{"id":228177,"date":"2011-03-24T00:00:00","date_gmt":"2011-03-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/amrutlal-vs-state-on-24-march-2011"},"modified":"2019-02-02T23:21:23","modified_gmt":"2019-02-02T17:51:23","slug":"amrutlal-vs-state-on-24-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/amrutlal-vs-state-on-24-march-2011","title":{"rendered":"Amrutlal vs State on 24 March, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Amrutlal vs State on 24 March, 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\n\n \n\n\n\t \n\nCR.A\/672\/1997\t 13\/ 13\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. 672 of 1997\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\nAMRUTLAL\nRAMDAS 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 RC KODEKAR, 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: 24\/03\/2011 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
The
\n\tpresent appellant has preferred this appeal under sec. 374 of the
\n\tCode of Criminal Procedure, against the judgment and order of
\n\tconviction and sentence  dated 21.7.1997 passed by the learned
\n\tSpecial Judge, Banaskantha at Palanpur, in Special Case No. 17 of
\n\t1989, whereby, the learned Judge has held the appellant –
\n\taccused guilty for the offences under Sections 161 and 301 of I.P.
\n\tCode and for the offence under sections 5(1)(g) read with Section
\n\t5(2) of Prevention of Corruption Act (for short “the Act”)
\n\tand convicted the appellant (i) for the offence under section 161 of
\n\tI.P. Code and sentenced him to suffer simple imprisonment of 1 (one)
\n\tyear and to pay a fine of Rs.250\/- i\/d to further undergo SI for 3
\n\t(three) months; (ii) for the offence under Section 201 of I.P. Code
\n\tand sentenced him to suffer simple imprisonment of 2 (two) months;
\n\tfor the offence under Section 5(1)(g) read with Section 5(2) of P.C.
\n\tAct and sentenced him to suffer simple imprisonment for 1 (one) year
\n\tand to pay a fine of Rs.100\/- i\/d to undergo SI for 3 (three)
\n\tmonths. The learned Judge has ordered that the sentences shall run
\n\tconcurrently.\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 complainant is an
\n\tagriculturist. It is alleged that for doing the agriculture work in
\n\twinter season he required to complete the papers for obtaining the
\n\tloan from the Government, through State Bank of India and,
\n\ttherefore, he approached the Talati (accused-appellant herein) and
\n\tasked for copies of village form 7×12 and form 8  from him. It is
\n\talleged that for preparing the said documents, the accused has
\n\tdemanded Rs.500\/- from the complainant. The complainant has
\n\trequested to reduce the said amount, however, the appellant did not
\n\tconsider the request for reducing the amount. It is alleged that
\n\tRs.300\/- was required to be paid by the complainant to the accused
\n\tat the time of preparing the papers and the remaining amount of
\n\tRs.200\/- was to be paid after the loan was sanctioned. It is alleged
\n\tthat on 22.9.1987 the complainant had gone to the house of accused
\n\tand asked for the papers. The accused told him that the papers are
\n\tready and demanded Rs.300\/-., and thereupon the complainant told him
\n\tthat he will pay the amount tomorrow i.e. on the next day.
\n\tThereafter, the complainant approached the A.C.B. Office at Palanpur
\n\tand met P.I. Mr. Gohil. The complaint was lodged and two panchas
\n\twere called. Thereafter, the  currency notes were smeared with
\n\tanthracene powder,  experiment of ultra violet lamp was carried out
\n\tin the A.C.B. Office in presence of two panchas and the complainant
\n\tand they were made to understand about the trap. Thereafter, the
\n\traiding party, complainant and the panchas have proceeded to Deodar
\n\tand as per pre-arrangement the complainant and Panch have gone to
\n\tthe house of the accused. It is alleged that the complainant has
\n\tasked for the papers from the accused. The accused had handed over
\n\tthe papers and obtained Rs.300\/-  in presence of panch No.1.
