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Gujarat High Court · body

2016 DIGILAW 2185 (GUJ)

Maheshkumar Gobardas Darji v. State of Gujarat

2016-11-23

R.P.DHOLARIA

body2016
JUDGMENT : 1. The appellant has preferred the present appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 30.12.2003 rendered by learned Special Judge (ACB), (Fast Track Court), Mehsana in Special (ACB) Case No.10 of 1997. 2. The short facts giving rise to the present appeal are that the revenue entry was to be effected and, therefore, the complainant approached the present appellant in Gram Panchayat office and demanded village form No.7 and 12. It is alleged that the appellant demanded Rs.3000/- for this purpose and the same has been paid by the complainant. It is alleged that in August 1996 when the complainant demanded village form No.7 and 12 from the appellant for which the appellant demanded Rs.10,000/- which was also given and thereafter also, demand was made for Rs.70,000/- for the owner of the land which also has been paid by the complainant. It is alleged that the complainant met the appellant at S.T. Bus Depot and the complainant was given village form No.7 and 12 which were old one. It is alleged that on 10.2.1997 the complainant met the appellant and demanded village form No.7 and 12, land account book and fresh village form No.7 and 12, at that time, the appellant demanded Rs.1000/-. It is alleged that since the complainant did not desire to give any amount to the appellant accused, the complainant approached the ACB office on 15.2.1997 and the trap was arranged. Hence, the complaint came to be lodged against the appellant accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 6. Ms. Rajani Sharma, learned advocate for the appellant has argued that the complainant himself has not supported the case of the prosecution. She has submitted that in the cross examination, the complainant has admitted that there was no demand from him and the same evidence is also coming from the mouth of PW 2 who happened to be Panch No.1 who was required to see as well as hear the conversation between the complainant and the accused. She submitted that the said witness has clearly and categorically admitted that though the complainant tried to offer the amount of bribe, to which the appellant accused did not reply and, therefore, the complainant on his own volition placed Rs.1000/- in the hand of the appellant and thereafter also the complainant tried to count the same, but the accused did not count and take it. She submitted that thereafter the complainant raised alarm and hence trap team arrived there and seized tainted currency notes. She, therefore, submitted that in view of the aforesaid nature of evidence, vital ingredients as regards to demand and acceptance are not established. She further argued that though as per the prosecution case, the complainant was asked to pay Rs.1000/- as illegal gratification by the appellant for issuing fresh abstract of village form No.7 and 12 as well as account book pertaining to the land of the complainant, but on going through the Record and Proceedings, she has drawn the attention of this Court that neither handing over either old or fresh revenue record in light of the illegal gratification demanded has been proved and brought on record as evidence during the trial and in absence thereof, demand by the appellant as alleged itself is not proved and as a consequence, there was any recovery, if any, would become meaningless. Lastly, Ms. Lastly, Ms. Sharma requested this Court to allow the present appeal. 7. On the other-hand, Ms. Monali Bhatt, learned APP has supported the judgment rendered by learned trial Court. She has taken this Court through the entire Record and Proceedings and evidence of material witnesses on record and argued that when the complainant himself has deposed that on 10.2.1997 demand was raised and, therefore, he lodged the complaint and as a result thereof, the complainant along with trap team went to the house of the accused on Sunday as suggested by the appellant accused and, therefore, when such amount is recovered and signs of anthracene powder were also proved to be positive so far as the appellant is concerned. She, therefore, submitted that demand as well as acceptance were proved and, therefore, learned trial Court has rightly appreciated the evidence on record. She further submitted that the evidence of the complainant and Panch No.1 is unison as regards to demand and acceptance and, therefore, the prosecution has proved the case against the appellant accused. She has argued that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court should not disturb the finding recorded by learned trial Court, as such. 8. This Court has heard Ms. Rajani Sharma, learned advocate for the appellant and Ms. Bhatt, learned APP for the respondent State. 9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. 8. This Court has heard Ms. Rajani Sharma, learned advocate for the appellant and Ms. Bhatt, learned APP for the respondent State. 