{"id":123294,"date":"2011-07-07T00:00:00","date_gmt":"2011-07-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramjibhai-vs-state-on-7-july-2011"},"modified":"2015-10-17T19:50:13","modified_gmt":"2015-10-17T14:20:13","slug":"ramjibhai-vs-state-on-7-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramjibhai-vs-state-on-7-july-2011","title":{"rendered":"Ramjibhai vs State on 7 July, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Ramjibhai vs State on 7 July, 2011<\/div>\n
Author: Z.K.Saiyed,<\/div>\n
  \n Gujarat High Court Case Information System \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\n\n \n\n\n\t \n\nCR.A\/671\/1999\t 14\/ 14\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. 671 of 1999\n \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 be\n\t\t\treferred 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\nRAMJIBHAI\nKAVABHAI PATEL - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nYOGESH S LAKHANI for\nAppellant(s) : 1, \nMR HL JANI, APP 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 \n \n\n\n \n\nDate\n: 07\/07\/2011 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
The
\n\tappellant – original accused has preferred this appeal under
\n\tsec. 374(2) of the Code of Criminal Procedure, against the judgment
\n\tand order of conviction and sentence  dated 23.06.1999 passed by the
\n\tlearned Special Judge, Ahmedabad (Rural), in Special Case No. 11 of
\n\t1998, whereby, the learned Judge has convicted the appellant under
\n\tSection 7 of the Prevention of Corruption Act (for short “P.C.
\n\tAct”) and sentenced him to suffer RI for one year and to pay a
\n\tfine of Rs.2000\/- i\/d to suffer imprisonment for 6 (six) months. The
\n\tlearned Judge has also held the appellant – accused guilty for
\n\tthe offence under  section 13(1)(d), r\/w section 13 of the P.C. Act
\n\tand sentenced him to suffer for 2 (two) years and to pay a fine of
\n\tRs.3,000\/- i\/d to further undergo imprisonment for a period of nine
\n\tmonths, which is impugned in this appeal.\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, at the relevant time, the
\n\tappellant was serving as Talati-cum-Mantri at village Zezara. It is
\n\talleged that on 21.11.1997, the complainant Zinabhai Mangabhai had
\n\tapproached the appellant – accused in his office for obtaining
\n\tvillage form No. 7\/12 and 8A as he wanted to take loan for the
\n\tpurchase of Rickshaw – Chhakda. It is alleged that for issuing
\n\tsuch extract, the accused demanded Rs.1000\/- as illegal
\n\tgratification and ultimately the accused agreed to take Rs.850\/- as
\n\tillegal gratification. The complainant agreed to pay the said amount
\n\tto the accused in his office on 25.11.1997 at 11.00 A.M. As the
\n\tcomplainant was disinclined to pay the bribe amount to the accused
\n\tand, therefore, on 24.11.1997 he went to the office of Anti
\n\tCorruption Bureau, Ahmedabad (Rural) and met Shri Dodiya, Police
\n\tInspector and appraised him of his disinclination to pay the bribe
\n\tamount, demanded by the accused for giving him the extracts of
\n\tvillage forms No.7\/12 and 8A. The Police Inspector reduced the
\n\tcomplaint in writing and decided to lay a trap on the next day i.e.
\n\ton 25.11.1997 and accordingly he asked the complainant to come on
\n\tthe next day i.e. on 25.11.1997 in the morning. Police Inspector
\n\talso aranged to call the panchas on that day in the morning at 8.00
\n\tO’clock in his office. On 25.11.1997 the panchas and the complainant
\n\tcame. They were introduced with each other and other raiding party
\n\tmembers. The currency notes of Rs.850\/- were got produced from the
\n\tcomplainant for the purpose of using the same in the trap for giving
\n\tto the accused, if demanded. After giving all of them understanding
\n\tabout the utility and natural qualities of the anthracene powder and
\n\tultra-violet lamp, the currency notes of Rs.850\/- were treated with
\n\tanthracene powder by Police Head Constable, at the instruction of
\n\tP.I. After having treated with anthracene powder and experimented
\n\twith ultra violet lamp, the said currency notes were placed in the
\n\tfold of rexine money purse which was kept empty on personal search
\n\tbeing made of the complainant and that money purse containing these
\n\tnotes was put in the left side pocket of the bush-shirt of the
\n\tcomplainant. Necessary instructions were given to the complainant,
\n\tpanchas and other members of the raiding party. Thereafter, the
\n\tfirst part of the panchnama was done in the office of A.C.B.
