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2020 DIGILAW 226 (GUJ)

State of Gujarat v. Vithalbhai Kacharbhai Patel

2020-02-03

A.C.RAO, BELA M.TRIVEDI

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JUDGMENT : BELA M. TRIVEDI, J. 1. The present appeal has been filed by the appellant – State of Gujarat under Section 378 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) against the judgment and order dated 30.05.1994, passed by the Special Judge, Bhavnagar, (hereinafter referred to as the Special Court) in the Special Case No.11 of 1990, whereby the Special Court has acquitted all the respondents – original accused from the charges leveled against them for the offences punishable under Sections 409, 420, 465, 467, 471, 477A, 114/34 of the Indian Penal Code (for short “the IPC”) and Section 5(2) of the Prevention of Corruption Act. 2. At the outset, it may be stated that the respondent No.-2 – Shaktisinh Khanubha, respondent No.3 – Ramanbhai Sanabhai and respondent No.4 – Dasharathbhai Baldevbhai Pandya, having expired, pending the appeal, the appeal has stood abated against them, as per the orders passed by the Court. 3. The respondents – accused were charge-sheeted by the Investigating Officer on the basis of the complaint filed by Mr. J.M. Vyas, Police Inspector, ACB, Bhavnagar, on 05.08.1982 for the alleged offences. In the said complaint, it was alleged inter alia, that during the period from May, 1976 to March, 1978, land levelling of the agriculturists of the village Umrala was to be done, for which the accused Nos.1 to 5, who were Government servants, serving in Soil Conservation Department, were given Rs.2,99,235/75 for disbursing the same to 106 agriculturists. It was further alleged that the said accused in collusion with each other and in furtherance of their common object, paid less amount to the agriculturists and prepared false government records with the intention to use it as genuine. As per the case of the prosecution, instead of disbursing Rs.2,99,235.75, the accused had paid only Rs.1,54,996/- and prepared false receipts and false Kabulatnama and thus misappropriated the amount of Rs.1,44,239.35. Thus they committed the offence of criminal breach of trust, cheating, forgery of documents, etc. 4. In order to bring home the guilt of the accused, the prosecution had examined as many as 58 witnesses and had also relied upon voluminous documentary evidence. The further statements of accused were recorded under Section 313 of the Cr.P.C., wherein they had denied the allegations levelled against them. 4. In order to bring home the guilt of the accused, the prosecution had examined as many as 58 witnesses and had also relied upon voluminous documentary evidence. The further statements of accused were recorded under Section 313 of the Cr.P.C., wherein they had denied the allegations levelled against them. The accused No.5 – Parshottam Vithalbhai Patel had further stated that false complaint was filed at the instance of one – Jadav Premji, who wanted water connection, which was not possible to be given and, therefore, out of rivalry, the application was made after his transfer. The accused No.6 – Bipinchandra Parshottam Patel had further stated that he was not serving as a public servant and he was false implicated in the case. 5. The Special Court, after appreciating the evidence on record, had acquitted all the accused vide the impugned judgment and order as stated hereinabove, against which the State Government has preferred the present appeal. 6. We have heard the learned APP Ms. Maithili D. Mehta for the appellant – State of Gujarat, learned advocate Mr. Manan Bhatt, appearing for Mr. Asim Pandya, learned advocate for the respondent No.1 and learned advocate Mr. P.R. Nanavaty, for the respondents Nos. 5 and 6 and perused the record and proceedings of the case. It appears from the record that voluminous documentary evidence was produced before the Special Court including the complaint, panchnamas, vouchers, measurement books, reports of the finger print expert, etc. The Government had also granted sanction as required under Section 6 of the Prevention of Corruption Act. 7. At the outset, it may be stated that the alleged incident had taken place between May, 1976 and March, 1978 at village Umrala, in respect of which, the complaint was filed by the Police Inspector, ACB, Bhavnagar, on 05.08.1982. The trial was conducted in the year 1990 and the judgment was delivered in the year 1994 and the appeal is being heard in the year 2020. Of course, the delay in hearing the appeal is no ground for not examining the appeal on merits, hence, let us examine the appeal on merits. 8. The trial was conducted in the year 1990 and the judgment was delivered in the year 1994 and the appeal is being heard in the year 2020. Of course, the delay in hearing the appeal is no ground for not examining the appeal on merits, hence, let us examine the appeal on merits. 