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2018 DIGILAW 585 (GUJ)

Rameshchandra Kalidas Sutaria v. State of Gujarat

2018-03-21

R.P.DHOLARIA

body2018
JUDGMENT : R.P. DHOLARIA, J. 1. The present appeal is preferred by the appellant-accused against the judgment and order dated 24.02.2005 passed by learned Special Judge (A.C.B.) Fast Track Court No. 3, Bharuch in Special (A.C.B.) No. 6 of 2004, whereby the accused came to be convicted for the offence under Section 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruptions Act and sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 10,000/- in default simple imprisonment for 6 months for the offence under Section 7 and further to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 2000/- in default simple imprisonment for 9 months for the offence under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act. Both sentences were ordered to be concurrently, whereas the original complainant – Iliyas Gulam Shaikh has preferred Criminal Revision Application, under section 397 read with section 401 of the Code of Criminal Procedure, seeking enhancement of sentence as such. 2. The short facts giving rise to the present case are that as he was not willing to pay such an amoutn of illegal gratification, he lodged a complaint before ACB on 17.01.2004 and a trap was arranged on 19.01.2004 and the accused was caught red handed and tainted currency notes was recovered from the accused and thereby the accused has committed offence punishable under Section 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. 3. In pursuance of the complainant, the Investigating Officer carried out the investigation and filed chargesheet against the accused person. The charges was framed against the accused. The accused pleaded not guilty to the charge and claimed to the tried. 4. In order to bring home the guilt, the prosecution has examined several witnesses and also produced several documentary evidences. 5. 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 argument on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 6. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 7. 6. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 7. By way of preferring the present appeal, the appellant-original accused has mainly contended that the 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. 8. Mr. K.B. Anandjiwala, learned senior counsel assisted by Mr. Vishal Anandjiwala, learned advocate for the appellant-accused has taken this Court through the entire records and proceedings as well as evidence of witnesses examined by the prosecution as well as defence witnesses which has examined by the defence. Learned senior counsel Mr. Anandjiwala, argued that the prosecution miserably failed to establish the aspect of demand and acceptance. The evidence of complainant is not inspiring any confidence as the complainant himself is tainted and he is involved in several offences not less than 15 for commission of offence of theft in various cities like Vadodara, Surat, Ahmedabad, Bharuch and Jambusar as well as he is involved in the offences like attempt to murder, abduction of leading doctor and other similar offences and even his father used to engage himself as narcotic drug peddler and the complainant is also known as Ganjawala. He is found to be habitual offender and his say is not at all getting any corroboration from the mouth of shadow panch and his sole testimony coupled with criminal history could not be believed. Even otherwise also learned senior counsel Mr. Anandjiwala pointed out that initially demand is alleged to have been raised on 16.01.2004 and on that day, in fact, the accused was on inspection tour at Bojadra, for carrying out the inspection of Gram Panchayat along with Circle Officer and he was there from 12:30 noon to 4:00 in the evening. The complainant has stated in his complaint as well as his deposed that on 16.01.2004 at about 12:30 p.m. he visited the office, which is not getting proved in view of aforesaid documentary as well as oral evidence came on record. The complainant has stated in his complaint as well as his deposed that on 16.01.2004 at about 12:30 p.m. he visited the office, which is not getting proved in view of aforesaid documentary as well as oral evidence came on record. Consequently therefore, the aspect of pre-demand remained to be proved due to alibi pleaded by the accused as well as the said fact is not only emerging out from the mouth of accused but his say is supported from the independent evidence of revenue officials who were examined at DW-1 and DW-2 and their oral say is also getting fully corroboration from the voluminous documentary evidence which is alleged to have been prepared at the time of inspection and are brought on record and came to be exhibited before the trial Court. Precisely coupled with the aforesaid peculiar facts and circumstances as well as oral and documentary evidence and taking into consideration, the tainted personality of accused according to submission of Mr. Anandjiwala, it would be very hazardous to confirm the conviction of accused solely based upon the solitary statement of complainant without any sought of corroboration from the shadow panch and any other evidence on record. 