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2017 DIGILAW 725 (GUJ)

State of Gujarat v. Kavanben Valjibhai Pandor

2017-04-03

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant State of Gujarat has preferred the present appeal under section 378(1) (3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 18.10.2003 rendered by learned Special Judge, 2nd Fast Track Court, Junagadh in Special Case No. 6 of 1992. 2. The short facts giving rise to the present appeal are that the complainant approached the respondent accused who was discharging his duty as public servant for obtaining voucher book for free travelling in ST buses as he was handicapped person and having paralysis, at that time, the respondent accused demanded Rs. 150/- for issuance of such vouchers/passes. It is the case of the prosecution that the respondent accused accepted Rs. 150/- against the aforesaid demand and thereby committed the offence for which the complaint came to be registered against the respondent accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the respondent 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 several witnesses and also produced documentary evidences. 3.2 At the end of trial, after recording the statement of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant State 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 acquittal. 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 acquittal is required to be reversed, as such. 5.1 Ms. Monali Bhatt, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that the finding recorded by learned trial Court is based upon the presumptions and surmises. 5.1 Ms. Monali Bhatt, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that the finding recorded by learned trial Court is based upon the presumptions and surmises. She further submitted that learned trial Court has not rightly appreciated the evidence on record. She submitted that evidence of the complainant as well as panch No. 1 is consistent so far as establishment of vital ingredients i.e. demand, acceptance and recovery thereof. In her submission, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondent is required to be convicted, as such. 6. On the other-hand, Mr. Hriday Buch, learned advocate for the respondent No. 1 accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Mr. Buch submitted that learned trial Judge has recorded ample reasons while delivering the judgment and based its findings on the evidence available on record and that there is no evidence on record to link the respondent No. 1 accused with the crime in question. He submitted that it was the clear admission made by the complainant that he submitted the certificate of disability to the extent of 30% and therefore, he was not entitled to receive free voucher/pass of ST for travelling and thereafter within one month, he obtained the certificate of disability to the extent of 50% from the Civil Surgeon for which the accused told that he could have to consult the superior and therefore the complainant got annoyed and lodged the complaint involving the accused. He submitted that the complainant availed the services of accused No. 2 for processing and filling up the form for which he paid the charges for doing so as well as for getting the xerox to the extent of Rs. 100/- and Rs. 150/- and that was not against illegal gratification. He submitted that PW 4 - Police Inspector, ACB, Junagadh has recorded the complaint, arranged for the trap, carried out the entire investigation and thereafter filed the charge-sheet, meaning thereby, PW 4 assumed all the roles and therefore, the investigation gets vitiated. 100/- and Rs. 150/- and that was not against illegal gratification. He submitted that PW 4 - Police Inspector, ACB, Junagadh has recorded the complaint, arranged for the trap, carried out the entire investigation and thereafter filed the charge-sheet, meaning thereby, PW 4 assumed all the roles and therefore, the investigation gets vitiated. He, therefore, submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the respondents accused, and therefore, the present appeal deserves to be dismissed. 7. Mr. Hardik Shah, learned advocate for respondent No. 2 - original accused has submitted that respondent No. 2 is the private individual and he used to carry out clerical work outside the government office and he was not public servant. He submitted that respondent No. 2 was getting livelihood by filling up the forms etc. and for such work, he used to get remuneration from the persons who were visiting the office of accused No. 1 and that he was engaged by the complainant for filling up the form for getting free voucher/pass of handicapped for free transport facility in ST buses. He submitted that for doing the said work, the respondent No. 2 was also required to get the papers xerox and for such work, he charged Rs. 150/- from the complainant and he has nothing to do with the accused No. 1 for carrying out the said work and that he was not acting at the behest of the accused No. 1. 8. This Court has heard Ms. Monali Bhatt, learned APP for the appellant State and Mr. Hriday Buch, learned advocate for respondent No. 1 - accused and Mr. Hardik Shah, learned advocate for respondent No. 2 - accused. 9. This Court has minutely gone through the impugned judgment and order rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, the complainant wanted to have voucher/pass of handicapped for having free transport facility in ST buses and therefore, he approached the office of accused No. 1, at that time, the accused No. 1 demanded Rs. 150/- in collusion with accused No. 2 as illegal gratification. As per the prosecution version, the complainant wanted to have voucher/pass of handicapped for having free transport facility in ST buses and therefore, he approached the office of accused No. 1, at that time, the accused No. 1 demanded Rs. 150/- in collusion with accused No. 2 as illegal gratification. As the complainant was not willing to pay the said amount, he lodged the complaint on 27.1.1992 and on the same day, during the course of trap, the accused No. 2 was caught red handed along with tainted currency notes of Rs. 150/- and thereby, the accused committed the offence as alleged. 