Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 786 (GUJ)

State of Gujarat v. Jayantibhai Kalidas Solanki

2017-04-11

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The 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 12.7.2010 rendered by the learned Additional Sessions Judge, Fast Track Court No. 1, Ahmedabad (Rural), in Special (ACB) Case No. 5 of 2007, whereby the learned trial Judge has acquitted the respondents-accused for the offences punishable under Sections 7, 12, 13(1)(d) read with Section 13(2) and Section 15 of the Prevention of Corruption Act, 1988. 2. The short facts giving rise to the present appeal are that complainant-Kanabhai Kavabhai Valmiki was residing at Village Dharji, Taluka Bavla, District Ahmedabad and he was an agricultural labour. In the year 2006, the complainant applied for obtaining government relief under the scheme of "Ambedkar Avas Yojna" which was issued by the Social Welfare Department, Government of Gujarat wherein members of the Scheduled Caste Community were provided government relief to the extent of Rs. 40,000/-. After applying for the scheme, first installment of relief was issued to the complainant thereafter, the complainant finished construction work of his house and prepared necessary Rojkam and submitted papers before respondent No. 1-accused-J.K. Solanki, who was at that time working as an officer in the Social Welfare Department, Bavla. It is alleged that thereafter, accused-J.K. Solanki demanded Rs. 1000/- from the complainant for issuing second installment. As the complainant was not willing to pay the bribe amount, he filed a complaint on 8.3.2007 before Anti Corruption Bureau, Ahmedabad. Thereafter, a trap was arranged and ultimately, the accused were caught red handed. Thereafter, the 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 respondents-accused for the offences punishable under Sections 7, 12, 13(1)(d) read with Section 13(2) and Section 15 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 respondents-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. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the respondents-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 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 appellant-State has preferred the aforesaid Criminal Appeal before this Court. 5. 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 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 acquittal is required to be reversed, as such. 6. Ms. R.P. Chandarana, learned APP for the State has argued 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 required to be inferred as the tainted currency notes were recovered from the place of trap and hence, finding recorded by learned trial Court is against the provisions of law and against the evidence available on record. She has further argued that as per the evidence of panch No. 1 who accompanied the complainant at the time of trap, the complainant brought the tainted currency notes for giving the same to the accused and hence, demand and acceptance itself are proved. Lastly, she submitted that in view of the evidence on record, this Criminal Appeal is required to be allowed and the impugned judgment and order delivered by the learned Trial Court is required to be quashed and set aside. 7. Mr. Lastly, she submitted that in view of the evidence on record, this Criminal Appeal is required to be allowed and the impugned judgment and order delivered by the learned Trial Court is required to be quashed and set aside. 7. Mr. Amit Joshi, learned advocate for the respondents-accused has supported the judgment rendered by the learned trial Court and has taken this Court through the evidence of the witnesses as well as impugned judgment and order and argued that there is no evidence to prove the involvement of the present accused in the crime in question. He has further argued that in the present case, the prosecution has failed to prove the vital ingredients i.e., demand, acceptance and recovery beyond reasonable doubt. He has further argued that so far as the Peon-accused No. 2 is concerned, he has wrongly been implicated while nothing reveals against accused No. 2 from the complaint as well as charge-sheet. So far as the accused No. 1 is concerned, neither the complainant has deposed anything regarding initial demand at the time of trap nor Panch No. 1 has deposed anything in this regard. He has further argued that if the evidence of panch No. 1 who was at the relevant time accompanied the complainant, is appreciated in its proper perspective, then there appears no clear conversation regarding demand and acceptance between the complainant and accused. He, therefore, submitted that vital ingredients i.e., demand and acceptance itself are missing in the present case and so far as the recovery of tainted currency notes are concerned, the tainted currency notes were recovered from the place of trap and, therefore, recovery becomes meaningless. He has further argued that in the series of decisions wherein the Hon'ble Supreme Court has clearly laid down that in absence of clear and cogent evidence of demand and acceptance, no conviction could be recorded as such. He, therefore, submitted that the present Criminal Appeal is required to be dismissed and the impugned judgment and order passed by the learned trial Court is required to be confirmed. 8. This Court has heard Ms. R.P. Chandarana, learned APP for the appellant-State and Mr. Amit Joshi, learned advocate for the respondents-accused. As per the prosecution version, complainant-Kanabhai Kavabhai Valmiki, was residing at Village Dharji, Taluka Bavla, District Ahmedabad and he was an agricultural labour. 