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2017 DIGILAW 949 (GUJ)

State of Gujarat v. Dashrathbhai Bhagabhai Parmar

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 25/07/2008 recorded by the learned Special Judge, Jamnagar in Special (ACB) Case No. 2 of 206 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 at the relevant time, the complainant Hareshbhai Kantilal Thakrar was doing business in the name and style of "Kirti Farsan Mart" shop and residing at Kadiyavad Street No. 5, Jamnagar. The complainant was also holding food and shop license which was renewed on March 2005 and himself carried out the administration of the shop. Every year, the complainant obtained certificate from the Jamnagar Mahanagarpalika by giving sample. At that time, the accused Dashrathbhai Parmar was discharging his duty as Food Inspector at Jamnagar. On 15/03/2005, at about 6:00 p.m., the accused came at shop of the complainant where the complainant and his worker Kalpesh were present. After taking tea, the accused said to the complainant that he had come to obtain sample of food from the shop of the complainant. The complainant replied that as he is not doing any wrong thing, the accused should not take sample from his shop. The accused therefore, demanded Rs. 2,500/- as bribe for one year, for which the accused would not disturb the complainant under the guise of taking sample from his shop. The accused also assured the complainant that if he had to come for taking sample, he will inform the complainant prior to raid and also take the sample which will be approved easily in the laboratory. Therefore, the complainant gave time till next Tuesday for fulfilling the demand of bribe. As the complainant was not willing to give bribe, on 22/03/2005, he lodged the complaint before Jamnagar ACB Police Station against the accused due to which after following necessary procedure, a the trap was arranged and on success of the same, a complaint was registered. Necessary investigation was carried out and statements of several witnesses were recorded. As the complainant was not willing to give bribe, on 22/03/2005, he lodged the complaint before Jamnagar ACB Police Station against the accused due to which after following necessary procedure, a the trap was arranged and on success of the same, a complaint was registered. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, after following due procedure and after obtaining the sanction for prosecution, the accused was charge-sheeted and a case was registered as Special (ACB) Case No. 2 of 2006. The trial was initiated against the respondent-accused. 3. To prove the case against the present respondent-accused, the prosecution has examined several witnesses and also produced several documentary evidence. 4. 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-accused of all the charges leveled against him by judgment and order dated 25/07/2008. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant-State has preferred the present appeal. 6. This Court has heard Mr. K.L. Pandya, learned Additional Public Prosecutor for the appellant-State and Mr. Pratik Barot, learned advocate for the respondent-accused. 7. Mr. K.L. Pandya, learned APP has taken this Court through the impugned judgment as well as entire paper book and he has argued that the complainant has fully supported the case of the prosecution and so far as establishment of vital ingredients like demand, acceptance and recovery is concerned, even the evidence of shadow witness is sufficient to establish the aforesaid ingredients. He has argued that the learned Special Judge has not properly appreciated the evidence on record and wrongly acquitted the accused. He has also argued that the learned trial court has recorded the findings which are not based upon the evidence available on record but the findings are based upon the premises of presumption and surmises which is not sustainable at law and the findings are perverse which requires to be reversed as such. He has also argued that the learned trial court has recorded the findings which are not based upon the evidence available on record but the findings are based upon the premises of presumption and surmises which is not sustainable at law and the findings are perverse which requires to be reversed as such. He has further argued that the learned Special Judge was wrongly carried away with the explanation of the accused and wrongly recorded the finding that to strengthen the motive on part of the complainant to implead the accused in order to settle score due to previous enmity the complainant has falsely implicated the accused and due to which the evidence on record is not properly dealt with as such. He has further argued that test of phenolphthalein is also found to be proved in accordance with law and therefore, recovery is also proved. He has further contended 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. It is further submitted 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 submitted 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, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, which requires to be reversed as such and the accused is required to be convicted. 