10. PW 1 - Dipakbhai Kanjibhai Chavda has been examined at Exh. 21. The witness has narrated almost all the facts narrated in the complaint. The witness has deposed that at the time of trap, in pursuance of the demand made by accused No. 2, he handed over the tainted currency notes. Precisely, the witness has fully supported the case of the prosecution in the examination-in-chief. However, in the cross examination, the witness has admitted that initially, he obtained the certificate of disability to the extent of 30% from the Civil Surgeon, Junagadh and the person having disability less than 40% is not eligible for getting free voucher for transport in ST bus and therefore, his request was declined by the present respondent No. 1. The witness has deposed that thereafter within a period of month, he obtained another certificate disclosing his disability to the extent of 50% and therefore, respondent No. 1 told him that he would have to inquire from the higher official as to how the certificate of 30% disability had become the certificate of 50% disability and thereafter he would do initiate procedure. The witness has admitted that as the respondent No. 1 has told the aforesaid things, he got annoyed. The witness has clearly admitted that on the day of trap when he visited accused No. 1, accused No. 1 appraised him that if he is unable to fill up the form, then he can contact the application writer who is sitting outside the office and therefore, the witness himself has made search and found out the accused No. 2 and he himself has entrusted the work to accused No. 1. At that time, respondent No. 2 was also instructed to get xerox copies from the market and he will be paid requisite remuneration and no further talks were taken place between them. The witness has admitted that he appraised the PW 4 - Police Inspector, ACB regarding the aforesaid conversation took place between accused No. 2 and him. The witness has admitted that there was no conversation between accused No. 1 and him to hand over Rs. 150/- to accused No. 2, but the said talk had taken place between accused No. 2 and him in the morning. 11. PW 2 - Jetha Najabhai Samal - shadow witness has been examined at Exh. 25. The witness has fully supported the case of the prosecution in examination-in-chief. However, in the cross examination, the witness has admitted that there was conversation between the accused No. 2 and the complainant as regards to his remuneration. 12. PW 4 - Gunvantgiri Lalugiri Goswami has been examined at Exh. 46. The witness has deposed that while he was serving as Police Inspector, ACB, Junagadh on 27.1.1992, the complainant met him and disclosed the complaint which he recorded. The witness has deposed that thereafter he requisitioned panchas, arranged for the trap, carried out the investigation and filed the charge-sheet. 13. On overall analysis of the aforesaid evidence on record and having perused the impugned judgment and order, it appears that learned trial Judge has recorded ample reasons while acquitting the respondents accused. Learned trial Judge has recorded the finding that the prosecution has miserably failed to establish the vital ingredients as regards to demand and acceptance as the complainant himself has admitted in his cross examination that he was illiterate and he initially obtained the certificate disclosing his disability to the extent of 30% and hence, he was not eligible to get voucher for free transportation in ST buses and thereafter subsequently, he got certificate disclosing his disability to the extent of 50% and therefore as the objection was raised by accused No. 1 as regards to his eligibility, the complainant got annoyed. Even, in the cross examination, the complainant has admitted that whatever talk as regards to remuneration which was required to be paid for processing his application as well as getting the papers xeroxed from the market took place, it was with accused No. 2 and accused No. 2 demanded Rs. Even, in the cross examination, the complainant has admitted that whatever talk as regards to remuneration which was required to be paid for processing his application as well as getting the papers xeroxed from the market took place, it was with accused No. 2 and accused No. 2 demanded Rs. 150/- for his remuneration as he was private personnel and he charged for his work which has nothing to do with the accused No. 1. In view of the clear admission of the complainant that accused No. 2 was searched out by him for processing his application as well as getting the work done and he was not recommended by accused No. 1, in this eventuality, it would be very difficult to believe that there was collusion between accused Nos. 1 and 2. If the accused No. 2 had charged for processing the application of the complainant as well as getting it xeroxed as his personal remuneration, the same would not fall within the definition of "illegal gratification" as defined under section 7 of the Prevention of Corruption Act 1988. In this view of the matter, this Court is of the considered opinion that learned trial Judge has rightly not believed the case of the prosecution. It is by now well settled that demand has to be proved by adducing clinching evidence. Under the circumstances, in absence of specific and clinching evidence to prove all such acts by the respondents accused, acquittal recorded by learned trial Judge cannot be converted into conviction. 14. One another disturbing feature comes out from the Record and Proceedings of the case is regarding the fact that PW 4 - Police Inspector has assumed all roles right from the stage of recording the complaint, arranging trap as well as members of raiding party, carrying out investigation till filing of the charge sheet. This course of action goes against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of the prosecution becomes suspicious on this count only. In the facts of the present case, the status of the investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. In the facts of the present case, the status of the investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decision of the Honourable Apex Court in the case of Bhagwan Singh v. State of Rajasthan, reported in AIR 1976 SC 985 , followed by this Court in the case of Kanubhai Kantibhai Patel v. State of Gujarat, reported in 1998 (1) GLH 924 as well as in the case of Gopal Lal Ghisulal Chhipa (supra). Therefore, in this case, the prosecution case suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly the whole proceedings based on such investigation deserves to be quashed and set aside on this count only. Therefore, the prosecution has miserably failed to establish the vital ingredients i.e. demand, acceptance and recovery. 15. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. 16. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondents accused of the charges leveled against them. This Court finds that the findings recorded by learned 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 learned court below and hence finds no reasons to interfere with the same. 17. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.