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2017 DIGILAW 762 (GUJ)

State of Gujarat v. Maheshbhai Thakorprasad Dave

2017-04-10

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant - State 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 30.11.2005 rendered by learned Special Judge, Surendranagar in Special Case No. 01 of 2003, whereby the accused has been acquitted from commission of the offences under Sections 7, 12, 13 (1) (g) (h) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short "the Act"). 2. The short facts giving rise to the present appeal are that respondent No. 1 was serving as a Talati - cum - Mantri and respondent No. 2 was serving as an Accountant - Clerk in Lakhtar Gram Panchayat at the relevant point of time. Whereas, the complainant was a resident of Village Lakhtar and doing farming. The complainant applied for converting his land from new tenure to old tenure for which, respondent No. 1 demanded an amount of Rs. 18,000/- towards illegal gratification. Since the complainant did not desire to give any amount, the complainant approached the ACB office, Surendranagar. After the complainant lodged the complaint, necessary formalities in respect of trap were carried out at ACB Office and the trap was arranged. As the complainant tried to hand over the amount of illegal gratification to accused No. 1 - Maheshbhai Thakorprasad Dave at the time of trap, he told the complainant to give the said amount to accused No. 2 - Bhupendrakumar Narottamdas Sanandiya. In this way, the present accused No. 2 - Bhupendrakumar Narottamdas Sanandiya was caught red handed while accepting bribe. Hence, the complaint came to be lodged against the appellants-accused for the offence punishable under Sections 7, 12, 13 (1) (g) (h) read with Section 13 (2) 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. 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. 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. 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 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 appellant - State has preferred the aforesaid Criminal Appeal before this Court. 5. This Court has heard Ms. Rita Chandarana, learned APP for the State and Mr. Viral Vyas, learned advocate for Mr. Ashish M. Dagli, learned advocate for the respondent Nos. 1 and 2. 6. By way of preferring the present appeal, the appellant - State 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. 7. Ms. Rita Chandarana, learned APP has taken this Court through the entire material on record and read out the evidence of material witnesses. She has argued that though the complainant turned hostile, the prosecution successfully established the demand and acceptance from the evidence of panch No. 1 who accompanied the complainant at the time of trap and the recovery came to be effected from the accused No. 2. She has further argued that the learned Special Judge has recorded its finding upon presumption conjectures and surmises and the evidence on record is not properly appreciated and wrongfully acquitted the accused which requires to be converted into conviction as such. 8. Mr. Viral Vyas, learned advocate for Mr. Ashish Dagli, learned advocate for the respondents has supported the judgment delivered by the learned Special Judge and has argued that the complainant himself has turned hostile and disowned his own complaint. 8. Mr. Viral Vyas, learned advocate for Mr. Ashish Dagli, learned advocate for the respondents has supported the judgment delivered by the learned Special Judge and has argued that the complainant himself has turned hostile and disowned his own complaint. He went on saying to the extent that he was illiterate and also admitted in his deposition that he had never stated that the accused No. 1 demanded any amount of illegal gratification to the extent of Rs. 18,000/- for converting his land from new tenure to old tenure. He further admitted that he tried to hand over the said amount of illegal gratification to the accused No. 1 during the course of trap, however he refused to accept the said amount. He further admitted that he handed over the amount of Rs. 18,000/- to the accused No. 2 towards the amount he borrowed from him and not towards the amount of illegal gratification. He has further argued that the evidence of the shadow witness is also very shaky. In his deposition, he has clearly admitted that he has not heard any conversation took place between the complainant and the accused. He further admitted that at the time of trap, when the raiding officer asked the accused No. 2 as regards the amount of illegal gratification, then he explained that he lent the amount to the complainant and therefore, he accepted the said amount towards that amount and not as an illegal gratification. He further admitted that he had no idea as to how the amount of illegal gratification was handed over to the accused No. 2. Therefore, the learned advocate for the respondents submitted that the prosecution miserably failed to establish the demand, acceptance and recovery and hence, the learned Special Judge has rightly recorded acquittal which calls for no interference. Further, he drew attention to Exhibit 31 - sanction accorded by Mr. M. R. Dodiya - District Development Officer, Surendranagar to prosecute only against the accused No. 1 though the sanctioning authority referred the provisions of Sections - 7, 12, 