Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 61 (GUJ)

State of Gujarat v. Praffulbhai B. Patel

2020-01-13

A.P.THAKER

body2020
JUDGMENT : 1. The appellant – State has preferred the present appeal under Section 378 (1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order dated 06.11.2006 passed by the Presiding Officer, Fast Track Court No.2, Vadodara (hereinafter be referred to as “the Trial Court”) in Special (A.C.B.) Case No.3 of 1997 whereby the Trial Court has acquitted the original accused – respondent herein from the charges leveled against him for the offences under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act (hereinafter be referred to as “the Act”). 2. Brief facts of the prosecution case is that the complainant namely Bhavsingbhai Bhanabhai Koli Rathava resident of Village: Gandia, Taluka: Pavi Jetpur, District: Vadodara lodged the complaint before the ACB alleging that he had 4 Acre land in the said village and his land is situated near the river bank of Orsang. As the said river dried, he has to get the water from the boar-well and for that purpose, the said boar was run by electric connection and he has not received any electricity bill for last more than one and half year prior to date of alleged complaint. It is alleged that as he has not received such bill from the office of the Gujarat Electricity Board (GEB), Jetpur Pavi, he went to the office of the GEB where the accused was working as Engineer. It is further alleged by the complainant that the accused told him that his predecessor has given the electric connection illegally and he has received an order for disconnection of the said electric connection which was used by the complainant and, thereafter, he would receive the electricity bill. 2.1 According to the complainant, the accused has demanded Rs.6,000/- from him for not disconnecting the electricity connection and issuance of bill thereof. 2.1 According to the complainant, the accused has demanded Rs.6,000/- from him for not disconnecting the electricity connection and issuance of bill thereof. 2.2 Being aggrieved, the complainant went to the office of the ACB and he told everything to the concerned police officer and, therefore, the concerned police officer has got the complaint registered and after calling panchas and on submission of Rs.1,000/- by the complainant and remaining amount of Rs.5,000/- was collected from the Treasury office and on that basis, initially, first part of the panchnama was prepared in the ACB Office where panchas and complainant were present and the experiment of ultra violate lamp and anthrecene powder was explained to them and after explaining, Rs.6,000/- was put in the pocket of the complainant and instructed panch No.1 to remain with him and to see and hear the conversation between the complainant and the accused. It is further the case of the prosecution that after preparing first part of panchnama, they went to the office of the GEB, Jetpur Pavi where the accused was not found and, therefore, they went to the residence of the accused. 2.3 It is the case of the prosecution that the complainant and panch No.1 went to the residence of the accused and where the accused demanded Rs.6,000/- from the complainant and the complainant handed over it to him and he gave signal to the members of the raiding party, there upon they rushed to the residence of the accused. Thereafter, the accused was caught by the raiding party and necessary second part of panchnama was carried out. After such procedure, the accused was arrested and, after getting necessary sanction from the competent authority and having found sufficient evidence against the accused, a charge-sheet came to be led before the concerned Court. 2.4 On filing of the charge-sheet, the charge was framed against the accused by the Trial Court at the relevant time and the accused has pleaded not guilty and pleaded for trial. Therefore, the evidence was recorded by the Trial Court. 2.5 It appears from the records that to prove the case, the prosecution has examined the following witnesses:- P.W.1 Sanmukhlal Gopaldas Tailor Exh.18 P.W.2 Rajnikant Mohanlal Bhadeshiya Exh.21 P.W.3 Prahladrai Chhaganbhai Patel Exh.23 P.W.4 Kiritkumar Balvantrai Desai Exh.34 2.6 In addition to this, the prosecution has also produced the following documentary evidence:- Sr. No. Particulars Exh. 1. 2.5 It appears from the records that to prove the case, the prosecution has examined the following witnesses:- P.W.1 Sanmukhlal Gopaldas Tailor Exh.18 P.W.2 Rajnikant Mohanlal Bhadeshiya Exh.21 P.W.3 Prahladrai Chhaganbhai Patel Exh.23 P.W.4 Kiritkumar Balvantrai Desai Exh.34 2.6 In addition to this, the prosecution has also produced the following documentary evidence:- Sr. No. Particulars Exh. 1. Panchnama of trap for bribe 19 2. Seizure list for articles seized from Deputy Engineer Prafulchandra Babrbhai Patel 20 3. Copy of order of sanction for prosecution 24 4. Xerox copy of the office order of Gujarat Electricity Board, Vadodara for Junior Engineer (E & M) Degree Holder Working. 