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2015 DIGILAW 531 (GUJ)

State of Gujarat v. Dhirubha Madhavsinh Bhati

2015-05-01

Z.K.SAIYED

body2015
JUDGMENT : Z.K. Saiyed, J. The present acquittal Appeal has been filed by the appellant - original complainant, State of Gujarat under Section 378 of the Cr. P.C., against the Judgment and order dated 12.7.2005 rendered by the learned Special Judge (Prevention of Corruption) Fast Track Court No. 4, Jamnagar, in Special Case No. 9 of 1993. The said case was registered against the present respondents original accused for the offence under Sections 7, 12 and 13(1)(2) of the Prevention of Corruption Act. 2. According to the prosecution case, Investigating Officer G.J.Yadav, Police Inspector, ACB, Rajkot received secret information about the offence. Upon receiving the information running trap was arranged. The running trap was arranged on 30.9.1992 with the help of a decoy. It is the case of the prosecution that near Vijay Parota-House four trucks came. They were the trucks of Sardarji. Sukchainsingh was engaged as punter. The anthracene powder was smeared with the currency note of Rs.200/-. The P.W. No. 1 set near the punter and he had to watch the transaction and hear the conversation between the punter and the accused persons. The Police Inspector came on motorcycle. The said amount was demanded by the respondent - accused. The amount of Rs.200/- was received by the respondents - accused from the punter and the amount was recovered. The respondent No. 1 was caught red-handed. The respondent No. 2 ran away from the scene of offence. The witness on saying that amount is given, the respondent No. 2 run away. The accused No. 1 was caught at the spot. They tried to set accused No. 1 in the cabin of truck but the said accused escaped from the driver side. Police Constable had run in the thorny bushes but he could catch the accused. The respondents are the public servants. Two panch witnesses were called. From the Hero Honda Motorcycle copy of Town-Book, N.C.Book and badge were recovered. The statement of the witnesses were recorded by the trapping officer and then before the learned Special Judge charge-sheet was filed. 3. On the basis of above allegations, charge was framed, read-over and explained to the accused for the offence punishable under Sections 7, 12 and 13(1)(2) of the Prevention of Corruption Act. The accused pleaded not guilty to the charge and claimed to be tried. 4. 3. On the basis of above allegations, charge was framed, read-over and explained to the accused for the offence punishable under Sections 7, 12 and 13(1)(2) of the Prevention of Corruption Act. The accused pleaded not guilty to the charge and claimed to be tried. 4. Thereafter, after filing closing pursis by the prosecution, further statements of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them. 5. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondents - accused. 6. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 12.7.2005 rendered by the learned Special Judge (Prevention of Corruption) Fast Track Court No. 4, Jamnagar, in Special Case No. 9 of 1993, the appellant - State has preferred the present appeal before this Court. 7. Heard Ms.Hansa Punani, learned APP for the appellant - State. She has read contents of the complaint and the panchnama and contended that from the complaint and oral evidence, prosecution has proved contents of the panchnama. She has contended that in connection of the demand made by the respondents to the complainant, the complainant approached investigating agency and then preliminary panchnama was carried out in presence of panchas and that contention is proved through oral version of the prosecution witnesses. 8. She has contended that the prosecution has examined 17 prosecution witnesses and 25 documentary evidence in order to bring home the charge levelled against the respondents. However, the learned Judge gave benefit of doubt and acquitted the respondents. She has contended that the punter is declared as hostile. She has contended that merely all the witnesses turned hostile it is not the ground for acquittal. She has contended that though the punter is declared hostile the prosecution has successfully established that raid was carried out at Rajkot-Jamnagar Highway and the currency notes were accepted by the accused on which anthracene powder was found. 9. She has also contended that looking to the facts of the case presumption under Section 20 of the P.C. Act is required to be drawn against the present appellants - accused. Section 20 of the P.C. Act reads as under : "20. 9. She has also contended that looking to the facts of the case presumption under Section 20 of the P.C. Act is required to be drawn against the present appellants - accused. Section 20 of the P.C. Act reads as under : "20. Presumption where public servant accepts gratification other than legal remuneration - (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in subsection (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn." 10. She has read judgment and order passed by the Apex Court in Criminal Appeal Nos. 97 and 98 of 2012 and contended that the Apex Court has also held that as per Section 20 of the Prevention of Corruption Act, presumption is required to be drawn in such type of cases. 11. She has read judgment and order passed by the Apex Court in Criminal Appeal Nos. 97 and 98 of 2012 and contended that the Apex Court has also held that as per Section 20 of the Prevention of Corruption Act, presumption is required to be drawn in such type of cases. 