9. Mr. Anandjiwala, learned senior counsel further argued that there was strong motive on the part of the accused and in order to settle the score as the present appellant suspended his license for a period of 90 days and due to which he wrongfully roped the accused in crime in question, due to which also his testimony becomes doubtful, therefore, the impugned judgment and conviction requires to be quashed and set aside as such. 10. On the other hand, Mr. K.P. Raval, learned APP has supported the judgment rendered by learned Special Judge and he has argued that the deposition of complainant is totally consistent with the complaint, he lodged before the officials of Anti Corruption Bureau and pre-demand as well as instant demand is getting fully proved from his evidence even though, it is not getting any corroboration from the shadow panch. According to his submission, plea of alibi as well as other defence raised by the accused were found to be unbelievable and that had been rightly dealt with the learned trial Court and the finding arrived by the learned trial Court is in accordance with the evidence available on record and this court may not disturb the finding. According to his submission, plea of alibi as well as other defence raised by the accused were found to be unbelievable and that had been rightly dealt with the learned trial Court and the finding arrived by the learned trial Court is in accordance with the evidence available on record and this court may not disturb the finding. Mr. K.P. Raval, learned APP also pointed out that recovery which came to be effected from the pocket of the shirt and test of phenolphthalein powder was carried out by using sodium carbonate solution was found to be positive so far as person as well as cloth of accused is concerned. On that count also, the recovery aspect is also being established. Precisely according to his submission, the prosecution has successfully proved the vital ingredients like demand, acceptance and recovery and that has been rightly believed by the learned trial Court and no interference is required from this Court to set aside the judgment of conviction. 11. This court has heard Mr. K.B. Anandjiwala, learned senior counsel assisted by Mr. Vishal Anandjiwala, learned advocate for the appellant-accused and Mr. K.P. Raval, learned Additional Public Prosecutor for the State. 12. 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 complainant Iliyas Gulambhai Shaikh was licensed to deal with white kerosene by the Mamlatdar, Jambusar whereas the accused was serving as Mamlatdar, Jambusar. Upon receipt of complaint at the behest of District Supply Officer (DSO), an inspection was carried out by the Circle Inspector/Dy. Mamlatdar and submitted a report to the Mamlatdar. At that time, the accused suspended the license of accused for a period of 90 days, due to which the complainant met the accused. At that time, the accused demanded of Rs. 10,000/- for cancelling the suspension order. As he was not willing to pay the said amount of illegal gratification, he lodged the complaint before the Anti Corruption Bureau. On the day of trap, on 19.01.2004, the accused was caught red handed along with tainted currency notes of Rs. 10,000/- and thereby the accused has committed the offence punishable under sections 7, 13(2) read with section 13(1)(d) of the Act. 13. On the day of trap, on 19.01.2004, the accused was caught red handed along with tainted currency notes of Rs. 10,000/- and thereby the accused has committed the offence punishable under sections 7, 13(2) read with section 13(1)(d) of the Act. 13. 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 vital ingredients i.e. demand, acceptance and recovery of illegal gratification or not? 14. At this state, 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. 15. 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. 16. In a recent enunciation by the Hon'ble Apex Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj 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 Section 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 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 Section 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 Section 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. 17. PW-1, Iliyas Gulambhai Shaikh - complainant was dealing in white kerosene. His license was suspended by the Mamlatdar, Jambusar on 15.01.2004 for a period of 90 days and due to which on 16.01.2004, the complainant met the accused for cancelling the order of suspension. At that time, the accused demanded Rs. 10,000/- as amount of illegal gratification for getting cancelled the order of suspension and he agreed to pay the said amount on 19.01.2004. Thereafter, as he was not willing to pay the said amount of illegal gratification, he lodged the complaint on 17.01.2004 before the Police Inspector, Nareshchandra Bhikhalal Koralwala, Office of Anti Corruption Bureau, Bharuch. In pursuance of his complaint, a trap was carried out. On the day of trap, he visited the office of accused along with shadow panch and both of them took seat in front of the accused and thereafter, the complainant asked to continue his license, at that time, the accused told him as to