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2023 DIGILAW 1147 (GUJ)

STATE OF GUJARAT v. PRAVINBHAI BHIKHABHAI PATEL

2023-12-04

A.Y.KOGJE

body2023
JUDGMENT : A.Y. KOGJE, J. 1. This appeal by the State against the judgment and order dated 13.10.2008 by the Special Judge (ACB), Court No. 4, Ahmedabad in Sessions Case No. 52 of 2001 by which the respondent has been acquitted of the offence punishable under Sections 7, 13(c) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 2. The facts of the case is that ACB having received complaint of illegal amount being demanded and received at the Octroi Naka organized a trap by involving a decoy punch accompanying the truck driver from whom such demand was being made. 2.1. It appears that in the present case, the decoy punch had proceeded to Octroi Naka and had paid the amount of Octroi and an additional amount of Rs.20/- which was treated as the bribe money and as the entire amount including the bribe money was tainted. The trap was treated to be successful and i.e. how the respondent came to be charged for the aforesaid offence. The learned APP submitted that considering the evidence of the punch witness who was in accompaniment of the decoy witness, has supported the case of prosecution, and according to his evidence, the Panchnama was proved, and therefore, the prosecution was able to establish on the basis of his version the demand and acceptance as well as the recovery of the tainted money from the respondent-accused. 3. Learned APP submitted that an error is committed by the Special Judge in recording the acquittal on the ground that the Investigating Officer was not examined. It is submitted that as the punch witness has already supported the case of the prosecution and as the Investigating Officer had expired. Still there was no need for any corroboration except for the corroboration by the scientific evidence which was available on the record in the form of FSL report. 4. Learned APP has lastly submitted that though the evidence of the punch witness through whom the Panchnama was established the demand, the Acceptance and the recovery is proved. The Court has not accepted this evidence and has recorded the acquittal. 5. 4. Learned APP has lastly submitted that though the evidence of the punch witness through whom the Panchnama was established the demand, the Acceptance and the recovery is proved. The Court has not accepted this evidence and has recorded the acquittal. 5. As against this, learned advocate appearing for the respondent has submitted that the acquittal is recorded correctly as apart from the punch witness, there are no other witnesses who have supported the case of the prosecution and even on the basis of the evidence of the punch witness also, the prosecution is unable to establish the claim of demand and acceptance, particularly, when the decoy witness has not supported the case of the prosecution. 5.1 It is submitted that the evidence of the punch witness cannot be accepted as a gospel truth due to the lack of any corroboration. Not only that, but even from the evidence of this very witness, the entire amount, which is paid by the decoy witness has been explained on the basis of the documents of the prosecution itself. He has referred to Exhibit-24 and 25 which are the receipts, evidencing the payment of Rs.64/- and Rs.40/- independently thereby accounting for a payment of Rs.84/- to the accused person and that even as per the case of the prosecution, the entire amount of Rs.84/- which was tainted amount, was recovered from the accused person and as there is accounting of the aforesaid amount except for Rupee one, the acquittal recorded is justified. 6. Having considered the rival submission of the parties and having perused the documents on record. It is the case of the prosecution as per the charge framed against the respondent vide Exhibit-2 that the respondent-accused, having misused the post as a Public Servant, intercepted truck, bearing registration no. GJ 19 T 1911, loaded with firewood belonging to witness Udabhai Dantani, for payment of octroi on the outskirt of Chiloda village at about 7.35 hours on 17/08/2001 and accordingly, demanded Rs. 20/- in addition to the legal amount of octroi from witness Udabhai Dantani and accepted the said amount, which was not legal remuneration. Thereby, the respondent-accused, accepted the amount of Rs. 20/- and committed an offence punishable u/s 7 of the Prevention of Corruption Act. 6.1 Further, on aforesaid date, time and place, the respondent-accused, having misused his post as a Public Servant, illegally demanded Rs. Thereby, the respondent-accused, accepted the amount of Rs. 20/- and committed an offence punishable u/s 7 of the Prevention of Corruption Act. 6.1 Further, on aforesaid date, time and place, the respondent-accused, having misused his post as a Public Servant, illegally demanded Rs. 20/- from the witness Udabhai