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2024 DIGILAW 1852 (GUJ)

State Of Gujarat v. Jayantilal Shantilal Joshi

2024-10-04

NISHA M.THAKORE

body2024
JUDGMENT : Nisha M. Thakore 1. Present appeal is filed under Section 378(1)(3) of the Code of Criminal Procedure at the instance of the State challenging the impugned judgment and order dated 29.04.2010 passed by the learned Special Judge (ACB), Amreli in Special Case (ACB) No.74 of 1999. By the said judgment and order, the learned Judge has recorded the acquittal of the respondent nos. 1 and 2 – original accused for the offences punishable under Sections 7,12,(13)(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. In nutshell, the case of the prosecution before the Special Court was an offence registered being CR-I-No.12 of 1999 with the ACB Police Station, Amreli for the offences punishable under Sections 7,12,13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, inter alia alleging that :- 2.1 The respondent no.1 – original accused no.1 was a public servant discharging his duty as the Assistant Sub Inspector with the Amreli Taluka Police Station had demanded illegal gratification initially of an amount of Rs.5,000/- from the complainant – Karshanbhai Kadavabhai Kamani, who was arrested in reference to the Chapter Case registered against him with the concerned police station. It is the case of the prosecution that after negotiation, the illegal gratification was agreed for an amount of Rs.1,000/-. The complainant was presented on the same date of registration of the chapter case i.e. on 8.7.1999 before the office of Mamlatdar and was released on bail. The amount of bribe which was agreed to be paid by the original complainant to the accused no.1 was to be paid on the same date, however, later on the complainant had promised to pay such a bribe amount. 3. Upon report of such a complaint, the trap was arranged. The panch witnesses were called for. One Dhirubhai Nanjibhai has appeared as panch witness no.1 and Devkaranbhai Lavjibhai Chavda has appeared as panch witness no.2. In their presence, the pre-trap panchnama was drawn, whereby witnesses appraised about the allegation made against the respondent no.1. The panch witnesses as well as complainant were made aware about the significance of the phenolphthalein test. Initially, the amount of Rs.1000/- was demanded by the accused no.1 as a bribe. The denomination notes were collected from the original complainant and were tainted with the phenolphthalein powder. The panch witnesses as well as complainant were made aware about the significance of the phenolphthalein test. Initially, the amount of Rs.1000/- was demanded by the accused no.1 as a bribe. The denomination notes were collected from the original complainant and were tainted with the phenolphthalein powder. The said tainted notes were placed inside the left pocket of the open shirt of the complainant. Necessary instructions were given to the complainant as well as the panch witnesses with regard to the manner in which the trap was to be conducted. The aforesaid details were reduced in writing in the form of panchnama. The same was signed by the panch witnesses. The raiding party had left from the ACB Police Station, Amreli to reach Rajmahel Building which is the Court compound of the Amreli Court. The panch witness no.1 had accompanied the original complainant. 3.1 As per the case of the prosecution, while the complainant and the panch witness no.1 were waiting for the accused, the accused no.1 had approached the complainant and in presence of panch witness no.1, had demanded money, to which, the complainant had responded that he had brought money. At that stage, the accused no.1 had asked the complainant to handover the amount to the person standing next wearing the black coat. As per the case of the prosecution, the accused no.1 had instructed the advocate standing next to him to accept the amount which was later on handed over by the complainant by his right hand and was placed inside the left side pocket of the advocate standing next to the accused no.1. The same was accepted by the advocate by his right hand and was placed inside the right side pocket of his coat. The signal was given to the raiding party and the panch witness no.2 along with raiding party had immediately reached the spot. The accused no.1 and the advocate who was later on arraigned as accused no.2 were arrested from the spot and the trap was successful. The ultraviolet lamp test was performed at the ACB Police Station. 3.2 The post trap panchnama has also been reduced in writing in presence of two panch witnesses. The tainted notes were recovered from the accused no.2. The investigation has further culminated into a charge sheet. The ultraviolet lamp test was performed at the ACB Police Station. 