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2014 DIGILAW 873 (GUJ)

State of Gujarat v. Maganbhai Kavaji Karova

2014-08-04

G.B.SHAH

body2014
JUDGMENT : G.B. Shah, J. The present appeal is filed by the appellant-State under section 378(1) (3) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) being aggrieved and dissatisfied with the judgment and order of acquittal dated 24.03.2004 passed by the learned Special Judge (A.C.B.) and 2nd Fast Track Judge, Mehsana, in Special (A.C.B.) Case No.02 of 2001, whereby the respondents original accused have been acquitted of the charges levelled against them under Section 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short Act). 2. Short facts of the case are that on 04.11.2000, when Shri D.S. Asari, PI, ACB, Mehsana was performing his duty, he received the information that local traffic police officials were accepting the bribe of Rs.100/- to 300/- from the owners of private vehicles by way of Diwali bonus. Thereafter, on inquiry made by him, he came to know that local traffic police officials at Mehsana-Modhera Police Chowki, Nirma Mandali Highway Police Chowi and Nandasan Outpost were accepting the bribe amount of Rs.100/-to 300/-from the owners of private vehicles by way of bonus. Therefore, on 04.11.2000, Shri D.S. Asari, PI, ACB, Mehsana called the panchas and a punter named Juned Husen Samsuddin Saiyed and arranged the decoy trap. When the respondents accused were present at Nandasan outpost, panch No.1 of Decoy trap came there with Juned Husen Samsuddin Saiyed, at that time respondent-accused No.1 demanded a bribe of Rs.300/-as Diwali bonus. Therefore, Juned Husen Samsuddin Saiyed gave an amount of bribe of Rs.300/-to respondent No.1-original accused No.1, but respondent No.2- original accused snatched away the said currency notes from respondent No.1-original accused and put the said currency notes in his left pocket of his shirt. Thereafter, on signal being given by the members of the raiding party, the raiding party rushed to the place of incident and when the respondents-accused tried to run away from the place, they were caught and were arrested. Accordingly, a complaint had been filed against the respondents-accused for the offences punishable under Sections 7, 12, 13(i)(d) and Section 13(2) of the Act before the ACB Police Station, Mehsana. 2.1 At the end of investigation and on the basis of material collected against the accused, since a prima facie case was made out against the accused, a charge-sheet was filed against them. 2.1 At the end of investigation and on the basis of material collected against the accused, since a prima facie case was made out against the accused, a charge-sheet was filed against them. Thereafter, the charge was framed against the accused, which was read over to them. The accused pleaded not guilty to the said charge and claimed to be tried. 2.2. In order to prove the charge against the accused, the prosecution has examined, in all 5 witnesses and also produced certain documentary evidences. 2.3 Upon filing closing pursis by the prosecution, further statements of the accused under Section 313 of Cr.P.C, 1973 were recorded. The accused denied involvement in the crime. After hearing the learned advocates appearing for the prosecution and the defence, the learned trial Judge, acquitted the respondents-accused of the charges levelled against them, giving benefit of doubt, which is giving rise to the present appeal. 3. Heard Mr.K.L.Pandya, learned Additional Public Prosecutor, for the appellant-State and Mr.P.R.Nanavati, learned advocate for the respondents-accused. 4. Mr. P. R. Nanavati, learned advocate for the respondents-accused produced a copy of death certificate of respondent No.1 herein-original accused No.1-Maganbhai Kavaji Karova. The same is taken on record. On perusal of the same, it appears that Maganji Kavaji Karova-respondent No.1-herein, has expired on 26.12.2010 and hence, appeal qua respondent No.1 herein is ordered to be abated. 5. Mr.K.L.Pandya, learned Additional Public Prosecutor submitted that the learned trial Judge has not properly appreciated the oral as well as documentary evidence produced on record. He further submitted that learned Judge has committed an error in not properly appreciating the oral as well as documentary evidence in its true and proper perspective. He further submitted that the learned trial Judge has failed to appreciate that only recovery from the respondents-accused does not prove the demand, offer and acceptance and the nature of evidence clearly suggests involvement of respondents-accused in the alleged crime. He then submitted that the learned trial Judge has committed an error in holding that the information received by the ACB was not reduced in writing by making an entry into station diary. He further submitted that the prosecution has proved the case against the respondents-accused beyond reasonable doubt and thereby, the learned trial Judge has committed error in acquitting the respondents-accused. It is therefore, urged that the present appeal requires to be allowed. 6. On the other hand, Mr. He further submitted that the prosecution has proved the case against the respondents-accused beyond reasonable doubt and thereby, the learned trial Judge has committed error in acquitting the respondents-accused. It is therefore, urged that the present appeal requires to be allowed. 6. On the other hand, Mr. P.R.Nanavati, learned advocate for respondents-accused submitted that the trial court has rightly appreciated the evidence forthcoming on the record and the reasons recorded by it for recording a finding of acquittal are reasonable and justifiable. He further submitted that there are glaring and major contradictions in the evidence of material witnesses, seriously affecting the root of the matter. Therefore, the respondents-accused has rightly been acquitted by the trial court. The learned advocate for the respondents-accused further submitted that this being an appeal against the order of acquittal, the judgment and order delivered by the trial court deserves to be upheld as proper, as plausible reasons for acquittal have been recorded. Eventually, he submitted that the present appeal may be dismissed. 6.1 In support of his submission, Mr.P.R.Nanavati, learned advocate for respondents-accused relied upon a decision in State of Punjab v. Madan Mohal Lal Verma, reported in AIR 2013 SC 3368 . Paras para 6 to 9 relevant for the purpose, are extracted hereunder:- "6. It is a settled legal proposition that in exceptional circumstances, the appellate court for compelling reasons should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse, i.e. if the conclusions arrived at by the court below are contrary to the evidence on record; or if the courts entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice; or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence. 7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence. 7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. 