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2023 DIGILAW 887 (GUJ)

State of Gujarat v. Sureshgar Revagar Goswami

2023-07-20

HEMANT M.PRACHCHHAK

body2023
JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. The appellant-State of Gujarat has preferred the present Appeal under Section 378 of Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 18.10.2006 passed by the learned Special Judge, Fast Track Court No. 2, Valsad (hereinafter referred to as the “Trial Court”) in Special A.C.B. Case No. 07 of 2005, whereby the respondent-original accused was acquitted from the charges levelled against him under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. 2. The facts in brief giving rise to the filing of present Appeal are as under: 2.1 The complainant is doing business of carpenter work in Vapi since last 25 years in the name and style of “Navin Furniture Works.” On 07.03.2005, at about 12:30 p.m. when the complainant was sitting in his shop, the respondent-accused came and told him that he is coming from Sales Tax Department, Vapi and his name is Goswami. Thereafter, the respondent-accused told that since he is doing business of furniture, he has not taken Sales Tax Number. Hence, the complainant told that he is not selling any items but he is making furniture as per order. Thereafter, the respondent- accused opened the drawer and checked the papers and told that the complainant has to pay Sales Tax of big amount and respondent-accused went away from the place stating that after calculation, he will sent notice to pay the Sales Tax, minimum of Rs.2 Lakh. Hence, the complainant has requested the respondent-accused that he is small businessman and he cannot pay huge amount of Sales Tax, for which, he has to sell his shop and also requested for reasonable offer and give Sales Tax number. At that time, the respondent-accused told that if the complainant wanted to complete all the formalities then, he has to give Rs.40,000/-. The complainant requested that he could not arrange the said amount. Hence, the respondent-accused told him that if he could not arrange money then, he has to pay the amount in two installments each of Rs.20,000/-. Since the complainant has not ready and willing to give money to the respondent-accused, he went to A.C.B. Police Station, Valsad and lodged the complaint against the respondent-accused. Thereafter, necessary procedure was carried out by A.C.B. Valsad and currency notes pouring with phenolphthalein powder were put in the pocket of the complainant. Since the complainant has not ready and willing to give money to the respondent-accused, he went to A.C.B. Police Station, Valsad and lodged the complaint against the respondent-accused. Thereafter, necessary procedure was carried out by A.C.B. Valsad and currency notes pouring with phenolphthalein powder were put in the pocket of the complainant. Thereafter, the trap was arranged and the A.C.B. Staff, the complainant and two panchas proceeded towards the Sales Tax Office and caught the respondent accused with marked currency notes, which were given by the complainant to the respondent-accused. Thus, the accused committed breach of offence punishable under Section 7, 13(1)(d) and 13(2) of Prevention of Corruption Act. 2.2 On the basis of the FIR registered against the accused person, the investigation was carried out by the Investigating Officer and after having sufficient material and evidence on record, the Investigating Officer has filed charge-sheet against the accused person and submitted the same before the concerned Court and the same is registered as Special A.C.B. Case No. 7 of 2005. 2.3 Thereafter, after verifying whether the accused was given all the necessary police papers or not, the learned Special Judge framed charges against the accused to which the plea of the accused was recorded, wherein he denied his involvement in the offence. 3. To prove its case, the prosecution has examined following four witnesses: S. No. Witness Exhibit No. 1. Complainant - Shivnandan Ramdev Sharma 11 2. Witness - Somabhai Dhanabhai Ahir 14 3. Witness - Nareshchandra Bhikhabhai Koralwala 21 4. Witness - Rajghar Dolatrao Marathe 22 4. The prosecution has also produced following documentary evidence: S. No. Documentary Evidence Exhibit No. 1. Complaint 12 2. Panchnama 15 3. Panchnama 23 4. Letter 26 5. Xerox copy of pages of service book 27 6. Transfer order 28 7. Order 29 8. Xerox copy of Attendance Sheet 30 9. Noting of Muddamal in F.S.L. 32 10. F.S.L. Report 33, 34 11. Note 35 5. The learned Special Judge, Fast Track Court No. 2, Valsad, after hearing both the parties vide his judgment and order dated 18.10.2006 passed in Special A.C.B. Case No. 07 of 2005 has acquitted the accused person of the offences with which he was charged. 6. Noting of Muddamal in F.S.L. 32 10. F.S.L. Report 33, 34 11. Note 35 5. The learned Special Judge, Fast Track Court No. 2, Valsad, after hearing both the parties vide his judgment and order dated 18.10.2006 passed in Special A.C.B. Case No. 07 of 2005 has acquitted the accused person of the offences with which he was charged. 