Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 336 (GUJ)

Amrutaben Deshajibhai Parmar v. State of Gujarat

2017-02-09

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. Both these appeals arise out of the same incident and involve common questions of law and facts and hence, they are being decided by this common judgment. 2. Criminal Appeal No. 1085 of 2005 is preferred by appellant - Amrutaben Deshajibhai Parmar - original accused against the judgment and order dated 7.5.2005 passed by learned Additional Sessions Judge and 6th Fast Track Court, Rajkot in Special ACB Sessions Case No. 14 of 2000 whereby original accused - appellant herein was convicted for the offence under section 7 of the Prevention of Corruption Act and sentenced her to undergo simple imprisonment for six months and to pay fine of Rs. 500/-, in default, to undergo further simple imprisonment for one month and also convicted her for the offence under section 13(1)(d) read with section 13(2) of the said Act and sentenced her to undergo simple imprisonment for one year and to pay fine of Rs. 1000/-, in default, to undergo further simple imprisonment for two months. Whereas, Criminal Appeal No. 2341 of 2005 has been preferred by the appellant - State of Gujarat for enhancement of the sentence awarded to the original accused herein. 3. The short facts giving rise to the present appeal are that alleged incident has taken place on 14.3.2000 in the compound of Zanana Hospital, Rajkot. It is alleged that at the relevant time, the original accused was serving as Female Health Supervisor, Primary Health Center, Khoda Pipar, District Rajkot and complainant - Chandulal Rughnathbhai Trivedi was serving as Multipurpose Health Worker at Mavadi Primary Health Center. It is alleged that the complainant has given the application for voluntary retirement on 12.11.1999 to the District Malaria Officer, District Panchayat, Rajkot which came to be granted vide order dated 1.2.2000 and the complainant was ordered to be retired with effect from 31.3.2000. It is alleged that the Chief District Health Officer, District Panchayat, Rajkot issued the show cause notice dated 8.3.2000 to the complainant for negligence and misconduct which was received by him on 10.3.2000. It is alleged that the complainant had dispute with Dr. G.P. Savaliya, Ayurvedic Medical Officer as Dr. Savaliya misbehaved and beaten the complainant and hence the complaint was filed by the complainant against Dr. Savaliya. It is alleged that therefore Dr. It is alleged that the complainant had dispute with Dr. G.P. Savaliya, Ayurvedic Medical Officer as Dr. Savaliya misbehaved and beaten the complainant and hence the complaint was filed by the complainant against Dr. Savaliya. It is alleged that therefore Dr. Savaliya made report against the complainant and hence the District Health Officer issued the show cause notice to the complainant regarding his misbehaviour with Dr. Savaliya. It is alleged that on 10.3.2000, the complainant had gone to Zanana Hospital, Rajkot where the original accused met him in the compound and told that she has good relation with Dr. Savaliya and if at all, the complainant does not want to spoil his pension, the complainant has to pay Rs. 5000/- to Dr. Savaliya and Dr. Savaliya will get it filed the show cause notice issued against the complainant. As the complainant was not willing to pay the amount of Rs. 5000/-, he approached the ACB office and lodged the complaint. 4. 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. 4.1 In order to bring home the guilt, the prosecution has examined the witnesses and also produced documentary evidences. 4.2 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 as well as the State have preferred the aforesaid Criminal Appeals 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. Whereas, the State has preferred the appeal for enhancement of sentence awarded by learned trial Judge. 7. Mr. Whereas, the State has preferred the appeal for enhancement of sentence awarded by learned trial Judge. 7. Mr. N.K. Majmudar, learned advocate for original accused has taken this Court through the evidence on record and argued that the prosecution miserably failed to prove vital ingredients as regards to demand, acceptance and recovery of bribe amount beyond reasonable doubt and hence, benefit of doubt is required to be extended to the appellant accused. He submitted that so far as the demand is concerned, nothing specifically spells out from the conversation took place between the accused and the complainant and the complainant voluntarily thrusted the money upon the hands of the accused and hence, it should not be believed to be demand in the eyes of law. He submitted that the trap was carried out at Zanana hospital and hence recovery of tainted currency notes at the ACB office should not be believed as such. He submitted that even if the evidence on record is evaluated in its true sense, then also, the evidence is not cogent and clinching to link the accused with the crime in question and that the accused has been wrongly implicated in the alleged offence because of previous enmity with Dr. Savaliya. He submitted that the show cause notice was issued by Dr. Ranvirsinh and not by Dr. Savaliya and therefore there was no reason to get it filed by paying illegal gratification to the accused, as such. Lastly, Mr. Majmudar submitted that the impugned judgment and order of conviction is required to be quashed and set aside. 8. On the other-hand, Mr. K.P. Rawal, 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 the original accused and enhance the sentence. 