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2017 DIGILAW 427 (GUJ)

Laljibhai Ratnaji Assaji v. State of Gujarat

2017-02-20

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 17.4.2001 passed by learned Special Judge, Sabarkantha at Himatnagar in Special Case No. 6 of 1990 whereby original accused - appellant herein was convicted for the offence under section 7 of the Prevention of Corruption Act and sentenced him to undergo simple imprisonment for one year and to pay fine of Rs. 500/-, in default, to undergo simple imprisonment for two months and also convicted her for the offence under Section 13(1)(d) read with section 13(2) of the said Act and sentenced him to undergo simple imprisonment for one year and to pay fine of Rs. 500/-, in default, to undergo simple imprisonment for two months. 2. Today, when the matter is called out, it is pointed out by Mr. Anandjiwala, learned senior advocate that the appellant - original accused has died on 30.7.2016 and his heirs and legal representatives have been brought on record vide order dated 5.10.2016 passed by this Court in Criminal Misc. Application No. 22513 of 2016 and hence, the present Criminal Appeal is pending for final disposal. 3. The short facts giving rise to the present appeal are that on 8.2.1985, the complainant purchased the piece of land and therefore, he wanted to get the mutation entry done in Village Form No. 6 and for that purpose, he approached the accused. It is alleged that the accused demanded Rs. 1000/- for making necessary mutation entry in the land records. It is alleged that after about 20 days therefrom, the complainant along with others approached the accused, at that time, the father of the complainant gave Rs. 700/- as a part payment to the accused. It is alleged that just two months prior to lodging of the complaint, the accused demanded the amount of Rs. 200/- and hence, the complaint was lodged. The trap was arranged wherein the accused was trapped accepting the amount of illegal gratification. 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. 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 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. K.B. Anandjiwala, learned senior advocate assisted by Mr. Vishal Anandjiwala, learned advocate for the appellant - 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 though the charge is defective so far as predemand as regards to Rs. 700/- is concerned and that amount came to be accepted before a month from the date of the trap, but the appellant accused has been charged for the offence under section 7 of the Prevention of Corruption Act. He submitted that as per the prosecution version, demand came to be raised by the appellant accused from the complainant for further Rs. 200/- instead of remaining Rs. He submitted that as per the prosecution version, demand came to be raised by the appellant accused from the complainant for further Rs. 200/- instead of remaining Rs. 300/- and hence, the second demand itself is not in consonance with the predemand alleged to have been raised and even if that amount came to be recovered from the person of the accused during the course of trap, the recovery cannot be said to be proved as the test of ultra violate lamp was carried out prior to holding the trap and after the trap, the same is not supported by the complainant and to that extent, the complainant has been declared to be hostile by the prosecution. He submitted that though the evidence of panch is getting corroboration, however, the accused in his further statement under section 313 of the Code of Criminal Procedure has clearly and categorically explained that the said amount was handed over by the complainant against the dues for carrying mutation entry as such and therefore also, even if the said amount has been accepted by the accused, the same cannot be treated to be the amount against illegal gratification. He further submitted that Investigating Officer Mr. Kataria has not at all investigated into the fact regarding pending dues for effecting mutation entry in Village Form and hence, the amount paid by the complainant could be counted towards the dues and not as illegal gratification. Lastly, Mr. Anandjiwala 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 by the original accused. 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 submitted that only on the aspect of recovery and so far as test of ultra violate lamp is concerned, even if the complainant has not supported the case of the prosecution, that does not mean that the trap is failed. He submitted that once the recovery is effected through an independent panch and number of tainted currency notes are being established and tallied during the course of drawing panchnama and the said fact is also getting corroboration from the evidence of the panchas as well as from the evidence of the Investigating Officer and therefore the raid as well as recovery can be said to be proved in accordance with law. He submitted that so far as predemand, demand and acceptance are clearly getting established from the evidence of P.W. 1 and P.W. 2 i.e. complainant and panch No. 1 and as the appellant accused has died during the pendency of this appeal and his heirs and legal representatives are substituted, demand as regards to Rs. 700/- and thereafter demand as regards to Rs. 200/- are clearly borne out from the complaint itself at Exh. 42 and the said fact also reveals from the version of the complainant as well as panchas. 