Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 412 (GUJ)

Chimanlal Narandas Pandya v. State of Gujarat

2015-04-09

K.J.THAKER

body2015
JUDGMENT : Kaushal Jayendra Thaker, J. 1. Criminal Appeal No. 414 of 2004 has been preferred by the appellant-original-accused No. 3 and Criminal Appeal No. 429 of 2004 has been preferred by the appellant-original-accused No. 1 under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 27-2-2004 passed by the learned Special Judge, Court No. 2, Ahmedabad in Special Case No. 5 of 1998, whereby, the learned Judge has convicted the appellants-original-accused Nos. 1 and 3 under Sec. 7 of the Prevention of Corruption Act and sentenced to undergo six months R.I. and to pay a fine of Rs. 500/- each, in default, to undergo further R.I. for two months. The appellants-original-accused Nos. 1 and 3 also convicted under Sec. 12 of the Prevention of Corruption Act, and sentenced to undergo R.I. for two months and to pay a fine of Rs. 500/- each, in default, to undergo further R.I. for three months. The appellants-original-accused Nos. 1 and 3 further convicted under Sec. 13(2) of the Prevention of Corruption Act and sentenced to undergo R.I. for three months and to pay a fine of Rs. 1,000/- each, in default, to undergo further R.I. for three months, which is impugned in these appeals. The brief facts of the prosecution case is as under: "2.1. It is the case of the prosecution that accused No. 1 has been serving as a Junior Clerk in the Octroi Department of the Ahmedabad Municipal Corporation and accused No. 2 is a private person having his own business of plying jeep car and earning his livelihood. The accused No. 3 is working as a Senior Valuation Officer in the Octroi Department of Ahmedabad Municipal Corporation. The prosecution case is that the accused demanded an illegal gratification of Rs. 400/- from the complainant Bhanubhai Keshavlal Patel and one witness Kiritbhai Shah for the purpose of releasing Kinetic Pride and no receipt was given to the complainant. When the Octroi Clerk Vadsara opposed the action of the accused No. 1, he asked him to leave the office as the working hours of the office were over and accused No. 1 was directed to accept Rs. 400/- from the complainant, and thereafter, gave the possession of the Kinetic Pride to the complainant. Thus, the accused No. 1 demanded an amount of Rs. 400/- from the complainant, and thereafter, gave the possession of the Kinetic Pride to the complainant. Thus, the accused No. 1 demanded an amount of Rs. 400/- from the complainant on 28-7-1997, and thereafter, when the raid was carried out, the accused No. 2 in collaboration and collusion with other accused, accepted an amount of Rs. 400/- from the complainant as per the instructions given by the accused No. 3. The accused No. 1 did not follow the procedure for returning the Kinetic Pride to the complainant and has thus demanded an amount of Rs. 400/- from the complainant. The other accused acted in collusion with the accused No. 1 in the said act of demanding and accepting an illegal gratification and thus, all the accused have acted in collusion with each other and abetted in the commission of the act of demanding and receiving an illegal gratification to the tune of Rs. 400/-, and thereby, they have committed offences punishable under Secs. 7, 12, 13(1)(d) and 13(2) of the Act. The complaint was given by Bhanubhai Keshavlal Patel on 28-7-1997, wherein, he has narrated as to how the accused demanded an illegal gratification from him for the purpose of releasing his Kinetic Pride without following the procedure. On the basis of the complaint given by Bhanubhai Patel, the offence was registered against the accused vide C.R. No. I-20 of 1997 in the A.C.B. Office, Ahmedabad. The Police Inspector L.P. Solanki requisitioned two panch witnesses with a view to carry out the raid and to nab the culprits. After requisition of two panch witnesses and receiving Rs. 400/- from the complainant for the purpose of using the same in the raid, the notes of Rs. 100/- denomination each were smeared with anthracene powder, and thereafter, the complainant was requested to keep the said notes smeared with anthracene powder in the upper portion of the pocket of the shirt and further instructed me complainant not to part with the currency notes unless and until demanded by the accused. When the actual demand, offer and acceptance was made, the accused were caught red-handed and after nabbing the accused, the muddamal notes were recovered and the receipt in that regard was given to the accused from whom notes were seized. Necessary permission to prosecute the accused Nos. 1 and 3 was obtained from the Deputy Municipal Commissioner, Ahmedabad Municipal Corporation. When the actual demand, offer and acceptance was made, the accused were caught red-handed and after nabbing the accused, the muddamal notes were recovered and the receipt in that regard was given to the accused from whom notes were seized. Necessary permission to prosecute the accused Nos. 1 and 3 was obtained from the Deputy Municipal Commissioner, Ahmedabad Municipal Corporation. On receiving the sanction and other materials on record, statements of witnesses were also recorded. The accused came to be charge-sheeted, as stated above, for the alleged offence punishable under Secs. 7, 12, 13(1)(d) and Sec. 13(2) of the Prevention of Corruption Act, 1988 which was numbered as Special Case No. 5 of 1998." 