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2017 DIGILAW 348 (GUJ)

Natwarlal Govindbhai Mochi v. State of Gujarat

2017-02-10

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 30.6.2003 passed by the learned Special Judge, Sabarkantha at Himatnagar, in Special Case No. 2 of 1991, whereby the learned Judge has convicted the appellant-accused under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to suffer simple imprisonment for one year and to pay a fine of Rs. 1000/- in default to undergo simple imprisonment for 30 days more. 2. The short facts giving rise to the present appeal are that complainant-Mohanlal Kothari was holding a licence for dealing in kerosene since last more than seven years from the date of complaint. As per the rule, such licence holder has to purchase National Savings Certificate by way of deposit of Rs. 500/- and the said certificate remains as deposit in Civil Supply Department at the office of Mamlatdar. The complainant had taken the licence by depositing an amount of Rs. 500/- in six years N.S.C. and he purchased the same from Khedbrahma Post Office, thereafter, he deposited the said certificate in the office of Mamlatdar, Civil Supply Branch at Khedbrahma. In the meanwhile, the deposit amount for obtaining licence was enhanced from Rs. 500/- to Rs. 750/-. As the complainant had no NSC worth of Rs. 750/- he deposited an amount of Rs. 1000/- in NSC for getting the licence and he also gave an application for transferring the licence from Chikhala village to Dudhiya village. It is further the case of the prosecution that the complainant deposited the said NSC in the Office of Mamlatdar in the year of January, 1990 and also gave an application for obtaining previous NSC worth of Rs. 500/- which was deposited by him for getting licence. On 7th or 8th August, 1990, accused-Natwarlal Govindbhai Mochi-Dy. Mamlatdar told him that now the amount has doubled so that he would have to pay 50% of the amount to him and his clerk-Mr. Chenva. Thereafter, complainant told him that the said amount is very excessive and he is unable to pay to which, accused reduced the percentage of amount from 50% to 25% and he told to give Rs. Chenva. Thereafter, complainant told him that the said amount is very excessive and he is unable to pay to which, accused reduced the percentage of amount from 50% to 25% and he told to give Rs. 250/- but the complainant did not agree to pay the same and he expressed his helplessness of paying such amount. Ultimately, it was fixed at Rs. 151/-. At the relevant time, the complaint paid Rs. 55/- and he further assured the accused to give the remaining amount soon. Further, when the complainant came to the office of the accused, he found that the accused was not present there and therefore, he asked about NSC from clerk-Mr. Chenva to which, Mr. Chenva demanded the remaining amount of Rs. 100/-. At the relevant time, the complainant was having only Rs. 11/- and therefore, he gave Rs. 11/- to Mr. Chenva and Mr. Chenva gave him NSC worth of Rs. 500/- after putting signature of the complainant in the register. On 28.8.1990, the complainant went to the accused with an application to provide kerosene under the quota where the accused became enraged and threw his application and told him that where is the remaining amount of Rs. 100/-. As complainant was not willing to pay bribe amount, he filed a complaint before Anti Corruption Bureau, Ahmedabad. Thereafter, a trap was arranged and ultimately, the accused were caught red handed. Thereafter, the seizure memo and other procedure in relation to the trap, was carried out in presence of the panchas. Hence, a complaint came to be lodged against the appellant-accused for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant accused. 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 three 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, the learned trial Court delivered the judgment and order, as stated above. 4. 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, the 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, the appellant 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. 6. Mr. K.B. Anandjiwala, learned Senior Advocate appearing for the appellant has taken this Court through the evidence of the witnesses as well as impugned order and submitted that this is a clear case, wherein the complainant has turned hostile and has not at all supported the case of the prosecution. Therefore, the vital ingredients regarding demand and acceptance have not been proved. He has further submitted that it is revealing from the evidence on record that as the security amount was enhanced from Rs. 500/- to 750/- for getting licence for dealing in essential commodities, however, the complainant produced on record the Saving Certificate worth of Rs. 1000/- instead of Rs. 750/-. He has further submitted that in order to purchase such saving certificate, the complainant took a loan of Rs. 250/- from accused and out of the said loan amount, he returned Rs. 150/- and Rs. 100/- still remained unpaid and that amount was demanded frequently by the accused due to which, the complainant got excited and lodged the present complaint alleging that the accused demanded illegal gratification from him. He has further submitted that in the cross-examination, PW-2-Pravin Naranbhai Jadav-Panch No. 1 himself admitted that he could not know for what purpose, the complainant wanted to pay the said amount to the accused. In that view of the matter, the main ingredients i.e. demand, acceptance and recovery itself are not established. He has further submitted that there is no iota of evidence to connect the accused with the crime. In that view of the matter, the