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CR.A/671/1999 14/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 671 of 1999
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 ?
=========================================================
RAMJIBHAI
KAVABHAI PATEL - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
YOGESH S LAKHANI for
Appellant(s) : 1,
MR HL JANI, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 07/07/2011
ORAL
JUDGMENT
The
appellant – original accused has preferred this appeal under
sec. 374(2) of the Code of Criminal Procedure, against the judgment
and order of conviction and sentence dated 23.06.1999 passed by the
learned Special Judge, Ahmedabad (Rural), in Special Case No. 11 of
1998, whereby, the learned Judge has convicted the appellant under
Section 7 of the Prevention of Corruption Act (for short “P.C.
Act”) and sentenced him to suffer RI for one year and to pay a
fine of Rs.2000/- i/d to suffer imprisonment for 6 (six) months. The
learned Judge has also held the appellant – accused guilty for
the offence under section 13(1)(d), r/w section 13 of the P.C. Act
and sentenced him to suffer for 2 (two) years and to pay a fine of
Rs.3,000/- i/d to further undergo imprisonment for a period of nine
months, which is impugned in this appeal.
2. The
brief facts of the prosecution case is as under:
It
is the case of the prosecution that, at the relevant time, the
appellant was serving as Talati-cum-Mantri at village Zezara. It is
alleged that on 21.11.1997, the complainant Zinabhai Mangabhai had
approached the appellant – accused in his office for obtaining
village form No. 7/12 and 8A as he wanted to take loan for the
purchase of Rickshaw – Chhakda. It is alleged that for issuing
such extract, the accused demanded Rs.1000/- as illegal
gratification and ultimately the accused agreed to take Rs.850/- as
illegal gratification. The complainant agreed to pay the said amount
to the accused in his office on 25.11.1997 at 11.00 A.M. As the
complainant was disinclined to pay the bribe amount to the accused
and, therefore, on 24.11.1997 he went to the office of Anti
Corruption Bureau, Ahmedabad (Rural) and met Shri Dodiya, Police
Inspector and appraised him of his disinclination to pay the bribe
amount, demanded by the accused for giving him the extracts of
village forms No.7/12 and 8A. The Police Inspector reduced the
complaint in writing and decided to lay a trap on the next day i.e.
on 25.11.1997 and accordingly he asked the complainant to come on
the next day i.e. on 25.11.1997 in the morning. Police Inspector
also aranged to call the panchas on that day in the morning at 8.00
O’clock in his office. On 25.11.1997 the panchas and the complainant
came. They were introduced with each other and other raiding party
members. The currency notes of Rs.850/- were got produced from the
complainant for the purpose of using the same in the trap for giving
to the accused, if demanded. After giving all of them understanding
about the utility and natural qualities of the anthracene powder and
ultra-violet lamp, the currency notes of Rs.850/- were treated with
anthracene powder by Police Head Constable, at the instruction of
P.I. After having treated with anthracene powder and experimented
with ultra violet lamp, the said currency notes were placed in the
fold of rexine money purse which was kept empty on personal search
being made of the complainant and that money purse containing these
notes was put in the left side pocket of the bush-shirt of the
complainant. Necessary instructions were given to the complainant,
panchas and other members of the raiding party. Thereafter, the
first part of the panchnama was done in the office of A.C.B.
Thereafter, the raiding party along with panchas proceeded in
Government vehicle towawrds village Zezara. The complainant and
Panch No.1 thereafter went to the office of accused and other
members walked behind them. The complainant and Panch No.1 entered
into the Panchayat office and other raiding party members kept
themselves concealed around that office. It is alleged that at about
2.00 O’clock in the noon, the complainant and panch No.1 came back
from the office and informed the P.I. that the accused asked the
complainant to call his uncle Virjibhai and then only the extracts
will be given and he was asked to come latest by about 4.00 to 5.00
PM. Thereafter, the complainant came back with his uncle Virjibhai
and thereafter the complainant, along with Panch No.1 and his uncle
went in the office of Gram Panchayat Zezara. The accused prepared
the extract and gave it to the complainant and asked him to pay the
amount and thereupon the complainant took out tainted currency notes
from his pocket and put that amount on the table and put a paper on
the currency notes. Thereafter, the raiding party rushed to the
office of accused on signal being given by the complainant. The
Police Inspector disclosed his identity to the accused and recovered
the amount, which was placed by the complainant on the table.