31 5. Complaint of Bhavsingbhai B. Rathod 35 6. Yadi written to Deputy Director, Cottage Industry, Vadodara regarding calling panchas. 36 7. Yadi of Assistant Director for taking Rs.5,000/- from the Government Treasury. 37 8. Muddamal receipt No.12/96 Vadodara A.C.B. Police Station 38 2.7 After recording the evidence of the prosecution, the Trial Court has recorded the statement of the accused under Section 313 of the Criminal Procedure Code wherein also, the accused has denied of having committed any such offence and has stated that he is innocent. He has placed on record, his defence wherein he has stated that he has gone to the field of the complainant for checking the electricity connection and having found that there was illegal electricity connection, the same was disconnected by him and therefore, the complainant was to regularize his electricity connection. Therefore, he has informed the complainant that he cannot regularize it as it is an illegal act. It is his defence that on 25.09.1996, after completion his duty, he went to his house and he was alone in his house as his wife and children were residing at Vadodara and after changing clothes, he was gone inside the room and at that time, the complainant came to his residence and at that time, he has told him to come at his office. However, the complainant, in his absence, put the currency notes in the pocket of the pant which was hanging in the hall and, thereafter, raiding party came there and at the instance of the complainant, he was forced to put the currency notes in shirt and, therefore, it might possible that the sign of the anthrence powder was found in his hand. According to him, the sanction is also not proper and he has not demanded any bribe amount nor has received thereof. 2.8 After perusing and considering the evidence on record and after hearing both the sides, the Trial Court has, ultimately, acquitted the accused – respondent from the charges leveled against him. 3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred the present appeal. 4. Heard Ms.Krina Calla, learned Additional Public Prosecutor for the appellant – State and Mr.Chirag Patel, learned advocate for the respondent – accused. Perused the material placed on record. 5. Ms.Krina Calla, learned Additional Public Prosecutor for the appellant – State has submitted that the Trial Court has committed serious error of facts and law in acquitting the accused. While reading the entire evidence on record, she has submitted that though the panch witness No.1 has turned hostile, it reveals from the depositions of panch No.2, Sanctioning Officer as well as Investigating Officer that all the three ingredients i.e. demand, acceptance and recovery are proved by the prosecution beyond reasonable doubt. She has submitted that from the evidence of panch No.2, it is clearly found that the raid was carried out in presence of the panchas and the complainant and panchnama was prepared at the residence of the accused. She has submitted that contradictions, if any, are minor contradictions and it ought not to have been weighed with the Trial Court. According to her submission, the amount of Rs.6,000/- has been found from the pocket of the accused and necessary experiment of ultra violate lamp was also shown the signs of anthrecene powder on the hands of the accused and pant as well as shirt also. She has submitted that considering the deposition of the Sanctioning Authority, there is no denial that the sanction was legal and valid. 5.1 Ms.Calla, learned Additional Public Prosecutor for the appellant – State has also submitted that on reading of the complaint, panchnama as well as depositions of panch No.2 and Investigating Officer, it is clearly found that the prosecution has able to prove the charges levelled against the accused and the Trial Court has not properly appreciated the evidence on record. 5.1 Ms.Calla, learned Additional Public Prosecutor for the appellant – State has also submitted that on reading of the complaint, panchnama as well as depositions of panch No.2 and Investigating Officer, it is clearly found that the prosecution has able to prove the charges levelled against the accused and the Trial Court has not properly appreciated the evidence on record. She has submitted that the impugned judgment and order is not sustainable in the eyes of law and, therefore, this Court may interfere with the same and quash and set aside the impugned judgment and order and convict the accused for the aforesaid charges. 