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Gujarat High Court · body

2017 DIGILAW 981 (GUJ)

State of Gujarat v. Popatlal Mohanbhai Patadiya

2017-05-04

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant 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 20.10.2004 rendered by learned Special Judge, Fast Track Court, Surendranagar in Special Case No. 06 of 2001, whereby the respondent - accused has been acquitted from commission of the offences under Sections 7, 13 (1) (d), 13 (2) of the Prevention of Corruption Act, 1947 (for short "the Act"). 2. The short facts giving rise to the present appeal are that at the relevant time, the respondent - accused was serving as a Clerk in District Record Office, Wadhwan. Complainant namely Sondabhai Muljibhai Dalwadi resident of Village Velavadar, Taluka - Wadhwan contacted the accused for obtaining necessary certified copies of revenue records pertaining to his late father. The present respondent - accused instructed the complainant to tender an application with deposit of Rs. 50/-. The complainant tendered an application accordingly. As per the instructions given by the respondent - accused, the complainant in the company of his relative Mavjibhai Hirabhai Dalwadi went to the said office after a week to inquire as to whether copies were ready and available. At that time, the respondent - accused told the complainant that as the original record being old, one had to take a considerable trouble, so he demanded Rs. 400/- towards illegal gratification. Since the complainant did not desire to give any amount to the present respondent - accused, the complainant approached the A.C.B. office. After the complainant lodged the complaint, necessary formalities in respect of trap were carried out at ACB Office and the trap was arranged. The present respondent - accused was caught red handed while accepting bribe. Hence, the complaint came to be lodged against the respondent-accused for the offence punishable under Sections 7, 13 (1) (d), 13 (2) of the Prevention of Corruption Act, 1947. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed charge-sheet against the present respondent - 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 seven witnesses and also produced several documentary evidences. 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 seven witnesses and also produced several 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 has preferred the aforesaid Criminal Appeal before this Court. 5. This Court has heard Mr. K.L. Pandya, learned APP for the State and Mr. Ankur Y. Oza, learned advocate for the respondent - accused. 6. By way of preferring the present appeal, the appellant - State has taken this Court through the entire evidence available on record. He has argued that the prosecution successfully established the vital ingredients like demand and acceptance, though the complainant, a person who accompanied at the time of trap and other persons who were found working there had not supported the prosecution case. It is clearly established from the evidence of the shadow panch that at the time of trap, the demand was raised by the accused and due to which, the complainant handed over tainted currency notes of Rs. 400/- to the present respondent - accused and the said amount came to be recovered from the shirt pocket of the present respondent - accused and the numbers of tainted currency notes were also tallied with the numbers written in the preliminary panchnama. Therefore, the prosecution has established demand, acceptance and recovery. However, the Special Judge failed to appreciate the aforesaid aspects as the complainant and two witnesses who were present at the time of trap had not supported the prosecution case. He has further argued that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. 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 acquittal 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 acquittal is required to be reversed, as such. 7. Mr. Ankur Oza, learned advocate for the respondent - accused has argued that learned Judge has assigned ample reasons for recording acquittal and there is no iota of evidence available against the present respondent-accused and therefore, the judgment of acquittal recorded by the learned Special Judge calls for no interference. He has urged that the judgment delivered by the learned trial Judge may be confirmed. He has also supported the judgment rendered by the learned Special Judge. He has further stated that the learned trial Court has not committed any error in relying upon the evidence and the learned Trial Court has rightly recorded findings which are based upon the material evidence and this Court should not interfere with the findings recorded by the learned Special Judge. 