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2017 DIGILAW 31 (GUJ)

State of Gujarat v. Chandrakant Gaurishankar Dave

2017-01-10

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant has preferred the present appeal under section 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 16.10.1991, rendered by learned Special Judge, Rajkot in Special Criminal Case No. 07 of 1987, whereby the accused have been acquitted from commission of the offences under Sections 161, 165-A of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, 1947 (for short "the Act"). 2. During pendency of this Appeal, as the original accused No. 1 Chandrakant Gaurishankar Dave expired on 25th April, 2003, Appeal stood abated against him vide order dated 22.12.2005. In view of the aforesaid position, the acquittal Appeal remains against only the original accused No. 2 - Kishor Bhavanbhai Parmar who came to be charged under Section 165-A of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, 1947. 3. The short facts giving rise to the present appeal are that at the relevant time, the accused No. 1 Chandrakant Gaurishankar Dave was serving as a House Tax Recovery Sub Inspector in Rajkot Municipal Corporation and the accused No. 2 Kishor Bhavanbhai Parmar was serving as a piece worker on daily wage basis in Rajkot Municipal Corporation. They both demanded the amount of Rs. 150/- from the brother of the complainant as illegal gratification on 06.07.1987 for reducing the house tax assessment. Since the complainant did not desire to give any amount to the present appellant-accused, the complainant approached the ACB office. After the complainant lodged the complaint, necessary formalities in respect of trap were carried out at ACB Office and the trap was arranged. The present accused were caught red handed while accepting bribe. Hence, the complaint came to be lodged against the appellants-accused for the offence punishable under Sections 161, 165-A of the Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act, 1947. 4. 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. 4.1 In order to bring home the guilt, the prosecution has examined three witnesses and also produced several documentary evidences. 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. 4.1 In order to bring home the guilt, the prosecution has examined three witnesses and also produced several documentary evidences. 4.2 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. 5. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 6. This Court has heard Mrs. Hansaben Punani, learned APP for the State and Mr. Krunal L. Shahi, learned advocate for the appellant. 7. By way of preferring the present appeal, the appellant State has contended that the accused persons raised pre-demand and therefore, they could have been convicted as such. It is mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. 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 acquittal is required to be reversed, as such. 8. Mr. Krunal L. Shahi, learned advocate for the respondent has further argued that the learned Judge has assigned ample reasons for recording acquittal and the present respondent was charged as alleged to have been associated at the time of pre-demand raised by him before the brother of the complainant namely Ramesh who has not been examined by the prosecution, therefore there is no iota of evidence available against the present respondent-accused and therefore, the judgment of acquittal recorded by the learned Special Judge calls for no interference. He has further argued that as per the prosecution evidence, the involvement of the present respondent-accused came to be revealed during the course of pre-demand of Rs. 150/- as an illegal gratification for reducing the assessment came to be raised in presence of the present appellant accused before the brother of the complainant - Ramesh. He has further argued that as per the prosecution evidence, the involvement of the present respondent-accused came to be revealed during the course of pre-demand of Rs. 150/- as an illegal gratification for reducing the assessment came to be raised in presence of the present appellant accused before the brother of the complainant - Ramesh. But during the course of trap, neither the presence of the present respondent-accused was found nor he has made any demand nor he is found accepting the illegal gratification. Therefore, nothing reveals against the respondent accused and so far as deciding the present Appeal, the evidence of the complainant is only relevant and his evidence is also hear-say. He has further argued that the brother of the complainant - Ramesh before whom pre-demand alleged to have been raised is not examined, therefore, he has urged that the judgment delivered by the learned trial Judge may be confirmed. He has also supported the judgment rendered by the learned Special Judge. He has further stated that the learned Trial Court has not committed any error in relying upon the evidence and the learned Trial Court has rightly recorded findings which are based upon the material evidence and this Court should not interfere with the findings recorded by the learned Special Judge. He has further urged that this Court should not disturb the findings recorded by the learned Special Judge. 