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2015 DIGILAW 541 (GUJ)

Fatesinh Bharmal Gohil v. State of Gujarat

2015-05-04

K.J.THAKER

body2015
JUDGMENT : K.J. Thaker, J. This is an appeal by the original accused, challenging the judgment and order of the learned Joint District and Addl. Sessions Judge and Special Judge, Fast Track Court No.3, Bharuch(for short, 'the trial Court'), Dated : 17.04.2003, rendered in Special ACB Case No. 4 of 2002, whereby, the trial Court convicted the accused-appellant for the offence punishable under Section 7 of the Prevention of Corruption Act ('the Act', for short) and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs.500/- and in default to undergo further rigorous imprisonment for six months. Further, the trial Court also convicted the accused-appellant for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act and sentenced him to undergo rigorous imprisonment for five years and to pay fine of Rs.5000/- and in default to undergo further rigorous imprisonment for one year. 2. For the sake of convenience, the parties shall be referred to as they stood before the trial Court, i.e. accused, the complainant etc.. 3. The brief facts of the case of the prosecution, as set out before the trial Court, are that the original complainant lodged a complaint before the ACB, Bharuch, wherein, he stated that the original accused-appellant, herein, who was discharging the duties as Head Constable at Dadhal Police Gate, at the relevant point of time, had come to his house and stated that I have come to know that you indulge in sell of liquor, and therefore, you have to pay something. When, the complainant replied that he does not sell liquor, the accused got angry and told him that you have to pay Rs.500/- per month or he will involve in a false case. The accused, then, told to give the aforesaid amount to him on 11.12.2001 between 01:00 p.m. to 03:00 p.m.. Since, the complainant did not want to give the aforesaid amount, he approached the ACB officials and a trap was arranged, wherein, the accused was allegedly apprehended. At the end of the investigation, on finding sufficient evidence, charge-sheet was filed against the accused. In order to prove the guilt of the accused, the prosecution examined the following witnesses; PROSECUTION WITNESS NUMBER NAME OF THE WITNESS EXHIBIT NO. At the end of the investigation, on finding sufficient evidence, charge-sheet was filed against the accused. In order to prove the guilt of the accused, the prosecution examined the following witnesses; PROSECUTION WITNESS NUMBER NAME OF THE WITNESS EXHIBIT NO. 1 Ravjibhai Maganbhai Vasava 9 2 Jayantibhai Ishwardas Patel 10 3 Nareshchandra Bhikhabhai Koraltala 16 4 Rajgor Dolatrao Marathe 19 5 Manojbhai Dineshchandra Antani 21 4. Over and above the oral evidences, the prosecution also produced the following documentary evidences in support of its case; SR. NO. PARTICULARS OF THE DOCUMENTS EXHIBIT NO. 1 List of articles seized from the accused 11 2 Original trap panchnama 12 3 O/c. of allotting panchas 16 4 Original complaint 17 5 Original sanction letter 22 5. At the end of the trial, the further statement of the accused under Section 313 of the Cr.P.C. came to be recorded, and then, the trial Court passed the impugned judgment and order, as referred to herein above. Hence, the present appeal. 6. Ms. Kapadia, learned Advocate for the accused, submitted that the trial Court committed a grave error in convicting the accused No.1, inasmuch as it failed to appreciate the material on record in its proper perspective. She submitted that the trial Court ought to have appreciated that there was no demand on the part of the accused. She, further, submitted that the trial Court ought to have appreciated the fact that the prosecution failed to prove beyond doubt the charges leveled against the accused. She, hence, prayed that the appeal be allowed. In support of her submissions, she placed reliance on the following decisions of this Court; (1) "Kishorchand Mansukhlal Joshi v. State of Gujarat", 1985 GLH 103; and (2) "kanubhai Kantibhai Patel v. The State of Gujarat", 1998 (1) GLH 924 . 7. On the other hand, learned APP for the Respondent-State, herein, opposed the appeal and submitted that the trial Court convicted the accused after perusing the entire material on record, and hence, no interference is called for at the hands of this Court and the appeal be dismissed. 8. Heard the learned Advocate for the original accused No.1 as well as the learned APP for the Respondent-State and perused the material on record with their assistance. 9. 8. Heard the learned Advocate for the original accused No.1 as well as the learned APP for the Respondent-State and perused the material on record with their assistance. 