11. She has contended that Trapping Officer has given evidence which supports the prosecution case. She has contended that when the accused was caught red handed he tried to run away from the spot. She has contended that the learned Judge ought to have appreciated that the sanction was granted to initiate the proceedings against the accused persons. She has contended that the learned Judge has not relied upon and not considered various reported judgments produced in order to bring home charge against the respondents. Lastly, she has read the observations of the learned Judge and contended that observation of the learned Judge is not proper in eye of law and therefore, judgment and order of the learned Judge is required to be set aside. 12. Notice is served to the other side. Mr. Karan Vyas, learned advocate is appearing with Mr. K.B. Anandjiwala, learned Senior Counsel, for the respondents. 13. Heard Mr. Karan Vyas, learned advocate for the respondents - accused. He has contended that in case of corruption demand, acceptance, recovery and presumption must have to be proved through oral as well as documentary evidence beyond reasonable doubt. He has drawn attention of the Court to the provisions of Sections 7 and 13 of the P.C. Act and contended that in corruption case it is the duty of the prosecution to prove demand beyond reasonable doubt. He has read evidence of all the witnesses and contended that from the evidence of the panchs, who are independent witness, they have not disclosed any cogent evidence in support of the prosecution case. He has further submitted that star witness of the prosecution - truck driver has disclosed that when he gave money to the police personnel, he gave slap and money fallen down on the floor. He has contended that punter was declared hostile. He has drawn attention of the Court to the medical certificate issued by the doctor who had examined accused and injury was found on the foot of the accused. It is not the case of the prosecution that accused was not wearing shoes. He has contended that punter was declared hostile. He has drawn attention of the Court to the medical certificate issued by the doctor who had examined accused and injury was found on the foot of the accused. It is not the case of the prosecution that accused was not wearing shoes. He has read contents of the panchnama and contended that sufficient contradictory version is proved beyond reasonable doubt. Lastly he has contended that no interference is required in the judgment and order passed by the learned Judge. 14. Heard learned advocates for both the parties. I have gone through the impugned judgment and order passed by the learned trial 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 accused. I have also considered the submissions advanced by the learned advocates for the respective parties. 15. 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. 16. I have minutely perused evidence of the complainant and from the evidence of the complainant it is not proved that present respondent has made any demand. It is true that in case of corruption demand is required to be proved beyond reasonable doubt. Simple recovery of the muddamal trap amount or any other article is not sufficient to convict the accused for the offence punishable under the provisions of Corruption Act. The evidence of the complainant does not get corroboration from the evidence of panch witness. On the contrary, they contradict each other. The punter has disclosed in examination-in-chief that when the signal was given by the constable - accused he got down from the cabin of the truck, at that time, no demand was made by the respondent accused but when the punter tried to offer money to the accused he gave slap and money had fallen down on the floor. The Investigating Officer has tried to establish that one of the member of the raiding party has tried to catch the respondent accused but he received some injury in the foot and, therefore, he could not succeed. The Investigating Officer has tried to establish that one of the member of the raiding party has tried to catch the respondent accused but he received some injury in the foot and, therefore, he could not succeed. I have minutely perused evidence of injured witness and evidence of injury of the accused but from the evidence of this witness, who is declared hostile, the prosecution could not prove its case beyond reasonable doubt. 17. In the present case, prosecution has failed to prove that respondents - accused demanded any amount from the complainant. Even recovery from the physical possession of the respondents - accused creates some doubt. 18. In the latest decision of the Supreme Court in the case of Banarsi Das v. 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 offence of bribery is concerned, the demand and acceptance of money is required to be proved beyond reasonable doubt and mere recovery of bribe money from accused is not sufficient to prove the offence and to hold the person guilty. Presumption cannot be raised when demand is not proved in this case. Therefore, in absence of any evidence regarding the demand, mere alleged recovery is not sufficient to convict the present respondent accused and hence, this appeal deserves to be dismissed. The ratio laid down in aforesaid decision is squarely applicable to the facts of the present case because in the case on hand, the demand is not proved and the complainant had not stated about the demand made by the accused and, therefore, mere alleged recovery is not sufficient to prove the case against the respondent accused. Even the recovery is also not proved as per law. 19. In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 12.7.2005 rendered by the learned Special Judge (Prevention of Corruption) Fast Track Court No. 4, Jamnagar, in Special Case No. 9 of 1993, acquitting the respondents - accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Appeal dismissed.