\n\tThereafter, the raiding party along with panchas proceeded in
\n\tGovernment vehicle towawrds village Zezara. The complainant and
\n\tPanch No.1 thereafter went to the office of accused and other
\n\tmembers walked behind them. The complainant and Panch No.1 entered
\n\tinto the Panchayat office and other raiding party members kept
\n\tthemselves concealed around that office. It is alleged that at about
\n\t2.00 O’clock in the noon, the complainant and panch No.1 came back
\n\tfrom the office and informed the P.I. that the accused asked the
\n\tcomplainant to call his uncle Virjibhai and then only the extracts
\n\twill be given and he was asked to come latest by about 4.00 to 5.00
\n\tPM. Thereafter, the complainant came back with his uncle Virjibhai
\n\tand thereafter the complainant, along with Panch No.1 and his uncle
\n\twent in the office of Gram Panchayat Zezara. The accused prepared
\n\tthe extract and gave it to the complainant and asked him to pay the
\n\tamount and thereupon the complainant took out tainted currency notes
\n\tfrom his pocket and put that amount on the table and put a paper on
\n\tthe currency notes. Thereafter, the raiding party rushed to the
\n\toffice of accused on signal being given by the complainant. The
\n\tPolice Inspector disclosed his identity to the accused and recovered
\n\tthe amount, which was placed by the complainant on the table.
\n\tThereafter, the currency notes, papers and the hands of the accused
\n\twere experimented with the aid of ultra violet lamp and on such
\n\texperiment, the light blue florescent light was found emitted
\n\ttherefrom. The currency notes and the papers were seized under the
\n\tpanchnama, prepared in presence of panchas. The Police Inspector
\n\trecorded the statement of Virjibhai (uncle of the complainant –
\n\tP.W.4) and Arjanbhai Merubhai, (P.W.3) Peon of the accused’s office.
\n\tThereafter, the offence was registered against the accused and the
\n\tinvestigation was entrusted to PI Shri Vaishnav.\n<\/p>\n
Thereafter,
\n\tPI Shri Vaishnav carried out the investigation. The statement of
\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, 13(1)(d) and 13(2) of P.C. Act.\n<\/p>\n
Thereafter,
\n\tthe charge was framed against the appellant. The appellant –
\n\taccused has pleaded not guilty to the charge and claimed to be
\n\ttried.\n<\/p>\n
In
\n\torder to bring home the charge levelled against the appellant-
\n\taccused, the prosecution has examined as many as 5 (five) witnesses
\n\tand also relied upon the documentary evidence.\n<\/p>\n
Thereafter,
\n\tafter examining the witnesses, further statement of the
\n\tappellant-accused under sec. 313 of Cr PC was recorded in which the
\n\tappellant-accused has denied the case of the prosecution. The
\n\taccused has also produced his statement in writing (Exh.23) in which
\n\tit has been stated that complainant Zinabhai was to pay the
\n\tGovernment dues at the time of incident and that amount was being
\n\tpaid after the incident and the accused has also produced the
\n\tstatement showing the outstanding amount in the account of Zinabhai,
\n\tthe complainant. He has further stated in his statement that false
\n\tcomplaint is filed by the complainant against him at the instance of
\n\tPremjibhai Shivabhai, MLA, who has enmity against the accused.\n<\/p>\n
After
\n\tconsidering the oral as well as documentary evidence and after
\n\thearing the parties, learned Judge vide impugned judgment and order
\n\tdated 23.06.1999 held the appellant – accused guilty to the
\n\tcharge 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 dated 23.6.1999, passed by the learned
\n\tSpecial Judge, Ahmedabad (Rural) in Special Case (ACB) No.11 of
\n\t1998, the present appellant has preferred this appeal.\n<\/p>\n
Heard
\n\tMr. Y.S. Lakhani, learned Senior Advocate for the appellant and Mr
\n\tH.L. Jani, learned APP for the respondent-State.\n<\/p>\n
Mr.\n<\/p>\n
\tLakhani, learned advocate, appearing for the appellant has read the
\n\tcharge Exh. 6 and contended that as per the charge, it appears that
\n\tthe alleged trap amount was put by the complainant on the table of