8. This Court has heard Ms. R.P. Chandarana, learned APP for the appellant-State and Mr. Amit Joshi, learned advocate for the respondents-accused. As per the prosecution version, complainant-Kanabhai Kavabhai Valmiki, was residing at Village Dharji, Taluka Bavla, District Ahmedabad and he was an agricultural labour. It is the case of the prosecution that in the year 2006, the complainant applied for obtaining government relief under the scheme of "Ambedkar Avas Yojna" which was issued by the Social Welfare Department, Government of Gujarat wherein members of the Scheduled Caste Community were provided government relief to the extent of Rs. 40,000/-. After applying for the scheme, first installment of relief was issued to the complainant thereafter, the complainant finished construction work of his house and prepared necessary Rojkam and submitted papers before the respondent No. 1-accused-J.K. Solanki, who was at that time working as an officer in the Social Welfare Department, Bavla. It is alleged that thereafter, accused-J.K. Solanki demanded Rs. 1000/- from the complainant for issuing second installment. As the complainant was not willing to pay the bribe amount, he filed a complaint on 8.3.2007 before Anti Corruption Bureau, Ahmedabad. Thereafter, a trap was arranged and ultimately, the accused was caught red handed and whereby the accused committed offence punishable under Sections 7, 12, 13(1)(d) read with Section 13(2) and Section 15 of the Prevention of Corruption Act. 9. P.W. No. 1 - Kanabhai Valmiki - complainant has been examined at Exh. 17. The witness has deposed that he was residing at Village Dharji, Taluka Bavla, District Ahmedabad and he was an agricultural labour. He has further deposed that in the year 2006, he applied for obtaining government relief under the scheme of "Ambedkar Avas Yojna" which was issued by the Social Welfare Department, Government of Gujarat wherein members of the Scheduled Caste Community were provided Government relief to the extent of Rs. 40,000/-. After applying for the scheme, first installment of relief of Rs. 10,000/- was issued to him thereafter, he finished work of construction of his house and prepared necessary Rojkam and submitted papers before the respondent No. 1-accused-J.K. Solanki, who was at that time working as an officer in the Social Welfare Department, Bavla. The witness has deposed that thereafter, accused-J.K. Solanki told him that for getting second installment he would have to pay Rs. The witness has deposed that thereafter, accused-J.K. Solanki told him that for getting second installment he would have to pay Rs. 1000/- as illegal gratification to him otherwise he would not proceed further with his case. He has further deposed that as he was not willing to pay the bribe amount, he went to the office of Valmik Samaj and official of Valmiki Samaj suggested him to approach the ACB Office and therefore, he filed a complaint on 8.3.2007 before Anti Corruption Bureau, Ahmedabad. He has further deposed that the ACB officials lodged the complaint and after reading the contents of the complaint, the complainant signed in the complaint and thereafter the ACB appointed panch in the trap prior to holding the raid and the ACB officials gave detailed 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 on the day of trap, he accompanied with the panch and other members of the ACB reached to the office of the accused No. 1 and at that time, the accused No. 1 was present there. He has further deposed thereafter, he asked accused No. 1 about his second installment to which, accused No. 1 apprised him that his papers were already sent to the higher officer of Social Welfare for further proceedings. He has further deposed that thereafter, he tried to hand over the tainted currency notes to the accused but accused No. 1 refused to accept the same and told the complainant as his papers were sent to the office of Social Welfare, he would receive second installment soon. He has further deposed that none of the accused demanded any amount of illegal gratification from him. However, he did not support the case of the prosecution. In his cross-examination, he has admitted that accused No. 1 visited his place twice but he did not demand any bribe from him. He has further admitted that on several efforts being made to give the tainted currency notes to accused No. 1, but he did not accept the same. He has further admitted that officials of Valmiki Samaj directed him to hand over the tainted currency notes to the accused. 10. He has further admitted that on several efforts being made to give the tainted currency notes to accused No. 1, but he did not accept the same. He has further admitted that officials of Valmiki Samaj directed him to hand over the tainted currency notes to the accused. 