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2015 DIGILAW 468 (GUJ)

Ramesh Asharam Pathak v. State of Gujarat

2015-04-22

K.J.THAKER

body2015
JUDGMENT : Kaushal Jayendra Thaker, J. 1. Criminal Appeal No. 645 of 2000 has been preferred by the appellant-original accused No. 1, Criminal Appeal No. 651 of 2000 has been preferred by the appellant-original Accused No. 2 and Criminal Appeal No. 6684 of 2000 has been preferred by the appellant- original accused No. 4, under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 23-6-2000 passed by the learned Addl. Sessions Judge, Vadodara in Special Case No. 14 of 1993, whereby, the learned Judge has convicted the appellant-original accused No. 1 under Sec. 7 of the Prevention of Corruption Act and sentenced to undergo two years R.I. and to pay a fine of Rs. 2,500/-, in default, to undergo further S.I. for three months. The appellant-original accused No. 1 also convicted under Sec. 13(1)(d) of the Prevention of Corruption Act and sentenced to undergo R.I. for two years and to pay a fine of Rs. 2,500/-, in default, to undergo further S.I. for three months. The appellants-original accused No. 2 has been convicted under Sec. 12 of the Prevention of Corruption Act, and sentenced to undergo R.I. for one year and to pay a fine of Rs. 1,000/-, in default, to undergo further S.I. for one month. The appellants-original accused No. 4 has been convicted under Sec. 12 of the Prevention of Corruption Act, and sentenced to undergo S.I. for one year and to pay a fine of Rs. 1,000/-, in default, to undergo further S.I. for one month, which is impugned in these appeals. The brief facts of the prosecution case is as under: "1.1. It is the case of the prosecution that the complainant is a resident of Vadodara and is engaged in the business of transport. In the year 1992, some time in the month of July, a local builder by name Pohumal Sindhi was murdered. The appellant herein-accused No. 1, at that point of time was posted as P.S.I, at Karelibaug Police Station and the appellant was investigating into the incident of murder of Pohumal. It is the case of the complainant that after about 7 days from the date of the murder of Pohumal, the complainant was called at the police station by the appellant-accused No. 1 and was informed that during the course of investigation, the complainant's name is being disclosed. It is the case of the complainant that after about 7 days from the date of the murder of Pohumal, the complainant was called at the police station by the appellant-accused No. 1 and was informed that during the course of investigation, the complainant's name is being disclosed. Complainant inquired with the appellant-accused No. 1 who was investigating the incident of murder as to how his name has figured in the said investigation to which the reply of the appellant-accused No. 1 was that Pohumal has been murdered in connection with one land transaction. The appellant-accused No. 1 is said to have told the complainant that Pohumal was murdered in connection with the land which Pohumal had bought and investigation reveals that the complainant and original accused No. 4 are involved in the same. Complainant was also appraised of the fact that statement of original accused No. 4 has been recorded by the appellant. The appellant-accused No. 1 is also said to have threatened the complainant that if the appellant-accused No. 1 wants then the appellant-accused No. 1 can involve the complainant in the offence of the murder of Pohumal. Complainant is said to have told the appellant-accused No. 1 that he is innocent and he knows nothing about the murder of Pohumal. Appellant-accused No. 1 in turn is said to have told the complainant that if the complainant wants to save himself from getting involved in the incident of murder of Pohumal then the complainant must contact Rajeshbhai Ramanbhai Chauhan i.e. accused No. 4. On the next day, the complainant visited the shop of accused No. 4 and is said to have talked about the meeting with the appellant-accused No. 1. Accused No. 4 is said to have told the complainant that the appellant has recorded his statement in connection with Pohumal's murder case, and though appellant-accused No. 1 owes Rs. 1,300/- to accused No. 4 towards stitching of some clothes, accused No. 4 is not going to demand the same from the appellant-accused No. 1 and if the complainant wants to save himself from getting involved in Pohumal's case then the complainant will have to pay Rs. 5,000/- to the appellant-accused No. 1. Complainant is said to have told accused No. 4 that he is not willing to pay any amount to the appellant as the complainant is innocent. 