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2023 DIGILAW 780 (GUJ)

State Of Gujarat v. Kanchan Dahyabhai Solanki

2023-07-03

HEMANT M.PRACHCHHAK

body2023
JUDGMENT : 1. The appellant – State of Gujarat has preferred the present appeal under Section 378(1)(2) of Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 13.06.2006 passed by the learned Special Judge and Fast Track Judge, Court No.1, Dahod (hereinafter be referred to as “the Trial Court”) in Special Case No.2 of 2004 whereby the Trial Court has acquitted the respondent – original accused for the offence punishable under Sections 7, 13(1)(d) and 13(2) etc of the Prevention of Corruption Act, 1988 (hereafter be referred to as “the Act”). 2. Brief facts giving rise to the present appeal are as under:- 2.1 In the month of January 1999, present accused was serving in the office of D.S.P, Dahod as a junior clerk and the complainant Madhusinh Mohansinh was serving as a head constable in the Dahod District under the control of D.S.P, Dahod and as he wanted to retire voluntarily from his service, he had preferred an application to the Director General of Police, Gujarat State, and accordingly his application was accepted and he was relieved from his service from effective date 30.04.1998. Further it is the case of the complainant that though he has to get all benefits of his service like pension, gratuity, and insurance amount etc., he went to D.S.P. Office, Dahod for the grant of pension after one month of his retirement and met junior clerk Shri Kanchanbhai in D.S.P. Office on his table. On his inquiry, the clerk Shri K. D. Solanki (accused) told him that “if he wanted to prepare pension papers quickly then he has to pay Rs.200/- to him. At that time, the complainant paid Rs.200/ to K. D. Solanki, so the accused told him that now, the pension papers would be prepared within short time and thereafter again on 11.12.1998, the complainant met the accused in the D.S.P. Office and inquired about his pension papers. The accused told him that he has committed mistake in demanding only Rs.200/- for such type of big work and he told that for said work Rs.1000/- is required to be paid to him. It is alleged that the complainant told him that till he has not received a single rupee of pension so he will pay amount when he will get pension amount. It is alleged that the complainant told him that till he has not received a single rupee of pension so he will pay amount when he will get pension amount. Thereafter, the accused told the complainant that he will do his work, but he has to pay total Rs.1000/- including Rs.200/- given to him. Further, the accused told the complainant that next time when he called him he has to come in the office with the amount as demanded and thereupon, the complainant gave his telephone no. 20154 to the accused. Thereafter on 04.01.1999 in the Noon, the complainant received telephone of accused and he told him to come at the D.S.P. Office, Dahod on Tuesday with Rs.200/- and, therefore, again the complainant told the accused that till he has not received any amount of pension and accused told that if he wanted then he can pay Rs.100/ instead of Rs.200/ and remaining amount of Rs.700/ after he will receive pension amount. 2.2 As the complainant was not willing to pay any more amount as bribe to the accused, he immediately rushed to A.C.B Police Station, Godhara on 05.01.1999 and lodged the complaint before the Police Inspector, A.C.B. Police Station. On the basis of the said complaint, P.I. Mr.V. M. Paragi arranged the trap and accordingly, called two panchas from the office of District panchayat, Godhara and the panchas were posted with the said complaint and instructed to accompany him, accordingly both the panch witnesses shown their willingness to be panch witness in trap. Thereafter as per instruction given by P.I., the complainant produced one currency note of Rs.100/- the number of which was noted down in the panchnama. Thereafter usual anthrecene powder test prior to the smearing it with currency note and thereafter applying the same ultimately it placed in the left hand side pocket of bush-shirt of the complainant, which was put by Head Constable Andarsinh. Thereafter P.I. firstly instructed the complainant that till the amount of bribe is demanded, he should not touch the currency note kept in his pocket and he should go in D.S.P. Office with the panch no.1 and should meet and talk with the accused about his pension papers and gratuity papers etc. Thereafter P.I. firstly instructed the complainant that till the amount of bribe is demanded, he should not touch the currency note kept in his pocket and he should go in D.S.P. Office with the panch no.1 and should meet and talk with the accused about his pension papers and gratuity papers etc. and on demand made by the accused, he should give currency note from his pocket and on acceptance of bribe amount, he should give signal by holding both the hands upside and secondly panch no.1 was instructed that on reaching at D.S.P. Office, he should go with the complainant in D.S.P. Office and to hear and to see transaction between the complainant and accused. The first part of the panchnama was completed in A.C.B. Police Station which was signed by both the panch