{"id":109637,"date":"2011-05-12T00:00:00","date_gmt":"2011-05-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thakkar-vs-state-on-12-may-2011"},"modified":"2017-02-24T22:24:15","modified_gmt":"2017-02-24T16:54:15","slug":"thakkar-vs-state-on-12-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thakkar-vs-state-on-12-may-2011","title":{"rendered":"Thakkar vs State on 12 May, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Thakkar vs State on 12 May, 2011<\/div>\n
Author: Z.K.Saiyed,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/420\/2001\t 11\/ 11\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 420 of 2001\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n======================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n======================================\n\n\n \n\nTHAKKAR\nRAMESHKUMAR MAFATLAL - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n======================================\n \nAppearance\n: \nMR\nKB ANANDJIWALA for Appellant(s) : 1, \nMR HL JANI ADDITIONAL PUBLIC\nPROSECUTOR for Opponent(s) :\n1, \n======================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\n\t\t\tDate\n: 12\/05\/2011 \n\n \n\n \nCAV\nJUDGMENT \n<\/pre>\n
The
\n\tpresent appellant has preferred this appeal under Section 374 of the
\n\tCode of Criminal Procedure, against the judgment and order of
\n\tconviction and sentence  dated 25.5.2001 passed by the learned
\n\tSpecial Judge (ACB), Mehsana in Special (ACB) Case No.14 of 1993,
\n\twhereby, the learned Judge has held guilty the appellant under
\n\tSections 7 and Section 13(2) of the Prevention of Corruption Act
\n\t(for short “Act”) and sentenced conjointly for both the
\n\toffences to undergo R.I. for one year and to pay a fine of Rs.500\/-
\n\ti\/d to further undergo S.I. for 15 days.\n<\/p>\n
2.\tThe
\nbrief facts of the prosecution case is as under:\n<\/p>\n
It
\n\tis the case of the prosecution that the appellant was serving as
\n\tUnarmed Police Constable, having Buckle No.2065 at Mehsana Taluka
\n\tPolice Station. On 20.6.1993, P.I. Mr. Rana of the aforesaid Police
\n\tStation took three persons namely Raghuji, brother of complainant
\n\tSardarji Bhemaji, Sartanji Prajapati and one lady Urmilaben
\n\tLaljibhai Patel in custody as they were found on the highway in dark
\n\thours of night. Therefore, the complainant and one Rabari Kanjibhai
\n\tNathabhai came to Mehsana for necessary inquiry at Taluka Police
\n\tStation, Mehsana and they saw Raghuji and Sartanji were in police
\n\tlock up. Thereafter, they contacted appellant – accused and at
\n\tabout 4 p.m., the complainant and said Kanjibhai went to the police
\n\tstation and again contacted the accused and said Kanjibhai told that
\n\tthey had come only for the release of Raghuji. Therefore, the
\n\taccused told the complainant to give him Rs.500\/- for release of
\n\tRaghuji and it is also alleged that the appellant told the
\n\tcomplainant that without accepting Rs.500\/-, he would not release
\n\tRaghuji and he told the complainant to come with the amount. As the
\n\tcomplainant and said Kanjibhai were not willing to pay the amount of
\n\tRs.500\/- to the accused and, therefore, they approached ACB Police
\n\tStation and lodged complaint against the accused. After completing
\n\tthe formalities, preliminary part of panchnama was drawn. Two
\n\tpanchas were called and necessary instructions were given to the
\n\tcomplainant by the ACB party. The complainant along with panch and
\n\traiding party members proceeded to the Mehsana Taluka Police
\n\tStation. On reaching there, the complainant, Kanjibhai and panch
\n\tNo.1 proceeded to Taluka Police Station situated on the 3rd
\n\tFloor of the building and these three persons went inside the Taluka
\n\tPolice Station. They contacted the accused and at that time, the
\n\taccused was doing some other work. After about 10 minutes, the
\n\taccused went outside the chamber and he was being followed by the
\n\tcomplainant, said Kanjibhai and panch No.1. It is alleged  that the
\n\taccused thereafter came with Raghuji and while standing in the
\n\tcorridor, the demand was made and the amount was passed on.