3.2 The post trap panchnama has also been reduced in writing in presence of two panch witnesses. The tainted notes were recovered from the accused no.2. The investigation has further culminated into a charge sheet. The necessary sanction was procured from the higher officer and a criminal case was registered before the learned Special Judge, (ACB), Amreli as Special (ACB) Case No.74 of 1999. Before the trial Court, the charge was framed at Exh.14 against the accused nos. 1 and 2 for the offences punishable under Sections 7,12, (13)(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 4. The respondents accused had appeared before the trial Court who had pleaded not guilty. The trial was conducted against the respondents accused. The prosecution in all has examined four witnesses which mainly included complainant- Karshanbhai Kadvabhai Kamaniat Exh.49 as PW No.1, Devkaranbhai Chavda as PW No.2 at Exh.51, Arvindbhai Dhanjibhai Jasoliya- the investigating officer as PW No.3 at Exh.59 and one Pruthvibhai Rumalbhai Parmar the officer having granted sanctioned to prosecute against the respondents accused as PW No.4 at Exh.63. The prosecution has also led documentary evidences which include the original complaint lodged by the complainant – Karshanbhai Kamani at Exh.50, the trap panchnama at Exh.52, relevant case paper of Chapter Case No.126 of 1999 at Exh.53, the extract of the service book of the accused no.1 at Exh.54, the order sanctioning the prosecution against the accused no.1 at Exh.55 and seizure memo at Exh.61. The evidence stage closing purshis was submitted by the prosecution at Exh.65. The further statements of the respondents accused were recorded under Section 313 of the Code of Criminal Procedure, whereby, the accused have once again raised the defence that they have been falsely implicated in the alleged offence. 4.1. The learned Special Judge upon overall appreciation of the evidence on record and the submissions made by the learned advocates for the respective parties, has noticed the major lacunas in the case of the prosecution. The learned trial Court upon appreciation of the evidence of the prosecution witness no.1 who is the panch witness no.2 of the trap panchnama that at the time of the trap the said witness was standing at 30-40 fit away from the complainant. The learned trial Court upon appreciation of the evidence of the prosecution witness no.1 who is the panch witness no.2 of the trap panchnama that at the time of the trap the said witness was standing at 30-40 fit away from the complainant. In his cross examination, the said witness had not even uttered in his evidence that the accused no.1 had demanded an amount of Rs.1,000/- from the complainant or the accused no.2 had accepted the bribe amount on behalf of the accused no.1. The said witness though has been deposed before the Court that the purpose of the demand of the bribe amount was to release the original complainant on bail. However, the learned Judge upon appreciation of the overall circumstances brought on record noticed that in fact the complainant was released on the same day when the chapter case was registered against him. It has transpired on record that in fact accused no.1 had produced the original complainant before the Mamlatdar on the same day when the Chapter case was registered. As against that, the learned Judge upon further appreciation of the evidence of the original complainant has found him not reliable. Upon appreciation of the evidence of the original complainant, at one stage in his examination in chief the complainant has deposed before the Court that while he had entered the Court campus and was waiting for accused no.1 along with panch witness no.1, the accused no.1 had approached him and had demand money to which he has responded that he had brought money. In his evidence, he has further deposed that the accused no.1 had instructed him to handover the amount to the person standing next to him in the black coat. Such an amount was handed over to the advocate standing next to him and the said amounts were accepted by the advocate who had later on placed the notes inside the pocket of his coat and the raiding party had appeared and both the accused were arrested. As against the aforesaid evidence, in his cross examination the original complainant has admitted that while he had interacted with the accused no.1 accused no.2 was not seen by him. He has also admitted that the accused no.2 is not concerned with the Muddamal notes produced before the Court. As against the aforesaid evidence, in his cross examination the original complainant has admitted that while he had interacted with the accused no.1 accused no.2 was not seen by him. He has also admitted that the accused no.2 is not concerned with the Muddamal notes produced before the Court. The defence counsel has been successful in challenging the trap panchnama recorded by the Investigating Officer insofar as the complainant has been unable to explain as to in which side of the pocket the accused no.2 had placed tainted notes. The complainant has been unable to explain as to how the accused no.2 has accepted the tainted notes. The learned Judge has noticed that accused no.2 has not demanded any bribe. Indirectly, the suggestion was put to the complainant that there was no demand raised by the accused no.2. The learned Judge has further noticed that the panch witness no.1 who would have been the witness to the initial interaction with regard to