6. Per contra, Mr.Chirag Patel, learned advocate for the respondent – accused has submitted that the Trial Court has not committed any error of facts and law in acquitting the accused as the evidence of panch No.2 and the Investigating Officer are in the nature of hearsay evidence. While referring to the deposition of panch No.1, learned advocate for the respondent – accused has submitted that the important witness is panch No.1 as the complainant has died and due to which, he could not be examined. He has submitted that it appears from the evidence that panch No.1 has not supported the prosecution case and, therefore, the ingredients of the offence i.e. demand, acceptance and recovery are not proved. He has submitted that even if the recovery is said to be proved, in that case, it cannot be a sole ground to connect the accused with the alleged crime as initially the ingredients of demand and acceptance are not proved. He has submitted that there are material contradictions in the evidence of panch No.1 and Investigating Officer, which has been considered by the Trial Court. He has submitted that from the evidence available on record, the Trial Court has rightly acquitted the accused from the charges levelled against him and this being an acquittal appeal, even if two views are possible then the view of the Trial Court, which is in favour of the accused, should be maintained and no interference by this Court is required. He has urged to dismiss the appeal. 7. Now, on perusal of the evidence of the Investigating Officer coupled with the evidence of panch No.2, it clearly appears that on the material part, they have contradicted each other. He has urged to dismiss the appeal. 7. Now, on perusal of the evidence of the Investigating Officer coupled with the evidence of panch No.2, it clearly appears that on the material part, they have contradicted each other. It also reveals that both these witnesses are not eye witnesses of the incident and their entire evidence is based on hearsay evidence. It also reveals that there is contradiction regarding who has given signal first. According to panch No.2, panch No.1 has given signal, whereas, according to the Investigating Officer, the signal was given by the complainant. 8. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 9. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime with which he is charged. 10. 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 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. 11. in the case Jaswantsinh Udesinh Parmar Vs. State of Gujarat reported 2019 (1) GLR 255, the Apex Court has held and observed in para-27. 27. Moreover, one more disturbing feature is emerging out from the evidence available on record. Mr. Joshi, Police Inspector has assumed all roles right from the stage of recording complaint, arranging for the trap as well as members of raiding party, carrying out investigation and he himself lodged the complaint before himself. 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 Rajastha”, 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 . The said view is fortified by the decision of the Hon'ble Apex Court in the case of “Bhagwan Singh vs. State of Rajastha”, 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 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. 12. In the present case, PI, ACB, has carried out the entire investigation for his own complaint and he himself has filed the charge-sheet. These facts go to the root of the case of the prosecution. This is also one of the reasons for acquittal of accused. In the case of Kanubhai Kantibhai Patel v. State of Gujarat, reported in 1998 (1) GLH 924 , this Court held as under in paragraph 5:- “5. ............ The Supreme Court in the case of Bhagwansingh v. The State of Rajasthan - A.I.R. 1976 S.C. 985 has held that if every thing is done by the police officer it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. In that case the complaint was recorded by the Investigating Officer, raid was also carried out by the Investigating Officer, search and seizure were also made by the same Investigating Officer and thereafter the investigation was also carried out by the same Investigating Officer till the charge-sheet was filed. Here in the case on hand, Mr. Gadhvi the Police Inspector has done every thing in the matter right from recording of the complaint till the charge-sheet was filed. When that is the case the credibility of the case of the prosecution is certainly suspicious and on that count the prosecution must fail. ...........” 13. 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. 14. 14. The Apex Court, while dealing with imperative pre-requisites of Sections 7 and 13 of the Act, in the case of B. Jayaraj v. State of A.P, reported in AIR 2014 SC (Suppl.) 1837, has observed 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 thereof 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 and 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. 