2. The accused were charged vide at Exh. 1. The appellants - accused pleaded not guilty and claimed to be tried. 3. In order to bring home the charge levelled against the appellants-accused, the prosecution has examined the following witnesses: "1. Bhanubhai Keshavlal Patel Exh. 23 2. Kailashchandra Jivatram Sadhwani Exh. 32 3. Laxmansinh Parbatsinh Solanki Exh. 38 4. Hareshkumar Prafulchandra Agrawat Exh. 50 5. Trikambhai Gagjibhai Zalawadia Exh. 53 6. Harshadbhai Vasantbhai Exh. 55" 4. To bring home the charge levelleged against the accused, the prosecution has also produced the following documentary evidence before the trial Court: "1. Complaint Exh. 24 2. Panchnama with regard to the trap Exh. 33 3. Receipt given by L.P. Solanki P.I. to accused No. 2 Exh. 74 4. Sanction given to prosecute accused Nos. 1 and 3 Exh. 51 5. Abstract of the register maintained by Municipal Corporation Exh. 60" 5. Thereafter, after examining the witnesses, further statement of the appellant-accused under Sec. 313 of Cr. P.C. was recorded in which the appellants-accused have denied the case of the prosecution. 6. After considering the oral as well as documentary evidence and after hearing the parties, learned Judge, vide impugned judgment and order dated 27-2-2004 held the appellants - accused guilty to the charge levelled against them under Secs. 7, 12 and13(2) of the Prevention of Corruption Act, 1988 and convicted and sentenced the appellants accused, as stated above. 7. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Judge, the present appellants have preferred these appeals. 8. Heard Mr. K.B. Anandjiwala learned Senior Advocate with Mr. Hardik Pandit, Advocate, in Criminal Appeal No. 429 of 2004 and Ms. 7. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Judge, the present appellants have preferred these appeals. 8. Heard Mr. K.B. Anandjiwala learned Senior Advocate with Mr. Hardik Pandit, Advocate, in Criminal Appeal No. 429 of 2004 and Ms. Shilpa Shah learned Advocate in Criminal Appeal No. 414 of 2004 and Ms. Mehta learned A.P.P. for the respondent-State in both these appeals. 9. Mr. Anandjiwala learned Senior Advocate appearing for the appellant-accused has vehemently submitted that the evidence on record goes to show that the offence under Secs. 7, 12 and 13(2) of the Prevention of Corruption Act, is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside, and the appeal be allowed. Mr. Anandjiwala learned Senior Advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities, and therefore, the same deserves to be quashed and set aside. Ms. Shah learned Advocate appearing for the appellant has also relied on the decision of this Court in case Bhalchandra Laxmishankar Dave vs. State of Gujarat, rendered in Criminal Appeal No. 92 of 2003 and submitted that the impugned judgment and order of conviction and sentence may be quashed and set aside. 10. Per contra, learned A.P.P. Ms. Mehta has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. Mehta learned A.P.P. further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused, and therefore, the present appeals deserve to be allowed. 11. I have gone through the 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. The trial Court on appreciation of evidence on record found that the appellants herein were found to be guilty of the charge levelled against them and they were convicted and sentenced as stated above. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. The trial Court on appreciation of evidence on record found that the appellants herein were found to be guilty of the charge levelled against them and they were convicted and sentenced as stated above. At the out-set, there are three aspects which normally in a criminal trial under the Prevention of Corruption Act would not be involved. This is a case where this Court does not have what is called is direct piece of evidence as we will have to rely on the evidence what is known as leading to the circumstantial chain as the F.I.R. is silent about the involvement of accused No. 3. The second missing thing is acceptance and recovery of money from accused Nos. 1 and 3. If this chain is not complete, it made dent in the prosecution