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Gujarat High Court · body

2018 DIGILAW 756 (GUJ)

JATINBHAI VIDYUTBHAI VORA v. STATE OF GUJARAT

2018-06-15

R.P.DHOLARIA

body2018
JUDGMENT : 1. The present Criminal Appeal is preferred by the appellant-accused against the judgment and order dated 31.03.2005 delivered by the learned Additional Sessions Judge, 5th Fast Track Court, Surat, in Special A.C.B. Case No.4 of 1992, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 1 year with fine of Rs.500/and, in default, to undergo simple imprisonment for one month under Section 7 of the Prevention of Corruption Act ('the Act' for short). The appellant has also been convicted and sentenced to undergo rigorous imprisonment for two years with fine of Rs.1,000/, and in default, to undergo simple imprisonment for one month under Section and 13(2) read with Section 13(1)(d) of the Act. Both the sentences were ordered to run concurrently. 2. The short facts giving rise to the present case are that complainant-Sureshchandra received notice of stay of construction carried out by him and his brother Pravinchandra regarding illegal construction. He wanted to get the said stay vacated, and therefore, he approached the present appellant-accused. At that time, the accused was working as an Assistant Engineer in the Town Development Department, Surat Municipal Corporation, Surat, at the relevant time, the accused initially demanded Rs.1200/- as the amount of illegal gratification. As the complainant was not willing to pay the amount of illegal gratification, he lodged a complaint before the ACB. In pursuance of the complaint, a trap was laid and the accused was caught red handed along with tainted currency notes of Rs.1200/and thereby committed offences punishable under Sections 7, and 13(2) read with Section 13(1)(d) of the Act. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge sheet against the 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 several 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 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. 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. N.D.Nanavati, learned Senior Counsel appearing with Mr.B.K.Oza, learned counsel for the appellant has taken this Court through the entire records and proceedings and read over the evidence of material witnesses. Mr. Nanavati pointed out that since the complainant himself has disowned his complaint and even he has not admitted the contents of the complaint except signing over it, therefore, the entire complaint remains to be proved. He further pointed out that the evidence of shadow panch is also not at all taking the case of the prosecution any further as the said conversation alleged to have been deposed by the shadow panch is based and relatable to the content of the complaint at Exh.63. Unless maker of the complaint states that the said fact as regards to the demand of illegal gratification could not be believed. Therefore, the prosecution has miserably failed to establish the demand and acceptance as the complainant has disowned his complaint and the evidence of the shadow panch as well as the witness of other police officials are in the nature of corroborative evidence and the preliminary evidence and hence there is no possibility to link the accused with the crime in question and the learned trial Court has committed manifest error in passing the conviction order. Mr. Nanavati further submitted that in view of well known decisions in the case of Mukhtiar Singh vs State of Punjab as reported in (2017) 8 SCC 136 , in the case of MR Puroshottam vs. State of Karnataka as reported in (2015) 3 SCC 247 , and in the case of B. Jayaraj Vs. State of Andra Pradesh as reported in AIR 2014 SC (Supp) 1837. State of Andra Pradesh as reported in AIR 2014 SC (Supp) 1837. Therefore, the prosecution has miserably failed to establish the three vital ingredients i.e. demand, acceptance and recovery, therefore, the judgment of conviction is required to be set aside. 7. On the other hand, Mr. K.P. Raval, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellant – original accused. He has submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. He has further submitted that finding recorded by learned trial Court is based upon concrete and clinching evidence, and therefore, punishment inflicted upon the accused does not call for any interference. He has further submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and does not call for any interference. 8. This Court has heard Mr.Nanavati, learned Senior Counsel for the appellant-accused and Mr. K.P.Raval, learned APP for the respondent-State. 