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2017 DIGILAW 1077 (GUJ)

Maheshbhai Chhaganbhai Patel v. State of Gujarat

2017-06-13

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The present Criminal Appeal is preferred by appellant - original accused against the judgment and order dated 7.3.2005 passed by learned Special Judge, Kheda at Nadiad in Special (ACB) Case No. 7 of 2000 whereby the original accused - appellant herein was convicted for the offence under section 7 of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs. 500/-, in default, to undergo rigorous imprisonment for three months and also convicted her for the offence under section 13(2) of the said Act and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default, to undergo rigorous imprisonment for three months. 2. The short facts giving rise to the present appeal are that the complainant was carrying on his business of pesticides and fertilizers in the name and style of Shreeji Agro Industries and he was also licensed till 31.12.1999. It is alleged that as the license was expiring, the complainant met to the accused who was at the relevant time, serving as Agriculture Inspector at Mater for getting renewal of license as well as for getting change in the license as Shreeji Agro Chemicals. At that time, the accused asked the complainant that for getting change of the name, no renewal of license can be accorded and for change of the name, the new license was required to be asked for and it is alleged that for which, the accused demanded Rs. 1300/- as the amount of illegal gratification from the complainant. As the complainant was not willing to pay the said amount of bribe, he lodged the complaint on 1.1.2000. The trap was laid on 3.1.2000 and during the course of trap, the accused was caught red handed along with tainted currency notes and, thereby, the accused committed the offence, as alleged. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the original accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 4. In order to bring home the guilt, the prosecution has examined the witnesses and also produced documentary evidences. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the original accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 4. In order to bring home the guilt, the prosecution has examined the witnesses and also produced documentary evidences. 4.1 At the end of the trial, after recording the statement of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 5. Being aggrieved by the same, the appellant - original accused has preferred the aforesaid Criminal Appeal before this Court. 6. By way of preferring the present appeal, the appellant - original accused 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. 7. Mr. Vijay Patel, learned advocate for the appellant - original accused has taken this Court through the entire Record and Proceedings, more particularly, relied upon the evidence of the complainant as well as shadow witness and argued that there is no uniformity in the evidence of the complainant and shadow witness and even the accused was not competent for renewal of license as well as for granting any license and he has been wrongly implicated as in previous criminal case, the complainant was also prosecuted and because of this enmity, the accused has been wrongly roped in. He has argued that the prosecution has not proved the vital ingredients i.e. demand, acceptance and recovery beyond reasonable doubt and the entire case put up by the prosecution is not out of doubt and, therefore, this Court may give the benefit of doubt in favour of the appellant accused. He submitted that learned trial Judge has not properly appreciated the evidence on record and wrongly recorded the finding and convicted the appellant accused as such. Lastly, Mr. He submitted that learned trial Judge has not properly appreciated the evidence on record and wrongly recorded the finding and convicted the appellant accused as such. Lastly, Mr. Patel submitted that the impugned judgment and order of conviction is required to be quashed and set aside. 7.1 Alternatively, Mr. Patel, learned advocate for the appellant - accused has submitted that if this Court may come to the conclusion upholding the conviction recorded by learned trial Court, in that event, this Court may consider the fact that the trap was laid for about 17 years back and during the interregnum period, the accused has suffered a lot by way of facing departmental proceedings and that he is aged about 62 years and taking into consideration all these aspects, the Court may reduce the sentence from three years to one year which is the minimum sentence prescribed under the law. 8. On the other-hand, Mr. L.R. Pujari, learned APP has supported the judgment rendered by learned trial Court. He submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused which calls for no interference. He further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court may dismiss the appeal filed by the original accused. He, therefore, submitted that this Court may not interfere with the impugned judgment and order of conviction in view of the cogent and clinching evidence on record. 9. This Court has heard Mr. Vijay Patel, learned advocate for the appellant - original accused and Mr. Pujari, learned APP for the State. 10. 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. 11. As per the prosecution version, as stated above, the complainant was carrying on his business of pesticides and fertilizers in the name and style of Shreeji Agro Industries and he was also licensed till 31.12.1999. 