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2015 DIGILAW 508 (GUJ)

State of Gujarat v. Mehul Vasantray Singala

2015-04-29

K.J.THAKER

body2015
JUDGMENT Kaushal Jayendra Thaker, J. 1. The present appeal has been filed by the appellant - State under Section 378 of the Criminal Procedure Code, against the judgment and order dated 31.08.2004 passed by learned Additional Sessions Judge, Fast Track Court No. 7, Jamnagar in Special Case No. 07 of 1999, whereby the respondent-accused is acquitted of the charge for offence punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. 2. Short facts of the prosecution case are as under: 2.1 The complainant Nanjibhai Govindbhai Songara approached the opponent-accused for verifying record of rights of land which was purchased by relative of the complainant, viz., Narsibhai Govindbhai Nakum. It was pending since last 1 1/2 years. It is also the case of the prosecution that both the accused demanded Rs. 2,000/- as ex-gratia for doing the work. Ultimately, the work was agreed to be done for Rs. 1,750/-. Since the complainant was not willing to give the said amount, he filed a complaint before ACB regarding the demand of bribe by the opponents accused. Thereafter, trap was arranged and in presence of panch No. 1, opponent No. 1 accepted Rs. 1,750/-. Out of this amount, Rs. 1,000/- was to be given to Rs. 1,000/- while opponent No. 1 was to retain Rs. 750/-. In presence of trap witnesses the money was exchanged from the hands of the complainant to the accused. As per the direction, the raid was carried out successfully. Thereafter, panchnama was drawn and offence under Sections 7, 12, 13(1)(D) and Section 13(2) of the Prevention of Corruption Act was registered against the accused. After investigation, charge-sheet was filed. 2.2 The learned Special Judge framed charges against the accused to which the plea of the accused was recorded, wherein he denied his involvement in the offence. To prove the case against the present accused, the prosecution has examined, in all thirteen witnesses and the prosecution also produced several ten documents in support of its case. 2.3 At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Special Judge acquitted the respondents of all the charges leveled against him by judgment and order dated 31.8.2004. 3. I have heard learned APP for the appellant and Mr. N.D. Nanavaty, learned Senior Advocate for the respondents. 3. I have heard learned APP for the appellant and Mr. N.D. Nanavaty, learned Senior Advocate for the respondents. 4. Ms. Monali Bhatt, learned APP for the State submitted that merely because the complainant turned hostile, entire evidence cannot be brushed aside. The complainant has identified his signature on the complaint, therefore, it is clear that complaint was given by him. She submitted that the investigating officer, who has investigated into the matter, has supported the prosecution case and he being a government officer his evidence should have been relied by the learned trial Judge to convict the respondents. She submitted that the entire operation was carried out by investigating officer. It was only after the demand and acceptance was complete that the raiding party overtook the operation. It was stated in the evidence that after finding the full proof evidence against the opponent accused the matter was sent for trial by the Investigation Officer. She also submitted that seizure panchnama shows that anthracene powder was found on the left pocket of trouser of the opponent, accused No. 1, therefore, it cannot be said that no case was made out against the accused persons. She also submitted that the very fact that money was handed over to the accused goes to show that the accused persons were guilty of the offence. She further submitted that in further statement given by the opponent accused he has not given any explanation. Lastly, she submitted that the learned Judge ought to have appreciated that there is no rule of law that even if a witness is otherwise reliable and independent, his association in prearranged raid about which he had become acquainted makes him accomplice or partisan witness. In absence of anything to warrant a contrary conclusion, conviction is not untenable, merely because it is based on the testimony of investigating officer. Every witness of raiding party cannot be dubbed as an accomplice as per se or even as an interested witness in total absence of material justifying such an inference. It is submitted by her that the learned Judge has misread the decision of the Apex Court and has recorded acquittal on facts, which were not germane and the prosecution had, in fact, proved the case to the hilt. 5. Per contra, Mr. N.D. Nanavaty, learned Senior Advocate has taken this Court through entire record. It is submitted by her that the learned Judge has misread the decision of the Apex Court and has recorded acquittal on facts, which were not germane and the prosecution had, in fact, proved the case to the hilt. 5. Per contra, Mr. N.D. Nanavaty, learned Senior Advocate has taken this Court through entire record. He submitted that entire edifice of the prosecution case fall to the ground as the three main ingredients as envisaged under the provisions of the Prevention of Corruption Act were absent. He also submitted that neither the complainant nor panchas have supported the prosecution case and they could not bring home the charge of demand having been made by the accused from the complainant. Mr. Nanavaty has not seriously contested its validity. He also submitted that there are contradictions in the evidence of the witnesses as the first informant states that he did not go to the office of the accused at the time of trap, while panch No. 2 states that the first information, his relative and panch No. 1 had gone to the office. He further submitted that the complainant and the panch have turned hostile in this case, therefore, learned trial Judge has rightly acquitted the accused of the charges levelled against them. He also submitted that even otherwise this is an appeal against the acquittal and in view of catena of decisions of the Apex Court while exercising the powers in appeal against the order of acquittal this Court should not interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality or it is perverse. He, therefore, submitted that this appeal may be dismissed by confirming the order of learned trial Judge. 