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2015 DIGILAW 536 (GUJ)

Lilaben v. State of Gujarat

2015-05-04

K.J.THAKER

body2015
JUDGMENT Kaushal Jayendra Thaker, J. 1. The present appeal has been filed by the appellant-accused under Section 374 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code" for short) against the judgment and order of conviction dated 7-1-2004 passed by learned Additional Special Judge and Second Fast Track Judge, Amreli in Special Case No. 46 of 1995, whereby the appellant-accused was convicted of the charge for offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act" for short) and sentenced to undergo simple imprisonment for one year with fine of Rs. 5,000/- and in default, to further undergo simple imprisonment of three months and also the appellant-accused was also convicted for offence under Section 13(2) of the Act and sentenced to undergo simple imprisonment for three months with fine of Rs. 15,000/- and in default, to further undergo simple imprisonment for six months. The sentences were ordered to run concurrently. The brief facts of the prosecution case are that while the appellant-accused was working as Gynaecologist with Amreli Civil Hospital, being employed by the Department of Health and Medical Education, one Madhuben wife of Manubhai Hiraiya residing at Village Varruli, Taluka and District Amreli had conceived and developed foetus of about 4 1/2 months and on sonography test, it was revealed that the said foetus conceived by Madhuben was a female child and as she had already four daughters and as she was not inclined to give birth to another female child, she along with her husband had gone to Amreli Civil Hospital on 6-1-1995 for the purpose of abortion. That she had got her case registered which was numbered as Case No. 728 and it was the case of the prosecution that she was examined by the present appellant-accused and said Madhuben stated the aforesaid facts and disclosed her with for abortion. It is the case of the prosecution that the appellant-accused, after examining said Madhuben, told her to give Rs. 500/- towards fees first in time and also informed that the expenses for the medicines shall be additional expenses. It is the case of the prosecution that said Madhuben had told the appellant-accused that in the Government Hospital, the fees is not to be paid and moreover, she did not have Rs. 500/-, and therefore, according to the prosecution, the appellant had insisted on payment of Rs. It is the case of the prosecution that said Madhuben had told the appellant-accused that in the Government Hospital, the fees is not to be paid and moreover, she did not have Rs. 500/-, and therefore, according to the prosecution, the appellant had insisted on payment of Rs. 500/- and also informed that the expenses of medicines shall be extra and as such, five months pregnancy is likely to get over soon and there was also the danger in the operation, and therefore, said Madhuben should arrange for the funds immediately and after which the appellant would give her the treatment, but no treatment would be given without money. It is the case of the prosecution that the appellant was having her duties on Wednesdays and Friday of every week and said Madhuben was informed to come on either of these two days. It is the further case of the prosecution that after consulting the appellant, said Madhuben came out from the hospital and informed her husband of the talk that she had with the appellant. It is in view of these facts, as alleged by the prosecution that said Madhuben and her husband who were not inclined to make the payment of Rs. 500/- and moreover, they did not have that amount to make the payment, both of them went to the office of Anti Corruption Bureau at Amreli and disclosed the complaint on 12-1-1995 before the Police Inspector Shri R.G. Patil. Thereafter, Shri Paul of ACB arranged for two panchas. The complainant and members of raiding parties were introduced to the panch witnesses. After the following necessary procedure, the aforesaid aspect was verified and a trap was arranged, wherein the accused-appellant herein was caught red-handed. 2. After completion of the investigation, the charge-sheet was filed before the learned Additional Special Judge and Second Fast Track Court Judge, Amreli, which was, thereafter, numbered as Special Case No. 46 of 1995. 3. At the time of trial, in order to bring home the charges levelled against the original accused, the prosecution examined 4 witnesses as well as the prosecution also produced 9 documentary evidences. 4. 3. At the time of trial, in order to bring home the charges levelled against the original accused, the prosecution examined 4 witnesses as well as the prosecution also produced 9 documentary evidences. 4. At the end of the Trial and after recording the statement of the accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned Additional Special Judge and Second Fast Track Court Judge, Amreli convicted the accused of the charges for the aforesaid alleges offences. On completion of the trial, the Sessions Court passed the judgment and order convicting the accused for the above alleged offences. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellant-accused has preferred the present Criminal Appeal. 