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2017 DIGILAW 467 (GUJ)

Kantilal Amrutlal Thakkar v. State of Gujarat

2017-02-27

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant has preferred the present Appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 01.07.2000, rendered by the learned Special Judge, Mehsana, in Special Case No. 04 of 1993, wherein the appellant was ordered to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,500/-, in default, to undergo three months rigorous imprisonment for the offence punishable under Section 13(1)(d), (1) (2) (3) of the Prevention of Corruption Act and to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,500/-, in default, to undergo three months rigorous imprisonment for the offence punishable under Section 13(2) of the Prevention of Corruption Act and to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, in default to undergo one and a half month rigorous imprisonment for the offence punishable under Section 7 of the Prevention of Corruption Act. 2. The short facts giving rise to the present Appeal are that the appellant - accused was serving as a Medical Officer at the Government Hospital, Mehsana. The appellant demanded bribe of Rs. 400/- for giving false certificate of injuries exaggerating them, which were sustained by his brother Abuji as there was a quarrel with Patels and cross cases were filed. The quarrel took place on 13.01.1991 and Abuji sustained injuries in the said quarrel. He was admitted in the hospital, but was discharged on the next day. With a view to strengthen his case, exaggerated injuries were to be shown in the certificate. Therefore, the complainant met the accused and requested him to show exaggerated injuries in the said certificate. Therefore, the appellant - accused demanded Rs. 400/- from him for doing the same. As the complainant did not desire to give any amount to the accused, the complainant approached the ACB office and lodged the complaint on 19.01.1991. After following necessary formalities in respect of trap, the trap was conducted. The accused was caught red-handed while accepting the amount towards illegal gratification. Hence, the complaint came to be lodged against the appellant accused for the offence punishable under Sections 7, 13(1)(d) (1) (2) (3) read with Section 13 (2) of the Prevention of Corruption Act. 3. After following necessary formalities in respect of trap, the trap was conducted. The accused was caught red-handed while accepting the amount towards illegal gratification. Hence, the complaint came to be lodged against the appellant accused for the offence punishable under Sections 7, 13(1)(d) (1) (2) (3) read with Section 13 (2) of the Prevention of Corruption Act. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused person. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined five witnesses and also produced several documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, Mr. K.B. Aanandjiwala, learned senior Counsel assisted by Mr. Rajdeep Chaudhary, learned advocate for the present appellant-accused has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that the learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 6. Mr. K.B. Aanandjiwala, learned senior advocate for the appellant-accused has taken this Court to the entire evidence on record and argued that the complainant is having heavy criminal history and he is involved in not less than 16 criminal cases as an accused and he had enmity with the appellant - doctor as his brother was thrice discharged from the hospital on the day of admission and therefore, he had a strong motive to implicate the accused. So, the accused has falsely been implicated in the case. So, the accused has falsely been implicated in the case. He has further argued that so far as the demand, acceptance and recovery of the tainted currency notes are concerned in the present case, there appears to be no uniformity in the evidence of the complainant as well as the panchas. As per the deposition of the complainant, the accused raised demand at the time of giving the injury certificate and the accused accepted money by directing him to place money in the file. As per the complainant, the said incident took place at the first floor in between the two pillars in the hospital. Whereas as per the say of the panch No. 1, the instant demand came to be raised in the room No. 8. Not only that, but there is no uniformity in the conversation took place between the accused and the complainant. As per the complainant, the accused straightway demanded Rs. 400/-, whereas as per the say of the panch No. 1, the complainant tried to reduce the same amount. However, the complainant did not say so. So far as the recovery is concerned, there appears to be no uniformity in the depositions of the complainant as well as the panch No. 1. The complainant said that as soon as other members of the raiding party arrived, the Police Inspector slapped the accused and thereafter, effected the recovery of the papers which were lying on the floor. Whereas the panch No. 1 says that the recovery came to be effected from the hands of the accused. Mr. K.B. Aanandjiwala further argued that after effecting the recovery, the test of ultraviolet lamp was found to be negative so far as the hands of the accused is concerned as per the say of the complainant. Whereas as per the say of the panch No. 1, the same was found to be positive in one of the hands, but he has not deposed whether the test was found to be positive either in right hand or left hand. He has further argued that the panch No. 1 has admitted in the cross examination that he has not stated anything to the members of the raiding party as to how the conversation took place at the time of trap as well as regarding further procedure carried out after the trap. He has further argued that the panch No. 1 has admitted in the cross examination that he has not stated anything to the members of the raiding party as to how the conversation took place at the time of trap as well as regarding further procedure carried out after the trap. As per his say, the panchnama came to be dictated by the ACB officials and his subordinate took the dictation. 