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Gujarat High Court · body

2019 DIGILAW 796 (GUJ)

State of Gujarat v. Doliben Govindbhai

2019-09-06

A.P.THAKER

body2019
JUDGMENT : 1. Being aggrieved and dissatisfied with the order of acquittal dated 19.10.2005 passed by learned Special Judge, Fast Track Court No.4, Jamnagar, in Special Case No.3 of 1995, the State has preferred this appeal under Section 378 (1) (3) of the Code of Criminal Procedure, 1973. 2. The brief facts of the prosecution case are that the accused were working as Junior Clerk in the office of Sub- Registrar at Jamnagar. That the raiding officer, Shri N.N.Nagar, received private information that some of the employees working in the Marriage Registration Office, Lal Bungalow, Jamnagar, were demanding more money than the fees for getting registration of marriage. Therefore, the police Inspector, ACB, arranged a trap and prepared necessary documents and also got ready one Mukesh Keshavlal Parmar to remain as Punter. Police Inspector, Shri Nagar has summoned two Government employees to remain as panch witnesses. After following necessary procedure, he had handed over currency notes of Rs.150/-, one note of the denomination of Rs.100/- and another of Rs.50/-, which were to be given to the accused in case of demand. Numbers of the notes were mentioned in the preliminary panchnama. That, after following necessary procedure, he kept said notes in the left side pocket of shirt of the punter and he was instructed not to touch the same till the demand is made and if the accused accepts the amount, a signal was to be given to the ACB staff. Thereafter, after drawing preliminary panchnama, signatures of the panchas were taken. Upon reaching the office of the accused, complainant and panch witness no.1 went inside the office of the accused and after they gave signal, panch witness no.2 along with other members of the raiding party reached there. During search of the accused, currency notes were found from one file, which was lying on the table of accused no.1 and numbers of the same tallied with preliminary panchnama. Upon testing under ultraviolet lamp, marks of anthrecene powder were found on the said notes. Therefore, the same were seized and panchnama was carried out and signatures of the panchas were taken. Thereafter, the offence was registered at Jamnagar A.C.B. Police Station. According to the prosecution, after completion of the investigation, the chargesheet came to be filed against the accused. Upon testing under ultraviolet lamp, marks of anthrecene powder were found on the said notes. Therefore, the same were seized and panchnama was carried out and signatures of the panchas were taken. Thereafter, the offence was registered at Jamnagar A.C.B. Police Station. According to the prosecution, after completion of the investigation, the chargesheet came to be filed against the accused. 2.2 On filing of the charge-sheet, the charge was framed against the accused by the learned Judge at the relevant time and the accused pleaded not guilty and the evidence of the prosecution was recorded. Thereafter, after recording of the evidence of the prosecution, statement under Section 313 of the Code of Criminal Procedure was recorded wherein the accused have denied of having committed any such offence. After perusing and considering the evidence on record and after hearing both the sides, the trial Court has, ultimately, acquitted the accused – respondents from the charges leveled against them. 3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred present appeal. 4. Heard Mr.Dharmesh Devnani, learned Additional Public Prosecutor for the appellant-State at length and Mr.D.P.Kinariwala, learned advocate for the respondents– accused. Perused the evidence placed on record as well as the impugned judgment of the trial Court. 5. Mr.Dharmesh Devnani, learned APP for the State has vehemently submitted that as the ACB inspector has got information regarding demand and acceptance of bribe by the employees of the marriage registration office, a decoy trap was arranged with the help of punter. Punter and panch witness no.1 went to the office of accused no.1. At that time, accused no.1 demanded bribe of Rs.150/- and the other accused was also present there. Thereafter panchnama was prepared and an amount was recovered from the file and this fact has been proved from the evidence of punter as well as the panch witness and that of investigating officer. While referring to the evidence of the witnesses and the panchnama at Exh.12, he has vehemently submitted that learned trial Court has not properly appreciated the evidence of these witnesses and complainant. Mukesh Keshavlal Parmar has specifically stated the facts of the incident and as per his deposition, demand, acceptance and recovery was proved. While referring to the evidence of the witnesses and the panchnama at Exh.12, he has vehemently submitted that learned trial Court has not properly appreciated the evidence of these witnesses and complainant. Mukesh Keshavlal Parmar has specifically stated the facts of the incident and as per his deposition, demand, acceptance and recovery was proved. He has also contended that learned trial Court has not considered the facts that the currency notes stained with anthrecene powder have been recovered from the possession of the accused at the time of raid, and recovery was also proved from the deposition of the punter and the panch witness and both the witnesses are consistent and there is no contradiction in the evidence. He has also contended that the accused had placed the amount below the paper-weight and it shows the acceptance on the part of the accused and the same has been recovered thereafter. According to him, learned trial Court has not properly appreciated the evidence on record and has materially erred in acquitting the accused from the