Thereafter, the currency notes, papers and the hands of the accused
were experimented with the aid of ultra violet lamp and on such
experiment, the light blue florescent light was found emitted
therefrom. The currency notes and the papers were seized under the
panchnama, prepared in presence of panchas. The Police Inspector
recorded the statement of Virjibhai (uncle of the complainant –
P.W.4) and Arjanbhai Merubhai, (P.W.3) Peon of the accused’s office.
Thereafter, the offence was registered against the accused and the
investigation was entrusted to PI Shri Vaishnav.
Thereafter,
PI Shri Vaishnav carried out the investigation. The statement of
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 7, 13(1)(d) and 13(2) of P.C. 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 as many as 5 (five) 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
accused has also produced his statement in writing (Exh.23) in which
it has been stated that complainant Zinabhai was to pay the
Government dues at the time of incident and that amount was being
paid after the incident and the accused has also produced the
statement showing the outstanding amount in the account of Zinabhai,
the complainant. He has further stated in his statement that false
complaint is filed by the complainant against him at the instance of
Premjibhai Shivabhai, MLA, who has enmity against the accused.
After
considering the oral as well as documentary evidence and after
hearing the parties, learned Judge vide impugned judgment and order
dated 23.06.1999 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 dated 23.6.1999, passed by the learned
Special Judge, Ahmedabad (Rural) in Special Case (ACB) No.11 of
1998, the present appellant has preferred this appeal.
Heard
Mr. Y.S. Lakhani, learned Senior Advocate for the appellant and Mr
H.L. Jani, learned APP for the respondent-State.
Mr.
Lakhani, learned advocate, appearing for the appellant has read the
charge Exh. 6 and contended that as per the charge, it appears that
the alleged trap amount was put by the complainant on the table of
the appellant – accused. The complainant, in his examination
in chief, in Para – 5, has also deposed that when the copy of
village form No.7/12 was prepared and given to the witness, at that
time the trap amount was given to the appellant – accused. As
per the say of this witness, he has stated that when the appellant –
accused Talati told him that the amount is required to be given and,
therefore, it was given and that trap amount was put on the table by
the present witness and on that trap amount one paper was put by the
Talati and then signal was given. He has contended that if the
deposition of the witnesses are seen and read together, it is
clearly coming out on record that there are material contradictions
in the deposition of witnesses. If the depositions are kept in mind
together it is not possible to reconcile as to how and in what
manner the incident has occurred. He has contended that when the
deposition of the peon of the office is considered, he has
categorically stated that the complainant wanted to give money to
the accused, but, he refused to accept it and, therefore, the
complainant put the money on the table. He has contended that the
complainant, in his deposition, has also not stated that the money
was put on table on being asked by the accused. He has contended
that when the witnesses are not consistent in the story which go to
the root of the case, the accused cannot be held guilty for the
offences alleged against him. He has contended that when the demand
is not proved beyond reasonable doubt, then no case can be proved
against the accused beyond reasonable doubt. Mr. Lakhani has read
the cross examination of the complainant and contended that the
complainant has categorically admitted in his cross examination that
when the complainant had gone to obtain the certificate from the
Talati, at that time, the Talati informed him that whatever dues of
the Government are pending, he has to pay and then he would get the
Certificate. The complainant has also admitted that he has visited
the office of Talati often frequently and, therefore, he was
displeased with the accused. He has contended that it has also come
in evidence that “after putting the amount on the table and
after preparing the bunch of extracts, to be given to the
complainant, the accused had gone out of his office for urinal.”