Dantani at the time of payment of octroi of the firewood and accepted the aforesaid amount and committed criminal misconduct and thereby, committed offence punishable u/s 13(2) of the Prevention of Corruption Act. 7. PW-4 is the complainant-Udabhai Khodabhai Dantani examined at Exhibit-27. In his deposition, evidence-in-chief, he has deposed that while he was driving a four wheeler loaded with wooden logs when he was intercepted by one Tata Sumo vehicle which was occupied by group of men. This witness got frightened on account of their presence when they introduced themselves as Policemen, and thereafter, they forced some money into his pocket and informed that one person would be accompanying him in his vehicle towards the Chiloda check post and whenever anybody demands money from him, the amount given by the Police has to be given to such person. when such version was given not supporting the prosecution theory , the complainant was declared hostile and he has in his cross-examination, he has deposed that when he reached to the check post, the Clerk sitting in the counter, demand money from him towards the Octroi and he paid an amount of Rs.85/- of which receipt of Rs.64/- was issued, and thereafter, when a further amount of Rs.20/- was demanded, he handed over the money out of the tainted money given by the Police person. However, this witness has not supported the case of the prosecution to the extent that the recovery of the tainted amount of Rs.20/- was made from the respondent-accused. 8. In the opinion of the Court, the version given by the complainant is taken into consideration then there does not appear to be any complaint made by this complainant of any demand of any amount towards the bribe or for illegal gratification but only when he went to the check post at that time, the Clerk i.e. the respondent-accused sitting there had demanded payment towards octroi money. In the opinion of the Court when the complainant himself has not stood by the prosecution the case of the prosecution for demand of money cannot be said to have been proved. In the opinion of the Court when the complainant himself has not stood by the prosecution the case of the prosecution for demand of money cannot be said to have been proved. 8.1 Again the evidence of this witness also does not support the case of the prosecution regarding the recovery of the tainted money of (Rs.20/-) from the respondent-accused. 9. It appears that the entire case of the prosecution is based on the version of decoy punch namely Lalabhai Akhmabhai Kharadi (PW-2) examined at Exhibit-20, in his deposition, he has deposed that he is working as an Assistant with the Directorate of Agriculture at Paldi and on the instruction of his superior officer, he had accompanied one Police Inspector, Chaukhla of Ahmedabad City Police to stand as a punch witness. In his evidence-in-chief, he has described the manner in which the experiment and explanation was given to him about the laying down of trap and actual execution of the trap. This witness has indicated that after leaving the office they had stood watch on the highway for arrival of any commercial vehicle transporting any type of goods, and at least at that stage, they intercepted of four wheeler, commercial vehicle containing wooden logs and upon interception and initial inquiry about the vehicle, the driver of the vehicle was explained about the laying down of the trap and that this witness would be in company of the driver. He has also deposed that the driver of the vehicle Udabhai Khodabhai Dantani (PW-4) was explained the method and manner in which the tainted money which was handed over to him was to be given upon any amount being demanded from him. Therefore, the perusal of evidence of this witness would clearly indicate the manner and method in which the trap was being laid down. 9.1 However, it would be pertinent to observe the deposition of this witness in the form of cross-examination where this witness has indicated that after the respondent-accused was apprehend alongwith the tainted money, the documents of the octroi office were also seized and in amongst the documents what was seized, two receipts which were given Exhibit number after this witness was shown those documents and were given Exhibit No. 24. The documents which were in the form of and at Exhibit-24 are the receipt for an amount of Rs.64/- and Rs.20/- respectively. The documents which were in the form of and at Exhibit-24 are the receipt for an amount of Rs.64/- and Rs.20/- respectively. The Court has taken into consideration the Exhibit-24 which is on page No. 165 of the Record and Proceedings as well as Exhibit-25 which is on page-167 of the Record and Proceedings. Both this Exhibit-25 is the receipt of Rs.64/- and Exhibit-24 is the entry made in the octroi register, charge register and again book No. 140, 148 and 424 the receipt No. 80 is issued for an amount of Rs.20/-. Upon the question being put in cross-examination, this witness has deposed as the documents were made part of the investigation and both these documents, the signature of both the punch witnesses as well as the Investigating Officer were recorded, and therefore, the said documents became the part of investigation case papers. 