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2024 DIGILAW 517 (GUJ)

Gamanbhai Bhagubhai Nayak v. State of Gujarat

2024-03-13

S.V.PINTO

body2024
JUDGMENT : S.V. PINTO, J. 1. The appellant has preferred the present appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 17.12.2006 rendered by learned Special Judge, Surat in Special ACB Case No. 2 of 2001 whereby the learned trial Court sentenced the appellant accused to undergo imprisonment for two years and to pay fine of Rs. 5,000/- in default, to undergo further imprisonment for two months for the offence under section 7 of the Prevention of Corruption Act and also convicted and sentenced the appellant accused to undergo imprisonment for two years and to pay fine of Rs. 5,000/- in default, to undergo further imprisonment for two months for the offence under section 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act. 2. The short facts giving rise to the present appeal are that the appellant accused was serving as Junior Telecom Officer in the Telecom Department at Piplod Telephone Exchange. It is alleged that the appellant accused demanded Rs. 300/- from the complainant as illegal gratification for connecting the telephone line as the telephone connection order was passed in favour of the complainant on 2.12.1998. It is alleged that the complainant told the appellant accused that he will pay Rs. 300/- on 6.3.1999 and as the complainant did not want to pay the amount of illegal gratification, a complaint was filed in the ACB Police Station, Surat and registered as CR No. 3 of 1999. It is the case of the prosecution that thereafter on 6.3.1999, the trap was arranged in the office of Telephone Department, Piplod and that the appellant accused had accepted the amount of Rs. 300/- as bribe and put the same in his pocket and was caught red-handed by the members of the raiding party and thereby the appellant committed the offence. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant accused. The charge was framed against the accused at Exh.6. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined as many as seven witnesses and also produced as many as eight documentary evidences. The charge was framed against the accused at Exh.6. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined as many as seven witnesses and also produced as many as eight documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 6. Mr. Shakeel Qureshi, learned advocate for the appellant has mainly argued that the appellant accused has neither demanded nor accepted any bribe and that no bribe money has been recovered from him. Mr. Qureshi has further submitted that the appellant accused has no power or authority to connect new telephone connection but on receiving new telephone connection order from the higher authority, immediately on 4.2.1999 telephone connection was made operational. Mr. Qureshi has further submitted that there was no delay on the part of the appellant and there was no harassment to the complainant and that a false and frivolous case has been registered against the appellant accused. Mr. Qureshi has further submitted that evidence of the complainant is not trustworthy in view of the fact that the complainant in his deposition at Exh.12 admits that he has never gone to the telephone exchange and that the witness has also admitted that neither the appellant accused nor any lineman has demanded the bribe amount from the complainant. 6.1 Mr. Qureshi has further submitted that panch witness Balwantsinh Bhagwansinh Solanki whose evidence has been recorded at Exh.16 has turned hostile and has not supported the case of the prosecution. Mr. 6.1 Mr. Qureshi has further submitted that panch witness Balwantsinh Bhagwansinh Solanki whose evidence has been recorded at Exh.16 has turned hostile and has not supported the case of the prosecution. Mr. Qureshi has further submitted that witness Suleman Ismail Vohra whose evidence has been recorded at Exh.36 has turned hostile and has not supported the case of the prosecution and witness Ajabsinh Mulsinh Rathod whose evidence has been recorded at Exh.28 as well as witness Gulabsinh Lalsing Pagi whose evidence has been recorded at Exh.34 are the interested witnesses and the evidence of independent witnesses who were available at the place of trap and their presence was also natural have not been recorded to prove the case against the appellant accused beyond reasonable doubt for reasons best known to the Investigating Officer. Mr. Qureshi has further submitted that the main ingredients i.e. demand, acceptance and recovery have not been proved against the appellant accused beyond reasonable doubt. 6.2 Mr. Qureshi has further submitted that the complaint in the present case came to be recorded by the Police Inspector Shri Rathod and throughout, he has done the investigation of the present case and therefore, it is crystal clear that he is interested witness and he assumed all the roles i.e. member of raiding party, investigating officer as well as filing of the charge-sheet and, therefore, entire investigation is vitiated as he was interested from the beginning in the matter and therefore, the appellant is required to be acquitted. Mr. Qureshi has further submitted that Police Inspector Shri Chaudhary who has filed the charge-sheet and Police Inspector Shri Dave have not been examined and that the said witnesses are important witnesses but they have not been examined. Mr. Qureshi has further submitted that reasoning given by the learned trial Court for convicting the appellant accused for the offence in question are without proper application of mind, without appreciating the evidence on record and the same are based on conjectures and surmises. Lastly, Mr. Qureshi has requested this Court to allow the present appeal. 7. On the other-hand, Mr. Bhargav Pandya, learned APP has supported the judgment rendered by learned trial Court. Mr. Pandya has argued that the learned trial Court has rightly believed the evidence of the panchas as well as investigating officer. Mr. Lastly, Mr. Qureshi has requested this Court to allow the present appeal. 7. On the other-hand, Mr. Bhargav Pandya, learned APP has supported the judgment rendered by learned trial Court. Mr. Pandya has argued that the learned trial Court has rightly believed the evidence of the panchas as well as investigating officer. Mr. Pandya has further argued that the learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and the ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court should not disturb the findings recorded by the learned trial Court, as such. 8. This Court has heard Mr. Shakeel Qureshi, learned advocate for the appellant and Mr. Bhargav Pandya, learned APP for the respondent-State. 