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2017 DIGILAW 647 (GUJ)

Dineshkumar Mohanlal Raval v. State of Gujarat

2017-03-22

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 15.2.2005 passed by the learned Joint District Judge and Additional Sessions Judge, Fast Track Court No. 8, Palanpur, in Special Case No. 66 of 2001, whereby the learned Judge has convicted the appellant-accused under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to suffer simple imprisonment for one year and to pay a fine of Rs. 2,000/- in default to undergo simple imprisonment for 15 days more. 2. The short facts giving rise to the present appeal are that complainant-Parbatji Pratapji Thakore was residing at Village Jenal, Taluka Deesa, District Banaskantha and he was an agriculturist. As the complainant wanted to take benefit of subsidy for digging tube well in his field, he filled up a prescribed form and completed all formalities of getting subsidy. Thereafter, he approached Gram Panchayat at Deesa and met Gram Sevak-Dineshkumar Mohanlal-accused for the aforesaid purpose. For issuing the subsidy, Gram Sevak-Dineshkumar demanded Rs. 23,000/- as an amount of illegal gratification. The complainant gave total Rs. 1150/- in three part to the Gram Sevak and thereafter the complainant was directed to pay Rs. 2,000/- on 10.10.2000. As the complainant was not willing to pay bribe amount, he filed a complaint before Anti Corruption Bureau, Palanpur. Thereafter, a trap was arranged and ultimately the accused was caught red handed. Thereafter a seizure memo and other procedure in relation to the trap was carried out in presence of the panchas. Hence, a complaint came to be lodged against the appellant-accused for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) 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 appellant accused. 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 three witnesses and also produced several documentary evidences. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant accused. 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 three 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, the 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, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 6. Mr. Sandeep Bhatt, learned advocate appearing for the appellant has taken this Court through the evidence of the witnesses as well as impugned order and submitted that this is a clear case, wherein the complainant has turned hostile and has not at all supported the case of the prosecution. Therefore, the vital ingredients regarding demand and acceptance have not been proved. He has further submitted that the complainant took a loan from the accused and the same still remained unpaid and that amount was demanded frequently by the accused due to which, the complainant got excited and lodged the present complaint alleging that the accused demanded illegal gratification from him and in order to prove the aforesaid fact, a receipt at Exh:15 written by the complainant wherein it is clearly mentioned that the complainant would repay the loan amount of Rs. 2,000/- to the accused within 8 to 10 days. He has further submitted that Mr. 2,000/- to the accused within 8 to 10 days. He has further submitted that Mr. Prahalad Ramjibhai-Panch No. 1 who was made to act as Panch in whose presence the trap was arranged, has clearly admitted in his cross-examination that he has not viewed and heard any conversation between the complainant and accused and he has also admitted that the trap was carried out at the office of Taluka Panchayat whereas the search and seizure was held at Government Rest House which is different place, therefore, the entire procedure of search and seizure got vitiated. In that view of the matter, the main ingredients i.e. demand, acceptance and recovery itself are not established. He has further submitted that there is no iota of evidence to connect the accused with the crime. He has further submitted that when the complainant has not supported the case of the prosecution then neither the demand nor the acceptance or the recovery or the seizure can proved in accordance with the provisions of law. Therefore, the judgment rendered by the learned trial Court is based upon the assumption that the accused was present at the time of trap and collected the bribe amount. The demand and acceptance are presumed by the trial Court, which is not in accordance with the principle laid down for appreciation of the evidence and assertion of cases made by this Court and Hon'ble Supreme Court as such. Lastly, the learned advocate has requested this Court to allow the present appeal. 7. On the other-hand, Mr. K.P. Raval, learned APP has supported the judgment rendered by learned trial Court. He has submitted that vital ingredient i.e. demand is clearly coming out from the complaint itself and at the time of raid also, the complainant delivered tainted currency notes and, therefore, demand itself is proved as the tainted currency notes were recovered from the possession of the appellant-accused. He has further submitted that the finding recorded by the learned trial Court is in accordance with the evidence available on record which calls for no interference. 8. This Court has heard Mr. Sandeep Bhatt, learned advocate appearing 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. 8. This Court has heard Mr. Sandeep Bhatt, learned advocate appearing 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. As per the prosecution version, complainant-Parbatji Pratapji Thakore was residing at Village Jenal, Taluka Deesa, District Banaskantha and he was an agriculturist. As the complainant wanted to take benefit of subsidy for establishing tube well in his field, he filled up a prescribed form and completed all formalities of getting subsidy. Thereafter, he approached Gram Panchayat at Deesa and met Gram Sevak-Dineshkumar Mohanlal-accused for the aforesaid purpose. For issuing the subsidy, Gram Sevak-Dineshkumar demanded Rs. 23,000/- as an amount of illegal gratification. The complainant gave total Rs. 1150/- in three part to the Gram Sevak and thereafter the complainant was directed to pay Rs. 2,000/- on 10.10.2000. As the complainant was not willing to pay bribe amount, he filed a complaint before Anti Corruption Bureau, Palanpur. Thereafter, a trap was arranged and ultimately the accused was caught red handed while accepting tainted currency notes during the course of trap and thereby, he committed offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 10. 