10. PW-2 - Jivabhai Veerjibhai - panch No. 1 has been examined at Exh. 20. The witness has deposed that he was serving as an officer in the Water Supply and Sewerage Board at Gandhinagar and he was requisitioned to act as panch in the trap. Prior to holding the raid, he, as well as complainant and other panchas were given detailed 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 ultraviolet lamp is to be carried out. He has further deposed that he was instructed to accompany the complainant and to hear the conversation that may take place between the complainant and the accused and rest of the members were directed to see the incident outside the place of trap. He has further deposed on the day of trap i.e. 8.3.2007, he along with complainant and other members reached at the office of the accused, at that time accused No. 1 was present in his office. Thereafter the complainant told to accused No. 1 that he brought the money for the purpose of completing his work to which, accused No. 1 replied your work has already completed and that fact has already been apprised to your father-in-law and thereafter, when accused No. 1 went from the office towards the compound with his peon-accused No. 2, the complainant following him and again tried to give him the tainted currency notes but he refused to accept it and told that he has already completed his work and transferred the same to the higher officers therefore, he should leave him alone. He has further deposed that at that time, the ACB personnel came there and caught hold of the accused and recovered the tainted currency notes from the possession of the complainant. However, in his cross-examination, he has admitted that the trap was failed and panchanama of the failure trap was carried out. 11. He has further deposed that at that time, the ACB personnel came there and caught hold of the accused and recovered the tainted currency notes from the possession of the complainant. However, in his cross-examination, he has admitted that the trap was failed and panchanama of the failure trap was carried out. 11. The prosecution has also examined PW-3 and PW-4 Police Officials who were member of the raiding parry but they did not support the case of the prosecution and therefore, there evidence is not essential to be reproduced herein. 12. 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 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 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 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 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. Reported 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 essentially 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. 15. 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. 16. In the light of the aforesaid ratio laid down by the Hon'ble Supreme Court and taking into consideration the statutory provisions contained under the Prevention of Corruption Act, 1988, evidence of the present case is required to be appreciated as such. 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. 17. 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. 17. In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, it appears that the complainant has applied for government scheme, namely, "Ambedkar Avas Yojana" wherein the Government of Gujarat gave financial help to the extent of Rs. 40,000/- for construing the house to the members of the Scheduled Casted Community and for that purpose, first installment was issued to the complainant by the Social Welfare Department and for issuing of second installment, the complainant met the accused and accused apprised him that his all papers were sent to the higher authority and soon he would get second installment but the accused being dissatisfied of the answer of accused, went to the officers of the Valmiki Samaj and the officers of the Valmiki Samaj suggested him to lodge a complaint before the ACB alleging that the accused demanded illegal gratification from him. 18. On over analysis of the evidence of record, indisputably, nothing is recovered from the possession of the accused whereas in search, recovery is made from the complainant. So far as the complainant is concerned, though the complaint was lodged by the complainant and even he signed over it, but he mentioned in the complaint whatever official of Valmiki Samaj told him, but he told the official of the Valmiki Samaj that the accused never demanded any illegal gratification from him. In that view of the matter, nothing is reveling to implicate the accused with the crime in question from the evidence of the panch No. 1 and the complainant. 19. So far as the evidence of PW-1-panch No. 1 is concerned, he has clearly and categorically admitted in his cross-examination that he was accompanied with the complainant during the time of trap and the complainant made several efforts to hand over the tainted currency notes to the accused but he refused to accept the same. On the contrary, accused told to the complainant that his work is over and the same has been transferred to the higher officer of the department for further action. 20. In view of the aforesaid evidence on record, the prosecution miserably failed to establish main ingredients i.e. demand and acceptance. On the contrary, accused told to the complainant that his work is over and the same has been transferred to the higher officer of the department for further action. 20. In view of the aforesaid evidence on record, the prosecution miserably failed to establish main ingredients i.e. demand and acceptance. Therefore, so far as the recovery of tainted currency notes is concerned, the same has been recovered from the person of the complainant. 21. In view of the aforesaid nature of evidence as well as taking into consideration the judgments referred hereinabove, this Court is of the considered opinion that in the present case, demand, acceptance and recovery are not proved by the prosecution. In this view of the matter, finding recorded by learned trial Court is 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 respondents-accused, the acquittal recorded by learned trial Judge is sustainable. 22. 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. 23. 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. 24. 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. Fine any paid, be returned forthwith. No order as to costs.