5,000/- to the appellant-accused No. 1. Complainant is said to have told accused No. 4 that he is not willing to pay any amount to the appellant as the complainant is innocent. After about one week, appellant-accused No. 1 is said to have sent a policeman at the place of the complainant, but as the complainant was very busy in his business, complainant could not go and meet the appellant-accused No. 1. About four days prior to the date of lodging of the complaint, accused No. 4 is said to have called up the complainant, but the complainant was not at home and no sooner complainant learnt about the telephone of accused No. 4, complainant contacted accused No. 4. Accused No. 4 is said to have inquired with the complainant as to why the complainant has not yet sent the money to the appellant-accused No. 1 and why complainant has not met the appellant-accused No. 1 despite receiving many messages from the appellant-accused No. 1. Complainant thereafter is said to have told accused No. 4 that Rs. 5000/- was too big an amount and requested accused No. 4 to request the appellant-accused No. 1 to reduce the amount. Accused No. 4 is said to have told the complainant that he would inquire with the appellant-accused No. 1 about the exact amount and would later on inform the complainant. On 27-8-1992, sometime in the afternoon when the complainant reached his home he learnt through his nephew by name Makbool that the appellant-accused No. 1 had called up complainant from the shop of accused No. 4 and also informed the complainant that the message was that no sooner complainant comes home the complainant be sent to the shop of accused No. 4. Complainant in turn got in touch with accused No. 4 and inquired as to what has been ultimately settled with the appellant-accused No. 1. Accused No. 4 told the complainant that the appellant-accused No. 1 should come down at his shop immediately with Rs. 2,500/-. Accused No. 4 appraised the complainant that he has settled the matter with the appellant-accused No. 1 and at that point of time, complainant is said to have told accused No. 4 that he has not been able to arrange for the money. Accused No. 4 in turn said to have told the complainant to come next day in the afternoon i.e. on 28-8-1992. Accused No. 4 in turn said to have told the complainant to come next day in the afternoon i.e. on 28-8-1992. On that day, in the afternoon accused No. 4 talked with the appellant-accused No. 1 on telephone informing the appellant-accused No. 1 that the complainant is present in his shop and says that by evening the complainant will be able to arrange for the money. Thereafter, accused No. 4 told the complainant that the appellant-accused No. 1 will come at about 8-00 O'clock in the evening at his shop and that the complainant should remain present with Rs. 2,500/-. 1.2. As the complainant was not desirous and inclined to pay the amount of Rs. 2,500/- to the appellant, he went straight to the office of A.C.B., Vadodara unit. At that point of time, one Gulabkhan Jagatiyarkhan Sindhi P.I., was in charge of the A.C.B. Unit at Vadodara. The complainant narrated the entire story before P.I. Gulabkhan Sindhi, who in turn recorded the complaint and arranged for the trap. P.I. Sindhi called the complainant and other members of the staff at Vadodara Circuit House, Room No. 8 at about 5-00 O'clock for chalking out further plan of carrying out the raid. Two panchas were called for. Two more P.Is. namely Saiyed and Baria were also there to help P.I. Sindhi in successfully carrying out the raid. The necessary formalities to carry out the raid were completed. The complainant with the raiding party left me Circuit House at about 7-30 in the evening. As per the arrangement everybody took their own position near the vicinity where the shop of accused No. 4 is situated. The complainant in company of the two panchas went inside the shop of accused No. 4. No sooner they enter the shop, accused No. 4 is said to have told the complainant that he is calling the appellant-accused No. 1. In the meantime, the complainant and two panchas and other employees working in the shop of accused No. 4 watched the programme of Chitrahar on T.V. At about 8-45 appellant-accused No. 1 came up at the shop and along with appellant-accused two policemen were there in civil dress i.e. accused No. 2 and 3. No sooner appellant-accused No. 1 arrived, the complainant and accused No. 4 were called inside the room i.e. the other portion of the shop which is partition. No sooner appellant-accused No. 1 arrived, the complainant and accused No. 4 were called inside the room i.e. the other portion of the shop which is partition. Appellant-accused No. 1 is said to have told the complainant that there is some pressure from the top level, and therefore, the complainant should give his statement. Complainant agreed to give his statement. Appellant-accused No. 1 told the complainant that the writer is on his way and also inquired with the complainant as to whether he has brought the amount or not. The complainant told the appellant-accused No. 1 that he had brought the amount to which the appellant-accused No. 1 is said to have told the complainant that after recording of the statement the amount be handed over to the writer. The writer is accused No. 2 in the present case. Complainant and writer i.e. accused No. 2 set inside and a short statement of complainant was taken down. The other persons were sitting in the other room of the shop. As per the case of the complainant he handed over the amount of Rs. 2,500/- to the writer i.e. accused No. 2 in presence of the two panchas. No sooner the amount was accepted, the complainant gave signal to the raiding party and the raiding party rushed at the scene i.e. where the appellant-accused No. 1, accused No. 2, accused No. 3 and accused No. 4 were standing and all were apprehended. Thereafter, 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 No. 1, 2 and 3 was obtained. 