6. I have considered the arguments advanced on both sides and also gone through the materials on record. It is an undisputed fact that the complainant has turned hostile, while panch No. 1 has died and panch No. 2 has also turned hostile. Therefore, it is clear that they have not supported the case of the prosecution. It is also established that no tainted currency notes were recovered from accused No. 2. As per the prosecution case, there were three material witnesses with regard to demand and acceptance of bribe money i.e. the complainant, his relative and panch No. 1. Therefore, it is clear that they have not supported the case of the prosecution. It is also established that no tainted currency notes were recovered from accused No. 2. As per the prosecution case, there were three material witnesses with regard to demand and acceptance of bribe money i.e. the complainant, his relative and panch No. 1. Out of these three witnesses, the complainant and his relative have not supported the prosecution case, while panch No. 1 has died during the pendency of the case and he could not be examined. Therefore, there is no iota of direct evidence as to demand and acceptance of bribe by accused No. 1 from the complainant. So far as procedural aspect is concerned, much controversy is not raised about the same even before trial Court. Going through the evidence on record, it cannot be said that there was any corroboration to the complaint so as to bring home the charge of corruption against the accused persons. From the evidence on record, it is clear that the first informant was not present during trap and P.W. - 2, who had applied for measurement of his plot has also turned hostile. Panch No. 2 has not supported the case of the prosecution so far as demand or recovery is concerned. As submitted by Mr. Nanavaty, there are contradictions in the evidence of the first informant and panch No. 2. Therefore, at the end of the trial, learned Judge, irrespective of the fact that the complainant turned hostile, has rightly found that the case was not proved to the hilt against the accused. The prosecution case falls to the ground on the cardinal principles that demand, acceptance and recovery are not proved. Therefore, learned trial Judge has rightly acquitted the accused persons of the charges levelled against them. I am also supported in my view by the latest decision of the Apex Court in Rakesh Kapoor v. State of Himachal Pradesh reported in 2012 (13) SCC 552, wherein it is observed as under: "20. Coming to the next argument that there was absolutely no demand for bribe and in the absence of such claim by the accused duly established by the prosecution, the conviction cannot be sustained. Coming to the next argument that there was absolutely no demand for bribe and in the absence of such claim by the accused duly established by the prosecution, the conviction cannot be sustained. In support of the above claim, learned counsel for the appellant relied on the decision of this Court in Banarsi Dass vs. State of Haryana, (2010) 4 SCC 450 . It was an appeal under Article 136 of the Constitution of India filed against the judgment and order of conviction dated 20.11.2002 passed by the learned single Judge of the High Court of Punjab and Haryana at Chandigarh. In that case, it was contended before this Court that there is no evidence to prove demand and voluntary acceptance of the alleged bribe so as to attract the offence under Section 5(2) of the Prevention of Corruption Act, 1947. The other contentions were also raised regarding merits with which we are not concerned. The accused was charged for the offence punishable under Section 5(2) of the 1947 Act as well as Section 161 (since repealed) of the IPC. In para 23, this Court held that:- "to constitute an offence under Section 161 IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused". It was further held that "similarly in terms of Section 5(1)(d) of the Act, the demand and acceptance of the money for doing a favour in discharge of his official duties is sine qua non to the conviction of the accused". 21. In para 25, this Court quoted the decision rendered in C.M. Girish Babu vs. CBI, (2009) 3 SCC 779 and held that:- "mere recovery of money from the accused by itself is not enough in the absence of substantive evidence of demand and acceptance." In the same para, a reference was also made to Suraj Mal vs. State (Delhi Admn.) (1979) 4 SCC 725 wherein this Court took the view that mere recovery of tainted money from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. This Court further held that mere recovery by itself cannot prove the charge of the prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. After underlying the above principles, and noting that 2 prosecution witnesses turned hostile, while giving the benefit of doubt on technical ground to the accused, this Court, set aside the judgment of the High Court and acquitted the accused of both the charges i.e. under Section 