Research › Search › Judgment

Gujarat High Court · body

2011 DIGILAW 598 (GUJ)

Balwantsinh Dipsinh Vaghela v. State Of Gujarat

2011-08-10

Z.K.SAIYED

body2011
Judgment ( 1. ) THE appellant "original accused has preferred this appeal under section 374(2) of the Code of Criminal Procedure read with Section 27 of the Prevention of Corruption Act (for short 'P.C. Act'), against the judgment and order of conviction and sentence dated 24.04.2001 passed by the learned Additional Sessions Judge and Special Judge (ACB Cases), Kheda at Nadiad, in A.C.B. Case No. 5 of 1997, whereby, the learned Judge has held the appellant (original accused) guilty for the offence under Section 7 of the P.C. Act and sentenced him to suffer RI for 1 (one year) and to pay a fine of Rs.1,000/- i/d to suffer SI for further 3 (three) months. THE learned Judge has also held the appellant " accused guilty for the offence under section 13(1)(d) and Section 13(2) of the P.C. Act and sentenced him to suffer for 1 (one) year, which is impugned in this appeal. THE learned Judge has ordered that both the sentence, awarded to the accused, shall run concurrently. ( 2. ) THE brief facts of the prosecution case is as under: It is the case of the prosecution that the complainant was having licence for retail kerosene depot recognized by the Government in village Torna. It is alleged that on the basis of licence the complainant was selling the kerosene at the rates fixed by the Government and he was getting the quota of 4500 liters kerosene per month. It is alleged that on 27.6.1996 at 7.30 a.m. when he opened the shop, at that time, Bhikhabhai Parmar, Deputy Mamlatdar came and asked him to show the Bill Book and the Stock Register. At that time, the complainant informed said Bhikhabhai Parmar that it was early in the morning and that the record was at his residence, therefore, without speaking anything the said Deputy Mamlatdar went on writing something on a paper which was taken out by him from the file and he made inquiry from one or two customers who were present at the shop. He also drew the panchnama and obtained the signatures of panchas. ( 3. ) IT is alleged that at about 1.00 p.m., the complainant along with Rasikbhai Ishwarbhai and Jayantibhai Aditbhai went together in the office of Mr. Parmar, Dy. Mamlatdar, where he (Mr. Parmar) gave seizure order to the complainant and took his signature on the copy. He also drew the panchnama and obtained the signatures of panchas. ( 3. ) IT is alleged that at about 1.00 p.m., the complainant along with Rasikbhai Ishwarbhai and Jayantibhai Aditbhai went together in the office of Mr. Parmar, Dy. Mamlatdar, where he (Mr. Parmar) gave seizure order to the complainant and took his signature on the copy. Thereafter, the complainant requested the Dy. Mamlatdar to dispose of the matter and the Dy. Mamlatdar informed the complainant to meet the Mamlatdar (present appellant " accused). IT is alleged that on 28.6.1996, at about 12.00 noon, the complainant went to the office of the Mamlatdar (appellant) and narrated the facts and also made complaint against the Dy. Mamlatdar. Thereafter, as the other persons were coming before the Mamlatdar for other work, the Mamlatdar informed him to come to his residence in the evening. IT is alleged that at about 9.00 p.m., the complainant, along with Rasikbhai and Jayantibhai, went to the bungalow of the appellant " accused, where the accused demanded Rs.5,000/- as illegal gratification for disposing of the case, and upon the request of the complainant the said amount was reduced and the matter was settled at Rs.3500/-. IT is alleged that at that time the complainant was having Rs.1500/- which he paid to ( 4. ) THE appellant " accused, and remaining amount was to be paid on THE following day i.e. on Saturday. However, THE accused asked THE complainant to come to his residence in THE evening hours of Sunday, as he was out of station on Saturday. As THE complainant was not willing to pay THE said amount of bribe, THErefore, on 30.6.1996 at 2.00 p.m., he approached THE ACB office and gave his complaint (Exh.20), which was recorded by THE Police Inspector, ACB, in which it has been stated that he was not THE willing party to accede to THE demand of bribe by THE accused, but, in THE event he did not pay THE amount to THE accused, he apprehends that false proceedings would be instituted against him and that he would be harassed and oTHEr false cases would be registered against him and he would have to lend himself in trouble. The PI called two panchas and introduced THE complainant and drew THE panchnama and on production of amount of Rs.2000/- experiment of anthracene powder was done. ( 5. The PI called two panchas and introduced THE complainant and drew THE panchnama and on production of amount of Rs.2000/- experiment of anthracene powder was done. ( 5. ) THEREAFTER, on completion of necessary procedure, the raiding party, along with the complainant and the panchas have proceeded to Kapadwanj. THEREAFTER, the complainant, along with Panch No.1, had gone at the residence of the appellant " accused where he was present. The complainant produced Rs.2000/- to which the accused informed him to put it on the Napkin, which was on the handle of Sofa. The said amount was put by the accused on the napkin which was on the handle of sofa, as instructed by the accused. THEREAFTER, after receiving the pre-arranged signal, the raiding party rushed to the place, the Police Inspector of ACB gave his introduction