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2017 DIGILAW 931 (GUJ)

State of Gujarat v. Natvarlal Ranchhodbhai Patel

2017-05-02

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. This is an appeal preferred by the State of Gujarat under Section 378 (3) of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 18/11/2006 recorded by the learned Special Judge, Second Fast Track Court, Valsad in Special Corruption Case No. (New):-55 of 2002 (Old No. 2 of 2002) whereby the learned Trial Judge acquitted the respondent-accused, of the charges for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. Brief facts of the case are that the respondent accused was working as Surveyor with Mines and Mineral Department, Valsad and the complainant was doing business of selling sand. When the complainant met the accused to get lease permit on 17/09/2001, the respondent-accused demanded bribe of Rs. 1,300/- from the complainant and at that time, the complainant gave Rs. 300./- and remaining Rs. 1,000/- were agreed to be paid on 16/10/2001. As the complainant was not willing to pay such bribe, he approached the ACB, Valsad and lodged the complaint. Accordingly, trap was arranged and during the course of trap, the respondent-accused was caught red handed along with the tainted currency notes of Rs. 1,000/- and thereby offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 was registered against the respondent-accused. 3. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, the respondent was arrested and, ultimately, charge-sheet was filed and submitted the same before the learned Special Judge, Second Fast Track Court, Valsad where the case was registered as Special Corruption Case No. 55 of 2002. The trial was initiated against the respondent. 4. To prove the case against the present respondent-accused, the prosecution has examined about four witnesses and also produced several documentary evidence. 5. At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent of all the charges leveled against him by the impugned judgment and order. 6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant-State has preferred the present appeal. 7. This Court has heard Mr. K.L. Pandya, learned APP for the appellant-State and Mr. 6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant-State has preferred the present appeal. 7. This Court has heard Mr. K.L. Pandya, learned APP for the appellant-State and Mr. Kartik Pandya, learned advocate for the respondent-accused. 8. Mr. K.L. Pandya, learned APP has argued that the learned Special Judge has not properly appreciated the evidence and the learned Special Judge ought to have held that the evidence of the shadow panch is sufficient to establish the demand. It is contended by learned APP that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent. Learned APP has taken this court through the oral as well as entire documentary evidence. It is further contended by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also contended by him that the learned Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondent for the alleged offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 which requires to be reversed as such and the respondent accused is required to be convicted. 9. On the contrary, Mr. Kartik Pandya, learned advocate for the respondent-accused supported the impugned judgment of acquittal and has argued that the complainant has disowned his complaint and he had not supported at all the case of the prosecution and even he has not accepted the fact of lodging the complaint and he was declared hostile. Therefore, the judgment rendered by the learned trial court is not required to be interfered with. He has also argued that, on the contrary, the complainant had deposed that the aforesaid amount was paid towards the penalty along with chalan and not as an amount of illegal gratification. Therefore, the judgment rendered by the learned trial court is not required to be interfered with. He has also argued that, on the contrary, the complainant had deposed that the aforesaid amount was paid towards the penalty along with chalan and not as an amount of illegal gratification. He has further argued that similarly, evidence of shadow panch is also not at all helpful as the panch had only deposed before the Court that soon after reaching the place of the accused, the complainant handed over the amount along with chalan for depositing the same and uttered the words that he had brought Rs. 1,000/-. He has contended that in view of the aforesaid nature of evidence, the prosecution has failed to establish vital ingredients like demand, acceptance and recovery. He has also contended that taking into consideration the facts and circumstances of the case, the case is squarely covered by the decision of M.R. Purushotham v. State of Karnataka reported in (2015) 3 SCC 247 and therefore, there appears no reason to differ from the view taken by the learned Special Judge. He has contended that consequently therefore, the finding recorded by the learned trial court does not require any interference by this Court. 10. This Court has minutely perused the oral as well as documentary evidence available on record and gone through the impugned judgment and order passed by the trial court as well as paper book and evidence adduced by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant-State and learned advocate for the respondent. 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 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. 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-a-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. 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. 