\n\tThereafter, the complainant had called the raiding party. They made
\n\tsearch from the accused and also in the house of the accused, but,
\n\tthe amount could not be found out. The raiding party has seized the
\n\tcopy of 7×12 extract and form No.8(A) from the complainant which was
\n\tgiven by the accused. Experiment of ultra-violet lamp was done on
\n\tthe person of the accused where on the cloths  and on the finger tip
\n\tof the accused, anthracene powder was found.  Thereafter, the
\n\tpanchnama was carried out in presence of panchas.\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 161 and 201 of I.P. Code and under Section
\n\t5(1)(g) read with Section 5(2) of the 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 the witnesses and also relied
\n\tupon 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\tappellant – accused filed his written statement vide Exh.49.
\n\tIt is mentioned in the said statement that before the incident the
\n\tcomplainant had approached him and asked for copies of revenue
\n\trecord and at that time, after seeing the record, it was told to the
\n\tcomplainant that he should pay the dues which are pending in the
\n\tname of his grand father and uncle and then he can take the papers,
\n\tIt is also stated that every month the meeting of Talatis are held
\n\tin the office of Taluka Development Officer and they are instructed
\n\tthat if anybody comes for copy of revenue record, they shall insist
\n\tto recover the pending dues. Therefore, the accused has demanded the
\n\tamount towards pending dues from the complainant.  It is also stated
\n\tin the statement that on the date of incident, the accused was in
\n\this house and along with him, other four persons were there and at
\n\tthat time only the complainant came and informed him that he has
\n\tbrought the pending dues and asked for the papers and, therefore, he
\n\thad gone in the house and brought the papers and receipt book with
\n\thim and gave the papers to the complainant and thereafter the
\n\tcomplainant gave Rs.300\/- to him. The accused has, therefore, told
\n\tthe complainant that the dues are more than that he has paid and
\n\tthereupon the complainant told him that he will pay the remaining
\n\tafterwards. Thereupon he returned back the papers from the
\n\tcomplainant and put them in the pocket of the pant. Thereafter, the
\n\tcomplainant had gone out of his house and after some time he came
\n\twith raiding party. The amount was not found from his person  or
\n\tfrom his house. Thereafter, he was taken to the Deodar Rest House
\n\tand then prepared the documents and false case has been filed
\n\tagainst him. The accused has also examined witness (DW – 1)
\n\tDhanjibhai Mafatbhai Atecha Exh. 51.\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 24.07.1997 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 passed by the learned Special Judge,
\n\tPalanpur, 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\tR.C. Kodekar, learned APP for the respondent-State.\n<\/p>\n
Mr
\n\tLakhani, learned Counsel, appearing for the appellant has read the
\n\tcharge Exh.5 and contended that even from the contents of the
\n\tcharge, prima facie, doubt is created from the papers as well as
\n\tfrom the statement of the witness and the panchnama and the
\n\tcomplainant himself. He has read the oral evidence of P.W.1 –
\n\tcomplainant Narsinh Manaji Mali (Exh.9) and contended that this
\n\twitness is a star witness of the prosecution, who has not supported
\n\tthe case of the prosecution. Mr. Lakhani has also read the oral
\n\tevidence of P.W.2 – Sagathabhai Virbhanbhai (Exh.15) and
\n\tcontended that this witness is an eye witness, who was present at
\n\tthe time of alleged incident. He has contended that looking to the
\n\tevidence, this witness has not supported the case of the
\n\tprosecution. Mr. Lakhani has also read the oral evidence of P.W.3 –
\n\tHaribhai Jivabhai Patel (Exh.16) and contended that this witness was
\n\tpresent at the time of alleged incident. However, the prosecution
\n\tcould not get any support from his evidence to prove its case. Mr.