161 IPC and under Section 5(2) of the 1947 Act. 22. In the case on hand, though prosecution heavily relied on the evidence of P.W. - 1, the complainant that the demand was made to him over mobile phone, admittedly the call details have not been summoned. No doubt, the statement of P.W. - 1, according to the prosecution is corroborated by Ashwani Bhatia (P.W. - 3) who stated that he overheard P.W. - 1 saying that he had brought the money, when the latter went to the office of the appellant in the evening of 05.05.2003. Interestingly, the I.O. who was examined as P.W. - 18 has mentioned that P.W. - 1 received the demand from the accused over landline and, hence, he could not secure those call details. Whatever may be the reason, the fact remains that except the oral testimony of P.Ws. 1 and 3, there is no other proof in respect of the demand of bribe money and the I.O. could not collect the call details as stated by P.W. - 1 from the department concerned. Accordingly, learned senior counsel for the appellant is right in contending that there is no material/evidence for the demand of bribe. In the light of the categorical enunciation in Banarsi Dass (supra), in the absence of the demand and acceptance, the accused is entitled to the benefit of doubt. In addition to the same, in the case on hand, even the official witness, Shri Madan Singh-who helped in the search of the accused-Municipal Commissioner, was examined as P.W. - 14 but did not support the prosecution case and turned hostile. 23. Another important aspect which is in favour of the appellant accused is that the order, namely, granting licence in favour of P.W. - 1 - the complainant was made ready before the alleged occurrence i.e. on 02.05.2003. 23. Another important aspect which is in favour of the appellant accused is that the order, namely, granting licence in favour of P.W. - 1 - the complainant was made ready before the alleged occurrence i.e. on 02.05.2003. In fact, the original order was available on the table and the same was in the hands of P.W. - 1. Admittedly, he did not hand over the original to the I.O. and his only explanation was that he kept it under his custody to continue his business. As rightly pointed out, when the order itself was ready and available that too in the hands of the complainant, the demand of the accused as claimed by the prosecution is highly improbable. This aspect has also not been properly explained. 24. In the light of the above discussion and in view of the lacunae in the prosecution case, by giving the benefit of doubt to the accused, we hereby set aside the judgment of the High Court and the trial Court and acquit the accused of the remaining offence under Section 13(2) of the P.C. Act. Since the appellant was ordered to be released on bail on 13.02.2012 by this Court, the bail bonds shall stand discharged. The appeal is allowed." 7. It is settled legal position that in an acquittal appeal, the Appellate Court is not required to re-write the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In a recent decision in the case of Satvir Singh v. State of Delhi thru. CBI reported in AIR 2014 SC 3798 , the Honourable Supreme Court has observed as under: "19. An early but exhaustive consideration of the law in this regard is to be found in the decision of Sheo Swarup v. King Emperor wherein it was held that the power of the High Court extends to a review of the entire evidence on the basis of which the order of acquittal had been passed by the trial court and thereafter to reach the necessary conclusion as to whether order of acquittal is required to be maintained or not. In the opinion of the Privy Council no limitation on the exercise of power of the High Court in this regard has been imposed by the Code though certain principles are required to be kept in mind by the High Court while exercising jurisdiction in an appeal against an order of acquittal. The following two passages from the report in Sheo Swarup adequately sum up the situation: "There is, in their opinion, no foundation for the view, apparently supported by the judgments of some courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has 'obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice,' or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result. (emphasis supplied) Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." 20. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." 20. The principles of law laid down by the Privy Council in Sheo Swarup have been consistently followed by this Court in a series of subsequent pronouncements of which reference may be illustratively made to the following: Tulsiram Kanu v. State, Balbir Singh v. State of Punjab, M.G. Agarwal v. State of Maharashtra, Khedu Mohton v. State of Bihar, Sambasivan v. State of Kerala, Bhagwan Singh v. State of M.P. and State of Goa v. Sanjay Thakran." 8. Therefore, on the touchstone of these judgments, the principles enunciated therein go to show that the finding of fact recorded in the impugned judgment cannot be said to be perverse and this view is based on facts and the law of the land. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents-accused and adopting the said reasons as well as the reasons aforesaid, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this appeal sans merit and is required to be dismissed. 9. In the result, this appeal is hereby dismissed. The impugned Judgment and order dated 31.08.2004 passed by learned Additional Sessions Judge, Fast Track Court No.7, Jamnagar in Special Case No. 07 of 1999, acquitting the respondents-accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned forthwith. Bail and bail bonds, if any, stands cancelled. Appeal Dismissed.