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2024 DIGILAW 531 (GUJ)

State of Gujarat v. Raghubhai Sayajibhai Nayak

2024-03-14

S.V.PINTO

body2024
JUDGMENT : S.V. PINTO, J. 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 31.03.2005 passed by the learned Special Judge, Fast Track Court No. 3, Valsad (herein after referred to as ‘the learned Trial Court’) in Special (ACB) Case No. 1 of 2002, whereby, the learned Trial Court has acquitted the respondent from the offences punishable under Sections 5(1)(d) and 5(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 this appeal, the respondent No. 2 expired and hence the appeal qua the respondent No. 2 was abated by an order dated 10.10.2022. 2. The brief facts that emerge from the record of the case are as under: 2.1 That in the year 1987, the accused No. 1 Raghubhai Sayajibhai Nayak was working as the District Manager, at Valsad and the accused No. 2 was working as the Assistant Manager in the Gujarat Tribunal Development Corporation at Valsad. That at that time, Vinodbhai, the son of the complainant Zinabhai @ Jayantibhai Shivjibhai Patel had applied for a loan for purchase of welding works equipment and an amount of Rs. 20,000/- was sanctioned on 21.07.1987. That a subsidy of Rs. 3,000/- was available on the loan amount and the necessary documents were sent to the office of the accused from UCO Bank, Valsad. That the accused No. 2 had issued the certificate on 16.11.1992 for the subsidy and the accused No. 1 had signed the said certificate. However, the said certificate was not issued and was kept in custody of the accused for two months. That both the accused in connivance with each other, demanded an amount of Rs. 200/- and Rs. 100/- for as illegal gratification for issuance of the said certificate and had stated that they would process the documents only after the amount was paid. That the complainant did not want to pay the amount of illegal gratification and hence approached the ACB Police Station, Valsad and a complaint at C.R. No. 1 of 1988 was registered on 04.01.1988 under Sections 161, 165A and 34 of the Indian Penal Code, 1860 and Sections 5(1)(d) and Section 5(2) of the Prevention of Corruption Act. That the complainant did not want to pay the amount of illegal gratification and hence approached the ACB Police Station, Valsad and a complaint at C.R. No. 1 of 1988 was registered on 04.01.1988 under Sections 161, 165A and 34 of the Indian Penal Code, 1860 and Sections 5(1)(d) and Section 5(2) of the Prevention of Corruption Act. That the trap laying Officer called the panch witnesses and after explaining and doing the experiment of anthracene power and ultraviolet lamp, the trap was laid on 04.01.1988 and between 14:10 and 14:15 hrs, the accused No. 1 in the presence of the shadow witness had demanded and accepted the amount of Rs. 200/- and the accused No. 2 had demanded and accepted the amount of Rs. 100/- and the trap was successful. That the tainted currency notes were recovered from the custody of both the accused and after due investigation, a charge-sheet came to be filed before the Sessions Court at Valsad, which was registered as Special Case (ACB) No. 1 of 2002. 2.2 That the accused were duly summoned after the due procedure under Section 207 of the Code of Criminal Procedure, 1973 and a charge at Exh.2A was framed against the accused and the statements of both the accused were recorded at Exh.3 and Exh.4 respectively, wherein both the accused denied the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution has examined three witnesses and has produced 25 documentary evidences on record and after the closing pursis was filed by the learned Additional Public Prosecutor at Exh.45, the further statement of the accused under Section 313 of the Criminal Procedure Code, 1973 was recorded, wherein, both the accused have stated that they are innocent and they have not demanded and accepted any illegal gratification from the complainant. That the learned trial Court on appreciating the evidence of the prosecution found that the demand and acceptance was not proved by the prosecution and by a judgment and order dated 31.03.2005 acquitted both the accused from all the offences. 3. That the learned trial Court on appreciating the evidence of the prosecution found that the demand and acceptance was not proved by the prosecution and by a judgment and order dated 31.03.2005 acquitted both the accused from all the offences. 3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal dated 31.03.2005, the appellant-State has filed the present appeal mainly stating that the judgment and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has not appreciated the oral and documentary evidence produced on record. That the Investigating Officer has followed the due procedure before setting up the trap, which was successful and the sanction for prosecution has been granted by the competent authority after perusing all the documents. That, the tainted currency notes were recovered from the accused and the test of ultraviolet lamp for anthracene powder was also positive. That, the learned Trial Court has not appreciated the deposition of Prosecution Witness No. 1 Naginbhai Vasavabhai Chaudhary, who was the shadow witness and it is on record that the accused no. 2 had demanded for the amount but had denied accepting the same in the presence of the panch witness and hence the panch witness was asked to leave the room and thereafter, the tainted currency notes were accepted from the complainant. That the panch witness has clearly supported the case of the prosecution and the defense raised by the accused have not been supported by any cogent evidence and merely because of minor contradiction, the learned Trial Court has acquitted the accused, which is not proper. That the impugned judgment and order of learned Trial Court is perverse and bad in the eye of law and is required to be quashed and set aside. 4. Heard learned Additional Public Prosecutor Mr. Bhargav Pandya for the appellant-State and learned advocate Mr. Adil Mirza for the accused No. 2. 