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2017 DIGILAW 601 (GUJ)

Pravinchandra Ratilal Modi v. State of Gujarat

2017-03-16

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellants have preferred the aforementioned Appeals under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 23.12.2003, rendered by the learned Special Judge, Ahmedabad City Civil Court No. 6, Ahmedabad in Special Case No. 27 of 1998, wherein the appellants were ordered to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/-, in default, to undergo one month rigorous imprisonment for the offence punishable under Section 7 read with Section 12 of the Prevention of Corruption Act, 1988 and to undergo rigorous imprisonment for two years and to pay a fine of Rs. 4,000/-, in default, to undergo two months rigorous imprisonment for the offence punishable under Section 13 (1) (d), (1) (2) (3) of the Prevention of Corruption Act, 1988. 2. The short facts giving rise to the present Appeals are that the appellants - accused were serving as the officials in the Octroi Brach of Ahmedabad Municipal Corporation, Ahmedabad and they were looking after the assessment and valuation of goods for levying the octroi charges, whereas the complainant Nareshkumar Mavjibhai Patel was carrying on the business of manufacturing and selling electronic generator in the name of Sigma System. The present appellants - accused visited the office of the complainant and informed him that since the delivery place of his goods was Sarkhej, he failed to pay octroi of the said goods and was required to pay octroi of all the goods, delivery of which was taken at Sarkhej. Thereafter, the present appellants - accused, on two occasions, went to the shop of the complainant and demanded Rs. 9,000/- as bribe. As he was not willing to pay any amount to the complainant towards illegal gratification, he lodged the complaint before the ACB, Ahmedabad on 21.04.1998. After following necessary formalities in respect of trap, the trap was conducted. During the course of trap dated 21.04.1998, the accused No. 3 demanded Rs. 9,000/- as the amount of illegal gratification which was accepted by the accused No. 2 and after counting the said amount, the said amount came to be handed over to the accused No. 1 and thereby, all the three accused committed the offence punishable under Section 7 read with Section 12 and 13 (1) (d) (1) (2) (3) of the Prevention of Corruption Act, 1988. Hence, the complaint came to be lodged against the appellants - accused for the offence punishable under Sections 7 read with Section 12 and 13 (1) (d) (1) (2) (3) 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 accused persons. The charge was framed against the accused persons. 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 four 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 appellants have preferred the aforesaid Criminal Appeals before this Court. 5. By way of preferring the present appeals, Mr. Vijay Patel, learned advocate for H.L. Patel Advocates 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. Vijay Patel, learned advocate for H.L. Patel Advocates for the present appellant-accused has taken this Court through the entire evidence available on record and argued that the evidence of the complainant is only decisive so far as the crucial point of determination of demand, acceptance and recovery is concerned as the P.W. No. 2 i.e. panch No. 1 has not supported the prosecution case and was declared hostile and as admitted by him, he has neither heard nor viewed any conversation took place between the complainant and the accused. Therefore, there is no evidence on the record to corroborate the version of the complainant. 7. Mr. Patel has argued that the evidence of the complainant is having a lot of improvements and contradictions and even during the course of cross examination carried out on behalf of ld. Therefore, there is no evidence on the record to corroborate the version of the complainant. 7. Mr. Patel has argued that the evidence of the complainant is having a lot of improvements and contradictions and even during the course of cross examination carried out on behalf of ld. Advocates for all the three respective accused persons before the learned Special Judge, the complainant excluded the accused persons respectively, therefore, there is no uniformity in his evidence and during the cross examination carried out on behalf of one accused, he excluded that particular accused so far as the crime in question is concerned and when he was cross examined on behalf of the second accused, he excluded the second accused and during the cross examination carried out on behalf of third accused, he also excluded third accused so far as the crime in question is concerned. Therefore, his entire evidence becomes unreliable and inconsistent so far as the complaint at exhibit 31 as well as his previous statement came to be recorded before the police after the trap are concerned. Mr. Patel, learned advocate during the course of hearing pointed out the contradictions as well as mutual exclusion of each of the accused persons during the course of cross examination carried out by him. He has further pointed