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2017 DIGILAW 482 (GUJ)

State of Gujarat v. Chandrashekhar Sharan Basappa

2017-03-01

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. This is an appeal preferred by the State of Gujarat under Section 378 (3) of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 29/12/2005 recorded by the learned Special Judge, 3rd Fast Track Court, Valsad in Special Corruption Case No. 25 of 2002 (old No. 4 of 1998) whereby the learned Special Judge acquitted the respondent-accused, of the charges for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. Brief facts of the case are that the respondent-accused was performing his duty as Sales Tax Inspector at Sales Tax Check Post, Bhilad, District Valsad at the relevant time. At that time, the complainant Shri Alkesh Kashiram Patel was planning to start a business of Rubber Stamp, hence he brought the machines from Bombay by paying 13% sales tax and at that time the accused stopped a Tempo bearing registration No. MH-4S-3970 in which the machine was brought from Bombay and demanded Rs. 26,000/- as penalty and after negotiation, the accused assured to release the said tempo by paying of Rs. 5,000/- as bribe. Thereafter, the complainant told him that he had no money. Therefore, the accused said that on 01/09/1997 at Bhilad Check Post, the complainant should give Rs. 5,000/- to the officer who would be present there and they will release the complainant's machinery. As the complainant did not want to give such bribe, he approached the A.C.B. Police Station, Valsad. On the basis of the complaint, a trap was arranged. The trap was made successful and thereby the offence punishable under Sections 7, 13(1)(d) and Section 13(2) of the provisions of the Prevention of Corruption Act, 1988 came to be registered against the accused. 3. Necessary investigation was carried out and statement of several witnesses were recorded. During the course of investigation, the respondent-accused was arrested and, ultimately, charge-sheet was filed and submitted the same before the Special Court, Valsad where the case was registered as Special Corruption Case No. 25 of 2002. The trial was initiated against the respondent-accused. 4. To prove the case against the present respondent-accused, the prosecution has examined several witnesses and also produced several documentary evidence. 5. The trial was initiated against the respondent-accused. 4. To prove the case against the present respondent-accused, the prosecution has examined several witnesses and also produced several documentary evidence. 5. At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent-accused of all the charges leveled against him vide judgment and order dated 29/12/2005. 6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant-State has preferred the present appeal. 7. This Court has heard Mr. K.P. Raval, learned APP for the appellant-State and Mr. Bharat K. Dave, learned advocate for the respondent-accused. 8. Mr. K.P. Raval, learned APP for the appellant-State has argued that though the evidence of the complainant is consistent and the complainant while accompanied with panch No. 1, at that time, did not ask as regards the amount of illegal gratification and the complainant was directed to come at late night. Thereafter, the complainant had visited the accused and handed over the tainted currency notes which came to be found from the drawer of table and the recovery was made and seizure memo was issued which tallied with the numbers which were noted down in the preliminary panchnama. Consequently, therefore, demand and acceptance was required to be believed to be proved on that count also. Learned APP has argued that learned Special Judge has given more importance for lack of corroborative piece of evidence. Whenever the accused has already demanded and accepted the money in the trap so found to be successful he should have to be held guilty. Learned APP has contended that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent. Learned APP has taken this court through the oral as well as the entire documentary evidence. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. Learned APP has taken this court through the oral as well as the entire documentary evidence. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondent for the alleged offence under Sections 7, 13(1)(d) read with Section 13(2) of the provisions of the Prevention of Corruption Act, 1988 which requires to be reversed as such and the accused is required to be convicted. 