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 the original accused and enhance the sentence. He submitted that not only the vital factum as regards to demand, acceptance and recovery are being established from the examination-in-chief of the complainant, but on going through the cross examination of the complainant, the prosecution has also established the aforesaid aspect and therefore there leaves no manner of doubt as regards to establishment of vital ingredients as regards to demand, acceptance and recovery. He submitted that at the time of trap, there was camp for family planning operations was being organized by the State at Zanana hospital, due to which, crowd was there and therefore upon laying successful trap, second part of panchnama was carried out at the ACB office as it was not feasible at the place of trap to draw the second part of panchnama and the said fact has also been established in the cross examination of the complainant. He submitted that tainted currency notes were found from the hands of the accused at the place of trap and that fact has also been established in the cross examination of the complainant as well as Panch No. 1. He submitted that evidence of the complainant is sufficiently getting corroboration from the evidence of panch No. 1 as well as from the evidence of other members of raiding party. He, therefore, submitted that this Court may not interfere with the impugned judgment and order of conviction but on the contrary, this is a fit case wherein the sentence is required to be enhanced in view of the cogent and clinching evidence on record. 9. This Court has heard Mr. N.K. Majmudar, learned advocate for the appellant - original accused and Mr. Rawal, 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. 9. This Court has heard Mr. N.K. Majmudar, learned advocate for the appellant - original accused and Mr. Rawal, 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, the complainant was serving as Multipurpose Health Worker at Primary Health Center and at the relevant time, his voluntary resignation came to be accepted with effect from 31.3.2000 and hence, the papers for getting pension were being processed. It is the case of the prosecution that for inquiry of the said pension papers, the complainant went at Zanana hospital where the accused met him who was serving as Female Health Supervisor. It is alleged that the accused told the complainant that the complaint lodged by Dr. Savaliya against the complainant could be filed if he pays Rs. 5000/- as illegal gratification and during the course of trap, the accused was caught red handed along with tainted currency notes on 14.3.2000 at Zanana hospital and thereby the accused committed the offence as alleged against her. 12. PW 1 - Chandulal Rugnathbhai Trivedi has been examined at Exh. 30. The witness has deposed that he was serving at Mavdi which is in Primary Health Center, Kuvadava and that he has completed his service for about 31 years and therefore he tendered voluntary resignation which came to be accepted with effect from 31.3.2000. The witness has deposed that when he was on medical leave, at that time, he received the show cause notice for showing negligence as well as creating hindrance in carrying out Pulse Polio Programme. The witness has deposed that on 23.11.1999, he had altercation as well as scuffle with Dr. G.P. Savaliya during the aforesaid programme and therefore, he lodged the complaint before the police as well as he also made the complaint in the Civil Hospital, Rajkot. The witness has deposed that on 10.3.2000 when he inquired about his pension papers at Zanana Hospital, at that time, the appellant accused met him wherein she told that the complainant that she is having good relation with Dr. Savaliya and if he does not want to lose his pensionary benefits, he has to pay Rs. 5000/- for withdrawal of the show cause notice as well as the complaint made by Dr. Savaliya. Savaliya and if he does not want to lose his pensionary benefits, he has to pay Rs. 5000/- for withdrawal of the show cause notice as well as the complaint made by Dr. Savaliya. The witness has deposed that as he did not want to pay Rs. 5000/- towards illegal gratification, he approached the ACB office, Rajkot and lodged the complaint. The witness has deposed that thereafter the panchas were requisitioned and details as regards to laying of trap as well as currency notes were also obtained by the ACB official from him and thereafter he was made to understand as to how the trap is to be carried out as well as to how panch No. 1 would be accompanied with him and thereafter the trap was laid on 14.3.2000. The witness has deposed that he asked the accused, how are you? In turn, she replied, it is well and thereafter the witness talked with the accused regarding his pension papers and to file the show cause notice against him and hence, the accused demanded Rs. 5000/- and therefore the witness has taken out Rs. 5000/- from his pocket of his shirt and handed it over to the accused which was accepted by her. The witness has deposed that thereafter prearranged signal was raised and hence, the members of raiding party arrived there and recovered the tainted currency notes from the accused and thereafter the complainant, accused and the members of the raiding party went to the ACB office as the medical camp was going on in the said Zanana hospital. The witness has deposed that after the trap, test of ultra violate lamp was found to be positive so far as the person of the accused is concerned and thereafter detailed panchnama was carried out and seizure memo was issued wherein the signature of the complainant was obtained. In the cross examination, the witness has admitted that as