demand between the accused no.1 and the complainant has not been examined as witness by the prosecution. With such evidence on record, the learned Judge has arrived at a conclusion that the prosecution has miserably failed to establish the demand of the bribe amount at the instance of the original accused no.1. While appreciating the evidence of the prosecution witness no.2 Devkaranbhai Lavjibhai Chavda who has been examined at Exh.51, though the said witness has supported the case of the prosecution, the learned Judge has noticed that the said witness has not witnessed the initially interaction of the demand which is alleged by the prosecution between the accused no.1 and the complainant. The learned Judge has arrived at a finding that both the evidence of the complainant and the panch witness no.2 goes to suggest that the accused no.1 has not accepted the bribe amount. No anthracene powder mark has been noticed on the fingers of the accused no.1. Hence, the essential ingredients of the offence alleged qua accused no.1 viz. the demand of the bribe amount and the recovery of such amount has not been established by the prosecution. The learned Judge upon appreciation of the evidence of the complainant has noticed that the complainant has never seen the accused no.2. The complainant has been unable to explain the manner in which the accused no.2 is alleged to have accepted the bribe amount. The learned Judge upon appreciation of the evidence of the complainant has noticed that the complainant has never seen the accused no.2. The complainant has been unable to explain the manner in which the accused no.2 is alleged to have accepted the bribe amount. Upon appreciation of the evidence of the complainant in light of the trap panchnama drawn, the learned Judge has noticed various contradictions. The Court has noticed that the investigating officer in his evidence has admitted the fact that the post trap panchnama was conducted at the ACB office, whereby tainted notes were recovered from the pocket of the accused no.2. The learned Judge has appreciated the evidence of the panch witness no.2 as against the trapping panch name, however the said witness has not been able to explain the panchnama reflecting the fact about the coat being carried by the accused no.2. Upon close reading of the trap panchnama, the learned Judge has noticed that the date and time reflected in the panchnama have been subsequently entered. Upon overall appreciation of the evidence, the learned Judge has found that panchnama has been created subsequently. Thus, the learned Judge has arrived at a finding that even if the ultraviolet lamp test which was performed on the accused no.2 reflects the presence of anthracene powder on the coat as well as on the right hand finger of the accused no.2 itself is not sufficient to establish the offence alleged against the respondents- original accused. Lastly, the learned Judge has taken into consideration the evidence of the witness – Pruthvibhai Rumalbhai Parmar who has been examined at PW No.4 at Exh.63. The evidence of the aforesaid witness has led the learned Judge to arrive at a conclusion that the complaint was lodged by the original complainant keeping grudge of the fact that the chapter case was registered against him and he was beaten by the police sub inspector. With detailed analysis of the evidence on record, the learned Judge has passed the impugned order of acquittal. Hence, this appeal at the instance of the appellant State. 5. Learned Additional Public Prosecutor Mr. Ronak Raval has appeared on behalf of the appellant State and Mr.M.B. Parikh, learned advocate has appeared on behalf of the respondent no.2- original accused no.2. Attention of this Court was invited to the fact that the respondent no.1- original accused no.1 has expired pending this appeal. 5. Learned Additional Public Prosecutor Mr. Ronak Raval has appeared on behalf of the appellant State and Mr.M.B. Parikh, learned advocate has appeared on behalf of the respondent no.2- original accused no.2. Attention of this Court was invited to the fact that the respondent no.1- original accused no.1 has expired pending this appeal. The report as received from the concerned Court indicates that the accused no.1 has expired on 10.10.2020. The certified copy issued by the Rajkot Municipal Corporation has been placed on record along with said report. In view of the aforesaid report submitted by the concerned Court, the present appeal in view of section 394 of the Code, thus, stands abated qua accused no.1. In view of the aforesaid circumstances, the present appeal still survives in as much as the acquittal of co-accused is concerned. 