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2017 DIGILAW 1019 (GUJ)

State of Gujarat v. Rajendra Harpalsinh Thakur

2017-06-05

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. This is an appeal preferred by the State of Gujarat under Section 378 (3) of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 31/03/2010 recorded by the learned 5th Additional District and Sessions Judge in Special (ACB) Case No. 9 of 1996 whereby the learned Trial Judge acquitted the respondent-accused, of the charges for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. Brief facts of the case are that respondent accused was serving as Civil Supervisor in Surat Mahanagarpalika. At the relevant time, construction work in plot No. 41 and 42 of the complainant was going on and accordingly, accused was called by the complainant in respect of said construction work and demanded Rs. 6,000/- as illegal gratification and directed the complainant to keep the same ready to be collected by him on 07/07/1995 from his office. As the complainant was not willing to pay such bribe, he approached the ACB, Surat and lodged the complaint. Accordingly, trap was arranged and during the course of trap, the respondent-accused was caught red handed along with the tainted currency notes of Rs. 3,000/- and thereby offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 was registered against the respondent-accused. 3. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, the respondent was arrested and, ultimately, charge-sheet was filed and submitted the same before the learned 5th Additional District and Sessions Judge, Surat where the case was registered as Special (ACB) Case No. 9 of 1996. The trial was initiated against the respondent. 4. To prove the case against the present respondent-accused, the prosecution has examined about six witnesses and also produced several documentary evidence. 5. 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 trial Judge acquitted the respondent of all the charges leveled against him by the impugned judgment and order. 6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant-State has preferred the present appeal. 7. This Court has heard Mr. K.L. Pandya, learned APP for the appellant-State and Mr. 6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant-State has preferred the present appeal. 7. This Court has heard Mr. K.L. Pandya, learned APP for the appellant-State and Mr. Hardik Dave, learned advocate for the respondent-accused. 8. Mr. K.L. Pandya, learned APP has taken this Court through the entire records and proceedings and evidence of material witnesses and he has argued that though the complainant had fully supported the case of the prosecution, however, in the cross examination, he has taken "U" turn to his depositions made in his examination in chief but his evidence is clearly getting corroboration from the evidence of Panch No. 1-PW-1 and in that view of the matter, the prosecution has established the vital ingredients such as demand, acceptance and recovery of tainted currency notes from the accused. However, the learned trial court solely relying upon the reasons that another witness Chandrakant Deasi had turned hostile and the complainant's evidence is also not out of doubt, disbelieved the case of prosecution. Mr. Pandya, learned APP has urged that whenever in view of evidence of the witnesses, vital ingredients like demand, acceptance and recovery are being established, this Court may reverse the finding of the learned trial court and convert the decision of acquittal into conviction. It is contended by learned APP that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent. It is further contended by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also contended by him that the learned Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondent for the alleged offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 which requires to be reversed as such and the respondent-accused is required to be convicted. 9. On the other hand, Mr. 9. On the other hand, Mr. Hardik Dave, learned advocate for the respondent has supported the judgment of acquittal rendered by the learned Special Judge and has argued that learned Special Judge, while rendering the judgment, has assigned ample reasons and therefore, there appears no evidence on record to reverse the findings recorded by the learned Special Judge. He has further argued that the complainant himself, in the cross examination, admitted that the accused had never demanded any amount of illegal gratification from the complainant and never accepted and even he went to the extent that he had not named any accused as such while lodging the complaint and it was general complaint he made before the ACB that the officials of the Town Planning Department of Surat Municipal Corporation were harassing him. Further, he has argued that PW-3 Chandrakant Desai who was the partner of the complainant had not at all supported the case of the prosecution, consequently, therefore, entire version of the complaint becomes doubtful. He has argued that on that count also, the prosecution has miserably failed to establish vital ingredients i.e. demand, acceptance and recovery. As per his submissions, in absence of evidence of PW-2 and PW-3, evidence of PW-1 also becomes meaningless as from his evidence, nothing concrete is revealing that the accused had demanded any amount of illegal gratification from the complainant and in pursuance thereof, the complainant handed over the said amount and in that view of the matter, the prosecution has failed to establish the vital ingredients i.e. demand and acceptance. He has contended that consequently therefore, the finding recorded by the learned trial court does not require any interference by this Court. 