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. K.B. Anandjiwala, learned senior 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, on 8.2.1985, the complainant purchased the piece of land and he wanted to get the mutation entry done in Village Form No. 6 and for that purpose, he approached the accused for which the accused demanded Rs. 1000/-. 11. As per the prosecution version, on 8.2.1985, the complainant purchased the piece of land and he wanted to get the mutation entry done in Village Form No. 6 and for that purpose, he approached the accused for which the accused demanded Rs. 1000/-. It is alleged that after about 20 days therefrom, the complainant along with others approached the accused, at that time, the father of the complainant gave Rs. 700/- as a part payment to the accused and just two months prior to lodging of the complaint, the accused demanded the amount of Rs. 200/- and hence, the complaint was lodged. The trap was arranged wherein the accused was trapped accepting the amount of illegal gratification and thereby the accused committed the offence, as alleged. 12. P.W. 1 - Chandubhai Manglabhai Oj at has been examined at Exh. 41. The witness has deposed that he along with his brother and uncle purchased the land and the said land was not mutated to their names and therefore he inquired from the Talati-cum-Mantri in the year 1987, at that time, the accused demanded Rs. 1000/- as illegal gratification for carrying out mutation entry in their favour. The witness has deposed that his father has given Rs. 700/- to the accused and thereafter, the accused issued the notice under section 135-D for effecting such mutation entry and thereafter again after about two months, he visited the accused for inquiring about the mutation entry, at that time, the accused demanded Rs. 200/-. The witness has deposed that as he was not willing to pay the bribe amount, he approached ACB office and lodged the complaint. Thereafter, the trap was arranged at about 11.15 am and he along with panch No. 1 and other members of the raiding party reached to Budheli Panchayat office. The witness has deposed that at that time, one Circle Inspector was found to be seated in the chair of the accused. The panch No. 1 as well as the witness took the seat in front of the accused and thereafter the talk regarding sale deed document taken place, at that time, the Circle Inspector told the accused to take lunch. The panch No. 1 as well as the witness took the seat in front of the accused and thereafter the talk regarding sale deed document taken place, at that time, the Circle Inspector told the accused to take lunch. The witness has deposed that while the accused was preferring to take lunch, at that time, the complainant told the accused that he has brought money as per the conversation took place yesterday, in turn, the accused told to give money to him and the complainant took out the tainted currency notes from his pocket and handed over to the accused. The witness has deposed that the accused counted the same and accepted it. Thereafter, the complainant raised alarm and other members of the raiding party arrived there. However, in the examination-in-chief, the witness has not supported the test of ultra violate lamp carried out prior to holding the trap as well as after the trap and therefore, he was declared hostile. However, the witness has identified the accused, muddamal article as well as other documentary evidence seized at the time of trap during the course of his examination-in-chief. However, in the cross examination at page 90 of the paper book, the witness has admitted that it is true that while the Talati - accused herein went to take lunch, he followed him along with panch No. 1 and panch No. 1 was standing outside the room, at that time, he went inside the room and he told the accused that he has brought Rs. 200/-. However, nothing worth has come out from cross examination of this witness. 