\n\tInitially, the amount of Rs.400\/- was offered, however, the accused
\n\tinsisted for Rs.500\/- and, therefore, Rs.100\/- was later on passed
\n\ton and that is how the amount of Rs.500\/- was given to the accused.
\n\tAccording to the prosecution, the prearranged signal was given and
\n\timmediatley the raiding party rushed upstairs and the accused threw
\n\tthose currency notes from the 3rd Floor balcony to the
\n\tground floor and the notes were found lying on the ground.\n<\/p>\n
Thereafter,
\n\tthe complaint was registered against the appellant. Statement of the
\n\tcomplainant and other witnesses were recorded. Necessary sanction
\n\twas obtained from the concerned Authority and after the
\n\tinvestigation was over the charge-sheet was filed against the
\n\tappellant under Section 7 and 13(2) of Act.\n<\/p>\n
Thereafter,
\n\tthe charge was framed against the appellant at Exhibit 12.. The
\n\tappellant – accused pleaded not guilty to the charge and
\n\tclaimed to be tried.\n<\/p>\n
In
\n\torder to bring home the charge levelled against the appellant-
\n\taccused, the prosecution has examined the witnesses Viz. P.W.1
\n\tSardarji Bhemaji, complainant at Exhibit 15, P.W.2 Kanjibhai
\n\tNathabhai Rabari at Exhibit 17, P.W.3 Bharatkumar Jayantilal Trivedi
\n\tat Exhibit 18 and P.W.4 Gajendrasinh Pratapsinh Puvar, P.I. ACB at
\n\tExhibit 24 and also relied upon the various documentary evidence.\n<\/p>\n
Thereafter,
\n\tafter examining the witnesses, further statement of the
\n\tappellant-accused under Section 313 of Code of Criminal Procedure
\n\twas recorded in which the appellant-accused has denied the case of
\n\tthe prosecution.\n<\/p>\n
After
\n\tconsidering the oral as well as documentary evidence and after
\n\thearing the parties, learned Special Judge vide impugned judgment
\n\tand order dated 25.5.2001 held the appellant – accused guilty
\n\tto the charge levelled against him and convicted and sentenced the
\n\tappellant accused, as stated above.\n<\/p>\n
Being
\n\taggrieved by and dissatisfied with the impugned judgment and order
\n\tof conviction and sentence passed by the learned Special Judge
\n\t(ACB), Mehsana, the present appellant has preferred this appeal.\n<\/p>\n
Heard
\n\tMr. K.B. Anandjiwala, learned advocate for the appellant and Mr.
\n\tH.L. Jani, learned APP for the respondent-State.\n<\/p>\n
Mr
\n\tAnandjiwala, learned advocate, appearing for the appellant submitted
\n\tthat the judgment and order passed by the learned Special Judge is
\n\terroneous, without appreciating the facts and evidence on record.