7. On the other hand, Mr. K.P. Raval, learned APP has taken this Court to the entire materials available on record as well as entire paper book and impugned judgment. He has also supported the judgment rendered by the learned Special Judge. He has further argued that the vital ingredients as regard to the demand, acceptance and recovery are established beyond reasonable doubt by the prosecution and the finding recorded by the learned Special Judge is based upon the evidence available on record and therefore, this Court should not interfere with the judgment of conviction. He has further argued that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards demand, acceptance and recovery are proved in accordance with law. Therefore, this Court may not disturb the findings recorded by learned trial Court. 8. This Court has heard Mr. K.B. Aanandjiwala, learned Senior Counsel assisted by Mr. Rajdeep Chaudhary, learned advocate for the appellant and Mr. K.P. Raval, learned APP for the respondent State. 9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. 10. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair v. State of Kerala, (2009) 6 SCC 587 : 2009 AIR SCW 3994, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. 11. 11. In State of Kerala and another v. C.P. Rao, (2011) 6 SCC 450 : AIR 2012 SC (Supp) 393, the Honourable Apex Court reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 12. In a recent enunciation by the Honourable Apex Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayraj AIR 2014 SC (Supp) 1837 (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is expendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 13. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 14. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 14. Keeping in mind the principles laid down by the Supreme Court in the aforesaid series of decisions in light of the rival submissions made by the learned advocates for the respective parties, the question arises for determination of this Court whether the prosecution has proved beyond reasonable doubt the vital ingredients of demand, acceptance and recovery of illegal gratification of Rs. 400/- or not. 15. P.W. No. 1 - Jagmalji Dhulaji has been examined vide Exhibit 17. He has deposed that Abuji Ravaji is his cousin. Abuji sustained injuries over his head before about eight years and again, he sustained assault injury over head. Therefore, he was admitted in Civil Hospital, Mehsana. He was admitted in Civil Hospital, Mehsana thrice i.e. on 13.01.1991, 14.01.1991 and 16.01.1991. At that time, the complainant met the accused for giving certificate in his favour and for giving good treatment to his cousin brother - Abuji. At that time, the accused demanded Rs. 400/- from him. As he was not willing to pay such amount, he approached the Anti Corruption Bureau on 19.01.1991. Mr. Puvar - Police Inspector recorded his complaint and thereafter, the panchas were requisitioned. In pursuance of his complaint, the ACB officials carried out the necessary formalities in respect of trap and conducted the trap in presence of the panchas. He further deposed that, he reached to Civil Hospital from the ACB office. At that time, the accused was sitting in room No. 8. When he went to the office of the accused, the panch No. 1 was accompanied with him. The second panch and other members of the raiding party took their position. When he went inside the office of the accused, the accused was alone in his office. When he asked the doctor for certificate, the doctor replied that he would give him the certificate after affixing the seal. After affixing the seal, the doctor took him on the second floor along with the panch. Abuji came there for detaching stitches. The doctor obtained signature of Abuji in the certificate which was to be obtained from the doctor. Thereafter, the accused - doctor demanded money from the complainant on the second floor. After affixing the seal, the doctor took him on the second floor along with the panch. Abuji came there for detaching stitches. The doctor obtained signature of Abuji in the certificate which was to be obtained from the doctor. Thereafter, the accused - doctor demanded money from the complainant on the second floor. Then, the complainant took out tainted currency notes from his pocket and gave the same to the accused. Thereafter, the complainant gave pre-arranged signal and on receiving such signal from the complainant, the members of the raiding party arrived there and therefore, the accused threw the papers on the floor along with money. 16. P.W. No. 2 - Kantilal Mangaldas Prajapati has been examined vide exhibit 18. He has deposed that he is serving as a Junior Clerk in the District Panchayat Office, Mehsana. He was called by the ACB Official on 19.01.1991 as an official panch. He was made to understand as to how the trap is to be conducted and he was directed to view the incident and hear the conversation which may take place between the complainant and the accused. He accompanied the complainant at the time of trap. He has deposed that the necessary procedure in respect of trap was carried out in the ACB Office in his presence. Thereafter, they came to the Civil Hospital, Mehsana. As per the earlier instructions, he was present with the complainant. Thereafter, they entered in the office of the accused i.e. room No. 8. While writing the certificate, the accused - doctor asked the complainant whether he has brought money or not. At that time, the complainant told the accused that, he has brought less amount. Therefore, the accused told him that he wants full amount. Thereafter, the complainant agreed to give full amount to him. Thereafter, the doctor took the complainant and the panch to the administrative office, which is situated on the upper floor. When the complainant and the panch were standing outside the lobby, the doctor told the complainant to give him money. At that time, the complainant took out tainted currency notes of Rs. 400/- and the accused placed the said money between the case papers and the diary which were in his hand. When the complainant and the panch were standing outside the lobby, the doctor told the complainant to give him money. At that time, the complainant took out tainted currency notes of Rs. 400/- and the accused placed the said money between the case papers and the diary which were in his hand. He has admitted in his cross examination that he has no idea whether any conversation took place between the accused and the complainant while going to room No. 13 from the room No. 8. He has admitted in the cross examination that the doctor asked the complainant in the room No. 8 whether he has brought money or not. Then, the doctor told him that he would accept the full amount and thereafter, the complainant told him that he would give full amount. 