives, who could be (a) spouse of

the individual; (b) brother and sister of the individual; (c)

brother or sister of spouse of the individual; (d) brother or

sister of either of the parents of the individual; (e) any lineal

ascendant or descendant of the individual; (f) any lineal

ascendant or descendant of the spouse of the individual; (g)

spouse of the persons referred to in (b) to (f).

39.In the case as referred of M.Krishna Reddy Vs. State

(supra), the Hon’ble Supreme Court while delineating the

ingredients of Section 13(1)(e) of the P.C. Act, 1988 has laid

down that after establishing that the accused is a public

servant, the prosecution has to prove the nature and extent of

the pecuniary resources of the property, which were in the

accused possession and must prove the source of income of

the accused known to the prosecution and thereby objectively

prove that the resources or property found in the possession

of the accused were disproportionate to his known sources of

income. Once these ingredients are satisfactorily established,

the offence of criminal misconduct under Section 13(1)(e) is

complete. Once the prosecution has proved the required

ingredients, the burden of satisfactorily accounting for the

possession of such resources or property shifts to the accused.

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40.Here in this present matter, the prosecution by

examining P.W.15 to P.W.22 and P.W.28 has prima facie

proved on record that the money received from P.W.18 and

the property purchased from P.W.20 and his brother and

nephews were not from the known sources of the income of

the present appellant. The known source of income of

appellant would only be his salary.

41.In the case of N. Ramakrishnaiah v. State of A.P. ,

(2008) 17 SCC 83, it was held as under:

17. “5. Section 13 of the Prevention of Corruption Act,

1988 (in short ‘the Act’) deals with various situations

when a public servant can be said to have committed

criminal misconduct. Clause (e) of sub-section (1) of the

section is applicable when the public servant or any

person on his behalf, is in possession or has, at any

time during the period of his office, been in possession,

for which the public servant cannot satisfactorily

account, of pecuniary resources or property

disproportionate to his known sources of income.

[Clause (e) of sub-section (1) of Section 5 of the old Act

was on similar lines.] But there have been drastic

amendments. Under the new clause, the earlier

concept of ‘known sources of income’ has undergone a

radical change. As per the Explanation appended, the

prosecution is relieved of the burden of investigating

into ‘source of income’ of an accused to a large extent,

as it is stated in the Explanation that ‘known sources of

income’ means income received from any lawful

source, the receipt of which has been intimated in

accordance with the provisions of any law, rules, orders

for the time being applicable to a public servant. The

expression ‘known sources of income’ has reference to

sources known to the prosecution after thorough

investigation of the case. It is not, and cannot be

contended that ‘known sources of income’ means

sources known to the accused. The prosecution cannot,

in the very nature of things, be expected to know the

affairs of an accused person. Those will be matters

‘specially within the knowledge’ of the accused, within

the meaning of Section 106 of the Evidence Act, 1872.

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6. [The emphasis of the phrase ‘known sources of

income’ in Section 13(1)(e) {old Section 5(1)(e)} is

clearly on the word ‘income’.] It would be primary to

observe that qua the public servant, the income would

be what is attached to his office or post, commonly

known as remuneration or salary. The term ‘income’ by

itself, is elastic and has a wide connotation. Whatever

comes in or is received, is income. But, however wide

the import and connotation of the term ‘income’, it is

incapable of being understood as meaning receipt

having no nexus to one's labour, or expertise, or

property, or investment, and having further a source

which may or may not yield a regular revenue. These

essential characteristics are vital in understanding the

term ‘income’. Therefore, it can be said that, though

‘income’ is receipt in the hand of its recipient, every

receipt would not partake the character of income. Qua

the public servant, whatever return he gets from his

service, will be the primary item of his income. [Other

income which can conceivably be] income qua the

public servant, will be in the regular receipt from (a)

his property, or (b) his investment. A receipt from

windfall, or gains of graft, crime or immoral secretions

by persons prima facie would not be receipt from the

‘known sources of income’ of a public servant.