\n\tLakhani has also read the oral evidence of P.W.4 –
\n\tRamchandbhai Bhanabhai (Exh.18) and contended that this witness was
\n\talso present at the time of alleged incident. However, this witness
\n\thas also not supported the case of the prosecution. Mr. Lakhani has,
\n\ttherefore, contended that though the prosecutions witnesses No.2 to
\n\t4 were present at the time of alleged incident and at that time the
\n\talleged demand was made by the accused from the complainant, the
\n\tprosecution could not establish its case beyond reasonable doubt to
\n\tprove the case against the appellant. It is not the case of the
\n\tprosecution that they are interested witnesses and, therefore, from
\n\ttheir evidence the prosecution could not establish its case beyond
\n\treasonable doubt. He has also read the evidence of PW No.5 –
\n\tNiranjankumar Dalpatram Trivedi (Exh. 19), who was serving as Clerk
\n\tin Administrative Department of Taluka Panchayat. He has stated that
\n\tthe concerned officer, who has accorded the sanction has been
\n\tretired from service. He has stated that the PI of ACB, vide letter
\n\tdated 3.2.1988 has obtained sanction. However, in cross examination
\n\the has categorically deposed that he has no knowledge about the
\n\tpapers produced at Exh.20. Mr. Lakhani has, therefore, contended
\n\tthat the evidence of this witness would not be helpful to the case
\n\tof prosecution. Mr. Lakhani has thereafter read the oral evidence of
\n\tP.W.6 – virjibhai Parthibhai Chaudhry (Exh.21) and contended
\n\tthat this witness was Panch No.2, who was instructed to remain with
\n\tthe raiding party. He has contended that this witness was not an eye
\n\twitness to the alleged incident and from this evidence also the
\n\tprosecution could not be able to establish the case against the
\n\taccused. He has contended that even in examination-in-chief also
\n\tthis witness has categorically deposed that amount was not recovered
\n\tfrom the accused and even during the search from his house the
\n\tamount was not found. It is also an admitted fact that when the
\n\talleged trap amount was given, thereafter the appellant –
\n\taccused had not gone any where, however, the trap amount was not
\n\tfound in his possession or even during the search of his house the
\n\tsame was not found  and, therefore, where the amount had gone that
\n\tis not clarified by the prosecution. He has also read the contents
\n\tof the panchnama and contended that even from the evidence of Panch
\n\t(P.W.8) (Ex.36) the prosecution has failed to prove the whole
\n\tcontents of the panchnama and, therefore, they have no right to say
\n\tthat the prosecution has proved its case beyond reasonable doubt. He
\n\thas contended that P.W. 9 Madarji Parthiji (Exh. 42), Head Constable
\n\tin the office of A.C.B., is a formal witness and he is not an eye
\n\twitness. He has also read the evidence of P.W. 11 (Exh.44) –
\n\tRanjitsinh Laxmansinh Gohil, Trapping Officer. He has admitted in
\n\this evidence that when they reached just near the house of the
\n\tappellant – accused, at that time, the complainant met and
\n\tconveyed him that everything is now over, but, when he reached the
\n\thouse of the appellant, during search, he has not recovered any
\n\tamount from the possession of the accused or even during the search
\n\tof his house, nothing was found. He has contended that the learned
\n\tJudge has only relied upon the oral evidence of P.W.6 (Exh. 21) and
\n\theld the appellant guilty to the charges alleged against him. He has
\n\tcontended that it is established law that when the sufficient doubt
\n\tis created by the defence then the accused is entitled for the
\n\tbenefit of doubt.  Mr. Lakhani has also relied upon a decision in
\n\tthe case of BANARASI DAS v\/s STATE OF HARYANA, reported in AIR 2010
\n\tSC 1589 and contended that in absence of proof of demand, the
\n\tprosecution has failed to prove its case beyond reasonable doubt and
\n\tthe Judgment of the trial Court may be quashed and set aside and the
\n\tappellant may be acquitted from the charges alleged against him.\n<\/p>\n
As
\n\tagainst this, Mr Kodekar, 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 when the anthracene
\n\tpowder was found from the clothes and finger tip of the accused then
\n\tthe prosecution has proved its case beyond reasonable doubt. He has
\n\tcontended that looking to the evidence of prosecution witnesses and
\n\tthe Trapping Officer, the demand and acceptance by the accused is
\n\tproved and, therefore, no interference is called for by this Court
\n\tand probable defence is not established by the present appellant. He
\n\thas contended that the learned Judge has considered each and every
\n\taspect of the matter and has passed absolutely just and proper.