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 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. 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. 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. 16. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d) (i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. 17. Having heard learned advocate for the respective parties to the present proceedings and having perused the impugned judgment as well as records and proceedings, it clearly reveals that the respondent-accused was serving as a Surveyor in the office of Mines and Minerals Department, Valsad and while processing permit of the complainant, the accused demanded Rs. 1,300/- as illegal gratification for granting such permit and at that time he accepted Rs. 300/- and rest of the amount of Rs. 1,000/- was directed to be paid on 16/10/2001. 1,300/- as illegal gratification for granting such permit and at that time he accepted Rs. 300/- and rest of the amount of Rs. 1,000/- was directed to be paid on 16/10/2001. As the complainant was not willing to pay such bribe, he lodged the complaint and during the course of trap, the accused was caught red handed along with the tainted currency notes of Rs. 1,000/- and thereby committed an offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 18. PW-1 Harishbhai Chimanbhai Ode has deposed that in the year 2001, he was doing work of extracting and selling sand and for which he was required to obtain permit from the Mines and Minerals Department, Valsad. He has deposed that he applied for such permit. He has deposed that the accused visited his site. He has deposed the he approached ACB office and told that the accused demanded Rs. 1,000/- as penalty for carrying out unlawful extraction of sand. As he had not supported the case of the prosecution, he was declared hostile. Though extensive cross examination was carried out by the learned advocate for the prosecution, he has not at all supported his previous version made before the police while lodging the complaint. However, in the cross examination carried out by learned advocate for the accused, he has admitted that the accused had never demanded any amount of illegal gratification from him and he has not paid any amount of illegal gratification to the accused. He has also admitted that the police has not recorded his statement and the police has not even recorded his compliant. Precisely, he disowned his complaint. 19. PW-2 Rajendrakumar Shantilal Pujari has deposed that he was working as driver with the State Road Transport Corporation at Valsad. He has deposed that he was requisitioned as shadow panch and was directed to remain with the complainant at the time of trap and he was directed to hear the conversation and view the incident that may take place. He has deposed that on the day of trap, he along with the complainant met the accused and at that time, the complainant told the accused that he had brought the map as well as chalan along with money for deposition and he had also brought Rs. He has deposed that on the day of trap, he along with the complainant met the accused and at that time, the complainant told the accused that he had brought the map as well as chalan along with money for deposition and he had also brought Rs. 1,000/- for him and thereafter the accused told him to get the chalan sealed and thereafter the complainant handed over the amount to the accused which the accused accepted and put into his pocket and thereafter the complainant gave a pre arranged signal due to which other members of raiding party arrived and search and seizure was carried out. 20. The prosecution has also examined the Trapping Officer as well as Investigating Officer whose evidences are not essential to be referred herein. 21. On overall analysis of the aforesaid evidence on record, once the complainant himself has disowned his complaint itself and he has not supported the case of the prosecution, consequently, therefore, the complaint at Exh. 21 remains no more on record and the same looses its evidential value and in absence of the complaint as well as oral evidence as regards the demand and acceptance, the evidence of shadow panch also become meaningless as from the evidence of shadow panch, nothing concrete evidence is revealing that the accused ever demanded any amount of illegal gratification from the complainant and in response thereto, the complainant handed over Rs. 1,000/- to the accused. 22. In view of the aforesaid nature of evidence, learned Special Judge has rightly recorded the finding of acquittal thereby rightly acquitted the accused which calls for no interference of this Court. Even otherwise also, the case is squarely covered by the decision of M.R. Purushotham (supra) and on that count also, there appears no merit in the appeal. 23. For the reasons recorded as above, it appears that the learned trial court has rightly appreciated the evidence on record and rightly acquitted the accused from the charges leveled against him which calls for no interference by this Court. This Court is of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court find that the findings recorded by the 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 of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court find that the findings recorded by the 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 the court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal. 24. In the result, the present appeal is hereby dismissed. Record and Proceedings to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged. Fine, if any paid, be refunded forthwith. Appeal Dismissed.