7. The legislature has advisedly used the expression

‘satisfactorily account’. The emphasis must be on the

word ‘satisfactorily’ and the legislature has, thus,

deliberately cast a burden on the accused not only to

offer a plausible explanation as to how he came by his

large wealth, but also to satisfy the court that his

explanation was worthy of acceptance.”

41.1 In the above referred judgment of N.

Ramakrishnaiah (Supra), the Hon’ble Supreme Court by

emphasising on the phrase ‘know source of income’ in section

13(1)(e) of the P.C. Act has made a special emphasis on the

word ‘income’, primarily to observe that qua the public

servant, the income would be what is attached to his office or

post, commonly known as remuneration or salary. Any

windfall or gains of graft, crime or immoral secretions by

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persons prima facie would not be receipt from the known

source of income of a public servant.

42.Section 13(1)(e) of the P.C. Act has a very relevantly

used expression ‘satisfactorily account’, which cast the

burden on the accused not only to offer a plausible

explanation as to how he came by his large wealth, but also to

satisfy the Court that his explanation was worthy of

acceptance, as observed in State of Madhya Pradesh Vs.

Awadh Kishore Gupta , (2004) 1 SCC 691.

43.The prosecution herein had proved, that the source

which had been proved by examining the witnesses, was not

worthy of acceptance. The appellant as accused could not

prove that his wife was legally entitle to accept money as gift

from P.W.18. No blood relation of the spouse of the appellant

is proved with P.W.18. The legal entitlement of receiving the

cash amount as gift should be in accordance to the accepted

provisions of conduct rules. Acceptance of money as gift from

person not being the member of the family, more specifically,

those not approved by the law, would always be a windfall

gain to be termed as illegal. This aspect can be well

understood by making a relevant reference of the case of K.

Ponnuswamy v. State of T.N., (2001) 6 SCC 674 , where it

was observed as under:

28. Now, let us see the facts of this case. The

prosecution has established beyond a reasonable

doubt, that prior to the check period Accused 1, 2 and

3 had no real source of income, except some meagre

income i.e. Accused 1 only earned a small salary as a

Lecturer and Accused 2 had a small agricultural and

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other income. Accused 3 being a student had no real

source of income. Prior to the check period the

financial condition of the family was such that Accused

1 could not even repay his small debts. The creditors

had to recover their amounts by filing suits and

executing decrees. We are presuming that Accused 4

had independent income. However, prior to the check

period Accused 4 had not been afflicted by any love and

affection and had not made any gifts to any member of

the family of Accused 1. Prior to the check period

Accused 4 did not even extend help to pay off the small

debts of Accused 1 even after the decrees had been

passed against Accused 1. Yet suddenly, during the

check period i.e. when Accused 1 is a Minister,

Accused 4 donates large sums of money to Accused 2

and 3. The natural presumption, considering the

common course of natural events and human conduct is

that Accused 1 would have used his nephew Accused 4

to transfer his (Accused 1's) monies to Accused 2 and

3. This is the supposition which any prudent man under

these circumstances would act upon considering the

natural course of events. The trial court and the High

Court thus rightly took this as proved by legal

evidence. The prosecution having established by legal

evidence that the monies were transferred by Accused

1 to Accused 2 and 3 through Accused 4 and that these

were monies of Accused 1 in the hands of Accused 2

and 3, it was for the appellant to satisfactorily account

for the gifts. He could have done so by showing that

even before the check period Accused 4 had made gifts

of substantial amounts. It has not been claimed by

Accused 2 and/or 3 and/or 4 that before the check

period also Accused 4 had made any such gifts. It is

also not their case that after the check period gifts

were made. Thus the trial court and the High Court

were right in not believing the case of gifts supposedly

made out of a sudden burst of love and affection. Both

the trial court and the High Court were right in

convicting the appellant. As we are told that the State

is going to file an appeal against the acquittal of

Accused 2 and 3, we are not making any comments

thereon.