6. Being aggrieved and dissatisfied with the aforesaid judgment and order dated 18.10.2006 passed by learned Special Judge, Fast Track Court No. 2, Valsad in Special A.C.B. Case No. 7 of 2005, the State of Gujarat has filed present Appeal. 7. Heard Ms. Maithili Mehta, learned Additional Public Prosecutor for the appellant-State of Gujarat and Mr. Bharat K. Dave, learned Counsel for the respondent-accused. 8. While referring to the evidence on record, Ms. Maithili Mehta, learned Additional Public Prosecutor for the appellant-State of Gujarat has vehemently submitted that in present case, the demand and acceptance are proved beyond reasonable doubt by the prosecution and therefore, learned Special Judge has committed an error by disbelieving the evidence in its true and proper spirit, while passing the impugned judgment and order and acquitting the accused respondent from the charges levelled against him. She further contended that in present case, being a Senior Officer of the Sales Tax Department, the respondent-accused has demanded illegal gratification to the tune of Rs.40,000/- out of which he has accepted Rs.20,000/- as first installment and while he was accepting the said amount in his office, he caught red handed by the trapping officer in presence of the panchas and other persons of the office of the Sales Tax Department, Vapi. She further submitted that the panchas have fully supported the case of the prosecution and therefore, discarding the evidence of the panch witnesses by the learned Special Judge is erroneous and against the settled legal principles. She further submitted that of course, the evidence of the panchas is for the purpose of corroboration and for proving the case against the accused person, however the learned Special Judge ought to have appreciated this fact in its true and proper spirit, but the learned Special Judge has disbelieved the case against the accused respondent while passing the impugned judgment and order of acquittal. She submitted that in view of the above, the impugned judgment and order of acquittal deserves to be quashed and set aside and present Appeal may be allowed by convicting the respondent accused for the offence of demanding illegal gratification under the provisions of Prevention of Corruption Act. 9. On the other hand, Mr. Bharat K. Dave, learned Counsel appearing for the respondent-accused has submitted that after considering the evidence led by the prosecution, learned Special Judge has rightly discarded the evidence of the witnesses and has rightly recorded the findings in paragraph No. 19 onward that the prosecution has not proved the case beyond reasonable doubt against present respondent accused. He has submitted that the learned Special Judge has rightly passed the impugned judgment and order of acquittal against present respondent-accused and thus, no interference is required to be called for in present Appeal. He has further submitted that in the present case, there is serious discrepancy in the procedure adopted by the Investigating Officer while recording the FIR till the investigation. He has submitted that even the procedure of drawing first part of panchnama, as provided under the provisions of Prevention of Corruption Act, is not properly followed by the Investigating Officer and therefore, learned Special Judge has rightly given benefit in favour of the respondent original accused. He has further submitted that in present case, even in the preliminary panchnama there was no mention with regard to which are the currency notes, what is the serial number of the currency notes, what scientific examination or scientific experiment carried out on the said currency notes by pouring the phenolphthalein powder. He has further submitted that in present case, the very Investigating Officer himself has carried out investigation from registering the FIR till the investigation and therefore, the learned Special Judge has rightly passed the impugned judgment and order of acquittal in favour of the accused and there is no any illegality or perversity in the impugned judgment and order of acquittal. Mr. Dave, learned Counsel for the respondent has placed reliance on the decision of this Court in case of Kanubhai Kantibhai Patel vs. State of Gujarat, 1998 (1) GLH 924 . Mr. Dave, learned Counsel for the respondent accused urges before the Court that present Appeal may not be entertained. 10. I have perused the relevant materials available on record and evidence led by the prosecution. Mr. Dave, learned Counsel for the respondent accused urges before the Court that present Appeal may not be entertained. 10. I have perused the relevant materials available on record and evidence led by the prosecution. I have also gone through the original records and proceedings of the Appeal as well as impugned judgment and order passed by the learned Special Judge. 