\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 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 a case of corruption 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 Narsinh Manaji Mali, the
\n\tcomplainant, it is established that the demand and acceptance is not
\n\tproved. The complainant is not reliable witness and his evidence is
\n\trequired to be considered as doubtful evidence. From the oral
\n\tevidence of P.W.6 – Panch witness, who is star witness of the
\n\tprosecution, the prosecution has failed to establish that trap
\n\tamount was recovered from the possession of the appellant. No doubt
\n\tfrom the evidence it is established that the amount was handed over
\n\tto the appellant – accused in his house in presence of
\n\tindependent witnesses, examined by the prosecution, however, the
\n\tsaid amount was not found from the possession of the appellant –
\n\taccused and even during the search of his house also the said amount
\n\twas not found and, therefore, the question is that if the amount was
\n\taccepted by the appellant, then where the amount had gone? None of
\n\tthe witnesses nor even the trapping officer could say anything about
\n\tthe recovery of amount. No doubt the defence has failed to establish
\n\tthe presence of anthracene powder on the cloths and finger tips of
\n\tthe accused, but, from the cross examination of the witnesses,
\n\tsufficient dout is created by the defence. In criminal law, when the
\n\tdoubt is created, then the benefit of doubt is required to be given
\n\tto the present appellant.\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 the panch witness has also not stated that
\n\twhether any demand has been made by the appellant from the
\n\tcomplainant. The amount, which was alleged to have demanded by the
\n\tappellant – accused, was also not found from the possession of
\n\tthe appellant or even during the search of his house also the same
\n\twas not found. Even in the evidence of independent witnesses who
\n\twere present at the time of alleged incident, the prosecution has
\n\tfailed to establish that any demand was made by the appellant –
\n\taccused from the complainant.  No doubt, as per the say of the
\n\tprosecution, presence of anthracene powder is found on the clothes
\n\tand finger tips of the appellant, but, whether the said amount was
\n\tdemanded by the appellant from the complainant is not established,
\n\tthen it is difficult to believe the case of the prosecution. I have
\n\talso perused the statement of the present appellant recorded under
\n\tsec.313 of Code of Criminal Procedure It is established that the
\n\tcomplainant want to get the benefit of loan from the State
\n\tGovernment, through State Bank of India, and, therefore, he was in
\n\tneed of Revenue record and for that purpose he approached the
\n\tappellant – accused. However, the appellant told him that
\n\tfirst you clear the outstanding dues of his grand father and uncle
\n\tand then he would get the papers and when the complainant approached
\n\tthe appellant – accused with Rs.300\/-, the appellant told him
\n\tthat amount was more and, therefore, he returned the said amount and
\n\ttaken back the papers given to the complainant. Therefore, it is
\n\tdifficult to believe as to whether any demand is made by the
\n\tappellant – accused. The appellant was not knowing that the
\n\tamount was smeared with currency powder and, therefore, the
\n\tanthracene powder must have found from the cloths and finger tips of
\n\tthe appellant accused, but, it cannot be said that the appellant –
\n\taccused demanded the money as an illegal grantification from the
\n\tcomplainant.  The probable defence is established by the present
\n\tappellant beyond reasonable doubt. In the latest decision of the
\n\tSupreme Court in the case of  Banarsi Das Vs. State of Haryana,
\n\treported in AIR 2010 SC 1589, wherein, 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. Even in the present
\n\tcase the demand is not established and the amount was not recovered
\n\tfrom the possession of the accused. In that view of the matter, I am
\n\tof the opinion that so far as the offence of bribery is concerned,
\n\tthe demand, acceptance and recovery of bribe amount is required to
\n\tbe proved beyond reasonable doubt.  Therefore, in absence of any
\n\tcogent evidence regarding the demand, acceptance and recovery of
\n\tamount, it is difficult to believe the case of prosecution 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 21.07.1997 passed by the learned
\n\tSpecial Judge & Additional Sessions Judge, Banaskantha at
\n\tPalanpur, in Special Case No. 17 of 1989 is hereby quashed and set
\n\taside. The appellant-accused is hereby acquitted from all the
\n\tcharges levelled against him. Fine, if paid, be refunded to the
\n\tappellant. The appellant-accused is on bail, his bail bonds stands
\n\tdischarged. R & P to be sent back to the trial court forthwith.\n<\/p>\n
(Z.K.SAIYED,
\nJ.)<\/p>\n
sas <\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Amrutlal vs State on 24 March, 2011 Author: Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/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-228177","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAmrutlal vs State on 24 March, 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\/amrutlal-vs-state-on-24-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Amrutlal vs State on 24 March, 2011 - 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