10. In the opinion of the Court the entire case of the prosecution is that the decoy witness alongwith driver had approached to the octroi clerk (respondent herein) and for the goods which were being transported in the vehicle of PW-4 (wooden logs) of different variety, octroi was require to be paid the amount of octroi was Rs.64/-. However, the case of the prosecution is that the respondent-accused had taken an amount of Rs.85/- but issued the receipt only an amount of Rs. 64/-. On receipt of an amount of Rs.64/- alone and thereby has treated the additional amount of Rs.20/- towards the bribe money. 10.1 However, considering the explanation which is coming on record even from the documents of investigation case papers, it is clearly coming out that over and above, the receipt of Rs.64/- issued by the respondent there is an entry made in the Register for an amount of Rs.20/- which is matching with the octroi receipt of Rs.64/- issued towards the octroi charges to the complainant. The Court is, therefore, of the opinion that the aforesaid aspect has been rightly considered by the Special Court and has therefore, come to the conclusion that there does not appear to be any demand by the respondent-accused for any bribe money. 11. The Court is, therefore, of the opinion that the aforesaid aspect has been rightly considered by the Special Court and has therefore, come to the conclusion that there does not appear to be any demand by the respondent-accused for any bribe money. 11. The Court may once again refer to the evidence of the complainant and there also it is only when this witness was intercepted on the road that the tainted money was pushed into his pocket, and therefore, there does not appear to be any independent evidence except for the evidence of the decoy punch about the information which had led to the laying down of trap by the investigating agency nor there appears to be any support to the case of the prosecution by the complainant regarding the demand of an additional amount of Rs.20/- towards the bribe money. 11.1 The court is of the view the Complainant not having supported the case of the prosecution and the version being diametrically opposite to that of the Punch witness examined, it would not be safe for the Special court to record the Conviction only on the evidence of the punch witness. 12. The case of the prosecution is also clearly impaired on account of non examination of the Investigating Officer during the course of the trial as the Investigating Officer is the only witness who could have indicated to the trial Court about the reason behind laying down of the trap. In absence of such evidence coming on record, there does not appear to be any foundation with the prosecution to undertake a trap. 13. The Court, therefore, would rely upon the decision of this Court of State of Gujarat v. Ramdevsinh Gambhirsinh Vala, 2022 (1) GLR 487 wherein, the Court was faced with an identical fact situation and this Court had held that the three ingredients to establish the case under the provisions of Prevention of Corruption Act have to be proved beyond reasonable doubt i.e. the ingredients of demand, acceptance and recovery of tainted money. In the discussion in the fact of the present case as indicated in the preceding para, there is no evidence of any demand from the complainant who has not supported the case of prosecution nor there is any evidence by the prosecution to the effect as to how the prosecuting agency came to know about the demand of any bribe money in respect of the vehicle passing through the octroi check post as the Investigating Officer himself has not been examined by the prosecution. The Court has also taken into consideration the reasoning given by the Special Court while recording the acquittal and do not find any reason to differ with the reasoning given specially with regards to the explanation of the entire amount of Rs.85/- which was received by the respondent-accused has been accounted for even by the documents placed on record by the prosecution itself. In that view of the matter, no case is made out for interference. 14. For the reasons recorded in the judgment dictated today, the Hon’ble Court has passed the following order. 15. In the result, the appeal fails and is dismissed. The judgment and order dated 13.10.2008 passed in Special Case No. 52 of 2001 by the court of learned Special Judge, (ACB) Court No. 4, Ahmedabad City, stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. Record & Proceedings be sent back to the concerned Trial Court, forthwith. 16. Record & Proceedings be send back.