44.In K. Ponnuswamy (supra) , the Hon’ble Supreme

Court was dealing with the aspects of gift to the members of

the family of the accused out of love and affection. The natural

presumption was drawn considering the course of events and

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human conduct and it was held that the money in the hands of

the accused and his family member was for accused to

satisfactorily account. The Apex Court had appreciated that

the Trial Court and the High Court were right in not believing

the case of gifts supposedly made out of sudden burst of love

and affection.

45.Learned Senior Advocate Mr. Panchal submitted that

everything was disclosed in the income tax return and

therefore there cannot be any doubt with regard to the

amount received as gift and the property purchased by the

wife of the appellant. This argument of learned senior

advocate Mr. Panchal can be dealt with by making a reference

of the case of State of Karnataka v. J. Jayalalitha, (2017)

6 SCC 263, it was observed as under:

●In tax regime, the legality or illegality of the

transactions generating profit or loss is

inconsequential qua the issue whether the Income is

from a lawful source or not. The scrutiny in an

assessment proceeding is directed only to quantify the

taxable income and the orders passed therein do not

certify or authenticate that the source(s) thereof to be

lawful and are thus of no significance vis-à-vis a charge

under Section 13(1)(e) of the 1988 Act.

●Though considerable exchanges had been made in

course of the arguments, centring around Section 43

of the Evidence Act, 1872, those need not be

expatiated in detail. Suffice it to state that even

assuming that the income tax returns, the proceedings

in connection therewith and the decisions rendered

therein are relevant and admissible in evidence as

well, nothing as such, turns thereon definitively as

those do not furnish any guarantee or authentication of

the lawfulness of the source(s) of income, the pith of

the charge levelled against the accused. It is the plea

of the defence that the income tax returns and orders,

while proved by the accused persons had not been

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objected to by the prosecution and further it

(prosecution) as well had called in evidence the income

tax returns/orders and thus, it cannot object to the

admissibility of the records produced by the defence.

To reiterate, even if such returns and orders are

admissible, the probative value would depend on the

nature of the information furnished, the findings

recorded in the orders and having a bearing on the

charge levelled. In any view of the matter, however,

such returns and orders would not ipso facto either

conclusively prove or disprove the charge and can at

best be pieces of evidence which have to be evaluated

along with the other materials on record. Noticeably,

none of the accused has been examined on oath in the

case in hand. Further, the Income tax returns relied

upon by the defence as well as the orders passed in the

proceedings pertaining thereto have been filed/passed

after the charge-sheet had been submitted.

Significantly, there is a charge of conspiracy and

abetment against the accused persons. In the overall

perspective therefore neither the Income tax returns

nor the orders passed in the proceedings relatable

thereto, either definitively attest the lawfulness of the

sources of income of the accused persons or are of any

avail to them to satisfactorily account the

disproportionateness of their pecuniary resources and

properties as mandated by Section 13(1)(e) of the 1988

Act.

●Where there is unexplained cash credit, it was open to

the Income Tax Officer to hold that it is the Income of

the assessee and no further burden lies on the Income

Tax Officer to show that that income is from any

particular source and that it is for the assessee to

prove that even if the cash credit represented income,

It is an income from a source which had already been

taxed.

●Though the IT returns and the orders passed in the IT

proceedings in the instant case recorded the Income of

the accused concerned as disclosed in their returns, in

view of the charge levelled against them, such returns

and the orders in the IT proceedings would not by

themselves establish that such Income had been from

lawful source as contemplated in the Explanation to

Section 13(1)(e) of the PC Act, 1988 and that

Independent evidence would be required to account

for the same.

●Property in the name of the income tax assessee itself

cannot be a ground to hold that it actually belongs to

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such an assessee and if this proposition is accepted, it

would lead to disastrous consequences. In such an

eventuality it will give opportunities to the corrupt

public servant to amass property in the name of known

person, pay income tax on their behalf and then be out

from the mischief of law.

45.1 The Hon’ble Supreme Court while making a reference of

the case of State of T.N. Vs. R.Soundirarasu , reported in

(2023) 6 SCC 768, i n the recent judgment in case of P.