Dr. Savaliya has complained against him, there was report against him for carrying out departmental proceedings and the show cause notice was also served upon him. The witness has admitted that he was apprehending that his pensionary benefits may be restrained due to the report made by Dr. Savaliya for which he received the show cause notice. Savaliya has complained against him, there was report against him for carrying out departmental proceedings and the show cause notice was also served upon him. The witness has admitted that he was apprehending that his pensionary benefits may be restrained due to the report made by Dr. Savaliya for which he received the show cause notice. It is also established that during the course of drawing preliminary panchnama, three panchas were called in his presence, test of anthracene powder as well as ultra violate lamp test were carried out and the signatures of the panchas were obtained over the complaint lodged by him. It is admitted that the witness reached along with panch No. 1 at the Zanana Hospital and for about 15 minutes later, the accused came at the said place. It is also established that as to how the trap was carried out and what was the conversation between the complainant and the accused and after the successful raid, second part of the panchnama was carried out. In the cross examination, it is also established that recovery came to be effected from the accused through the lady constable and that the Investigating Officer issued the seizure memo and during the entire procedure, three panchas were present all throughout. 13. PW 2 - Harshadbhai Ramjibhai Sisodiya has been examined at Exh. 38. The witness has deposed that he was serving as Junior Clerk in the office of Deputy Engineer, Rajkot and he was requisitioned as official panch. The witness has deposed that he was called on 13.3.2000 at the ACB office and at that time, one another panch Mukesh Tank was also present. The witness has deposed that the details as regards to trap were made to understand and, therefore, he reported on 14.3.2000 at 6.00 O'clock at the ACB office, at that time, panchas were present and they were introduced to each other. The witness has deposed that the contents of the complaint were explained to him and as to how the test of anthracene powder is to be carried out was also made to understand him. The witness has deposed that he was directed to remain althroughout with the complainant and to view and hear the conversation between the complainant and the accused at the time of trap. The witness has deposed that he was directed to remain althroughout with the complainant and to view and hear the conversation between the complainant and the accused at the time of trap. The witness has deposed that he and the complainant went at the Zanana hospital and thereafter the accused arrived there, at that time, the complainant asked the accused, how are you? In turn, the accused said well and thereafter the complainant asked the accused regarding his pension and also stated that he has brought the money and thereafter the accused demanded the money. The witness has deposed that the complainant took out the money from the left pocket of the shirt and handed over the same to the accused which was accepted by the accused by her right hands. Thereafter, the witness has detailed as to how the second part of the panchnama was carried out. The witness has also identified the tainted currency notes as well as the accused before learned trial Court. In the cross examination, it is established that a day prior to the trap, he was called by the ACB office and he was explained the details of the complaint. The prosecution has also established during the course of the cross examination of the witness as regards as to how the preliminary panchnama was carried out and as to how the witness was made to understand as regards to procedure of trap, test of anthracene powder and ultra violate lamp test and thereafter preliminary panchnama was drawn and he signed it. It is also established in the cross examination of the witness that other members of the raiding party were arrived at in the compound of Zanana hospital and he was accompanied with the complainant and he was in a position to view and hear the conversation between the complainant and the accused. The witness has admitted that whatever conversation took place between the complainant and the accused was appraised to the official of the raiding party on the spot. It is also established in the cross examination of the witness that search and seizure was carried out and the seizure memo was issued after the procedure was over and thereafter the panchnama was carried out in his presence. 14. PW 3 - Dr. Vasantlal Bhogilal Udani has been examined at Exh. 57. It is also established in the cross examination of the witness that search and seizure was carried out and the seizure memo was issued after the procedure was over and thereafter the panchnama was carried out in his presence. 14. PW 3 - Dr. Vasantlal Bhogilal Udani has been examined at Exh. 57. The witness has been examined in order to prove the sanction accorded by him. The sanction is produced at Exh. 58. 15. PW 4 - Shyam Aljibhai Parmar has been examined at Exh. 62. The witness has deposed that he was serving as Crime Writer Head in Malviyanagar Police Station. The witness has deposed that one NC case was registered against Chandulal Trivedi by Dr. Savaliya for the offence under sections 323 and 504 of IPC. The said NC case is produced vide Exh. 63. 