9. This court has minutely gone through the impugned judgment rendered by learned Trial Court as well as the evidence available on record in the nature of paper book. As per the prosecution version, the complainant-Sureshchandra received notice of stay of construction carried out by him and his brother Pravinchandra regarding illegal construction. He wanted to get the said stay vacated, and therefore, he approached the present appellant-accused. At that time, the accused was working as an Assistant Engineer in the Town Development Department, Surat Municipal Corporation, at the relevant time, the accused initially demanded Rs.1200/as the amount of illegal gratification. As the complainant was not willing to pay the amount of illegal gratification, he lodged a complaint before the ACB. In pursuance of the complaint, a trap was laid and the accused was caught red handed along with tainted currency notes of Rs.1200/- and thereby committed offences punishable under Sections 7, and 13(2) read with Section 13(1) (d) of the Act. 10. P.W.1Sureshchandra Chimanlal Jariwala-complainant had not supported the case of the prosecution and virtually he has disowned his complaint and also accepted that he signed over the complaint but he had no knowledge about the contents mentioned in the complaint, therefore, he was declared hostile. 10. P.W.1Sureshchandra Chimanlal Jariwala-complainant had not supported the case of the prosecution and virtually he has disowned his complaint and also accepted that he signed over the complaint but he had no knowledge about the contents mentioned in the complaint, therefore, he was declared hostile. In the detailed crossexamination undertaken by the learned APP he did not support the case of the prosecution. 11. P.W.2Sudhjibhai Tulshibhai Chaudhary-deposed that at the relevant time, he was serving as a Police Official and came to be requisitioned by the Anti Corruption Bureau as a shadow panch. He further deposed that he was requested to act as a shadow panch and remained present alongwith the complainant during the course of trap. He further deposed at the time of trap while they reached at the office of the accused, at that time, the accused inquired about the person accompanied along with the complainant. Thereafter, accused asked the complainant as to whether he had brought as per the talk, the complainant replied that procedure should be undertaken first and again the accused asked the complainant whether he had brought things to do. The complainant replied in affirmative, and thereafter the complainant placed money into the drawer of the table, and thereafter he gave prearranged signal, due to which other members of raiding party arrived there and detailed search and seizure was carried out. 12. P.W.3Chandrajit Jawaharsing-deposed that at the relevant time, he was serving as Police sub Inspector. He further deposed that he was a member of the raiding party. 13. P.W.4Dipakkumar Bhikhubhai Naiyak-deposed that at the relevant time, he was serving as officer with the Surat Municipal Corporation. He further deposed that he accorded sanction to prosecute the trap. 14. P.W.5Moiuddin Nizamudin Saiyed-deposed that at the relevant time, he was serving as a peon in the Municipal Corporation, Surat. He further deposed that on 30.07.1991, he was present there, some persons approached for writing the application. As he did not support the case of the prosecution, he was declared hostile. In the detailed crossexamination carried out, he did not at all support the case of the prosecution. 15. P.W.6Rameshchandra Chhaganlal Rana-deposed that at the relevant time, he was serving as a Police Inspector, ACB, Surat. He further deposed that he recorded the complaint and thereafter laid the trap and carried out the investigation and filed the charghesheet after conclusion of the investigation. 16. 15. P.W.6Rameshchandra Chhaganlal Rana-deposed that at the relevant time, he was serving as a Police Inspector, ACB, Surat. He further deposed that he recorded the complaint and thereafter laid the trap and carried out the investigation and filed the charghesheet after conclusion of the investigation. 16. 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? 17. On over all evaluation of the aforesaid evidence on record. The complainant himself has disowned his complaint and he was turned hostile and that he had not at all supported the case of the prosecution. The entire foundation of the case of the prosecution against the accused was based upon the complaint at Exh.63. So far as raising pre-demand on 6.7.1991, 8.07.1991, 24.07.1991 and 29.07.1991 remains to be proved and that factum could have been proved in the oral evidence of complaint. Since the complainant had not at all supported his complaint, therefore the instant demand on the date of trap on 30.07.1991 was not proved. Since the complainant had not supported the case of the prosecution, the only decisive evidence is of shadow panch. Even if the evidence of shadow panch may be accepted, then also he had merely deposed that upon reaching at the office of the accused, the accused asked as to whether he had brought as per the earlier talk, and subsequently he also asked about the things, which is not clearly spelling out demand and acceptance of illegal gratification unless the content of complaint is being proved whatever the conversation alleged to have been heard. Even if the evidence of shadow panch may be believed, then also the prosecution case is not taking any further so far as the establishment of demand and acceptance as laid down in the case of Mukhtiar Singh vs State of Punjab as reported in (2017) 8 SCC 136 are concerned. 