9. Having heard the learned Advocate for the accused-appellant and having heard the learned APP for the respondent-State, this appeal requires to be allowed only on the ground of the judgment of this Court in "Kanubhai Kantibhai Patel v. The State Of Gujarat" (Supra), wherein, this court held that one Police Officer doing everything, i.e. right from recording of the complaint till filing of charge sheet, would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. It is also held, therein, if, panchnama was not dictated by panchas and they were asked to sign the panchnama mechanically, such panchnama cannot be accepted as a supporting piece of evidence. This Court, further, held that the 'demand' and 'acceptance' being vital ingredients, they must be proved by the prosecution, and therefore, the learned trial Judge ought to have considered the said decision, as it was available before her. Further, in "Kishorchand Mansukhlal Joshi v. State of Gujarat" (Supra), this Court hold that in a corruption case the whole case depends upon the credibility of only two persons, the complainant and the panch, and thus, the career of a public servant depends on the evidence of the two persons and when it is close examined, it would depend upon one person and that one person would be a person who would be a panch witness in the case. This Court, further, observed that the creditworthiness of that person would be most important criteria, since, if, one unscrupulous complainant could find out one person to support him, the career of any public servant could be put to an end. Under the circumstances, this Court hold that the caution demands that the evidence of the complainant and the panch should be such by which no doubt is left in the mind of a judge in regard to the credibility and ultimately, the acceptability of the evidence of the complainant and the panch witness. However, in her over-zeal to convict the accused, the learned trial Judge relied on the evidence, which could not have been made a part of the evidence. Section 7 of the Act, reads as under; "7. However, in her over-zeal to convict the accused, the learned trial Judge relied on the evidence, which could not have been made a part of the evidence. Section 7 of the Act, reads 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." 10. Here, Ms. Bhatt submitted that the judgments of this Court in "Kishorchand Mansukhlal Joshi v. State of Gujarat" (Supra) and in "Kanubhai Kantibhai Pate v. State of Gujarat" (Supra) will not apply to the facts of the case on hand, as the currency notes were found from the possession of the accused, which would mean that he had accepted the amount, and therefore, the demand is also proved from the unison evidence of PW Nos. 1, 2 and 3. Ms. Bhatt, further, submitted that they corroborated their statements. The evidence go to show that the accused had tried to reform the complainant, which boomranged on him and instead the bootlegger, who allegedly turned to be a good man, trapped the accused, whereas, the accused, who had tried to reform the complainant, was convicted for demanding Rs.500/-. This appeal, hence, requires to be allowed. The entire gamut of procedure was done by the police officer, who wanted to see that the accused is convicted. The evidence and observations on Page-26 of the impugned judgment shows that there were blank forms. This appeal, hence, requires to be allowed. The entire gamut of procedure was done by the police officer, who wanted to see that the accused is convicted. The evidence and observations on Page-26 of the impugned judgment shows that there were blank forms. The panchnama was done by the PI, Marathe, who had done the needful to see that the accused is convicted. Further, the learned trial Judge misread and misinterpreted the judgment of this Court in "Gopalbhai Oganbhai Parekh v. State of Gujarat", 2002 Cri.L.R. 266. Further, the invocation of Section 20 of the Act is also not proper in the facts of this case, when the investigation, itself, is faulty. 11. In above view of the matter, here, it would also be relevant to refer to a recent decision of the Apex Court in "Satvir Singh v. State of Delhi Through CBI", 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 leveled 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. While setting aside the order of the Delhi High Court, the Apex Court observed as under in Paragraph-37, thereof; "37. The High Court in exercise of its appellate jurisdiction has exceeded its parameters laid down by this Court in reversing the acquittal order of the trial court. Therefore, the findings are not only erroneous in law but also vitiated in law. The relevant paragraphs from the Crl.A. No. 920 of 2011 judgment in State of Kerala v. C.P.Rao (supra) are extracted hereunder: "13. In coming to this conclusion, we are reminded of the well-settled principle that when the Court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. In coming to this conclusion, we are reminded of the well-settled principle that when the Court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan. At SCR p. 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows: "9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case, afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (I) 'substantial and compelling reasons', (ii) 'good and sufficiently cogent reasons', and (iii) 'strong reasons', are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified." Hence, this appeal deserves to be allowed. 12. In the result, this appeal is Allowed. The judgment and order of the trial Court, Dated : 17.04.2003, convicting the accused for the offence punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, is quashed and set aside and accused is ACQUITTED. His bail bonds stand discharged. The amount of fine, if any paid, be refunded to him. R&P be sent back to the concerned Court, forthwith. Appeal allowed.