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2016 DIGILAW 2203 (GUJ)

Dharamsing B. Kavar (Patel) v. State of Gujarat

2016-11-30

R.P.DHOLARIA

body2016
JUDGMENT : 1. The appellant has preferred the present appeal under section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 29.10.2001, rendered by learned Special Judge, Ahmedabad in Special Case No. 28 of 1993. 2. The short facts giving rise to the present appeal are that the accused persons were doing audit work with Chikhli Office. The complainant was running one touring cinema in the name and style of Bharat Touring Cinema and he was required to pay an amount of Rs.10,755/- towards penalty and the balance amount of licence fee etc. As the complainant did not pay the said amount within a given time, the audit party came for doing audit work. The complainant was called by the accused persons to pay the amount with penal interest along with the outstanding penalty, to which the complainant showed his inability to pay the said amount. The members of audit party demanded illegal gratification of Rs.5,000/- but after some discussion amongst them the audit party agreed to accept an amount of Rs.3,000/- in two installments each of Rs.1,500/-. Since the complainant did not desire to give any amount to the accused persons, the complainant approached the ACB office 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 charge-sheet against the accused persons. 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. 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. 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. Learned advocate Mr. H.N. Joshi has argued that since the complainant died during pendency of trial, the complainant could not be examined and therefore, the entire case as regards the demand and acceptance is rested upon the oral deposition of pancha no.1 who is normally required to eye witness the conversation which may take place between the complainant and the accused. Therefore, for want of examination of the complainant, the prosecution could not establish its case beyond reasonable doubt as regards previous demand and scaling down the demand of illegal gratification from Rs.5,000/- to Rs.3,000/-. He submitted that so far as the evidence of P.W.No.1 Chimanbhai Khushalbhai Patel who performed his duty as a PW No.1 is concerned, he has deposed that at the place of trap, the accused Mankodi (since died) took him nearby a tea – vendor stall. At that time, Mr. Patel was also accompanied him and Mr. Patel told not less than Rs.3,000/- and he also eye witnessed the conversation took place as regards initial demand as well as subsequent demand and therefore, the prosecution could not prove the vital ingredients as regards demand and acceptance by way of leading cogent and clinching evidence to establish them as such. He has further argued that recently also, the Supreme Court has considered the same point in the case of Selvraj Vs. State of Karnataka, reported in (2015) 10 SCC 230 , wherein also the Supreme Court considered the vital ingredients as regards demand and the Hon'ble Supreme Court laid down that there has to be corroboration of the testimony of the complainant regarding the demand of bribe and when the complainant is not available for examination during the trial, court has to be cautious while sifting the evidence of other witnesses. Charge has to be proved beyond reasonable doubt, and ultimately held that in absence thereof, acceptance of the bribe has not been established by adducing cogent evidence . He has more particularly relied upon para 15 which reads as under. “In State of Kerala & Anr. v. C.P. Rao [ 2011 (6) SCC 450 ], it has been laid down that recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of the testimony of the complainant regarding the demand of bribe and when the complainant is not available for examination during the trial, court has to be cautious while sifting the evidence of other witnesses. Charge has to be proved beyond reasonable doubt. This Court has laid down thus : "12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in para 28 of A. Subair (supra) made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court. 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. Against such decision of the High Court, the scope of interference by this Court is 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 [ 1961 (3) SCR 120 ]. At page 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows : "9. At page 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 [(1934-34) 61 I.A. 398] 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." 7. Mr. Joshi has further argued that the entire case of the prosecution was based upon the conspiracy hatched by the four accused who came to be charged, but the learned trial Court did not believe the conspiracy and in consequence whereof, the individual role of each of the accused came to be appreciated by the learned trial Court and whereby, the learned trial Court acquitted the original accused nos.1 and 3 namely Rudranath R. Pathak and Harshad Desai and since the accused no.2 died during pendency, the only sole surviving present original accused came to be convicted as such. Mr. Joshi, learned advocate has argued that the individual role of the sole surviving appellant accused is required to be appreciated in light of the evidence of panchas in absence of the primary evidence of the complainant. Mr. Joshi, learned advocate has argued that the individual role of the sole surviving appellant accused is required to be appreciated in light of the evidence of panchas in absence of the primary evidence of the complainant. He submitted that on the overall appreciation of the evidence of P.W.No.1 pancha as well as other corroborative evidence on record clearly shortfalls in order to record finding that the appellant accused demanded and accepted illegal gratification as such and on making evaluation in light of the ratio came to be propounded in the aforesaid recent judgment rendered by the Hon'ble Supreme Court, there is no clear, cogent and clinching evidence to prove that the appellant-accused demanded and accepted illegal gratification and therefore, the finding recorded by the learned trial Court is based upon presumption raised by it under section 20 of the Prevention of Corruption Act which is not sustainable at law and he has urged this Court to allow the Appeal and the accused be set at liberty. 