5. Learned Additional Public Prosecutor Mr. Bhargav Pandya for the appellant has taken this Court through the entire evidence produced by the prosecution and has submitted that the prosecution has proved that the tainted currency notes were recovered from the office of the accused. Bhargav Pandya for the appellant-State and learned advocate Mr. Adil Mirza for the accused No. 2. 5. Learned Additional Public Prosecutor Mr. Bhargav Pandya for the appellant has taken this Court through the entire evidence produced by the prosecution and has submitted that the prosecution has proved that the tainted currency notes were recovered from the office of the accused. That the hands of the accused No. 2 were found with traces of anthracene powder in the ultraviolet lamp Test and even the trap laying officer has deposed that he had found the accused No. 2 counting the currency notes at the time of the trap. That it is settled by the Honourable Apex Court in a catena of decisions that if the complainant has expired and the evidence of the complainant cannot be brought on record for any reason, the contents of the complaint can be proved by circumstantial evidence and in this case, the complainant has expired and his evidence has not been produced before the learned Trial Court but the same has been proved from the evidence of other witnesses. That the recovery of the tainted currency notes is proved beyond reasonable doubts by the prosecution and hence the impugned judgment and order of acquittal must be quashed and set aside and the accused be convicted for the offence. 6. Learned advocate Mr. Adil Mirza appearing for the accused No. 2 has submitted that in the evidence of the prosecution, it has come on record that the panch witness Naginbhai Vasavabhai Chaudhary has read the panchnama before deposing before the learned trial Court and the panchanama has not been dictated by any of the panch witness. The panch witness who was the shadow panch witness and was with the complainant, at the time of the trap, has categorically stated that there was no demand from any of the accused and he has not seen the acceptance of the tainted currency notes by any person. Moreover, the panch witness, during the examination-inchief has stated that when he went along with the complainant in the chamber of the accused No. 1, the accused No. 1 had told him to go out of the chamber, and hence he came out of the chamber and after the complainant came out from the chamber of the accused No. 1, he went with the complainant to the accused No. 2. In the cross examination, the panch has clearly stated that the panchnama was not dictated by him or the panch witness No. 2 and the panchnama was dictated by Mr. Yadav, Police Inspector and they had merely affixed their signature on the panchnama . That he has not heard any conversation between the complainant and the accused and when the members of the raiding party came into office, the currency notes were lying on the table and the Manager was seated on his chair. Moreover, the panchnama was not written in the chamber of the Manager and it was not written as the incident had occurred but it was written as per the memory of the police inspector and thereafter they had merely affixed their signature on the panchnama. Moreover, the witness has also admitted that he was not willing to be as a panch witness in this case and he had gone as a panch witness , on the instruction of his superior officer and if he did not obey the order of the superior officer departmental action would be taken against him. He does not know as to who had picked up the tainted currency notes from the table and none of the accused had made demand of any amount in his presence. 6.1 The learned advocate for the accused has relied on the judgment of the Honourable Gujarat High Court in the case of Kanubhai Kantibhai Patel vs. State of Gujarat, 1998 (1) GLH 924 in support of his case. The relevant paragraph No. 9 reads as under: “9. Even if the case of acceptance is believed, mere acceptance of the amount will not constitute the offence. It must be shown that illegal gratification was demanded by accused as a motive or reward for doing or forbearing to do any official acts or for showing or forbearing to show favour or disfavour in the exercise of his official function or for rendering any services or disservice to any one. Here in this case as discussed above the case of demand is not clearly established. The talk took place formerly is also not clearly established and there is nothing on record going: to show that for doing a particular work namely mutation, the amounts were demanded and accepted. On the contrary the evidence reveals that there is simple acceptance without any demand. The talk took place formerly is also not clearly established and there is nothing on record going: to show that for doing a particular work namely mutation, the amounts were demanded and accepted. On the contrary the evidence reveals that there is simple acceptance without any demand. In view of the above discussion, the offence simply on acceptance cannot be said to have been constituted.” 6.2 The learned advocate for the accused has also relied on the judgment of the Gujarat High Court in the case of Gopalla Ghisulal Chhipa and Others vs. State of Gujarat, 1998 (1) GLH 943 in support of his case. The relevant paragraph No. 8, reads as under: “8. My attention was drawn to the decision of the Supreme Court in the case of Bhagwansingh vs. State of Rajasthan wherein it is held that if everything is done by the police officer, it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. In that case, the complaint was recorded by the Investigating Officer, raid was also carried out by the Investigating Officer, search and seizure were also made by him and thereafter the investigation was also carried out by him and the charge-sheet was also filed by him before the Court. In this case, Mr. Vyas, the P.S.I. has also done everything right from recording of the complaint till the charge-sheet was filed before the Court. When that is so, the credibility of the case of the prosecution is certainly doubtful and the prosecution case must fail on that count. Even if this tarnishing point is ignored and the evidence is considered, there is nothing which would lead me to hold that the prosecution has succeeded in establishing the charge leveled against the deceased appellant.” 