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Gujarat High Court · body

2020 DIGILAW 229 (GUJ)

State of Gujarat v. Mahamad Munaf Abubekar Chaus

2020-02-04

A.P.THAKER

body2020
JUDGMENT : A.P. THAKER, J. 1. Being aggrieved and dissatisfied with the judgment and order of acquittal dated 29.7.2005 rendered by the learned Presiding Officer, First Fast Track Court, Valsad in Special (Corruption) Case No. 46 of 2002, whereby the learned trial Judge has acquitted the accused from the charges levelled against him under Sections 7, 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988. 2. Brief facts of the prosecution case are that the complainant-Laljibhai Muljibhai Bhansali of Vapi, who was running Shivam General Store and his tenant Vershibhai Dhanjibhai Gala was having telephone number 26088 and he wanted it to be shifted to Shivam General Store. It is alleged that therefore he applied to the Telephone Exchange of Vapi and he was subjected to move from pillar to post and, thereafter, employee of Telephone Exchange viz. Ramanbhai introduced the complainant to the accused-respondent herein. It is alleged that the accused demanded Rs. 1,700/- and at that time, the complainant told him that after transfer of his telephone number, he will pay the amount and meanwhile, paid Rs. 200/- to the accused for transfer of telephone. It is also contended that thereafter the accused telephonically demanded the remaining amount, which the complainant was not willing to pay and, therefore, he approached the Anti- Corruption Bureau. On his approaching the ACB, his complaint was reduced into writing and the ACB officer has called for two panchas and, thereafter, initiated proceedings and first part of panchnama was carried out and anthrecene powder was smeared on the currency notes and the same were put in the pocket of the complainant and he as well as panch no. 1 was instructed to approach the accused and unless and until the accused demands money, same must not be touched by the complainant. It was also instructed to the panch no. 1 that he should hear and see what is happening between the complainant and the accused, whereas panch no. 2 was instructed to be with the raiding party. 2.1 It is alleged that thereafter panch no. It was also instructed to the panch no. 1 that he should hear and see what is happening between the complainant and the accused, whereas panch no. 2 was instructed to be with the raiding party. 2.1 It is alleged that thereafter panch no. 1 and the complainant went to the office of the accused and, at that time, accused told them to come to tea stall and the accused placed order of three cups of tea and after taking tea they were coming back, at that time, near the main gate of the Telephone Exchange, the accused demanded the remaining amount of Rs. 1,500/- which the complainant tendered and accused accepted it and put it in his shirt and gave signal to the raiding party. On such signal being received, panch no. 2 and raiding party went to the place and ACB, Police Inspector, introduced him as an ACB inspector and thereafter the amount was recovered from the pocket of the accused and, at that place experiment of ultraviolet lamp on the hands of the accused and others was carried out and necessary second part of panchnama was prepared. 2.2 During investigation, the investigating officer got sanction from the competent authority and having found sufficient material the ACB has placed charge sheet before the Special Judge. 2.3 Learned Special Judge has framed charge against the accused vide Exh.6 and explained it to the accused, whereupon the accused pleaded not guilty and claimed to be tried. Accordingly, the prosecution has examined following witnesses and produced following documentary evidence. Oral Evidence:- 1. Laljibhai Muljibhai Bhanusali Exh.14 2. Satishbhai Panditbhai Exh.18 3. Mahavirsinh Pravinsinh Raol, raiding officer, investigating officer. Exh.20 4. Ranjitsinh Deshbhai Vala, another investigating officer. Exh.26 5. Ambapratapsinh Chandravijaysinh Jadeja Exh.30 Documentary Evidence:- 1. Complaint Exh.21 2. Panchnama Exh.22 3. Panchnama of body of the accused Exh.23 4. Seizure memo Exh.24 5. Sanction for prosecution Exh.27 6. Copy of appointment letter of the accused. Exh.34 7. True copy of the FIR registered against the complainant for offence of prohibition. Exh.35 7. True copy of the FIR registered against the complainant for offence of prohibition. Complaint Exh.21 2. Panchnama Exh.22 3. Panchnama of body of the accused Exh.23 4. Seizure memo Exh.24 5. Sanction for prosecution Exh.27 6. Copy of appointment letter of the accused. Exh.34 7. True copy of the FIR registered against the complainant for offence of prohibition. Exh.35 7. True copy of the FIR registered against the complainant for offence of prohibition. Exh.35 2.4 After closure of the evidence on the part of the prosecution, learned trial Court has examined the accused under Section 313 of the Code of Criminal Procedure, wherein also the accused has pleaded that he is innocent and has further stated that the sanctioning authority is not empowered to accord sanction and there is a criminal case filed against the complainant for offence under Prohibition Act and he is a bootlegger. He has also stated that he has not demanded any amount nor has asked for bribe. Thereafter, after hearing both the sides, learned trial Court has ultimately acquitted the accused, as referred to above. Being aggrieved with this order of acquittal and judgment, present appeal is preferred. 3. Heard learned APP, Ms. Shruti Pathak, for the State. Perused the material placed on record. 