witnesses and P.I. 2.3 The panchas and the complainant along with staff members of A.C.B proceeded ahead towards Dahod. On reaching near D.S.P. Office, Dahod at about 12.15 p.m., the complainant and panch no.1 got down from the jeep and reached to D.S.P. Office. On reaching D.S.P. Office, the complainant told the panch no.1 to wait near tea stall in the compound of D.S.P. Office and the complainant alone went in the office. Thereafter, the complainant came out side the office with the accused and reached where panch no.1 was standing near tea stall. In the presence of the panch no.1, the complainant told the accused to do his work regarding pension papers and provident fund and at that time accused told him that whether he has brought G.P. slip and Rs.100/- as demanded by him in past? Thereupon, the complainant replied that he has brought G.P. slip and Rs.100/- as demanded by him. So the accused demanded the amount and G.P. slip from the complainant. Thereafter, on demand made by the accused, the complainant gave G.P. slip and note of Rs.100/- to accused with the help of his left hand from his left hand side pocket, which note was accepted by the accused by his left hand and he put the said note in his left pocket of pant. At that time, the complainant gave signal and hence, immediately, all the members of raiding party went there and P.I. asked the name of the person accepted the bribe. At that time, the complainant gave signal and hence, immediately, all the members of raiding party went there and P.I. asked the name of the person accepted the bribe. It was not possible to carry out ultra-violate lamp test in the open place where bribe was accepted and, hence the ultra violate lamp test was carried out in rest house. Accordingly, all persons including accused came in jeep at Dahod Rest House in Room no.7 and thereafter, again ultra-violate lamp test was carried out in Room No.7. The currency note, which was accepted by the accused and kept in his pocket, was brought out with the help of panch no.2. As per Panchnama, presence of anthrecene powder was found on currency note, which was recovered from the accused in presence of panch witnesses. Presence of anthrecene powder was also found on the tips of fingers of left hand of the accused. The presence of anthrecene powder was also found on the pocket of pant of the accused and the anthrecene powder was also found on tips of fingers of both the hands of panch no.2. All those muddamal were recovered in the presence of raiding party members. Further procedure regarding search of anthrecene powder on the hands of complainant, panch no.1, panch no.2 and accused and on the currency notes was conducted and the accused, after making second part of the panchnama, came to be arrested and second part of the panchnama was prepared. 2.4 After completion of investigation, the charge-sheet was led before the Special Court and the learned Special Judge has framed the charge against the accused wherein he has denied having committed any offence and pleaded for trial. Accordingly, the trial took place wherein the prosecution has examined four witnesses and produced certain documentary evidence. Thereafter, further statements of the accused under Section 313 of the Criminal Procedure Code was recorded by the Trial Court wherein the accused has denied having demanded or accepted any amount and pleaded that he is innocent. 3. After completion of the trial and having heard both the sides, the Trial Court has acquitted the accused from the charges levelled against him. 4. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred the present appeal. 5. 3. After completion of the trial and having heard both the sides, the Trial Court has acquitted the accused from the charges levelled against him. 4. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred the present appeal. 5. Heard Mr.Tirthraj Pandya, learned Additional Public Prosecutor for the appellant – State of Gujarat and Mr.Y. M. Thakkar, learned advocate for the respondent at length. Perused the evidence on record as well as impugned judgment and order of the Trial Court. 6. While referring to the evidence on record, Mr.Pandya, learned Additional Public Prosecutor for the appellant – State of Gujarat has vehemently submitted that in the present case, there is cogent evidence regarding demand and acceptance of the amount. He has submitted that the panch witnesses and the complainant have duly supported the version of the prosecution regarding demand and acceptance of the amount by accused. He has submitted that the experiment of ultra violate lamp was carried out on the hands of accused and it shows positive result and, therefore, it should be presumed that he has accepted the amount of bribe from the complainant. He has submitted that the amount was found from the pant pocket and the same was recovered at the instance of accused. It is submitted that the police witness has also supported the version of the prosecution. He has submitted that the Trial Court has failed to prove the fact that the accused has demanded Rs.1000/- and accepted Rs.100/- as illegal gratification other than legal remuneration and has committed an offence under the provisions of the Act. According to him, all three ingredients of offences viz. demand, acceptance and recovery of the amount are proved beyond reasonable doubt and, therefore, the Trial Court ought to have convicted the accused and punished him for the said offences. He has prayed to allow the present appeal and to quash and set aside the impugned judgment and order of acquittal. 