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CR.A/672/1997 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 672 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
AMRUTLAL
RAMDAS PATEL - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
YOGESH S LAKHANI for
Appellant(s) : 1,
MR RC KODEKAR, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 24/03/2011
ORAL
JUDGMENT
The
present appellant has preferred this appeal under sec. 374 of the
Code of Criminal Procedure, against the judgment and order of
conviction and sentence dated 21.7.1997 passed by the learned
Special Judge, Banaskantha at Palanpur, in Special Case No. 17 of
1989, whereby, the learned Judge has held the appellant –
accused guilty for the offences under Sections 161 and 301 of I.P.
Code and for the offence under sections 5(1)(g) read with Section
5(2) of Prevention of Corruption Act (for short “the Act”)
and convicted the appellant (i) for the offence under section 161 of
I.P. Code and sentenced him to suffer simple imprisonment of 1 (one)
year and to pay a fine of Rs.250/- i/d to further undergo SI for 3
(three) months; (ii) for the offence under Section 201 of I.P. Code
and sentenced him to suffer simple imprisonment of 2 (two) months;
for the offence under Section 5(1)(g) read with Section 5(2) of P.C.
Act and sentenced him to suffer simple imprisonment for 1 (one) year
and to pay a fine of Rs.100/- i/d to undergo SI for 3 (three)
months. The learned Judge has ordered that the sentences shall run
concurrently.
2. The
brief facts of the prosecution case is as under:
It
is the case of the prosecution that the complainant is an
agriculturist. It is alleged that for doing the agriculture work in
winter season he required to complete the papers for obtaining the
loan from the Government, through State Bank of India and,
therefore, he approached the Talati (accused-appellant herein) and
asked for copies of village form 7×12 and form 8 from him. It is
alleged that for preparing the said documents, the accused has
demanded Rs.500/- from the complainant. The complainant has
requested to reduce the said amount, however, the appellant did not
consider the request for reducing the amount. It is alleged that
Rs.300/- was required to be paid by the complainant to the accused
at the time of preparing the papers and the remaining amount of
Rs.200/- was to be paid after the loan was sanctioned. It is alleged
that on 22.9.1987 the complainant had gone to the house of accused
and asked for the papers. The accused told him that the papers are
ready and demanded Rs.300/-., and thereupon the complainant told him
that he will pay the amount tomorrow i.e. on the next day.
Thereafter, the complainant approached the A.C.B. Office at Palanpur
and met P.I. Mr. Gohil. The complaint was lodged and two panchas
were called. Thereafter, the currency notes were smeared with
anthracene powder, experiment of ultra violet lamp was carried out
in the A.C.B. Office in presence of two panchas and the complainant
and they were made to understand about the trap. Thereafter, the
raiding party, complainant and the panchas have proceeded to Deodar
and as per pre-arrangement the complainant and Panch have gone to
the house of the accused. It is alleged that the complainant has
asked for the papers from the accused. The accused had handed over
the papers and obtained Rs.300/- in presence of panch No.1.
Thereafter, the complainant had called the raiding party. They made
search from the accused and also in the house of the accused, but,
the amount could not be found out. The raiding party has seized the
copy of 7×12 extract and form No.8(A) from the complainant which was
given by the accused. Experiment of ultra-violet lamp was done on
the person of the accused where on the cloths and on the finger tip
of the accused, anthracene powder was found. Thereafter, the
panchnama was carried out in presence of panchas.
Thereafter,
the complaint was registered against the appellant. Statement of the
complainant and other witnesses were recorded. Necessary sanction
was obtained from the concerned Authority and after the
investigation was over the charge-sheet was filed against the
appellant under Section 161 and 201 of I.P. Code and under Section
5(1)(g) read with Section 5(2) of the Act.
Thereafter,
the charge was framed against the appellant. The appellant –
accused has pleaded not guilty to the charge and claimed to be
tried.