main ingredients i.e. demand, acceptance and recovery itself are not established. He has further submitted that there is no iota of evidence to connect the accused with the crime. He has further submitted that when the complainant has not supported the case of the prosecution then neither the demand nor the acceptance or the recovery or the seizure has been proved in accordance with the provisions of law. Therefore, the judgment rendered by the learned trial Court is based upon the assumption that the accused was present at the time of trap and collected the bribe amount. The demand and acceptance are presumed by the trial Court, which is not in accordance with the principle laid down for appreciation of the evidence and assertion of cases made by the this Court and Hon'ble Supreme Court as such. He has, therefore, submitted that the prosecution has miserably failed to establish vital ingredients as regards demand of illegal gratification and acceptance thereof. Lastly, the learned advocate has requested this Court to allow the present appeal. 7. On the other-hand, Mr. K.P. Raval, learned APP has supported the judgment rendered by learned trial Court. He has submitted that vital ingredient i.e. demand is clearly coming out from the complaint itself and at the time of raid also, the complainant delivered tainted currency notes and, therefore, demand itself is proved as the tainted currency notes were recovered from the possession of the appellant-accused. He has further submitted that the finding recorded by the learned trial Court is in accordance with the evidence available on record which calls for no interference. 8. This Court has heard Mr. K.B. Anandjiwala, learned Senior Advocate appearing 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. As per the prosecution version, complainant-Mohanlal Kothari was holding a licence for dealing in kerosene since last more than seven years from the date of complaint. As per the rule, such licence holder has to purchase National Savings Certificate by way of deposit of Rs. 500/- and the said certificate remains as deposit in Civil Supply Department at the office of Mamlatdar. The complainant had taken the licence by depositing an amount of Rs. As per the rule, such licence holder has to purchase National Savings Certificate by way of deposit of Rs. 500/- and the said certificate remains as deposit in Civil Supply Department at the office of Mamlatdar. The complainant had taken the licence by depositing an amount of Rs. 500/- in six years N.S.C. and he purchased the same from Khedbrahma Post Office, thereafter, he deposited the said certificate in the office of Mamlatdar, Civil Supply Branch at Khedbrahma. In the meanwhile, the deposit amount for obtaining licence was enhanced from Rs. 500/- to Rs. 750/-. As the complainant had no NSC worth of Rs. 750/- he deposited an amount of Rs. 1000/- in NSC for getting the licence and he also gave an application for transferring the licence from Chikhala village to Dudhiya village. It is further the case of the prosecution that the complainant deposited the said NSC in the Office of Mamlatdar in the year of January, 1990 and also gave an application for obtaining previous NSC worth of Rs. 500/- which was deposited by him for getting licence. On 7th or 8th August, 1990, accused- Natwarlal Govindbhai Mochi-Dy. Mamlatdar told him that now the amount has doubled so that he would have to pay 50% of the amount to him and his clerk-Mr.Chenva. Thereafter, complainant told him that the said amount is very excessive and he is unable to pay to which, accused reduced the percentage of amount from 50% to 25% and he told to give Rs. 250/- but the complainant did not agree to pay the same and he expressed his helplessness of paying such amount. Ultimately, it was fixed at Rs. 151/-. At the relevant time, the complaint payed Rs. 55/- and he further assured the accused to give the remaining amount soon. Further, when the complainant came to the office of the accused, he found that the accused was not present there and therefore, he asked about NSC from clerk-Mr. Chenva to which, Mr. Chenva demanded the remaining amount of Rs. 100/-. At the relevant time, the complainant was having only Rs. 11/- and therefore, he gave Rs. 11/- to Mr. Chenva and in return, Mr. Chenva gave him NSC worth of Rs. 500/- after putting signature of the complainant in the register. Chenva to which, Mr. Chenva demanded the remaining amount of Rs. 100/-. At the relevant time, the complainant was having only Rs. 11/- and therefore, he gave Rs. 11/- to Mr. Chenva and in return, Mr. Chenva gave him NSC worth of Rs. 500/- after putting signature of the complainant in the register. On 28.8.1990, the complainant went to the accused with an application to provide kerosene under the quota where the accused became enraged and threw his application and told him that where is the remaining amount of Rs. 100/-. As the complainant was not willing to pay bribe amount, he filed a complaint before Anti Corruption Bureau, Ahmedabad. Thereafter, on 5.9.1990, the appellant-accused caught red handed while accepting tainted currency notes during the course of trap and thereby, he committed offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 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 confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, irrespective of the fact that the raid was carried out and recovery was made, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt with regard to the factum of demand and acceptance. 11. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. In the case of A. Subair vs. State of Kerala, (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-appellant 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. 