3.1 Learned APP Ms. Pathak has vehemently submitted that learned trial Court has committed serious error of facts and law in observing that the sanction given by the person concerned was not competent to accord sanction for prosecution. According to her submission, Exh.27 clearly suggests that the Deputy General Manager has authority to pass such a sanction and the averments made in the sanction order, Exh.27, clearly shows that the authority has perused entire material placed before him and he has accorded sanction and there is no infirmity in the sanction. It is her submission that learned trial Court has not properly considered the sanction and averments made therein and only relied on the copy of the appointment letter of the accused, which has been issued by the Divisional Engineer, Telegraph, Valsad Division, Valsad. She has also contended that while exhibiting Sanction at Exh.27, the defence has not raised any objection against exhibiting the same and, therefore, now they cannot challenge the same by making averments in the statement recorded under Section 313 of the Code of Criminal Procedure. 3.2 Learned APP has also submitted that considering the evidence of the complainant and panch no. 3.2 Learned APP has also submitted that considering the evidence of the complainant and panch no. 1, it is clearly established that the accused has demanded the bribe and has also accepted it in presence of panch no. 1 and this fact has been duly proved by the evidence of complainant, panch and police witness. It is her submission that the amount has been recovered from the accused and the same is also proved through the evidence and learned trial Court has not considered this very aspect in its judgment and has committed serious error of facts and law in discarding these factors. According to her submission, the contradiction, even if there are any, they are minor contradictions, which does not vitiate cogent and reliable evidence. Learned APP submitted that learned trial Court ought to have believed story of the prosecution and evidence on record and ought to have convicted the accused. She has accordingly prayed to allow the appeal. 4. It is well settled by the Apex Court in the case of A. Subair vs. State of Kerala, (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 under 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. 5. In the case of State of Kerala and Another vs. C.P. Rao, (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. 6. 6. 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. AIR 2014 SC (Supp.) 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. 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. 7. It appears from record that main allegation of the complainant is that the accused has demanded bribe for transferring telephone and, at the time when he was introduced to the accused by one Mr. Ramanbhai, he has paid Rs. 200/- to the accused. It is also the version of the complainant that he told the accused that he will pay entire amount after transfer of his telephone. It is an admitted fact that before long there was transfer of telephone line and it also appears that there is nothing on record to show that the complainant has filed any application. It is also the version of the complainant that he told the accused that he will pay entire amount after transfer of his telephone. It is an admitted fact that before long there was transfer of telephone line and it also appears that there is nothing on record to show that the complainant has filed any application. It also appears from record that the complainant in his evidence has made materially contradictory statement and has stated that when he tendered the amount, the accused accepted it and, thereafter near the gate of telephone exchange, experiment of ultraviolet lamp was carried out and signs of anthrecene powder were found on the hands of accused and panch no. 2, through whom amount was recovered. On perusal of the evidence, it reveals that even regarding signal, he has made contradictory statement. 8. On perusal of evidence of panch witness, it transpires that he has initially stated that experiment of ultraviolet lamp was not carried out in the open land but it was carried out in the ACB office. Against this, the investigating officer has stated that experiment of ultraviolet lamp was carried out near the main gate of the telephone exchange. At this stage, it is worthwhile to note that in the panchnama, it has been narrated that second part of panchnama was prepared near the gate of Telephone Exchange i.e. on the road. It also reveals from the evidence that it was prepared on the date of the incident between 3.30 p.m. to 4.15 p.m. and it was day light. This fact itself suggests that there is something fishy in the case of the prosecution, as for the experiment of ultraviolet lamp the place must be closed and no light should come in, otherwise, the signs of anthrecene powder cannot be found in the experiment of ultraviolet lamp. Now, in this case, it is categorical stand of the prosecution that the experiment of ultraviolet lamp was carried out in the open place. This very fact destroys the case of the prosecution. It also appears from record that version of the prosecution regarding demand is also not proved beyond reasonable doubt as the initial payment of Rs. 200/- is also not supported by the evidence. This very fact destroys the case of the prosecution. It also appears from record that version of the prosecution regarding demand is also not proved beyond reasonable doubt as the initial payment of Rs. 200/- is also not supported by the evidence. At this juncture, it is required to be noted that the accused was introduced by one Ramanbhai to the complainant and at that time the accused has demanded Rs. 1,700/- and accepted Rs. 200/-. This Ramanbhai is not cited as a witness nor he has been examined. 