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2023 DIGILAW 563 (GUJ)

STATE OF GUJARAT v. BABUBHA RAVJIBHAI VAGHELA

2023-04-06

A.Y.KOGJE

body2023
JUDGMENT : A.Y. KOGJE, J. 1. This appeal is preferred by the State under Section 378(1)(3) of the Code of Criminal Procedure against the judgment and order recording acquittal of respondent for the offense under Sections 7, 12, 13(1)(D) read with Section 13(2) of the Prevention of Corruption Act. The impugned order is dated 12.08.2005 by the Special Judge, Fast Track Court No. 1, Amreli in Sessions Case No. 42 of 1993. 2. It is a case where the respondent had allegedly demanded an amount of Rs. 50/- for issuing of ration card in favour of the complainant. The complainant had made an application for issuing of a new ration card separate from his parents and the application was given on 10.12.1991 and the complainant made inquiries on many occasions and ultimately on 27.03.1992, when the complainant inquired about the status of his ration card, it is alleged that the accused demanded an amount of Rs. 50/- for handing over the ration card. It is in this regard that the FIR was registered with the ACB Police Station and upon due investigation, charge-sheet came to be filed. 3. Learned Additional Public Prosecutor submitted that the prosecution had successfully proved all the three aspects demand, acceptance as well as the recovery and therefore, the error is committed by the Special Court in not accepting the evidence for all the three aspects and recording acquittal. It is submitted that the Special Court has committed an error in accepting the version of the defense to the extent that the complainant had to pay an amount of Rs. 2/- for the issuance of ration card, but when the complainant paid an amount of Rs. 50/- the accused was to return back, but before that the complainant made the pre-decided signal for the raid. Learned Additional Public Prosecutor further submitted that the prosecution was able to establish the circumstance which would lead to the conclusion that the trap was successful as the traces of anthracene powder was found on the hands of the accused and the same was duly recorded in the panchnana, which was established by examining the panch witness. It is submitted that such evidence could not be ignored by the trial Court. 4. It is submitted that such evidence could not be ignored by the trial Court. 4. As against this, learned advocate appearing for the respondent-accused has submitted that the Special Court has correctly recorded acquittal inasmuch as there was sufficient fallacy in the investigation itself as the version given by the complainant as well as the panch witness No. 1, if are read together, would indicate that their version are completely contradictory to each other. It is submitted that from the evidence of the complainant himself, the date on which the demand was made and the date on which the complainant had gone to the ACB Police for complaining, could not be ascertained and there are inconsistencies in this regard. 5. It is submitted that even the panchnama is highly doubtful in view of the inconsistent version between the complainant and the panch witlessness. It is submitted that the prosecution has also not proceeded in bona-fide manner as for the purpose of issuing of the ration card, an amount of Rs. 2/- was accepted and in this regard, receipt was issued. This was not included in the investigation though the receipt of Rs. 2/- has been now exhibited vide Exh.30. It is further submitted that though the version of the complainant is that upon payment of Rs. 50/- he had received the ration card from the respondent, still the prosecution has not brought on record the very ration card. It is submitted that if handing over the bribe had taken place, at the same time, obviously the traces of the anthrance powder would be transferred on the ration card, but the prosecution appears to have deliberately not taken the ration card as a part of the investigation. 6. In rejoinder, learned Additional Public Prosecutor has submitted that the traces found on the hands of the accused is sufficient to overlook the minor contradictions, whereas the trial Court has proceeded to given undue weightage to such contradictions and thereby recorded the acquittal. 7. The Court has heard learned advocates for the parties and perused the documents placed on record. In rejoinder, learned Additional Public Prosecutor has submitted that the traces found on the hands of the accused is sufficient to overlook the minor contradictions, whereas the trial Court has proceeded to given undue weightage to such contradictions and thereby recorded the acquittal. 7. The Court has heard learned advocates for the parties and perused the documents placed on record. According to the case of the prosecution and the charge was framed vide Exh.3, where, the complainant-Devchandbhai Chhaganbhai Bhadkan PW-1 had visited the Mamlardar Office for taking a new ration card and on 27.03.1992 upon demand of the card, the respondent who was working as Junior Clerk, therefore the public servant, demanded an amount of Rs. 50/- for issuing the ration card. The amount so demanded not being an amount which was receivable by the respondent in due course of his duty, the complainant made a complaint to the ACB. On the basis of which the raid was organized on 30.03.1992 and from the raid, allegedly the respondent had received the amount of Rs. 50/- and was caught red handed. 