9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, appellant accused was serving as Talati-cum-Mantri of village Vadali, Taluka Kadi, District Mehsana, whereas complainant Vishnupuri was resident of village Vadaj and he was interested in purchasing agricultural land of Survey Nos.781 and 786 of the aforesaid village and for the same, he got executed the sale deed on 14.8.1995 from the original owners for valuable consideration of Rs.80,000/- and thereafter though the said document was executed, name was not mutated in the revenue record and as a consequence thereof, fresh revenue entries in the nature of Village Form No.7 and 12, 8-A as well as other documents were not handed over and, therefore, the complainant approached the Talati-cum-Mantri for getting the same for which the appellant accused demanded Rs.1000/- and directed the complainant to come to his house on Sunday on 16.2.1997. Therefore, the complainant visited the house of the appellant along with Panch No.1 as per the arrangement of trap and then the complainant handed over Rs.1000/- to the appellant which was found from the cot of the appellant and thereafter ultra-violate lamp test over the tainted currency notes, hands of the appellant as well as bed-sheet was found to be positive and trap was found to be successful, and, thereby the appellant committed the offence, as alleged. 10. PW 1 – Vishnupuri Kachrapuri has been examined at Exh.12. The witness has deposed that he wanted to purchase the land bearing Survey Nos.781 and 786 for sale consideration of Rs.80,000/- and got executed to registered sale deed on 14.8.1995. The witness has deposed that the appellant accused demanded Rs.1000/- for supply of the revenue record but as he did not desire to give Rs.1000/- towards bribe, he approached the ACB office and lodged the complaint. The witness has deposed that thereafter trap was arranged and as agreed, the witness went at the house of the appellant along with Panch No.1. The witness has deposed that the appellant has delivered him the revenue record as demanded and also asked regarding the talk dated 14.2.1997, but the appellant did not reply. The witness has deposed that thereafter trap was arranged and as agreed, the witness went at the house of the appellant along with Panch No.1. The witness has deposed that the appellant has delivered him the revenue record as demanded and also asked regarding the talk dated 14.2.1997, but the appellant did not reply. The witness has deposed that thereafter the witness has placed ten currency notes of Rs.100/- each in the hand of the appellant which he accepted and placed it on the cot and thereafter on raising the alarm, the members of raiding party arrived, drawn the panchnama and carried out necessary procedure. In the cross examination, the witness has admitted that the appellant accused has not demanded the amount of Rs.1000/- on 10.2.1997 and it is false if it is stated in the complaint. The witness has admitted that the entries have been mutated in the revenue record for the land purchased by him in 1995. The witness has also admitted that on the day of trap, the appellant has not demanded any amount from him. The witness has admitted that the agreement to sell has been executed on 27.9.1995 and the mutation entry for the sale deed has been entered in the revenue record which came to be certified on 30.9.1995 and paid the revenue. 11. PW 2 – Noor Mahammad Ambalal Shaikh has been examined at Exh.16. The witness has deposed that he was serving as Junior Clerk in the government office in 1997 and he was asked to be panch by the ACB office and accordingly, he agreed to it. The witness has deposed that he was made to understand the entire procedure of trap and he was required to hear the conversation between the complainant and the appellant accused. The witness has deposed that the complainant has asked the appellant regarding transaction of amount, but the appellant did not reply to it and thereafter the complainant taken out the money from his pocket of shirt and placed in the hands of the appellant, but he placed the same on the cot. At that time, the complainant asked the complainant to count it, but the appellant did not count it. At that time, the complainant asked the complainant to count it, but the appellant did not count it. In the cross examination, the witness has admitted that the appellant has not demanded any amount from the complainant in his presence, but the complainant himself has placed the amount in the hands of the appellant. The witness has admitted that though the complainant asked the appellant to count the said amount, but the appellant did not count the same. 12. PW 3 – Ambalal Dungarsinh Saraniya has been examined at Exh.20. The witness was serving as Police Inspector, ACB, Ahmedabad and he recorded the complaint on 15.2.1997. The witness has deposed that he arranged for tap and he has given details in deposition as to how the trap was arranged successfully, investigation was carried out and after conclusion of investigation, he has filed the chargesheet. In the cross examination, the witness has admitted that he did not inquire as to whether the work as regards to revenue record was completed by the appellant or not. The witness has also admitted that in his interrogation, Panch No.1 has replied that the appellant accused did not demand the amount of bribe from the complainant at the time of trap. The witness has also admitted that he has not at all investigated as to whether documents demanded by the complainant from the appellant accused were in fact fresh or not. 13. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair Vs State of Kerala, (2009) 6 SCC 587 : 2009 AIR SCW 3994, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. 14. In State of Kerala and another Vs. 14. In State of Kerala and another Vs. C.P. Rao (2011) 6 SCC 450 : AIR 2012 SC (Supp) 393, the Honourable Apex Court reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 15. In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayraj (AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that 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 proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 16. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 17. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 17. In the backdrop of the aforesaid factual as well as legal position and on overall analysis of the evidence of the complainant on record, it appears that the appellant accused has indulged himself in the transaction as regards to sell of the agricultural land and he was instrumental in transferring the land by way of sale from the original seller to the complainant and that there was dispute as regards to sale price and handing over certain installments and hence as narrated in the complaint itself, there were three prior transactions wherein the complainant handed over the amount in installments of Rs.30,000/-, Rs.40,000/- and Rs.3000/- and thereafter this was fourth demand which has been termed to be illegal gratification. So far as the last transaction for which the complaint is made by the complainant is concerned, the complainant himself has deposed at page 60 of the paper book that when he reached along with Panch No.1, at that time, the accused was not present and his mother asked them to sit in room and thereafter the appellant accused arrived; after initial talk, when the complainant demanded copy of the revenue record, the accused delivered the documents and thereafter on seeing the said documents, number of the account was not inserted which came to be inserted in his presence as Account No.563 and thereafter the complainant handed over ten currency notes of Rs.100/- each to which the appellant had accepted and thereafter the complainant gone out and raised alarm to the members of the raiding party; the other members of the raiding party arrived, search and seizure were taken place. In the cross examination, the complainant has clearly and categorically admitted that revenue entries were already effected in September 1995 and the same were also certified. The complainant has also admitted that on the day of trap, the accused has not demanded Rs.1000/- as regards to fresh revenue record. The complainant has also admitted that prior to lodging the complaint, entries were entered into and he was even paying revenue to the Government and also receiving receipts thereof in his name. 18. The complainant has also admitted that on the day of trap, the accused has not demanded Rs.1000/- as regards to fresh revenue record. The complainant has also admitted that prior to lodging the complaint, entries were entered into and he was even paying revenue to the Government and also receiving receipts thereof in his name. 18. The same is the evidence of the Panch who was required to hear and see the episode of trap. In his deposition, the panch has clearly and categorically deposed that on the day of trap, the appellant accused did not demand anything from the complainant even though the complainant asked the appellant accused. In the cross examination, the panch witness has admitted that though the appellant accused did not demand the amount, the complainant gave the amount and thereafter he tried to count it which was also ignored by the appellant accused and the said amount was lying on the cot. 19. In the present case, the complainant and panch witness are the prime witnesses whose evidence is very crucial. In view of the aforesaid nature of evidence, the factum as regards to demand and acceptance is not proved. Even otherwise also, on perusal of the record, it indicates that the prosecution has not at all brought on record the revenue record which came to be recovered from the pocket of the complainant which were old revenue record as well as several other documents which came to be seized from the house of the appellant accused at the time of trap. In absence thereof, it is very difficult to believe the entire case of the prosecution as regards to the fact that demand was raised by the present appellant for supplying fresh revenue record. On the contrary, on going through the Record and Proceedings, more particularly, list of documents along with the list Exh.10 which were produced at the time of trial wherein seizure memo as well as documents which were exhibited at Exhs.18 and 19, it appears that the same are xerox copies and the documents are disclosing the date prior to the date of raid. Even in 1996-1996, the name of the present complainant was mutated in village form No.7 and 12 and it also indicates that the complainant has cultivated crop in the year 1995-1996. 20. Even in 1996-1996, the name of the present complainant was mutated in village form No.7 and 12 and it also indicates that the complainant has cultivated crop in the year 1995-1996. 20. Taking into consideration the evidence on record, it appears that the sale transaction has taken place in the year 1995-1996 and the complaint was filed in the year 1997, i.e. for about two years later and in the interregnum period, entries have been entered in the revenue record i.e. village form No.7 and 12 and, therefore, demand made by the appellant accused for Rs.1000/- for supply of fresh copy of the revenue record is not established from the evidence on record. In this view of the matter, the prosecution has miserably failed to prove vital ingredients as regards to demand and acceptance and, therefore, the judgment and order of conviction calls for interference by this Court. Therefore, as stated above, in absence of specific and clinching evidence to prove all such acts by the accused, conviction recorded by learned trial Judge is not sustainable. 21. For the reasons recorded above, the appeal succeeds. The impugned judgment and order dated 30.12.2003 passed by learned Special Judge (ACB), (Fast Track Court), Mehsana in Special (ACB) Case No.10 of 1997 is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith. Appeal allowed.