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2018 DIGILAW 488 (GUJ)

JAYPRAKASH KISHOREBHAI SURTI v. STATE OF GUJARAT

2018-02-12

R.P.DHOLARIA

body2018
JUDGMENT : 1. The present appeal is preferred by the appellant – original accused against the judgment and order dated 09.04.2004 passed by learned Additional Sessions Judge (Fast Track Court No.1), Bharuch in Special (A.C.B.) Case No.2/99 whereby the appellant accused has been convicted and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.50,000/-, in default, to undergo simple imprisonment for five months for the offence under Section 7 of the Prevention of Corruption Act, 1988 (“the Act” for short) and also convicted the appellant and sentenced him to undergo rigorous imprisonment for five years and to pay fine of Rs.50,000/-, in default, to undergo simple imprisonment for five months for the offence under Section 13(2) of the Act. Both the sentences were ordered to run concurrently. 2. The short facts giving rise to the present case are that the accused Mr. Surti was in-charge and was serving as Assistant Engineer with the then Gujarat Electricity Board at Ankleshwar whereas the complainant Mahendrabhai Supabhai Patel was a contractor who constructed a society wherein a temporary connection was obtained which was to expire on 24th May, 1998 and he was in need of permanent connection and therefore he approached the accused, at that time, the accused initially demanded Rs.2,50,000/- for releasing such permanent connection in favour of complainant which was scaled down to Rs.1,75,000/- during the course of their negotiation and in lieu thereof he handed over Rs.40,000/- as installment and the rest of the amount of Rs.1,35,000/-was agreed to be handed over to the accused on 26th May, 1998 at the residence of accused. As he was not willing to pay the aforesaid amount, he lodged the complaint and trap was arranged by the Anti Corruption Bureau, Bharuch and during the course of trap, as the accused had come to know the presence of A.C.B. personnel, he did not accept and the trap remained unsuccessful and thereby the accused committed the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 and thereby the accused has committed the offence, as alleged. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused person. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to the tried. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused person. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to the 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 statements 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. 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 - 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. 6. Mr. Manish J. Patel, learned Advocate for the appellant has argued that since the complainant- PW-2-Mahendrabhai Supabhai Patel, PW-3-Mr. Dharmesh Ambalal Shah and PW-4-Mr. Bharatbhai Jayantibhai Mehta in whose presence the initial demand came to be raised and accepted by the accused, had not supported the case of the prosecution and they have been declared hostile and at the time of trap on 26.05.1998, the complainant and the witnesses as well as the shadow panch had not handed over any amount to the accused, therefore, trap remained unsuccessful for want of instant demand and acceptance thereof. According to him, in view of the aforesaid factual position, the prosecution miserably failed to establish even the initial demand and acceptance of amount of illegal gratification to the extent of Rs.40,000/- as well as failed to prove the instant demand as well as the acceptance at the time of trap. He submitted that though the learned Trial Court recorded findings that since the accused failed to explain the amount as regards to the recovery of several amounts subsequently from his house, and in view thereof learned Trial Court recorded findings against the accused. Precisely, learned Advocate Mr. He submitted that though the learned Trial Court recorded findings that since the accused failed to explain the amount as regards to the recovery of several amounts subsequently from his house, and in view thereof learned Trial Court recorded findings against the accused. Precisely, learned Advocate Mr. Manish J. Patel submitted that the learned Trial Court has totally misread the evidence on record and solely based its findings upon the strength of relying under Section 20 of the Prevention of Corruption Act, 1988 which was not permissible. He submitted that taking into consideration the facts and circumstances of the present case, as the prosecution miserably failed to establish even the initial demand and acceptance thereof insofar as the trap remained unsuccessful is concerned and even if the evidence of panch No.1 may be accepted in toto, in that event also, conviction could not have been based for want of establishment of initial demand and acceptance thereof as trap remained unsuccessful. 