10. This Court has minutely perused the oral as well as documentary evidence available on record and gone through the impugned judgment and order passed by the trial court as well as paper book and evidence adduced by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant-State and learned advocate for the respondent. 11. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. 11. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. In the case of A. Subair v. State of Kerala reported in (2009) 6 SCC 587 , while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon'ble Apex Court 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. 12. In the case of State of Kerala and another v. C.P. Rao reported in (2011) 6 SCC 450 , the Hon'ble Apex Court, reiterating its earlier dictum, vis-à-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. 13. In a recent enunciation by the Hon'ble Supreme Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined by the Hon'ble Apex Court in the case of B. Jayaraj v. State of A.P. Reported in AIR 2014 SC(Supp) 1837, 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)&(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 extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(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. 14. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon'ble Apex Court in the case of Sujit Biswas v. State of Assam, reported in (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 15. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. 16. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d) (i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. 17. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. 17. Having heard learned advocate for the respective parties to the present proceedings and having perused the impugned judgment as well as records and proceedings, as per the prosecution version, it clearly reveals that the complainant, Chandrakant Desai and Shantilal Desai constituted a partnership firm and they were dealing with land under the name and style of "Omkar Corporation" and the said partnership firm had purchased land bearing survey Nos. 111 paiki 1/1 situated at Pandesara, Surat and they obtained permission for construction from Bamroli Gram Panchayat and thereafter said area of Pandesara agglomerated with the Surat Municipal Corporation and thereafter construction permission was also obtained from Surat Municipal Corporation and thereafter the said land was divided into plots. Plot No. 7 was re-numbered as Plot No. 41 and Plot No. 42 and the same was sold to one Sureshbhai Patel and one Upendrabhai Sundarlal Bharucha, respectively. While said Sureshbhai started construction, the accused directed to stop construction due to which said Sureshbhai Patel met the present complainant and his partners and thereafter PW-2 and PW-3 met the accused on 14/06/1995. At that time, the accused demanded Rs. 6,000/- as amount of illegal gratification for carrying out rest of construction and thereafter met the owner of plot and apprised aforesaid situation but subsequent purchaser agreed to pay Rs. 1,500/- only and due to which the complainant lodged the complaint before the ACB. Accordingly a trap was led on 07/07/1995 and during the course of trap, the accused was caught red handed along with the tainted currency notes of Rs. 3,000/- and thereby committed an offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 18. PW-2, the complainant Mahendrabahi Sakabhai has deposed that on 07/07/1995, he was residing at Surat and he was dealing with land along with his partners Shantilal Patel and Chandrakant Desai. He has deposed that they purchased land bearing survey No. 111/1-2 paiki 1-2 situated within the vicinity of Bamroli Gram Panchayat. He has deposed that thereafter permission of various authorities were obtained. He has deposed that thereafter in the said land, they made several plots. He has deposed that they purchased land bearing survey No. 111/1-2 paiki 1-2 situated within the vicinity of Bamroli Gram Panchayat. He has deposed that thereafter permission of various authorities were obtained. He has deposed that thereafter in the said land, they made several plots. Plot No. 41 was sold to one Sureshbhai Patel. He has deposed that while said Sureshbhai Patel was carrying out construction, he was directed by the accused to stop the same and demanded amount of illegal gratification of Rs. 6,000/- which was ultimately scaled down to Rs. 1,500/- i.e. to be paid by the complainant and Rs. 1,500/- i.e. to be paid by Sureshbhai. He has deposed that the accused directed to keep the money ready at his office and he would collect the same. He has deposed that he contacted the office of ACB prior to the same and accordingly, the officer of the ACB registered the complaint and trap was arranged and on the day of trap, the accused came to office of the complainant and at that time his partner Chandrakant Desai was present. At that time, the accused arrived there and asked for the amount of illegal gratification as agreed by them and thereafter he handed over the tainted currency notes to the accused which the accused accepted and placed into his pant pocket and thereafter Chandrakant Desai gave pre-arranged signal due to which other members of raiding party arrived there and at that time, the accused threw the tainted currency notes, however, the same was seized thereafter. As he did not support the case of the prosecution, he came to be declared hostile and thereafter also he had not supported the case of the prosecution. In the cross examination undertaken by the learned advocate for the accused, he has clearly admitted that the accused had never demanded any amount of illegal gratification from him nor accepted any amount from him. He has admitted that