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2017 DIGILAW 61 (GUJ)

Madhusudhan Ramanlal Soni v. State of Gujarat

2017-01-12

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The aforementioned both the appeals have arisen out of the same judgment of conviction recorded by the learned Special Judge, Vadodara in Special Case No.07 of 1994, convicting the present appellant under Section 7 of the Prevention of Corruption Act, and awarding rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default, to undergo further simple imprisonment for 30 days and also convicted under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for 2 years and to pay fine of Rs. 500/-, in default, to undergo simple imprisonment for 30 days and therefore, they are being heard and decided by this common judgment. 2. Criminal Appeal No. 1250 of 1999 has been preferred by the original accused questioning his conviction inter-alia contending that the learned trial Judge did not appreciate the evidence on record in its proper perspective and the findings recorded by the learned trial Court, are not based upon the evidence on record. It is further contended that though the prosecution failed to prove vital ingredients i.e. demand, acceptance and recovery, he has been wrongfully convicted. 3. Criminal Appeal No. 73 of 2000 has been preferred by the State of Gujarat for seeking enhancement of sentence inter-alia contending that taking into consideration the menace of corruption prevailing in the society, the accused is rightly convicted and this Court may enhance the sentence imposed by the trial Court. 4. The short facts giving rise to the present appeal are that the complainant tendered the application for entering his name in the property card which is maintained by the City Survey Office, Vadodara. At the time of carrying out such procedure, the appellant-accused demanded Rs. 400/-. Since the complainant did not desire to give any amount to the present appellant-accused, the complainant approached the ACB office. After the complainant lodged the complaint, necessary formalities in respect of trap were carried out at ACB Office and the trap was arranged accordingly. The present appellant-accused was caught red handed while accepting tainted currency notes on 29.04.1993 and thereby, committed the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. After the complainant lodged the complaint, necessary formalities in respect of trap were carried out at ACB Office and the trap was arranged accordingly. The present appellant-accused was caught red handed while accepting tainted currency notes on 29.04.1993 and thereby, committed the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Hence, the complaint came to be lodged against the appellant-accused for the offence punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act. 5. 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. The accused pleaded not guilty to the charge and claimed to be tried. 5.1 In order to bring home the guilt, the prosecution has examined four witnesses and also produced several documentary evidences. 5.2 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. 6. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 7. Mr. Haresh H. Joshi, learned advocate for the original accused has argued that in the present case, the prosecution failed to prove vital ingredients as regard to demand, acceptance and recovery thereof. He further argued that the complainant has supported the prosecution case, but the independent witness panch No. 1 has not at all supported the prosecution case and not given testimony as regard to any demand for anything and as to what he viewed or heard the conversation between the complainant and the accused. He therefore, submitted that so far as the demand and acceptance are concerned, the present case is not getting any sort of corroboration from independent witness. He has further argued that the status of the complainant cannot be placed more than the pedestal of accomplishes and more particularly, the defence has brought on record that the complainant is also involved in the offence of murder and when he was on bail, he has lodged the present complaint, which is not getting any support from the evidence of independent witness, therefore his testimony should not be believed as such. He has also argued that so far as the recovery of tainted currency notes from the person of the accused is concerned, the contradictory evidence is also forthcoming on record. As per the prosecution case, the recovery was made through the panch No. 1, though the panch No. 1 has denied the same and as per the say of the complainant, the said recovery came to be effected through Mr. Vasava - Lamp Operator, which was nobody's case as such. Under such circumstances, he has argued that the entire case as regard to recovery of tainted currency notes becomes doubtful. He has further argued that so far as the tests of anthracene powder as well as ultraviolet lamp are concerned, there is no satisfactory evidence on record and has also urged that the Appeal be allowed and the accused be set at liberty. 