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988. Further, he drew attention to Exhibit 31 - sanction accorded by Mr. M. R. Dodiya - District Development Officer, Surendranagar to prosecute only against the accused No. 1 though the sanctioning authority referred the provisions of Sections - 7, 12, 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988. Therefore, as per the arguments, the sanctioning authority has not accorded sanction to prosecute against the respondent No. 2 and for want of requisite sanction, no prosecution can be launched against the accused No. 2 as the provision of Section 19 of the Prevention of Corruption Act, 1988 is mandatory for such sanction. Therefore, the judgment of acquittal recorded by the learned Special Judge calls for no interference. Hence, he has urged that the judgment delivered by the learned trial Judge may be confirmed. He has also supported the judgment rendered by the learned Special Judge. He has further stated that the learned Trial Court has not committed any error in relying upon the evidence and the learned Trial Court has rightly recorded findings which are based upon the material evidence and this Court should not interfere with the findings recorded by the learned Special Judge. 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. 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 reverse the judgment and order passed by the learned trial Court. 11. Keeping in mind the principle laid down by the Supreme Court in the 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. 18,000/- or not. 12. P.W. No. 1 - Mayabhai Kukabhai has been examined vide Exhibit - 15. He has deposed that he had 25 acres agriculture land in the outskirt of Village Lakhtar in the joint account with his family members. He wanted to convert the said land from new tenure to old tenure, therefore, he approached Mr. Dave - Talati - cum - Mantri of his village. He has deposed that he had 25 acres agriculture land in the outskirt of Village Lakhtar in the joint account with his family members. He wanted to convert the said land from new tenure to old tenure, therefore, he approached Mr. Dave - Talati - cum - Mantri of his village. At that time, he deposited fees of Rs. 2,500/- to Rs. 3,000/- approximately. Thereafter, he did not carry out the work and therefore, he suspected that he wanted to take money and therefore, he was not attending his work, when he asked him, the Talati - cum - Mantri refused to take any amount from him, but he directed him to pay the amount of Rs. 18,000/- which he had borrowed from the respondent No. 2. He further deposed that thereafter, he lodged the complaint. He further deposed that, he is illiterate and merely put a signature on the complaint. Thereafter, on the date of trap, he accompanied the shadow panch. When he visited the office of the accused No. 1, he demanded Farmer Account Book and thereafter, he took out money from his pocket and as he asked Mr. Dave to accept the said amount, Mr. Dave did not accept it and told him to hand over the same to the respondent No. 2 and accordingly, he handed over the said amount to the accused No. 2, thereafter he gave signal, due to which, other members of the raiding party arrived there and recovered the amount of tainted currency notes and the test of anthracene powder was found to be positive so far as the person of the accused No. 2 is concerned as well the complainant. As he had not supported the prosecution case, he was declared hostile. In the cross examination carried out on behalf of the accused, he admitted that as the Talati - cum - Mantri did not process his file for about three months, he suspected that he wanted money and therefore, he got annoyed. As he had not supported the prosecution case, he was declared hostile. In the cross examination carried out on behalf of the accused, he admitted that as the Talati - cum - Mantri did not process his file for about three months, he suspected that he wanted money and therefore, he got annoyed. He further admitted that he was having good relation with the accused No. 2 as he was the member of Gram Panchayat at the relevant time and there was also the term of transaction of money between them and he also admitted that he borrowed money from the accused No. 2 - Bhupendrabhai for construction of his house and therefore, the accused No. 2 - Bhupendrabhai was repeatedly asking for said money. He also admitted that due to grudge against the Talati - cum - Mantri, he lodged the complaint. He further admitted that when he went to accused No. 1 - Maheshbhai, he had no other work from him except the account book. 13. P.W. No. 2 - Becharbhai Ukabhai Vora has been examined vide Exhibit - 17. He has deposed that when he was serving in Vadhvan Nagarpalika on 02.05.2002, the ACB Officials requisitioned him as a shadow panch. One another panch namely Praveenbhai Vora was also present there. They were made to understand about fact of the complainant and necessary formality in respect of trap was to be carried out. He further deposed that he accompanied the complainant on the day of trap. When he visited accused No. 1 - Mr. Dave, he initiated certain conversation and thereafter, the complainant asked regarding his work. Then, accused No. 1 - Mr. Dave replied that his work had already been done. Thereafter, the accused No. 1 took out one account book from the bundle lying nearby him and gave the same