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Gujarat High Court · body

2010 DIGILAW 344 (GUJ)

Sita Ram Chhotalal Nayak v. State of Gujarat

2010-08-05

RAJESH H.SHUKLA

body2010
JUDGMENT : Rajesh H. Shukla, J. The present appeal is directed against the judgment and order in Special Case No. 31 of 1991 passed by the learned Special Judge, City Sessions Court No.2, Ahmedabad, dated 20.12.1994, recording the conviction of the appellant - accused No.1 for the offence under Sections 7, 13(1)(d)(i)(ii) and 13(2) of the Prevention of Corruption Act, and imposing rigorous imprisonment for six months and fine of Rs. 500/-, in default rigorous imprisonment for three months and also further imposing rigorous imprisonment for two years and fine of Rs. 500/-, in default, rigorous imprisonment for three months. 2. The facts of the case, briefly summarised, are that the complainant is working as a Booking Clerk with a travel agent making travel arrangements and was giving vehicles on hire. The complainant's car met with an accident and it was brought by the break down service with the crane from Gandhinagar to Ahmedabad. At that time, the accused No.1 was serving at the Toll Naka and is said to have stopped the vehicle for verification and on inquiry, he is said to have stated that the vehicle was being taken for destroying as a scrap vehicle and the octroi was required to be paid. It is also alleged that the accused No.1 is said to have stated to the driver that as per the valuation of the vehicle, the amount of octroi would be more. However, if some Tea expenses is paid, the vehicle may be released. It is also stated that the Registration Book was collected by stating that it may be returned on payment of the amount. Thereupon, when the driver was having only Rs. 50/-, he offered the same which was accepted by the accused and he was asked to bring the further amount of Rs. 150/-. Thereupon the complainant lodged the complaint with ACB, Ahmedabad, on the basis of which, a trap was arranged. After the trap, it was registered as Special Case No. 31 of 1991. The learned Special Judge, City Sessions Court, Ahmedabad, after framing the charge, proceeded with the trial. 3. After recording of the evidence of the prosecution witnesses was over, the learned Special Judge also recorded the further statement of the accused under Section 313 of the Code of Criminal Procedure. 4. The learned Special Judge, City Sessions Court, Ahmedabad, after framing the charge, proceeded with the trial. 3. After recording of the evidence of the prosecution witnesses was over, the learned Special Judge also recorded the further statement of the accused under Section 313 of the Code of Criminal Procedure. 4. After hearing the learned APP and the learned advocate for the defence, the learned Special Judge recorded the conviction of the accused as stated here in above for the offences with which he is charged under the provisions of the Prevention of Corruption Act. 5. It is this judgment and order which has been assailed on the ground inter alia set out in detail in the memo of the appeal contending that the learned Judge has failed to appreciate the material evidence on record with regard to the demand and acceptance. It is also contended that the version of the prosecution has not been corroborated by the panch witnesses and the panchnama would not be admissible as the panch as have not supported the prosecution case fully. It has also been contended that the learned Special Judge has failed to appreciate the material contradictions and omissions brought out from the evidence of the panch witnesses and the Police Inspector Solaria. It has also been contended that there was no meeting between the complainant and appellant accused at time prior to the raid and therefore, the prosecution has failed to establish the demand which is the essential ingredients for recording conviction for the offence under Prevention of Corruption Act. 6. Learned counsel Mr. Anand ji wala referred to the testimony of the witnesses including the testimony of PW.1 complainant at Eh.13 and submitted that as can be seen from the evidence, there is no initial demand by the accused. For that purpose, he pointedly referred to the testimony of PW.1 and submitted that in his cross examination, the complainant has denied the suggestion that any demand for Rs. 200/- was made by the accused No.1. It is clearly stated that he had only asked for the RTO book. It is denied that the accused has demanded Rs. 50/- and to bring the remaining amount. He has strenuously submitted that the witness has stated in his cross examination that the printed currency notes smeared with Anthracite powder were accepted by accused No.2. It is clearly stated that he had only asked for the RTO book. It is denied that the accused has demanded Rs. 50/- and to bring the remaining amount. He has strenuously submitted that the witness has stated in his cross examination that the printed currency notes smeared with Anthracite powder were accepted by accused No.2. Learned counsel, therefore, submitted