whether he had brought money as agreed previously and thereafter, he handed over the tainted currency notes to the accused which he accepted and placed into his pocket and he raised the signal due to which other members of raiding party and another panch arrived there in the office of Mamlatdar. The procedure of search and seizure was carried out and test of sodium carbonate solution was carried out over the pocket as well as on the right hand of the accused which was found to be positive. The procedure of search and seizure was carried out and test of sodium carbonate solution was carried out over the pocket as well as on the right hand of the accused which was found to be positive. So far as the complainant is concerned, in his cross-examination, he admitted that his father is known as drug peddler and he is involved in several offences under the Narcotic Drugs. He is also known as Ganjawala in the entire area. He also admitted that though Mr. Kothiwala, Dy. Mamlatdar, reported in his favour but the accused suspended his license for a period of 90 days. He also admitted that he had been booked in several offences in the cities of Vadodara, Surat, Jambusar and Bharuch. He also admitted that he was facing several offences like attempt to murder, robbery, abduction, dacoit, kidnapping as well as commission of theft. He did not admit that the accused was not present on 16.1.2004 during the noon time. He had trusted upon the money into the pocket of accused for roping him in crime for taking revenge against the accused. He had also admitted that whenever the accused was caught in bribery case the entire area was in hue and cry. He had admitted that panchnama came to be dictated by Police Inspector, Koralwala and was not dictated by the panchas. 18. PW-2 Pankaj Vrajlal Kansara - Shadow panch deposed that he was serving in the office of District Development Officer. He was made to understand as to how the trap is to be laid. On the day of trap, when he reached the office of accused at Jambusar, at that time, the complainant alone visited the office of accused and he was directed to go into his chamber whenever the accused would give ring to him and he received the ring for about 5 minutes later on. At that time, he visited the office of accused along with panch No. 2 and other police officers and thereafter, Mr. Koralwala asked to take money from the pocket of accused. The test of sodium carbonate solution came to be found to be positive. So far as the accused is concerned, in his cross-examination, he admitted that Police Inspector – Marathe was dictating the panchnama. 19. PW-3 Jayantilal Maganlal Hansoti – Panch-2, deposed that the search and seizure was carried out in his presence. 20. The test of sodium carbonate solution came to be found to be positive. So far as the accused is concerned, in his cross-examination, he admitted that Police Inspector – Marathe was dictating the panchnama. 19. PW-3 Jayantilal Maganlal Hansoti – Panch-2, deposed that the search and seizure was carried out in his presence. 20. PW-4 Bharatbhai Baldevdas Patel, Under Secretary, Revenue Department, State of Gujarat, is examined to prove sanction to prosecute against the accused. 21. PW-5 Nareshchandra Bhikhalal Koralwala, deposed that on 17.01.2004, he was serving as Police Inspector, Anti Corruption Bureau, Bharuch and the complainant lodged the complaint before him. Thereafter, he arranged for the trap and actually he carried out entire trap and thereafter he handed over the investigation to Mr. R.D. Marathe. 22. PW-6 Mr. R.D. Marathe, Police Inspector, Bharuch deposed that Mr. Koralwala arranged for trap and the trap was found to be successful and thereafter he took over the investigation and recorded the statement of panchas. In his cross-examination, he has admitted that he did not inquire as regard to the involvement of complainant in several offences. 23. PW-7 Ranjitsinh Desaibhai Vala, Police Inspector, Anti Corruption Bureau, Bharuch, deposed that after perusing the papers of investigation, he filed the charge-sheet. In his cross-examination, he admitted that he did not inquire regarding the criminal history of complainant. He also admitted that he did not investigate as to whether on 16.01.2004, the accused was present in his office or not? The defence also examined two witnesses and also produced several documentary evidence in relevance of his cross-examination. 24. DW-1 Bhavsinh Nathubhai Vaghela - was serving as Circle Officer in the office of Mamlatdar, Jambusar and deposed that on 16.01.2004, he accompanied the accused for the purpose of carrying out the inspection at Bojadra Gram Panchayat and they proceeded to Bojadra at 11:45 a.m. stayed to 4:00 p.m. and they prepared papers of investigation which came to be produced in his deposition at Exh.73 which is running into 50 pages. 25. DW-2 Pruthvisinh Sursinh deposed that he was serving at the relevant time as Talati-cum-Mantri at village Bojadra. 25. DW-2 Pruthvisinh Sursinh deposed that he was serving at the relevant time as Talati-cum-Mantri at village Bojadra. On 16.01.2004, the accused as well as Circle Officer visited his office and they reached his office at about 12:50 p.m. and they stayed upto 4:00 o'clock in the evening and they verified the record of the Gram Panchayat and prepared the report and they also signed certain documents which came to be produced at Exh.75. In his cross-examination, he admitted that regarding the visit dated 16.01.2004, he was intimated by the office of Mamlatadr previously. 