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2017 DIGILAW 1022 (GUJ)

State of Gujarat v. Pravinsinh Pratapsinh Solanki

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 of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 24/06/2004 recorded by the learned Special Judge, 4th Fast Track Court, Surat in Special Case No. 37 of 1994 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 Mukeshbhai Rasiklal Bhatt who is the complainant wanted to construct building on plot of his relative Kanubhai Chhotubhai Dhodia/Patel. For the same, he made an application in the year 1992 and thereafter on 20/01/1994, the complainant met the accused and inquired as regard to his application. At that time, the accused demanded Rs. 1,500/- and the complainant give him Rs. 500/- on 20/1/1994 at 1:30 p.m.. Thereafter again the complainant met the accused in the month of February-1994 and at that time also the accused demanded and accepted Rs. 500/-. Thereafter the complainant again met the accused on 15/04/1994 and at that time, the accused demanded rest of the amount of Rs. 500/- and the complainant was directed to hand over the same on 18/04/1994 at his office. As the complainant was not willing to pay such bribe, he consulted the Police Inspector, ACB, Surat. Accordingly, a trap was arranged and during the course of trap, the respondent-accused was caught red handed along with the tainted currency notes 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 Special Judge, 4th Fast Track Court, Surat where the case was registered as Special Case No. 37 of 1994. The trial was initiated against the respondent-accused. 4. To prove the case against the present respondent-accused, the prosecution has examined about three witnesses and also produced several documentary evidence. 5. The trial was initiated against the respondent-accused. 4. To prove the case against the present respondent-accused, the prosecution has examined about three 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. Chintan Patel, learned advocate for Mr. Hardik Patel, learned advocate for the respondent-accused. 8. Mr. K.L. Pandya, learned APP has taken this Court through the entire paper book and read over the evidence of material witnesses and has argued that though panch has clearly and categorically stated in his testimony before the trial court that the accused demanded money of illegal gratification and in consequence where of the complainant handed over the tainted currency notes of Rs. 500/- which came to be recovered from the accused and in view of the oral testimony of the complainant, the prosecution has successfully established the vital ingredients such as demand, acceptance and recovery thereof. The learned Trial Court is carried away with the fact emerging during the course of trial that the complainant is unworthy of credit as he had not supported in several criminal cases and he is in habit of filing false cases as well as giving false evidence before the trial court and therefore, wrongly benefit of doubt is given. He has further argued that evidence of all the three witnesses i.e. the complainant, shadow witness and investigating officer is sufficient to prove vital ingredients such as demand, acceptance and recovery but the learned trial court has not appreciated the same in its proper perspective and wrongly acquitted the accused which requires to be reversed as such. He has further argued that evidence of all the three witnesses i.e. the complainant, shadow witness and investigating officer is sufficient to prove vital ingredients such as demand, acceptance and recovery but the learned trial court has not appreciated the same in its proper perspective and wrongly acquitted the accused which requires to be reversed as such. 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. Learned APP has taken this court through the oral as well as entire documentary evidences. 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. Chintan Patel, learned advocate for Mr. Hardik Dave, learned advocate for the respondent-accused has supported the judgment of acquittal and has argued that evidence of the complainant is not at all reliable taking into consideration his previous history of lodging false complaints as well as he is in habit of turning hostile in several cases. He has further argued that not only that but in the present case also he had not at all deposed in the examination in chief whatever the allegations and recitals he had made in his complaint and even in the cross examination, the complainant himself has not at all involve the present accused with the crime in question. Therefore, from his evidence, nothing is revealing against the present accused-respondent. Mr. Therefore, from his evidence, nothing is revealing against the present accused-respondent. Mr. Chintan Patel, learned advocate has also argued that in absence of evidence of the complainant, evidence of shadow panch which is corroborative evidence reveals that at the time of trap, the complainant handed over the tainted currency notes to the accused in pursuance of previous agreement between them. Nothing sort of any demand raised by the accused from the complainant is forthcoming from his evidence and in that view of the matter, his evidence carries no further the case of the prosecution. He has also argued that Mr. J.I. Patel, Police Inspector has recorded the complaint and thereafter he conducted the raid and also undertaken the entire investigation and after competition of investigation, he himself has filed the charge sheet. Entire investigation gets vitiated in view of decision of Hon'ble Apex Court in the case of Bhagwan Singh v. State of Rajasthan", reported in IR 1976 SC 985, followed by this Court in the case of "Kanubhai Kantibhai Patel v. State of Gujarat" reported in 1998 (1) GLH 924 . On that count also, findings recorded by the learned Special Judge is required to be confirmed as such. In view of the aforesaid nature of evidence, he has argued that the findings recorded by the learned Special Judge is in accordance with the evidence available on record and there appears no material on record to reverse the finding of learned Special Judge consequently therefore, the finding recorded by the learned trial court does not require any interference by this Court. He has, therefore, urged to dismiss the appeal as such. 