If the accused intended to accept the bribe money then he would have
taken the money with him when he left office for urinal, which
clearly suggests that he did not accept the amount though offered
and placed by the complainant on the table. He has contended that
the conduct of the complainant is not natural. The complainant has
stated in his evidence that for giving extracts he was called on 4
to 5 occasions by the accused, however, the complainant did not
disclose this fact to his uncle P.W.4 – Virjibhai. Therefore,
the story put forward by the complainant is not believable and it
cannot be said that the prosecution established the initial demand
of bribe by the accused from the complainant. Mr. Lakhani has
further contended that there are discrepancies in version of the
prosecution witnesses as to timings of giving signal by the
complainant and, therefore, the evidence of the witnesses cannot be
said to be trustworthy. Mr. Lakhani has also contended that the
complainant has admitted in his cross examination that he is
uneducated and illiterate and, therefore, when he had gone to file
complaint one Sagarbhai was with him and said Sagarbhai and Dodiya
Saheb (Trapping Officer) have written the complainant and he was
asked to put the signature. He has also admitted in his cross
examination that on the next day when he had gone to A.C.B. Office,
said Sagarbhai was with him. However, the prosecution has not
examined this material witness Sagarbhai to corroborate the say of
the complainant. Therefore, non-examination of this material witness
would be fatal the case of the prosecution. Mr. Lakhani has also
read the evidence of P.W.2 – Vijaykumar Laljibhai Prajapati
(Exh.10) and contended that this witness is a panch witness, who had
accompanied the complainant. He has contended that from the evidence
of this witness, it is clearly established that there is no demand
made by the appellant – accused. Mr. Lakhani has also read the
evidence of P.W.4 – Virjibhai Kachrabhai (Exh.19) and
contended that from the evidence of this witness also the
prosecution is not able to establish the demand made by the
complainant. He has contended that looking to the over all evidence
the demand and acceptance is not proved and, therefore, the Judgment
and order of conviction passed by the learned Judge may be quashed
and set aside. 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 Jani, 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 looking to the evidence
of complainant, Panch witness and the Trapping Officer, the demand,
recovery and acceptance by the accused is proved and, therefore, no
interference is called for by this Court. He has contended that the
learned Judge has considered each and every aspect of the matter and
has passed absolutely just and proper judgment. Mr. Jani has also
contended that the presumption is required to be drawn against the
accused under Section 20 of the P.C. Act. He has also contended that
the trap amount is recovered from the table of the accused and from
the evidence of the complainant and other witnesses it is clearly
established that at the instance of accused the said amount was put
on the table of the accused.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 corruption cases 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 Jinabhai Mangabhai (Exh.9)
– the complainant, it is clearly established that he is
illiterate person. He has categorically admitted in his evidence
that when he had gone to file complaint, one Sagarbhai was with him
and said Sagarbhai and Dodiya Saheb (Trapping Officer) have written
the complaint and asked him to put his signature. Even on the next
day, as per the deposition of the complainant, said Sagarbhai had
accompanied the complainant at the A.C.B. Office. However, the
prosecution has not examined this star and material witness to prove
it case beyond reasonable doubt. From the evidence of P.W.3 –
Arjanbhai Merubha (Exh.12), who is Peon in the Panchayat office, it
clearly appears that at the time of incident he was present in the
office. He has categorically deposed that complainant has asked the
Talati for copy and that Talati told the complainant that he is
giving. He has also stated that the complainant has given money, but
the complainant did not accept it and, therefore, the complainant
has put the amount on the table. In the present case the amount is
recovered from the table of the accused, but, in connection of
demand alleged to have been made by the accused, no fruitful or
reliable circumstantial evidence is produced on record. Even no
anthracene powder was found from the body of the accused and when
the demand and acceptance is not proved beyond reasonable doubt then
the learned Judge has committed grave error in holding the appellant
– accused guilty for the offences alleged against him.
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 from the evidence of panch witness, it is not
established that whether any demand has been made by the appellant
from the complainant. Looking to the evidence, it clearly appears
that there are material contradictions in the evidence of
prosecution witnesses. I have also perused the statement of the
present appellant recorded under sec.313 of Code of Criminal
Procedure and the additional reply submitted by the accused vide
Exh.23, in which he has stated that the complainant had approached
him for obtaining certificate showing that there is no Government
dues pending in the name of complainant. It is also stated in the
said writing that some dues were pending and at the time of incident
the complainant has paid the amount towards the pending dues. The
accused has also produced certified copy of document showing that
the amount was due in the account of the complainant. He has
mentioned in the said writing that the local M.L.A. Shri Premjibhai
Shivabhai Vadvani was having enmity with the accused and the
complainant was a man of said M.L.A. and, therefore, false case has
been filed against him. The probable defence is established by the
present appellant beyond reasonable doubt. In the decision of the
Hon’ble Supreme Court in the case of Banarsi Das Vs. State of
Haryana, reported in AIR 2010 SC 1589, the Hon’ble Supreme
Court has observed that mere proof of recovery of bribe money from
accused not sufficient to prove the offence. In that view of the
matter, I am of the opinion that so far as the offence of bribery is
concerned, the demand and acceptance of bribe is required to be
proved beyond reasonable doubt. The amount is also not recovered
from the appellant – accused. Even the anthracene powder was
also not found on the person of the accused. Therefore, in absence
of any evidence regarding the demand, then mere recovery, that too
on the table of the appellant – accused, is not sufficient to
convict the present appellant and no presumption can be raised, 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 23.06.1999 passed by the learned
Special Judge, Ahmedabad (Rural) in Special Case No. 11 of 1998 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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