8. On the other hand, Mr. Chintan Dave, learned APP for the State has taken this Court through the entire Record and Proceeding and argued that since the complainant has fully supported the prosecution case and also stuck to his version in the cross examination, and therefore, the prosecution has successfully proved the vital ingredients as regard to demand, acceptance and recovery. He has further argued that in such sort of the case, it becomes very difficult to get independent witness and taking into consideration the facts and circumstances of the case, the learned Trial Court found the accused guilty and recorded conviction. As the panch No. 1 who accompanied the complainant at the time of trap had not supported the prosecution case and hence, the entire prosecution case should not be discarded as such. He has further argued that the judgment of the learned Special Judge is in accordance with the law and the evidence available on record and this Court should not disturb the finding recorded by the learned Special Judge and also urged that the conviction be confirmed as well as taking into consideration the seriousness of offence, the sentence inflicted upon the accused is also requires to be enhanced as such. 9. This Court has heard Mr. H.H. Joshi, learned advocate for the appellant and Mr. Chintan Dave, 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. 9. This Court has heard Mr. H.H. Joshi, learned advocate for the appellant and Mr. Chintan Dave, 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. 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. 12. 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. 13. 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 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. 14. 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. 15. Keeping in mind the principal laid down by the Supreme Court in the aforesaid series of decisions in light of the rival submissions came to be 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 that the vital ingredients of demand, acceptance and recovery of illegal gratification of Rs. 400/-or not. 16. P.W. No. 2 - Kanubhai Bapubhai Patel has been examined vide Exhibit 9. He deposed that the trap was conducted on 29.04.1993. He has further deposed that he met the accused Madhusudhan Soni for entering his name in the record of City Survey as well as for obtaining the property card in his favour, for which, the present appellant-accused demanded Rs. 500/-, which was scaled down to Rs. 400/- and it was decided to be paid on 29.04.1993. As he was not willing to pay any amount towards illegal gratification, he approached the ACB Office and lodged the complaint and thereafter, the ACB officials arranged the trap. 500/-, which was scaled down to Rs. 400/- and it was decided to be paid on 29.04.1993. As he was not willing to pay any amount towards illegal gratification, he approached the ACB Office and lodged the complaint and thereafter, the ACB officials arranged the trap. At the time of trap, as it was pre-arranged, he visited the City Survey Office along with the panch No. 1 and met accused Mr. Madhusudan Soni. At that time, the present appellant-accused asked him whether he has brought money as per earlier talk. Thereafter, he replied in affirmative. Therefore, the present appellant-accused told to give him money and also told that his work would be finished within one month. Thereafter, he took out tainted currency notes from his left side pocket with his right hand and gave the same to the present appellant-accused. Thereafter, he accepted the same and placed in left side pocket of his shirt. Thereafter, as he raised pre-arranged signal, other members of raiding party arrived there and thereafter, the recovery was made from the pocket of the accused through Mr. Vasava - Head Constable. He has also admitted in the cross examination that he is involved in the murder case of Kanu Bhavsar and he lodged the present complaint before the ACB when he was on bail. 17. P.W. No. 3 - Maganbhai Karsanbhai Mauryavanshi has been examined vide Exhibit - 12. He deposed that the ACB Police called him as a panch No. 1 at ACB Office on 29.04.1993. The ACB Officials apprised him as to how the raid is to be conducted and what role he is supposed to play during the course of trap as panch No. 1 and he was instructed to remain with the complainant and further to eye-witness the incident which may take place between the complainant and the accused at the time of trap. He has also testified in the examination-in-chief that he does not know as to what conversation took place between the complainant and the accused and he only saw the complainant taking out money from his pocket and giving the same to the accused. He has also clearly and categorically stated in his testimony that the complainant told the accused that he has brought money as per earlier talk and inquired about his work. He has also clearly and categorically stated in his testimony that the complainant told the accused that he has brought money as per earlier talk and inquired about his work. Then, the accused told the complainant that it would take one month to complete his work and the file is lying with the officer and he would give him money if he has brought as per earlier talk. On the contrary, he also denied that as the Investigating Officer got personal search of the accused conducted through the panch No. 1, tainted muddamal currency notes and one white paper having write-up were recovered from the accused during his personal search. 18. P.W. No. 4 - Singabhai Surjibhai Vasava has been examined vide Exhibit - 16. He has deposed that he was performing duty as a Head Constable at ACB Office, Bharuch on 29.04.1993. He was assigned the work of carrying out ultraviolet lamp test which he did in fact. As per his testimony, during the course of personal search of the accused, the recovery was made from the person of the accused through the panch No. 1 from the pocket of shirt which was found to be tainted with anthracene powder and the test of ultraviolet lamp was also found to be positive. 