7. On the other hand, Ms. Maithali Mehta, learned Additional Public Prosecutor has also taken this court to the evidence of material witnesses like the complainant, the shadow panchas as well as other two witnesses namely, Dharmesh Ambalal Shah and Bharatbhai Jayantibhai Mehta and has argued that the learned Trial Court has elaborately dealt with the evidence on record and rightly recorded its findings and rightly convicted the accused and this court should not disturb the findings recorded by the learned Trial Court as the findings recorded in the impugned judgment is based upon the evidence available on record. Ms. Maithali Mehta has also pointed out that since the description of Muddamal article which came to be seized from the house of accused was found to be relatable to the factual scenario emerging from the complaint and complaint is proved during the course of investigation, on that count also, the learned Trial Court has rightly believed that initial demand as well as the acceptance has got proved during the course of trial. 8. This court has heard learned Advocate Mr. Manish J. Patel for the appellant and Ms. Maithali Mehta, learned Additional Public Prosecutor for the State at length. 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 accused Mr. Manish J. Patel for the appellant and Ms. Maithali Mehta, learned Additional Public Prosecutor for the State at length. 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 accused Mr. Surti was in-charge and was serving as Assistant Engineer with the then Gujarat Electricity Board at Ankleshwar whereas the complainant Mahendrabhai Supabhai Patel was a contractor who constructed a society wherein a temporary connection was obtained which was to expire on 24th May, 1998 and he was in need of permanent connection and therefore he approached the accused, at that time, the accused initially demanded Rs.2,50,000/- for releasing such permanent connection in favour of complainant which was scaled down to Rs.1,75,000/- during the course of their negotiation and in lieu thereof he handed over Rs.40,000/- as installment and the rest of the amount of Rs.1,35,000/-was agreed to be handed over to the accused on 26th May, 1998 at the residence of accused. As he was not willing to pay the aforesaid amount, he lodged the complaint and trap was arranged by the Anti Corruption Bureau, Bharuch and during the course of trap, as the accused had come to know the presence of A.C.B. personnel, he did not accept and the trap remained unsuccessful and thereby the accused committed the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. 10. PW-1, Anilkumar Narharilal Choksi, the witness was requisitioned by the Anti Corruption Bureau, Bharuch. As the panch, he accompanied with another panch while laying the trap on 26.05.1998. He proceeded along with the complainant Mahendrabhai Supabhai Patel another witness Dharmesh Ambalal Shah and Bharatbhai Jayantibhai Mehta to the house of accused. He also detailed in his deposition as to why he was requisitioned as the panch and in his presence the demonstration as regards to use of ultraviolet lamp wherein the Muddamal currency notes as the anthracene powder was carried out and he was directed to see and hear the conversation between the accused and complainant at the time of trap. He also detailed in his deposition as to why he was requisitioned as the panch and in his presence the demonstration as regards to use of ultraviolet lamp wherein the Muddamal currency notes as the anthracene powder was carried out and he was directed to see and hear the conversation between the accused and complainant at the time of trap. He further deposed that on the said date, they reached nearby the house of accused, at that time, the complainant asked to the accused not to disconnect the temporary connection, at that time, accused told him that if he act as per the agreement, he would not disconnect the connection. Further also, he has asked the accused that he has made arrangement agreed and thereafter took the accused and asked witness Bharatbhai Jayantibhai Mehta to accept the amount of Rs.1,35,000/- which he refused to accept. 11. PW-2, Mahendrabhai Supabhai Patel, the complainant has deposed that he was working as a builder and he has constructed a society namely, Ganesh Park having 130 houses and he obtained temporary electricity connection from the Gujarat Electricity Board. He further deposed that he met the accused along with Mr. Bharatbhai Jayantibhai Mehta for converting the temporary connection into permanent one. At that time, said Bharatbhai Jayantibhai Mehta told him that there would be an expense of Rs.1,35,000/-. He denied that the accused had ever demanded Rs.2,35,000/- as the amount of illegal gratification for releasing the permanent connection in favour of complainant. Though he was declared hostile and thereafter, the learned Additional Public Prosecutor has confronted him on several aspects which he alleged to have stated while lodging the complaint before the police but he did not depose anything against the accused and he virtually disowned his own complaint. 12. PW-3, Dharmesh Ambalal Shah, deposed that he was a resident of Natrang and dealing as the supplier of building materials. He further deposed that complainant, Mahendrabhai Supabhai Patel is known to him, he constructed the society. He was declared hostile. Though extensive cross examination was carried out, he did not support the case of prosecution at all. 13. PW-4, Bharatbhai Jayantibhai Mehta, deposed that he is the resident of Sridhar Society, Ankleshwar and dealing with the grocery articles. As he did not support the case of prosecution at all, he was declared hostile. 