8. On the other hand, Mr. Pratik Barot, learned advocate for the respondent supported the impugned judgment of acquittal and has argued that evidence of the complainant though available on record which fully support the case of prosecution story, however, as regards to establishment of pre-demand as per the prosecution case, one witness Shri Kalpeshbhai Lakhani was present at the time of conversation between the accused and the complainant, who has been shown to be witness of the prosecution. However, the prosecution has not examined him and due to which the vital aspect of pre-demand is not proved in accordance with law and in support of his argument, he has placed reliance upon the decision of the Hon'ble Apex Court, in the case of T.K. Ramesh Kumar v. State Tr. Police Inspector, Bangalore, reported in 2015 (3) Scale wherein it is observed in para 10 as under: "10. Further, as could be seen from the finding and reasons recorded in the impugned judgment by the appellate court, in our considered view, it has not re-appreciated the evidence on record properly which is very important aspect of the matter, which we have noticed to set aside the concurrent finding of the appellate court on the charges in the impugned judgment as the learned Judge of the appellate court has failed to apply his mind properly to the charges, material evidence on record, particularly Exhibit P-1 and evidence of PW-1. As could be seen from Exhibit P-1 it is the case of complainant, PW-1 that the demand of illegal gratification from the complainant was made by the appellant in the presence of his father. He was a crucial witness to be examined in the case by the prosecution at the time of investigation, whose evidence is not recorded by the investigating officer. Not recording his statement by the Investigating Officer is fatal to the case of the prosecution for the reason that the evidence of PW-1 in the backdrop of the allegation made in the complaint and the material evidence elicited on behalf of the appellant makes it abundantly clear that there is material contradiction in the allegations made against the appellant in Exhibit P-1 and evidence of the PW-1, in his evidence." 9. Mr. Barot, learned advocate has also argued that since the shadow witness who accompanied the complainant had not heard the actual conversation as regards to demand of illegal gratification and consequently, therefore, evidence of the complainant is not getting corroborated and in absence of corroboration it would be very hazardous to record the conviction as such and he has placed reliance upon the judgment of the Division Bench of this Court in the case of State of Gujarat v. Trambaklal Fulshankar Trivedi reported in 1992 GLR 16 : 20 (2) GLR 60 more particularly para - 10 wherein it is observed as under: "10. But Mr. But Mr. Vaidya submits that in any event, on the prosecution establishing that ultimately at the panchayat office, the marked currency notes were found from the pocket of the accused as is evident from the fact that on the anthracene powder test being carried out with the ultraviolet lamp, powder was found on the bush-shirt pocket as well as on the hands of the accused, a presumption about acceptance of money should be raised. We are unable to accept this submission of Mr. Vaidya. If there is no evidence worth the name regarding the initial passing of the currency notes from the of the complainant to the side of the accused accompanied by conversation in this behalf which the panch witness was specifically directed to so hear, it would be hazardous to record a finding with regard to acceptance simply because on the evidence of the complainant, the panch and P.S.I., it emerges that from the bush-shirt pocket of the accused, the said notes were found and that on the test being carried out, the hands of the accused and his bush shirt pocket revealed presence of anthracene powder. It would be in such a case, unsafe to reply on the oral evidence of these three witnesses in this connection particularly when there is a missing link with regard to the initial passing of the notes and hearing of the conversation at the time when the notes are alleged to have passed from the side of the complainant to the side of the accused. It may be significant in this behalf to note that, after the accused was apprehended by the police near the Dela, he was first taken to the police station and thereafter to the Panchayat office where, as the oral evidence of witnesses shows, the said notes were found from his bush-shirt pocket. In this view of the evidence, in our opinion, it would not be prudent to set aside the order of acquittal passed by the learned Special Judge on the assessment of the evidence done by him of witnesses examined before him and to replace it by an order of conviction. In any event, it cannot be said that the matter is free from doubt; and the benefit of that doubt, as a matter of course, must go to the accused." 10. Mr. In any event, it cannot be said that the matter is free from doubt; and the benefit of that doubt, as a matter of course, must go to the accused." 10. Mr. Barot, learned advocate has also relied upon a decision of the Hon'ble Apex Court in the case of Kishan Chander v. State of Delhi, reported in (2016) 3 SCC 108 wherein para Nos. 28 and 29, read as under: "28. As far as the evidence of panch witness Anoop Kumar Verma (PW 6) is concerned, in his examination-in-chief, he stated thus: "..... Thereafter, the complainant and the accused walked for 15-20 steps and had some talk with the complainant and the complainant took out those GC notes from his pocket and give in the right hand of the accused which he kept in the left pocket of his shirt....." 29. Anoop Kumar Varma (PW 6) in his examination-in-chief has not deposed as to the exact conversation that took place between the appellant ad the complainant Jai Bhagwan at the time when he had approached him to give bribe money. He has simply mentioned about "some talk" that had taken place between them but has failed to bring to light the factum of demand of bribe money by the appellant from the complainant Jay Bhagwan. Thus, it is amply clear that panch witness Anoop Kumar Verma did not hear the conversation between the appellant and the complainant Jay Bhagwan. Therefore, there was no occasion for both the courts below to reach the conclusion that the appellant demanded any bribe from the complainant Jay Bhagwan." 