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Gujarat High Court · body

2016 DIGILAW 1693 (GUJ)

State of Gujarat v. Ukabhai Chhaganbhai Vaja

2016-08-09

S.G.SHAH

body2016
JUDGMENT : S.G. Shah, J. 1. Heard Ld. A.P.P. Mr. K.P. Raval for the State being prosecuting agency and Ld. Advocate Mr. S.B. Tolia for the respondent. Perused compilation of evidence produced in the form of Paper Book by the parties. 2. Respondent has been acquitted by judgment and order dated 31st December, 2015 for the charges u/s. 7, 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 by Additional Sessions Judge, Rajkot. The petitioner State wants to file an acquittal appeal against such impugned judgment and therefore, they preferred this application seeking leave to appeal. 3. When respondent is acquitted by the Sessions Court after full-fledged trial and by reasoned judgment, leave to appeal cannot be granted summarily without considering that, whether there is any reliable and cogent evidence without reasonable doubt to confirm that the respondent has certainly committed an offence as alleged in the charge-sheet for which charges are framed by the Sessions Court. For the purpose, we have to scrutinize the evidence on record. 4. The sum and substance of the prosecution case is to the effect that, the complainant has approached the respondent for insuring his tractor owned by his uncle and respondent though a government servant has demanded an amount equal to 5% of the premium for insurance of such tractor i.e. Rs. 9493/-. Therefore, the actual amount of bribe or gratification is Rs. 480/-. It is the case of the prosecution that as usual, when the complainant does not want to pay any such additional amount, he has approached the ACB Office and which had in turn arranged the raid and at the time of raid, they found tainted currency notes from the respondent accused and therefore, according to the prosecution, they have proved the commission of offence of demanding bribe by the respondent. Therefore, it is contended that, there is an evidence regarding demand and acceptance of bribe by the respondent for trial court has erred in acquitting the respondent. 5. Whereas, on perusal of available evidence on record, it becomes clear that, practically, there is a reason for the accused to accept an amount of premium and thereby, when legal charges are accepted by the respondent which is to be credited in the office against receipt for issuing insurance policy. 5. Whereas, on perusal of available evidence on record, it becomes clear that, practically, there is a reason for the accused to accept an amount of premium and thereby, when legal charges are accepted by the respondent which is to be credited in the office against receipt for issuing insurance policy. Therefore, it cannot be stated that, the respondent has demanded such amount or any other amount as bribe when there is no cogent, reliable evidence beyond reasonable doubt to confirm the basic requirement to prove commission of such offence viz (1) Prior demand of bribe amount, (2) Demand of bribe amount at the time of raid, (3) Acceptance of tainted currency notes and (4) Possession of tainted currency notes. Therefore, when the situation emerging from the record makes it clear that, there is reason for the accused to accept some amount towards insurance premium for the vehicle in question and thereby, if such payment includes tainted currency notes, then it cannot be stated that, it is an amount of bribe accepted by the respondent. Similarly, it is also quite clear that, when amount of insurance premium is an odd amount i.e. Rs. 9493/- so also, as per the prosecution case, the demand of bribe amount is also odd in figure i.e. Rs. 480/- in absence of the specific, cogent and reliable evidence beyond reasonable doubt that, particularly the amount of Rs. 480/- is offered in the form of tainted currency notes as bribe only and it is accepted in addition to the amount of premium, it cannot be stated that, passing of or acceptance of some currency notes is only for and towards bribe and not for legal charges towards premium of insurance policy. It is undisputed fact which is emerging from the record that, at the time of raid, a specific amount of Rs. 480/- is not separately passed on though an attempt was made to prove it but, in addition to regular payment of Rs. 9493/-, when probably some more amount than Rs. 9493/- is passed on and thereafter, if it is alleged that the difference is towards bribe, then there is no option for the Sessions Court but to acquit the accused and thereby, to refuse to grant to Leave to Appeal by this Court. 6. P.W. No. 1 - the Complainant - Mahesh Merambhai Rathod is examined at exhibit 14. 9493/- is passed on and thereafter, if it is alleged that the difference is towards bribe, then there is no option for the Sessions Court but to acquit the accused and thereby, to refuse to grant to Leave to Appeal by this Court. 6. P.W. No. 1 - the Complainant - Mahesh Merambhai Rathod is examined at exhibit 14. Though he has stated in his examination-in-chief that, when he has approached the respondent, the respondent has conveyed him that, the insurance premium would be Rs. 9493/- but he has to pay an additional amount of Rs. 480/- as 5% of the premium and since he was not carrying the money at that time, he conveyed the accused that, he will come on the next day. It is further stated that on the next day, after completing pre-trap panchnama and relevant exercises; which is now routine in nature and well described in pleading and therefore avoided to reproduce herein; when he reached to the office of the respondent, initially, he has given an amount of Rs. 9493/- but, thereafter, the respondent has demanded the amount of Rs. 480/- which he has passed on to the respondent and the respondent has kept that amount in the bundle of notes handed over previously i.e. the amount of Rs. 9493/- and thereafter, the respondent had taken last four notes out of the bundle and kept the same in his own pocket and rest of the amount was kept in the drawer of the table. Thereby, there is material contradiction in the complainant's version himself, when he states that an additional amount of Rs. 400/- has been mixed by the accused with the amount of premium. Therefore if at all, an amount of bribe in the form of tainted currency notes are separately handed over to the respondent accused then, probably the respondent accused would never mix it with his official amount for premium but only that amount would be directly pocketed or placed in some secret or other place. Therefore