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. 14 of 1993." 2. The accused were charged vide at Exh. 4. 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. Satarbhai Adambhai Ghaniwala Exh. 11 2. Girishbhai Mansukhbhai Rana Exh. 14 3. Gulabkhan Gajtyarkhan Sindhi Exh. 20 4. Anupkumar Y.M. Sing Exh. 40 5. Virambhai Visabhai Rabari Exh. 41 6. 3. In order to bring home the charge levelled against the appellants-accused, the prosecution has examined the following witnesses: "1. Satarbhai Adambhai Ghaniwala Exh. 11 2. Girishbhai Mansukhbhai Rana Exh. 14 3. Gulabkhan Gajtyarkhan Sindhi Exh. 20 4. Anupkumar Y.M. Sing Exh. 40 5. Virambhai Visabhai Rabari Exh. 41 6. Ashokkumar Madan Mohanlal Tandan Exh. 42" 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. 12 2. Panchnama of search of residence of accused No. 1 Exh. 16 3. Copy of receipt of muddamal Exh. 17 4. Bill of Circuit House, Vadodara Exh. 21 and 22 5. Letter Exh. 23 6. Letter Exh. 24 7. Address of trap Exh. 18 8. Letter for calling the panchas Exh. 25 9. Receipt regarding papers of murder case seized from accused No. 1 Exh. 26 10. Sanction to prosecute accused No. 1 Exh. 29 11. Sanction to prosecute accused No. 2 Exh. 30 12. Sanction to prosecute accused No. 3 Exh. 31 13. Notification Exh. 33 14. Order to investigate the offence of A.C.B. Exh. 34 15. Transfer order Exh. 35" 5. Thereafter, after examining the witnesses, further statement of the appellants-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 23-6-2000 held the appellants-accused Nos. 1, 2 and 4 guilty to the charge levelled against them under Secs.7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 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. V.K. Ananadjiwala learned Advocate for appellant-accused No. 1 in Criminal Appeal No. 645 of 2000, Mr. Chetan K. Pandya learned Advocate for the appellant-accused No. 2 in Criminal Appeal No. 651 of 2000 and Mr. P.S. Gondaliya learned Advocate for the appellant-accused No. 4 in Criminal Appeal No. 684 of 2000 and Ms. Bhatt learned A.P.P. for the respondent-State in all these appeals. 9. Mr. Chetan K. Pandya learned Advocate for the appellant-accused No. 2 in Criminal Appeal No. 651 of 2000 and Mr. P.S. Gondaliya learned Advocate for the appellant-accused No. 4 in Criminal Appeal No. 684 of 2000 and Ms. Bhatt learned A.P.P. for the respondent-State in all these appeals. 9. Mr. Anandjiwala learned Senior Advocate appearing for the appellant-accused No. 1 has vehemently submitted that the evidence on record goes to show that the offence under Secs. 7, 13(1)(d) 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. Mr. Chetan K. Pandya learned Advocate appearing for original accused No. 2 and Mr. P.S. Gondaliya learned Advocate appearing for original Accused No. 4 have adopted the arguments of Mr. K.B. Anandjiwala learned Senior Advocate and also relied on the decision of this Court in case of Bhalchandra Laxmishankar Dave v. 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. Bhatt 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. Bhatt 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 dismissed. 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 charges 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 charges levelled against them and they were convicted and sentenced as stated above. The genesis of the matter unveils from a sad incident of death of a person had occurred and the complainant herein was named as an accused in an investigation which was given to accused No. 1 after took over as Police Inspector of the said Police Station. Accused No. 2 was his writer and accused No. 3 who was earlier co-conspirator with the complainant. However, he was named as an accused in the present case. He was a dealing in land business along with the complainant. I would like to first discuss the evidence of complainant and the F.I.R. in unison. The complainant in his complaint categorically said that accused No. 4 conveys that his name has been disclosed in the death of Pohumal and his statement was required to be recorded by the police personnel. It is matter of fact and it is borne out from the statements of the accused recorded under Sec. 313 of Cr.P.C. and the documents that the complainant is a head-strong person and his name has been disclosed as one of the accused in the murder case of Pohumal, and therefore, he has arranged a very well-planned design to trap the accused persons. Mr. Anandjiwala learned Senior Counsel has taken me through the evidence on record and Ms. Bhatt learned A.P.P. has also threadbare read the evidence in totality along with all the aspects. It is the say of the appellants-accused that the telephone call was between Rajesh-accused No. 4 and P.W. 1, but there was no demand by accused No. 1 or accused No. 2. It was only a say that accused No. 1 had called the so-called bootlegger. The conversation goes to show that even in the evidence of P.W. 1, omission is brought on record in his cross-examination. There was absence of demand aspect and it is afterthought in the complaint and the statement. Mr. Anandjiwala has taken this Court through