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Gujarat High Court · body

2015 DIGILAW 57 (GUJ)

STATE OF GUJARAT v. HARSHAD AMBALAL JOSHI

2015-01-19

K.J.THAKER

body2015
JUDGMENT 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 24.10.2002 passed by learned Special Judge, Sabarkantha at Himmatnagar in Special Case (ACB) No. 15 of 1996, whereby the respondent-accused was acquitted of the charge for offence punishable under Sections 7, 13(1)(d), (i), (ii), (iii), and 13(2) of the Prevention of Corruption Act. 2. Short facts of the prosecution case are as under: 2.1 The complainant Rameshbhai Maknabhai Patel was working as an Assistant Manager in G.I.D.C. Himmatnagar during the period of 1993 to 1994. Thereafter, he was transferred and in his place the respondent accused was appointed. That during the period of service of the complainant, the file regarding the transfer of a G.I.D.C. shed from Bhavani Ceramics to Shri Ram Masala was going on. Thereafter on the transfer of the complainant Rameshbhai Maknabhai Patel, the said work was being looked after by the accused. That there was some delay on the part of the complainant in the matter of transfer of the aforesaid shed in the name of Shir Ram Masala and that delay was due to the lapse of the complainant and that on the account of the said delay, there was some loss on account of the difference of the transfer fee and for that loss, the complainant was responsible. However, for not making such report to the Head Office, the demanded a sum of Rs.6,000/- from the complainant for not making any report against the complainant. However, the said amount was settled at Rs.4,000/-. However, the complainant did not want to pay the said amount and, therefore, he approached the ACB. The ACB arranged a trap and it was carried out successfully. Thereafter, panchnama was drawn and offence under Sections 7, 13(1)(d), (i), (ii), (iii) read with 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 several witnesses and the prosecution also produced documentary evidence on record. 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 several witnesses and the prosecution also produced documentary evidence on record. 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 respondent of all the charges leveled against him by judgment and order dated 24.10.2002. 3. I have heard learned advocates appearing on both sides. 4. Ms. C.M. Shah, learned APP for the State submitted that the order of acquittal is contrary to law and evidence on record. She submitted that the learned Judge ought to have seen that the complainant has turned hostile to the prosecution, however, the panch no.1 Sajjansinh Chauhan has supported the details of the Panchnama. She also submitted that the learned Judge ought to have believed the preliminary panchnama which was prepared at the ACB office Himmatnagar. She further submitted that the learned Judge ought to have seen that panch witness no.2 Chaitanya Joshi has supported the procedure conducted in support of the panchnama which is at Exh-33. She also submitted that the learned Judge ought to have seen that Police Inspector Shri Jamsa of ACB has fully supported the prosecution case. She further submitted that permission to prosecute the appellant has also been granted by the competent authority. She submitted that the learned Judge ought to have seen that though the complainant has not supported the prosecution case by his evidence at Exh-44, Panch No.1 and P.I. Jamsa have fully supported the prosecution case. The learned Judge has erred in holding that the amount received by the accused was not a bribe amount but it was an amount to be deposited on account of the departmental inquiry. The learned Judge ought to have seen that the aforesaid defence is a lame defence and the learned Judge ought not have accepted the same. The learned Judge ought to have seen that, in this case, the accused has demanded the amount, accepted amount of bribe and the said amount of bribe has been recovered from the accused. The learned Judge ought to have seen that the aforesaid defence is a lame defence and the learned Judge ought not have accepted the same. The learned Judge ought to have seen that, in this case, the accused has demanded the amount, accepted amount of bribe and the said amount of bribe has been recovered from the accused. She submitted that aforesaid acceptance and recovery has been proved by the evidence of the panch witnesses and the Police Inspector, who conducted the trap. It is submitted by her that the learned Judge has misread the decisions 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. V.H. Patel, while taking this Court through entire record, submitted that the prosecution has failed to prove the demand, acceptance and recovery, therefore, the learned trial Judge has rightly acquitted the respondent. He submitted that the prosecution has failed to prove demand of money by the accused. He has referred to statement of the accused under Section 313 of the Criminal Procedure Code, wherein the accused has stated that a departmental inquiry was going on against the complainant and the money recovered was to be deposited in the departmental inquiry as per the direction of his superior officer. He submitted that even the complainant has supported this version in his statement. He has 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 submitted that neither the complainant nor investigating officer could bring home the charge of demand having been made by the accused. He submitted that there is no infirmity in the impugned order. He also submitted that the lower court has rightly appreciated the evidence on record and acquitted the respondent of the charges levelled against him. He, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed. 6. I have considered the arguments advanced on both sides and also gone through the materials on record. Looking to the charge framed against the respondent accused, the prosecution has to prove its case beyond reasonable doubt. He, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed. 6. I have considered the arguments advanced on both sides and also gone through the materials on record. Looking to the charge framed against the respondent accused, the prosecution has to prove its case beyond reasonable doubt. While passing the impugned judgment, learned trial Judge has given categorical finding that the respondent was not involved in the offence alleged against him. It is also found that in his statement under Section 313 of the Criminal Procedure Code, the accused has stated that a departmental inquiry was going on against the complainant and the money recovered was to be deposited in the departmental inquiry as per the direction of his superior officer, the prosecution could not prove that this statement of the accused is incorrect. On the contrary, even the complainant has supported this version of the accused in his statement. It is also found that the prosecution has failed to prove any demand, acceptance and recovery, therefore also, the respondent was rightly acquitted of the charges levelled against him under the Prevention of Corruption Act. Therefore, the learned trial Judge has rightly acquitted the appellant of the charges levelled against him. 7. In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under: “16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.” 8. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors., reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 9. Even in a recent decision of the Apex Court in the case of Mookiah and Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu ( AIR 2013 SC 321 ), the Apex Court in Para-4 has held as under: “4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ]” 10. 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. On the touchstone of these judgments, the principles enunciated therein go to show that the finding of fact recorded in paragraph 56 of the impugned judgment cannot be said to be perverse and this view is based on facts and the law of the land. The prosecution having failed to prove the three main ingredients for bringing home the charge. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondent – 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. 11. In the result, the appeal is dismissed. The impugned Judgment and order dated 24.10.2002 passed by learned Special Judge, Sabarkantha at Himmatnagar in Special Case (ACB) No.15 of 1996, acquitting the respondent – accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned forthwith. Bail and bail bond, if any, stands cancelled.