if at all, an amount of bribe in the form of tainted currency notes are separately handed over to the respondent accused then, probably the respondent accused would never mix it with his official amount for premium but only that amount would be directly pocketed or placed in some secret or other place. Thereupon, so far as the evidence regarding confirmation of possession of tainted currency notes is concerned, again the complainant has contradicted his own previous statement when he deposed that the panch has taken the bundle of notes from the drawer of the accused's table and out of such bunch, last four notes were found to be tainted currency notes which are identified by the panch-witness as being used to be paid as a bribe. Such confirmation is in para 21 of the deposition, whereas in previous para 17, the witness has already stated that the accused has placed four tainted currency notes in pocket of his shirt, if it is so, the same could not be recovered from the drawer of the table. However, an attempt was made to rectify the statement by stating that tainted currency notes were recovered from the pocket of the respondent. But, though it may be termed as a simple contradiction, it touches the root of the matter, more particularly, when someone is to be convicted which may result into stigma in his life and career. Surprisingly, thereafter, when bundle of notes recovered from the drawer of the table was counted, then instead of an amount of Rs. 9493/-, it was only 8993/- and thereby, probably five notes were tainted and passed on separately but in that case, when bundle of notes are less than the amount of premium to be paid by the complainant and thereafter, if the amount of tainted currency notes is included in the bundle and then, if it amounts to total figure of insurance premium, then, there is reason to believe that, practically, there is no demand or acceptance of the bribe amount but, while passing of the legal amount, the complainant has passed on few notes which are tainted and thereupon, an attempt was made to show that, tainted currency notes were found from the possession of the petitioner. 7. 7. Rest of the evidence regarding procedural aspect of pre-raid panchnama and after raid panchnama are not much material, when there is material irregularity in the evidence so also in the impugned judgment and thereby, even in conviction of the appellant and hence, no irregularity is found in the impugned judgment of acquittal. 8. Similar is the situation with P.W. No. 2 Girishbhai Maganlal Budhdhdev at exhibit 21 who is a panch-witness and who was serving in Rajkot, MahaNagarpalika at the relevant time. Surprisingly, he admits in his deposition that, at the time of raid, he had never been to the place of raid and that, it was only P.W. No. 1 who has conveyed him about the incident. It is undisputed fact that, the witness is a second panch and the panch who has allegedly accompanied the complainant, could not be examined, may be because he had died. Therefore, the deposition of P.W. No. 2 is nothing but hear-say evidence, however, this witness has also contradicted the version of the complainant, when he states that, the accused has demanded 8% of the amount of premium as bribe against the statement of the complainant that, the accused has demanded 5% and though in the deposition by the complainant, there is no clarity that total amount is more than Rs. 9493/- and though on the contrary, less amount is disclosed by the complainant, this witness may be under the influence of the prosecuting agency confirms that, there is an additional amount of Rs. 480/- apart from the amount of insurance premium. Whereas, the complainant is talking about only Rs. 400/- paid as an amount towards bribe. The most important admission by the witness is last line of his deposition that, it is true that, as stated by the first pancha, they could not find out an amount of Rs. 400/- from the pocket of the shirt of the accused at the time of raid and for that, there is no explanation either by the complainant or by the first pancha as against the entire evidence by both the witnesses in two different breaths in different manner that the amount was recovered from the table and again it was recovered from the pocket of the accused. 9. 9. In view of above facts and circumstances, only because the Investigating Officer is deposing in confirmation of the prosecution case, it cannot be said that, there is cogent, proper and reliable evidence beyond reasonable doubt to confirm that it was the accused who has demanded the amount of bribe and accepted the same and the same was found from his possession beyond reasonable doubt so as to convert the judgment of acquittal into conviction. 10. In view of above evidence, I do not find any illegality or irregularity in the impugned judgment, more particularly, in view of settled legal position, as emerging from the following decisions; "(A) P. Satyanarayana Murty v. District Inspector of Police, State of Andhra Pradesh, reported in 2016(1) SCC (Cri.) 11 (B) Selvaraj v. State of Karnataka, reported in 2016(1) SCC (Cri.) 19 (C) Krishan Chander v. State of Delhi, reported in AIR 2016 SC 299 that; in such cases for confirming conviction, all 3 actions are must and shall be proved by prosecution beyond reasonable doubt viz; (i) Prior demand (ii) Demand at the time of trap and (iii) Acceptance of the amount. In absence of specific clinching evidence to prove all such acts by the accused, there cannot be any conviction. Evidence of other witnesses may not be sufficient to prove demand even though recovery is proved. In that case, benefit of doubt is to be extended to the accused. Mere acceptance of any amount alone by way of illegal gratification or recovery thereof dehors the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge. Thereby, admission and acceptance of bribe is sine qua non for constituting offence under the Prevention of Corruption Act. If complainant or witness turns hostile on point of admission and acceptance of bribe and when panch witness did not hear conversation between accused and complainant at the time when complainant had approached to give bribe money, it is held by Hon'ble Supreme Court of India that factum of demand cannot be considered as proof and, thereby conviction was set aside." 11. Under the above circumstances, this application for Leave to Appeal is dismissed for want of substance. Rule is discharged. 12. In view of dismissal of application for Leave to Appeal, Criminal Appeal No. 425/16 does not survive and the same stands disposed of as dismissed.