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, irrespective of the fact that the raid was carried out and recovery was made, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt with regard to the factum of demand and acceptance. 11. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. 11. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. In the case of A. Subair v. State of Kerala reported in (2009) 6 SCC 587 , while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon'ble Apex Court ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused-appellant 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 the case of State of Kerala and another v. C.P. Rao reported in (2011) 6 SCC 450 , the Hon'ble 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-appellant and in absence of any evidence to prove payment of bribe or to show that the accused-appellant had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 13. In a recent enunciation by the Hon'ble Supreme Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined by the Hon'ble Apex Court in the case of B. Jayaraj v. State of A.P. Rerpoted in AIR 2014 SC (Supp) 1837, 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)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1) (d)(i)&(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 reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon'ble Apex Court in the case of Sujit Biswas v. State of Assam, reported in (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 15. P.W. No. 1-Parbatji Pratapbhai Thakore-complainant has deposed that he was residing at Village Jenal, Taluka Deesa, District Banaskantha and he was agriculturist. He has further deposed that he wanted to dig tube well in his field and for which, he filled up a prescribed form and completed all formalities of getting subsidy. He has further deposed that thereafter, he approached Gram Panchayat at Deesa and met Gram Sevak-Dineshkumar Mohanlal-accused for the aforesaid purpose. He has further deposed that he took a loan of Rs. 2,000/- from the accused and the same still remained unpaid and that amount was demanded frequently by the accused due to which, he got excited and lodged the present complaint alleging that the accused demanded illegal gratification. He has further deposed that he took a loan of Rs. 2,000/- from the accused and the same still remained unpaid and that amount was demanded frequently by the accused due to which, he got excited and lodged the present complaint alleging that the accused demanded illegal gratification. He has further deposed that though he lodged a complaint before the ACB and signed in it, but he did not know what was mentioned in the complaint. However, the complainant was declared hostile and he has not supported the case of the prosecution. However, in his cross-examination, he has admitted that he took a loan of Rs. 2,000/- from the accused before a month from the date of the complaint and the same still remained unpaid and that amount was demanded frequently by the accused and he apprised the said fact to one Dhanjibhai and said Dhanjibhai advised him to lodge a complaint before the ACB and he lodged the present complaint alleging that the accused demanded illegal gratification. He has further admitted that he gave a receipt at Exh:15 to the accused wherein he jotted down the cause of delay for repaying the loan amount and he also jotted down in the receipt that he would repay the said amount within 8 to 10 days. 16. PW-2-Prahaladbhai Ramjibhai-Panch No. 1 had deposed that he was serving as Junior Clerk in the Office of Regional Transport Officer at Palanpur and on 10.10.2000, he was requisitioned by the prosecution to act as panch in the trap prior to holding the raid. He has further deposed that he went to the ACB Office and thereafter he was introduced to the complainant and was given to understand detail information as to how the raid was going to be conducted and as to how the anthracene powder is to be applied and as to how the experiment of ultra-violet lamp is to be carried out. He has further deposed that he was instructed to accompany complainant and to hear as to what conversation took place between them and rest of the members were directed to see the incident outside the office. He has further deposed that on 10.10.2000, he along with complainant and other members reached the office of the Taluka Panchayat at Deesa. Thereafter, complainant, accused and one Mr. He has further deposed that on 10.10.2000, he along with complainant and other members reached the office of the Taluka Panchayat at Deesa. Thereafter, complainant, accused and one Mr. Ramsinh Barot went outside the office for tea at tea stall situated nearby the office of the accused and thereafter they took tea and at that time, the complainant told the accused that he has brought Rs. 2,000/- and thereafter accused and complainant went towards the compound and came back to the tea stall. He has further deposed that the complainant placed the tainted currency notes into the pocket of shirt of the accused. Thereafter, as decided earlier, pre-arranged signal was given to the other members of the raiding party and the ACB personnel came there and caught hold of the accused-appellant red handed. He has further deposed that thereafter the ACB Officials took the appellant to Government Rest House where search was carried out and tainted currency notes were recovered from the possession of the accused-appellant. Thereafter, second part of the panchnama was carried out in the presence of accused-appellant and the said tainted currency notes were seized. However, in his cross-examination, he has admitted that the test of the ultraviolet was