8. The complainant PW-1 Devchandbhai Chhaganbhai Bhadkan Exh.8, has deposed in evidence-in-chief that on the next day on which the respondent demanded money, the complainant went to the ACB Office and had given his complainant. The procedure was undertaken of receiving the currency notes and smeared the same with the anthracene powder and in the evidence-in-chief this witness has repeated his version as per his complaint and the panchnama. If the complainant had visited the Mamlatdar office is to be considered as 27.03.1992, then the complainant has approached the ACB office on the next day that should be on 28.03.1992. However, in the cross-examination, this witness has stated that on 27.03.1992, he has not visited the office of Mamlatdar and met the accused person for the purpose of receiving the ration card. He has also denied that he had visited the table of the accused for receiving the ration card. If this version is to be compared with Exh.9, which is the FIR registered on 30.03.1992 was with regard to this very sequence, the witness has stated that on 27.03.1992, he had gone to the complainant and demanded his ration card and upon his demand being made that the respondent allegedly asked for the bribe of Rs. If this version is to be compared with Exh.9, which is the FIR registered on 30.03.1992 was with regard to this very sequence, the witness has stated that on 27.03.1992, he had gone to the complainant and demanded his ration card and upon his demand being made that the respondent allegedly asked for the bribe of Rs. 50/- and also told this witness to come on Monday to receive the ration card after paying Rs. 50/-. At this stage, it would be pertinent to refer to the other documents which are on record namely Exh.23, which is indicating that on 27.03.1992, the respondent in the second half of the working day had proceeded for leave to enable him to get benefit of public holidays which were scheduled on 28/29.03.1992. This leave report was accepted and in the register maintained by the office which is at Exh.25, it is recorded that the respondent had proceeded on leave on half day and therefore, the version of the complainant about the visit and meeting the respondent in the evening of 27th is not believable. If the meeting of the complainant and the accused person on 27.03.1992 is doubtful then there is no question of believing this witness insofar as the fact of demand of bribe is concerned. 9. Insofar as the recovery of the tainted money is concerned, this witness has stated that after receiving the tainted money, the respondent had placed the same in the drawer and upon an arrival of the investigating officer alongwith the raiding party, when the respondent was confronted and upon asking the respondent to remove and show the tainted money, at that time, the tainted currency notes were placed on the table for further procedure. If this version is to be compared with the version given by the Panch No. 1-Ghanshyambhai Mohanbhai Pandya Exh.10, then the version coming out on record through this witness is again that when the Investigating Officer alongwith the team came to the table of the accused and when the Investigating Officer introduced himself and told the accused about him facing the criminal proceedings, at that time, the respondent removed the tainted notes from the drawer of the table and placed on the tray lying on the table. 10. 10. The panchnama drawn which is at Exh.11, the same sequence is coming, where it is recorded that after taking the tainted money, the accused had placed in the drawer and the moment he saw the raiding party, he removed the notes from the drawer and placed it on the tray lying on the table. Seizure Memo at Exh.12 indicates that the currency notes were seized from the tray which was lying on the table of the respondent. At this stage, it would be appropriate to refer to the defense taken even at the stage of recording statement under Section 313 of the Code of Criminal Procedure, wherein the defense was taken that the complainant had indeed given for the ration card to the office and was required to pay an amount of Rs. 2/- at that time, note of Rs. 20/- in folded condition was thrown on the table of the respondent and immediately the complainant went out of the office to make a sign to waiting raiding party. The trial Court was therefore, justified in holding that neither the demand nor the seizure of money was proved beyond reasonable doubt and the probability of the defense taken sounded more probable based on the same set of evidence. 11. The Court has taken into consideration that the trial Court has discussed in its judgment the contradictions and inconsistencies in the version of the witnesses. PW-1 Shri Devchandbhai Chhaganbhai Bhadakan stated in his deposition at Exh.8 in Examination-in-chief that “Waghelabhai (respondent) stated “collect your ration card and give money during the office time.” The said complainant stated that he went to respondent on 27.3.1992 on Friday in the evening. Next day to Friday is Saturday. According to Shri Parikh, this was a fourth Saturday therefore, there is public holiday in the offices of the State and on account of the public holiday. The complainant states in his deposition in examination-in-chief that “then, I went to the office of Anti Corruption Bureau at Amreli after respondent stated me.” This second day that is Saturday next day to Friday, on that day office of Mamlatdar remains closed. Further, the complainant stated in his deposition in cross-examination at Page No. 7 that, “I know what date means.” Therefore, second Saturday follows Friday the said fact may be in knowledge of the complainant. Further, the complainant stated in his deposition in cross-examination at Page No. 7 that, “I know what date means.” Therefore, second Saturday follows Friday the said fact may be in knowledge of the complainant. Moreover, the complainant stated in his deposition in cross-examination at page No. 7 that the complainant reached at the office of Anti Corruption Bureau at 9:00 O’clock in the morning for booking a complaint.” Whereas witness No. 3 Lamp Operator Shri Dhone states in deposition of Exh.16 in examination-in-chief that the complainant came at the office of A.C.B. at 10:15 hours. 