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. 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 reverse the judgment and order passed by the learned trial Court. 11. Keeping in mind the principle 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. 150/-or not. 12. The evidence of P.W. No. 1 - Chhaganbhai Aambabhai Patel is merely decisive in deciding the present Appeal. He has been examined vide Exhibit 20. 150/-or not. 12. The evidence of P.W. No. 1 - Chhaganbhai Aambabhai Patel is merely decisive in deciding the present Appeal. He has been examined vide Exhibit 20. He has deposed that he is a resident of Village Subhashnagar Kothariya Main Road, Rajkot and resides with his parents and brother. He has further deposed that the present accused as well as the accused who expired came to his house on 06.01.1987 for carrying out house tax assessment. At that time, the accused demanded Rs. 300/- as illegal gratification which came to be reduced to Rs. 150/-. As he was not willing to pay the amount of bribe, he approached the ACB Office and lodged the complaint and the trap was conducted accordingly. During the course of trap, the respondent - Chandrakant Gaurishankar Dave demanded Rs. 150/- and accepted the same from him and was caught red-handed. In his cross examination, more particularly in para - 43, he has accepted that by way of hear-say conversation, he came to know the name of the present respondent and one another person - Mr. Anik Pandya. 13. The FIR came to be lodged on 07.01.1987. It is clearly mentioned therein that on 06.01.1987, he was at his factory. When he came to his house in noon for lunch, his brother - Ramesh informed him that some officers of Municipal Corporation came to home for carrying out house tax assessment and they have also measured the house and thereafter, they were internally talking amongst them and during their conversation, he came to know the names of them as Mr. Parmar, Mr. Dave and Mr. Anik Kadiya. At that time, the brother of the complainant called them at his house for assessment of his house and thereafter, the brother of the complainant asked them as to what procedure he has to follow for it, then Mr. Parmar described the procedure of assessment and demanded Rs. 300/- as illegal gratification from the brother of the complainant. 14. On overall analysis of the aforesaid complaint at Exhibit 21 itself as well as the observations made by the learned Special Judge while recording the acquittal judgment in light of the aforesaid material on record, the only thing which connects the present respondent accused with crime in question as regard to pre-demand came to be raised by him before Mr. Ramesh - brother of the complainant. 15. Ramesh - brother of the complainant. 15. Indisputably during the course of actual trap neither the presence of the respondent - accused nor overact on the part of the present respondent-accused is revealing. As per the prosecution version, the demand was raised by deceased Chandrakant Gaurishankar Dave at the time of actual trap and the amount of illegal gratification was also received by him and the same was also recovered from him. In view of the aforesaid undisputed fact, so far as the involvement of the present respondent-accused is concerned during the course of raising pre-demand, the same is revealing and that too the fact gets revealed from the mouth of Ramesh Aambalal who is brother of the complainant, but the prosecution has not examined him as a witness, therefore, even if whatever version might have deposed by the complainant Chhaganbhai Aambalal during the course of trial becomes hearsay evidence. As per the prosecution case itself, there was no pre-demand from the said complainant Chhaganbhai Ambalal, therefore there is no iota of the evidence available against the present respondent - accused so far as the offence alleged to have been committed by him is concerned. In consequence whereof, the learned Special Judge has rightly acquitted the accused which calls for no interference. 16. In view of the above, this Court is in agreement with the view taken by the lower Court. Moreover, learned Public Prosecutor is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence while acquitting the accused. Under the circumstances, this Court is of the considered opinion that the Court below has not committed any error in acquitting the respondent-accused of the charges leveled against him and, therefore, this Court finds no reason to entertain this appeal. 17. For the foregoing reasons, the Criminal Appeal is dismissed. The impugned judgment and order dated 16th October, 1991 passed by the learned Special Judge, Rajkot in Special Criminal Case No. 7 of 1987 acquitting the accused from the charge, as alleged, is hereby confirmed. Bail bond, if any, stands canceled. Registry to return the R&P to the concerned trial Court forthwith. Appeal Dismissed.