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2017 DIGILAW 959 (GUJ)

Shantilal Bapulal Prajapati v. State of Gujarat

2017-05-03

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The present Criminal Appeal is preferred by appellant - original accused against the judgment and order dated 6.4.1999 passed by learned Special Judge, Vadodara in Special Case No. 2 of 1994 whereby the appellant - original accused herein was convicted for the offence under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and section 43 of the Gujarat Secondary Education Rules and sentenced him to undergo simple imprisonment for one year and to pay fine of Rs. 1000/-, in default, to undergo simple imprisonment for two months. 2. The short facts giving rise to the present appeal are that the complainant received the information that the accused serving in SCC Board who is declaring result prior to the date of result and collecting the amount from the people those who wanted to get result previous to the date of result and hence, the complainant verified the information and found to be correct. Hence, the trap was arranged wherein the accused caught red handed accepting the bribe amount. Hence, the complaint came to be lodged against the appellant accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the original accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 4. In order to bring home the guilt, the prosecution has examined the witnesses and also produced documentary evidences. 4.1 At the end of the trial, after recording the statement of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 5. Being aggrieved by the same, the appellant - original accused has preferred the aforesaid Criminal Appeal before this Court. 6. By way of preferring the present appeal, the appellant - original accused 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. 7. 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. 7. Mr. Parthiv Bhatt, learned advocate for the appellant - original accused has taken this Court through the charge levelled against the appellant accused as well as depositions of various witnesses and argued that since the trap in question was running trap, major role is being played by the police officials though the evidence of decoy as well as panch is involving the appellant accused, however, taking into consideration crucial role played by the complainant - police official, benefit of doubt may be extended to the accused as due to previous animosity between the accused and the complainant, the complainant was illegally insisting for knowing the result of SSC examination in advance which was not possible and therefore, the complainant has wrongly implicated the accused. He submitted that as the complainant wanted to involve the appellant accused in the offence in question, the complainant has wrongly prepared the entire case and as such, implicated the appellant accused wrongfully. He submitted that all the requisite papers were prepared at the office and as such everything was done by the police official and in fact, the appellant accused has not accepted any amount of illegal gratification and even, he did not return Rs. 500/- to the decoy. He submitted that search and seizure was carried out wherein Rs. 8200/- was recovered from the cup board placed in the house of the appellant - accused. Lastly, Mr. Bhatt submitted that the impugned judgment and order of conviction is required to be quashed and set aside. 7.1 In the alternative, Mr. Bhatt, learned advocate for the appellant accused submitted that at the time of trap, the appellant accused was aged about 51 years and by now, he has reached to the age of 76 years and that he is suffering from various ailments and bed ridden and hence, taking into consideration such prolonged proceedings coupled with his ailment, the appellant accused may be given the benefit of doubt or sentence imposed upon him may appropriately be reduced in view of such peculiar facts and circumstances of the present case. 8. On the other-hand, Mr. 8. On the other-hand, Mr. K.L. Pandya, learned APP has supported the judgment rendered by learned trial Court. He submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused which calls for no interference. He further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court may dismiss the appeal filed by the original accused. He submitted that PW 1 - punter and PW 2 - independent panch have supported the case of the prosecution and even their evidence is getting corroboration with the contemporaneous record in the nature of panchnama drawn on 19.6.1992 and 21.6.1992 and in fact, for declaring result in advance, the accused was indulging into practice of accepting amount of illegal gratification and used to declare result by recovering Rs. 300/- per subject. He submitted that in fact, as agreed by the accused, the accused accepted the amount of illegal gratification in the presence of panch on the day of trap on 21.6.1992 and that the said amount came to be recovered at the time of search and seizure. He submitted that test of ultra violate lamp was found positive on the person of the accused. He submitted that therefore, the finding recorded by learned trial Judge is in consonance with the evidence on record and hence, this Court may not interfere with the impugned judgment and order of conviction. 9. This Court has heard Mr. Parthiv Bhatt, learned advocate for the appellant - original accused and Mr. Pandya, learned APP for the State. 10. 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. 