In
order to bring home the charge levelled against the appellant-
accused, the prosecution has examined the witnesses and also relied
upon the documentary evidence.
Thereafter,
after examining the witnesses, further statement of the
appellant-accused under sec. 313 of Cr PC was recorded in which the
appellant-accused has denied the case of the prosecution. The
appellant – accused filed his written statement vide Exh.49.
It is mentioned in the said statement that before the incident the
complainant had approached him and asked for copies of revenue
record and at that time, after seeing the record, it was told to the
complainant that he should pay the dues which are pending in the
name of his grand father and uncle and then he can take the papers,
It is also stated that every month the meeting of Talatis are held
in the office of Taluka Development Officer and they are instructed
that if anybody comes for copy of revenue record, they shall insist
to recover the pending dues. Therefore, the accused has demanded the
amount towards pending dues from the complainant. It is also stated
in the statement that on the date of incident, the accused was in
his house and along with him, other four persons were there and at
that time only the complainant came and informed him that he has
brought the pending dues and asked for the papers and, therefore, he
had gone in the house and brought the papers and receipt book with
him and gave the papers to the complainant and thereafter the
complainant gave Rs.300/- to him. The accused has, therefore, told
the complainant that the dues are more than that he has paid and
thereupon the complainant told him that he will pay the remaining
afterwards. Thereupon he returned back the papers from the
complainant and put them in the pocket of the pant. Thereafter, the
complainant had gone out of his house and after some time he came
with raiding party. The amount was not found from his person or
from his house. Thereafter, he was taken to the Deodar Rest House
and then prepared the documents and false case has been filed
against him. The accused has also examined witness (DW – 1)
Dhanjibhai Mafatbhai Atecha Exh. 51.
After
considering the oral as well as documentary evidence and after
hearing the parties, learned Judge vide impugned judgment and order
dated 24.07.1997 held the appellant – accused guilty to the
charge levelled against him and convicted and sentenced the
appellant accused, as stated above.
Being
aggrieved by and dissatisfied with the impugned judgment and order
of conviction and sentence passed by the learned Special Judge,
Palanpur, the present appellant has preferred this appeal.
Heard
Mr. Y.S. Lakhani, learned Senior Advocate for the appellant and Mr
R.C. Kodekar, learned APP for the respondent-State.
Mr
Lakhani, learned Counsel, appearing for the appellant has read the
charge Exh.5 and contended that even from the contents of the
charge, prima facie, doubt is created from the papers as well as
from the statement of the witness and the panchnama and the
complainant himself. He has read the oral evidence of P.W.1 –
complainant Narsinh Manaji Mali (Exh.9) and contended that this
witness is a star witness of the prosecution, who has not supported
the case of the prosecution. Mr. Lakhani has also read the oral
evidence of P.W.2 – Sagathabhai Virbhanbhai (Exh.15) and
contended that this witness is an eye witness, who was present at
the time of alleged incident. He has contended that looking to the
evidence, this witness has not supported the case of the
prosecution. Mr. Lakhani has also read the oral evidence of P.W.3 –
Haribhai Jivabhai Patel (Exh.16) and contended that this witness was
present at the time of alleged incident. However, the prosecution
could not get any support from his evidence to prove its case. Mr.