8. So far as the oral evidence is concerned, out of 58 witnesses examined by the prosecution, PW-2 – Dayabhai Govindbhai, PW-4 – Mohan Odhavjibhai, PW-5 – Bhikha Arjanbhai, PW-6 – Lavji Uka, PW-7 – Kalubhai Jasmatbhai, PW- 15 – Mansukh Gopalji, PW-16 – Parshotam Talshi, PW-17 – Nagji Pragji, PW-18 – Nanu Raiyabhai, PW-19 – Talshi Narshi, PW-20 – Mohan Kanji, PW-21 – Lavji Limba, PW-22 – Jadav Khoda, PW-23 – Talshi Ramji, PW-24 – Vira Harji, PW-25 – Nanji Thakarshi, PW-26 – Amarshi Jasmat and PW-27 – Odha Raiyabhai, were the agriculturists, who were supposed to level their fields, for which the amount was to be paid by the Government. As transpiring from their respective evidence, according to them, one Mr.Patel had paid them some amount, however, they could not identify any of the accused sitting in the court, more particularly, the accused Ramanbhai Patel (now deceased), who had allegedly made payments to them. PW-2 – Dayabhai Govindbhai, examined at Exh.-15 had admitted in his cross-examination that there was a political rivalry with one Jadavji Pragji with Amarshibhai, who was of Congress Party and that they had decided to find out a way that the agriculturists may not have to pay the amount back in the Government. 9. The Special Court has discussed the evidence of the witnesses, more particularly, the agriculturists in detail and has come to the conclusion that the prosecution had failed to prove the entrustment of money to the accused as also the alleged misappropriation of the said money by the accused. There was no clear proof as to which of the accused had made the payment and to whom and how much. There was also no clear evidence as to whether the accused were serving at the relevant point of time at village Umrala. There was no clear proof as to which of the accused had made the payment and to whom and how much. There was also no clear evidence as to whether the accused were serving at the relevant point of time at village Umrala. The accused No.5 had stated in his further statement that the whole complaint was filed at the instance of one Jadav Premji, who was denied water connection, and the accused No.6 had stated in his further statement that he was not serving as a public servant at the relevant point of time. The prosecution had failed to adduce any positive evidence in this regard. The Special Court, after considering the definition of Section 409 of the IPC, has categorically arrived at the conclusion that the essential ingredients of the said Section were not proved by the prosecution. 10. As regards the evidence of the finger print expert, examined at Exh.-209, the prosecution had produced his findings and reasoning’s on record at Exh.210 to 212 and 213. Though nothing had come on record to dislodge his evidence, the basic requirements of the alleged charges having not been proved by the prosecution, namely which of the accused were public servants, whether they were entrusted with the money as alleged, and whether there was any criminal breach of trust committed by the accused, the conviction cannot be based only on the evidence of the handwriting expert. As per the scheme of the Government, the levelling in the fields was to be done by the agriculturists themselves, which according to the witnesses, who were agriculturists, had admitted that they had carried out the levelling work and then they were paid some amount, however, since their evidence was being recorded after 10 years of the alleged incident, there was no clear evidence as to which of the witnesses was paid how much money and when and by which of the accused. They were also not in a position to state as to which documents they had signed and whether the same were blank documents or not at the relevant time. The defence put forth by the accused of political rivalry was also admitted by the witnesses, examined by the prosecution. They were also not in a position to state as to which documents they had signed and whether the same were blank documents or not at the relevant time. The defence put forth by the accused of political rivalry was also admitted by the witnesses, examined by the prosecution. After considering the totality of circumstances and the evidence adduced by the prosecution, the Special Court had come to the conclusion that the prosecution had miserably failed to bring home the guilt of the accused by leading cogent and reliable evidence and, therefore, they are acquitted from the charges levelled against them. 11. The learned APP Ms. Maithili D. Mehta has also failed to point out any error or pervert finding recorded by the Special Court in the impugned judgment, requiring interference by this Court and that too after so many years. In absence of any clinching, clear, cogent and reliable evidence, it is difficult to dislodge or reverse the findings recorded by the Special Court, more particularly, when the appeal has already stood abated qua three out of the six accused. 12. In that view of the matter, the Court does not find any merit in the appeal. The present appeal deserves to be dismissed and is hereby dismissed. The judgment and order of acquittal dated 30.05.1994, passed by the Special Judge, Bhavnagar in the Special Case No.11 of 1990, is hereby confirmed. 13. Record & Proceedings be sent back to the concerned court forthwith.