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 respondent-accused was serving as Talati-cum-Mantri of village Mahuva, District-Surat whereas the complainant was resident of village Mahuva and he wanted to obtain free plot in the name of his step father Kanubhai Chhotubhai Dhodia/Patel and therefore, in the year 1992, he made an application before the office of respondent-accused and thereafter on 20/01/1994, the complainant met the accused and inquired as regard to his application. At that time, the accused demanded Rs. 1,500/- for carrying out his work as illegal gratification and thereby the complainant handed over Rs. 500/-. Thereafter again the complainant met the accused in the month of February-1994 and at that time also the accused demanded and accepted Rs. 500/-. Thereafter the complainant again met the accused on 15/04/1994 and at that time, the accused demanded rest of the amount of Rs. 500/- and the complainant was directed to hand over the same on 18/04/1994 at his office. As the complainant was not willing to pay such amount of illegal gratification, he lodged the complaint. Accordingly, trap was carried out and during the trap, the accused was caught red handed and thereby committed offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 18. PW-2 Mukeshbhai Rasiklal Bhatt, the complainant has deposed that he was residing nearby bus-stand at Mahuva and he was engaged in piece-meal labour work. He has deposed that Kanubhai Chhotubhai Patel was his step father. He has deposed that he has no house. He has deposed that application was made for allotment of free plot in the name of his step father before the office of Mahuva Gram Panchayat and he inquired through Talati-cum-Manti Shri Pravinshin Pratapsinh Solanki. He has deposed that at that time, the accused told him that as audit was going on, it would take some time and he was directed to come later on. He has deposed that the villagers told him that Talati-cum-Mantri may be wanting something from you. He has deposed that at that time, the accused told him that as audit was going on, it would take some time and he was directed to come later on. He has deposed that the villagers told him that Talati-cum-Mantri may be wanting something from you. He has deposed that thereafter, when he again met the accused-Talati, at that time the accused demanded Rs. 500/- due to which he lodged the complaint wherein he alleged that the accused demanded Rs. 500/- and accordingly trap was arranged. He has deposed that at the time of trap, shadow panch was accompanying him and he handed over the amount of illegal gratification to the accused which was recovered from the accused. However, in the cross examination, he has admitted that several persons applied for getting free plot but none has got it. He has also admitted that he repeatedly met the accused for getting death certificate of his step father and due to which the accused got annoyed and he felt bad and therefore, as per advise of one Yusufbhai and other villagers, he lodged the complaint alleging that the accused has demanded illegal gratification. He has also admitted that there was no demand from the accused and there was no conversation as regard to any amount of illegal gratification by the accused from him. He has also admitted that, similarly, when he visited the accused in his office, there was no demand of illegal gratification. He has also admitted that he has stated before the police that he visited the accused for obtaining death certificate of his step father. He has also admitted that till he lodged the complaint before the ACB, he had not handed over any amount of illegal gratification to the accused. He has also admitted that at the time of trap, there was no demand from the accused to him but after handing over the amount of illegal gratification, he raised pre-arranged signal due to which other members of raiding party arrived there and search and seizure was carried out. He has also admitted that after lodging present complaint, he has also lodged similar complaint against Mamlatdar of Mahuva but the raid remained unsuccessful in that case. He has denied that he handed over Rs. He has also admitted that after lodging present complaint, he has also lodged similar complaint against Mamlatdar of Mahuva but the raid remained unsuccessful in that case. He has denied that he handed over Rs. 500/- towards the tax, however, he has admitted that his water connection was cut down for non-payment of tax and it was reconnected after payment of such tax. 19. PW-1 Gemubhai Nurji Gamit who is shadow panch has deposed that he was serving as Junior Clerk in the office of Sale Tax Department at Surat. He has deposed that he was requisitioned as panch by the ACB on 18/04/1994 and was directed to act as shadow panch and further directed to remain along with the complainant at the time of trap. He has deposed that on the day of trap, while he was accompanying the complainant, while they visited the office of the accused, the accused was found absent and therefore again on the same day, they visited the office of the accused and at that time, the accused was found present and the complainant told the accused that he had brought Rs. 500/- as per previous conversation and thereafter handed over the said amount to him which the accused put into his pocket of pant and thereafter search and seizure was carried out. 20. PW-3 Jayantilal I. Patel has deposed that he was serving as Police Inspector, ACB, Surat at that time. He has deposed that on 18/04/1994, he recorded the complaint as per say of the complainant and thereafter he proceeded to hold trap and he carried out the entire trap with other police officials and thereafter he carried out the investigation and thereafter he filed the charge sheet. 