11. As per the prosecution version, as stated above, the complainant was carrying on his business of pesticides and fertilizers in the name and style of Shreeji Agro Industries and he was also licensed till 31.12.1999. It is alleged that as the license was expiring, the complainant met to the accused who was at the relevant time, serving as Agriculture Inspector at Mater for getting renewal of license as well as for getting change in the license as Shreeji Agro Chemicals. At that time, the accused asked the complainant that for getting change of the name, no renewal of license can be accorded and for change of the name, the new license was required to be asked for and it is alleged that for which, the accused demanded Rs. 1300/- as the amount of illegal gratification from the complainant. As the complainant was not willing to pay the said amount of bribe, he lodged the complaint on 1.1.2000. The trap was laid on 3.1.2000 and during the course of trap, the accused was caught red handed along with tainted currency notes and, thereby, the accused committed the offence, as alleged. 12. PW 1 - Kanubhai Dahyabhai Patel has been examined at Exh. 13. The witness has deposed that since 1999, he was running his business in the name and style of Shreeji Agro Industries and for getting renewal of the license, he met to the accused along with renewal application. The witness has stated that as there was interpolation in the name of his license, the accused told him that change of name is not permissible in the renewal and he was directed to apply for new license. The witness has stated that for which, the accused demanded Rs. 1300/- as the amount of illegal gratification and that he was also handed over four copies of chalan for the fees for getting new license. The witness has stated that he was directed to report along with the payment of fees as well as Rs. 1300/- the amount of illegal gratification. 1300/- as the amount of illegal gratification and that he was also handed over four copies of chalan for the fees for getting new license. The witness has stated that he was directed to report along with the payment of fees as well as Rs. 1300/- the amount of illegal gratification. The witness has stated that in pursuance of his complaint, the trap was laid and on the day of trap, he was accompanied along with the panch Bhavsar and when they reached to the office of the accused, the accused was not found and thereafter about 15 minutes later, he arrived and on his arrival, there was some initial talk regarding renewal of license, at that time, the accused asked for the money as previously agreed. The witness has stated that at that time, he also asked for scaling down the amount and he ultimately handed over Rs. 1200/- to the accused and kept Rs. 100/- in his pocket. The witness has stated that the said amount of Rs. 1200/- has been accepted and put the same in purse and thereafter in the pocket of the shirt after counting it by the accused. The witness has stated that thereafter he handed over the application for getting renewal of license. The witness has stated that thereafter he have prearranged signal and hence, the members of the raiding party arrived there and thereafter search and seizure was carried out during which period, the test of ultra violate lamp was found positive so far as the purse, pocket of the shirt and the person of the accused are concerned. In the cross examination, nothing worth has come out except panch name was narrated to be Bhavsar. In fact, he was Mr. Shah. One another thing is also coming out that in the year 1996, the license of the complainant was cancelled on the count of black-marketing and that the witness has also admitted that the accused was not the competent authority for renewal as well as for issuance of new license, but the Assistant Director, Nadiad was the competent authority. 13. PW 2 - Rajendra kantilal Shah has been examined at Exh. 19. The witness has deposed that he was serving as Clerk in the office of the District Panchayat, Education Department and he was requisitioned as official panch. 13. PW 2 - Rajendra kantilal Shah has been examined at Exh. 19. The witness has deposed that he was serving as Clerk in the office of the District Panchayat, Education Department and he was requisitioned as official panch. The witness has deposed that he has performed his duty as a panch and he was accompanied with the complainant at the time of trap. At the time of trap, when they reached to the office of the accused, at that time, the brother of the complainant handed over the copies of chalan and thereafter they reported to the office of the accused, at that time, after sometime, the accused arrived there and asked the complainant as to whether he has brought the money as previously agreed. The witness has stated that thereafter negotiation took place for scaling down the amount and ultimately, the complainant handed over Rs. 1200/- to the accused which he accepted and put into purse after counting the amount. The witness has stated that thereafter the accused checked the application as well as chalan and thereafter the complainant gave prearranged signal and hence, other members of the raiding party arrived there, search and seizure took place in his presence and that the test of ultra violate lamp was found positive on the person of the accused. In the cross examination of this witness, nothing worth has come out. 14. PW 3 - Bharatsinh Mangalsinh Jadeja - Investigating Officer has been examined at Exh. 28. The witness has deposed that he was serving as Police Inspector, ACB at the relevant time and that he recorded the complaint as per the details given by the complainant. The witness has deposed in detail as regards as to how he has carried out the trap. Nothing worth has come out in the cross examination of this witness. 