8. Learned Special PP Mr. R.C. Kodekar, has taken this Court to the entire materials available on record as well as entire paper book and impugned judgment. He has also supported the judgment rendered by the learned Special Judge. Mr. Kodekar has argued that the accused persons were at Chikhali from Ahmedabad and when the initial demand was raised, other accused persons were also present there, in consequence whereof, they were also charge-sheeted with provision of section 120(B) of IPC and invoking the provision of section 120(B) of IPC and while the initial demand was raised and even at the time of trap also, the presence of the present appellant accused was being established by clinching and individual evidence of pancha and in consequence whereof, the learned Special Judge has rightly relied upon the evidence of P.W.No.1 in toto which calls for no interference. 9. In sum and substance, Mr. Kodekar has also argued that the ingredients as regards the demand, acceptance and recovery are established beyond reasonable doubt by the prosecution and the finding recorded by the learned Special Judge is based upon the evidence available on record and therefore, this Court should not interfere with the judgment of conviction. 9. In sum and substance, Mr. Kodekar has also argued that the ingredients as regards the demand, acceptance and recovery are established beyond reasonable doubt by the prosecution and the finding recorded by the learned Special Judge is based upon the evidence available on record and therefore, this Court should not interfere with the judgment of conviction. He has further argued that since sad demise of the complainant, the pancha who was examined and has independently deposed regarding involvement of the present appellant accused and his evidence is totally independent and trustworthy and that should be appreciated and rightly relied upon by the learned trial Court so far as the vital ingredients as regards to demand, acceptance and recovery are concerned. 10. On the other hand, learned APP Ms. Monali Bhatt 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 also supported the arguments advanced by learned Special APP Mr. R.C. Kodekar. She has argued that since the prosecution failed to establish conspiracy, the learned trial Court has deeply examined the individual act on the part of the original appellant accused and rightly came to the finding that the demand was raised and in consequence whereof, he accepted the amount of illegal gratification of Rs.15,000/- and he was caught red-handed and thereafter the entire procedure of recovery is fully established and the said fact also finds corroboration from other independent witness as well as the police official who was a member of raiding party and in that view of the matter, the finding recorded by the learned trial Court needs no interference at all. She has further 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. 11. This Court has heard Mr. H.N. Joshi, learned advocate for the appellant and Learned Special P.P. Mr. R.C. Kodekar and Ms. Monali Bhatt, learned APP for the respondent State. 12. 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. 13. 11. This Court has heard Mr. H.N. Joshi, learned advocate for the appellant and Learned Special P.P. Mr. R.C. Kodekar and Ms. Monali Bhatt, learned APP for the respondent State. 12. 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. 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 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. 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 expendable 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. Keeping in mind the principal laid down by the Supreme Court in the aforesaid series of decisions in light of the rival submissions came to be made by the learned advocates for the respective parties, the question arises for determination of this Court whether the prosecution has proved beyond reasonable doubt that the vital ingredients of demand, acceptance and recovery of illegal gratification of Rs.15,000/- or not. 18. Indisputably, on going through the evidence on record, though the accused persons were charged for the offence punishable under section 120(B) of IPC for criminal conspiracy which was not found to be established by the learned Special Judge and on that point, the learned Special Judge has framed the said point for determination and rendered the elaborate finding throughout as such. In view of the aforesaid position, the individual role of each of the accused is required to be examined so far as the crime in question is concerned. 19. P.W.No.1 – Chimanbhai Khushalbhai Patel has been examined vide Exhibit 101. He has deposed that he was serving as a Junior Clerk in District Panchayat, Valsad. He was asked to perform a duty as an official pancha in the raid. 19. P.W.No.1 – Chimanbhai Khushalbhai Patel has been examined vide Exhibit 101. He has deposed that he was serving as a Junior Clerk in District Panchayat, Valsad. He was asked to perform a duty as an official pancha in the raid. He was called at A.C.B. Office. In his presence, the detailed demonstration was carried out as to how the amount of bribe is to be handed over in the trap to the accused and he was also given understanding about Anthracene Powder and ultra violate lamp and about his role in the trap. He was also instructed to accompany the complainant throughout the trap and also to eye witness the conversation which may take place between the complainant and the accused. He accompanied the complainant on the day of raid i.e. 28.08.1992. While he was accompanying the complainant in the compound of the Mamlatdar Office, the complainant gave introduction of Mr. Patel, Mr. Mankodi and other persons. At that time, they gave signal to the complainant to come to them. Thereafter, they went to a tea-stall situated nearby gate of the Mamlatdar Office. At that time, the complainant asked them to have tea or coffee. Thereafter, both the accused showed willingness to have a tea and thereafter, the order for tea was given. Thereafter, the complainant took Mr. Mankodi nearby tea-stall where Mr. Patel was also arrived there. At that time, Mr. Patel asked him that there should not be less than Rs.3,000/- and further told him that he will have to give money to the Superior Officer. Then, the complainant said that he has