15. On perusal of the evidence of Sanmukhlal Gopaldas Tailor, P.W.1 at Exhibit 18, it appears that he has not supported the basic version of the prosecution regarding his presence with the complainant in the house of the accused and regarding the fact that the accused has demanded Rs.6,000/- in his presence as well as tendering the bribe amount by the complainant to the accused and acceptance of the same by the accused are also not supported by him. As he has not supported the basic version of the prosecution, he has been declared hostile and the prosecution has cross-examined him thoroughly regarding the fact of panchnama. However, in such cross-examination also, he has not supported the prosecution version that the accused has demanded bribe and has accepted the same from the complainant and recovered thereof from the accused. As he has not supported the basic version of the prosecution, he has been declared hostile and the prosecution has cross-examined him thoroughly regarding the fact of panchnama. However, in such cross-examination also, he has not supported the prosecution version that the accused has demanded bribe and has accepted the same from the complainant and recovered thereof from the accused. 15.1 During the cross-examination on behalf of the accused, he has stated that he has signed all the papers at the instance of the police. He has stated that he did not know as to on which day the signature of the panch No.2 was obtained by the police. 16. It also reveals from the materials placed on records that the complainant has died and, therefore, he could not be examined. Under these circumstances, the only eye witness is panch No.1. But as stated hereinabove, panch No.1 has not stated anything regarding the demand and acceptance of the bribe by the accused. 17. On perusal of the evidence of Rajnikant Mohanlal Bhadeshiya, P.W. 2 at Exhibit 21, it appears that he has supported the prosecution case to some extent and has narrated the facts regarding experiment of ultra violate lamp and applying of anthrecene powder on the currency notes and putting of the currency notes in the pocket of the complainant and preparation of primary panchnama and, thereafter, the complainant and panch No.1 having gone to the office of the GEB and, thereafter, at the residence of the accused and on factum of signal, by complainant and having reached to the house of the accused with raiding party and preparation of the second panchnama and recovery of Rs.6,000/- from the pant pocket of the accused. However, according to him, on reaching to the office of the accused, it was found that the signal was given by panch No.1. But at the same time, he has deposed that he does not know as to initially who had given the signal. He has also narrated the fact that when the Investigating Officer Mr.Desai asked the accused as to whether he has accepted the amount or not, at that time, accused has denied having accepted any amount. But at the same time, he has deposed that he does not know as to initially who had given the signal. He has also narrated the fact that when the Investigating Officer Mr.Desai asked the accused as to whether he has accepted the amount or not, at that time, accused has denied having accepted any amount. According to this witness, at that time, the experiment of ultra violate lamp was carried out on the hands of the complainant as well as accused and during that exercise, the sign of anthrecene powder was found on the hands of the accused. According to him, the amount was put in the right hand side pocket of the complainant at the relevant time. However, he has stated that the sign of anthrecene powder was found on the left side of shirt pocket. 17.1 During the cross-examination, he has deposed that the currency notes tainted with anthrecene powder was put in right hand side shirt pocket of the complainant. He has admitted that it is not so happened that the accused has demanded bribe money and has accepted in his presence. He has stated that it was decided in the office of the ACB that panch No.1 should give signal after reaching the residence of the accused. According to this witness, the signal was given by panch No.1. However, at the same time, he has accepted that this fact has not been narrated in the panchnama. He has admitted that when they all were standing near the residence of the accused, nobody has given signal to the ACB. He has voluntarily stated that as about more than ten minutes was passed, Mr.Desai, Police Inspector has told them that now let us go to the residence of the accused. He has stated that there was one pocket in the shirt of the accused. According to him, he does not remember, who is accused at the relevant time. Of course, he has admitted that there was no experiment of ultra violate lamp on the shirt of the complainant at the residence of the accused. He has stated that there was one pocket in the shirt of the accused. According to him, he does not remember, who is accused at the relevant time. Of course, he has admitted that there was no experiment of ultra violate lamp on the shirt of the complainant at the residence of the accused. He has stated that the police has called him in ACB office one day prior to his deposition and threatened him that if he did not give deposition as per the statement made before the ACB, then, the necessary departmental proceeding would be initiated against him and due to that he has narrated the facts in his evidence. 