case leaving the judgment of the trial Court so well written in ornamental language but causing grave injustice to people who are not involved in any kind of property, illegal gratification or what is known as corruption. These are broad submissions of Ms. Shah learned Advocate and Mr. Anandjiwala learned Senior Advocate for Mr. Hardik Pandit learned Advocate. As against this, Ms. Mehta learned A.P.P. has strenuously urged that just because name of accused No. 3 does not appear in the F.I.R. and his name was revealed by other co-accused, and therefore, submitted that no naming the accused in F.I.R. is non-fatal to the prosecution case and she has taken this Court through the evidence of all the witnesses, more particularly, P.W. 4 and P.W. 6. 12. It goes without saying and for elaborate reasons which are assigned hereinafter, there is a great anguish in the mind of Court that how in such a way, the learned trial Judge gave his reasons. After discussing the oral as well as documentary evidence, the reasons assigned by the learned trial Judge in one para only and at the end, the learned trial Judge has said that the society needs to be cleaned and that is why accused Nos. 1 and 3 are convicted and sentenced. 13. After discussing the oral as well as documentary evidence, the reasons assigned by the learned trial Judge in one para only and at the end, the learned trial Judge has said that the society needs to be cleaned and that is why accused Nos. 1 and 3 are convicted and sentenced. 13. In the present case, five aspects are required to be seen, namely; in one track the complainant said that he wants to lodge the F.I.R. before the A.C.B., but, unfortunately, he has not given the name of accused No. 3. Had he got conversation with accused No. 3, he would not have visited the office at Usmanpura, and therefore, submission of Ms. Mehta that there was demand by accused No. 3, has no substance. His non-naming in the F.I.R. would be fatal to the prosecution case. In this case, the circumstances that there was demand by accused No. 3, acceptance by accused No. 3 and/or recovery from accused No. 3 is not fulfilled. On the contrary, if we go through the evidence of P.W. 6-Harshadbhai Vasantbhai Exh. 55, who has deposed that on 27-7-1997, he was on duty from 12-00 O'clock at night till 6-00 O'clock in the morning and as the concerned clerk was not present, he was supposed to do the duty on his behalf on 28-7-1997. On 28-7-1997, at about 10-30 a.m., one person came with Kinetic Pride and as the vehicle was having a temporary number, no inquiry was made with regard to the payment of octroi. He has further deposed, that thereafter, Senior Valuation Officer called him at Jawahar Chowk and he has told orally to take the vehicle to the Octroi Naka and detain the same. He thereafter went to Octroi Naka and detained the vehicle and kept the keys with him. When the documents with regard to vehicle were demanded, the person from whom the information was sought told him that as the vehicle is registered outside the city limits of Ahmedabad, no octroi is required to be paid by him. The papers were lying with the financier, and therefore, the person could not show the papers. The accused No. 1 was present at the Octroi Naka and the accused No. 1 gave instructions to Bhanubhai K. Patel to meet accused No. 3 at Usmanpura. Thereafter, some talk had transpired between the complainant, Kiritbhai and accused No. 1. The papers were lying with the financier, and therefore, the person could not show the papers. The accused No. 1 was present at the Octroi Naka and the accused No. 1 gave instructions to Bhanubhai K. Patel to meet accused No. 3 at Usmanpura. Thereafter, some talk had transpired between the complainant, Kiritbhai and accused No. 1. The complainant also met accused No. 3 along with Kiritbhai and in pursuance of that talk, the accused No. 3 came inside the cabin and told the persons sitting there that person is a local resident, and therefore, without taking octroi, an amount of Rs. 400/- be paid and be placed in the drawer and the key be handed over to the party. P.W. 6-Harshadbhai Vasantbhai Exh. 55, in his cross-examination, has deposed that he has no idea about the trap and the transactions which had taken place during the trap because he does not have the personal knowledge about the same. It goes to show that accused No. 3 was never in picture, and therefore, there are corrections made by the complainant, and therefore, in a recent decision of the Apex Court, in such a matter what is known as material omission and material discrepancy will have to be looked into. In this case, the material discrepancy is that had the complainant had a discussion with accused No. 3 mere was no reason for not mentioning the name of accused No. 3 in the F.I.R. Ms. Shilpa Shah learned Advocate has submitted that as far as demand is concerned, the evidence of P.W. 3-Laxmansinh Parbatsinh Solanki Exh. 38 who took the complaint had after verifying from one of the accused speaks about the involvement of accused No. 3. Hence, on the touch-stone of the decisions of this Court and the Apex Court and the decision cited by the learned Advocates, the case against accused No. 3 is found to be false. 