17. Other witnesses and the police witnesses have been examined by the prosecution, the summary of their evidences is not reproduced herein. 18. On the overall analysis of the evidence on record, so far as the instant demand is concerned, there appears no uniformity in the evidences of the complainant as well as the panch No. 1 who have witnessed, viewed and heard the conversation took place between the complainant and the accused. As per the complainant, the accused while walking along with the complainant, first visited the room No. 8 and thereafter, second floor and thereafter, he went to the gallery in between two pillars. At that time, the accused demanded money and the same was placed in the papers which were with him. When the complainant and the panch No. 1 were in the office of the accused i.e. room No. 8, the accused asked the complainant whether he has brought money or not. Then, the complainant asked whether he would give him the certificate if there was less amount than Rs. 400/-. At that time, the complainant refused and demanded full amount. Thereafter, the accused prepared the certificate in the said room and he was handed over tainted currency notes of Rs. 400/-. The accused accepted the said amount by his right hand and placed in the papers which were with him. After the search and seizure, the test of his right hand was found to be positive, whereas, as per the say of the complainant, the test of ultraviolet lamp on his hand was found to be negative. 400/-. The accused accepted the said amount by his right hand and placed in the papers which were with him. After the search and seizure, the test of his right hand was found to be positive, whereas, as per the say of the complainant, the test of ultraviolet lamp on his hand was found to be negative. So far as the recovery of the said amount is concerned, there appears to be no uniformity in the evidences of the complainant and the panch No. 1. Soon after the raid, the ACB official slapped the accused and the tainted currency notes as well as the papers which were with the accused came to be recovered from the floor. However, the test of ultraviolet lamp so far as the currency notes as well as the place where the papers were lying was found to be positive. But, so far as the person of the accused is concerned, it was found to be negative as per his say. Whereas, as per the evidence of P.W. No. 2, the tainted currency notes were recovered by the Police Inspector, ACB from the accused as well as the case papers i.e. muddamal article Nos. 1 and 2, both were recovered from the person of the accused. 19. On the overall evaluation of the aforesaid evidence on record and taking into consideration that though the same incident alleged to have been viewed by the P.W. Nos. 1 and 2, there appears no uniformity at all as regards the demand acceptance and recovery thereof. In all the three vital aspects, both the witnesses are deposing and giving different evidences and not only that, but test of ultraviolet lamp over the body of the accused is concerned, the P.W. No. 1 stated that it was found to be negative, whereas the complainant stated that it was found to be positive. Furthermore, the evidence of the panch which is in the nature of corroboration to the complaint's evidence, the panch himself has admitted in the cross examination that after the completion of trap, he had never stated or asked by the ACB officials as regards the conversation as well as whatever he has viewed during the course of the incident and he has further admitted that the panchnama was dictated by the Police Inspector to his subordinate. So far as the second part of the panchnama is concerned, it itself is indicative that nothing was written as per the say of the panchas in the panchnama. In consequence thereof, the entire panchnama renders meaningless as it has been dictated by the Police Inspector who was admittedly not present during the course of actual trap and has not witnessed the incident of trap, as he was accompanied with the accused at the time of trap. 20. One another feature is also emerging from the case papers that the complainant is involved in not less than 18 criminal cases as admitted by the complainant in the cross examination. Similarly, as stated by the learned A.P.P., the present appellant - accused was also previously involved in two such sort of the cases. However, Mr. Aanandjiwala, learned Senior Counsel for the appellant - accused submitted that the accused has been acquitted by this Court in both the previous cases. In view of the criminal history of the complainant as well as his certain exaggeration and contradictory version in the complaint, due to which the evidence of the complainant requires to be appreciated with great circumspection and it is not required to be accepted as such. The aforesaid peculiar facts and circumstances as submitted by Mr. Aananjiwala, learned Senior Counsel that the Investigating Officer Mr. Puvar himself was a member of the raiding party and after carrying out raid, he himself has investigated and filed the charge sheet. This course of action goes against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of prosecution becomes suspicious on this count only. In the present facts of the case, the status of the investigating officer could not be placed on any higher pedestal than the complainant and the complainant himself cannot be the sole agency of the investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decision of the Hon'ble Apex Court in the case of Bhagwan Singh v. State of Rajasthan, reported in AIR 1976 SC 985 , followed by this Court in the case of Kanubhai Kantibhai Patel v. State of Gujarat, reported in 1998 (1) GLH 924 . The said view is fortified by the decision of the Hon'ble Apex Court in the case of Bhagwan Singh v. State of Rajasthan, reported in AIR 1976 SC 985 , followed by this Court in the case of Kanubhai Kantibhai Patel v. State of Gujarat, reported in 1998 (1) GLH 924 . Therefore, in this case, the prosecution case suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly, the whole proceedings based on such investigation deserve to be quashed and set aside. 21. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 01.07.2000, rendered by the learned Special Judge, Mehsana, in Special Case No. 04 of 1993 is quashed and set aside. The appellant is acquitted of the charges levelled against him. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.