\n\tEven there was no specific demand on the part of the accused and the
\n\tacceptance of money was not proved by the prosecution as per the
\n\tprovisions of the Prevention of Corruption Act. He submitted that
\n\tthe complainant was declared hostile and at the police station, as
\n\tper the evidence of said witness complainant P.W.1 at Exihibit 15,
\n\tsome policeman told him that for the purpose of releasing Raghuji,
\n\tRs.500\/- was to be paid by way of surety and as the complainant had
\n\tnot possessed that much amount, at the instance of Kanjibhai, both
\n\tof them went to the ACB office. After treating him hostile, he
\n\tdeposed that he did not remember as to whether in his complaint the
\n\tpoliceman, who demanded the money was named as Rameshbhai Thakkar,
\n\tappellant accused. Learned advocate further submitted that
\n\ttherefore, whatever is deposed by the complainant with regard to the
\n\tdemand, is required to be accepted as the evidence. The demand of
\n\tRs.500\/- was made for the purpose of taking surety and not towards
\n\tillegal gratification, other than the procedural aspects. Therefore,
\n\tfrom the evidence, it does not transpire that the object behind the
\n\tdemand was illegal and the amount which was alleged to have been
\n\tdemanded was towards illegal gratification, but the said amount of
\n\tRs.500\/- was as surety. Learned advocate Mr. Anandjiwal further
\n\tsubmitted that P.W.2 Kanjibhai Nathabhai Rabari at Exhibit 17, was
\n\tpresent along with the complainant and this witness is not treated
\n\thostile by the prosecution. This witness deposed that after reaching
\n\tto Taluka Police Station, they contacted the Head Constable with
\n\tregard to Raghuji. Thereafter, some talks had taken place with
\n\tregard to the bail amount and the amount of bail Rs.500\/- was
\n\tdemanded. Thereafter, this witness thought to give much amount
\n\tRs.500\/- was unwise and, therefore, at the instance of one
\n\tRamjibhai, the complaint was lodged before ACB Office. At the time,
\n\twhen the complainant and said Kanjibhai visited the Police Station,
\n\tthe accused was not present there. He submitted that even this
\n\twitness stated in cross-examination that it was not true that he had
\n\tstated before the police in is statement that PSO told to give
\n\tRs.500\/- to the accused. Therefore, the learned advocate submitted
\n\tthat looking to the evidence of this witness also it cannot be said
\n\tthat the demand of Rs.500\/- made by the accused is proved by the
\n\tprosecution. It becomes crystal clear from the evidence of both
\n\tthese witnesses that the PSO – Head Constable has asked the
\n\tcomplainant about the bail amount of Rs.500\/- for releasing the
\n\tRaghuji on bail and not for any other purpose. Learned advocate
\n\tfurther submitted that in the present case, the most vital part of
\n\tthe evidence in corruption cases i.e. the demand of illegal
\n\tgratification is lacking and is not established and the whole case
\n\tis failed. Learned advocate further submitted that in the present
\n\tcase, it is doubtful as to whether Sardarji is the complainant and
\n\tthe complaint has been recorded as per his say.  According to the
\n\tevidence of complainant Sardarji, when he went to ACB Office, along
\n\twith him, one Kanjibhai, Ramjibhai and other persons were present
\n\tand Ramjibhai had a talk with the officer in the ACB office. In
\n\tcross-examination, the P.W.1 stated that in Police Station when he
\n\thad gone for the first time, he sat by the side while Ramjibhai had
\n\ta talk with the policeman and this witness had some quarrel with the
\n\tpoliceman in past. Even the arrangement of the amount was made by
\n\tRamjibhai. Learned advocate Mr. Anandjiwala further submitted that
\n\tsimilarly, Kanjibhai Nathabhai, P.W.2 examined at Exhibit 18 stated
\n\tin his cross-examination that at the ACB office, Ramjibhai went
\n\tinside and met PI ACB and he had a talk with PI. Therefore, it
\n\tbecomes clear that the complaint against the accused was lodged at
\n\tthe instance of Ramjibhai. From the evidence of P.W.3 Bharatkumar
\n\tJayantilal Trivedi, the demand, which was made on the part of the
\n\taccused is not at all established. He also read the oral evidence of
\n\tP.W.4 – Gajendrasinh Pratapsinh Puwar at Exhibit 24.