Lakhani has also read the oral evidence of P.W.4 –
Ramchandbhai Bhanabhai (Exh.18) and contended that this witness was
also present at the time of alleged incident. However, this witness
has also not supported the case of the prosecution. Mr. Lakhani has,
therefore, contended that though the prosecutions witnesses No.2 to
4 were present at the time of alleged incident and at that time the
alleged demand was made by the accused from the complainant, the
prosecution could not establish its case beyond reasonable doubt to
prove the case against the appellant. It is not the case of the
prosecution that they are interested witnesses and, therefore, from
their evidence the prosecution could not establish its case beyond
reasonable doubt. He has also read the evidence of PW No.5 –
Niranjankumar Dalpatram Trivedi (Exh. 19), who was serving as Clerk
in Administrative Department of Taluka Panchayat. He has stated that
the concerned officer, who has accorded the sanction has been
retired from service. He has stated that the PI of ACB, vide letter
dated 3.2.1988 has obtained sanction. However, in cross examination
he has categorically deposed that he has no knowledge about the
papers produced at Exh.20. Mr. Lakhani has, therefore, contended
that the evidence of this witness would not be helpful to the case
of prosecution. Mr. Lakhani has thereafter read the oral evidence of
P.W.6 – virjibhai Parthibhai Chaudhry (Exh.21) and contended
that this witness was Panch No.2, who was instructed to remain with
the raiding party. He has contended that this witness was not an eye
witness to the alleged incident and from this evidence also the
prosecution could not be able to establish the case against the
accused. He has contended that even in examination-in-chief also
this witness has categorically deposed that amount was not recovered
from the accused and even during the search from his house the
amount was not found. It is also an admitted fact that when the
alleged trap amount was given, thereafter the appellant –
accused had not gone any where, however, the trap amount was not
found in his possession or even during the search of his house the
same was not found and, therefore, where the amount had gone that
is not clarified by the prosecution. He has also read the contents
of the panchnama and contended that even from the evidence of Panch
(P.W.8) (Ex.36) the prosecution has failed to prove the whole
contents of the panchnama and, therefore, they have no right to say
that the prosecution has proved its case beyond reasonable doubt. He
has contended that P.W. 9 Madarji Parthiji (Exh. 42), Head Constable
in the office of A.C.B., is a formal witness and he is not an eye
witness. He has also read the evidence of P.W. 11 (Exh.44) –
Ranjitsinh Laxmansinh Gohil, Trapping Officer. He has admitted in
his evidence that when they reached just near the house of the
appellant – accused, at that time, the complainant met and
conveyed him that everything is now over, but, when he reached the
house of the appellant, during search, he has not recovered any
amount from the possession of the accused or even during the search
of his house, nothing was found. He has contended that the learned
Judge has only relied upon the oral evidence of P.W.6 (Exh. 21) and
held the appellant guilty to the charges alleged against him. He has
contended that it is established law that when the sufficient doubt
is created by the defence then the accused is entitled for the
benefit of doubt. Mr. Lakhani has also relied upon a decision in
the case of BANARASI DAS v/s STATE OF HARYANA, reported in AIR 2010
SC 1589 and contended that in absence of proof of demand, the
prosecution has failed to prove its case beyond reasonable doubt and
the Judgment of the trial Court may be quashed and set aside and the
appellant may be acquitted from the charges alleged against him.
As
against this, Mr Kodekar, learned APP appearing for the respondent –
State has supported the Judgment and order passed by the learned
Special Judge. He has contended that the learned Judge has not
committed any error in holding the appellant guilty of the charges
levelled against him. He has contended that when the anthracene
powder was found from the clothes and finger tip of the accused then
the prosecution has proved its case beyond reasonable doubt. He has
contended that looking to the evidence of prosecution witnesses and
the Trapping Officer, the demand and acceptance by the accused is
proved and, therefore, no interference is called for by this Court
and probable defence is not established by the present appellant. He
has contended that the learned Judge has considered each and every
aspect of the matter and has passed absolutely just and proper.
Therefore also, the impugned judgment and order of conviction and
sentence passed by the learned Judge requires to be confirmed.
I
have gone through the impugned judgment and order passed by the
learned Judge and oral as well as documentary evidence produced on
the record. I have read the oral evidence of prosecution
witness-complainant and also perused the charge framed against the
appellant. It is pertinent to note that in a case of corruption four
things are required to be appreciated, viz. (I) initial demand, (ii)
second demand to be made in presence of Panch, (iii) voluntary
acceptance and (iv) recovery of amount.