9. Moreover, it also appears that no work was pending on the day of the incident and telephone was already transferred prior thereto. It also reveals from the evidence of panch that after arrest of the accused, officer of ACB has checked the hands of the accused and the officer concerned has obtained his signature and signature of the panchas and no other thing has happened there. The complainant himself has admitted in his evidence that his version regarding payment of Rs. 200/- is falsely stated by him. He has categorically stated in his evidence that experiment of ultraviolet lamp done on second time was carried out in the office of ACB, wherein only staff member of ACB and panchas were present and there was no other person. This shows that according to this witness the accused was not present at the time of experiment of ultraviolet lamp second time. He has also categorically stated that he has not seen the signs on the currency notes except at the office of ACB and not at any other place. He has also stated that money was not tendered at the tea stall. He has also admitted that there was no place near the Telephone Exchange Gate for carrying out the experiment of ultraviolet lamp. He has stated that there was another private building near the Telephone Exchange. According to his version, the currency notes were recovered from the pocket of the accused by one Babubhai. He has admitted that no proceedings were done at the main gate of the Telephone Exchange. Against this, if we peruse the panchnama, it clearly transpires that second part of panchnama was carried out near the main gate of the Telephone Exchange. 10. He has admitted that no proceedings were done at the main gate of the Telephone Exchange. Against this, if we peruse the panchnama, it clearly transpires that second part of panchnama was carried out near the main gate of the Telephone Exchange. 10. On reading of the entire evidence on record, which consists of evidence of complainant, panch and investigating officer, it clearly transpires that the prosecution has miserably failed to prove three ingredients of the offence, viz. demand, acceptance and recovery and the evidence on record is not cogent and sufficient to connect the accused with crime. 11. However, so far as submission of learned APP regarding sanction is concerned, it is required to be observed that before the trial Court sanctioning authority has not been examined and the sanction order at Exh.22 has been produced during examination of the police witness and it was exhibited in his evidence. It is pertinent to note that the defence has not objected to exhibiting said document in the evidence of police witness. Of course during the cross-examination of this police witness, it has been suggested by the accused that the sanctioning authority had no jurisdiction to grant such sanction and the investigating officer himself has not tendered papers to the sanctioning authority. It has also come out from further statement of the accused that he has simply stated that his appointing authority is Divisional Engineer, whereas sanction has been granted by the Deputy General Manager. Now, on perusal of Exh.27, it is found that the sanctioning authority, Mr. S.K. Agrawal, Deputy General Manager, has specifically stated in second paragraph as under:- “That the investigation conducted by ACB, Valsad revealed that Shri Mohd. Munaf Abubaker Chaus, Telephone Operator, while performing his duties in Telephone Exchange, Vapi in the year 1998, by the virtue of his department he is considered central government servant and the powers to remove the said public servant in respect of Shri Mohd. Munaf Abubaker Chaus, Telephone Operator, Telephone Exchange, Vapi, is hereby vested with the Dy. General Manager, O/o. General Manager Telecom District, Valsad.” 12. It also reveals from the said sanction order that the sanctioning authority, Mr. S.K. Agrawal has specifically stated that after full and careful verification of the facts and circumstances from record and investigation of the case, he is satisfied and has accorded sanction accordingly. 13. General Manager, O/o. General Manager Telecom District, Valsad.” 12. It also reveals from the said sanction order that the sanctioning authority, Mr. S.K. Agrawal has specifically stated that after full and careful verification of the facts and circumstances from record and investigation of the case, he is satisfied and has accorded sanction accordingly. 13. This fact has not been challenged by the accused. The sanction produced herein cannot be termed as illegal or invalid in the eyes of law. The sanction is valid in this case. Therefore, the observation made by learned trial Judge that the sanction is not proper one is not sustainable in the eyes of law. However, even if we treat the sanction as legal, the evidence on record is not sufficient and cogent to connect the accused with crime. 14. Now, on reading the impugned judgment, it clearly transpires that except the observations regarding invalid sanction, the observations of learned trial Court regarding failure on the part of the prosecution to prove the three ingredients viz. demand, acceptance and recovery are sustainable in the eyes of law and the same deserves to be confirmed. 15. In the result, the appeal fails and is hereby dismissed. The impugned Judgment and order dated 29.7.2005 rendered by the learned Presiding Officer, First Fast Track Court, Valsad, in Special (Corruption) Case No. 46 of 2002, acquitting the respondent-accused, is hereby confirmed. Bail bond stands cancelled. Record and Proceedings be sent back to the trial Court concerned forthwith.