Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 214 (GUJ)

Ratilal Vitthaldas Bhavsar v. State of Gujarat

2017-01-27

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant has preferred the present Appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 19.02.2002, rendered by learned Special Judge, Court No. 2, Ahmedabad, in Special Case No. 08 of 1997, wherein the appellant was ordered to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,500/-, in default, to undergo one month simple imprisonment for the offence punishable under Section 7 of the Prevention of Corruption Act and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 3,000/-, in default, to undergo two months simple imprisonment for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. 2. The short facts giving rise to the present Appeal are that complainant Nareshkumar Harmanbhai Brahmbhatt was serving as a Head Constable. He was convicted for the offences punishable under the Prevention of Corruption Act. The conviction was confirmed by the High Court, ultimately he approached the Hon'ble Supreme Court by preferring S.L.P., in which the Hon'ble Supreme Court acquitted him. Thereafter, the complainant was re-instated as a Head Constable with Special Branch of Police Commissioner at Ahmedabad, he was entitled to recover back-wages and also legal dues/amount of LTC for the block 1984 - 1987 and 1988 - 1991. The complainant had already taken his back-wages for the period during which he was under suspension and thereafter, as he was convicted, he was dismissed from the service. For the purpose of getting amount of LTC, the complainant made necessary application on 21.03.1996 and also approached the present accused. In due process of the said application, it was found that the complainant had not supplied the options and therefore, on 30.03.1996, the complainant supplied options in the office. Thereafter, the complainant approached the accused on 08.04.1996 who was discharging his duty as Office Superintendent with the Office of Police Commissioner. In order to clear the LTC dues, the accused demanded the amount of Rs. 1,000/- as an illegal gratification from the complainant. After due deliberations, the accused agreed to accept Rs. 500/-. The complainant was directed by the accused to meet him on 12.04.1996 before noon. In order to clear the LTC dues, the accused demanded the amount of Rs. 1,000/- as an illegal gratification from the complainant. After due deliberations, the accused agreed to accept Rs. 500/-. The complainant was directed by the accused to meet him on 12.04.1996 before noon. As the complainant did not desire to give any amount to the accused, the complainant approached the ACB office and lodged the complaint on 11.04.1996. After following necessary formalities in respect of trap, the trap was conducted. The accused was caught red-handed while accepting the amount towards illegal gratification. Hence, the complaint came to be lodged against the appellant accused for the offence punishable under Sections 7, 13 (1) (d) (I) (ii) (iii) read with Section 13(2) of the Prevention of Corruption Act. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused person. 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 four witnesses and also produced several 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, Mr. K.B. Aanandjiwala, learned senior advocate assisted by Mr. Vishal Anandjiwala, learned advocate for the present appellant-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 the 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. Mr. K.B. Aanandjiwala, learned senior advocate for the preset appellant-accused has taken this Court to the entire evidence on record, more particularly, P.W. Nos. No. 1, 2 and 3 whose evidences are very crucial so far as the establishment of demand, acceptance and recovery is concerned. 6. Mr. K.B. Aanandjiwala, learned senior advocate for the preset appellant-accused has taken this Court to the entire evidence on record, more particularly, P.W. Nos. No. 1, 2 and 3 whose evidences are very crucial so far as the establishment of demand, acceptance and recovery is concerned. He has argued that the complainant himself has not deposed anything as regard to instant demand at the time of trap and the same is also not even revealing from the evidence of the panch No. 1 who was accompanied with the complainant at the time of trap. Therefore, the vital ingredients as regard to the demand and acceptance are not proved. Therefore, the recovery renders meaningless in absence of demand. He has further argued that in view of the deposition of the complainant, the recovery came to be effected through panch No. 2 during the course of trap and tainted currency notes were recovered thereafter from the personal search of the accused. However the fact disclosing otherwise from the contemporaneous record in a nature of panchnama as well as the deposition of Investigating Officer. Therefore, from the oral evidence of the complainant, the recovery itself has become doubtful as he is saying that the recovery came to be effected through the panch No. 2 which is not getting support and corroboration from the pancha's evidence as well as the Investigating Officer and contemporaneous record as a panchnama. 