11. As per the prosecution version, PW 3 - P.M. Ganatra who was serving as Assistant Director, ACB, Bharuch at the relevant time in the year 1992 received information that the appellant accused was indulging into declaring result of the examination conducted by the Gujarat Secondary Education Board for the examination of SCC by way of accepting illegal gratification of Rs. 100/- to Rs. 100/- to Rs. 300/- for each subject and thereafter the complainant himself has verified the aforesaid information from his own source which was found to be true and as a result thereof, after following necessary formalities, the trap was arranged, requisitioned panchas and in fact, the trap was carried out on 21.6.1992 and during the course of trap, the accused was caught red handed along with tainted currency notes of Rs. 1500/- and thereby the accused committed the offence as alleged against him. 12. PW 1 - Kailashbhai Nathubhai Pagandi has been examined at Exh. 7. The witness has deposed that on 18.6.1992, he was taken to kothi compound office of ACB where he consented to act as punter. The witness has deposed that he was appraised as regards to declaring result in advance by taking the amount of illegal gratification by the present appellant accused. The witness has deposed that while he visited the accused's house on 19.6.1992, at that time, the accused told him that he is accepting Rs. 300/- per subject for declaring result in advance and in all, for seven subjects, he needed Rs. 2100/- and thereafter the witness was directed to come along with the aforesaid amount on 21.6.1992. The witness has deposed that again on the appointed date i.e. 21.6.1992, he went to the house of the accused along with panch, at that time, the accused asked him as to whether he has brought money which the witness has replied in affirmative and asked to show the result. The witness has deposed that thereafter the accused went into the prayer room and he brought chit wherein marks were written by him and he declared that Jigna failed in two subjects and one of the subjects was English, at that time, the accused told the witness that Jigna will be getting grace marks and would be passed and thereafter the accused demanded money and hence, the witness handed over Rs. 2000/- but the witness requested the accused that as Jigna has failed, he may give some relief and hence, the accused returned Rs. 500/- to the complainant and kept Rs. 1500/- with him. 2000/- but the witness requested the accused that as Jigna has failed, he may give some relief and hence, the accused returned Rs. 500/- to the complainant and kept Rs. 1500/- with him. The witness has deposed that thereafter the accused put the said amount into the pocket of his trouser and thereafter prearranged signal was given and hence the members of the raiding party arrived there, search and seizure took place, several chits were also collected from the room of the accused as well as Rs. 8200/- was also collected from the cup board. The witness has deposed that signature of the accused was also obtained and thereafter test of ultra violate lamp was carried out which was found positive on the person of the accused as well as pocket of the trouser wore by the accused. The detailed cross examination of the witness was conducted, but nothing worth has come out from the said extensive cross examination so far as demand raised by the accused on 19.6.1992 as well as instant demand and acceptance made by the accused on 21.6.1992 is concerned. 13. PW 2 - Bhaskarbhai Fatesinhbhai has been examined at Exh. 8. The witness has deposed that he was requisitioned as official panch as at the relevant time, he was serving as Typist in the Water Supply and Sewage Board. The witness has testified that on 19.6.1992, he accompanied with the complainant and visited the house of the accused, at that time, the accused demanded Rs. 300/- per subject. The witness has deposed that on the day of trap, i.e. on 21.6.1992 also, he accompanied with the complainant and when they reached the house of the accused, the accused asked the complainant as to whether he has brought money or not which was replied by the complainant in affirmative. The witness has deposed that thereafter the complainant asked for result, in turn, the accused shown the result wherein Jigna was found to be failed in two subjects and thereafter, the accused raised demand and hence, PW 1 handed over Rs. 2000/- to the accused. The witness has deposed that thereafter PW 1 asked for relief as Jigna was failed and hence, the accused returned Rs. 500/-out of Rs. 2000/- and the accused placed rest of the amount in the pocket of his trouser. 2000/- to the accused. The witness has deposed that thereafter PW 1 asked for relief as Jigna was failed and hence, the accused returned Rs. 500/-out of Rs. 2000/- and the accused placed rest of the amount in the pocket of his trouser. The witness has deposed that thereafter PW 1 gave prearranged signal, due to which, other members of the raiding party arrived there and thereafter search and seizure was carried out, several chits were also collected as well as seizure memo was also issued. However, in the cross examination of this witness, nothing worth has come out so far as demand and acceptance are concerned. 14. PW 3 - Pravinchandra Harjivandas has been examined at Exh. 12. The witness has deposed that he received secret information, as stated above, as regards to declaration of result in advance by virtually accepting the amount of illegal gratification and hence, he lodged the complaint. The witness has deposed that he arranged the trap on 19.6.1992 as well as on 21.6.1992 and thereafter the investigation was handed over to the Assistant Director. The witness has detailed as to how the trap was carried out successfully as well as to how the search and seizure was carried out. 15. PW 4 - Azambhai Ibrahimbhai Vora has been examined at Exh. 18 who was Chairman of the Gujarat Secondary Education Board. The witness was examined in order to prove the sanction to prosecute the accused accorded by him. In his deposition, the witness has stated that he studied the papers sent for sanction to prosecute the accused and thereafter, he accorded the sanction. The sanction accorded by this witness is produced at Exh. 19. 16. PW 5- Ramkrushna Gangaram Patil has been examined at Exh. 24 who has carried out test of ultra violate lamp on the person of the accused. 