13. P.W. 2 - Ambalal Shankerbhai Vaghela has been examined at Exh. 53. The witness has deposed that he was serving in R & B Department as Junior Clerk and he was requisitioned as official panch. The witness has deposed that he has performed his duty as a panch No. 1 and he was accompanied with the complainant at the time of trap. At the time of trap, he reached to the panchayat office along with the complainant, at that time, the accused as well as one Circle Inspector were found in the office. Thereafter, the accused was told by the said Circle Inspector to take lunch and while the accused went to nearby the room for taking lunch, at that time, the complainant as well as he followed the accused. Thereafter, the accused was told by the said Circle Inspector to take lunch and while the accused went to nearby the room for taking lunch, at that time, the complainant as well as he followed the accused. The witness has deposed that when he was standing nearby the door, at that time, the complainant told the accused as regards to his document, in turn, the accused told the complainant that the document which he was in need may be handed over after the work of mutation entry is over, at that time, the complainant has told the accused that he has brought money as per the yesterday's talk. Therefore, the accused told the complainant to give him the said amount and hence the complainant took out the tainted currency notes of Rs. 200/- which were containing in denomination of Rs. 50/- each from his left side pocket and handed over it to the accused. The accused has counted the said notes and placed it in the left side pocket of the bushirt. In the cross examination, it was tried to establish that hearing capacity of this witness was impaired. However, the witness has deposed that he has sustained impaired problem recently and not at the time of trap and he was in a position to hear the conversation took place between the complainant and the accused. It is also established that the room in which the accused was taking lunch was in diameter of 10 x 10 feet and hence, the witness was in a position to hear the conversation even while standing nearby the door of the said room. 14. P.W. 3 - Manuprasad Laxmishankar has been examined at Exh. 66. The witness has been examined as he has accorded sanction. The witness has deposed that he was serving as Deputy District Development Officer and the Deputy District Development Officer is the competent authority as well as disciplinary authority so far as appointment and taking disciplinary action for the post of Talati-cum-Mantri is concerned under the provisions of the Gujarat Panchayats Act. 15. P.W. 4 - Muljibhai Kalyanj Kataria has been examined at Exh. 73. The witness has deposed that he was Investigating Officer in the present case and he has detailed as to how the trap as well as tests of anthracene powder and ultra violate lamp are carried out. 15. P.W. 4 - Muljibhai Kalyanj Kataria has been examined at Exh. 73. The witness has deposed that he was Investigating Officer in the present case and he has detailed as to how the trap as well as tests of anthracene powder and ultra violate lamp are carried out. The witness has also detailed as to how the entire investigation has been carried out. 16. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair Vs. 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 Vs. 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 pre-demand, demand and acceptance by the accused are concerned, when the predemand and demand were raised by the accused for Rs. 1000/- as illegal gratification, the father of the complainant paid Rs. 700/- to the accused and though the notice under section 135-D of the Bombay Land Revenue Code was issued, but mutation entry was not carried out for about two months and therefore, again the complainant met the accused, at that time, the accused again raised demand of Rs. 200/-. However, as the complainant was not willing to pay Rs. 700/- to the accused and though the notice under section 135-D of the Bombay Land Revenue Code was issued, but mutation entry was not carried out for about two months and therefore, again the complainant met the accused, at that time, the accused again raised demand of Rs. 200/-. However, as the complainant was not willing to pay Rs. 200/- towards illegal gratification, he lodged the complaint and the trap was arranged. During the course of trap, the accused came to be caught red handed along with tainted currency notes which were recovered from the person of the accused. The numbers of the tainted currency notes which were noted in the preliminary panchnama were tallied during the course of recovery and seizure memo was issued. At the time of trap, another documentary evidence was also seized which was also produced before learned trial Court. 22. 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 Panch No. 1 and though the complainant had not supported the ultra violate lamp before the trap as well as post trap, but the evidence on record is clearly establishing the demand, acceptance and recovery thereof. 23. 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. 24. In view of the above discussion, the following final order is passed. Criminal Appeal No. 327 of 2001 filed by appellant accused is dismissed. The impugned judgment and order dated 17.4.2001 passed by learned Special Judge, Sabarkantha at Himatnagar in Special Case No. 6 of 1990 is hereby confirmed. 24. In view of the above discussion, the following final order is passed. Criminal Appeal No. 327 of 2001 filed by appellant accused is dismissed. The impugned judgment and order dated 17.4.2001 passed by learned Special Judge, Sabarkantha at Himatnagar in Special Case No. 6 of 1990 is hereby confirmed. R & P be sent back to the trial Court, forthwith. Appeal Dismissed.