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2024 DIGILAW 458 (GUJ)

State of Gujarat v. Joitaram Khushaldas Patel

2024-03-06

S.V.PINTO

body2024
JUDGMENT : 1. This appeal has been filed by the appellant – State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 30.12.2004 passed by the learned Additional Sessions Judge, Fast Tack Judge, Fast Track Court No. 1, Gandhinagar (herein after referred to as ‘the learned Trial Court’) in Special (ACB) Case No. 3 of 2001, whereby, the learned Trial Court has acquitted the respondent from the offences punishable under Sections 7, 12 and 13(2) of the Prevention of Corruption Act. The respondents are hereinafter referred to as ‘the accused’ as they stood in the original case, for the sake of convenience, clarity and brevity. 1.1. During the pendency of the appeal the respondent No. 2 has expired on 19.05.2010 and hence the appeal qua the respondent No. 2 was abated by an order dated 23.02.2024. 2. The brief facts that emerge from the record of the case are as under: 2.1. That the accused No. 1 Joitaram Khusalbhai Patel was working as a Talati-cum-Mantri (Class-III) in the Sametri Gram- Panchayat and the accused No. 2 Chinubhai Mangaji Thakore was the sarpanch and both the accused were public servant. That late Chhagani Khodaji the father of the complainant Jilaji Chhaganji Thakore had property bearing survey No. 389/1 and 389/3 in the outskirts of Sametri Gram Panchayat and in the revenue record of 389/1 instead of the name of Chhaganji Khodaji, by mistake the name of Chhaganji Gokadji was written. That the complainant Jilaji Chhaganji Thakore had approached the accused no. 1 on 21.04.21993 and 22.04.1993 to mutate the correct name of Chhaganji Khodaji and at that time, the accused No. 1 had demanded an amount of Rs.200/- as illegal gratification and had told him to pay the amount of 23.04.1993. That the complainant approached the ACB Police Station, Ahmedabad (Rural) and Gandhinagar as the complainant did not want to pay the amount of illegal gratification and the complaint was registered as I-C.R.No. 4 of 1993 on 23.04.1993. That the trap laying officer called the panch witnesses and after explaining to them about the procedure of Anthracene powder and the UV lamp. That the trap laying officer called the panch witnesses and after explaining to them about the procedure of Anthracene powder and the UV lamp. A trap was laid and on 23.04.1993 at 16:15 hrs, in the presence of the panch witness No. 1, the accused No. 2 accepted the amount of illegal gratification near Rakhiyal Toll Point and the amount was recovered from his possession. That after due investigation and after the receipt of the sanction for prosecution from the competent authority, the Investigating Officer filed a charge sheet before the Special Judge, Ahmedabad (Rural), which was registered as Special (ACB) Case No. 3 of 2001. 2.2. That the accused was duly summoned and after following due procedure of Section 207 of the Code of Criminal Procedure, 1973, a charge at Exh: 12 was framed by the learned Trial Court against both the accused and the statements of the accused were recorded at Exh; 13 and Exh: 14 respectively. That both the accused denied the contents of the charge and the evidence of the prosecution was taken on record. 2.3. The prosecution has filed the following oral evidence as well as documentary evidences to bring home the charge against the accused. ORAL EVIDENCE Sr.No Prosecution Witness No. Name of the Prosecution Witness Particulars 1 25 Jilaji Sagaji Thakore Complainant 2 27 Jesingbhai Muljibhai Parmar Panch No. 1 3 34 Gumansinh Lalubha Vaghela Primary Investigating Officer 4 36 Jaswantsingh Baldevsingh Chavda as per the complaint, ACB Officer of prior raiding party DOCUMENTARY EVIDENCES Sr. No Exhs Particulars 1 20 Receipt of Property tax paid by the complainant 2 21 Receipt of Property tax paid by the complainant 3 22 Receipt of Property tax paid by the complainant 4 23 Extract of Village Form No. 7 / 12 of Survey No. 389/1 5 24 Extract of Village Form No. 7 / 12 of Survey No. 389/3 6 28 Panchnama 7 29 Receipt of the things recovered from the possession of the accused No. 1 8 31 Sanction for the accused No. 1 9 32 Sanction for the accused No. 2 2.4. That after the entire evidence of the prosecution was taken on record, the learned Additional Public Prosecutor filed the closing pursis at Exh; 43 and the further statement of the accused were recorded wherein both the accused denied all the evidence and stated that a false case has been filed against them. That the accused No. 1 has, submitted that no illegal gratification has been recovered from him and he has not demanded any amount from the complainant. That he has not instructed the accused No. 2 to take any amount on his behalf