11. It is pertinent to note herein that present Criminal Appeal is against the order of acquittal filed by the State of Gujarat and the criteria to entertain the Criminal Appeal against the acquittal and against the conviction is different. In present case, it is established that it is an Appeal against the acquittal and therefore, presumption of innocence has already proved beyond reasonable doubt before the Trial Court. It further appears that in present case, the complainant is not knowing Gujarati language but he is understanding Gujarati only by hearing the Gujarati and he is unable to write the Gujarati language. However, the FIR is registered in Gujarati language and the complainant has put his signature in Hindi. Therefore, it is made clear that what is stated in the FIR is not known by the complainant and how it is translated is also not known by the complainant. There is serious discrepancy in the process carried out during the course of investigation, which is borne out from the evidence of the panch witness and the Investigating Officer. The punch witness has categorically admitted in his examination-in-chief that he has not introduced inter-se with the complainant and other panch witness or to the other officers. He has also admitted that he was not aware about the fact that by which office order or by whose order he was called for at the office of A.C.B. at Valsad. He was also admitted during the course of recording the evidence that he was not aware with the fact that to whom he has to meet in the A.C.B. office. From all these facts, it is clearly established that the procedure for preparing the first part of panchnama in the case of illegal gratification is not followed in present case. He was also admitted during the course of recording the evidence that he was not aware with the fact that to whom he has to meet in the A.C.B. office. From all these facts, it is clearly established that the procedure for preparing the first part of panchnama in the case of illegal gratification is not followed in present case. Further, there is serious discrepancy recorded by the Trial Court in the procedure adopted by the Investigating Officer while recording the FIR till the investigation and therefore, learned Special Judge has not committed any error while passing the impugned judgment and order of acquittal. It is an admitted fact that PW-3, who has registered the FIR, has carried the investigation, which is against the settled legal principle of law and, therefore also, the learned Trial Court has not committed any error in passing the impugned judgment and order of acquittal. 12. In present case, the prosecution has also failed to establish the demand and acceptance beyond reasonable doubt and thus present Appeal deserves to be dismissed. 13. At this stage, it is relevant to take into account Sections 7 and 13 of the Act, which 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. 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. (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. (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. (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. (d) if he: (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage. (ii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. (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.” 14. 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. 15. 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. 15. 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. 16. 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, (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, re-appreciate 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. (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.” 17. It is also relevant to take into account head note (A) of the decision of the Hon’ble Apex Court in case of Kanubhai Kantibhai Patel (Supra) which reads as under: (A) Prevention of Corruption Act, S. 5(1)(d), 5(2) - Evidence Act, 1872 - S.3 - Appreciation of evidence - Police Officer doing everything right from recording of complaint till the charge-sheet was filed - Same would be an infirmity in the case which is bound to reflect on the credibility of prosecution case - Prosecution must fail on that count.” 18. 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, (2009) 6 SCC 587 , State of Kerala and Another vs. C.P. Rao, (2011) 6 SCC 450 , Neeraj Datta vs. State (Govt. of NCT of Delhi), AIR 2023 SC 330 and State of Gujarat vs. Ratilal Hirji Jobanputra, 2023 Law Suit (Guj.) 783, this Court is of the opinion that the present appeal being meritless deserves to be dismissed. 19. 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. 19. 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. 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. 20. 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 18.10.2006 passed by the learned Special Judge, Fast Track Court No. 2, Valsad in Special A.C.B. Case No. 07 of 2005 is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.