found to be negative. He has admitted that the receipt at Exh:15 was shown by the accused to the Police Inspector-Shri Pandav but Police Inspector ignored the same. He has further clearly and categorically admitted, more particularly, in para 26 of his cross-examination that at the time of incident, the complainant as well as the accused were having posterior posture to him and due to which, he could not hear as to what conversation was going on between them and could not view as to what happened between them during the trap. 17. On overall analysis of the oral evidence as well as documentary evidence on record, it is clearly emerging out the fact that PW-1-complainant did not support the case of the prosecution and he disowned the complaint at Exh:32 and stated in his deposition that the accused never demanded any illegal gratification from him and he denied that he was unaware as to what was mentioned in the complaint and ACB Officials never recorded his statements. He was therefore, declared hostile. 18. He was therefore, declared hostile. 18. So far as the evidence of Panch No. 1 is concerned, in his deposition, he has deposed that he read over the contents of complaint and he accompanied the accused during the trap and he saw the entire episode happened between the accused and the complainant. However, in his cross-examination, he took u-turn and admitted that the complainant as well as the accused were having posterior posture to him and due to which, he could not hear as to what conversation was going on between them and could not view as to what happen between them during the trap. Not only that but he has clearly admitted that the test of the ultraviolet lamp was found to be negative. In view of the aforesaid evidence, the accused cannot be linked with the crime in question. In the present case, the complainant himself has disowned his own complaint and on the contrary deposed that the amount handed over to the accused was against the loan. In that view of the matter, if it is believed to be true that the tainted currency notes were recovered from the accused but it is not proved that the said amount was against illegal gratification. In that view of the matter, main vital ingredients of illegal gratification, namely demand, acceptance and recovery are itself missing in the present case and so far as the recovery of tainted currency notes are concerned, the notes which were recovered from the possession of the accused is meaningless. 19. On overall evaluation of the evidence on record, nothing concrete fact reveals from the mouth of the panch No. 1 and complainant to connect the accused with the crime, On the contrary, evidence on record clearly indicates that the complainant took a loan of Rs. 2,000/- from the accused and the same still remained unpaid and that amount was demanded frequently by the accused due to which, he got excited and lodged the present complaint alleging that the accused demanded illegal gratification. The complainant even gave a receipt in his writing and the same is on record wherein it is clearly mentioned that he would repay the loan amount within 8 to 10 days. Therefore, it proves from the receipt at Exh15 that the complainant took a loan of Rs. 2000/- from the accused. The complainant even gave a receipt in his writing and the same is on record wherein it is clearly mentioned that he would repay the loan amount within 8 to 10 days. Therefore, it proves from the receipt at Exh15 that the complainant took a loan of Rs. 2000/- from the accused. As per the panch No. 1 the said receipt was given to the Police Inspector by the complainant but the Police Inspector ignored the same. The crux of deposition of the complainant is emerging out that the complainant handed over the aforesaid tainted currency notes towards his loan and not as a bribe. One interesting feature also emerges out from the prosecution case that the trap was carried out in the office of Gram Panchayat, whereas the entire search and seizure was carried out in the Government Rest House at Deesa. Consequently therefore, the entire procedure of search and seizure came to be vitiated. 20. In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, the prosecution has to prove three main vital ingredients of illegal gratification, namely demand, acceptance and recovery of tainted currency note. So far as the demand and acceptance of the illegal gratification is concerned, complainant has been declared hostile during the course of trial and he did not support the case of the prosecution. Even in his evidence, he has clearly and categorically accepted that the amount was demanded by the accused was in the form of loan which he earlier took from accused. In that view of the matter, nothing reveals from the evidences of the complainant. 21. In view of the aforesaid nature of evidence, when demand and acceptance is not proved which are vital ingredients so far as establishing the guilt of accepting illegal gratification is concerned and in consequence whereof, recovery of tainted currency notes which was found in the trap from the appellant-accused becomes meaningless. In this view of the matter, finding recorded by learned trial Court is not in consonance with the evidence available on record. Therefore, as stated above, in absence of any specific and clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable. 22. In this view of the matter, finding recorded by learned trial Court is not in consonance with the evidence available on record. Therefore, as stated above, in absence of any specific and clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable. 22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. 23. For the reasons recorded above, this appeal succeeds. The impugned judgment and order dated 15.2.2005 passed by the learned Joint District Judge and Additional Sessions Judge, Fast Track Court No. 8, Palanpur, in Special Case No. 66 of 2001 is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. Fine, if paid, be refunded to the appellant. Surety, if any shall stands discharged. R & P be sent back to the trial Court, forthwith. Appeal Allowed