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2018 DIGILAW 580 (GUJ)

JETHABHAI RAMJIBHAI JADAV v. STATE OF GUJARAT

2018-03-01

R.P.DHOLARIA

body2018
JUDGMENT : 1. The present appeal is preferred by the appellant-original accused against the judgment and order dated 24.03.2004 passed by learned Special Judge (ACB), Court No.2, Ahmedabad in Special Case No.5 of 2000 whereby the appellant accused has been convicted and sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.500/, in default, to undergo rigorous imprisonment for two 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 one year and to pay fine of Rs.1000/, in default, to undergo rigorous imprisonment for three 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 complaint came to be lodged against the present complainant as well as his family members at Shahibaug Police Station where the accused was serving as Assistant Sub-Inspector and for not beating, handcuffing and producing before the Court for seeking bail, the accused demanded the amount of Rs.1000/- as illegal gratification on 26.11.1999 and initially, accepted Rs.400/- on that day and rest of the amount of Rs.600/- was required to be paid on the following day on 27.11.1999 at the police station. As the complainant was not ready to pay the said amount of illegal gratification, lodged the complaint. During the course of trap, the accused was caught raidhanded along with tainted currency notes and thereby, he committed the offence punishable under Section 7 and Section 13(2) of the Prevention of Corruption Act 1988. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the appellant 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 for about six witnesses and also produced documentary evidences. 3.2 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. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 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-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. Learned advocate Mr. N. J. Shah for learned advocate Mr. J. K. Parmar for the appellant has taken this Court through the entire record & proceedings and read over the evidence of the complainant, shadow panch, independent witness Bharatbhai Keshavlal Shah who was present at the time of initial demand as well as instant demand, as well as evidence of other witnesses. Learned advocate has argued that since the complainant has been declared hostile and virtually, he himself has disowned the complaint so far as the crucial aspect as regards the demand of illegal gratification and acceptance thereof is concerned, consequently therefore, this case is clearly covered by the judgment of the Hon’ble Supreme Court in case of B. Jayaraj vs. State of Andhra Pradesh [AIR 2014 SC (Supp.) 1837]. Learned advocate has further argued that the evidence of shadow panch is also not leading the case of the prosecution any further as he has not deposed that the appellant demanded any amount of illegal gratification from the complainant, but as per his evidence, the accused demanded the amount from one Bharat Shah and not from the complainant. Consequently therefore, the evidence of shadow panch is also not getting any corroboration leading the case of the prosecution any further. Learned advocate for the appellant has also argued that so far as the evidence of prosecution witness No.3Bharat Keshavlal Shah is concerned who was present at the time of raising predemand and acceptance thereof and his presence was there at the time of trap, he has not supported the case of the prosecution, consequently therefore, he was declared hostile to the case of the prosecution and thereafter, though extensive cross-examination was undertaken, he denied the crucial aspect involving the appellant to the crime in question. Learned advocate has argued that in view of aforesaid nature of evidence, the prosecution has miserably failed to establish the vital ingredients like demand, acceptance and recovery, still however learned Trial Court based its findings upon conjectures and surmises and wrongly convicted the appellant which is required to be quashed and set aside. 7. On the other hand, learned Additional Public Prosecutor Mr. K. P. Raval has supported the impugned judgment and order of conviction and sentence rendered by the learned Special Judge. He has further argued that taking into consideration the evidence of prosecution witnesses Nos. 1, 2 and 3, the crucial aspect as regards demand and acceptance is being established and that has rightly been taken to be proved by the learned Trial Court. He has argued that the learned Trial Court has given elaborate reasons for its findings and therefore, this Court may not interfere with the findings recorded as well as the resultant conviction thereof. 8. This Court has heard learned advocate Mr. N. J. Shah for learned advocate Mr. J. K. Parmar for the Appellant-accused and learned Additional Public Prosecutor Mr. K. P. Raval for the State. 