14. He was declared hostile. Though extensive cross examination was carried out, he did not support the case of prosecution at all. 13. PW-4, Bharatbhai Jayantibhai Mehta, deposed that he is the resident of Sridhar Society, Ankleshwar and dealing with the grocery articles. As he did not support the case of prosecution at all, he was declared hostile. 14. This court has gone through the records and proceedings as well as the impugned judgment of conviction recorded by the learned Trial Court. 15. In view of the aforesaid nature of evidence, the important question arises for determination of this Court, as to whether the prosecution has established the three ingredients i.e. demand, acceptance and recovery of illegal gratification or not ? 16. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair Vs. 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. 17. In State of Kerala and another Vs. C.P.Rao (2011) 6 SCC 450 : (AIR 2012 SC (Supp) 393), the Honourable 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. 18. In a recent enunciation by the Honourable Apex Court to discern the imperative prerequisites 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. 19. 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. 20. In the backdrop of the aforesaid factual 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. 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. On the overall analysis of the aforesaid evidence on record, indisputably, the prosecution case was rested upon the evidence of complainant-Mahendrabhai Supabhai Patel and witnesses Bharatbhai Jayantibhai Mehta, Dharmesh Ambalal Shah and Anilkumar Narharilal Choksi. Except Anilkumar Narharilal Choksi, all three witnesses had turned hostile to the case of prosecution and had not at all supported the case of prosecution. On the overall analysis of the aforesaid evidence on record, indisputably, the prosecution case was rested upon the evidence of complainant-Mahendrabhai Supabhai Patel and witnesses Bharatbhai Jayantibhai Mehta, Dharmesh Ambalal Shah and Anilkumar Narharilal Choksi. Except Anilkumar Narharilal Choksi, all three witnesses had turned hostile to the case of prosecution and had not at all supported the case of prosecution. Indisputably, the actual trap came to be arranged on 26.05.1998 during the nocturnal hours, which remained unsuccessful as the accused did not accept the amount of illegal gratification either from the complainant or from the witness Bharatbhai Jayantibhai Mehta. Consequently, therefore, there appears no evidence as regards the instant demand and acceptance of the amount thereof at the time of trap i.e., 26th May, 1998. In view thereof, as there was no evidence available as regards to the instant demand at the time of trap on 26th May, 1998 prosecution case was rested only upon the initial demand alleged to have been raised on 21th May, 1998 and the accused alleged to have accepted the amount of illegal gratification to the extent of Rs.40,000/- from the accused in presence of Dharmesh Ambalal Shah. 21. So far as the initial demand dated 21th May, 1998 alleged to have been raised by the accused before the complainant in presence of Dharmesh Ambalal Shah, neither the complainant had deposed the same nor the said Dharmesh Ambalal Shah had deposed before the learned Trial Court that the accused demanded and accepted the said amount of Rs.40,000/- and both of them were declared hostile to the case of prosecution and had not at all supported the case of prosecution. Consequently, therefore the prosecution miserably failed to establish even the initial demand and acceptance by the accused from the complainant in presence of Dharmesh Ambalal Shah. Under the circumstances, the prosecution miserably failed to establish the factum of initial demand as demanded and accepted as well as since the actual trap dated 26th May, 1998 remained unsuccessful, the prosecution miserably failed to establish guilt on the part of the accused punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. 22. Under the circumstances, the prosecution miserably failed to establish the factum of initial demand as demanded and accepted as well as since the actual trap dated 26th May, 1998 remained unsuccessful, the prosecution miserably failed to establish guilt on the part of the accused punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. 22. Even otherwise, Records and Proceedings also indicate that so far as the recovery which came to be effected as regards to the amount of illegal gratification of Rs.40,000/- which also came to be made about a week thereafter, raises reasonable doubt as to whether the same amount alleged to have been handed over to the accused is seized or not, and thereafter looses its value being the amount of illegal gratification. 23. In the result, the appeal succeeds and the same is allowed. The impugned judgment and order dated 09.04.2004 passed by learned Additional Sessions Judge (Fast Track Court No.1), Bharuch in Special (A.C.B.) Case No.2/99 is quashed and set aside. The appellant – accused is acquitted of the charges levelled against him. Fine, if any, paid by him be refunded to him. Record and proceedings, if any, be sent back to the trial Court concerned forthwith.