15. DW 1 - Kiritbhai Arvindbhai Patel has been examined at Exh. 50. The witness has deposed that he is having the shop nearby the shop of the complainant and the accused used to call the complainant in his office. The witness has deposed that on 3.1.2000, the accused called the complainant in between 12.00 and 1.00 noon. 16. 15. DW 1 - Kiritbhai Arvindbhai Patel has been examined at Exh. 50. The witness has deposed that he is having the shop nearby the shop of the complainant and the accused used to call the complainant in his office. The witness has deposed that on 3.1.2000, the accused called the complainant in between 12.00 and 1.00 noon. 16. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair v. 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. 17. In State of Kerala and another v. C.P. Rao (2011) 6 SCC 450 : (AIR 2012 SC (Supp) 393), the Honourable 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. 18. 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 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. 19. 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. 20. In the backdrop of the aforesaid factual as well as legal position, this Court has minutely gone through the impugned judgment and order as well as the depositions of the witnesses in light of the rival submissions made by learned advocates for both the sides. 21. In corruption cases, as laid down in the series of judgments by the Honourable Apex Court as well as by this Court, three vital ingredients are required to be established by the prosecution beyond reasonable doubt in order to prove the offence as alleged. In the present case, this Court has gone through the evidence on record. So far as establishment of vital ingredients i.e. demand and acceptance are concerned, the evidence of both the witnesses i.e. complainant and shadow witness is in confirmative with each other and vital ingredients i.e. demand and acceptance are established beyond reasonable doubt. 22. The contention raised by Mr. Patel, learned advocate for the appellant - accused regarding hostile relation, due to which the accused has been wrongly roped in the offence as such is simply not acceptable as per the say of the accused. 22. The contention raised by Mr. Patel, learned advocate for the appellant - accused regarding hostile relation, due to which the accused has been wrongly roped in the offence as such is simply not acceptable as per the say of the accused. The application for new license can be directly addressed to the Assistant Director, Nadiad though the complainant himself chosen through the present appellant accused and that he could not have chosen as such, if there was animosity between the complainant and accused as contended by learned advocate for the appellant. 23. As stated above, this Court has minutely examined the evidence of the witnesses and the evidence of the witnesses has been read over in the presence of learned advocates for the parties and on overall analysis of their evidence, it leaves no manner of doubt of constituting vital ingredients as regards to demand, acceptance and recovery. The evidence of the complainant is getting corroboration from the evidence of the shadow panch and that test of ultra violate lamp was also found positive so far as the person of the accused is concerned. Therefore, the evidence on record is clearly establishing the demand, acceptance and recovery thereof. 24. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in convicting the appellant - original accused. This Court finds that the findings recorded by learned 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 conviction recorded by learned court below and hence finds no reasons to interfere with the same. However, this Court deems it proper to reduce the sentence imposed upon the appellant - accused from three years to one year considering the submissions made by learned advocate for the appellant - accused as well as the peculiar facts of the present case that the trap was laid for about 17 years back and during the interregnum period, the accused has suffered a lot by way of facing departmental proceedings and that he is aged about 62 years. 25. In view of the above discussion, the following final order is passed. Criminal Appeal No. 440 of 2005 filed by appellant accused is partly allowed. 25. In view of the above discussion, the following final order is passed. Criminal Appeal No. 440 of 2005 filed by appellant accused is partly allowed. The impugned judgment and order dated 7.3.2005 passed by learned Special Judge, Kheda at Nadiad in Special (ACB) Case No. 7 of 2000 is modified to the extent that instead of undergoing rigorous imprisonment for three years for the offence under section 7 of the Prevention of Corruption Act, the appellant accused shall undergo the sentence of rigorous imprisonment for one year. Rest of the impugned judgment is not disturbed. Appellant accused - Maheshbhai Chhaganbhai Patel is ordered to surrender to custody within a period of twelve weeks from today for undergoing the remainder sentence, if he has not undergone so far, failing which the investigating agency shall be at liberty to take necessary action in accordance with law. The impugned judgment and order stands modified accordingly. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.