11. Mr. Barot, learned advocate has also relied upon the decision of the Hon'ble Apex Court in the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another, reported in (2015) 10 SCC 152 , more particularly, para-24 wherein it is observed as under: "24. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW 1 S. Udaya Bhashar. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW 1 S. Udaya Bhashar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs. 500 from the pocket of is shirt and handed over the same to the appellant. Though, a very spirited endeavour has been made by the learned counsel for the State to co-relate this statement of PW 1 S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left un-persuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW 1 S. Udaya Bhaskar is accepted on the fact value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoyed by law to hold that the offence under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act has been proved. True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3-1-1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 4-10-1996. However, the testimony of PW 1 S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act against the appellant has been proved beyond reasonable doubt." 12. Mr. Mr. Barot, learned advocate has also argued that the learned trial court, while recording the findings, gave ample reasons for arriving at decision and findings are based upon the evidence on record and once the learned Special Judge has acquitted the accused which are based upon the evidence available on record and there appears no perversity and in that view of the matter, this Court may not interfere with the findings recorded by the learned Special Judge. 13. 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. 14. 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. 15. 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. 16. 16. 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. 17. 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. 18. 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. 18. 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. 19. 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. 20. Having heard learned advocate for the respective parties to the present proceedings and having perused the impugned judgment as well as records and proceedings, as per the prosecution version, the accused was serving as Food Inspector with the Jamnagar Municipal Corporation whereas the complainant was running sweet mart under the name and style of "Kirit Farsan." The accused visited the shop of the complainant for inspection on 15/03/2005 and while attempting to take sample, the complainant requested him not to do so and at that time, in lieu of not proceeding further, the accused demanded Rs. 2,500/- as illegal gratification and the complainant asked him to come on next Tuesday for collecting the said amount of illegal gratification. As the complainant was not willing to pay such bribe, he lodged the complaint on 22/03/2005 and on the same day, the accused was caught red handed along with tainted currency notes of Rs. 2,500/- and thereby committed the offence punishable under Section 7, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. 21. PW-1 Haresh Kantilal who is the complainant has deposed that his shop is situated near Bedi Gate. He has deposed that Food Inspector used to inspect their product and accordingly on 15/03/2005, during evening hours, the accused visited his shop and at that time, his worker Kalpesh was also present. 21. PW-1 Haresh Kantilal who is the complainant has deposed that his shop is situated near Bedi Gate. He has deposed that Food Inspector used to inspect their product and accordingly on 15/03/2005, during evening hours, the accused visited his shop and at that time, his worker Kalpesh was also present. He has deposed that at that time, after carrying out certain inspection, the accused told the complainant that the samples are required to be collected. He has also deposed that at that time, he told that they are not indulging in any wrong activity and requested not to take sample and at that time, the accused demanded Rs. 2,500/- as illegal gratification. He has deposed that though he requested to scale down, the accused did not do so, due to which the complainant asked him to come on next Tuesday to collect the money to which the accused agreed. He has also deposed that thereafter he lodged the complaint. He has also deposed that accordingly, a trap was arranged and on the day of trap, though at appointed time, the complainant and shadow panch waited for a petty long period, the accused did not come due to which on the same day, the complainant telephoned the accused and requested to come in the evening and accordingly on the same day, while he was in his shop, at that time, during evening hours, the accused came to his shop. He has deposed that he told that, as per the previous talk, Rs. 2,500/- is ready and thereafter he handed over the said tainted currency notes to the accused which the accused accepted and put into the pocket of his shirt and thereafter he gave pre-arranged signal due to which other raiding party members arrived there. He has deposed that at that time, panch No. 1 apprised the members of the raiding party as regards to incident. He has deposed that thereafter search and seizure was carried out and test of phenolphthalein powder was carried out. In the cross examination, he has admitted that though he was not willing to pay bribe, he was eager to trap the accused. He has also admitted that at the time of trap, shadow panch did not hear the conversation. 