21. On overall evaluation of aforesaid evidence on record, it appears that the evidence of the complainant as recorded by the learned Special Judge is not credit-worthy and the same is not believable as at the time of lodging the complaint, he, inter alia, alleged that the accused demanded Rs. 1,500/- for getting allotment of plot in the name of his step father whereas during the course of examination in chief, he has deposed that the accused demanded Rs. 500/- as the amount of illegal gratification for obtaining death certificate of his step father. Consequently, therefore, version of complaint itself got changed during the course of recording his evidence. 1,500/- for getting allotment of plot in the name of his step father whereas during the course of examination in chief, he has deposed that the accused demanded Rs. 500/- as the amount of illegal gratification for obtaining death certificate of his step father. Consequently, therefore, version of complaint itself got changed during the course of recording his evidence. On perusal of his entire evidence on record, it is not at all consistent with the complaint. On the contrary, new facts are brought on record in examination in chief though he was not declared hostile. However, in the cross examination carried out by the learned advocate for the accused, he has clearly admitted that neither the accused demanded any amount of illegal gratification from him nor he previously paid to the accused any installments of Rs. 500/- each. Consequently, therefore, as regards to handing over twice an amount of illegal gratification by him to the accused is not getting support from his version. Similarly as regards to instant demand also, he has not deposed anything. Consequently, therefore, so far as establishment of vital ingredients such as demand and acceptance is concerned, his evidence is not at all helpful to the prosecution. 22. Even otherwise also as noted above, the version of complaint itself had been changed during the course of his oral deposition before the trial court wherein he has deposed that the amount of illegal gratification came to be demanded for obtaining death certificate of his step father whereas in the complaint, the complainant stated that for getting allotment of free plot in the name of his step father, the accused demanded Rs. 1,500/-. However, nowhere in the record, such an application is brought on record. Nothing is available on record to indicate as to whether the complainant had applied for getting free plot in the name of his step father from the accused. Consequently, therefore, reason for lodging the complaint itself is not brought on record by the prosecution. On that count also, evidence of the complainant falls on the ground. 23. The evidence of panchas is required to corroborate the evidence of the complainant. However, as noted above, the complainant himself has not stated before the court as regard to demand and acceptance. On that count also, evidence of the complainant falls on the ground. 23. The evidence of panchas is required to corroborate the evidence of the complainant. However, as noted above, the complainant himself has not stated before the court as regard to demand and acceptance. Consequently, therefore, even though the shadow witness has deposed that in his presence, the complainant handed over the amount of tainted currency note to the accused, the same renders meaningless as in absence of clear conversation between the accused and the complainant, it is very difficult to establish the vital ingredients such as demand and acceptance. 24. Even otherwise also, as noted by the learned Special Judge in its judgment, more particularly in para-14 of the judgment that the credibility of the complainant's evidence is not free from doubt as he is habitual of being panch and he turned hostile in almost all cases which are not less than 20 cases. The documentary evidence at Exh. 23 to 41 clearly established the aforesaid fact. 25. Moreover, one disturbing feature is emerging out from the evidence available on record. Mr. J.I. Patel, Police Inspector has assumed all roles right from the stage of recording complaint, arranging trap as well as members of raiding party, carrying out investigation till filing of charge sheet. This course of action go against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of prosecution becomes suspicious on this count only. In the present facts of the case, the status of investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decision of the Hon'ble Apex Court in the case of "Bhagwan Singh v. State of Rajasthan", reported in AIR 1976 SC 985 , followed by this Court in the case of "Kanubhai Kantibhai Patel v. State of Gujarat" reported in 1998 (1) GLH 924 . Therefore, in this case, the prosecution case suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly the whole proceedings based on such investigation deserves to be quashed and set aside on this count only. 26. Therefore, in this case, the prosecution case suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly the whole proceedings based on such investigation deserves to be quashed and set aside on this count only. 26. 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. 27. 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.