12. In the case of State of Kerala and Another vs. C.P. Rao, (2011) 6 SCC 450 , the Hon'ble Apex Court, reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused-appellant and in absence of any evidence to prove payment of bribe or to show that the accused-appellant 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 vs. State of A.P. 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. 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. 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 vs. State of Assam, (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. P.W. Lalitkumar Mohanlal Kothari-complainant has deposed that he is holding a licence for dealing in kerosene after furnishing NSC of Rs. 500/- but the said security amount was enhanced to Rs. 750/-. So, he was required to deposit saving certificate of Rs. 750/- as per new rule. He has further deposed that he was also required to get back the security amount of Rs. 500/- which was lying before the Mamlatdar Office. Therefore, he approached Mr. Chenva-clerk. He has further deposed that once, the accused visited his shop as a Supply Inspector and inspected books of account of his shop and threatened him to seize the books of account. However, upon his request, the same were returned to him and since then, he knew the accused. He has further deposed that when he went to the accused, he was having only Rs. 750/- and as he already knew the accused, he took an amount of Rs. 250/- from the complainant as a loan and thereafter, he purchased NSC worth of Rs. 1000/-. He has further deposed that when he visited again the office of the accused, he returned Rs. 150/- to the accused and thereafter, he was required to pay only Rs. 100/-. 250/- from the complainant as a loan and thereafter, he purchased NSC worth of Rs. 1000/-. He has further deposed that when he visited again the office of the accused, he returned Rs. 150/- to the accused and thereafter, he was required to pay only Rs. 100/-. He has further deposed that when he reached the office of accused for the purpose of getting his old security amount, the accused was not present there and he asked about the accused to which, Mr. Chenva-clerk demanded Rs. 100/- on behalf of the accused- Natwarlal Mochi but he thought that Mr. Chenva demanded Rs. 100/- as illegal gratification. He has further deposed that at the time of lodging the complaint, he told the ACB officials that Mr. Chenva demanded the said amount on behalf of the accused-appellant but the ACB Officials refused to jot down the said fact in the complaint. He has further deposed that on 4.9.1990, while the raid was carried out, the accused were found absent and the trap remained unsuccessful. He has further deposed that on the next day, the trap was again carried out and at that time, he handed over Rs. 100/- to the accused-appellant and thereafter, he raised alarm to the other members of the raiding party. However, the complainant was declared hostile and he has not supported the case of the prosecution. In his cross-examination, he has admitted that he had already received the saving certificate worth of Rs. 500/-. He has also deposed that during the trap when he was handing over the amount of Rs. 100/- to accused-appellant, none was there except accused-appellant. 16. PW-2-Pravin Naranbhai Jadav-Panch No. 1 had deposed that he was serving in the Sales Tax Department at Ahmedabad and on 4.9.1990, he was requisitioned by the prosecution to act as panch in the trap prior to holding the raid. He has further deposed that he went to the ACB Office on 4.9.1990 at about 5.50 a.m. and thereafter he was introduced to the complainant and was given to understand detail information as to how the raid was going to be conducted and as to how the anthracene powder is to be applied and as to how the experiment of ultra-violet lamp is to be carried out. He has further deposed that he was instructed to accompany complainant and to hear as to what conversation took place between them and rest of the members were directed to see the incident outside the office. He has further deposed that on 4.9.1990 at about 11.55 a.m. he along with complainant and other members reached the office of the accused but as the accused was not present there, therefore, the trap remained unsuccessful. He has further deposed that on the next day i.e. 5.9.1990, he along with other members of the raiding party reached the office of the accused and at that time, the accused was found there and then, the complainant tendered an application for obtaining kerosene permit to the accused and thereafter, the accused issued permit for two barrel of kerosene. He has further deposed that thereafter, accused-appellant and complainant went outside the office and accused-appellant asked regarding Rs. 100/- to which, the complainant took out the tainted currency notes from his pocket and handed over the same to accused-appellant. Therefore, as decided earlier, pre-arranged signal was given to the other members of the raiding party and the ACB personnel came there and caught hold of the accused-appellant red handed and tainted currency notes were recovered from the possession of the accused-appellant. Thereafter, second part of the panchnama was carried out in the presence of accused-appellant and the said tainted currency notes were seized. However, in his cross-examination, he has admitted that the test of the ultraviolet was found to be negative. He has further admitted that he was unaware as to why the currency notes were given to the accused-appellant. 