8. Mr. Ankur Oza, learned advocate for the respondent - accused has further argued that the P.W. No. 1 - Sondabhai Muljibhai had disowned his own complaint. During the course of trial, he went on saying to the extent that the accused had never demanded any amount of illegal gratification and had not accepted the same and the same evidence is also coming from the mouth of P.W. No. - 2 - Mavjibhai Hirabhai Dalwadi as well as P.W. No. 4 - Ashokbhai Himmatlal Vitthalpara who were present at the time of trap. Therefore, the complainant and the independent witnesses had not supported the prosecution case. As per his submission, only the evidence of shadow witness P.W. No. 3 - Krishnakant Dhirajlal Mehta is available, wherein also, the demand as regards illegal gratification has not been spelling out and therefore, the prosecution miserably failed to establish the demand and acceptance. In that event, even if the recovery came to be effected from the person of the accused, it becomes meaningless. Therefore, the finding recorded by the learned Special Judge is in accordance with law which calls for no interference. In that event, even if the recovery came to be effected from the person of the accused, it becomes meaningless. Therefore, the finding recorded by the learned Special Judge is in accordance with law which calls for no interference. He has further argued that in the case of the prosecution, whenever the complainant has disowned the complaint itself and the complainant was illiterate and his thumb mark came to be identified by the P.W. No. 2 who had also disowned. He has further argued that the ratio laid down by the Hon'ble Supreme Court in the cases of M.R. Purushottham v. State of Karnataka, reported in (2015) 3 SCC 247 and B. Jayaraj v. State of Andhra Pradesh, reported in (2014) 13 SCC 55 is squarely applicable to the facts and circumstances of the present case. 9. 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 reverse the judgment and order passed by the learned trial Court. 10. Keeping in mind the principle laid down by the Supreme Court in the aforesaid series of decisions in light of the rival submissions came to be made by the learned advocates for the respective parties, the question arises for determination of this Court whether the prosecution has proved the vital ingredients of demand, acceptance and recovery of illegal gratification of Rs. 400/- beyond reasonable doubt. 11. P.W. No. 1 - Sondabhai Muljibhai has been examined vide Exhibit - 11. He deposed that he went to the District Record Office, Wadhwan for getting the copies of revenue entries of his ancestral lands. He went there with Mavjibhai Heerabhai Dalwadi. The officer who was serving there instructed him to deposit Rs. 50/- for getting such copies. Therefore, he tendered an application and deposited Rs. 50/-. Thereafter, he was directed to come to his office for collecting the copies after a week. Thereafter, he did not support the prosecution case and refused to identify the accused who was present in the witness box and disowned his own complaint. Therefore, he was declared hostile. Thereafter, the learned APP for the State carried out extensive cross examination, but the complainant did not support the prosecution case. In the cross examination carried out by the learned advocate for the accused, he admitted that he has neither met nor seen the accused. Therefore, he was declared hostile. Thereafter, the learned APP for the State carried out extensive cross examination, but the complainant did not support the prosecution case. In the cross examination carried out by the learned advocate for the accused, he admitted that he has neither met nor seen the accused. He further admitted that a person who is sitting in the Court never met him in the District Record Office and the accused never demanded any amount from him and he never handed over any amount to the accused. He further admitted that he is illiterate and due to low vision, he could not see beyond seven - eight feet. 12. P.W. No. 2 - Mavjibhai Heerabhai Dalwadi had been examined vide Exhibit - 12. He accompanied the complainant in the office of the District Record. He deposed that when he went to Wadhwan Hathikhana along with the complainant for obtaining the copies of revenue record, one officer and two to three clerks were present in the office. The officer instructed them to tender an application and also to deposit Rs. 50/-. They tendered an application and deposited Rs. 50/- accordingly. The thumb impression of the complainant was obtained in the application. As he did not support the prosecution case, he was declared hostile. In the cross examination, he admitted that he has not seen the ACB Office and he did not accompany the complainant when the complainant went to ACB Office. He further admitted that the complainant has not lodged any complaint in his presence. He further admitted that the complainant did not put his thumb impression in his presence. He further admitted that the accused had never demanded Rs. 400/- from the complainant. 