6. Learned Additional Public Prosecutor has at the outset submitted that the present appeal is required to be examined keeping in mind the offence alleged against the – original accused no.2 who was advocate and not a public servant. Learned Additional Public Prosecutor has fairly pointed out that the only role which emerges on record qua respondent no.2 – original accused n.2 is the acceptance of the bribe amount on behalf of the principal accused no.1.Learned Additional Public Prosecutor has referred to the findings and reasons assigned by the Court below. The attention of this Court was also invited to the evidence of the original complainant in light of the trap panchnama produced on record at Exh.52, it was submitted that since major discrepancy and glaring inconsistency in the testimony of the complainant was noticed, the learned Judge has disbelieved the case of the complainant. Unfortunately, the independent evidence of panch witness no.1 was not available as he was reported to have expired. In absence of cogent material, the learned Judge has arrived at a conclusion that the prosecution has failed to produce the case beyond the reasonable doubt of the demand of bribe money. However, the learned Additional Public Prosecutor has assailed aforesaid reasoning, by submitting that the learned Judge ought to have taken into consideration the evidence of the investigating officer in light of the trap panchnama which has been otherwise proved by the prosecution. Indisputably, the chapter case was registered against the original complainant and the demand raised by the accused no.1 ie. Indisputably, the chapter case was registered against the original complainant and the demand raised by the accused no.1 ie. Pre-trap demand as recorded in the panchnama was sufficient to arrive at a conclusion that the demand was raised by the accused no.1 for the bribe amount. Learned Additional Public Prosecutor has further referred to the cross examination of the complainant. It was submitted that the learned Judge ought to have taken into consideration the fact that the accused no.2 who was standing next to the accused no.1 had accepted the bribe amount which was sufficient to lead to the conclusion that it was pursuant to the instructions of accused no.1 that accused no.2 has accepted the bribe amount. Learned Additional Public Prosecutor has also submitted that the prosecution has successfully proved the recovery of the bribe amount from the accused no.2. The attempt was made to rely upon Section 20 of the Prevention of Corruption Act which permits the Court to raise presumption. It was, therefore, submitted that once the demand was proved by the prosecution, the learned Judge ought to have considered the aforesaid provision to raise the presumption against the respondents accused. Lastly, learned Additional Public Prosecutor has invited my attention to the further statement of the respondents accused recorded under Section 313 of the Code to contend that except for bare denial no specific defence has been raised by the respondent accused. He has therefore submitted that once the presumption would have been raised and in absence of any rebuttal of the presumption, learned Judge ought to have taken into aforesaid fact and ought to have convicted the respondents accused. Learned Additional Public Prosecutor has also invited attention of this Court to the effect that the presence of phenolphthalein powder has also been noticed from ultraviolet lamp test conducted upon respondent no.2- original no.2. The aforesaid respondent has failed to give any explanation as is evident from the reading of the further statement of the said accused. 7. Mr. M B Parikh, learned advocate for the respondent no.2 – original accused has vehemently objected to the aforesaid submission of the learned Additional Public Prosecutor. Mr. Parikh, learned advocate has submitted that no perversity has been brought on record by the appellant State as against the findings and the reasons assigned by the learned Judge while recording order of acquittal against the respondent accused. Mr. Parikh, learned advocate has submitted that no perversity has been brought on record by the appellant State as against the findings and the reasons assigned by the learned Judge while recording order of acquittal against the respondent accused. He has further submitted that allegations were made against the principal accused who has expired pending this appeal. So far as the allegations against the respondent no.2 is concerned, is only with regard to the acceptance of the bribe amount on behalf of the original accused no.1. According to him, the prosecution has not even alleged that the bribe amount has been demanded by the accused no.2. The attention of this Court was invited to the findings and the reasons assigned by the learned Judge, more particularly, upon appreciation of the evidence of the original complainant in light of the panchnama drawn, the learned Judge has rightly arrived at a finding that the prosecution has rightly arrived at a finding that the prosecution has failed to prove the demand raised against the respondent no.1 – original accused no.1. He has therefore submitted that essential ingredients to establish the charge alleged against the respondents accused being not proved merely because the alleged bribe amount has been recovered from the respondent no.2 is not sufficient to prove the case against the accused no.2. Looking to the scope of the appeal against the order of acquittal, the learned advocate has submitted that in absence of any perversity or irregularity or any error being pointed out by the appellant State in the impugned order, this Court may not interfere with the order of acquittal. 