9. On the contrary, Mr. Bharat Dave, learned advocate for the respondent-accused supported the impugned judgment of acquittal and has argued that the learned Special Judge while recording the judgment of acquittal assigned ample reasons and the findings are based upon the evidence on record and there appears no perversity in the findings recorded by the learned Special Judge. He has argued that except evidence of the complainant, no evidence is available linking the accused with the crime in question. He has further argued that even so far as recovery of tainted currency notes are concerned, there is no consistent evidence available on record. The panchnama indicates recovery at the instance of Police Inspector which came to be effected through panch No. 2, whereas in his deposition, PW-3 Police Inspector Shri Jadeja deposed that he effected the recovery through panch No. 1. Further he has argued that in the complaint, pre demand came to be raised by one Shri Pathak who was the official in charge of Bhilad Check Post and entire conversation took place with him and even the complainant was apprised by him that he will also use the good office of one another official Shri V.M. Patel for scaling down the amount of illegal gratification. However, the aforesaid both the persons were named as the accused and therefore, identity of present accused is also not established. He has also argued that as per the provisions of the Indian Evidence Act, the identity of the accused is doubtful and for that also he cannot be linked with the crime in question. However, the aforesaid both the persons were named as the accused and therefore, identity of present accused is also not established. He has also argued that as per the provisions of the Indian Evidence Act, the identity of the accused is doubtful and for that also he cannot be linked with the crime in question. He thereby submits that the finding recorded by the learned trial court does not require any interference by this Court. 10. This Court has minutely perused the oral as well as documentary evidence available on record and gone through the impugned judgment and order passed by the trial court as well as paper book and evidence adduced by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant-State and learned advocate for the respondent-accused. 11. Having heard learned advocate for the respective parties to the present proceedings and having perused the impugned judgment as well as records and proceedings, as per the prosecution version, it clearly reveals the complainant PW-1 was running his business of making rubber stamp in Surat in the name and style of Madhav Poliflex and he used to purchase the material from Bombay and he purchased the material from Bombay and while the said material was being transported from Bombay to Surat in the tempo bearing registration MH-4S-3970, the same was intercepted by the official of Bhilad Check Post and it was directed to pay Rs. 26,000/- as penalty for non-payment of sale tax leviable in the State of Gujarat for which for avoiding the said penalty, the appellant-accused demanded Rs. 5,000/- and during the course of trap, he was caught red handed along with tainted currency notes of Rs. 5,000/- and thereby committed offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the provisions of the Prevention of Corruption Act, 1988. 12. PW-1, the complainant Alkeshbhai has deposed that he was running his business of making rubber stamp in the name and style of Madhav Poliflex and he used to purchase raw material from Bombay for preparing his product. He has deposed that in the tempo in which the goods were loaded was intercepted by the officials of Bhilad Check Post. 12. PW-1, the complainant Alkeshbhai has deposed that he was running his business of making rubber stamp in the name and style of Madhav Poliflex and he used to purchase raw material from Bombay for preparing his product. He has deposed that in the tempo in which the goods were loaded was intercepted by the officials of Bhilad Check Post. He has deposed that thereafter his seller from Bombay informed him that he was not having sale tax number, therefore, the officials of Bhilad Check Post told him to pay penalty of Rs. 26,000/- for the sale tax for non payment of sale tax. He has deposed that thereafter on the following day, he personally visited Bhilad Check Post and at that time, one officer was found there at the check post but he did not disclose his name but he demanded Rs. 10,000/- and thereafter the same was scaled down to Rs. 5,000/-. He has deposed that as he was not willing to pay such bribe, he approached the ACB, Valsad and lodged the complaint and thereafter ACB Valsad managed for laying trap and requisition of panchas was made and trap was arranged. He has deposed that at that time, he accompanied panch No. 1 and visited officials of Bhilad Check Post and the said officials of the check post asked as to whether he had brought any money or not and thereafter he was also asked as regards to the person who accompanied him to which he replied that he is partner and in his presence he could pay the amount. He has deposed that at that time, the accused refused to accept and directed him to come alone at 10:00 o'clock. He has deposed that at that time, the accused refused to accept and directed him to come alone at 10:00 o'clock. He has deposed that thereafter the complainant apprised the aforesaid fact to Shri Jadeja-raiding officer and Shri Jadeja asked him to take panch No. 2 with him instead of panch No. 1 and thereafter they proceeded at about 10:00 o'clock towards the booth of Bhilad Check Post along with both the panchas and while reaching nearby the