that there is no evidence suggesting the demand by the accused. He has also referred to the testimony of PW.2 at Eh.16 and submitted that the panch witness who has accompanied the complainant to observe as to what has transpired. Learned counsel Mr. Anand ji wala submitted that his evidence has not corroborated fully the prosecution case. He has referred to the testimony of PW.2 at Eh.16-panch witness and submitted that no panchnama was drawn after inquiring from them. Therefore, learned counsel Mr.Anand ji wala submitted that he has not supported the prosecution case with regard to demand for which, he pointedly referred to the cross examination and submitted emphasising that he has stated that the complainant had asked the Officer (A1) in the lobby that he has brought the money. He specifically stated that before that the accused had not made any demand. He has also stated that accused officer (A1) had not stated that the money may be delivered to him. He has also stated that inside the office, the officer who was sitting on the table, there was no conversation took place. He has also stated that there was no talk of any kind in the room and whatever the talk has taken place in the lobby. Learned counsel Mr. Anand ji wala therefore, strenuously submitted that one of the aspects to be considered as per the prosecution case is that the initial demand was for Rs. 50/- which was accepted by Accused No.1 and thereafter Rs. 150/- is accepted by accused No.2. Learned counsel Mr. Anand ji wala submitted that if the demand is not established, the whole case of the prosecution would fall to ground. He again referred to PW.1 complainant at Eh.13 and PW.2 at Eh.16 and submitted that none of them have corroborated on the material aspect. Learned counsel Mr. Anand ji wala, therefore submitted that as per the prosecution the initial demand is made by accused No.1 and when the driver had only Rs. He again referred to PW.1 complainant at Eh.13 and PW.2 at Eh.16 and submitted that none of them have corroborated on the material aspect. Learned counsel Mr. Anand ji wala, therefore submitted that as per the prosecution the initial demand is made by accused No.1 and when the driver had only Rs. 50/- which he offered, he was asked to bring further Rs. 150/- and therefore, he had brought Rs. 150/- which is offered at the time of trap. However, the fact remains that the initial demand and the payment of Rs. 50/- to the accused and whatever the conversation taken place between the complainant and the accused No.1, there is no evidence and the complainant turned hostile and has not supported the case of the prosecution. Similarly, for the amount of Rs. 150/- which was tendered at the time of trap is concerned, it was accepted by accused No.2 and it has been admittedly recovered from him. 6.1 Therefore, learned counsel Mr. Anand ji wala submitted that the demand which precedes the acceptance and again there is no evidence as to any initial demand inasmuch as any only the complainant can say on this aspect, who has not supported the case of the prosecution. He submitted that PW.2 panch witness in his testimony at Eh.16 does not say about any demand having been made by accused No.1. He submitted that the prosecution has failed to establish the demand and that the acceptance is by Accused No.2. 6.2 Learned counsel Mr. Anand ji wala submitted that the prosecution has not established that Accused No.2 had accepted the illicit money or the bribe at the instance of accused No.1. It is submitted that the panch witnesses have also not totally corroborated and if the evidence of the panch witnesses at Eh.16 is relied upon, accused No.2 who is said to have accepted the bribe money is acquitted. 6.3 Learned counsel Mr. Anand ji wala therefore, referred to the panchnama also and submitted that the panchnama also cannot be said to be true as the panchnama cannot be said to be established by the panch witness PW.2 at Eh.16. 6.4 Learned counsel Mr. Anand ji wala therefore, submitted that none of the three ingredients for the offence is established by the prosecution. 7. Learned APP Mr. 6.4 Learned counsel Mr. Anand ji wala therefore, submitted that none of the three ingredients for the offence is established by the prosecution. 7. Learned APP Mr. Pujari referred to the testimony of the witnesses including PW.1 complainant at Eh.13, PW.2 panch witness at Eh.16 and the FIR and also the testimony of the complainant at Eh.13 and submitted that the complainant has not supported the prosecution case and the testimony of PW.2 at Eh.16 also does not corroborate. Again he referred to the testimony of both the witnesses and referring to the testimony of the panch witness, he emphasised that it is clearly stated that at the time of trap, the complainant had gone to the accused who was sitting there in the office and he has voluntarily stated to have suggested that the accused has brought the money and to return the Registration book. Thereupon, the accused No.1 is said to have stated that his officer is sitting inside and when the complainant insisted that