7. Per contra, Mr.Y. M. Thakkar, learned advocate for the respondent has vehemently submitted that there is no clear cut evidence on record to connect accused with the alleged offence of bribe, especially, there is lacking of demand and acceptance on his part and on experiment of ultra violate lamp, no positive sign of anthrecene powder was found on the hands of the accused. He has submitted that the entire version of the prosecution is not believable and from the evidence of the complainant and panch witness, there is material contradictions regarding main ingredients of demand and acceptance. He has submitted that even the recovery of the currency notes are also not recovered from the accused. He has submitted that there is lacking of demand, acceptance and recovery at the instance of the accused. According to him, the Trial Court has properly appreciated the evidence and has rightly acquitted the accused from the charges levelled against him. He has submitted that the impugned judgment and order of the Trial Court is perfect one and there is no perversity and the same is required to be confirmed by this Court. He has prayed to dismiss the present appeal. Mr.Thakkar, learned advocate for the respondent – accused has relied upon the decision of the Madras High Court in the case of R. Rajendra Vs. DSP Vigilance and Anticorruption, Madras rendered in Criminal Appeal No.663 of 1993 dated 21.06.1996 and the decision of the Hon’ble Supreme Court in the case of B. Jayaraj Vs. State of Andhra Pradesh reported in (2014) 13 SCC 55 . 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. 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. 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 of State of Kerala and another Vs. 11. 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. 12. It is worthwhile to refer to the decision of the Hon’ble Supreme Court in the case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 . The relevant paragraph of the decision of the Hon’ble Supreme Court in the case of Chandrappa (supra) reads as under:- “The following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence 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. (5) 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.” 13. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) 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.” 13. It is also worthwhile to refer to the decision of the Hon’ble Apex Court in the case of Neeraj Datta Vs. State (Govt. of N.C.T. of Delhi) reported in AIR 2023 SC 330 , wherein the Hon’ble Apex Court has held and observed in paragraph no. 68 as under:- “68. What emerges from the aforesaid discussion is summarised as under: (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.” 14. In the case of Neeraj Datta Vs. State (Govt. of N.C.T. of Delhi) reported in AIR 2023 SC 330 , the Hon’ble Supreme Court has held and observed in paragraphs 16, 17 and 18 as under : “16. Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt. 17. Section 7, as existed prior to 26th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case, specifically refers to “any gratification”. Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt. 17. Section 7, as existed prior to 26th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case, specifically refers to “any gratification”. The substituted Section 7 does not use the word “gratification”, but it uses a wider term “undue advantage”. When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of sub-section (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (i) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence. 18. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. 18. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand.” 15. At this stage, it would be appropriate to refer to the decision of this Court in case of State of Gujarat Vs. Ratilal Hirji Jobanputra reported in 2023 LawSuit (Guj.) 783, wherein, the Co-ordinate Bench of this Court in the similar situation and identical facts, while dismissing the appeal filed by the State has observed in paragraphs 14 and 15 as under : “14. Therefore, on overall analysis of the aforesaid evidence on record, once the complainant himself in his deposition had denied to identify the respondent and not supported the case of the prosecution, which is being further supported by the independent panch witnesses, prosecution failed in proving their case in relation to demand. The sole reliance placed by the appellant on deposition of PW-5, who was Investigating Officer, remains no evidence as to demand on record and the same loses its evidential value as regards the demand and acceptance, as alleged. The evidence of investigating officer also become meaningless as from the evidence of independent panch witnesses, nothing concrete is revealed that the respondent ever demanded any amount of illegal gratification from the complainant. 