Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 805 (GUJ)

State Of Gujarat v. Chandubhai Veragibhai Patel

2023-07-06

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 11.06.2010 passed by the learned Special Judge, Surat in Special (A.C.B.) Case No.1 of 1999 whereby the learned Special Judge has acquitted the respondents – 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 At the relevant point of time, the respondents – accused were discharging their duty as Surveyors with the office of the Mahanagarpalika, Surat. That the complainant is residing on the ground floor i.e. at House No.321, Girnar Society, Nana Varachha, Surat and his brother is residing on the first floor and they have separated their house between them for which necessary application came to be filed for mutating entry in the revenue record. In pursuance of the same, the complainant had given an application dated 07.03.1998 for mutating their names in the record. However, accused demanded an amount of Rs.1,000/- from the complainant for changing their names, but the accused decided to pay Rs.400/-. As the complainant was not willing to pay any amount as bribe to the accused, he immediately went to A.C.B Police Station, Surat and lodged complaint. 2.2 That during the course of conversation, the accused demanded illegal gratification and the accused were caught red- handed accepting bribe amount in presence of the panchas. 2.3 On the basis of the said complaint, the offence being C.R.No.7 of 1998 came to be registered with A.C.B. Police Station, Surat for the offence under Sections 7, 12, 13(1)(d) and 13(2) of the Act. 2.3 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 they have 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 were recorded by the Trial Court wherein the accused has denied having demand or acceptance any amount and pleaded that they are innocent. 3. 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 were recorded by the Trial Court wherein the accused has denied having demand or acceptance any amount and pleaded that they are 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 them. 4. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred the present appeal. 5. Heard Ms.M. D. Mehta, learned Additional Public Prosecutor for the appellant – State of Gujarat and Mr.Hardik Dave, learned advocate with Mr.B. K. Oza, learned advocate for the respondents 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, Ms.Mehta, learned Additional Public Prosecutor for the appellant – State of Gujarat has vehemently submitted that in the present case, there is cogent evidence regarding demand by accused and have accepted the amount. She has submitted that though the trapping officer, panch witnesses and the complainant have duly supported the version of the prosecution regarding demand and acceptance of the amount by accused, the learned Special Judge has disbelieved the case of the prosecution on the ground that the ingredients of Sections 7 and 13 of the Act is not satisfied and no specific demand made by the accused persons with regard to the illegal gratification. She has submitted that though the prosecution has led the sufficient evidence and proved the case with regard to illegal gratification and acceptance by the accused persons beyond reasonable doubt, the learned Special Judge has failed to appreciate the evidence in its true and proper spirit. She has submitted that the learned Special Judge has ought to have believed that mere acceptance of illegal gratification, which is recovered from accused no.1 is attracted the provisions of Sections 7 and 13(1)(d) and 13(2) of the Act. She has submitted that though there is sufficient evidence produced by the prosecution, the learned Special Judge has not considered the same in proper manner and, therefore, the learned Special Judge has committed an error by overlooking to the evidence while passing the impugned judgment and order of acquittal. She has submitted that though there is sufficient evidence produced by the prosecution, the learned Special Judge has not considered the same in proper manner and, therefore, the learned Special Judge has committed an error by overlooking to the evidence while passing the impugned judgment and order of acquittal. She has submitted that the learned Special Judge has not properly appreciated the fact that the accused have not sufficiently explained in their statements recorded under Section 313 of the Cr.P.C. and they have not taken specific defence under Section 20(2) of the Act. In addition to that, learned APP has referred and relied upon the evidence of P.W.1, P.W.2 and P.W.3 and submitted that these witnesses are not properly interpreted by the learned Special Judge. She 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 they have accepted the amount of bribe from the complainant. She has submitted that the amount was found from the accused and the same was recovered at the instance of accused and it ought to have believed by the learned Special Judge. According to her, all the 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.Dave, learned advocate with Mr.Oza, learned advocate for the respondents 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 their 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 witnesses, there is material contradictions regarding main ingredients of demand and acceptance. He has submitted that even 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. He has submitted that even 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. He has submitted that while considering evidence led by the prosecution, the learned Special Judge has observed in paragraphs no.14 and 15 that so-called demand was raised by the another accused with whom the complainant discussed about the work and for the work he has to pay certain amount but that fact was not within the knowledge of accused no.1 and the complainant has given the illegal gratification to accused no.1. He has submitted that learned Special Judge has observed in paragraph no.16 that there was no demand with regard to the illegal gratification on the part of the accused. He has referred and relied upon Sections 7 and 13 of the Act and has submitted that the prosecution has failed to establish the case against the accused beyond reasonable doubt. According to him, the learned Special Judge has properly appreciated the evidence and has rightly acquitted the accused from the charges levelled against them. He has submitted that the impugned judgment and order of the learned Special Judge 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. 8. Sections 7 and 13 of the Act read thus:- “7. Public servant taking gratification other than legal remuneration in respect of an official act. He has prayed to dismiss the present appeal. 8. Sections 7 and 13 of the Act read thus:- “7. Public servant taking gratification other than legal remuneration in respect of an official act. — Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. Explanation — (a) “Expecting to be a public servant”. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) “Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) “Legal remuneration”. The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other. 13. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other. 13. Criminal misconduct by a public servant.— (1) A public servant is said to commit the offence of criminal misconduct, — (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d) if he - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.—For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.” 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. 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. 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. 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 respondents – 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. As the case putforth by the prosecution that the complainant who is having residential property along with his brothers and they wanted to partition the same and, therefore, he gave an application for partition of the property between him and his brothers so that their names can be entered in the city survey record as owners of the property. Thereafter, three or four times, they have visited the concerned department of the municipality and met the concerned officer requesting him with regard to entry which is to be mutated in the city survey record. It is the case of the prosecution that on earlier occasion, the complainant met with accused no.2 with whom he discussed about the partition of the property and entry to that effect be made in the city survey record. It is also the case of the prosecution that for such work, accused no.2 has demanded illegal gratification and, therefore, the complainant decided to lodge the complaint for demand of illegal gratification before the concerned ACB Police Station and on the basis of the complaint, the trapping officer has arranged the trap. It is also further the case of the prosecution that on the day of the trap, the concerned officer has not found accused no.2 and, therefore, he met accused no.1 with whom, earlier he had not discussed with regard to the illegal gratification. It is also further the case of the prosecution that on the day of the trap, the concerned officer has not found accused no.2 and, therefore, he met accused no.1 with whom, earlier he had not discussed with regard to the illegal gratification. That since accused no.2 was not present, accused no.1 received the said amount on behalf of accused no.2 and therefore the trap was arranged and he was found with tainted currency note and therefore the case was registered against accused no.1 and 2 which fact itself is not satisfied the ingredients of Sections 7 and 13(1)(d) and 13(2) of the Act. Even otherwise, considering the ratio laid down by the Hon’ble Supreme Court as well as this Court in the case of A. Subair Vs. State of Kerala, reported in (2009) 6 SCC 587 , State of Kerala and another Vs. C. P. Rao, reported in (2011) 6 SCC 450 , Neeraj Datta Vs. State (Govt. of N.C.T. of Delhi) reported in AIR 2023 SC 330 and State of Gujarat Vs. Ratilal Hirji Jobanputra reported in 2023 LawSuit (Guj.) 783, this Court is of the opinion that the present appeal being meritless deserves to be dismissed. 14. 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. 15. 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 11.06.2010 passed by the learned Special Judge, Surat in Special (A.C.B.) Case No.1 of 1999 is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.