7. On the other hand, Mr. K.P. Raval, learned APP 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. He has further argued that the vital ingredients as regard to 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 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. He 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. He has further argued that when the recovery came to be effected from the body of the accused, the test of anthracene powder was also found to be positive on the body of the accused, the oral evidence of the complainant could not be weighted in such a manner that the recovery is defective as such. Therefore, this Court may not disturb the finding recorded by learned trial Court, as such. 8. This Court has heard Mr. K.B. Aanandjiwala, learned senior advocate for the appellant and Mr. K.P. Raval, learned APP for the respondent State. 9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. 10. 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. 11. 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. 12. 12. In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayraj, AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is 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. 13. 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. 14. Keeping in mind the principal laid down by the Supreme Court in the aforesaid series of decisions in light of the rival submissions 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 the vital ingredients of demand, acceptance and recovery of illegal gratification of Rs. 500/- or not. 15. P.W. No. 1 - Nareshkumar Harmanbhai Brahmbhatt has been examined vide Exhibit 19. 500/- or not. 15. P.W. No. 1 - Nareshkumar Harmanbhai Brahmbhatt has been examined vide Exhibit 19. He has deposed that he was serving as a Head Constable in the office of the Commissioner of Police. A case under the provision of ACB was registered against him in the year 1984. He was convicted by the trial Court, which was confirmed by the High Court and ultimately, in the year 1995, he was acquitted by the Supreme Court and therefore, he was re-instated with effect from 25.04.1995 in Special Branch in the office of Commissioner of Police. Thereafter, he applied for getting encashment of LTC for the block period of 1984-1987 and 1988-1991. He approached the accused who assured for tendering the affirmative information but he asked to understand something and asked to pay Rs. 1,000/-, as he showed his inability to pay that much amount, it was reduced to Rs. 500/- and thereafter, as he was not willing to pay bribe, he lodged the complaint before the ACB. In pursuance of his complaint, the ACB Officials arranged the trap in presence of the panchas. On 12.04.1996, he visited the office of the accused along with panch No. 1 and stayed for about 10 minutes in his office, at that time the accused was busy with his work. As the accused finished his work, he initiated some general talk to the accused. At that time, the accused asked him as to when he would give money and if he has brought it, he may give him. Thereafter, he took out tainted currency notes from his pocket and delivered to the accused. The accused accepted the same and placed in his pocket. Thereafter, he gave pre-arranged signal and on receiving the said signal, the members of raiding party arrived there. The personal search of the accused was carried out through the panch No. 2 and the currency notes were recovered from the accused through the panch No. 2. However, he denied that the personal search was made through the panch No. 1. He stuck to his version that the personal search was made through the panch No. 2. However, he admitted in the cross examination that at the time of trap, he stayed for about ten minutes in the office of the accused and there was a conversation regarding the recruitment. He stuck to his version that the personal search was made through the panch No. 2. However, he admitted in the cross examination that at the time of trap, he stayed for about ten minutes in the office of the accused and there was a conversation regarding the recruitment. He has also admitted that he had not stated in the statement dated 15th that the accused told him that ''you have still not paid money and when are you going to pay money and if you have brought money, then give it to him.'' 16. P.W. No. 2 - Ashwinkumar Devendraprasad Pandya has been examined vide exhibit 31. He has deposed that he was requisitioned as an official panch and at the relevant time, he was serving as a junior clerk in the office of the District Panchayat, Ahmedabad. On 12.04.1996, he was called at the ACB Office. He was made to understand as to how the trap is to be conducted and he was directed to view and hear the conversation which may take place between the complainant and the accused. He accompanied the complainant at the time of trap. He has deposed that at the time of trap, they alighted from the vehicle at petrol pump situated nearby the office of Police Commissioner and thereafter, he went to the office of the Commissioner of Police along with the complainant. After reaching there, they went to the Chamber of the accused and sat in front of the accused. He stayed there for about ten minutes. The accused was working in his office. Thereafter, the complainant asked about his work. At that time, the accused replied that his work regarding encashment of LTC would be finished. At that time, the complainant took out tainted currency notes from his pocket and handed over to the accused. Thereafter, the complainant went outside the chamber and raised the prearranged signal. On receiving the said signal, the members of raiding party arrived there and personal search of the accused was carried out through him and the currency notes were found from the body of the accused. The numbers of the currency notes found from the body of the accused were also tallied with the numbers written in the preliminary