to Mayabhai. Thereafter, the complainant took out Rs. 18,000/-from the pocket of his shirt and tried to hand over the same to the accused No. 1, but the accused No. 1 refused to accept the said amount. The complainant tried to hand over the amount for two - three times, however the accused No. 1 refused to accept the same. Thereafter, the accused No. 1 directed the complainant to handover the same to the accused No. 2 who was sitting on the last table. The complainant tried to hand over the amount for two - three times, however the accused No. 1 refused to accept the same. Thereafter, the accused No. 1 directed the complainant to handover the same to the accused No. 2 who was sitting on the last table. Thereafter, the complainant handed over the same amount to the accused No. 2. Thereafter, he gave pre-arranged signal to the raiding party. On receiving the pre-arranged signal, the raiding party arrived there. As per the instructions of the Police Inspector, ACB, second panch namely Praveenbhai Vora recovered money from Bhupendrabhai. Thereafter, the tests of anthracene powder and ultraviolet lamp were carried out there which found to be positive. He admitted in the cross examination that accused No. 1 - Mr. Dave told the complainant that he did not want money. He further admitted that accused No. 1 - Mr. Dave told complainant - Mayabhai not to drag him into the transaction of money between the complainant and the accused No. 2. He further admitted that when the raid was conducted, Mr. Jadeja asked accused No. 2 - Bhupendrabhai regarding money, Bhupendra replied at that time that he lent the said amount to the complainant. He further admitted that he did not hear the conversation took place between accused No. 2 - Bhupendra and complainant - Mayabhai. 14. The prosecution has also examined other witnesses, but their evidence is not materialised as the complainant as well as shadow panch had not supported the prosecution case. 15. On overall analysis of the aforesaid evidence on record, indisputably, the complainant himself has disowned his complaint and he went on saying to the extent that he was illiterate and merely put signature on the complaint and he further admitted that he did not lodge the complaint involving the accused No. 1 and he handed over Rs. 18,000/- to the accused No. 2 which were lent by the accused No. 2 to him at the time of construction of his house. 16. On overall analysis of the aforesaid evidence on record, the ratio laid down by the Hon'ble Supreme Court in the case of M.R. Purushottham v. State of Karnataka, reported in (2015) 3 SCC 247 and B. Jayaraj v. State of Andhra Pradesh, reported in (2014) 13 SCC 55 squarely applicable to the facts and circumstances of the present case. 16. On overall analysis of the aforesaid evidence on record, the ratio laid down by the Hon'ble Supreme Court in the case of M.R. Purushottham v. State of Karnataka, reported in (2015) 3 SCC 247 and B. Jayaraj v. State of Andhra Pradesh, reported in (2014) 13 SCC 55 squarely applicable to the facts and circumstances of the present case. When the complainant himself did not support the prosecution case and nothing is coming out from his mouth as regards any demand either raised by the accused No. 1 or the accused No. 2 and handing over such amount between them, in pursuance of the demand, it is not being established. In that view of the matter, the prosecution miserably failed to establish demand and acceptance. One another disturbing feature emerging out from R & P of the case that the prosecuting agency applied for getting sanction to prosecute against both the accused, however the Deputy District Development Officer, Surendranagar accorded sanction to prosecute only against the accused No. 1. Indisputably, in absence of the requisite sanction as envisaged under Section 19 of the said Act, no prosecution could have been launched against the accused No. 2. Indisputably, as per the prosecution case, though the complainant repeatedly tried to handover the amount to the accused No. 1 at the time of trap, the accused No. 1 refused to accept the said amount of Rs. 18,000/- as an illegal gratification at all the times, in consequence thereof, the accused No. 2 was handed over the said amount towards the amount lent by him to the complainant. In that view of the matter, no case is made out against either of the accused persons for want of requisite sanction against the respondent No. 2. 17. In view of the above, this Court is in agreement with the view taken by the lower Court. Moreover, learned Public Prosecutor is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence while acquitting the accused. Moreover, learned Public Prosecutor is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence while acquitting the accused. Under the circumstances, this Court is of the considered opinion that the Court below has not committed any error in acquitting the respondent-accused of the charges leveled against him and, therefore, this Court finds no reason to entertain this appeal. 18. For the foregoing reasons, the Criminal Appeal is dismissed. The judgment and order dated 30.11.2005 rendered by learned Special Judge, Surendranagar in Special Case No. 01 of 2003 acquitting the accused of the charges, as alleged, is hereby confirmed. Bail bond, if any, stands canceled. Registry to return the R&P to the concerned trial Court forthwith. Appeal Dismissed.