out that on evaluating his evidence in totality, the prosecution case leads no further link to connect any accused with the crime in question, therefore, the learned judge has fallen in error in appreciating the evidence and wrongfully recorded conviction and the findings recorded by the learned Special Judge is not in consonance with the evidence available on record and therefore, the conviction recorded by the learned Special Judge is required to be quashed and set-aside as such. Mr. Patel has further argued that so far as the evidence of the complainant excluding the accused persons during the course of cross examination is concerned, it is also getting some sort of corroboration from the evidence of eye witnesses also. Further, he has argued that the contradictions brought on the record during the course of cross examination were not proved by the prosecution during the course of cross examination of the Investigating Officers who were examined as P.W. No. 3 and 4. Further, he has argued that the contradictions brought on the record during the course of cross examination were not proved by the prosecution during the course of cross examination of the Investigating Officers who were examined as P.W. No. 3 and 4. For want of proving the contradictions during the course of examination of the Investigating Officers, the contradictions brought on the record remain as it is and for want of proving, it would not be helpful to the prosecution at all. Further, he has argued that if the evidence of the complainant may be believed to be true, in that case also, it has not been corroborated by the P.W. No. 2 - panch No. 1 who alleged to have accompanied the complainant at the time of trap. In that case also, it would also be very hazardous to record the conviction solely based upon the uncorroborated testimony of the complainant. 8. Ms. Shilpa J. Unwalla and Mr. Hardik Dave, learned advocates for the appellant Nos. 2 and 3 respectively adopted the arguments advanced by Mr. Vijay Patel, learned advocate for the appellant No. 1 and requested this Court to consider the said arguments as the arguments on behalf of the appellants in the respective Criminal Appeals. 9. 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 appellants 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. 10. This Court has heard learned advocates - Mr. Vijay Patel, Ms. Shilpa J. Unwalla, Mr. H.A. Dave, for the appellants and Mr. K.P. Raval, learned APP for the respondent - State. 11. Therefore, this Court may not disturb the findings recorded by learned trial Court. 10. This Court has heard learned advocates - Mr. Vijay Patel, Ms. Shilpa J. Unwalla, Mr. H.A. Dave, for the appellants and Mr. K.P. Raval, learned APP for the respondent - State. 11. 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. 12. 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. 13. 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-a-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. 14. 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. 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. 15. 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. 16. 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. 9,000/- or not. 17. P.W. No. 1 - Nareshbhai Mavjibhai Patel has been examined vide exhibit 30. He has deposed that he is running business in the name and style of Sigma System for manufacturing electronics items. All the three accused persons were serving in Octroi Department, Ahmedabad Municipal Corporation, Ahmedabad. The accused persons visited his office for about three - four times previously. The original accused No. 2 Dawood Vohra visited his office in the month of April, 1988 and asked him to pay Rs. 11,000/- towards octroi. All the three accused persons were serving in Octroi Department, Ahmedabad Municipal Corporation, Ahmedabad. The accused persons visited his office for about three - four times previously. The original accused No. 2 Dawood Vohra visited his office in the month of April, 1988 and asked him to pay Rs. 11,000/- towards octroi. At that time, the accused No. 1 Siddharth also accompanied with him. At that time, he told the accused persons to give him two - three days for making arrangement for money, as he had no money at that time. Thereafter, the said accused Dawood told him that he would have to pay Rs. 20,000/-. As he was not willing to pay any amount towards illegal gratification, he approached the ACB, Ahmedabad and lodged the complaint Exhibit - 13. Thereafter, the ACB official arranged the trap, requisitioned the panchas. Thereafter, they were made to understand the test of anthracene powder on the currency notes as well as ultraviolet lamp test and thereafter, he handed over Rs. 9,000/- to the ACB official, which were smeared with anthracene powder and thereafter, he was instructed to hand over the same to the accused if the accused makes demand for it. On 21.04.1998, when he was in his office at Punitnagar Crossing, he was also accompanied with the panch No. 1. At that time, other members of raiding party were standing outside his office. The accused No. 2 Dawood Vohra came alongwith four - five persons in ambassador car to his office