17.2 Thus, on reading of the evidence of this witness, it is clearly found that under fear, he has deposed. Of course, it is an admitted fact that he is not an eye witness, but his entire evidence is based on the version being heard by him from the complainant and what he has seen after raid. 18. On perusal of the evidence of Kiritkumar Balvantrai Desai, P.W.4 at Exhibit 34, it appears that he has adhered to the version of the prosecution regarding the complaint, panchnama, recovery etc. But the fact remains that he has, personally, not seen or heard any conversation between the complainant and the accused regarding the demand and acceptance. On perusal of his entire evidence, it is clearly found that the electricity connection was going to be disconnected by the GEB and the complainant was desired to continue with the electricity connection. He has admitted that he has no knowledge as to the conversation between the accused and the complainant. According to him, at the time of leaving the GEB Office, they have decided to go directly to the residence of the accused. According to him, after reaching the residence of the accused, they scattered heere and there and the complainant and panch No.1 went to the house of the accused. He has stated that when the complainant came before him, he has seen one pocket in his shirt. He has denied the suggestion that the said pocket was on the right side of the shirt. But he has accepted that in the panchnama at Exhibit 19, there is narration that the pocket is on the right hand side. He has stated that when the complainant came before him, he has seen one pocket in his shirt. He has denied the suggestion that the said pocket was on the right side of the shirt. But he has accepted that in the panchnama at Exhibit 19, there is narration that the pocket is on the right hand side. He has stated that the complainant has given the information regarding the residence of the accused. He has stated that he has not seen the exchange of money between the complainant and the accused and the conversation thereof. According to him, the signal was given by the complainant himself. He has denied the suggestion of the accused that at the time of raid, the accused worn lungi and other clothes were in hanging condition on the wall. He has admitted that there is no narration in the panchnama regarding experiment of ultra violate lamp on the hands of panch No.2. He has agreed that if the currency notes were recovered through panch No.2, from the pocket of the accused, then, the sign of anthrence powder would be on the hands of panch No.2. Of course, he has stated that the currency notes were collected from the pant pocket of the accused through panch No.2. However, he was unable to say as to whether such fact has been narrated in the panchnama or not. He has denied the suggestion that the currency notes were produced by the accused himself. He has admitted the fact that he himself has recorded the complaint of the accused and complete the entire investigation and has filed the charge-sheet. 19. On perusal of the evidence of Prahladrai Chhaganlal Patel, P.W.3 at Exhibit 23, it clearly appears that after reading the materials on record, he has given sanction for prosecution and has produced the sanction at Exhibit 24. On reading the evidence of this witness, it is clearly found that he has applied his mind before sanction and the sanction, which has been issued, cannot be termed as illegal. 20. Now, on perusal of the impugned judgment and order, it clearly transpires that the Trial Court has appreciated the entire evidence threadbare and has not committed any serious error of facts and law in acquitting the accused from the charges levelled against him and the impugned judgment and order is sustainable in the eyes of law. 20. Now, on perusal of the impugned judgment and order, it clearly transpires that the Trial Court has appreciated the entire evidence threadbare and has not committed any serious error of facts and law in acquitting the accused from the charges levelled against him and the impugned judgment and order is sustainable in the eyes of law. It is well settled that if, from the evidence on record, there are views possible then the view of acquittal in favour of the accused has to be accepted and this Court does not warrant any interference with such discretion exercised by the Trial Court. From re-appreciating the entire evidence on record, the impugned judgment and order is sustainable in the eyes of law. 21. In view of the above, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order dated 06.11.2006 passed by the learned Presiding Officer, Fast Track Court No.2, Vadodara in Special (A.C.B.) Case No.3 of 1997 is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.