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2017 DIGILAW 790 (GUJ)

Satishkumar Gafurbhai Parmar v. State of Gujarat

2017-04-11

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 8.1.2004 rendered by learned Special Judge (ACB) and 3rd Fast Track Judge, Mehsana in Special (ACB) Case No. 15 of 1999. 2. The short facts giving rise to the present appeal are that the complainant was serving as driver in the Taluka Panchayat office since 1982 and he submitted the TA bills for the year 1996 for clearing the same. It is alleged that the accused demanded Rs. 1000/- for passing the said bills, out of which, the complainant paid Rs. 500/- to the appellant accused on 25.8.1998 and it was agreed to pay remaining amount of Rs. 500/- on 31.8.1998. As the complainant did not want to pay the said amount of illegal gratification, he approached the ACB office and lodged the complaint. 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 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 Code of Criminal Procedure 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 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. 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. Mehul Sharad Shah, learned advocate for the appellant - original accused has taken this Court through the entire material on record, read over the evidence of the complainant, shadow witness, Trapping Officer and Investigating Officer and argued that the complainant was declared hostile as he did not support the case of the prosecution and therefore, the demand alleged to have been made by Mr. N.P. Patel, Executive Engineer from the complainant is not being established and indisputably, demander Mr. N.P. Patel has not been made either accused or witness and therefore predemand is not getting established from the evidence on record. He submitted that so far as instant demand at the time of trap is concerned, the prosecution has failed to establish the same as the complainant himself has admitted in his cross examination that he paid Rs. 500/- in order to clear his borrowed amount from the accused and that he has not supported the case of the prosecution and in view of such nature of evidence, the case of the prosecution cannot be taken any further. He submitted that as per the deposition of the shadow witness, the complainant voluntarily handed over the amount at the time of trap without raising any demand by the accused and therefore, the demand cannot be believed to be made by the appellant accused as such. In support of his submissions, Mr. Shah has relied upon the decision in the case of M.R. Purushotham v. State of Karnataka, reported in (2015) 3 SCC 247 which squarely applicable to the facts of the present case. He submitted that the panch has clearly admitted that the panchnama was dictated by the Investigating Officer and he has merely signed the same, however, he has clearly admitted that as he is a government official, he has to depose in accordance with the recital made in the panchnama otherwise he would have to face the departmental proceedings and that he has read over the panchnama for several times before giving the evidence. Lastly, Mr. Lastly, Mr. Shah submitted that in view of the aforesaid nature of evidence, the impugned judgment and order of conviction is required to be set aside. 7. On the other-hand, Mr. Hardik Soni, learned APP has supported the judgment rendered by learned trial Court. He has taken this Court through the entire Record and Proceedings and evidence of material witnesses on record and argued that demand as well as acceptance were proved and, therefore, learned trial Court has rightly appreciated the evidence on record. He further submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and therefore, this Court should not disturb the finding recorded by learned trial Court, as such. 8. This Court has heard Mr. Mehul Sharad Shah, learned advocate for the appellant -accused and Mr. Soni, 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, the complainant was serving as driver in the Taluka Panchayat office, whereas the accused was serving as Accountant. The complainant raised eight TA bills for the year 1996 wherein the objection was raised by the Executive Engineer for which explanation was also sought and therefore, the complainant met Mr. M.P. Patel, Executive Engineer on 24.8.1998, 25.8.1998 and 26.8.1998 and the said Executive Engineer directed him to pay Rs. 1000/- to the present appellant accused so that his bill would be cleared. As the complainant was not willing to pay the amount of bribe, he lodged the complaint. The trap was carried out and at the time of trap on 31.8.1998, the accused was caught red handed with tainted currency notes and thereby the appellant accused has committed the offences, as alleged. 10. PW 1 - Kalugiri Keshavgiri has been examined at Exh. 10. The witness has deposed that he was serving as a driver in the Taluka Panchayat since 1982 and he used to raise his TA bills from the divisional office where Mr. N.P. Patel was Executive Engineer who used to sanction the bills and thereafter the same were transmitted to the present accused for payment. 