12. Panch No. 1 is examined as witness No. 2. He states, in his deposition, Exh.10, page No. 5, Para No. 3, that spots of Anthracine powder have been seen on the fingers of both hands and raised part of the palm of the Panch No. 2 and fingers of both hands and raised part of palm of the complainant and on the right side pocket of the pants of the complainant. Whereas complainant states in his deposition, Exh.8 in examination-in-chief at Page No. 4 that “as experiment of lamp was carried out on my hand, marks of Anthracene powder were seen on my right hand, then carried out experiment of lamp on the hand of respondent, marks of Anthracene was seen on his hand also. The complainant has no idea as to whether hands of other persons were seen under the light of lamp at that time.” Thus, spots of Anthracene powder are found on fingers of both hands and raised part of palm of the witness No. 2 i.e. Panch No. 1 Ghanshyambhai, complainant, accused and Panch No. 2. Whereas the complainant states that marks of the powder were seen only on his right hand and does not clarify as to on which hand of the accused, marks of powder were seen. Moreover, as experiment of the lamp was carried out on the right pocket of the pants of the complainant and as marks of powder were seen on it, no such fact has been stated. Thus, contradiction are seen on important issues in deposition of the complainant, Panch No. 1 Ghnanshyambhai. 13. Moreover, as experiment of the lamp was carried out on the right pocket of the pants of the complainant and as marks of powder were seen on it, no such fact has been stated. Thus, contradiction are seen on important issues in deposition of the complainant, Panch No. 1 Ghnanshyambhai. 13. It has been stated in the seizure memo of Exh.12 that notes of Muddamal has been seized from tray lying on the table of the accused whereas the complainant states in his deposition, Exh.8 in Cross-examination, page No. 9, para-11 that, “when he reached at the table of the accused with Simpi Saheb, the money was in the drawer of the table of the accused. It is not true that when he reached at the accused with Saheb, the notes of Muddamal were lying in the tray on the table of the accused.” Moreover, the Panch No. 1 Shri Ghanshyambhai states in his deposition, Exh.10, on Para No. 6 at Para-5 in cross-examination that “.......notes were seized before Panchas from the tray lying on the table of respondent, thus, mention is made accordingly in the seizure memo, however, he is not aware of the said fact that the tray which was lying was the tray lying on the table lying in the chamber of Deputy Mamlatdar (Supply).” Moreover, it has been stated in Exh.11, Panchnama at Page No. 7 that different registers, ration cards and miscellaneous files were lying on the table. No mention is made in Panchnama that a tray was lying on the table. Considering the facts, whether any tray was lying on the table or not and whether notes of Muddamal were indeed seized from the tray or not, these facts become doubtful. 14. The complainant states in his deposition Exh.8 in examination-in chief that “....on giving Rs. 50/- in hand of respondent, respondent accepted the said amount and placed it in the drawer of the table and then respondent gave him ration card.” In fact, if it is so, there must be presence of Anthracene powder on the ration card also. And if it is so then the A.C.B. officer must have seized the ration card also but ration card is not seized. And if it is so then the A.C.B. officer must have seized the ration card also but ration card is not seized. Therefore, it can be said that there is specific need of an independent evidence for the said fact of the complainant but there is absence of the independent evidence in the said case. Moreover, Panch No. 1 Shri Ghanshyambhai states in his deposition Exh.10 in examination-in-chief at page No. 4 that “......respondent accepted Rs. 50/- before giving ration card to the complainant.....” The complaint states in his deposition in examination-in-chief at page No. 4 that “respondent accepted the said amount and placed in the drawer of the table by his hand.” that means according to the complainant, accused accepted amount of bribe and counted it. Such fact is not clearly supported by the evidence of prosecution. The complaint states in his deposition in examination-in-chief at page No. 4 that, “(respondent) accepted the said amount and placed in the drawer of the table by his hand.” that means according to the complainant, accused accepted amount of bribe and counted it. Such fact is not clearly supported by the evidence of prosecution. 15. The Court has also taken into consideration a very vital lapse on the part of the prosecution, where the complainant himself has deposed that upon allegedly paying the bribe money, the ration card was handed over to the complainant however the entire record of the investigation does not indicate that such ration card is part of the case papers. This vital lapse amounts more prominence as the exchange of bribe money and the ration card had taken placed at the same time obviously the traces of the anthracene powder would be transferred on the ration card and in absence of ration card on record, which was the main issue for which the bribe was demanded, in the opinion of the Court, the prosecution has failed to make out an important aspect to establish the offense of demand for specific performance for which the respondent was discharging his duty as a junior clerk. 16. 16. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad vs. State of Bihar and Another, (2022) 3 SCC 471 , wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 , the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court. 17. Considering the overall evidence of prosecution and the reasons assigned by the Sessions Court in rejecting such evidence, the Court does not find any reason to interfere with the impugned judgment and order. 18. In the result, the appeal fails and is dismissed. The judgment and order dated 12.08.2005 by the Special Judge, Fast Track Court No. 1, Amreli in Sessions Case No. 42 of 1993 stands confirmed stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R&P be sent back to the concerned Trial Court, forthwith.