he is getting late and is required to go out, the accused came out and asked accused No.2 to accept the amount of Rs. 150/- and accused No.1 is said to have given the registration book. Therefore, learned counsel Mr.Anand ji wala submitted that this evidence does not disclose the demand by the present appellant accused No.1 not acceptance. He further that it is not even stated in his panchnana at Exh.16 that accused No.2 had accepted the amount/printed currency notes at the instance of the present accused No.1. He referred to the testimony of PW.2 panch witness Exh.16 and the panchnama at Exh.17 and submitted that he has admitted that some of the relevant aspects are not mentioned in the panchnama which he has admitted like whether the amount was in the handkerchief, had any stains or not, meaning thereby the currency notes were smeared with Anthrax in powder has not been clearly stated. He, also referred to the testimony of PW.2 panch witness and submitted that he admitted that the panchnama was taken down by writer of the Police Inspector. Learned counsel Mr. Anand ji wala referred to the FIR at Exh.14 as well as the testimony of the witnesses and again emphasised that none of the three ingredients as were required to be established by the prosecution has not been established. Learned counsel Mr. Anand ji wala referred to the FIR at Exh.14 as well as the testimony of the witnesses and again emphasised that none of the three ingredients as were required to be established by the prosecution has not been established. Referring to the panchnama, learned counsel Mr.Anand ji wala submitted that it should be re-exhibited so that the contents said to have been proved. In support of his submission, he has relied upon the judgment reported in 2007 (1) GLR 428 , Kalahari Danubian Patel v. State of Gujarat. Similarly, he submitted that the initial demand or the demand or the acceptance by the accused is not established and therefore, the judgment and order of conviction recorded against the accused No.1 is erroneous. He submitted that more particularly when accused No.2 has been acquitted of all the charges, the learned Judge has failed to consider the material evidence properly and therefore, the impugned judgment recording conviction of the present appellant - accused No.1 is erroneous. He also submitted that the marks of Anthrax in powder which is alleged to be found has not been properly described by the panch or other witnesses and they have not supported or corroborated on this aspect. He referred to and relied upon the judgment reported in 1960 GLR 113 and emphasised with regard to the use of Anthrax in powder and its characteristics have not been reflected or stated by the witnesses. Learned APP Mr.Pujari referred to the testimony of the complainant at Exh.13 and the complaint being FIR at Exh.14. He submitted that the testimony of the complainant PW.1 at Exh.13 is fully corroborated by PW.2 panch witness at Exh.19 on the relevant aspects. He submitted that merely because the complainant may have stated a different version, the incident is established and the recovery of the money from Accused No.2 is also established suggesting the fact that the money has been passed on to accused persons. Learned APP submitted that though accused No.2 may not have the power or authority to do any favour as regards octroi duty, but he was also on duty at the relevant time and at the instance of accused No.1, he is said to have accepted the money. Learned APP submitted that though accused No.2 may not have the power or authority to do any favour as regards octroi duty, but he was also on duty at the relevant time and at the instance of accused No.1, he is said to have accepted the money. Learned APP submitted that it is required to be noted as stated by PW.2 panch witness in his testimony at Exh.16 also, accused No.1 had come out from the office accompanied by the complainant and then he has said to have stated that the amount may be handed over to accused No.2and accused No.2 was asked to take the money from the complainant. This would suggest that there was an arrangement and thereby both have joined together for such illicit demand of bribe. Learned APP relied upon the testimony of PW.3-Jayeshkumar, Police Inspector, at Exh.21 and submitted that though he is the trapping Officer, he has stated about the FIR as well as the panchnama and how the trap was arranged. He was present and if there was a prior intimation, then only the present complainant would go to offer. He, therefore, submitted that much emphasis is given that there is no demand and the complainant is said to have voluntarily stated that he has brought the money. Considering the entire circumstances as well as the fact that the complainant was not a person having such nature, would not certainly go for making any payment without any demand. Learned APP submitted that the FIR, panchnama and other testimony of the witnesses have also been corroborated by the testimony by the Officer at Exh.21 and his evidence cannot be discarded merely because he is an employee or Police. Learned APP submitted that in such cases, the evidence of such Officer can be relied upon. He further submitted that the FIR may not be a substantial piece of evidence which is corroborated by the evidence of the witnesses. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in 2008 (11) SCC 722 , Bathula Nagamalleswara Rao and ors. v. State. - page 55 and 56. 8. In view of the rival submissions, it is required to be considered whether the impugned judgment and order calls for any interference or not. v. State. - page 55 and 56. 8. In view of the rival submissions, it is required to be considered whether the impugned judgment and order calls for any interference or not. From the testimony witnesses and the material evidence on record, the main emphasis given by learned counsel Mr.Anand ji wala on the aspect of demand is required to be considered. There is no doubt that demand and acceptance are required to be proved. However, the demand with regard to the money as bribe has to be established that the amount was demanded as and by way of bribe. In close scrutiny of the evidence which has been referred to and relied upon by both the sides, the same required to be appreciated. The complainant in his testimony at Exh.12 has stated a different version what is not found in his complaint FIR at Exh.14.He though stated about the break-down service and the vehicle being brought, at that time during the checking, one officer made a demand for octroi duty stating that octroi is to be paid whether it is being sent for repairs etc. Thereafter, the said person is said to have taken the Registration book. He does not say as regards the demand. Similarly, at the time of the trap, he has stated that when he entered the Octroi Naka office, one person is said to have asked him to sit and for a cup of Tea. However, when he refused by stating that he is in a hurry to go to a hospital, he has stated that at that time, one person with brown pant and shift had come whom he had met on the previous day and stated that Rs. 150/- may be paid and his work will be done. He has stated that the said person with brown pant and shirt (accused No.2) had asked him go pay Rs. 150/- so that the RTO book can be returned. Therefore, the complainant paid Rs. 150/- smeared with Anthrax in powder to him which he had accepted and he had arranged for prearranged signal. He has categorically stated that no person/officer can make any demand of money in the Octroi Office (emphasis supplied). Further, he has identified accused No.2 as the same person who had accepted the currency notes. He has stated that the person who had returned the Book is identified as accused No.1. He has categorically stated that no person/officer can make any demand of money in the Octroi Office (emphasis supplied). Further, he has identified accused No.2 as the same person who had accepted the currency notes. He has stated that the person who had returned the Book is identified as accused No.1. He has denied the suggestion that there was any conversation with regard to the demand of Rs. 200/- by the officer and he has specifically stated that he had only taken the RTO book from him. He has denied that on the previous day Rs. 50/- was paid and at that time, the RTO book was collected stating that if the remaining amount of Rs. 150/- may be brought, the book will be returned. He has also denied the suggestion that Rs. 150/- was accepted by accused No.2 (person with brown clothes) at the instance of accused No.1. He has further stated that at the time of collecting the RTO Book, the receipt was given which is at Exh.15. As against this, a close scrutiny of the testimony panch witness PW.2 at Exh.16 is required to be made on the aspect of corroboration and this witness has also remained silent on the aspect of the issue. This witness could not have stated or clarified anything with regard to the prior demand or settlement arrived at between the complainant and accused No.1 that remaining amount of Rs. 150/- may be paid and thereafter the registration book may be returned in view of the release of the vehicle or levying the octroi duty. The subsequent part of the transaction as to what transpired during the trap, the panch witness, in his testimony at Exh.16 stated that when they entered the office, the accused was sitting and when the complainant made a gesture towards him, he had taken one booklet from the drawer of the table and thereafter the complainant is said to have stated as is suggested that he has brought the money and the registration book may be returned. Thereupon accused No.1 is said to have stated that as officers are sitting inside and when the complainant suggested that he is in a hurry, the accused came out and asked a person who looked like a watchman to collect Rs. 150/- which was accepted by him. Thereupon accused No.1 is said to have stated that as officers are sitting inside and when the complainant suggested that he is in a hurry, the accused came out and asked a person who looked like a watchman to collect Rs. 150/- which was accepted by