and thereafter, the accused persons - Dawoodbhai and Shukla entered in his office and the accused dawood asked for money. Thereafter, he handed over Rs. 11,000/- for which the accused Siddharth prepared the receipt for Rs. 11,000/- and thereafter, the accused Dawood demanded Rs. 9,000/- which was an amount for illegal gratification which he accepted and thereafter, he handed over to accused Siddharth and said Siddharth placed the said amount of illegal gratification into his pocket and thereafter, he gave pre-arranged signal and due to which, the members of raiding party arrived to his office. Thereafter, the test was found positive so far as the hands of the accused Siddharth are concerned. He identified the accused Dawood and Siddharth. He has also deposed that he also knew the accused No. 3 as he visited his office once. Thereafter, the test was found positive so far as the hands of the accused Siddharth are concerned. He identified the accused Dawood and Siddharth. He has also deposed that he also knew the accused No. 3 as he visited his office once. He further deposed that the accused No. 3 entered his office after the amount was handed over to the accused Dawood. In the cross examination, he admitted that he did not mention in the complaint that Siddharth was accompanied with Dawood. He further admitted that he has not mentioned in the complaint that Siddharth had ever visited his office before lodging the complaint. He also admitted that he has not mentioned the said fact in his police statement. He also admitted that neither in his complaint nor in his police statement, he had mentioned the name of Siddharth - accused No. 1. He further admitted that he does not remember as to whether Praveen Modi and two others came for checking after Diwali or not. He further admitted that he cannot recollect as to whether he dictated in his complaint that there were three officers and Mr. Praveenbhai Modi was one of them and other two persons came for checking. Further, he also admitted that the officers visited his office thrice and Dawood Vhora and Siddharth Shukal came at that time. He further admitted that all the three times, the officials were different. He further admitted that he cannot recollect that anyone of them was common all the times. He also admitted that he stated neither in the complaint nor in the police statement 27.04.1998 that two - three times officials visited his office and accused Praveen Modi was common at all the times. He further admitted that he has dictated neither in his complaint nor the statement that the persons who came for two - three times, were Dawood and Siddharth. He also admitted that he has not stated that the said accused Dawood and Siddharth visited his office prior to 20.04.1998. Similarly he has not stated the said fact in his police statement dated 27.04.1998. He also denied that he has not stated such fact in his statement that four - five persons were arrived in ambassador car. 18. P.W. No. 2 - Narendrabhai Bhaskarbhai Chadhary has been examined vide Exhibit 37. He has deposed that he was serving as an Accountant in the Treasury Office. He also denied that he has not stated such fact in his statement that four - five persons were arrived in ambassador car. 18. P.W. No. 2 - Narendrabhai Bhaskarbhai Chadhary has been examined vide Exhibit 37. He has deposed that he was serving as an Accountant in the Treasury Office. He was called as a panch by ACB Office. He was apprised as to the complaint of the complainant. Thereafter, the said complainant presented currency notes of Rs. 9,000/-, which were smeared with anthracene powder and the test of ultraviolet lamp was carried out in his presence. Thereafter, he was directed to accompany the complainant. However, he did not support the case of the prosecution and was declared hostile. In the cross examination carried out on behalf of the learned APP, he has disowned his statement made before the police. He admitted in the cross examination that he was outside the cabin of the complainant at the time of trap. 19. P.W. No. 3 - Keshavlal Kodarlal Patel has been examined vide exhibit 38. He has deposed that he was serving as a Police Inspector, ACB, Ahmedabad. He arranged the trap on 21.04.1998. He recorded the complaint of the complainant - Nareshbhai Mavjibhai Patel and carried out the entire trap. He further deposed as to how he arranged the trap and how the trap was conducted. He also identified the muddamal as well as the accused before the Court. However, in the cross examination, he admitted that no ultraviolet test was carried out on the pocket of the accused Mr. Siddharth and even the same was not mentioned in the panchnama also. The panch No. 1 was found to be seated over sofa outside the room of the complainant though he directed him to accompany the complainant throughout the entire trap. He also admitted that in spite of such instruction, the panch did not accompany the complainant and remained outside the room. He also admitted that there were other persons in the room of the complainant and he did not record their statements. He also admitted that accused Dawood had not demanded Rs. 9,000/- from the complainant and the same was even not written in the complaint. 