and in fact the complainant, in his deposition, has stated that the accused No. 1 has not demanded any amount and the complainant has stated that the accused No. 2 had taken the amount for outstanding arrears of tax for the property of the complainant. The accused No. 2 has stated that the complainant has forcibly tried to give him some amount but the currency notes fell down and a number of persons had gathered and those persons had forcibly asked the accused to pick the amount and in that way the traces of anthracene powder was found on their hands. That, the learned trial Court after considering all the evidence of the prosecution on record by a judgment and order dated 30.12.2004 was pleased to acquit both the accused under Section 235 of the Code of Criminal Procedure, 1973 from all the offences. 3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the appellant-State has filed the present appeal mainly contenting that the prosecution has produced oral and documentary evidence to prove the case against the accused and the learned Trial Court has not exercised the jurisdiction vested in the Court. That the learned Trial Court has not appreciated the evidence properly and the judgment and order of acquittal is contrary to law and the evidence on record. That there is sufficient evidence about the demand and acceptance and the learned Trial Court has erred in concluding that the fact of demand and acceptance has not been proved by the prosecution. That the learned Trial Court has not appreciated the evidence properly and the judgment and order of acquittal is contrary to law and the evidence on record. That there is sufficient evidence about the demand and acceptance and the learned Trial Court has erred in concluding that the fact of demand and acceptance has not been proved by the prosecution. That, in fact, the demand, acceptance and recovery has been proved in sequence and when the acceptance of the amount by the accused from the complainant is forthcoming, it leads to the inference of the guilt of the accused and hence the impugned judgment and order of acquittal must be quashed and set aside and the appeal must be allowed. 4. Heard learned Additional Public Prosecutor Mr. Bhargav Pandya and learned advocate Mr. Param Buch for learned advocate Mr. Vanrajsinh Damore for the accused No. 1. 5. Learned Additional Public Prosecutor Mr. Bhargav Pandya for the appellant-State has taken this Court through the entire evidence of the prosecution and has submitted that even though the complainant has been declared hostile before the learned Trial Court has not supported the case of the prosecution, his evidence that supports the case of prosecution must be read and the same is corroborated by the evidence of the trap laying officer. That the prosecution has proved that tainted currency notes were recovered from the accused and the hands of the accused were found with the traces of anthracene powder and when the fact of recovery is proved, the accused must be held guilty for the said offences. That in the evidence of the prosecution, the evidence of the trap laying officer has fully supported the case of the prosecution and the same must be considered and the accused must be found guilty for the said offence. 6. Learned advocate Mr. Param Buch has submitted that in the entire evidence of the prosecution, there is no iota of evidence to prove that the demand for any amount of illegal gratification was made by the accused. 6. Learned advocate Mr. Param Buch has submitted that in the entire evidence of the prosecution, there is no iota of evidence to prove that the demand for any amount of illegal gratification was made by the accused. That there is no evidence as to why the amount had to be paid and as to why the amount was demanded by the accused and during investigation, the revenue record of the property of the accused was seized and the trap laying officer who has been examined at Exh: 36 has clearly stated that the name of Chhaganji Khodaji was in the revenue record. Moreover, there is no evidence that the accused No. 1 had called the complainant to village Rakhiyal and the complainant has stated that as the accused No. 1 was not found at the Sametri Gram Panchayat, they felt that they would meet him at Rakhiyal and hence went to Rakhiyal. It is also on record that the accused No. 1 was suddenly found in the market place and the accused No. 2 who was the Sarpanch and authorized to collect the tax on property had demanded for the outstanding amount of the tax from the complainant and at that time the complainant had handed over the currency notes which fell down from the hands of the accused No. 2 and at that time the accused No. 1 picked up the same. That merely because the recovery of tainted currency notes is proved and there is no iota of evidence regarding any demand or acceptance of illegal gratification, as per the settled principles of law , the accused cannot be convicted for the said offence. That the impugned judgment and order is well reasoned and has been passed after appreciation of all the oral and documentary evidence by the learned Trial Court and hence no order of interference is required and the appeal must be dismissed. 