\n\tthe appellant – accused. The complainant, in his examination
\n\tin chief, in Para – 5, has also deposed that when the copy of
\n\tvillage form No.7\/12 was prepared and given to the witness, at that
\n\ttime the trap amount was given to the appellant – accused. As
\n\tper the say of this witness, he has stated that when the appellant –
\n\taccused Talati told him that the amount is required to be given and,
\n\ttherefore, it was given and that trap amount was put on the table by
\n\tthe present witness and on that trap amount one paper was put by the
\n\tTalati and then signal was given. He has contended that if the
\n\tdeposition of the witnesses are seen and read together, it is
\n\tclearly coming out on record that there are material contradictions
\n\tin the deposition of witnesses. If the depositions are kept in mind
\n\ttogether it is not possible to reconcile as to how and in what
\n\tmanner the incident has occurred. He has contended that when the
\n\tdeposition of the peon of the office is considered, he has
\n\tcategorically stated that the complainant wanted to give money to
\n\tthe accused, but, he refused to accept it and, therefore, the
\n\tcomplainant put the money on the table. He has contended that the
\n\tcomplainant, in his deposition, has also not stated that the money
\n\twas put on table on being asked by the accused. He has contended
\n\tthat when the witnesses are not consistent in the story which go to
\n\tthe root of the case, the accused cannot be held guilty for the
\n\toffences alleged against him. He has contended that when the demand
\n\tis not proved beyond reasonable doubt, then no case can be proved
\n\tagainst the accused beyond reasonable doubt. Mr. Lakhani has read
\n\tthe cross examination of the complainant and contended that the
\n\tcomplainant has categorically admitted in his cross examination that
\n\twhen the complainant had gone to obtain the certificate from the
\n\tTalati, at that time, the Talati informed him that whatever dues of
\n\tthe Government are pending, he has to pay and then he would get the
\n\tCertificate. The complainant has also admitted that he has visited
\n\tthe office of Talati often frequently and, therefore, he was
\n\tdispleased with the accused. He has contended that it has also come
\n\tin evidence that “after putting the amount on the table and
\n\tafter preparing the bunch of extracts, to be given to the
\n\tcomplainant, the accused had gone out of his office for urinal.”
\n\tIf the accused intended to accept the bribe money then he would have
\n\ttaken the money with him when he left office for urinal, which
\n\tclearly suggests that he did not accept the amount though offered
\n\tand placed by the complainant on the table. He has contended that
\n\tthe conduct of the complainant is not natural. The complainant has
\n\tstated in his evidence that for giving extracts he was called on 4
\n\tto 5 occasions by the accused, however, the complainant did not
\n\tdisclose this fact to his uncle P.W.4 – Virjibhai. Therefore,
\n\tthe story put forward by the complainant is not believable and it
\n\tcannot be said that the prosecution established the initial demand
\n\tof bribe by the accused from the complainant. Mr. Lakhani has
\n\tfurther contended that there are discrepancies in version of the
\n\tprosecution witnesses as to timings of giving signal by the
\n\tcomplainant and, therefore, the evidence of the witnesses cannot be
\n\tsaid to be trustworthy. Mr. Lakhani has also contended that the
\n\tcomplainant has admitted in his cross examination that he is
\n\tuneducated and illiterate and, therefore, when he had gone to file
\n\tcomplaint one Sagarbhai was with him and said Sagarbhai and Dodiya
\n\tSaheb (Trapping Officer) have written the complainant and he was
\n\tasked to put the signature. He has also admitted in his cross
\n\texamination that on the next day when he had gone to A.C.B. Office,
\n\tsaid Sagarbhai was with him. However, the prosecution has not
\n\texamined this material witness Sagarbhai to corroborate the say of