26. Over and above aforesaid oral evidences, record and proceedings indicates voluminous documentary evidence which came to be admitted during the course of trial from Exh.13 to 39, disclosing involvement of complainant in various offences and its FIR as well as the memorandum for involving the present appellant-accused wrongfully. Several representations were made by different institutions and different NGO's which was submitted before the Collectorate. 27. On overall evaluation of aforesaid evidence on record, indisputably, the license of complainant came to be suspended for a period of Rs. 90 days by the present appellant- accused who was serving, at the relevant time, as Mamlatdar and as Licensing Authority, due to which, the complainant approached the accused for getting restored his license. As per the allegation of complainant, for getting cancelled the order of suspension of license, the appellant-accused demanded an amount of illegal gratification for Rs. 10,000/- on 16.01.2004. That fact he has not only stated in the complaint but also deposed before Court during the course of trial. However, the say of the complainant is not getting any corroboration from the mouth of shadow panch. The shadow panch has clearly and categorically deposed that at the time of trap, he was standing outside the office of the accused. He has neither heard any conversation nor he viewed anything. In view of the aforesaid nature of evidence on record, the sole testimony of complainant remained to be on record. 28. As regard to the sole testimony of complainant, learned senior counsel Mr. Anandjiwala took this Court to several documentary evidence as well as plea of alibi and the deposition of two independent witnesses of revenue officials who were came to be examined as defence witnesses. 28. As regard to the sole testimony of complainant, learned senior counsel Mr. Anandjiwala took this Court to several documentary evidence as well as plea of alibi and the deposition of two independent witnesses of revenue officials who were came to be examined as defence witnesses. On overall evaluation of documentary evidence as well as oral evidence which came to be produced during the course of trial, clearly indicates that the plea of alibi, took by the accused is fully getting support from the independent evidence of revenue officials who were serving at the relevant time as Circle Inspector and Talati-cum-Mantri of village Bojadra and not only that the oral evidence on record i.e. the documentary evidence, in the nature of details of inspection carried out on that day which also was brought on record clearly indicates that voluminous papers was not only prepared but even inspected by the accused in between 12:15 p.m. to 16:00 p.m. on 16.01.2004. Consequently therefore, the say of the complainant that he visited at 12:30 p.m. on 16.01.2004 is not getting any sort of corroboration from evidence on record and coupled with his criminal history and he is found to be habitual offender. With all this factual scenario, it would be very hazardous to convict the accused-appellant solely based upon the sole testimony of complainant. 29. Though the evidence on record is getting corroboration so far as the search, seizure and recovery aspect is concerned, but as laid down in several decision of Hon’ble Supreme Court commencing from B. Jayaraj vs. State of A.P. AIR 2014 SC (Supp.) 1837, if the prosecution failed to establish pre-demand, instant demand and acceptance and in pursuance of any such demand in that case merely recovery becomes meaningless. For the reasons recorded above, the learned trial Court while appreciating the evidence on record, wrongly based finding solely relying upon the sole testimony of complainant, whose testimony does not inspire confidence of this Court as he is habitual offender and he is not only involved in heinous crime but also he had involved himself in variety of crime in question. It is clearly appears that learned trial Court has not appreciated the evidence on record in its true perspective and based its finding upon surmises and conjectures which have no value in the eye of law. 30. In the result, the appeal succeeds and the same is allowed. It is clearly appears that learned trial Court has not appreciated the evidence on record in its true perspective and based its finding upon surmises and conjectures which have no value in the eye of law. 30. In the result, the appeal succeeds and the same is allowed. The impugned judgment and order dated 24.02.2005 passed by learned Special Judge (A.C.B.) Fast Track Court No. 3, Bharuch in Special (A.C.B.) No. 6 of 2004 is quashed and set aside. The appellant-accused is acquitted of the charges leveled 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. Since, the appeal preferred by accused is allowed, revision application preferred by original complainant seeking enhancing of punishment, does not survive and stand dismissed. No order as to costs. Appeal allowed.