he lodged the complaint before the ACB ventilating general complaint as regard to harassment in the construction work and they had not named any person in the complaint. He has also admitted that the complaint was lodged at the instance of Chandrakant Desai (PW-3) who merely signed the complaint and he is not in a position to recollect the contents of the complaint as well as panchnama. He has also admitted that the complaint was lodged at the instance of Chandrakant Desai (PW-3) who merely signed the complaint and he is not in a position to recollect the contents of the complaint as well as panchnama. He has also admitted that on the day of trap, he had not visited the office of ACB and he had not met Mr. Patel, Police Inspector of ACB. 19. PW-3 Chandrakant B. Desai has deposed that he is resident of Surat and he was partner of "Omkar Corporation". He has deposed that other partners were Mahendrabhai Saka and Shantilal Patel and they were dealing with purchase and sale of land. He has deposed that their firm had purchased a land situated within the vicinity of Bamroli Gram Panchayat and that came to be divided into plots and plot No. 41 and plot No. 42 came to be sold away to one Suresh Kanjibhai Patel and Upendrabhai Sundarlal Bharucha. He has deposed that thereafter he did not knew what happened to the said plots and he was declared hostile as he has not supported the case of the prosecution. Though extensive cross examination was carried out by the learned APP, he had not supported the case of the prosecution. 20. PW-1, Laljibhai Govindji Patel who was requisitioned as shadow panch by the raiding party has deposed that he was serving at the relevant time in Taluka Panchayat Office, Chhoryasi, Surat. He has deposed that he was requisitioned as panch. He has deposed that he was introduced with the complainant. He has deposed that at the time of trap, he was directed to accompany the complainant as well as co-complainant Chandrakant Desai in the office of Omkar Corporation. He has deposed that the accused came to the office of Omkar Corporation and took seat over the chair and thereafter the complainant told to do as agreed. He has deposed that at that time, Chandrakant Desai was also present and the complainant took out the tainted currency notes from his pocket and handed over to the accused which the accused accepted and placed into his pocket. He has deposed that thereafter as per the signal given by the complainant, other members of raiding party arrived and search and seizure was carried out. 21. He has deposed that thereafter as per the signal given by the complainant, other members of raiding party arrived and search and seizure was carried out. 21. On overall analysis of the evidence on record, indisputably, in the present case, PW-2 is the complainant and PW-3 is also emerging out as co-complainant. On perusal of evidence of aforesaid both the witnesses, though to some extent PW-2- the complainant has supported the case of the prosecution in examination in chief, but in the cross examination, he has clearly and categorically admitted that the accused had never demanded any amount of illegal gratification from him and nor accepted any amount from him and even he has deposed that he had not lodged the complaint naming the present respondent-accused but he lodged the complaint ventilating grievance against the officials of the Town Planning Department, Surat Municipal Corporation as they were harassing them in carrying out construction but no complaint of demand of illegal gratification was specifically lodged by him. However, PW-3 whose status is not emerging out less than co complainant was all throughout present as per recitals of the complaint at Exh. 40 from the beginning to the end of the trap along with the complainant and he was also present at the time of trap and while lodging the complaint before the police but he has not at all supported the case of the prosecution and he himself has disowned the entire recitals of the complaint as well as his statement. 22. So far as the evidence of shadow panch PW-1 is concerned, in his evidence, he has stated that while he was present in the office of Omkar Corporation, the accused arrived there and at that time talk came to be initiated by the complainant and the complainant handed over the amount to the accused but nothing is revealing from his evidence that the accused raised any demand and any amount in pursuance thereof came to be paid by the complainant to the accused. 23. In view of the aforesaid nature of evidence, the prosecution miserably failed to establish demand and acceptance. Consequently, therefore, even if the recovery came to be made from the accused, the same renders meaningless. 24. 23. In view of the aforesaid nature of evidence, the prosecution miserably failed to establish demand and acceptance. Consequently, therefore, even if the recovery came to be made from the accused, the same renders meaningless. 24. Even otherwise also, this case is squarely covered by the decision of the Hon'ble Supreme Court in the case of M.R. Purushotham v. State of Karnatak reported in (2015) 3 SCC 247 and on that count also, there appears no merit in the appeal. 25. For the reasons recorded as above, it appears that the learned trial court has rightly appreciated the evidence on record and rightly acquitted the accused from the charges leveled against him which calls for no interference by this Court. This Court is of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court find that the findings recorded by the Trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal. 26. In the result, the present appeal is hereby dismissed. Record and Proceedings to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged. Fine, if any paid, be refunded forthwith.