panchnama. On receiving the said signal, the members of raiding party arrived there and personal search of the accused was carried out through him and the currency notes were found from the body of the accused. The numbers of the currency notes found from the body of the accused were also tallied with the numbers written in the preliminary panchnama. He has admitted in the cross examination that they sat in the office of the accused for about ten minutes, meanwhile the accused did not pay attention towards him and therefore, the complainant started talking to him. He also admitted in the cross examination that during the above period, the accused did not state that "You have not paid amount till date, then when would you give". He is in need of the same, if brought, the same may be given to him. 17. P.W. No. 3 - Ramsinh Balusinh Chauhan has been examined vide Exhibit 34. He has deposed that on 11.04.1996, he was serving as a Police Inspector, A.C.B., Ahmedabad City. He recorded the complaint. He called the official panchas as well as arranged the trap and conducted the trap accordingly. The trap was carried in the chamber of the accused. He identified the accused. He has admitted in the cross examination that the personal search of the accused was effected through the panch No. 1 and no test of anthracene powder was carried out over the pocket of the accused. 18. P.W. No. 4 - Mr. Kirankumar Manubhai Rathod has been examined vide exhibit 41. He has deposed that he was serving as a Police Inspector, A.C.B. Police Station, Ahmedabad City at the relevant time. He carried out the rest of the investigation. He further deposed that the complainant Naresh stated before him that the personal search of the accused was effected through the panch No. 1 and money was recovered from him and thereafter, the test of ultraviolet lamp was carried out over the pocket of the accused. He has admitted in his cross examination that the papers for claiming the encashment of LTC were sent by the complainant and that was processed on 08.04.1996 indicates further production of circular. 19. He has admitted in his cross examination that the papers for claiming the encashment of LTC were sent by the complainant and that was processed on 08.04.1996 indicates further production of circular. 19. On overall evaluation of the aforesaid evidence, neither the complainant nor the panch No. 1 who accompanied at the time of trap had deposed before the Court that while they visited in the chamber of the accused on 12.04.1996, the accused had demanded any amount. None of the aforesaid both the witnesses has deposed that there was any utterance as regard to the demand of illegal gratification. On the contrary, from their evidence, it is emerged that the complainant voluntarily thrusted money into the pocket of the accused without any demand from him. In that view of the matter, neither the complainant nor the panch No. 1 has deposed that there was any instant demand at the time of trap from the accused to the complainant. The prosecution relied upon the evidence of the complaint, wherein the pre-demand is alleged to have been raised on 08.04.1996. So far as the pre-demand is concerned, that was in between the complainant and the ACB officials, who wrote the official complaint and therefore, except the bare word narrated before the ACB Officials, there appears no support or corroboration so far as pre-demand is concerned. So, by raising presumption, solely based upon pre-demand in the case of such recovery came to be effected from the accused to the effect that it must have been accepted by him pursuant to the pre-demand would be hazardous and risky presumption in absence of any support from the evidence of the complainant as well as even panch No. 1. Such sort of presumption raised by the learned Special Judge cannot be termed to be a legal evidence while dealing with the evidence of establishment of demand in the case of bribery. As narrated above, the prosecution miserably failed to establish the vital ingredients as laid down in the aforesaid decisions rendered by the Hon'ble Supreme Court. Not only that, but the prosecution also miserably failed even to establish conclusively that the recovery was effected through the panch No. 1 who recovered the tainted currency notes from the body of the accused. As narrated above, the prosecution miserably failed to establish the vital ingredients as laid down in the aforesaid decisions rendered by the Hon'ble Supreme Court. Not only that, but the prosecution also miserably failed even to establish conclusively that the recovery was effected through the panch No. 1 who recovered the tainted currency notes from the body of the accused. As per the testimony of the complainant, the recovery came to be effected through the panch No. 2 and not through the panch No. 1. Therefore, there appears material contradiction so far as the oral evidence of the complainant, panchas as well as the Investigating Officer as regard to recovery of the tainted currency notes from the complainant is concerned. There appears no uniformity in the evidence as regard to the recovery effected from the accused. In that view of the matter, the prosecution miserably failed conclusively as to who has made the recovery thereof. The prosecution miserably failed to establish the vital ingredients as regard to the demand, acceptance and recovery. 20. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 19.02.2002, rendered by learned Special Judge, Court No. 2, Ahmedabad, in Special Case No. 08 of 1997 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. Appeal Allowed.