him. Parts of Anthrax in powder were therefore, found on the hand's finger tips of Accused No.2. In other words, he has stated that when he entered the office, he had no conversation with the officer in the room and the person with the brown uniform, watchman like person, present accused No.2 was not there inside the room. He has also stated that he has therefore, come outside the lobby and the conversation took place. He has stated that whether any instruction was given to the complainant as regards the payment of octroi, he does not remember about such conversation had taken place in the lobby. The reference was only to the book. He has specifically stated that when the complainant had stated that he has arrived and had brought the money to the accused, the accused had not made any demand for money nor he had stated that money should be given to him. This will again to go establish that neither there is any evidence as regards about any demand or settlement or there is any evidence with regard to payment of Rs. 50/- and the remaining amount of Rs. 150/- to be paid after two hours and for that purpose the registration book was seized by accused No.1. Similarly, there is no evidence with regard to the demand by Accused No.1 even during the trap when the complainant is said to have made improvement stating that he has brought the money. The accused has not made any demand at that time or accepted the money at that time. One another aspect which is required is to be noted that is if the registration book was seized only for the purpose that if the remaining amount of Rs. 150/- is paid, then the official receipt for such seizure of the registration book would have not have been given. One further aspect which again arises in the face is that even according to the complainant himself, he had met a person on the previous day who was wearing a brown clothes, a watchman like person. 150/- is paid, then the official receipt for such seizure of the registration book would have not have been given. One further aspect which again arises in the face is that even according to the complainant himself, he had met a person on the previous day who was wearing a brown clothes, a watchman like person. Accused No.2 is said to have informed he may pay Rs. 50/- and the remaining amount of Rs. 150/- when the work is done. This would further raise a doubt as regards the prosecution case qua the demand or even initial demand by accused No.1. 9. It is well accepted that the demand and acceptance and recovery are integral parts of such cases which are required to be proved beyond reasonable doubt. Even if the acceptance is proved, it is expected that it would imply that there was a demand and in response to such payment is made by the complainant and such acceptance coupled with the presumption under Section of the Prevention of Corruption Act would establish the guilt of the accused and even then the acceptance has to be there by the accused. In the facts of the present case, admittedly, the acceptance of the smeared currency notes by Accused No.2 is there. Therefore, there is a case that accused No.2 had accepted such currency notes smeared with Anthrax in powder at the instance of accused No.1, there is no corroboration on this aspect by the complainant who had initially made and settled for such deal with the accused or panch witness who had accompanied the complainant at the time of the trap even remotely suggests as regards such kind of arrangement. Therefore, even if it is accepted or assumed for the sake of argument it is quite possible that the person like the accused may not himself accept the money and it could have suggested that it should be made to somebody else who would accept the same on his behalf and then also the demand to have been accepted by the accused. Further, for that purpose, there has to be material evidence to suggest the nexus or an arrangement which is not to be found in the facts of the present case. Further, for that purpose, there has to be material evidence to suggest the nexus or an arrangement which is not to be found in the facts of the present case. Therefore, as the prosecution has failed to establish the demand, it cannot be said that the impugned judgment and order recording the conviction is just and proper and it cannot be sustained and it deserves to be quashed and set aside more particularly when accused No.2 who is said to have accepted the bribe. 10. In the result, the present appeal stands allowed. The impugned judgment and order passed in Special Case No.31 of 1991 by the learned Special Judge, City Sessions Court, Ahmedabad, dated 20.12.1994 recording the conviction of the present appellant - accused under the provisions of Prevention of Corruption Act, is hereby quashed and set aside. The appellant-accused is acquitted of all the charges levelled against him. The appellant is on bail. Therefore, the bail bond shall stand cancelled. Fine paid, if any, shall be refunded the appellant accused. Muddamal is ordered to be returned to the complainant in terms of the order. Appeal allowed.