From
the perusal of the oral evidence of P.W.1 Narsinh Manaji Mali, the
complainant, it is established that the demand and acceptance is not
proved. The complainant is not reliable witness and his evidence is
required to be considered as doubtful evidence. From the oral
evidence of P.W.6 – Panch witness, who is star witness of the
prosecution, the prosecution has failed to establish that trap
amount was recovered from the possession of the appellant. No doubt
from the evidence it is established that the amount was handed over
to the appellant – accused in his house in presence of
independent witnesses, examined by the prosecution, however, the
said amount was not found from the possession of the appellant –
accused and even during the search of his house also the said amount
was not found and, therefore, the question is that if the amount was
accepted by the appellant, then where the amount had gone? None of
the witnesses nor even the trapping officer could say anything about
the recovery of amount. No doubt the defence has failed to establish
the presence of anthracene powder on the cloths and finger tips of
the accused, but, from the cross examination of the witnesses,
sufficient dout is created by the defence. In criminal law, when the
doubt is created, then the benefit of doubt is required to be given
to the present appellant.
Looking
to the overall evidence of the prosecution witnesses, it is clearly
established that the appellant has not made any demand from the
complainant. Even the panch witness has also not stated that
whether any demand has been made by the appellant from the
complainant. The amount, which was alleged to have demanded by the
appellant – accused, was also not found from the possession of
the appellant or even during the search of his house also the same
was not found. Even in the evidence of independent witnesses who
were present at the time of alleged incident, the prosecution has
failed to establish that any demand was made by the appellant –
accused from the complainant. No doubt, as per the say of the
prosecution, presence of anthracene powder is found on the clothes
and finger tips of the appellant, but, whether the said amount was
demanded by the appellant from the complainant is not established,
then it is difficult to believe the case of the prosecution. I have
also perused the statement of the present appellant recorded under
sec.313 of Code of Criminal Procedure It is established that the
complainant want to get the benefit of loan from the State
Government, through State Bank of India, and, therefore, he was in
need of Revenue record and for that purpose he approached the
appellant – accused. However, the appellant told him that
first you clear the outstanding dues of his grand father and uncle
and then he would get the papers and when the complainant approached
the appellant – accused with Rs.300/-, the appellant told him
that amount was more and, therefore, he returned the said amount and
taken back the papers given to the complainant. Therefore, it is
difficult to believe as to whether any demand is made by the
appellant – accused. The appellant was not knowing that the
amount was smeared with currency powder and, therefore, the
anthracene powder must have found from the cloths and finger tips of
the appellant accused, but, it cannot be said that the appellant –
accused demanded the money as an illegal grantification from the
complainant. The probable defence is established by the present
appellant beyond reasonable doubt. In the latest decision of the
Supreme Court in the case of Banarsi Das Vs. State of Haryana,
reported in AIR 2010 SC 1589, wherein, the Hon’ble Supreme
Court has observed that mere proof of recovery of bribe money from
accused not sufficient to prove the offence. Even in the present
case the demand is not established and the amount was not recovered
from the possession of the accused. In that view of the matter, I am
of the opinion that so far as the offence of bribery is concerned,
the demand, acceptance and recovery of bribe amount is required to
be proved beyond reasonable doubt. Therefore, in absence of any
cogent evidence regarding the demand, acceptance and recovery of
amount, it is difficult to believe the case of prosecution and
hence, this appeal deserves to be allowed.
In
the result, this appeal is allowed. The impugned judgment and order
of conviction and sentence dated 21.07.1997 passed by the learned
Special Judge & Additional Sessions Judge, Banaskantha at
Palanpur, in Special Case No. 17 of 1989 is hereby quashed and set
aside. The appellant-accused is hereby acquitted from all the
charges levelled against him. Fine, if paid, be refunded to the
appellant. The appellant-accused is on bail, his bail bonds stands
discharged. R & P to be sent back to the trial court forthwith.
(Z.K.SAIYED,
J.)
sas
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