22. PW-2 Ramanbhai Chhaganlal Patel has deposed that he was working in the District Panchayat, Jamnagar and he was requisitioned to act as shadow panch. He has also admitted that at the time of trap, shadow panch did not hear the conversation. 22. PW-2 Ramanbhai Chhaganlal Patel has deposed that he was working in the District Panchayat, Jamnagar and he was requisitioned to act as shadow panch. He has deposed that he was apprised as regards to complaint as well as procedure of trap and he was directed to hear the conversation and view the incident at the time of trap and to remain along with the complainant. He has deposed that accordingly, on the day of trap, he accompanied the complainant. He has deposed that the first trap failed due to which on the same day, the complainant, by way of telephone, called the accused and thereby at about 5:00 o'clock in the evening, the accused came to the shop of the complainant. He has deposed that at that time, the complainant and the accused were talking very slowly and due to which he could not hear but only heard that as per previous conversation, the complainant handed over Rs. 2,500/- and thereafter he raised pre-arranged signal. He has deposed that thereafter there was a mob of people at the shop due to which the accused was taken to the ACB office where search and seizure was carried out at the ACB office. 23. PW-3 and PW-4 are the police officials who were examined. Their evidence is not required to be reproduced herein as they came to know as regard trap through panch No. 1. 24. On overall evidence on record, so far as pre demand is concerned, the complainant has specifically stated before the court that at the time of visiting shop of the complainant on 15/03/2005, the accused demanded Rs. 2,500/- in lieu of not taking of any sample of his product and that incident took place in presence of Kalpesh Lakhani, employee of the complainant. He was shown as witness by the prosecuting agency in the charge sheet, however, he was not examined. Consequently, therefore, so far as evidence of pre-demand is concerned, the same remains uncorroborated though the evidence was available with the prosecution. The material witness, in order to establish vital ingredients like pre demand, remained uncorroborated for want of his examination. 25. On the aspect of demand and acceptance, evidence of the complainant is emerging in consensus with the complaint. Consequently, therefore, so far as evidence of pre-demand is concerned, the same remains uncorroborated though the evidence was available with the prosecution. The material witness, in order to establish vital ingredients like pre demand, remained uncorroborated for want of his examination. 25. On the aspect of demand and acceptance, evidence of the complainant is emerging in consensus with the complaint. However, the complainant, in his cross examination, admitted that he was eager to rope the present accused due to previous enmity as the accused booked his real brother by way of taking sample and lodged the prosecution against him which has been also came to be produced at Exh. 60 before the learned Special Judge. The evidence of the complainant on that aspect is not at all getting corroboration from the mouth of shadow witness, PW-2 as at that time of trap, conversation between the complainant and the accused was so slow due to which PW-2 could not hear and that fact is also revealing not only from the contemporaneous panchanama but also from the depositions of the complainant. Consequently, therefore, the only evidence of the complainant is available on record in order to establish material aspect as regards to demand and acceptance. Except the evidence of the complainant, no other evidence is available on record. 26. In view of aforesaid decisions relied upon by Mr. Pratik Barot, learned advocate wherein this Court as well as Hon'ble Supreme Court has clearly laid down that it would be very hazardous to record conviction solely based upon the sole testimony of the complainant without due corroboration from the shadow panch. 27. In view of the aforesaid legal position, learned Special Judge has rightly recorded the findings that due to want of due corroboration, evidence of the complainant cannot be linked with the factum of malice intention on part of the complainant to book present accused in order to settle his score as present respondent-accused also booked his real brother by way of taking sample due to which the benefit of doubt extended by the learned Special Judge requires no interference as such. 28. So far as recovery aspect is concerned, indisputably as revealed from the contemporaneous panchnama, at the place of trap, mob of people gathered and due to which the entire procedure of recovery was carried out in panchayat office which is far away from the place of trap. 28. So far as recovery aspect is concerned, indisputably as revealed from the contemporaneous panchnama, at the place of trap, mob of people gathered and due to which the entire procedure of recovery was carried out in panchayat office which is far away from the place of trap. Consequently, therefore, recovery aspect also becomes doubtful as the same was not effected at the place of trap. 29. Even otherwise also, this Court has gone through the impugned judgment wherein the learned Special Judge has recorded ample reasons for arriving at the finding on all aspect. This Court agrees with the reasons assigned by the learned Special Judge. 30. 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 finds 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. 31. 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.