18. This Court has gone through the evidence on record. This case is squarely covered by the decision in the case of MR Puroshottam vs. State of Karnataka as reported in (2015) 3 SCC 247 . The evidence of shadow panch does not inspire the confidence of this Court. The evidence of shadow panch is contrary to contemporaneous evidence on record. This Court has gone through the evidence on record. This case is squarely covered by the decision in the case of MR Puroshottam vs. State of Karnataka as reported in (2015) 3 SCC 247 . The evidence of shadow panch does not inspire the confidence of this Court. The evidence of shadow panch is contrary to contemporaneous evidence on record. In that view of the matter, the evidence is no more helpful to the case of the prosecution and his evidence has become untrustworthy of the credit. So far as the evidence of P.W5 Mr. Saiyed is concerned, though he was cited as independent witness of the prosecution, he did not at all supported the case of the prosecution and he has not involved the accused in the crime in question. Even otherwise, so far as the recovery of tainted currency notes is concerned, it came to be effected from the drawer of the table and not from the person of the accused. On that count also, if the recovery may be believed to be true, then also it would become very hazardous to convict the accused, in absence of clear and cogent evidence. 19. 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. 20. 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. 21. 21. 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 Vs. State of Andra Pradesh as reported in AIR 2014 SC (Supp) 1837 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. 22. The ratio laid down in the case of Mukhtiar Singh (supra), more particularly para24 as extracted below clearly applies to the facts and circumstances of the case as well as covered by other celebrated decisions of Hon'ble Apex Court in the case of B. Jayaraj (supra) and Selvaraj vs. State of Karnataka as reported in (2015) 10 SCC 230 and in the case of MR Puroshottam vs. State of Karnataka as reported in (2015) 3 SCC 247 . “24. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3000 which had been paid or of Rs.2000 as made on the day of trap operation is wholly inadequate to comply with the prerequisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3000 at the first instance is alleged to have been paid i.e. Santosh Singh Lambardar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3000 as well as the demand of Rs.2000 has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of the complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act. 23. In view of the aforesaid nature of evidence, when demand and acceptance are not proved which are vital ingredients so far as establishing the guilt of accepting illegal gratification is concerned and in consequence whereof, recovery of tainted currency notes which was found in the trap from the possession of the appellant-accused becomes meaningless. In this view of the matter, finding recorded by learned trial court is not in consonance with the evidence available on record. Therefore, as stated above, in absence of any specific and clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable. 24. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. 25. 24. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. 25. Moreover, one disturbing feature comes out from the record and proceedings of the case as regards to the fact that the Police Inspector, Rameshchandra Chhaganlal Rana has assumed all roles right from the stage of recording complaint, arranging trap as well as members of raiding party, carrying out investigation till filing of charge sheet. This course of action go against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of prosecution becomes suspicious on this count only. In the present facts of the case, the status of investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decision of the Hon’ble Apex Court in the case of Bhagwan Singh vs. State of Rajasthan reported in AIR (1976) SC 985, followed by this Court in the case of Kanubhai Kantibhai Patel vs. State of Gujarat reported in 1998(1) GLH 924 . Therefore, in this case, the prosecution case also suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly the whole proceedings based on such investigation deserves to be quashed and set aside on this count only. 26. In the result, the present Appeal preferred by the accused is allowed. The judgment and order dated 31.03.2005 delivered by the learned Additional Sessions Judge, 5th Fast Track Court, Surat, in Special A.C.B. Case No.4 of 1992, is quashed and set aside. The appellant – accused is acquitted of the charges levelled against him. Records and proceedings, if any, be sent back to the trial Court concerned forthwith. Fine, if any, paid be refunded forthwith.