7. In cases under the Prevention of Corruption Act, the Honourable Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under: “68. 7. In cases under the Prevention of Corruption Act, the Honourable Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under: “68. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1) (d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act. (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. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.” 8. In view of the above settled principles of law with regard to appeals filed under the Prevention of Corruption Act, the evidence led by the prosecution before the learned Trial Court is required to be dissected and to prove the case against the accused, the prosecution has examined Prosecution Witness No. 1 Jilaji Sagaji Thakore at Exh; 25. The witness is the complainant and he has stated that he had gone to the panchayat office to get the name in his land changed. That his father’s name is Chhaganji Khodaji and instead the name of Chhaganji Gokadji was entered and he had gone to the panchayat office four to five times and different Talati-cum-Mantri were there. That inspite of going to 4 to 5 times, his name was not corrected and he thought that the Talaticum- Mantri wanted some illegal gratification and hence he approached the ACB Ahmedabad Office at Dafnala and gave the complaint. That, he had given the complaint for getting his record changed and the complaint was filed against the Talati Joitrama Khusalbhai Patel. That the panch witnesses were called and some writing was done and the panch witnesses were not introduced to him. That, he had given four notes of 50/- each and they were Rs. washed with the water and thereafter some notes were coated with flour and kept in his pocket. That he does not know as to whether any writing had taken place and he went to the Sametri Gram Panchayat with two panch witnesses. That, he had given four notes of 50/- each and they were Rs. washed with the water and thereafter some notes were coated with flour and kept in his pocket. That he does not know as to whether any writing had taken place and he went to the Sametri Gram Panchayat with two panch witnesses. That he had gone to inquire as to whether the Talati-cum-Mantri was present but as he was not present and fromt there they went into Rakhiyal Bazar. That, he saw the Talati-cum-Mantri in Rakhiyal Bazar and he called him and told him to have tea and the Talati at that time had said that he does not want any money but the Sarpanch came and demanded for the tax amount and snatched the money from him. That he gave the predetermined signal and the members of the raiding party came and the sarpanch threw the currency notes on the ground which were picked up by the accused No. 1. The witness has not supported the case of the prosecution and has been declared hostile and during the lengthy cross examination by the learned Additional Public Prosecutor, the witness has not supported the case of the prosecution. The witness has also stated that he had given the revenue record to the Police and in that the name of his father was mentioned as Chhaganji Khodaji. Moreover, he has also admitted that he had thought that the Talati was wanting some amount and when he went to meet the Talati, the Sarpanch was not with him. The Sarpanch had reached after they had tea and he had offered to give the amount to the Talati, but the Talati had not taken the same. 8.1. The prosecution has examined the Prosecution Witness No. 2 Jesingbhai Muljibhai Parmar at Exh: 27 and this witness is the shadow witness who had accompanied the complainant at the time of trap. The witness has upto a certain extent supported the case of the prosecution but thereafter has stated that the Talati, the complainant and he had gone to Jalaram Tea Stall and at that time, Sarpanch Chinubhai Thakor had also come at the tea stall. That there was a lot of noise of the traffic on the road and he did not hear anything that was said between the complainant and the accused. That there was a lot of noise of the traffic on the road and he did not hear anything that was said between the complainant and the accused. That the sarpanch had thrown the currency notes on the floor, which were picked up by the accused No. 1. The panch witness has been declared hostile and during his lengthy cross examination by the learned Additional Public Prosecutor, there is no evidence to support the case of the prosecution that has come on record. 