8. Having heard the learned advocates for the respective parties and having perused the record and proceedings in light of the submissions made by the learned advocates, the only question which falls for consideration of this Court is whether the impugned judgment and order of acquittal passed by the learned Judge is contrary to the evidence available on record. For the findings and reasons assigned by the learned Judge as recorded earlier, in my opinion, glaring inconsistencies have been seen in the evidence of the complainant. The overall appreciation of the evidence of the complainant does not inspire any confidence to believe the case of the prosecution. At one stage, in the cross examination, the said witness has deposed that the accused no.1 had not demanded Rs.5,000/-. The overall appreciation of the evidence of the complainant does not inspire any confidence to believe the case of the prosecution. At one stage, in the cross examination, the said witness has deposed that the accused no.1 had not demanded Rs.5,000/-. He has also admitted that accused no.2 has no relation with the muddamal notes. The further close reading of the evidence of the complainant gives an impression that the said witness does not even remember from which side of the pocket the bribe money was found. According to him, the facts have been recorded in the panchnama which has been recorded by the Investigating Officer pursuant to the instructions given by the panch witness. In the offence alleging the demand of the illegal gratification by a public servant, heavy burden lies upon the prosecution to prove the case beyond reasonable doubt by bringing on record the strict proof of demand and acceptance of bribe. The Hon’ble Supreme Court in various decisions while interpreting the Section 12 and 13(1)(d) of the Prevention of Corruption Act, whereby, the expression obtains has been considered, the question as to whether the demand and acceptance are essential per-requisite for conviction under Section 7 and section 13(1)(d) of the Act are held to be an inevitable and concomitant. The provisions insist on strict proof. The Court has also held that there has to be a voluntary and conscious acceptance of the money by the accused. Looking to the circumstances at this stage when the main accused has expired pending the appeal and the role attributed to the accused no.2 of alleged to have accepted the bribe amount on behalf of the main accused, the question arises as to whether mere recovery of the bribe money by itself would indicate that such act of the acceptance of the bribe amount by the accused no.2 was voluntarily and with conscious acceptance of the money that such offer was towards the bribe money. Upon overall appreciation of the evidence on record of the original complainant, the prosecution has not established that the amount which was recovered from the original accused no.2 was with conscious fact that such amount was towards the bribe money. The prosecution has not been able to examine any independent witness other than the complainant. Upon overall appreciation of the evidence on record of the original complainant, the prosecution has not established that the amount which was recovered from the original accused no.2 was with conscious fact that such amount was towards the bribe money. The prosecution has not been able to examine any independent witness other than the complainant. The panch witness no.1 who was otherwise witness to the interaction which had taken place between the original accused no.1 and the original complainant during the trap is reported to have expired. With such insufficient evidence on record, no error can be found with the approach of the trial Court in arriving at a conclusion that the prosecution has miserably failed to prove his case beyond reasonable doubt. 9. It may be useful to revisit the guiding principles as laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the 1 (1984) 4 SCC 116 = 1984 INSC 121 6 accused and it must be such as to show that within all human probability the act must have been done by the accused.” 10. For the findings and reasons assigned by the learned Special Judge while recording acquittal, no perversity or irregularity can be attributed, more so when circumstances which lead to conclusion of guilt is established. The scope of the appeal against an acquittal in a case where the presumption of innocence has been reinforced, the appellate court will only interfere with the acquittal if there is a perversity of fact or law. In my view, no interference is required against the impugned judgment and order of acquittal. Hence, present appeal is not entertained and is hereby dismissed. In my view, no interference is required against the impugned judgment and order of acquittal. Hence, present appeal is not entertained and is hereby dismissed. The bailable warrant issued against the respondent accused stands cancelled. Registry is directed to send back the Record and Proceedings of the case to the concerned Court forthwith.