17. The other Police Officials as well as witnesses were examined in order to prove the procedure of trap but there is no material worth to be reproduced here. 18. On the overall analysis of the oral evidence as well as documentary evidence on record, it is clearly emerging out that the entire episode happened for returning the National Saving Certificate worth of Rs. 500/- lying in the office of accused-appellant as the security amount for obtaining licence for dealing in essential commodities. As the said security amount was increased to Rs. 750/- however, the saving certificate was not available in the denomination of Rs. 750/- but such certificate was produced on record in denomination of Rs. 1000/-. For purchasing NSC of Rs. 500/- lying in the office of accused-appellant as the security amount for obtaining licence for dealing in essential commodities. As the said security amount was increased to Rs. 750/- however, the saving certificate was not available in the denomination of Rs. 750/- but such certificate was produced on record in denomination of Rs. 1000/-. For purchasing NSC of Rs. 1000/- the complainant required an amount of Rs. 250/- and the said amount was taken by the complainant from the accused-appellant. The complainant repaid an amount of Rs. 150/- and an amount of Rs. 100/- still remained to be paid. The appellant-accused did not demand the remaining amount and instead Mr. Chenva used to demand the aforesaid remaining loaned amount from the complainant and due to which, keeping misconception in his mind that Mr. Chenva demanded Rs. 100/- as illegal gratification, the complainant lodged the complaint. 19. On overall evaluation of the evidence of complainant, it is clearly emerging out from his examination-in-chief that the complainant took the loan from accused-appellant and the complainant was required to return the said loan to the accused-appellant but the said loan amount was demanded by Mr. Chenva and due to which, he lodged a complaint and the said fact was also stated before the ACB Officials but they did not mentioned the said fact in the complaint. The crux of deposition of the complainant is emerging out that the complainant handed over the aforesaid tainted currency notes towards his loan and not as a bribe. 20. On overall evaluation of the evidence of panch No. 1, it is clearly emerging out from his cross-examination wherein he clearly admitted that he was unaware as to why the said amount was required to be paid to the accused and he could not disclose exact reason of paying the amount to the accused. Not only that, but in his evidence, he has clearly admitted that the test of the ultraviolet lamp was found to be negative. So far as the panchas are concerned, in the State of Gujarat, the Anti Corruption Bureau usually requisitioned the Government Officials to act as panchas so as to rule out chances of getting the panchas hostile. Even otherwise, status of panch No. 1 is to act as shadow witness and its evidentiary value is used to corroborate the preliminary evidence of complainant. Even otherwise, status of panch No. 1 is to act as shadow witness and its evidentiary value is used to corroborate the preliminary evidence of complainant. In the present case, the complainant himself has disowned his own complaint and on the contrary deposed that the amount handed over to the accused was against the loan. In that view of the matter, if it is believed to be true that the tainted currency notes were paid to the accused but it is not proved that the said amount was against illegal gratification. In that view of the matter, main vital ingredients of illegal gratification, namely demand, acceptance and recovery are itself missing in the present case and so far as the recovery of tainted currency notes are concerned, the notes which were recovered from the from the possession of the accused is meaningless. 21. In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, the prosecution has to prove three main vital ingredients of illegal gratification, namely demand, acceptance and recovery of tainted currency note. So far as the demand and acceptance of the illegal gratification is concerned, complainant has been declared hostile during the course of trial and he did not support the case of the prosecution. Even in his evidence, he has clearly and categorically accepted that the amount was demanded by the accused was in the form of loan which he earlier took from accused. In that view of the matter, nothing reveals from the evidences of the complainant. 22. In view of the aforesaid nature of evidence, when demand and acceptance is not proved which are vital ingredients so far as establishing the guilt of accepting illegal gratification is concerned and in consequence whereof, recovery of tainted currency notes which was found in the trap from the appellant-accused becomes meaningless. In this view of the matter, finding recorded by learned trial Court is not in consonance with the evidence available on record. Therefore, as stated above, in absence of any specific and clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable. 23. In this view of the matter, finding recorded by learned trial Court is not in consonance with the evidence available on record. Therefore, as stated above, in absence of any specific and clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable. 23. 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. 24. For the reasons recorded above, this appeal succeeds. The impugned judgment and order dated 30.6.2003 passed by the learned Special Judge, Sabarkantha at Himatnagar, in Special Case No. 2 of 1991 is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. Fine, if paid, be refunded to the appellant. Surety, if any shall stands discharged. R & P be sent back to the trial Court, forthwith. Appeal Allowed.