charges levelled against them. 6. Per contra, learned advocate Mr.Kinariwala appearing for the accused, while referring to the judgment and the evidence on record, has submitted that learned trial Court has properly appreciated the evidence on record and has not committed any serious error of facts and law. He has also contended that as per the evidence of the punter, at the time of conversation of the accused, panch no.1 was not present. While referring to the evidence of panch witness-Sumanben Vyas, he has submitted that she has only signed the panchnama and she has not given any evidence as to demand of bribe by the accused. He has also contended that accused no.2 has been wrongly implicated in this case. While referring to the evidence of the punter as well as the investigating officer, he has submitted that there is contradiction regarding making signal and as to acceptance of bribe in a way, as the punter has stated that he has made signal by moving his hand on the head whereas as per the evidence of investigating officer, signal was given by coughing. He has also contended that in this case, entire process from the beginning till filing of chargesheet has been carried out by the same officer and this also goes to the root of the case of the prosecution. He has also contended that in this case, entire process from the beginning till filing of chargesheet has been carried out by the same officer and this also goes to the root of the case of the prosecution. While relying on the decision reported in the case Jaswantsinh Udesinh Parmar Vs. State of Gujarat reported 2019 (1) GLR 255, he has submitted that the present appeal is devoid of merits and the same may be dismissed. 7. It is well settled by the Apex Court in the case of A. Subair Vs. State of Kerala, reported in (2009) 6 SCC 587 , while dwelling on the purport of the statutory prescription of Sections 7 and Section 13(1)(d) of the Act ruled that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and that the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredient necessary to be established to record a conviction. 8. In the case of State of Kerala and another Vs. C. P. Rao, reported in (2011) 6 SCC 450 the 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. 9. In the recent enunciation by the Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in the case of B. Jayaraj Vs. State of A.P, reported in AIR 2014 SC (Suppl.) 1837 in unequivocal terms that mere possession and recovery of the currency notes from an accused without proof of demand would not establish the offence under Section 7 as well as Section 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. 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 in respect of the offence under Section 7 and not the offence 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. 10. In the said judgment, decision of the Apex Court in the case of State of Kerala and Another Vs. C.P.Rao reported in (2011) 6 SCC 450 was referred to, wherein the Apex Court has reiterated its earlier dictum vis-a-vis the same offences and 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. It is also observed therein that in 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 has been held to be an indispesible essentiality and of permeating mandate for an offence under section 7 and 13 of the Act. It was also observed therein that qua Section 20 of the Act, which permits presumption as envisaged thereunder, 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 was also observed therein that qua Section 20 of the Act, which permits presumption as envisaged thereunder, 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 was held that proof of acceptance of illegal gratification could follow only if there was proof of demand and in absence of proof of demand, such legal presumption under Section 20 of the Act would not arise. 11. In view of the aforesaid legal position, this Court has perused the impugned judgment and order as well as the deposition of the witnesses in light of the rival submissions made by both sides. On overall appreciation of evidence on record, from the evidence of Natvarlal Narshibhai Nagar, Exh.18, it transpires that he has received information that the staff of marriage registration office are used to collect the amount of illegal gratification for registration of marriage. Consequently, he arranged for the trap after availing service of the punter as well as other officers and the panchas. It also reveals from record that after conclusion of the trap and investigation, Shri Nagar, lodged the complaint. Thereafter, he himself has carried out investigation. It also reveals from the evidence that he has got the information before one day of the raid and he has not made any entry thereof. According to him, he himself went to select the panchas and the punter. According to him, typing was done on stamp paper, but he did not recollect where it was typed and officers read it before the punter and panchas were called. According to him, he has given Rs.150/- to the punter but it has not happened that he had given other Rs.6 to 7/-. He has also admitted in his evidence that punter has not stated before him that Dollyben has asked for Rs.150/-. He has also stated that when he reached, after the signal from the punter in the office of the accused, he had a talk with the punter and the punter has told him that the amount has been accepted. He has stated that he has not asked as to whether the money was paid hand to hand to the accused. He has also stated that when he reached, after the signal from the punter in the office of the accused, he had a talk with the punter and the punter has told him that the amount has been accepted. He has stated that he has not asked as to whether the money was paid hand to hand to the accused. He has also stated that when he entered the room he came to know that amount given by the punter is lying beneath paper-weight and the same was put up by the punter. According to him, the paper-weight was not on the file but it was lying adjacent to the file. He has also stated that there were other files on the said file, beneath which notes were found. He has also stated that he has not searched the purse of Dollyben. 