and asked the name of the appellant. THEREAFTER, necessary formalities were completed and accused was arrested. THEREAFTER, the experiment of anthracene powder with the aid of ultraviolet lamp was carried out, which was noticed and found on the currency notes, Napkin, news paper and on the buniyan of the accused. The currency notes, napkin, etc. were seized under the panchnama, prepared in presence of panchas. The Police Inspector recorded the statement of witnesses. ( 6. ) THEREAFTER, investigation was carried out by the Investigating Officer. The statement of complainant and other witnesses were recorded. Necessary sanction was obtained from the concerned Authority and after the investigation was over the charge-sheet was filed against the appellant under Section 7, 13(1(d) and 13(2) of P.C. Act. THEREAFTER, the charge was framed against the appellant. The appellant " accused has pleaded not guilty to the charge and claimed to be tried. ( 7. ) IN order to bring home the charge levelled against the appellant- accused, the prosecution has examined as many as 5 (five) witnesses and also relied upon the documentary evidence. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of Cr PC was recorded in which the appellant-accused has denied the case of the prosecution. The appellant " accused had also gave written explanation that he does not know what transpired between the complainant and Bhikhabhai (Dy. Mamlatdar). Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of Cr PC was recorded in which the appellant-accused has denied the case of the prosecution. The appellant " accused had also gave written explanation that he does not know what transpired between the complainant and Bhikhabhai (Dy. Mamlatdar). He has also stated that on 27.6.1996 he was not present in the office, and as the complainant was knowing the wife of the accused, he (complainant) went to the house of the accused and under the pretext that somebody is hospitalized, he took Rs.3500/- from his wife. It is also stated by him that on 28.6.1996 the complainant, Rasikbhai and Jayantibhai came to his residence and gave Rs.1500/-, out of Rs.3500/- and also informed in writing, in presence of his wife, that they will return the amount of Rs.2000/- within two days. He has also stated that on 30.6.1996, the complainant and others came to his residence, but, what transpired between him and the complainant is not written in the panchnama. He has stated that he is innocent and has not committed any crime and false case has been filed against them. ( 8. ) AFTER considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 24.04.2001 held the appellant " accused guilty to the charge levelled against him and convicted and sentenced the appellant accused, as stated above. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence dated 24.04.2001, passed by the learned Additional Sessions Judge, Nadiad, in A.C.B. Special Case No.5 of 1997, the present appellant (original accused) has preferred this appeal. ( 9. ) HEARD Mr. Mrugen K. Purohit, learned Advocate, appearing on behalf of the appellant and Mr H.L. Jani, learned APP for the respondent-State. Learned Advocate Mr. Purohit, appearing for the appellant has read the charge Exh. 5 and contended that looking to the allegations made in the charge, it is the duty of the prosecution to prove the case beyond reasonable doubt. He has contended that, as per the evidence, it is alleged by the complainant that on 29.6.1996 he, along with Rasikbhai, went to Vadodara ACB office and met Police Inspector Shri K.M. Desai and talked to him about the incident. However, the prosecution has not examined said PI Shri Desai. He has contended that, as per the evidence, it is alleged by the complainant that on 29.6.1996 he, along with Rasikbhai, went to Vadodara ACB office and met Police Inspector Shri K.M. Desai and talked to him about the incident. However, the prosecution has not examined said PI Shri Desai. He also vehemently contended that ACB office, having jurisdiction over Kheda District is situated in Nadiad and the normal conduct on the part of PI Mr. Desai was to direct the complainant to go to ACB Office, Nadiad for giving FIR. He has contended that in the instant case the seizure order was passed by P.W.4 Bhikhabhai, Deputy Mamlatdar (Supply) and the papers concerning the same were seized from him by awakening him at the mid-night hours. He has also contended that the from the record, it clearly appeared that the main grievance of the complainant was against said Bhikhabhai Parmar, Deputy Mamlatdar, who alleged to have said to the complainant that he had a talk with his higher officer. ( 10. ) HE has also contended that the Deputy Mamlatdar (Supply) is directly under the control of District Supply Officer, who is above the rank of the Mamlatdar and the appellant has nothing to do between the Deputy Mamlatdar (Supply) and the District Supply Officer and, therefore, the appellant " accused has been wrongly involved in the alleged offence. Mr. Purohit has also read the further statement of the appellant " accused under Section 313, in which he has categorically stated that the appellant does not know what transpired between the complainant and Bhikhabhai. On 29.6.1996 he was not present in the office. The appellant has also stated that the complainant was knowing his wife and as the complainant was in need of money, he had gone to his house for taking money from his wife by saying that somebody is hospitalized and, therefore, he