16. PW 5 - Arvindbhai Ranchhodbhai Patel has been examined at Exh. 64 and PW 6 - Kishorsinh Jorubha Gohil has been examined at Exh. 68. Both the witnesses are police officials and they detailed as to how the trap as well as anthracene powder test and ultra violate lamp test were carried out. 17. DW - 1 Ashwinikumar Rajendraprasad Yadav has been examined at Exh. 73. The witness has deposed that the accused was serving as Female Health Supervisor, Class-III and her appointing authority is the District Health Officer under the provisions of the Gujarat Panchayats Act and that the District Health Officer is the disciplinary authority so far as Class-III employees are concerned in the said department. 18. However, in the statement under section 313 of the Criminal Procedure Code 1973, except some denial as regards to evidence against her, the accused has not given any explanation. However, the accused has stated that the complainant and the police in collusion have concocted the case against her. 19. 18. However, in the statement under section 313 of the Criminal Procedure Code 1973, except some denial as regards to evidence against her, the accused has not given any explanation. However, the accused has stated that the complainant and the police in collusion have concocted the case against her. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. 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, indisputably, the evidence on record is clearly indicating that the complainant was served with the notice by the competent authority and his voluntary resignation was accepted with effect from 31.3.2000. However, due to the aforesaid show cause notice which came to be issued in pursuance of the NC complaint made by Dr. G.P. Savaliya against the complainant as well as the complaint made to the competent authority for taking departmental action against him, a hindrance being created in getting approval of the pensionary benefits and therefore, the complainant met to the accused. G.P. Savaliya against the complainant as well as the complaint made to the competent authority for taking departmental action against him, a hindrance being created in getting approval of the pensionary benefits and therefore, the complainant met to the accused. It is also emerging from the evidence on record that as the accused having good relation with the complainant as well as Dr. G.P. Savaliya and in order to easing out the procedure for getting sanction of the pensionary benefits, she was requested to intervene and she shown willingness to act in getting withdrawal of the said complaint by Dr. Savaliya if the complainant pays Rs. 5000/- as illegal gratification and that is the precise case of the prosecution. In order to prove the vital ingredients i.e. demand, acceptance and recovery, this Court has gone through the evidence of the complainant. The complainant has clearly and categorically mentioned that while he met to the accused at Zanana Hospital, after initial talk, the accused demanded Rs. 5000/- as illegal gratification and he handed over it to the accused and she took the tainted currency notes through her right hand which were recovered at the place by the trapping team and thereafter rest of the procedure was carried out at the ACB office as there was medical camp going on in the Zanana Hospital and therefore, rest of the search and seizure procedure was also carried out at the ACB office and also the second part of the panchnama was carried out there. On going through the deposition of the complainant in second part of the panchnama, it appears that the defence has established as to how the detailed search and seizure was carried out and as to how the seizure memo was issued. Not only that, on overall appreciation of the evidence of the complainant in light of the cross examination carried out by the defence, demand and acceptance are being clearly established but the search and seizure is also established. 25. 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. 25. 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. So far as the evidence of panch No. 1 who accompanied with the complainant at the time of trap is concerned, in his deposition also, material corroboration is being established not only in the examination-in-chief, but in the cross examination also. 26. 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. It is also pertinent to note that the incident in question is of the year 2000 and for about 16 years have already passed and that learned trial Court while taking into consideration the facts and circumstances of the case inflicted the punishment upon the accused which was prescribed as minimum sentence. Due to time lag between the incident in question and the decision of the present appeal, this Court is not inclined to enhance the sentence awarded by learned trial Court. 27. In view of the above discussion, the following final order is passed. Criminal Appeal No. 1085 of 2005 filed by appellant accused - Amrutaben Deshajibhai Parmar is dismissed. The impugned judgment and order dated 7.5.2005 passed by learned Additional Sessions Judge, 6th Fast Track Court, Rajkot in Special ACB Sessions Case No. 14 of 2000 is hereby confirmed. Appellant accused - Amrutaben Deshajibhai Parmar is ordered to surrender to custody within a period of ten weeks from today for undergoing the sentence, if she has not undergone so far, failing which the investigating agency shall be at liberty to take necessary action in accordance with law. Bail bond, if any, stands cancelled. Criminal Appeal No. 2341 of 2005 preferred the State of Gujarat is also hereby dismissed. Bail bond, if any, stands cancelled. Criminal Appeal No. 2341 of 2005 preferred the State of Gujarat is also hereby dismissed. R & P be sent back to the trial Court, forthwith.