\n\tthe complainant. Therefore, non-examination of this material witness
\n\twould be fatal the case of the prosecution. Mr. Lakhani has also
\n\tread the evidence of P.W.2 – Vijaykumar Laljibhai Prajapati
\n\t(Exh.10) and contended that this witness is a panch witness, who had
\n\taccompanied the complainant. He has contended that from the evidence
\n\tof this witness, it is clearly established that there is no demand
\n\tmade by the appellant – accused. Mr. Lakhani has also read the
\n\tevidence of P.W.4 – Virjibhai Kachrabhai (Exh.19) and
\n\tcontended that from the evidence of this witness also the
\n\tprosecution is not  able to establish the demand made by the
\n\tcomplainant. He has contended that looking to the over all evidence
\n\tthe demand and acceptance is not proved and, therefore, the Judgment
\n\tand order of conviction passed by the learned Judge may be quashed
\n\tand set aside.  Mr. Lakhani has also relied upon a decision in the
\n\tcase of BANARASI DAS v\/s STATE OF HARYANA, reported in AIR
\n\t2010 SC 1589 and contended that in absence of proof of
\n\tdemand,the prosecution has failed to prove its case beyond
\n\treasonable doubt and the Judgment of the trial Court may be quashed
\n\tand set aside and the appellant may be acquitted from the charges
\n\talleged against him.\n<\/p>\n
As
\n\tagainst this, Mr Jani, learned APP appearing for the respondent –
\n\tState has supported the Judgment and order passed by the learned
\n\tSpecial Judge. He has contended that the learned Judge has not
\n\tcommitted any error in holding the appellant guilty of the charges
\n\tlevelled against him. He has contended that looking to the evidence
\n\tof complainant, Panch witness and the Trapping Officer, the demand,
\n\trecovery and acceptance by the accused is proved and, therefore, no
\n\tinterference is called for by this Court. He has contended that the
\n\tlearned Judge has considered each and every aspect of the matter and
\n\thas passed absolutely just and proper judgment. Mr. Jani has also
\n\tcontended that the presumption is required to be drawn against the
\n\taccused under Section 20 of the P.C. Act. He has also contended that
\n\tthe trap amount is recovered from the table of the accused and from
\n\tthe evidence of the complainant and other witnesses it is clearly
\n\testablished that at the instance of accused the said amount was put
\n\ton the table of the accused.Therefore also, the impugned judgment
\n\tand order of conviction and sentence passed by the learned Judge
\n\trequires to be confirmed.\n<\/p>\n
I
\n\thave gone through the impugned judgment and order passed by the
\n\tlearned Judge and  oral as well as documentary evidence produced on
\n\tthe record. I have read the oral evidence of prosecution
\n\twitness-complainant and also perused the charge framed against the
\n\tappellant. It is pertinent to note that in corruption cases four
\n\tthings are required to be appreciated, viz. (I) initial demand, (ii)
\n\tsecond demand to be made in presence of Panch, (iii) voluntary
\n\tacceptance and (iv) recovery of amount.\n<\/p>\n
From
\n\tthe perusal of the oral evidence of P.W.1 Jinabhai Mangabhai (Exh.9)\n<\/p>\n
\t– the complainant, it is clearly established that he is
\n\tilliterate person. He has categorically admitted in his evidence
\n\tthat when he had gone to file complaint, one Sagarbhai was with him
\n\tand said Sagarbhai and Dodiya Saheb (Trapping Officer) have written
\n\tthe complaint and asked him to put his signature. Even on the next
\n\tday, as per the deposition of the complainant, said Sagarbhai had
\n\taccompanied the complainant at the A.C.B. Office. However, the
\n\tprosecution has not examined this star and material witness to prove
\n\tit case beyond reasonable doubt. From the evidence of P.W.3 –
\n\tArjanbhai Merubha (Exh.12), who is Peon in the Panchayat office, it
\n\tclearly appears that at the time of incident he was present in the
\n\toffice. He has categorically deposed that complainant has asked the
\n\tTalati for copy and that Talati told the complainant that he is
\n\tgiving. He has also stated that the complainant has given money, but