6. Learned advocate for the appellant-accused submitted that the appellant-accused had not demanded any illegal gratification from the complainant. He further submitted that the appellant had also not accepted any money either from the complainant or from her husband on 13-1-1995. He further submitted that the learned Trial Judge did not take into consideration that the prosecution had failed in proving its case against the appellant beyond reasonable doubt. He further submitted that the complainant did not support the case of the prosecution and even after searching cross-examination, nothing fruitful emerged from her evidence to establish any guilt of the appellant that the appellant either demanded or accepted any illegal gratification. He further submitted that the learned Trial Judge failed to take into consideration the fact that the husband of the complainant, who was examined as PW.3, from his evidence also, the prosecution had failed to establish that either any demand was made on 6-1-1995 or on 13-1-1995 either from the complainant or from him. He further submitted that the learned Trial Judge has failed to take into consideration the evidence of PW.2 said Shobhanaben, who in clear terms deposed before the Court that the appellant had never demanded any money either from the complainant Madhuben or her husband on 13-1-1995. He further submitted that the learned Trial Judge has failed to take into consideration the evidence of PW.2 said Shobhanaben, who in clear terms deposed before the Court that the appellant had never demanded any money either from the complainant Madhuben or her husband on 13-1-1995. He further submitted that the learned Trial Judge also failed to take into consideration the fact that other members of the raiding party and several other persons were present on the first floor, where the operation theatre is situated and it is the say of the panch witness being a Government Officer, that when the appellant had come out from the operation theatre, she had inquired about her own purse from several persons present and some unknown person had handed over the purse to the appellant, who was working as a Doctor in the said hospital. He further submitted that the learned Trial Judge failed to take into consideration this glaring fact that the purse of the appellant had fallen in the hands of some unscrupulous persons who had planted the currency notes which was sprinkled with anthracene powder, which is referred to in Para-I panchnama allegedly recovered during the search of the appellant. He further submitted that the learned Trial Judge has also failed to take into consideration the fact that as per the case of the prosecution itself, while taking into consideration the evidence of PW:4 that the complaint which is exhibited, that the appellant had demanded from the complainant Rs. 500/- to be paid before any treatment was given to the complainant, whereas from the evidence on record of the prosecution during the course of deposition and by sequence of events referred in Para-II panchnama which is an exhibited document, it is established that the complainant was not asked to pay any money while she had been treated by the appellant. He further submitted that onus to prove that the appellant was guilty of either demand, acceptance or recovery and in the present case, none of the ingredients can be said to have been proved, as according to the case of the prosecution, led before the Court, the purse of the appellant was misused and only on making inquiry, the purse had been handed over to her and therefore, it was required to be legally presumed that the amount in the purse of the appellant was planted without her knowledge and therefore also, on the strength of recovery of money, it could not have been said that the offence against the appellant has been proved. He further submitted that the Investigating Officer, during the course of his investigation, did not record the statement of any of the medical or para-medical staff of the hospital nor he had recorded the statement of any of the members of the general public present in the hospital on 13-1-1995 and this act of omission was required to be viewed with suspicion about the conduct of the Investigating Officer from the time of inception of the complaint till the conclusion of the investigation. Further, he submitted that the most of the witnesses were turned hostile and the panchas have also not supported the case of the prosecution. Therefore, the story of the prosecution is doubtful. He further submitted that Rs. 500/- is not recovered from the custody of the accused. He further submitted that the learned Trial Court has failed to appreciate the fact that the important element i.e. demand, acceptance and recovery should be required to be established by the prosecution and the prosecution has totally failed to prove this factor. Therefore, the complaint itself is bogus. He further submitted that the learned Trial Judge has committed grave error of law in convicting the present appellant-accused for the alleged offences. He further submitted that the present appeal is required to be allowed and the impugned judgment and order passed by the learned Trial Court is required to be quashed and set aside. 7. As against that, learned APP for the State supported the judgment and order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution. Hence, no interference is called for with the same at the hands of this Court. 7. As against that, learned APP for the State supported the judgment and order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution. Hence, no interference is called for with the same at the hands of this Court. She prays the Hon'ble Court to dismiss the present appeal. Therefore, the impugned judgment and order passed by the learned Trial Court is required to be confirmed. 8. I have heard the learned advocate for the appellant-accused and learned APP for the State-respondent and perused the material on record. 9. This takes the Court to the punishment inflicted on the accused convicting her of the charge for the offence under Sections 7, 13(1)(d) and 13(2) of the Act. It is necessary to reproduce Sections 7, 13(1)(d) and 13(2) of the Act, which read as under: "7. Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. (Explanations) (a) Expecting to be a public servant. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) Gratification. The word gratification is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) Legal remuneration. (b) Gratification. The word gratification is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) Legal remuneration. The words legal remuneration are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organization, which he serves, to accept. (d) A motive or reward for doing. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section." "Section 13: Criminal misconduct by a public servant--(1) a public servant is said to commit the offence of criminal misconduct,-- (a), (b) & (c)........ (d) if he-- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any persons any valuable thing or pecuniary advantage without any public interest. Or (e)....... (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine." 10. Considering the above provisions of the Act and going through the evidence on record and the impugned judgment and order, there is corroborative evidence of all four witnesses that there was no recovery from the accused and there was no demand by the accused which has been clearly accepted by the Investigating Officer himself. It emerges from the record that husband of the complainant PW.3 Manulal Shanitlal has turned hostile and stated that the accused had demanded and conveyed the complainant that before operation, blood is required therefore, fees of Rs. 500/- would be required for arranging blood. It emerges from the record that husband of the complainant PW.3 Manulal Shanitlal has turned hostile and stated that the accused had demanded and conveyed the complainant that before operation, blood is required therefore, fees of Rs. 500/- would be required for arranging blood. Therefore, it cannot be said that the doctor could have indulged in bribery within the purview of Section 13 of the Act for which she has been charged. As per the deposition of the husband of the complainant, it cannot be said that the demand was made by the accused-appellant. Therefore, the story of the prosecution is doubtful. He further submitted that Rs. 500/- is not recovered from the custody of the accused. The Investigating Officer has admitted that there was no marks of anthracene powder was found. It appears that after or before performing the surgery, the doctor had not accepted the money. It appears that while opening the purse, she had touched the money and bukkal would have got the anthracene marks, which also creates a doubt in the mind of this Court as to who had planted the money. This is a case of planted the money only with a view to see that the trap is successful where the police officer have wanted to rope the innocent doctor-appellant. It emerges from the record that when the appellant had come out from the operation theatre, she had inquired about her own purse from several persons present and some unknown persons had handed over the purse to the appellant and glaring fact that the purse of the appellant had fallen in the hands of some unscrupulous persons who had planted the currency notes which was sprinkled with anthracene powder. Panchas do not say that the accused had demanded Rs. 500/- i.e. bribe from the complainant. Some of the witnesses have turned hostile and the panchas have also not supported the case of the prosecution. The purse of the appellant was missing and only on making inquiry, the purse had been handed over to her and therefore, it was required to be legally presumed that the amount in the purse of the appellant was planted without her knowledge, and therefore also, on the strength of recovery of money, it would not have been said that the offence against the appellant has been proved. The husband of the complainant has further stated that there was no demand by the accused. PW.2 Shobhanaben in clear terms deposed before the Court that the appellant had never demanded any money either from the complainant Madhuben or her husband on 13-1-1995. This takes this Court to the main aspect whether the accused had not demanded and accepted the money and the said amount was not recovered from his possession. No panchas have seen the accused making any demand. Once it is established that no details of how and when the demand was made, the benefit should go to the accused. In this case, the accused has not demanded any bribe amount. This factual aspect is brushed aside by the learned Trial Judge. Therefore, in the present case, the prosecution has failed to prove its case beyond reasonable doubt against the appellant-accused. In view of the ratio laid down in the aforesaid decisions/judgments cited by the learned advocate for the accused-appellant, this appeal deserves to be allowed and the impugned judgment and order passed by the learned Trial Court is required to be quashed and set aside. From the evidence on record, it cannot be said that there was recovery from the person of the accused. The demand of illegal gratification by the accused has not been proved and some currency notes were handed over to the accused to make it as acceptance of gratification. In this case, it is not in dispute that the muddamal currency notes were not found from the possession of accused. There was no demand, acceptance and recovery of the amount from accused. As far as Section 7 of the Act is concerned, the possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7 of the Act. So far as the offence under Section 13(1)(d) of the Act is concerned, in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established and the possession and recovery of currency notes from the accused without proof of demand will not bring home the offence under Section 3(1)(d) of the Act. It is not proved that accused had made any demand. It is not proved that accused had made any demand. In the present case also, recovery of illegal gratification was not proved from the possession of the accused and therefore, presumption under Section 20 cannot be drawn against the accused. I am supported in my view by the decision of the Apex Court in the case of Satvir Singh v. State of Delhi thru. CBI, reported in AIR 2014 SC 3798 , wherein it is observed as under: "33. The learned senior counsel for the appellant has also placed reliance upon the case of Banarsi Das ( AIR 2010 SC 1589 ) referred to supra wherein it was held that: 24. In M.K. Harshan v. State of Kerala ( AIR 1995 SC 2178 ) this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: 8. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. The above-said paragraph from the above mentioned case would go to show that the divergent findings recorded by the High Court on the factum of demand and acceptance of illegal gratification by the appellant is not proved in this case. In the said case this Court in unequivocal terms has held that mere demand by itself is not sufficient to establish the offence under the Act. The other aspect, namely acceptance is also very important. There must be clinching evidence with the tacit approval of the accused that money was put by PW-2 on the steel cot as stated by him in his evidence as illegal gratification. The other aspect, namely acceptance is also very important. There must be clinching evidence with the tacit approval of the accused that money was put by PW-2 on the steel cot as stated by him in his evidence as illegal gratification. In the case in hand, as per the evidence of PW-2 and PW-3, the illegal gratification was in a black rexine bag with a broken zip which was put on a steel cot. As the contents of the bag were not within the knowledge of the accused, therefore, the relevant aspect of the case that the appellant has accepted the illegal gratification as required under Section 7 of the Act is not proved by the prosecution by adducing cogent evidence in this regard. 34. We have examined the evidences on record as a whole, the said evidence is read along with documentary evidence of Exh.PW-1/DA, the contents of which are extracted above. The said document is written by PW-2 in the year 1989, therefore, reliance should be placed on the said evidence. The explanation which is sought to be elicited from the appellant by the prosecution to discard the said positive evidence in favour of the appellant would further support his plea that he has not demanded gratification from the complainant, PW-2. We are not at all impressed with the plea of the prosecution that the said letter was written by PW-2 under pressure as stated by him in his cross-examination in the year 1993. If it is true that the letter was written by PW-2 under pressure, then he should have lodged the complaint in this regard with the jurisdictional police or to the higher officers at that relevant point of time or to the Trial Court when the case was pending. Therefore, the said portion of the evidence of PW-2 cannot be accepted by us as the same is untrustworthy. The black rexine bag containing the illegal gratification which was kept on the steel cot at the residence of the accused on 8-7-1989 was not recovered from the person of the accused. Therefore, neither acceptance nor recovery of illegal gratification from the appellant is proved. Further, the reliance placed upon the relevant paragraphs extracted above from the judgments of this Court by the learned senior counsel on behalf of the appellant applies aptly to the factual situation. Therefore, neither acceptance nor recovery of illegal gratification from the appellant is proved. Further, the reliance placed upon the relevant paragraphs extracted above from the judgments of this Court by the learned senior counsel on behalf of the appellant applies aptly to the factual situation. Therefore, the demand, acceptance and recovery of the illegal gratification alleged to have been paid to the appellant is not proved by the prosecution. Thus, the Trial Court on overall appreciation of the oral and documentary evidence on record has come to the right conclusion and recorded its findings of fact and held that the demand, acceptance and recovery of gratification from the appellant is not proved, therefore there is no presumption under Section 20 of the Act. The learned trial Judge in his judgment has rightly held that presumption of innocence is in favour of the appellant and he was acquitted on merits." 11. In the above view of discussion, I am of the considered opinion that the Trial Court was not justified in convicting the accused-appellant of the charges levelled against him. I find that the findings recorded by the Trial Court are not just and proper and in recording the said findings, illegality or infirmity has been committed by it. The Court below has committed a serious error in law as well as on facts in convicting the accused for the alleged offences. Therefore, the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside. The Criminal Appeal is allowed. The judgment and order dated 7-1-2004 passed by learned Additional Special Judge and 2nd Fast Track Judge, Amreli in Special Case No. 46 of 1995 is quashed and set aside. The accused-appellant is acquitted of the charges under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 levelled against her. The appellant-original accused is ordered to be set at liberty forthwith if she is not required in any other case. The bail and bail bond stands cancelled. Surety, if any, shall stand discharged. Fine, if any, paid by the appellant-accused shall be refunded to her by the respondent-State. Record and Proceedings be sent back to the Trial Court concerned forthwith. Appeal Allowed