8.2. The prosecution has been examined Prosecution Witness No. 3 Gumansinh Labhubhai Vaghela at Exh: 34 and this witness is the investigating officer, who has got the sanction for prosecution from the competent authority and has filed the charge sheet against the accused. 8.3. The prosecution has examined Prosecution Witness No. 4 Jaswantsingh Chavda at Exh; 36 and this witness is the Trap Laying Officer, who has narrated at length about the entire procedure that was done prior to the trap and has fully supported the case of the prosecution. The witness has stated that the tainted currency notes had fallen down from the hands of the accused No. 2 near the scooter of the accused No. 1 and they were picked up by the accused No. 1 by his left hand. 9. On meticulous dissection of the oral and documentary evidence produced by the prosecution on record, the infirmities in the evidence led by the prosecution have come to the surface and it appears that there is no iota of evidence regarding any demand or illegal gratification that was made by the accused No. 1. Moreover, as per the case of the prosecution, the complainant wanted to change the name of his father in the revenue record, which stood as Chhaganji Gokadji instead of Chhaganji Khodaji but during the cross examination of the Prosecution Witness No. 4 the Trap laying officer Mr. Jaswantsinh Baldevsinh Chavda, it has come on record that the revenue record did in fact bear the name of Chhaganji Khodaji hence a shadow of doubut is cast on the case of the prosecution. Moreover, the complainant has categorically stated that the accused No. 1 did not want any amount and there is no demand that is proved to have been made by the accused No. 1. Moreover, the complainant has categorically stated that the accused No. 1 did not want any amount and there is no demand that is proved to have been made by the accused No. 1. That in fact the complainant and the witness had gone to Sametri Gram Panchayat at the time of raid and the accused No. 1 was not found in the Sametri Gram Panchayat and hence they thought he would be at Rakhiyal and they went to Rakhiyal. That they found the accused No. 1 in the market in Rakhiyal and the complainant had called him and they had tea together. That if the accused No. 1 had made any kind of the demand of illegal gratification from the complainant and had specifically told him to come to the Sametri Gram Panchayat to pay the amount of illegal gratification on 24.03.1993, the accused no. 1 would have remained present in the Sametri Gram Panchayat and would have accepted the amount of illegal gratification. That the panch witness has also turned hostile and has categorically stated that he did not hear any demand that was made by the accused and even as far as the recovery is concerned, it has come on record that the complainant had taken out the tainted currency noted from his pocket and at that time the accused No. 2 had taken the tainted currency notes towards the amount of outstanding arrears of property tax , which the accused No. 2 was entitled to collect. That the complainant and the panch witness have turned hostile and the panch witness has clearly stated that because there was traffic noise on the road, he could not hear any word that was spoken by the complainant or the accused and hence the factum of demand is not proved beyond reasonable doubts. As far as the acceptance is concerned, it is case of the accused that the amount was taken towards the amount of outstanding arrears of property tax of the complainant and while the accused was taking amount from the hand of the complainant, the notes fell down on the ground and they were picked up by the accused No. 1. 10. 10. That the demand, acceptance and the recovery of the tainted currency notes has not been proved beyond reasonable doubts by the prosecution and on appraisal of the entire evidence produced by the prosecution and the reasons assigned by the learned Trial Court, this Court is of the view that the reasons assigned by the learned Trial Court are properly assigned and the findings recorded by the learned Trial Court are just and proper. That there is no illegality or infirmity or perversity in the order passed by the learned Trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. 11. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned judgment and order dated 30.12.2004 passed by the learned Additional Sessions Judge, Fast Tack Judge, Fast Track Court No. 1, Gandhinagar in Special (ACB) Case No. 3 of 2001, is hereby confirmed. Bail bonds stand canceled. 12. Record and proceedings be sent back to the concerned Trial Court forthwith.