office, he alone went to said official and both the panchas were standing outside and said officials asked as to whether he brought the money to which he replied in positive and the officials asked him to place the money into the drawer of the table and so he placed the tainted currency notes in the drawer of the table and thereafter he gave pre-arranged signal and due to which other members of the raiding party came there and caught red handed and recovery of tainted currency notes were made and test of anthracene powder by ultra violet lamp was carried out which was found to be negative. In the court, the complainant identified the accused who demanded and accepted Rs. 5,000/-. In the cross examination, he has admitted that he was asked to talk with one Mr. Pathak and Mr.V.M. Patel as regards clearing his goods who were the officials on duty at Bhilad check post. He has also admitted that on previous night, he had conversation with Mr. Pathak. He has also admitted that when he handed over the tainted currency notes, he was alone. He has admitted that he cannot say that his tempo was detained by the present accused. He has also admitted that he had no idea as to how many officials were worked at Bhilad check post. He has also admitted that he had talked with Mr. Pathak, the official of check post and he was directed to meet him but he did not give name of any other officials to him. 13. PW-2, Manharlal Morarji Sharma who was requisitioned as official panch, serving at the relevant time in the office of PWD, Valsad has deposed that he was requisitioned as panch and he acted as a panch, however, in his cross examination, he has admitted that while he visited the office of the accused, at first time, the accused did not demand any amount. He has also admitted that at that time, the complainant showed willingness to hand over the amount but the accused refused to accept the same. He has admitted that on second time he was standing at a distance place from his office. Consequently, therefore, he could not hear the conversation and he could not view as regards to handing over the money to the accused. He has also admitted that he did not know the person who placed the money in the drawer of the table. He has admitted that during the course of trap, Rameshbhai Patel found out money from the left drawer of the table of the officials. 14. PW-3 Ambapratapsinh Chandravilasshin Jadeja has deposed that he was serving as Police Inspector, ACB at Valsad and he has recorded the complaint of Alkesh Patel against the officials of Bhilad Check Post. He made requisition for panchas thereafter and carried out the raid. During the course of raid, he found out the tainted currency notes through panch No. 1 from the drawer of the table lying nearby the accused. 15. PW-4 Mahavirsinh Pravinsinh Raol has deposed that he has carried out the rest of the investigation and filed the charge sheet. He has deposed that he recorded further statement of the complainant at Surat. 16. On overall analysis of the evidence on record, on going through the contents and recitals revealing from the complaint lodged by Alkeshbhai Patel on 15/09/1997, it is emerging out that the complainant had conversation with one official Mr. Pathak and he demanded the amount of illegal gratification for avoiding penalty of Rs. 26,000/- from him and he had also talked to use good office of Mr. V.M. Patel who was also working as official in the said check post. However, when he visited on 14/09/1997, some another official was found there but that man did not disclose his name though that official demanded initially Rs. 10,000/- which was scaled down to Rs. 5,000/- and he was directed to come on 15/09/1997 afternoon along with the amount of illegal gratification. Nowhere, name of such official who was performing duty at Bhilad Check Post is emerging out from the aforesaid complaint lodged on 15/09/1997 before the ACB, Valsad. Similarly, on going through the entire evidence of panch No. 1, Alkeshbhai Patel, nowhere in his examination in chief, name of present appellant-accused is being disclosed. Nowhere, name of such official who was performing duty at Bhilad Check Post is emerging out from the aforesaid complaint lodged on 15/09/1997 before the ACB, Valsad. Similarly, on going through the entire evidence of panch No. 1, Alkeshbhai Patel, nowhere in his examination in chief, name of present appellant-accused is being disclosed. However, in the last question, he identify the accused without any name while recording his evidence as the person who demanded and accepted the amount of illegal gratification. So far as the evidence of PW-2 who accompanied the complainant at the time of trap is of no help to the prosecution as admittedly and indisputably he had neither heard any conversation between the accused and the complainant nor viewed any transaction of handing over the tainted currency notes to the accused. 