17. Over and above the aforesaid oral evidence, the prosecution has also produced on record contemporaneous panchnama which came to be drawn on 19.6.1992 as well as on 21.6.1992 at Exhs. 9 and 10. It can be noticed from the aforesaid contemporaneous panchnamas that on 19.6.1992 the decoy visited the house of the accused along with panch, at that time, the accused shown his willingness to declare result in advance by taking Rs. 300/- per subject and in all, the accused demanded Rs. 9 and 10. It can be noticed from the aforesaid contemporaneous panchnamas that on 19.6.1992 the decoy visited the house of the accused along with panch, at that time, the accused shown his willingness to declare result in advance by taking Rs. 300/- per subject and in all, the accused demanded Rs. 2000/- from punter and he was directed to come along with Rs. 2000/-on 21.6.1992 i.e. Sunday evening and accordingly, the punter and panch both reached wherein some conversation took place between the punter and the accused which is discerning at page 60 of the paper book. 18. 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. 19. 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. 20. 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. 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. 21. 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. 22. In the backdrop of the aforesaid factual as well as legal position, this Court has minutely gone through the impugned judgment and order as well as the depositions of the witnesses in light of the rival submissions made by learned advocates for both the sides. 23. In corruption cases, as laid down in the series of judgments by the Honourable Apex Court as well as by this Court, three vital ingredients are required to be established by the prosecution beyond reasonable doubt in order to prove the offence as alleged. In the present case, on evaluation of the evidence on record, it is clearly emerging out that the trap in question was running trap. In the present case, on evaluation of the evidence on record, it is clearly emerging out that the trap in question was running trap. Upon receipt of secret information, PW 3 verified the information from his own sources and thereafter in order to check as to whether verification of information was true or not, initially on 19.6.1992, he sent punter along with panch for seeking result in advance, at that time, the accused demanded Rs. 300/- per subject from PW 1 - punter and he was directed to come on 21.6.1992 along with Rs. 2000/- and accordingly, trap was carried out on 21.6.1992. At that time also, the accused demanded Rs. 2000/- and thereafter he shown result in advance pertaining to Seat No. B-11511 of SSC examination. As per the conversation revealing from the evidence of both witnesses i.e. PW 1 and PW 2, as the concerned candidate was found to be failed in two subjects and, therefore, the accused was asked to give some relief, due to which, the accused returned Rs. 500/- from the amount of illegal gratification of Rs. 2000/- to PW 1 and in fact, at the time of trap, Rs. 1500/-came to be recovered from the pocket of trouser wore by the accused. Further, the test of ultra violate lamp was also found to be positive so far as the person of the accused as well as pocket of the trouser which was wore by the accused are concerned. It is also to be noted that the panchnama of search and seizure was also signed by the accused wherein the numbers of tainted currency notes are tallied with the numbers of the currency notes mentioned in the preliminary panchnama. In view of the aforesaid nature of evidence, this Court is of the considered opinion that the prosecution has successfully proved the vital ingredient as regards to predemand though normally in the case of running trap, it is not possible to raise predemand, but in the present case, a day prior to trap, PW 1 visited the accused wherein he raised predemand and even the prosecution proved the instant demand, acceptance and recovery on the day of trap also. 24. 24. As stated above, this Court has minutely examined the evidence of the witnesses and the evidence of the witnesses has been read over in the presence of learned advocates for the parties and on overall analysis of their evidence, it leaves no manner of doubt of constituting vital ingredients as regards to demand, acceptance and recovery. It is also pertinent to note that the panch has witnessed the incident in question as he accompanied with the PW 1 at the time of trap on 21.6.1992 and, therefore, the evidence of PW 1 is fully corroborated by the evidence of panch i.e. PW 2. 25. It is also the contention of Mr. Bhatt, learned advocate for the appellant accused that the sentence imposed upon the appellant accused is required to be reduced in the peculiar facts of the present case. So far as reduction of sentence in the present case is concerned, the statute has provided minimum sentence of one year under section 13(2) of the Act and hence, the argument advanced by learned advocate for the appellant accused cannot be acceded to. Therefore, on careful consideration of the evidence on record, this Court is of the considered opinion that reversal of the order of conviction into acquittal is not warranted. 26. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in convicting the appellant - original accused. This Court finds that the findings recorded by learned trial court are absolutely just and proper and the view taken by learned trial Court was a possible one 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 conviction recorded by learned court below and hence finds no reasons to interfere with the same. 27. In view of the above discussion, the following final order is passed. Criminal Appeal No. 396 of 1999 filed by appellant accused is dismissed. The impugned judgment and order dated 6.4.1999 passed by learned Special Judge, Vadodara in Special Case No. 2 of 1994 is confirmed. 27. In view of the above discussion, the following final order is passed. Criminal Appeal No. 396 of 1999 filed by appellant accused is dismissed. The impugned judgment and order dated 6.4.1999 passed by learned Special Judge, Vadodara in Special Case No. 2 of 1994 is confirmed. The appellant accused - Shantilal Bapulal Prajapati is ordered to surrender to custody within a period of twelve weeks from today for undergoing the remainder sentence, if he has not undergone so far, failing which the investigating agency shall be at liberty to take necessary action in accordance with law. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.