15. The evidence of investigating officer also become meaningless as from the evidence of independent panch witnesses, nothing concrete is revealed that the respondent ever demanded any amount of illegal gratification from the complainant. 15. In view of the aforesaid nature of evidence, learned trial Court has rightly recorded the finding of acquittal thereby rightly acquitted the accused, which does not call for any interference of this Court. Even otherwise also, the case is covered by the decision of K. Shanthamma v. State of Telangana (supra) and on that count also, there appears no merit in the appeal. This Court finds that the findings recorded by the trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal.” 16. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable or cogent evidence beyond reasonable doubt as has been submitted by learned Additional Public Prosecutor, to convict the accused. 17. On perusal of the evidence of P.W. 1 – Madhusinh Mohansinh Jadav at Exhibit 28, it appears that in his cross- examination, he has admitted that on 8.12.1998, D.S.P., Dahod shown his file to him so he came to know that his pension papers sent to the office of Director, Pension and Provident Fund. He has admitted that D.S.P., Dahod had stated that all pension papers sent to the office of the Director, Pension and Provident Fund so it was not necessary for him to go D.S.P. Office at Dhod, thereafter, for the work of his pension papers. He has further admitted that on reaching D.S.P. Office, he told panch no.1 to stand near tea stall and he alone went inside the office. He has further admitted that on reaching D.S.P. Office, he told panch no.1 to stand near tea stall and he alone went inside the office. On perusal of the evidence of P.W.2 Rupsing Shanabhai at Exhibit 31, it appears that this witness has thoroughly cross-examined but he has not supported the case of prosecution. On perusal of the evidence of P.W.4 Dalsukhbhai M. Paragi at Exhibit 35, it appears that during his cross-examination, he has admitted that it was stated by the complainant to him that the accused has demanded bribe amount for preparing the pension papers and bill. P.W.4 has deposed and narrated each sentences of the complaint in his chief examination but it reveals from his deposition that he has not seen accused demanding or accepting the bribe amount from the complainant. These witnesses have admitted that neither incident of demand of bribe has been happened nor an amount has been paid. Thus, the evidence of these witnesses is not helpful to the prosecution. 18. On considering the legal proposition of law coupled with the factual aspects of the case, it appears that except the members of raiding party and the complainant, no independent witnesses has supported the case of the prosecution. Of course, a fact is proved that the marked currency note was recovered from the accused, but at the same time, on considering the entire evidence, it reveals that the person who said to have given the amount to the accused i.e. complainant, his evidence is not reliable. From the evidence of the independent witness, it appears that there is no reliable evidence of demand and acceptance of the bribe. For drawing such presumption, there must be some sort of evidence to show that the accused had demanded and accepted the amount. However, in this case, there is no such reliable evidence on record and, therefore, the presumption can be raised against the accused. That as per the raiding party, recovery of the amount is proved but the material ingredient i.e. demand and acceptance is not proved, under such circumstances, no presumption can be raised against the accused. 19. I have perused the relevant materials available on record and the evidence led by the prosecution and the arguments advanced by the learned Additional Public Prosecutor for the appellant – State and the learned advocate for the respondent – accused. 19. I have perused the relevant materials available on record and the evidence led by the prosecution and the arguments advanced by the learned Additional Public Prosecutor for the appellant – State and the learned advocate for the respondent – accused. I have also gone through the record and proceedings of the case and the impugned judgment and order of acquittal passed by the Trial Court. 20. On perusal of the impugned judgment and order of the Trial Court, it clearly transpires that the Trial Court has taken into consideration all the facts while acquitting the accused. It also appears from the impugned judgment and order that the Trial Court has appreciated the entire evidence in its true perspective and has come to the right conclusion in acquitting the accused. The impugned judgment and order of the Trial Court is not perverse one and it is based on the evidence on record. The same does not warrant any interference at the hands of this Court and the same is sustainable in the eyes of law. This Court is in complete agreement with the impugned judgment and order of the learned Special Judge. 21. For the foregoing reasons, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order dated 13.06.2006 passed by the learned Special Judge and Fast Track Judge, Court No.1, Dahod in Special Case No.2 of 2004 is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.