10. The witness has deposed that he was serving as a driver in the Taluka Panchayat since 1982 and he used to raise his TA bills from the divisional office where Mr. N.P. Patel was Executive Engineer who used to sanction the bills and thereafter the same were transmitted to the present accused for payment. The witness has deposed that around seven TA bills were not sanctioned wherein some queries were raised by Mr. N.P. Patel. The witness has deposed that he rendered his explanation and thereafter he met Mr. Patel on 24.8.1998 and that he was directed to meet him on the following day. The witness has deposed that on the following day, he met to Mr. Patel, at that time, Mr. Patel directed him to pay Rs. 500/- to the present appellant accused and said that his bills will be cleared. The witness has deposed that as he was not willing to pay the bribe, he approached the ACB office and lodged the complaint and on the day of trap, he was accompanied by the shadow witness. The witness has deposed that they reached to the office of the accused and thereafter on arrival of the accused, there was no conversation regarding bills, but the witness straightaway handed over the tainted currency notes to the accused which he accepted and placed into his pocket and thereafter raised the prearranged signal. The witness has deposed that thereafter search and seizure were carried out and the test of ultra violate lamp was found to be positive on the person of the accused. The witness has deposed that he has signed the complaint, but thereafter he was declared hostile. Though learned APP put him leading question as regards to material recital made in the complaint at Exh. 11, but the witness denied of making such allegations against the appellant accused. However, in the cross examination carried out on behalf of the accused, the witness has admitted that as he was serving in the department, he was having good acquittance with the accused and the accused has never demanded any amount of illegal gratification for sanctioning his TA bills. The witness has clearly admitted that while he visited the accused on the day of trap, the accused has not demanded Rs. 500/- as an amount of illegal gratification. The witness further admitted that in fact, he paid Rs. The witness has clearly admitted that while he visited the accused on the day of trap, the accused has not demanded Rs. 500/- as an amount of illegal gratification. The witness further admitted that in fact, he paid Rs. 500/- towards the borrowed amount to the accused as it remained unpaid. The witness has admitted that as the Executive Engineer has raised the query against his TA bills, he has grudged against him. 11. PW 2 - Vankar Tulsibhai Arjanbhai has been examined at Exh. 12. The shadow witness has deposed that he was serving as clerk in the office of Conservator of Forest and he was requisitioned as panch. The witness has deposed that he was made to understand as regards to complaint, test of anthracene powder, ultra violate lamp test and he was directed to remain all throughout with the complainant. The witness has deposed that on the day of trap, he accompanied with the complainant over the motor cycle and reached to the office of the accused, at that time, initially the accused was absent and on his arrival, the complainant asked regarding his bills. At that time, the accused told him that as per the previous conversation, the work of the complainant will be completed and thereafter the complainant handed over tainted currency notes to the accused, which he accepted and thereafter the complainant raised prearranged signal and hence other members of the raiding party arrived there. The witness has deposed that thereafter seizure was affected through panch No. 2 and the test of ultra violate lamp was found positive over the person of the accused as well as the complainant. In the cross examination, the witness has admitted that in the room of the accused, other employees were also working. The witness has admitted that he is government employee and he is supposed to depose as per the contents of the panchnama otherwise he would face the departmental proceedings. The witness has admitted that the panchnama was conducted by Investigating Officer Mr. Jadeja and his signature was only obtained. 12. PW 3 - Bharatsinh Mangalsinh Jadeja has been examined at Exh. 15. The witness has deposed that he recorded the complaint and arranged for the trap. 13. PW 4 - Dilip Kapilrai Vaishnav has been examined at Exh. 17. The witness has deposed that he was serving as Police Inspector, ACB, Head Quarter, Ahmedabad. 