9. Prosecution witness No.1Nagarbhai Khemabhai Dabhithe complainant deposed that against him and his family members, the complaint came to be lodged at Shahibaug Police Station where the accused was serving as Assistant SubInspector. He met the accused on 26.11.1999. At that time, the accused demanded Rs.1000/for not beating and handcuffing and initially, he accepted Rs.400/from the complainant and rest of the amount of Rs.600/ was to be paid later on. Further, he deposed that at the time of demand and handing over the aforesaid amount of Rs.400/, prosecution witness No.3Bharat Keshavlal Shah was present. He further deposed that on that day of trap, when he reached the police station, at that time, prosecution witness No.3 asked as to whether he had brought the money. He has not supported the case of the prosecution and was declared hostile. He was extensively cross-examined by learned APP, but he remained changing the testimony and he was not involving the accused as regards the demand and acceptance. On the contrary, he involved prosecution witness No.3Bharat Keshavlal Shah for demanding the said amount. He has not supported the case of the prosecution and was declared hostile. He was extensively cross-examined by learned APP, but he remained changing the testimony and he was not involving the accused as regards the demand and acceptance. On the contrary, he involved prosecution witness No.3Bharat Keshavlal Shah for demanding the said amount. In the cross-examination undertaken by the defence, he deposed that when he reached the police station where the accused was serving as Assistant Sub-Inspector, on the day of trap nearby the tea stall, at that time, the accused had not demanded any amount of illegal gratification from him, but the accused asked the prosecution witness No.3 as to whether the complainant had brought the money or not. Further, he also admitted that seizure panchnama was carried out at the place of incident. 10. Prosecution witness No.2Jagdishkumar Fatehsinh Damorshadow panch deposed that he was serving, at the relevant time, as clerk in the office of RTO and came to be requisitioned by the Anti Corruption Bureau. He deposed contradictory story in his statement as well as contemporaneous panchnama. He further deposed that while they were walking nearby tea stall, at that time, the accused demanded the money from prosecution witness No.3Bharat and not from the complainant. In the cross-examination regarding crucial conversation at the time of trap, shadow panch admitted that the accused asked the complainant whether the complainant had brought his wife and except this, nothing was asked. He deposed that the accused had demanded nothing, when he had gone to the police station for the first time. The accused had not demanded anything even from prosecution witness No.3Bharat Shah. Thus, predemand is not established or proved. 11. Prosecution witness No.3Bharat Keshavlal Shah was examined as he is alleged to have accompanied the complainant at the time of raising instant demand on 26.11.1999 as well as he was present at the time of actual trap on 27.11.1999. However, during the course of his testimony, he had, at all, not supported the case of the prosecution and turned hostile to the case of the prosecution. Though extensive cross-examination was undertaken by leaned APP, he had not at all supported the case of the prosecution. 12. However, during the course of his testimony, he had, at all, not supported the case of the prosecution and turned hostile to the case of the prosecution. Though extensive cross-examination was undertaken by leaned APP, he had not at all supported the case of the prosecution. 12. 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. 13. 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, visavis 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. 14. 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. Jayaraj (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. 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. 15. 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. 16. On overall analysis of the aforesaid evidence on record, as narrated above, the complainant has not supported the case of the prosecution and virtually, he himself has disowned the complaint so far as predemand and instant demand aspects are concerned. Similarly, the evidence of shadow panch is also not leading the case of the prosecution any further as regards the aspect of demand of illegal gratification and acceptance thereof. As per the deposition of shadow panch, the accused had never demanded any amount of illegal gratification from the complainant. So far as the evidence of prosecution witness No.3 is concerned, who accompanied the complainant at the time of raising first demand and acceptance of Rs.400/, in his deposition, he has not supported the case of the prosecution so far as the instant demand and acceptance of Rs.600/on the day of trap is concerned. He has not supported the case of the prosecution. On the contrary, he admitted in the cross-examination that the accused had never demanded any amount of illegal gratification. 17. In view of aforesaid nature of evidence, the prosecution miserably failed to prove the vital ingredients like demand, acceptance and recovery. He has not supported the case of the prosecution. On the contrary, he admitted in the cross-examination that the accused had never demanded any amount of illegal gratification. 17. In view of aforesaid nature of evidence, the prosecution miserably failed to prove the vital ingredients like demand, acceptance and recovery. In the result, the appeal succeeds and the same is allowed. The judgment and order dated 24.03.2004 passed by learned Special Judge (ACB), Court No.2, Ahmedabad in Special Case No.5 of 2000 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. 18. Record & Proceedings, if any, be sent back to the Trial Court concerned forthwith. Appeal allowed.