19. In the case of bribery, while examining the oral evidence, the evidences of the complainant as well as panch No. 1 who used to accompany the complainant at the time of trap are very crucial so far as the demand, acceptance and recovery is concerned. On overall analysis of the evidence of the complainant, it appears that the complainant has testified that the accused raised pre-demand which came to be scaled down to Rs. 400/- and even, on the day of trap, he paid the said amount and the accused came to be caught red handed and his evidence so far as the demand is concerned, remains as it is even in the cross examination. However, as laid down in the several decisions, the position of the complainant is no more as a pedestal of accomplish and more particularly, when it is admitted by the complainant that he was involved in the murder case and when he was enlarged on bail, he lodged the present complainant against the present appellant-accused. However, as laid down in the several decisions, the position of the complainant is no more as a pedestal of accomplish and more particularly, when it is admitted by the complainant that he was involved in the murder case and when he was enlarged on bail, he lodged the present complainant against the present appellant-accused. However, the panch No. 1 who was requisitioned by the trapping agency as an official panch - government official has clearly admitted in his deposition that he has not heard anything as regard to the demand made by the accused from the complainant and he did not support the prosecution case. On the contrary, he has made contradictory version as regard to the recovery. As per his say, the recovery of tainted currency notes at the time of trap was not made through him. 20. In view of the aforesaid nature of evidence, while hearing the Appeals, this Court has gone through the Record and Proceedings of the present case. On overall analysis of the evidence of the complainant as well as the aforesaid P.W. Nos. 2 and 3, this Court is not satisfied with their testimony and as the deposition of the complainant is not at all getting any corroboration, it would be very hazardous to confirm the conviction recorded by the learned Special Judge based upon such insufficient evidence. As laid down by the Hon'ble Supreme Court in several decisions, the corroboration in all ACB cases is sine-qua-none, more particularly, when the status of the complainant is tainted with involvement in crime of murder. Solely based upon the sole testimony of the complainant, it would be hazardous to convict the accused in such sort of the cases of bribe. 21. So far as the recovery of tainted currency notes from the person of the accused is concerned, the contrary version is coming on record. As per the panchnama, the recovery of said tainted currency notes came to be effected through the panch No. 1. In the deposition of panch No. 1, he has not accepted that the recovery of tainted currency notes came to be made by him from the person of the accused. Whereas, as per the testimony of the complainant, the recovery of tainted currency notes was effected through Mr. Vasava - Head Constable, who was one of the members of raiding party. Whereas, as per the testimony of the complainant, the recovery of tainted currency notes was effected through Mr. Vasava - Head Constable, who was one of the members of raiding party. The said fact is not getting proved in view of the clear narration made in the documents, more particularly, in the panchnama of the trap, which came to be drawn which is at Exhibit -13, more particularly, on page No. 78 of the paper book. It clearly reveals that the personal search of the accused was carried out through the panch No. 1 and the panch No. 1 recovered tainted currency notes from the pocket of the shirt of the accused which was found to be smeared with anthracene powder and the numbers of tainted currency notes were tallied with the numbers mentioned in the preliminary panchnama. 22. Over and above the aforesaid evidence on record and as emerging out from the prosecution case itself that at the time of trap, even other employees were also present in the room of the accused and they had also witnessed the incident and heard, however they were not examined as independent witnesses in order to corroborate the testimony of the complainant as such. 23. For the reasons recorded above, Criminal Appeal No. 1250 of 1999 succeeds. The judgment of conviction recorded against the accused Mr. Madhusudan Ramanlal Soni by the learned Special Judge in Special Case No. 07 of 1994 is not sustainable at law and the prosecution miserably failed to establish the vital ingredients as regard to the demand and acceptance against him and it is required to be quashed and set-aside. Therefore, the impugned judgment and order of conviction and sentence recorded against accused Mr. Madhusudan Ramanlal Soni by the learned Special Judge in Special Case No. 07 of 1994 is quashed and set aside. The accused-appellant is acquitted from the charges leveled against him. As the accused-appellant is on bail, his bail bond stands discharged. Fine, if paid, be refunded to the appellant. Surety, if any shall stands discharged. Record and Proceedings be sent back to the learned trial Court forthwith. 24. So far as the Criminal Appeal No. 73 of 2000 is concerned, as the judgment of conviction recorded by the learned Special Judge in Special Case No. 07 of 1994 is not sustainable at law, the Appeal preferred by the State seeking enhancement does not survive. Record and Proceedings be sent back to the learned trial Court forthwith. 24. So far as the Criminal Appeal No. 73 of 2000 is concerned, as the judgment of conviction recorded by the learned Special Judge in Special Case No. 07 of 1994 is not sustainable at law, the Appeal preferred by the State seeking enhancement does not survive. In that view of the matter, Criminal Appeal No. 73 of 2000 is devoid of any merits and deserves to be dismissed and accordingly, dismissed. Appeal Dismissed.