9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, the appellant accused was serving as Junior Telecom Officer in the Telecom Department in Piplod Telephone Exchange. It is alleged that the appellant accused demanded Rs. 300/- from the complainant as illegal gratification for connecting the telephone line as the telephone connection order was passed in favour of the complainant on 2.12.1998. It is alleged that the complainant told the appellant accused that he will pay Rs. 300/- on 6.3.1999 and thereafter on 6.3.1999, the trap was arranged in the office of Telephone Department, Piplod and the appellant accused had accepted the amount of Rs. 300/- as bribe and put the same in his pocket and thereby the appellant committed the offence, as alleged. 10. The prosecution has examined PW-1/Virat Jagannath Shah at Exh.12. The witness is the complainant who was working as Assistant Manager in Reliance Industries at Hazira. That he had given an application for telephone connection in August 1997 and thereafter the telephone was not connected and hence, his wife had gone to the Piplod Telephone Exchange. That even after sometime, his telephone was not connected and once again, his wife went to Piplod Telephone Exchange and met the accused who told her that formalities would have to be completed. That even after sometime, his telephone was not connected and once again, his wife went to Piplod Telephone Exchange and met the accused who told her that formalities would have to be completed. That after a couple of days, the Lineman placed the telephone instrument, but the phone was not connected and once again, his wife met the accused and thereafter the complainant also met the accused who told him that his phone would be connected. That on 4.3.1999, the phone was connected and on the next day, the complainant thought that the accused wanted some money, so he called the accused and asked him as to how much amount had to be paid and the accused told him that others had given Rs. 300/- and he too should given the same. That the complainant called ACB Police Inspector Mr. Rathod who came to his house on 5.3.1999 and recorded the complaint which is produced at Exh.13. That on 6.3.1999, the complainant was called to the ACB office and the panch witnesses were called and the experiment of anthracene powder and ultra violat lamp was conducted and the trap was laid. That the complainant went to Piplod Telephone Exchange with panch witness - Balwantsinh Bhagwansinh Solanki as a shadow witness and met the accused in his office. That the complainant sat on the bench near the table and at that time, the accused demanded for the amount of Rs. 300/- and told him that he would give the Lineman from the same. That the complainant came out and gave the predetermined signal and members of the raiding party came and the tainted currency notes were recovered from the possession of the accused. That necessary tests were done and light blue florescent traces were found on the hand of the accused. During the cross examination, the witness has categorically stated that he had never met the accused and had never gone to Piplod Telephone Exchange earlier, but his wife had gone to inquire about the telephone. That the complaint was recorded at his house and when Mr. Rathod came to his house, at that time, his wife was present. That the accused had never stated that he would start the telephone connection only if the amount was given and he himself had asked the accused if any formality had to be done. That the complaint was recorded at his house and when Mr. Rathod came to his house, at that time, his wife was present. That the accused had never stated that he would start the telephone connection only if the amount was given and he himself had asked the accused if any formality had to be done. That the complainant himself had called the accused on the telephone and asked him if any amount had to be paid and after the telephone had started on 4.3.1999, the accused or any Lineman had not made any demand for any money from the complainant. 11. The prosecution has examined PW-2/Balwantsinh Bhagwansinh Solanki at Exh.16. This witness is the shadow witness who had gone along with the complainant. That the witness has not supported the case of the prosecution and has refused to identify the currency notes that were recovered from the accused and has merely identified his signature on the panchnama which is produced at Exh.17. After the witness was declared hostile, he has stated that in the panchnama, the case of the prosecution is narrated and in that manner, he has supported the version of the panchnama, but during the cross examination by the learned advocate for the accused, he has stated that when they went in the office of the accused, there were lots of people who were talking and moving in and out of the office and also opening cup-boards to take registers and he could not hear the conversation that was taking place. Moreover, the witness has also stated that he does not know as to who brought pant for the accused. 12. The prosecution has examined PW-3/Ajabsinh Mulsinh Rathod at Exh.28. The witness had gone to the house of the complainant and recorded the complaint and thereafter, laid the trap. The witness has deposed fully as per the case of the prosecution and has admitted that he had gone to the house of the complainant to record the complaint. That at the time, the wife of the complainant was present and he had not recorded the statement of the wife of the complainant prior to the trap or thereafter. Moreover, the witness has also admitted that on 4.3.1999, the complainant had met the superior officer of the accused and there was no evidence on record to show that the complainant had met the accused prior to the trap. Moreover, the witness has also admitted that on 4.3.1999, the complainant had met the superior officer of the accused and there was no evidence on record to show that the complainant had met the accused prior to the trap. That the complainant had himself called the accused on the phone after the phone line had started and the witness has admitted that Police Inspector Merunjay was also a member of the raiding party. That the witness has not taken any evidence on record as to when the telephone of the complainant had started. 