Nallammal v. State, 2025 SCC OnLine SC 1040 , has made

observation:

16. We must also keep in mind that insofar as

corruption cases under section 13(1)(e) of the PC Act

are concerned, the burden of proof is reversed, and it

becomes the responsibility of the accused to dislodge

the presumption against him. This position has been

reiterated by this Court in State of T.N. v. R.

Soundirarasu, (2023) 6 SCC 768:

“83. Section 13(1)(e) of the 1988 Act makes a

departure from the principle of criminal jurisprudence

that the burden will always lie on the prosecution to

prove the ingredients of the offences charged and

never shifts on the accused to disprove the charge

framed against him. The legal effect of Section 13(1)(e)

is that it is for the prosecution to establish that the

accused was in possession of properties

disproportionate to his known sources of income but

the term “known sources of income” would mean the

sources known to the prosecution and not the sources

known to the accused and within the knowledge of the

accused. It is for the accused to account satisfactorily

for the money/assets in his hands. The onus in this

regard is on the accused to give satisfactory

explanation…”

In the present case, the prosecution succeeded in

establishing that the accused were in possession of

assets hugely disproportionate to their known sources

of income. The prosecution had successfully discharged

its initial burden. Thereafter, it was for the accused to

satisfy the Court, through cogent evidence, that the

assets are from legitimate sources. Upon perusal of the

material on record and considering the concurrent

findings of the Courts below, I am of the opinion that

the accused miserably failed to discharge this burden

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of satisfactorily explaining the source of income behind

the ‘disproportionate assets’.

46.The law, thus makes it clear that the ‘known sources of

income’ would mean the sources known to the prosecution

and not the sources known to the accused and within the

knowledge of the accused. The accused had to satisfy the

Court through cogent evidence that the assets are from

legitimate sources and had been informed to the prescribed

authority.

47.Here in this present matter, under Section 13(1)(e) of

the P.C. Act, the accused has failed to prove that the amount

received as gift by the wife had been intimated to the High

Court in accordance with the provisions of law, Rules or

orders applicable to the appellant. The receipt of the money

as gift, the purchase of the property in the name of the wife,

and the sale of the property to Dinubhai Solanki had not been

proved, to have been informed to the High Court by a prior

sanction. Explanation under Section 13(1)(e) of the P.C. Act

further clarifies that for the purpose of section 13(1)(e) the

meaning of income would be the income received from lawful

source and such receipt has been intimated, as provided by

law, rules or orders for the time being applicable to a public

servant. The phrase "known source of income", in Section

13(1)(e) has clearly laid the emphasis on the word "income". It

would be primary to observe that qua the public servant, the

income would be what is attached to his office or post,

commonly known as remuneration or salary.

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48.In the analysis of the evidence of witnesses and law

under the provision of section 13(1)(e) of the P.C. Act, with its

explanation, the appellant has miserably failed to discharge

his burden, which got shifted to him after the prosecution had

examined the witnesses to prove that the amount received as

gift was legal and the purchase of the property in the name of

wife was from the legal source, known to the High Court. The

appellant failed to prove that the gift transaction, purchase

and sale transaction of house was informed to the High Court

for prior sanction. The prosecution had proved the case

beyond reasonable doubt. The judgment of conviction and

sentence of the Trial Court under Section 13(1)(e) read with

section 13(2) of the P.C. Act does not require any interference

of this Court.

49. In the result the appeal is dismissed. The judgment of

conviction and sentence dated 30.05.2011 passed by the

learned Additional Sessions Judge, Ahmedabad (Rural)

Mirzapur, Ahmedabad in Special A.C.B. Case No.1-2/2005 is

upheld. Bail bond stands cancelled.

49.1 The appellant-accused to surrender before the jail

authority within fifteen days of this judgment, to serve the

sentence. Record and Proceedings be sent back to the

concerned Trial Court forthwith.

(GITA GOPI,J)

Pankaj/1

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