the principle enunciated by the Apex Court way back in the year 1960. The conversation goes to show that even in the evidence of P.W. 1, omission is brought on record in his cross-examination. There was absence of demand aspect and it is afterthought in the complaint and the statement. Mr. Anandjiwala has taken this Court through the principle enunciated by the Apex Court way back in the year 1960. It is the say that it was a dialogue between accused No. 4 and the complainant, and nowhere, it is ever stated that appellant-accused No. 1 demanded a sum of Rs. 5,000/- from the complainant. Had he demanded Rs. 5,000/-, there is no question of accepting Rs. 2,000/- by accused No. 2. The complaint, at page 105, nowhere says that accused No. 1 demanded Rs. 5,000/- and statement is also silent, and therefore, the aspect of demand is not proved as per the submission of Mr. Anandjiwala. Accused No. 1 had concluded the investigation of murder case and it was only at the behest of higher officer and P.I. of A.C.B. Mr. Saiyed, who is not from Vadodara, everything is arranged in Room No. 8 of Circuit House, Vadodara. It was not known that Saiyed came from Valsad and what was the reason to do all the work at the Circuit House when there is full-fledged A.C.B. Office available in Vadodara city. 12. Mr. Anandjiwala learned Senior Counsel took this Court to the aspect of panch being a habitual panch who was brought only to see that the prosecution succeeds and the trap is brought home. In one breath, he said that he could not hear what was going on, then how can he hear the demand of money. He is a doubtful witness. Omissions are there. It is very important aspects that three workers whose statements were recorded never examined. The investigation by Mr. Pathak - accused No. 1 was at the behest of higher officer and the complainant who is a bootlegger and he is not a person of sterling quality. This takes this Court to the submission of Mr. Chetan K. Pandya learned Advocate appearing for accused No. 2. Mr. Pandya has relied on the decision of the Apex Court in the case of Rakesh Kapoor v. State of Himachal Pradesh, reported in 2012 (13) SCC 552. According to him, his client - original Accused No. 2 nowhere made any demand. Chetan K. Pandya learned Advocate appearing for accused No. 2. Mr. Pandya has relied on the decision of the Apex Court in the case of Rakesh Kapoor v. State of Himachal Pradesh, reported in 2012 (13) SCC 552. According to him, his client - original Accused No. 2 nowhere made any demand. If at all there is a say, it is against accused No. 1, more particularly, the writer - accused No. 4 who was accomplished and/or friend of original complainant, but he has been made an accused in this case. There are telephonic calls which discloses the discussion between accused and complainant. Even in testimony, it is clear that Rs. 2,500/- were recovered which was given to him as "kharcha-pani" by recording the statement of complainant. It was never a demand and when he wanted to give back money, the well-designed trap was led. Mr. Gondaliya learned Advocate appearing for accused No. 4 has submitted that the deposition at page 98 would go to show that his client has not abated any illegal activity. Makbul has not been examined who has conveyed that there was a call from accused No. 4. There are contradictory version and there is huge omission. Per contra, learned A.P.P. Ms. Bhatt has submitted that the F.I.R. shows that they were investigating the offence and called the complainant and demand has been made which is clear from the evidence of P.W. 1. According to her, demand was by accused No. 1. He has directed the complainant to pay the money to accused No. 2, and therefore, he was also an accomplice and the principle enunciated by the trial Court are such which are required to be upheld as the ingredients of Secs. 7, 13(1)(d) and 13(2) of the Act are attracted in the facts of this case. 13. This takes this Court to the decisions cited by both the sides. In this case, accused No. 1 will have to be given benefit of doubt in light of the decision of the Division Bench of this Court in the case of State of Gujarat v. Gunvantlal H. Shah, reported in 2006 (1) GLH 567 : [ 2006 (1) GLR 418 ] and me decision of the Apex Court in the case of Banarasi Dass v. State of Haryana, reported in 2010 (3) GLH 196 (SC). Whether in fact, there was any demand purported to be made for a sum of Rs. 5,000/-, then what was the purpose of recovery of Rs. 2,500/-. Therefore, as per the statement of the accused recorded under Sec. 313 of Cr.P.C., the complainant had given the said amount not as an illegal gratification, but for other purpose, requires to be believed and in this factual scenario, accused cannot be held guilty. Here, it would also be relevant to refer to a recent decision of the Apex Court in Satvir Singh v. 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, all these appeals deserve to be allowed. In the result, these appeals are allowed. The impugned judgment and order of conviction and sentence dated 23-6-2000 passed by the learned Addl. Sessions Judge, Vadodara in Special Case No. 14 of 1993 is quashed and set aside. The appellants of all 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.