20. P.W. No. 4 - Hareshkumar Prafulchandra Agrawat has been examined vide exhibit No. 42. He also admitted that there were other persons in the room of the complainant and he did not record their statements. He also admitted that accused Dawood had not demanded Rs. 9,000/- from the complainant and the same was even not written in the complaint. 20. P.W. No. 4 - Hareshkumar Prafulchandra Agrawat has been examined vide exhibit No. 42. He has deposed that he has carried out the part of the investigation and recorded further statement of the complainant Mr. Nareshbhai Mavjibhai Patel as well as other witnesses and submitted the charge sheet after obtaining requisite sanction to prosecute the case. In the cross examination, he admitted that the complainant has not stated before him that all the three accused visited his office together before lodging the complaint. He also admitted that the names of the accused Praveenbhai and Dawood were given as the persons who visited the shop of the complainant on 20th and the name of Siddharth was not given. 21. On overall analysis of the evidence on record, so far as the establishment of vital ingredients with regards demand, acceptance and recovery is concerned, the evidence of the complainant is not corroborated by the P.W. No. 2 - panch No. 1 as admittedly the P.W. No. 2 - panch No. 1 did not accompany the complainant at the time of trap as he was found to be seated over sofa outside the room of the complainant. Therefore, he neither heard the conversation took place between the complainant and the accused nor he viewed the incident in respect of handing over tainted currency notes to the accused by the complainant. Now, the only decisive evidence of the complainant is available on the record. On overall evaluation of the evidence of the complainant on record, as per the prosecution case, at the time of trap, the accused No. 3 - Mr. Modi demanded the amount of illegal gratification and the same was accepted by the accused No. 2 - Mr. Dawood and thereafter, accused Dawood handed over the same to the accused No. 1 - Mr. Siddharth. That is the precise charge came to be framed against the present appellants - accused persons. However, the complainant deposed in the examination-in-chief that the accused No. 2 - Dawood demanded Rs. Dawood and thereafter, accused Dawood handed over the same to the accused No. 1 - Mr. Siddharth. That is the precise charge came to be framed against the present appellants - accused persons. However, the complainant deposed in the examination-in-chief that the accused No. 2 - Dawood demanded Rs. 9,000/- and Dawood himself accepted the said amount and thereafter, he handed over the same to the accused No. 1. However, he admitted in his cross examination carried out on behalf of the accused Mr. Siddharth that accused Mr. Siddharth never visited his office before he lodged the complaint and even, he did not mention his name in the complaint as well as in his statement. He also admitted that he stated neither in the complaint nor in his statement that accused - Mr. Siddharth was ever accompanied Mr. Dawood. When the cross examination was carried out on behalf of the accused No. 2 - Mr. Dawood, he also excluded the accused No. 2 from the crime in question as narrated above. Similarly, when his cross examination was carried out for the accused No. 3, he excluded the accused No. 3 from the crime in question as narrated above in the deposition of the complainant. 22. In view of the aforesaid nature of the evidence of the complainant, the story put-forth by the complainant in the complaint at exhibit 31 and thereafter the statement came to be recorded, whatever the story he put-forth in the aforesaid complaint and statement is not consistent with his oral version given before the learned trial Court. In the examination-in-chief, he involves the accused No. 2 and 1, whereas in the cross examination carried out on behalf of each of the accused, he used to exclude the accused on whose behalf, the cross examination is being made by the learned advocate for the accused. In the result, his evidence is not consistent, reliable and trustworthy. In view of the aforesaid nature of the evidence, this Court has no option except to discard his evidence in toto. In doing so, there appears no evidence against the accused to link with the crime in question. 23. For the reasons recorded above, the appeals succeeds. The judgment and order of conviction dated 23.12.2003, rendered by the learned Special Judge, Ahmedabad City Civil Court No. 6, Ahmedabad in Special Case No. 27 of 1998 is quashed and set aside. In doing so, there appears no evidence against the accused to link with the crime in question. 23. For the reasons recorded above, the appeals succeeds. The judgment and order of conviction dated 23.12.2003, rendered by the learned Special Judge, Ahmedabad City Civil Court No. 6, Ahmedabad in Special Case No. 27 of 1998 is quashed and set aside. The appellants are acquitted of the charges levelled against him. Bail bond, if any, stands cancelled. Fine, if any, paid be refunded to the appellants-accused persons. R & P be sent back to the trial Court, forthwith.