8. The case is required to be examined in the light of the aforesaid settled legal propositions. So far as the recovery is concerned, the respondent accused took a plea that he only had the duty to serve the notice on the complainant with regard to the tax evasion done by him and was not the authority for making an assessment order. It was his official duty to serve upon the complainant a notice under Section 148 of the Income Tax Act, Act 1961. It was his official duty to serve upon the complainant a notice under Section 148 of the Income Tax Act, Act 1961. The complainant came to his house and asked the respondent-accused to give him a glass of water as he had to take the medicine. He went inside the kitchen and came back with a glass of water and thereafter shook hands with the complainant and that is why when the hands of the respondent were washed, they turned pink. 9. The High Court also accepted the defence version made under Section 313 of Code of Criminal Procedure, 1973 and recorded the findings that the possibility of Phenolphthalein powder appearing on the hands of the respondent-accused when he shook hands with the complainant cannot be ruled out. The High Court further took note of various subsequent developments that certain complaints were filed against him by the CBI having disproportionate assets. The complainant Naresh Kumar Kapoor was a man having a criminal background. He was involved in a murder case as well as in a case of sale of shares in bogus names. The High Court further observed that in case two views are possible, the view favouring the accused has to be given preference, thus, gave the benefit of doubt to the respondent accused and acquitted him." 7. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the learned trial Court have been very clearly explained by the Hon'ble Apex Court in catena of decisions. In the case of State of Goa v. Sanjay Thakran & Anr., reported in (2007)3 SCC 755 , it has been held by the Hon'ble Apex Court In para 16 as under: 16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with. 8. Same view has been taken by the Apex Court in State of Uttar Pradesh v. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. state of M.P., reported in 2007 AIR SCW 5589. 9. I have gone through the impugned judgment and order passed by the learned trial Court together with oral as well as documentary evidence and also considered submissions made by learned Additional Public Prosecutor, in light of the principles laid down by the Hon'ble Apex Court in the aforesaid decisions. 10. I have considered the above referred submissions made by learned advocates for the parties. It is not under dispute that on 04.11.2000, a decoy trap was arranged by Shri D.S. Asari, PI, ACB, Mehsana on receiving an information that local traffic police officials of the District were accepting the amount of bribe of Rs.100/- to 300/- from the owners of private vehicles by way of Diwali bonus. After receiving the said information, he had made inquiry and it was found that the police officials of Mehsana-Modhera Police Chowki, Nirma-Mandali Highway Police Chowki and Nandasan Outpost were accepting the bribe amount in respect of Diwali bonus. It has come on record that on 04.11.2000, the Shri D.S.Asari, ACB, PI, Mehsana had called one Punter namely Junaid Hussain Samsuddin Saiyed. The said punter along-with panch No.1 proceeded on a scooter bearing registration No. GJ-2-E-395 towards Mehsana-Modhera Police Chowki and thereafter, Nirma Mandali Highway Police Chowki, where no traffic police officials were found. Thereafter, they went to Nandasan Outpost, where the police officials were performing their duties. The said punter along-with panch No.1 proceeded on a scooter bearing registration No. GJ-2-E-395 towards Mehsana-Modhera Police Chowki and thereafter, Nirma Mandali Highway Police Chowki, where no traffic police officials were found. Thereafter, they went to Nandasan Outpost, where the police officials were performing their duties. Considering the entire evidence which has come on record, it is clear that at no point of time, demand has been made by any of the respondents-accused. Moreover, this issue has been dealt with by the learned trial Judge at length and the acceptance of the alleged amount of bribe has also not been satisfactorily proved by trustworthy depositions. Under the circumstances, on giving thoughtful consideration to the impugned judgment and order, there appears no illegality or perversity or arbitrariness in the conclusions arrived at and findings recorded by the learned trial Judge. I have gone through the ratio laid down by the Hon'ble Apex Court in State of Punjab v. Madan Mohal Lal Verma(Supra), which is squarely applicable to the case on hand. 11. It appears that the learned trial Court, on an elaborate discussion of the entire oral and documentary evidence in true perspective, has acquitted the accused, as aforesaid. This Court is, therefore, of the opinion that the learned trial Court was completely justified in acquitting the accused of the charges levelled against them. Under the circumstances, the findings recorded by the learned trial Court are just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, I do not find it necessary to interfere with the same. 12. Learned Additional Public Prosecutor is not in a position to show any evidence to take a view contrary to the view taken by the learned trial Court or that the approach of the learned trial Court is vitiated by some manifest illegality or that the decision is perverse or that the learned trial Court has ignored the material evidence on record. 13. In view of the aforesaid discussion, the appeal having found without any substance, fails and is dismissed accordingly. The impugned judgment and order dated 24.03.2004 passed by the learned Special Judge (A.C.B.) and 2nd Fast Track Judge, Mehsana, in Special (A.C.B.) Case No.02 of 2001 is confirmed. Bail bonds, if any, shall stand cancelled. 13. In view of the aforesaid discussion, the appeal having found without any substance, fails and is dismissed accordingly. The impugned judgment and order dated 24.03.2004 passed by the learned Special Judge (A.C.B.) and 2nd Fast Track Judge, Mehsana, in Special (A.C.B.) Case No.02 of 2001 is confirmed. Bail bonds, if any, shall stand cancelled. Registry to sent back the record and proceedings, if called for, to the trial Court forthwith after following due procedure for the same. Appeal dismissed.