was in need of Rs.3500/-. HE had also written the same in writing. HE has stated that on 28.6.1996 the complainant, Rasikbhai and Jayantibhai had gone to his house and gave Rs.1500/- and also assured that Rs.2000/- will be repaid within two days and also written the same in writing. HE has stted that on 30.6.1996 the complainant and others have come to his house and he does not know what transpired between them. HE has stated that he is innocent. Mr. HE has stted that on 30.6.1996 the complainant and others have come to his house and he does not know what transpired between them. HE has stated that he is innocent. Mr. Prohit has contended that when the probable defence is proved beyond reasonable doubt, then the learned Judge ought not to have convicted the present appellant. HE has contended that the appellant has examined his own wife as defence witness and probable defence is proved. HE has contended that looking to the evidence produced on the record, prima facie, it clearly appears that the learned Judge has committed grave error in not considering the probable defence put forward by the ( 11. ) APPELLANT and wrongly held the APPELLANT " accused guilty of the charges alleged against him. Mr. Purohit has also read the oral evidence of P.W.1 ' Chandrakant Baldevdas Sadhu (Exh.19) ' the complainant, and contended that from the roal version of this witness, the prosecution has failed to prove the demand as well as acceptance of amount as an illegal gratification by the APPELLANT. He has also read the evidence of P.W. 2 " Arvindbhai Balkrushna Joshi (Exh.33) who was the panch witness and contended that as per the evidence of Panch witness as well as the complainant, it clearly appears that when they were at the residence of the APPELLANT " accused, there he has not made any demand from the complainant. He has contended that the other merchant Jayantibhai was also there and the complainant has asked the APPELLANT that "please accept Rs.2000/- which was uttered by the complainant and at that time the APPELLANT informed the complainant to put that amount on the napkin which was lying on the handle of Sofa. Mr. Purohit has contended that the marks of anthracene powder were not found on the finger, tip, palms of the present APPELLANT, however, it was found only on the baniyan of the APPELLANT. ( 12. ) HE has contended that the explanation given by the appellant is full of defence and looking to the cross examination of the complainant and the panch witness, prima facie, it is clearly established that the prosecution has failed to prove that the appellant has made any demand from the complainant and accepted the money as an illegal gratification. ) HE has contended that the explanation given by the appellant is full of defence and looking to the cross examination of the complainant and the panch witness, prima facie, it is clearly established that the prosecution has failed to prove that the appellant has made any demand from the complainant and accepted the money as an illegal gratification. HE has, therefore, contended that looking to the evidence produced on the record, it is clearly established that prosecution has failed to prove any demand made by the appellant as an illegal gratification and the appellant is wrongly booked by the Trapping Officer in the commission of offence. HE has contended that if the deposition of the witnesses are seen and read together, it is clearly coming out on record that there are material contradictions in the deposition of witnesses. If the depositions are kept in mind together it is not possible to reconcile as to how and in what manner the incident has occurred. HE has contended that when the demand is not proved beyond reasonable doubt, then no case can be proved against the accused beyond reasonable doubt. HE has contended that the conduct of the complainant is not natural. Therefore, the story put forward by the complainant is not believable and it cannot be said that the prosecution has established the initial demand of bribe by the accused from the complainant. HE has contended that looking to the over all evidence the demand and acceptance is not proved and, therefore, the Judgment and order of conviction passed by the learned Judge may be quashed and set aside. HE has also relied upon a decision in the case of BANARASI DAS v/s STATE OF HARYANA, reported in AIR 2010 SC 1589 and contended that in absence of proof of demand, the prosecution has failed to prove its case beyond reasonable doubt and the Judgment of the trial Court may be quashed and set aside and the appellant may be acquitted from the charges alleged against him. ( 13. ) AS against this, Mr Jani, learned APP appearing for the respondent " State has supported the Judgment and order passed by the learned Special Judge. He has contended that the learned Judge has not committed any error in holding the appellant guilty of the charges levelled against him. ( 13. ) AS against this, Mr Jani, learned APP appearing for the respondent " State has supported the Judgment and order passed by the learned Special Judge. He has contended that the learned Judge has not committed any error in holding the appellant guilty of the charges levelled against him. He has contended that looking to the evidence of complainant, Panch witness and the Trapping Officer, the demand, recovery and acceptance by the accused is proved beyond reasonable doubt and, therefore, no interference is called for by this Court. He has contended that the learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper judgment. Mr. Jani has contended that when the demand and acceptance of bribe money is proved from the evidence produced on the record, then no question would arise to disbelieve the case of the prosecution. Mr. Jani has also contended that the presumption is required to be drawn against the accused under Section 20 of the P.C. Act. He has also contended that the trap amount is recovered from the possession of the accused and from the evidence of the complainant and other witnesses, it is clearly established that at the instance of accused the said amount was put on the table of the accused. Therefore also, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed. ( 14. ) I have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. It is pertinent to note that in corruption cases four things are required to be appreciated, viz. (I) initial demand, (ii) second demand to be made in presence of Panch, (iii) voluntary acceptance and (iv) recovery of amount. From the perusal of the oral evidence of the complainant as well as the first panch, it is clearly established that the demand made by the appellant is not proved beyond reasonable doubt. From the deposition of the complainant, it clearly appears that he has categorically admitted in his cross examination that the complainant has taken money as loan from the wife of the appellant. The complainant has also admitted his signature on the paper. From the deposition of the complainant, it clearly appears that he has categorically admitted in his cross examination that the complainant has taken money as loan from the wife of the appellant. The complainant has also admitted his signature on the paper. He has also admitted that along with his signature, there was signature of Rasikbhai Ishwarbhai. ( 15. ) HE has admitted that they have signed on the paper for taking money from Chhayaben, wife of the appellant - accused. This witness has categorically deposed that writing was done by Chhayaben and not by the accused. The prosecution has examined P.W.2 " Arvindbhai Balkrushna Joshi (Exh.33) who was the panch witness in the case. This witness, in his cross examination, has deposed that at the time when the complainant gave money to the appellant " accused, he has not uttered a word for disposing of the case. This witness has admitted in his cross examination that when the appellant has asked for money at that time the complainant has also asked for return of papers. HE has also admitted that the conversation which he heard between the appellant " accused and the complainant has not written down in the panchnama. I have also perused the evidence of P.W.4 " Bhikhabhai Atmaram Parmar (Exh.58), who was at the relevant time, Deputy Mamlatdar (Supply). This witness has categorically admitted in his cross examination that after issuing the seizure order, except District Supply Officer, no body can dispose of that case. I have also perused the evidence of Chhayaben Balvantsinh Vaghela, wife of appellant " accused, who has been examined as defence witness (Exh.81). I have also perused the case diary as well as the further statement given by the appellant " accused under Section 313 Cr. P.C. From the perusal of oral as well as documentary evidence, ( 16. ) IT is clearly established that the specific demand, which is alleged to have been made by the appellant " accused, is not proved beyond reasonable doubt. Even from the explanation of the appellant " accused, IT clearly appears that the alleged trap amount was put on the napkin which was lying on the handle of Sofa and at that time the appellant " accused had gone for urinal, however, during that time signal was given and the raiding party rushed there. Even from the explanation of the appellant " accused, IT clearly appears that the alleged trap amount was put on the napkin which was lying on the handle of Sofa and at that time the appellant " accused had gone for urinal, however, during that time signal was given and the raiding party rushed there. From the evidence IT is clearly established that no marks of anthracene powder was found on the fingers, tips and the palm of the present appellant " accused. However, the said amount was recovered from the napkin which was lying on the handle of sofa. Therefore, the probable defence made by Mr. PurohIT that in absence of appellant " accused, who had gone to answer the natural call, the alleged amount was put on the napkin which was lying on the handle of sofa and the appellant was not aware about the fact that the amount was lying there and when he took the papers which were put over on the alleged amount, the anthracene powder was spread, through the air, and sticked on the buniyan of the appellant ' accused, but, the appellant' accused has not touched the said amount. It is the duty of the prosecution to explain that when the anthracene powder was not found on the fingers, tip, palm, then how the anthracene powder was found on the buniyan of the appellant ' accused " ( 17. ) IT is also evident from the record that the seizure order was served upon the complainant by the Deputy Mamlatdar (Supply) and the said seizure order can be disposed of only by the District Supply Officer, who is of the rank of Deputy Collector, and the Mamlatdar has no role to play in the case of the complainant. IT is also evident from the record that the complainant has also admitted that they were aware of the fact that the success of the trap would result into the delay