13. P.W. No. 3 - Krishnakant Dhirajlal Mehta had been examined vide Exhibit 13. He deposed that he has been serving as a Junior Clerk in the Tax Department of Surendranagar Nagarpalika for last 25 years. He was requisitioned as a shadow panch by ACB Office. On the day of trap, he reached to the District Record Office along with the complainant. At that time, the complainant asked the accused as to why he is not delivering the copies to him though the copies are ready. Then, the accused asked the complainant whether he has brought the amount of Rs. 400/- as per earlier talk, the complainant replied in affirmative. At that time, the complainant asked the accused as to why he is not delivering the copies to him though the copies are ready. Then, the accused asked the complainant whether he has brought the amount of Rs. 400/- as per earlier talk, the complainant replied in affirmative. Thereafter, the complainant handed over the said amount to the accused and then, he gave prearranged signal to the members of the raiding party. On receiving such signal from the complainant, other members of the raiding party arrived and tainted currency notes came to be recovered. Search and seizure procedure was carried out and panchnama was prepared. In the cross examination, the witness admitted that while narrating the facts of the complaint orally, the complainant did not state before the panchas that he went to the District Record Office, Wadhwan District on 29.01.2001 and met Record Clerk Mr. Patadiya and though the copies were ready, Mr. Patadiya demanded Rs. 400/- as an illegal gratification for delivering the said copies. 14. P.W. No. 4 - Ashokbhai Himmatlal Vitthalpara had been examined vide Exhibit - 17. He deposed that in the year, he was serving as a District Record Officer in the office of District Record. He deposed that on the day of trap, the complainant approached the office and also to the accused, but he had not heard any conversation took place between them and he had not seen any transaction took place between them. 15. P.W. No. 5 - Ashoksinh Dilipsinh, P.W. No. 6 - Praveensinh Kheemubha Jadeja and P.W. No. 7 - Rajendrasinh Ghanshyamsinh Vaghela were the trapping officers as well as investigating officers. In their depositions, they have detailed as to how the raid was carried out and other procedures etc. 16. On overall analysis of the aforesaid evidence on record, indisputably, at the time of trap, along with the complainant, P.W. No. 2 - Mavjibhai as well as P.W. No. 3 - Ashokbhai were present, however, P.W. No. 1 - complainant disowned his own complaint and even refused to recognize the accused before the learned Special Judge and even he went on saying to the extent that as he was illiterate, he did not know what was written in the complaint and he did not lodge any complaint naming the present respondent - accused as such. In view of his deposition, he did not support his complaint and was declared hostile. Similarly, P.W. No. 2 - also did not support the prosecution case. So far as the evidence of P.W. No. 4 who was serving in the office of the present respondent -accused at the relevant time is concerned, nothing worthy is coming out to connect the present respondent - accused with the crime in question as he clearly and categorically admitted that he has not heard any conversation took place between the complainant and the accused and viewed the transaction took place between them. 17. So far as the evidence of the shadow panch - P.W. No. 3 - Krishnakant Dhirajlal Mehta is concerned, he has deposed in his evidence indicating that upon reaching the office at the time of trap, the complainant asked the accused as to why he is not delivering the copies to him, though they are ready. Then, the accused asked him whether he has brought money as per earlier talk. If he would pay him Rs. 400/-, he would deliver the same to him. Thereafter, the complainant handed over tainted currency notes to the accused. When this witness has specifically admitted in his cross examination that while apprising the complaint, he was not made to understand that the accused demanded Rs. 400/- as illegal gratification from him. 18. The aforesaid conversation took place between the accused and the complainant, as deposed by the panch - witness, could not be termed unequivocally as a demand with regard to the illegal gratification in absence of the deposition of the complainant. 19. On overall analysis of the aforesaid evidence on record, the ratio laid down by the Hon'ble Supreme Court in the cases of M.R. Purushottham v. State of Karnataka, reported in (2015) 3 SCC 247 and B. Jayaraj v. State of Andhra Pradesh, reported in (2014) 13 SCC 55 is squarely applicable to the facts and circumstances of the present case. When the complainant himself did not support the prosecution case and nothing is coming out from his mouth as regards any demand raised by the present respondent - accused or handing over such amount between them in pursuance of the demand, it is not being established. 20. In view of the above, this Court is in agreement with the view taken by the lower Court. 20. In view of the above, this Court is in agreement with the view taken by the lower Court. Moreover, learned Public Prosecutor is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence while acquitting the accused. Under the circumstances, this Court is of the considered opinion that the Court below has not committed any error in acquitting the respondent-accused of the charges leveled against him and, therefore, this Court finds no reason to entertain this appeal. 21. For the foregoing reasons, the Criminal Appeal is dismissed. The impugned judgment and order dated 20.10.2004 rendered by learned Special Judge, Fast Track Court, Surendranagar in Special Case No. 06 of 2001, acquitting the accused of the charge, as alleged, is hereby confirmed. Bail bond, if any, stands canceled. Registry to return the R&P to the concerned trial Court forthwith.