\n\tTherefore, learned advocate submitted that the judgment and order of
\n\tconviction and sentence passed by the learned Special Judge is
\n\trequired to be dismissed by allowing this Appeal.\n<\/p>\n
\tMr.\n<\/p>\n
\t Advocate has also relied upon a decision in the case of BANARASI
\n\tDAS v\/s STATE OF HARYANA, reported in AIR 2010 SC 1589
\n\tand contended that in absence of proof of demand,the prosecution has
\n\tfailed to prove its case beyond reasonable doubt and the Judgment of
\n\tthe trial Court be quashed and set aside and the appellant is
\n\trequired to acquitted from the charges alleged against him.\n<\/p>\n
As
\n\tagainst this, Mr H.L. Jani, learned APP appearing for the respondent\n<\/p>\n
\t– State has supported the Judgment and order passed by the
\n\tlearned Special Judge. He has contended that the learned Judge has
\n\tnot committed any error in holding the appellant guilty of the
\n\tcharges levelled against him. He has contended that looking to the
\n\tevidence of the complainant, Panch witness and the Trapping Officer,
\n\tthe demand and acceptance of bribe amount  by the accused and
\n\trecovery thereof is proved and, therefore, no interference is called
\n\tfor by this Court. He has contended that the learned Judge has
\n\tconsidered each and every aspect of the matter and has passed
\n\tabsolutely just and proper judgment and order of conviction.
\n\tTherefore also, the impugned judgment and order of conviction and
\n\tsentence passed by the learned Judge requires to be confirmed.\n<\/p>\n
I
\n\thave gone through the impugned judgment and order passed by the
\n\tlearned trial Judge and  oral as well as documentary evidence
\n\tproduced on the record. I have read the oral evidence of prosecution
\n\twitness-complainant and also perused the charge framed against the
\n\tappellant. I have also considered the submissions advanced by the
\n\tparties.\n<\/p>\n
From
\n\tthe perusal of the oral evidence of P.W.1 – complainant, it
\n\tappears that he has turned hostile before the learned Special Judge.
\n\tSaid witness, during the course of his deposition, has stated that
\n\tafter giving the money to the accused, he had no knowledge about the
\n\tacceptance of bribe amount by the accused and even where the accused
\n\tput the said bribe amount and he had not known even the name of the
\n\taccused. In his cross-examination, it is stated that said Ramjibhai
\n\tis a leader of the village and it is very well reflected that the
\n\tcomplainant has tried to put the amount of Rs.500\/- in the pocket of
\n\tthe accused and at that time, the accused told that what he was
\n\tdoing and pulled the hand of the accused and the accused had not
\n\taccepted the money, therefore, the currency notes were thrown on the
\n\tground. From the evidence of P.W.2 Kanjibhai Rabari at Exhibit 17,
\n\tit appears that this witness had no knowledge where the accused put
\n\tthe said amount of bribe. Cross-examination of this witness shows
\n\tthat Ramjibhai had some talk with ACB Officer and thereafter, the
\n\tsignature of the complainant was taken on the complaint. He has also
\n\tstated that when the amount, was given to the accused, at that time,
\n\tthe accused told the complainant that what the complainant was doing
\n\tand the accused had not accepted the money, and the amount of bribe
\n\twas found on the ground.  From the cross-examination of this
\n\twitness, nothing come out about demand and acceptance on the part of
\n\tthe accused and it is not transpired that the amount which was given
\n\tto the accused, was bribe money or for other purpose. I have also
\n\tperused the oral evidence of P.W. 4 – Gajendrasinh Pratapsinh
\n\tPuwar at Exhibit 24 and from his evidence, it has come out that the
\n\tmarks of anthracene powder were found on the fingers, tip of the
\n\tright hand and pent of the accused, but it is not established that
\n\tthe said money was accepted by the accused on his own, because the
\n\tcurrency notes were found on the ground. It is doubtful as to
\n\twhether the accused demanded the money from the complainant or the
\n\tcomplainant at his own put the money in the pocket of the accused or
\n\tthe accused accepted by his hand the said money.\n<\/p>\n
\tI
\n\thave gone through the evidence produced before the learned Special
\n\tJudge, but, it has not come out from the evidence that the
\n\tanthracene powder was found from the body parts like finger, tips of