of the case which might be registered against him. IT is clearly appeared that all through-out, Jayantibhai and Rasikbhai have accompanied the complainant, however, they have not been examined by the prosecution. Background of the case which is required to be examined is very important. IT is clearly appeared that all through-out, Jayantibhai and Rasikbhai have accompanied the complainant, however, they have not been examined by the prosecution. Background of the case which is required to be examined is very important. Why were Jayantibhai and Rasikbhai at the residence of the accused " As they were present, the accused whose bona fides were clear need not doubt the bona fides of Panch No.1, and non-examination of Jayantibhai and Rasikbhai should have led the learned Judge to draw an adverse inference against the prosecution. IT is difficult to understand that the alleged incident had occurred at Kapadwanj, which is in Kheda District and the ACB Office of Kheda District is very much there at Nadiad, then why the complainant has preferred to go to Vadodara to lodge the FIR against the accused when the ACB Office is very much there at Nadiad " No explanation is coming on record in this regard. In the present case, no doubt, the amount is recovered from the napkin which was lying on the handle of sofa at the house of the accused, but, in connection with demand alleged to have been made by the accused, no fruitful or reliable circumstantial evidence is produced on record and when the demand is not proved beyond reasonable doubt then the learned Judge has committed grave error in holding the appellant ' accused guilty of the offences alleged against him. ( 18. ) LOOKING to the evidence of the prosecution witnesses, it is clearly established that the appellant has not made any demand from the complainant. Even from the evidence of panch witness, it is not established that whether any demand has been made by the appellant from the complainant. LOOKING to the evidence, it clearly appears that there are material contradictions in the evidence of prosecution witnesses. I have also perused the statement of the present appellant, recorded under sec.313 of Code of Criminal Procedure, in which the appellant has categorically stated that the complainant was having a Government licence to sell the retail kerosene and, therefore, he was getting 4500 liters kerosene for sale. He has categorically stated that he does not know what transpired between the complainant and Bhikhabhai (Deputy Mamlatdar ' Supply). He has deposed that on 27.6.1996, he was not present in the office. He has categorically stated that he does not know what transpired between the complainant and Bhikhabhai (Deputy Mamlatdar ' Supply). He has deposed that on 27.6.1996, he was not present in the office. The complainant was knowing his (appellant) wife and for helping his relative, who was hospitalized, the complainant has taken the amount from his wife. He has stated that to return the amount of Rs.1500/- the complainant, along with Jayantibhai and Rasikbhai, had come to his house. The complainant has also assured that remaining amount of Rs.2,000/- will be paid within two days and, therefore, on 30.6.1996 the complainant and others came to his house. He has stated that it is not disclosed in the panchnama as to what transpired between him and the complainant. LOOKING to the facts of the case, in my opinion, the probable defence is established by the present appellant beyond reasonable doubt. ( 19. ) IN the decision of the Hon'ble Supreme Court in the case of Banarsi Das Vs. State of Haryana, reported in AIR 2010 SC 1589 , the Hon'ble Supreme Court has observed that mere proof of recovery of bribe money from accused is not sufficient to prove the offence. IN that view of the matter, I am of the opinion that so far as the offence of bribery is concerned, the demand of bribe is required to be proved beyond reasonable doubt. Subsequent acceptance is also required to be established. Therefore, in absence of any evidence regarding the demand and acceptance, then mere recovery is not sufficient to convict the present appellant and no presumption can be raised. It clearly appears that for the reasons best known, the appellant ' accused has been falsely roped in the case in light of two important circumstances, viz. proved fact that the complainant admitted that he borrowed money from the wife of the appellant and also gave in writing that he will repay the amount and secondly that Kapadwanj, where the alleged offence has occurred is in Kheda District and the ACB Office is situated at Nadiad, but, the complainant approached ACB Office, Vadodara, for which no explanation is coming on record. Under the circumstances, the appellant ' accused is required to be acquitted honourably and on merits. Hence, present appeal requires to be allowed. ( 20. ) IN the result, this appeal is allowed. Under the circumstances, the appellant ' accused is required to be acquitted honourably and on merits. Hence, present appeal requires to be allowed. ( 20. ) IN the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 24.04.2001 passed by the learned Additional Sessions Judge, Nadiad, in A.C.B. Special Case No. 5 of 1997 is hereby quashed and set aside. The appellant-accused is hereby acquitted from all the charges levelled against him. Fine, if paid, be refunded to the appellant. The appellant-accused is on bail, his bail bonds stands discharged. R and P to be sent back to the trial court forthwith.