12. PW 3 - Bharatsinh Mangalsinh Jadeja has been examined at Exh. 15. The witness has deposed that he recorded the complaint and arranged for the trap. 13. PW 4 - Dilip Kapilrai Vaishnav has been examined at Exh. 17. The witness has deposed that he was serving as Police Inspector, ACB, Head Quarter, Ahmedabad. The witness has deposed that he carried out the investigation and filed the charge-sheet. In the cross examination, the witness has admitted that during the course of investigation, it was revealed that objections were raised in the TA bills of the complainant by one Mr. N.P. Patel, Executive Engineer and the explanation of the complainant was also asked for. The witness has admitted that in his investigation, it was revealed that the complainant has not met Executive Engineer Mr. Patel on 24.8.1998 and 26.8.1998. 14. 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. 15. 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. 16. 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. 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) 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. 17. 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. 18. In the backdrop of the aforesaid factual as well as legal position and on overall analysis of the evidence on record, it appears that the dispute arose out of not sanctioning seven TA bills for the year 1996 raised by the complainant by Executive Engineer Mr. N.P. Patel. Indisputably, objection was raised by said Executive Engineer Mr. N.P. Patel and written explanation dated 20.8.1998 was also sought for and in pursuance of the said written explanation, the complainant met said Executive Engineer Mr. N.P. Patel. In fact, it is alleged that said Executive Engineer Mr. N.P. Patel has demanded Rs. 1000/- as illegal gratification from the complainant and the complainant was directed to hand over the said amount to the present appellant accused. From the evidence of PW 4 - Investigating Officer, it is clearly established that the complainant had not met Executive Engineer Mr. N.P. Patel on 24.8.1998 and 26.8.1998. N.P. Patel has demanded Rs. 1000/- as illegal gratification from the complainant and the complainant was directed to hand over the said amount to the present appellant accused. From the evidence of PW 4 - Investigating Officer, it is clearly established that the complainant had not met Executive Engineer Mr. N.P. Patel on 24.8.1998 and 26.8.1998. Indisputably, the complainant in his deposition also denied that he had ever met to Mr. Patel on 25.8.1998. In view of the aforesaid factual scenario, if the complainant had not met Executive Engineer Mr. N.P. Patel on 24.8.1998, 25.8.1998 and 26.8.1998, in that event, entire foundation of the complaint at Exh. 11 no more survives on record. Even otherwise also, on going through the deposition of the complainant, virtually, he has disowned the complaint itself as in the cross examination carried out by learned APP, more particularly, in paragraphs 4 and 5, material recitals he has refused to have been stated. In absence of material recital revealing at Exh. 11, nothing emerges on record as regards to predemand. So far as instant demand at the time of trap i.e. on 31.8.1998 is concerned, nothing is revealing from the evidence of the complainant that the accused had made any demand and in pursuance of the said instant demand, he has handed over the amount of illegal gratification. On the contrary, in the cross examination, the complainant has admitted that he has paid Rs. 500/- to the accused towards clearance of his borrowed amount and that explanation has also been rendered by him during the course of his further statement under section 313 of the Code of Criminal Procedure 1973. Under the circumstances, the evidence of the complainant does not carry the case of the prosecution any further for establishment of demand and acceptance and as a consequence thereof, recovery also becomes meaningless. 19. So far as the evidence of the shadow witness is concerned, his deposition indicates that the accused told the complainant to act in accordance with previous conversation for expediting his payment, but the complainant has handed over the amount to the accused. In order to establish previous conversation, recital made in the complaint at Exh. 11 is needed which is missing as the complainant himself has disowned the recital made in the complaint at Exh. 11. In order to establish previous conversation, recital made in the complaint at Exh. 11 is needed which is missing as the complainant himself has disowned the recital made in the complaint at Exh. 11. In this view of the matter, the prosecution has miserably failed to prove vital ingredients as regards to demand and acceptance and therefore, the judgment and order of conviction calls for interference by this Court. Therefore, as stated above, in absence of specific and clinching evidence to prove all such acts by the accused and considering the judgments referred to hereinabove, conviction recorded by learned trial Judge is not sustainable. 20. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 8.1.2004 rendered by learned Special Judge (ACB) and 3rd Fast Track Judge, Mehsana in Special (ACB) Case No. 15 of 1999 is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.