13. The prosecution has examined PW-4/Gulabsinh Lalsing Pagi at Exh.34. This witness is the other panch witness who was with the members of the raiding party at the time of trap. The witness has stated that the accused had worn a cream colour pant and during the cross examination, the witness has admitted that pant which was shown to him was black in colour. 14. The prosecution has examined PW-5/Suleman Ismail Vohra at Exh.36. The witness has stated that he was Sub-Divisional Engineer in the telephone office at Piplod Telephone Exchange. That the ACB police had taken some records from him but he did not recollect anything about ACB case against the accused and could not state as to how many registers or pages were seized by the police. The witness has not supported the case of the prosecution and has been declared hostile. During the cross examination, the witness has stated that the telephone connection of the complainant was given on 4.2.1999 and by letter dated 25.2.1999, information was intimated to the superior office. 15. The prosecution has examined PW-6/Arvindbhai Dhanjibhai Jasoliya at Exh.38. The witness is the Investigating Officer who had taken over investigation from PW-3/Ajabsinh Mulsinh Rathod. During the cross examination, the witness has stated that he has not recorded the statement of the wife of the complainant and he has not verified as to whether the telephone number mentioned in the complaint, in fact, is the telephone number of the complainant. That during the investigation, it was found that Gulabsinh Lalsing Pagi/PW-4 and Police Inspector Merunjay were also the members of the raiding party and he has not seized any official record to verify the complaint of the complainant. 16. The prosecution has examined PW-7/Kirtikumar Manchhabhai Chaudhry at Exh.47. That during the investigation, it was found that Gulabsinh Lalsing Pagi/PW-4 and Police Inspector Merunjay were also the members of the raiding party and he has not seized any official record to verify the complaint of the complainant. 16. The prosecution has examined PW-7/Kirtikumar Manchhabhai Chaudhry at Exh.47. The witness is the Investigating Officer who has filed the charge-sheet after receipt of the sanction for prosecution from the competent authority. 17. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, irrespective of the fact that the raid was carried out and sanction was accorded by the competent authority to prosecute the accused, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 18. In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, it appears that the prosecution has examined aforesaid seven witnesses. In the entire evidence of the prosecution, the complainant has admitted that his wife used to go to the telephone office and the complainant has never gone to telephone office to meet the accused. For the reasons best known to the complainant and the Investigating Officer, the statement of the wife of the complainant has not been recorded. That any prior demand made by the accused could have been proved by the wife of the complainant but her statement has not been recorded and she has not been examined before the learned trial Court. Moreover, it is also proved that there was no demand by the accused and the complainant has stated that he had telephoned the accused on 5.3.1999 to inquire whether any amount had to be paid. The complainant had also stated that he had asked the accused whether any formality has to be done and it does not imply whether any amount of illegal gratification has to be paid. The complainant had also stated that he had asked the accused whether any formality has to be done and it does not imply whether any amount of illegal gratification has to be paid. Moreover, in the entire evidence, prior demand is the demand on the telephone on 5.3.1999 but the Investigating Officer has not seized any telephone call details or any record to show whether any telephone call was made from the number of the complainant and there is no evidence to show that the telephone number as stated by the complainant in the complaint, in fact, is the telephone number of the complainant. That the complainant has stated that he had made telephone call on 5.3.1999 but no specific time as to when the call was made and on what number the call was made is mentioned by the complainant. Moreover, the date when the telephone had started is also not proved beyond reasonable doubt and there is evidence on record to show that telephone of the complainant has started on 4.2.1999 and intimation regarding the same was given to the superior office from the office of Piplod Telephone Exchange on 25.2.1999. Hence, the say of the complainant that the telephone had started on 4.3.1999 is not proved and a shadow of doubt is cast upon the complainant. Moreover, even during the time of trap, the panch witness who was the shadow witness has stated that there was lots of noise and he could not hear the conversation between the complainant and the accused. The prosecution has not proved the factum of demand beyond reasonable doubt in the entire evidence. Therefore, by no stretch of imagination, it can be inferred that demand was made by the appellant accused and one of the vital ingredients as regards to demand by the accused is missing, as such. In this view of the matter, considering the evidence on record wherein no independent witnesses have been examined to support the case of the prosecution and the case of the prosecution hinges on the evidence of the police official only, the judgment and order of conviction calls for interference by this Court. 19. In this view of the matter, considering the evidence on record wherein no independent witnesses have been examined to support the case of the prosecution and the case of the prosecution hinges on the evidence of the police official only, the judgment and order of conviction calls for interference by this Court. 19. In view of the aforesaid nature of evidence, it is clear that there is no clinching cogent and reliable evidence beyond reasonable doubt to confirm the conviction and the learned trial Court has committed an error in relying upon the version put forth by the prosecution. Therefore, as stated above, in the absence of specific and clinching evidence to prove all such acts by the accused, the conviction recorded by the learned trial Judge is not sustainable. 20. For the reasons recorded above, the appeal succeeds. The judgment and order of conviction dated 17.12.2006 rendered by learned Special Judge, Surat in Special ACB Case No. 2 of 2001 is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R&P be sent back to the trial Court, forthwith.