brought Rs.1,500/- and the rest of the amount, he will deliver in late evening and thereafter, he took out tainted currency notes from his shirt pocket and offered to Mr. Mankodi. At that time, Mr. Mankodi directed him to handover the same to Mr. Patel and Mr. Patel accepted the same and put in his pocket. At that time other members of the raiding party arrived there in pursuance of the signal raised by them and told the accused persons not to move and thereafter the Investigation Officer has arrested them. Thereafter, they went to the Chamber of P.S.I., Chikhali. The second part of the panchnama was carried out and test of ultra violate lamp was found to be positive. Thereafter, they went to the Chamber of P.S.I., Chikhali. The second part of the panchnama was carried out and test of ultra violate lamp was found to be positive. The notes which were came to be recovered were found to be tallied in the number which were came to be noted down in the preliminary panchnama. He has admitted in the cross examination that when they met the accused nearby compound of Mamlatdar Office, no conversation took place between the complainant and the accused. 20. The prosecution has also examined other four witnesses. Mr. H.M. Patel, Investigating Officer who actually conducted the trap and recorded the statement of witness. In his deposition, he has deposed as to how he has conducted the trap and recorded the statements. 21. P.W.No.3 Uttam Devjibhai has been examined by the prosecution. He has deposed that he was serving as a clerk in Navsari Collector Office. At the time of incident, he was performing duty on M.A.G. Table in Mamlatdar Office. He was supposed to perform the duty relating all type of licenses and taxes. 22. P.W.No.5 - Harilal Shankar Jani, P.I., C.B.I., who carried out the rest of the investigation and filed the charge sheet after conclusion of investigation. 23. As noted above, the evidence of P.W.No.1 was crucial so far as the establishment of vital ingredients as regards to demand and acceptance of illegal gratification. The evidence of other witnesses are supportive and corroborative in the nature and indisputably, whenever the complainant died and during pendency of trial, he could not be examined. Therefore, the entire case of the prosecution was rested upon the crucial evidence of P.W.No.1 who has performed as official panch and accompanied the complainant during the trap. 24. As noted above, when the complainant visited them at Kalpana Guest House, pre-demand was raised by the accused Mr. Mankodi. At that time, as narrated in the complaint, the complainant was threatened for not paying entertainment tax though he was running talkies and the amount of Rs.10,700/- was due toward tax along with penalty and interest and in order to save the complainant from such penal interest, Mr. Mankodi initially raised demand of Rs.5,000/-. It is revealing from the complaint at exhibit 1 and after some conversation which was scaled down to Rs.3,000/-. Mankodi initially raised demand of Rs.5,000/-. It is revealing from the complaint at exhibit 1 and after some conversation which was scaled down to Rs.3,000/-. As he was not willing to pay the amount of illegal gratification, he approached the A.C.B., Valsad and the trap was arranged nearby tea-stall at Mamlatdar office. The demand was raised by Mr. Mankodi in presence of Mr. Patel and it is revealing from the deposition that 'not less than Rs.3,000/-', but in his conversation, it is not specifically coming out whether the amount said by him 'not less than Rs.3,000/-' was as regards to dues or as regards to the demand of illegal gratification. So far as pre-demand which is scaling down from Rs.5,000/- to Rs.3,000/- is concerned, there was a clear conversation as regards to the demand has not wiped out the penal interest from the complaint. The demand of Rs.5,000/- was made which came to be scaled down to Rs.3,000/-. Thereafter, at the time of trap, the initial talk as reveals from the testimony of P.W.No.1 was with the deceased accused Mankodi and the aforesaid words were only spoken by the present appellant accused. In that view of the matter, it is very difficult to believe that the words spoken by him 'not less than Rs.3,000/-' could be presumed to be as the demand of illegal gratification only. Once the entire deal was fixed and initiated by Mr. Mankodi as regards to scaling down the demand from Rs.5,000/- to Rs.3,000/- and the detailed conversation also took place with Mankodi and the amount was also demanded by Mr. Mankodi. The aforesaid words as coming out in the testimony of P.W.No.1 - Official Pancha could not be termed to be the demand of illegal gratification. Even otherwise also, since the complainant has died, he could not be examined. In view of these facts and circumstances of the present case, the only evidence of P.W.No.1 is available on record, which shows that it becomes very difficult to believe that once the deal was fixed by Mr. Mankodi and he scaled down the demand and demand was also raised at the time of trap by Mr. Mankodi and then, intervention on the part of the present appellant becomes unbelievable. In that view of the matter also, keeping in mind the principal laid down in the aforesaid case of Selvaraj Vs. Mankodi and he scaled down the demand and demand was also raised at the time of trap by Mr. Mankodi and then, intervention on the part of the present appellant becomes unbelievable. In that view of the matter also, keeping in mind the principal laid down in the aforesaid case of Selvaraj Vs. State of Karnataka (Supra), the prosecution has miserably failed to establish by the cogent and clinching evidence as regards to the demand and acceptance on the part of the present appellant accused that he demanded and accepted illegal gratification of Rs.15,000/- as such. The actual recovery and seizure was also came to be made in Chikhali Police Station and not at the place of trap which also raises reasonable doubt as regard to recovery of seizure took place during the course of trap. 25. For the reasons recorded above, the appeal succeeds. The impugned judgment and order dated 29th October, 2001 passed by learned Special Judge, Ahmedabad in Special Case No.28 of 1993 is quashed and set aside. The appellant is acquitted from the charges leveled against him. Bail bond, if any, stands canceled. R & P be sent back to the trial Court, forthwith.