\n\tthe complainant did not accept it and, therefore, the complainant
\n\thas put the amount on the table. In the present case the amount is
\n\trecovered from the table of the accused, but, in connection of
\n\tdemand alleged to have been made by the accused, no fruitful or
\n\treliable circumstantial evidence is produced on record. Even no
\n\tanthracene powder was found from the body of the accused and when
\n\tthe demand and acceptance is not proved beyond reasonable doubt then
\n\tthe learned Judge has committed grave error in holding the appellant\n<\/p>\n
\t– accused guilty for the offences alleged against him.\n<\/p>\n
Looking
\n\tto the overall evidence of the prosecution witnesses, it is clearly
\n\testablished that the appellant has not made any demand from the
\n\tcomplainant.  Even from the evidence of panch witness, it is not
\n\testablished that whether any demand has been made by the appellant
\n\tfrom the complainant. Looking to the evidence, it clearly appears
\n\tthat there are material contradictions in the evidence of
\n\tprosecution witnesses. I have also perused the statement of the
\n\tpresent appellant recorded under sec.313 of Code of Criminal
\n\tProcedure and the additional reply submitted by the accused vide
\n\tExh.23, in which he has stated that the complainant had approached
\n\thim for obtaining certificate showing that there is no Government
\n\tdues pending in the name of complainant. It is also stated in the
\n\tsaid writing that some dues were pending and at the time of incident
\n\tthe complainant has paid the amount towards the pending dues. The
\n\taccused has also produced certified copy of document showing that
\n\tthe amount was due in the account of the complainant. He has
\n\tmentioned in the said writing that the local M.L.A. Shri Premjibhai
\n\tShivabhai Vadvani was having enmity with the accused and the
\n\tcomplainant was a man of said M.L.A. and, therefore, false case has
\n\tbeen filed against him. The probable defence is established by the
\n\tpresent appellant beyond reasonable doubt. In the decision of the
\n\tHon’ble Supreme Court in the case of  Banarsi Das Vs. State of
\n\tHaryana, reported in AIR 2010 SC 1589,  the Hon’ble Supreme
\n\tCourt has observed that mere proof of recovery of bribe money from
\n\taccused not sufficient to prove the offence. In that view of the
\n\tmatter, I am of the opinion that so far as the offence of bribery is
\n\tconcerned, the demand and acceptance of bribe is required to be
\n\tproved beyond reasonable doubt. The amount is also not recovered
\n\tfrom the appellant – accused. Even the anthracene powder was
\n\talso not found on the person of the accused. Therefore, in absence
\n\tof any evidence regarding the demand, then mere recovery, that too
\n\ton the table of the appellant – accused, is not sufficient to
\n\tconvict the present appellant and no presumption can be raised, and
\n\thence, this appeal deserves to be allowed.\n<\/p>\n
In
\n\tthe result, this appeal is allowed. The impugned judgment and order
\n\tof conviction and sentence dated 23.06.1999 passed by the learned
\n\tSpecial Judge, Ahmedabad (Rural) in Special Case No. 11 of 1998 is
\n\thereby quashed and set aside. The appellant-accused is hereby
\n\tacquitted from all the charges levelled against him. Fine, if paid,
\n\tbe refunded to the appellant. The appellant-accused is on bail, his
\n\tbail bonds stands discharged. R & P to be sent back to the trial
\n\tcourt forthwith.\n<\/p>\n
(Z.K.SAIYED,
\nJ.)<\/p>\n
sas <\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Ramjibhai vs State on 7 July, 2011 Author: Z.K.Saiyed, Gujarat High Court Case Information System Print 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 […]<\/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-123294","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nRamjibhai vs State on 7 July, 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\/ramjibhai-vs-state-on-7-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramjibhai vs State on 7 July, 2011 - 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