\n\thand and the cloth of the accused and even in the experiment of the
\n\tultra violet lamp, it has not been found that on the currency notes,
\n\tanthracene powder was found.  In this case, the demand is not at all
\n\tproved by the prosecution against the accused and so far as the
\n\trecovery is concerned, the same is not found from the physical
\n\tpossession of the accused and, therefore, mere allegation levelled
\n\tagainst the accused by the complainant about the demand is not
\n\tsufficient to convict the present appellant – accused and hence,
\n\tthis appeal deserves to be allowed.\n<\/p>\n
I
\n\thave perused the statement of the appellant – accused recorded
\n\tunder Section 313 of the Code of Criminal Procedure and the probable
\n\tdefence is established by the present appellant beyond reasonable
\n\tdoubt. In the instant case, the complainant has turned hostile and
\n\tevidence of other witnesses do not corroborate with each other,
\n\ttherefore, the demand aspect is not established. I have perused the
\n\tcomplaint and other evidence. It appears that the said complaint
\n\tagainst the accused was lodged at the instance of Ramjibhai who is a
\n\tleader of the village. It is also not established that the money,
\n\twhich was asked from the complainant was for bail purpose or for any
\n\tother purpose and, therefore, the demand and  acceptance on the part
\n\tof the appellant is not proved. As the basic aspects of demand and
\n\tacceptance are not proved, it can be said that the accused was
\n\tfalsely implicated in the case. Merely the marks of the anthracene
\n\tpowder on the hand of the appellant do not prove that the said money
\n\twas for bribe purpose or the appellant himself accepted, by his own,
\n\tthe money and put it in the pocket of his pent. In the latest
\n\tdecision of the Supreme Court in the case of  Banarsi Das Vs.
\n\tState of Haryana, reported in AIR 2010 SC 1589, the Hon’ble
\n\tSupreme Court has observed that mere proof of recovery of bribe
\n\tmoney from accused is not sufficient to prove the offence. In that
\n\tview of the matter, I am of the opinion that so far as the offence
\n\tof bribery is concerned, the demand and acceptance of money is
\n\trequired to be proved beyond reasonable doubt and mere recovery of
\n\tbribe money from accused is not sufficient to prove the offence and
\n\tto hold the person guilty. Presumption cannot be raised when demand
\n\tis not proved in this case. Therefore, in absence of any evidence
\n\tregarding the demand, mere alleged recovery is not sufficient to
\n\tconvict the present appellant and hence, this appeal deserves to be
\n\tallowed.  The ratio laid down in aforesaid decision is squarely
\n\tapplicable to the facts of the present case because in the case on
\n\thand, the demand is not proved and the complainant had not stated
\n\tabout the demand made by the accused and, therefore, mere alleged
\n\trecovery is not sufficient to prove the case against the appellant
\n\taccused. Even the recovery is also not proved as per law. Further,
\n\tit has come on record that the complaint is filed at the behest of
\n\tone Ramjibhai, who hatched conspiracy and colluded to falsely
\n\tarraign the appellant as an accused in false trap case.\n<\/p>\n
\tIn
\n\tview of the above, the impugned judgment and order dated 25.5.2001
\n\tpassed by the learned Special Judge (ACB), Mehsana in Special (ACB)
\n\tCase No.14 of 1993 is quashed and set aside and the appellant –
\n\taccused is hereby acquitted from all the charges alleged against
\n\thim. Bail bonds, if any, stands cancelled. Fine, if any paid, shall
\n\tbe refunded to the appellant. R & P, if received, be sent back
\n\tto the trial Court, forthwith.\n<\/p>\n
(Z.K.SAIYED,
\nJ.)<\/p>\n
ynvyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Thakkar vs State on 12 May, 2011 Author: Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print CR.A\/420\/2001 11\/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 420 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ====================================== 1 Whether Reporters of Local Papers may be allowed to […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-109637","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nThakkar vs State on 12 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thakkar-vs-state-on-12-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thakkar vs State on 12 May, 2011 - 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