17. So far as the identity of the accused is concerned, it appears to have been disclosed while drawing second part of panchnama when pre-arranged signal was raised by the complainant. The members of the raiding party went to the office of the accused at that time, ACB officials asked the name of officials of Bhilad Check Post and in presence thereof he has disclosed his name as "Chandrashekhar" Sale Tax Inspector. Till then neither in the complaint nor in any proceeding, his name is disclosed. Thereafter, on overall evaluation of other evidence on record, whenever as per the recitals revealing from the complaint, some other official namely Mr. Pathak demanded illegal gratification and the official who came to be caught during the course of trap with help of another official, in that case, the person who came to be caught red handed along with tainted currency notes was required to be established by way of recording further statement of the complainant identifying him as to whom he had handed over the amount of illegal gratification and that was also required to be proved during the course of his deposition. However, in his deposition, as regards to establishment of identity of the accused, nothing is revealing. Though his statement came to be recorded at far place at Surat, at that time, admittedly it is noticed that the accused was also taken there and he was also identified by him. In that view of the matter, the identity of the accused also becomes doubtful. Though his statement came to be recorded at far place at Surat, at that time, admittedly it is noticed that the accused was also taken there and he was also identified by him. In that view of the matter, the identity of the accused also becomes doubtful. The identity disclosed during the course of drawing the second part of panchnama at the instance of the Investigation Officer and on being asked, the accused and the accused disclosed his name before the police official which cannot be used as an evidence to establish the identity of the accused. The same could be hit by the provisions of Section 25 and 26 of the Indian Evidence Act. Apart from the same, for identity of the accused, no other evidence is available. 18. So far as demand, acceptance and recovery which are vital ingredients in the case of bribery are concerned, in the present case, indisputably, panchas have not heard and not viewed the incident. The solitary evidence of the complainant is available on record. Though the evidence is consistent so far as the demand and the accused accepting the tainted currency notes by directing the complainant to put the same in the drawer of the table. However, so far as the recovery of the tainted currency notes are concerned, the prosecution has not brought on record the consistent evidence. As per the deposition of the complainant, the same were came to be recovered. No consistent evidence is available on record as per the contemporary panchnama came to be drawn at the relevant time, disclosing that at the behest of Mr. Jadeja, raiding officer, the PW-3 Panch No. 2 recovered the tainted currency notes from the drawer whereas in the deposition of Mr. Jadeja, he deposed that while carrying out search, tainted currency notes were recovered through panch No. 1 from the drawer of the table. 19. Indisputably, it is not the case that the accused accepted the amount by his hand. The amount was found from the drawer of the table and test of anthracene powder by ultra violet lamp was found to be negative. So far as the accused is concerned, in view of the explanation rendered by the accused that he has been wrongly implicated in the case, his explanation is also required to be appreciated in that line. The amount was found from the drawer of the table and test of anthracene powder by ultra violet lamp was found to be negative. So far as the accused is concerned, in view of the explanation rendered by the accused that he has been wrongly implicated in the case, his explanation is also required to be appreciated in that line. Indisputably, Bhilad Check Post is a open place wherein the operations and other things are managed by raising small cubicles type cabins on the road. In that view of the matter, whenever the money was found from the drawer and except the evidence of the complainant, nobody has corroborated the evidence of the complainant. The chance of planting out the said amount in the drawer cannot be ruled out and so far as this issue is concerned, the learned Special Judge has recorded ample reasons. This Court is also agree with the reasonings assigned by the learned Special Judge. 20. For the reasons recorded as above, it appears that the learned trial court has rightly appreciated the evidence on record and rightly acquitted the accused from the charges leveled against him which calls for no interference by this Court. This Court is of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court find that the findings recorded by the 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 acquittal recorded by the court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal. 21. In the result, the present appeal is hereby dismissed. Record and Proceedings to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged. Fine, if any paid, the same shall be returned forthwith. No order as to costs.