12. Against the evidence of this witness, the evidence of punter, Mukesh Keshavlal Parmar, which is at Exh.10, reveals that he has stated in his chief-examination that Dollyben has asked for Rs.150/- and when he tendered the amount, Dollyben has told him to put up on table and, therefore, he has put up the same on table, which was kept beneath the paperweight and Dollyben has told him to put the currency notes below the paper-weight. He also stated that as he had given documents earlier, after putting money on the table, he went out of the room. Now, this factor, which he has stated in his chief-examination was not narrated before the investigating officer, which has been proved from the evidence of the investigating officer. On perusal of the evidence, it reveals that he has only stated regarding putting the amount at the instance of Dollyben but he has not narrated regarding other accused. He has also stated that marriage documents and money were handed over to him by Inspector, Shri Nagar, and he had read those documents, but he did not know as to who has typed it and whether it is typed and according to him, he and Sumanben had signed the said documents and Sumanben has signed as Kantaben, whereas he has signed as M.N.Rathod. According to him, he has signed in false name at the instance of Shri Nagar. According to him, he has signed in false name at the instance of Shri Nagar. He has also stated in his cross-examination that he alone had went in the room but he has also stated that for reaching the room of Dollyben steps have to be climbed and there were five to seven steps. According to him, other persons were standing on the ground. He has admitted that from the office room, persons who are standing on the ground cannot be seen. He has also stated that after putting currency notes on the table, he immediately rushed outside and for giving signal, he went to the steps. 13. On perusal of the evidence of panch witness, Jitendra Navalshankar Dave, Exh.11, it is found that he has not supported the basic version of the prosecution case and, therefore, permission was given to ask him suggestive questions under Section 154 of the Evidence Act. However, in such examination also, he has not supported the version of the prosecution regarding recovery of Rs.150/- as well as carrying out of the experiment of ultraviolet lamp on the hands of the accused, on the paper-weight and the table. During his crossexamination, he has stated that in the office of the registrar, he has signed only at two places, whereas all other signatures have been taken on the documents in the office of ACB. According to him, everything was being dictated by Shri Nagar and it was being written by his writer. Rather, he has admitted that in his presence there was no exchange of any amount. 14. On perusal of the evidence of Sumanben Chandrakant Vyas, Exh.14, it is found that she has stated that she has signed as Kantaben at the instance of the officer of the ACB. According to her, during raid she has not entered in the office of the accused but after the signal she went along with Shri Nagar in the office. According to her version, experiment of anthrecene powder was carried out in her presence, wherein marks were found on the right hand of Dollyben, muddamal currency notes, paper-weight and the file. She has stated that no stains of anthrecene powder were found on the hands of the accused no.2. She has also stated that police has not recorded her statement. According to her version, experiment of anthrecene powder was carried out in her presence, wherein marks were found on the right hand of Dollyben, muddamal currency notes, paper-weight and the file. She has stated that no stains of anthrecene powder were found on the hands of the accused no.2. She has also stated that police has not recorded her statement. In her cross-examination, she has stated that she remained 15 to 20 minutes in the office of the accused and, at that time, hands of two persons were seen in the ultraviolet lamp and except those nobody’s hands were seen in the lamp. She has stated that she has not seen that currency notes were placed on file and, on currency notes, there was paper-weight. According to her version, she has seen the currency notes below the file. 15. From the entire evidence on record, it clearly transpires that the basic ingredients of demand is not proved by the prosecution, even the acceptance on the part of the accused no.1 is also missing. It reveals from the evidence that there is no proof of demand and acceptance thereof. It also reveals from the evidence that recovery is also not proved from the person of the accused but it is from the table. All these facts reveal that the prosecution has miserably failed to prove the charges levelled against the accused beyond reasonable doubt. 16. On perusal of the impugned judgment, it clearly transpires that learned Special Judge has appreciated the entire evidence in its proper perspective and there is no infirmity in the impugned judgment and the same is sustainable in the eyes of law. 17. In view of the foregoing reasons, present appeal is devoid of merits and is liable to be dismissed. Accordingly, this appeal is dismissed. The impugned judgment and order dated 19.10.2005 passed by learned Special Judge, Fast Track Court No.4, Jamnagar, in Special Case No.3 of 1995, acquitting the respondents-accused, is hereby confirmed. Bail bond, if any, stands cancelled. Record and Proceedings be sent back to the trial Court concerned forthwith.