14. This takes this Court to the aspects of demand and recovery. It is nobody's case that money was recovered from accused No. 3. Hence, accused No. 3 is required to be acquitted. 14. This takes this Court to the aspects of demand and recovery. It is nobody's case that money was recovered from accused No. 3. Hence, accused No. 3 is required to be acquitted. I am pained to note that the learned trial Judge has fallen in error in convicting the persons when provisions of Sec. 13 read with Sec. 7 were not fulfilled, despite that, in his over zeal, conviction is recorded by the learned trial Judge, and therefore, the same is required to be interfered with. 15. It would be relevant for this Court to summarize, in nut-shell, the evidence of the witnesses. P.W. 2-Kailasahchandra Jivatram Sadhwani Exh. 32 was a panch. He was silent as far as demand made by accused No. 3, and he had entered the octroi office with the complainant. Shrimali accused No. 1 was seated there. He had categorically mentioned that they did not give keys unless the chalan is paid for the octroi duty. Why the money was given to a boy sitting on the tool, is totally unknown. Accused No. 1 had never asked them to give money to the boy. 16. This takes this Court to the evidence of P.W. 4-Hareshkumar Prafulchandra Agrawat Exh. 50, who is the police official. He has taken the statement of complainant. P.W. 5-Trikambhai Gagjibhai Zalawadia Exh. 53 Octroi Superintendent, in Para 3 of his cross-examination, has stated that as per rule of the Municipal Corporation, the Municipal Commissioner issues notification for levy of octroi on the vehicles, which is to be decided as per rules. It is true that there are rules whether octroi duty is leviable or not on the vehicle of a person residing outside the octroi limit. This takes this Court to the clinching evidence of P.W. 6-Harshadbhai Vasantbhai Exh. 55, and therefore, after all these discussion, it would be relevant to see the complaint and oral testimony. As discussed above, the complaint is totally silent about accused No. 3 and the complainant wanted his Kinetic Pride back. The complainant is a known person who evade duty of tax on one pretext or other. He even accepts this in his evidence, and therefore, when accused Nos. As discussed above, the complaint is totally silent about accused No. 3 and the complainant wanted his Kinetic Pride back. The complainant is a known person who evade duty of tax on one pretext or other. He even accepts this in his evidence, and therefore, when accused Nos. 1 and 3 were not there, it is additional version in the oral testimony which cannot be accepted, and therefore, this case has to result in acquittal of both the accused on the touch-stone which I have discussed hereinabove and the evidence. 17. This takes this Court to the conviction of accused No. 1. So far as circumstantial chain is concerned, it is seen that due to time-lag though the learned trial Judge has held that the accused No. 1 was found on duty from the record produced on record, the person who carried the scooter is not examined, namely Kiritbhai, is the submission of Mr. Anandjiwala to bring home his case to get the acquittal for accused No. 1. Here, it would also be relevant to refer to a recent decision of the Apex Court in Satvir Sing vs. State of Delhi Through C.B.I., AIR 2014 SC 3798 . In that case, the trial Court found that the prosecution failed to prove demand and acceptance on the part of the original-accused, and thereby, acquitted the accused of the charges of corruption levelled against him. However, on an appeal, the Delhi High Court reversed the judgment and order of the trial Court and convicted the accused for the charges under Prevention of Corruption Act. Being aggrieved with the same, the original-accused moved the Apex Court and Apex Court set aside the order of the High Court. In that view of the matter, both these appeals deserve to be allowed. In the result, both these appeals are allowed. The impugned judgment and order of conviction and sentence dated 27-2-2004 passed by the learned Special Judge (A.C.B.), Court No. 2, Ahmedabad in Special Case No. 5 of 1998 is quashed and set aside. The appellants of both these appeals are acquitted of all the charges levelled against them. Bail and bail-bonds, stands cancelled. Amount of fine paid, if any, be refunded to the appellants. R. & P. to be sent back to the trial Court.