7. Before the evidence of the prosecution is appreciated and dissected, it is essential to reiterate the cardinal principles of criminal jurisdiction as settled by the Honourable Apex Court in a Catena of decision and the first cardinal principle is that the prosecution in a criminal trial is required to prove the case against the accused beyond reasonable doubts and the prosecution cannot benefit from the weaknesses of defence. The second cardinal principle Is that in a criminal trial, the accused is presumed to be innocent unless and until he is found guilty by the evidence produced by the prosecution beyond reasonable doubts and the third cardinal principles of law is that the onus of burden of proof never shifts from the prosecution. 8. In acquittal appeals under the Prevention of Corruption Act in a catena of decisions of the Honourable Apex Court has held that the prosecution has to prove the demand made by the public servant, which is a sine qua non for the offence under the Prevention of Corruption Act. That the demand and acceptance of illegal gratification by a public servant must be proved beyond reasonable doubts to bring home, the guilt of the accused and the prosecution has to lead oral and documentary evidence to prove the demand and acceptance. It is also settled that the same can be proved by direct evidence or circumstantial evidence. Moreover, if the complainant turns hostile or had died or is not available to lead evidence, the demand of illegal gratification can be proved by circumstantial evidence and the trial will not abate or result in acquittal. 9. To bring home the charge against the accused, the prosecution has produced oral and documentary evidence on record and the prosecution has examined prosecution witness No. 1 Naginbhai Vasabhai Chaudhary at Exh.8 and the witness is the panch witness, who was the shadow witness and had accompanied the complainant to the office of the accused. The witness has stated that he had gone to the office of the ACB Police Station along with the other panch Rajnikant Parmar and at that time, the complainant Jinabhai @ Jayantibhai was present and the Police Inspector had showed him the complaint and had explained that the accused No. 1 had demanded the illegal gratification of Rs. 200/- and the accused No. 2 had demanded an illegal gratification of Rs. 100/- and the complainant had given the amount of Rs. 300/- to be paid as illegal gratification to Police Inspector. That the experiment of anthracene powder and the ultraviolet lamp was done and explained and showed to the panch witnesses as also the complainant and thereafter the currency notes laced with the anthracene powder was also shown to the complainant and the panch witness. That the amount of Rs. 300/- to be paid as illegal gratification to Police Inspector. That the experiment of anthracene powder and the ultraviolet lamp was done and explained and showed to the panch witnesses as also the complainant and thereafter the currency notes laced with the anthracene powder was also shown to the complainant and the panch witness. That the amount of Rs. 200/- was placed by the head constable in the left shirt pocket of the complainant and the amount of Rs. 100/- was placed in the right side pant pocket of the complainant. That the predetermined signal to be given was explained and the the witness had gone with the complainant to the office of the Gujarat Tribunal Development Corporation and they went to the chamber of the accused No. 1 but the accused No. 1 made a sign and told the complainant to send the panch witness out of the chamber. That the witness went out and thereafter the complainant came out and went to the accused No. 2 but the complainant did not go with him. That, thereafter, the complainant made the predetermined signal and the members of the raiding party came immediately and identified themselves and the tainted currency notes of Rs. 200/- were found from a book on the table of the accused No. 1 and the tainted currency notes of Rs. 100/- was found on the table of the accused No. 2. During the cross examination, the panch witness has stated that the he had read the panchnama before his deposition and hence has been able to depose chronologically about the evidence in the panchnama. That there is no crime register number written on the complaint and the witness or panch witness No. 2 has not dictated the contents of the panchnama. That the panchnama has been written by Police Inspector Mr. Yadav and after the panchnama was ready, both the panch witnesses were asked to sign the same and they had signed on it. That he has not seen any transaction between the complainant and the accused and has not heard any conversation between the complainant and the accused. That when the members of the raiding party came, the accused No. 2 was seated and the currency notes were lying on the table. That he has not seen any transaction between the complainant and the accused and has not heard any conversation between the complainant and the accused. That when the members of the raiding party came, the accused No. 2 was seated and the currency notes were lying on the table. That the panchnama was not written in the chamber of the accused No. 1 and it was not written as the evidence unfolded but after the entire procedure had taken place, it was written as per the memory of the Police Inspector Mr. Yadav. That no rough notes were made and after the panchnama was written both panch witnesses were asked to affix their signature and they had done so. That he cannot state that as to how many fingers of the accused No. 2 had light blue fluorescent colour on them and he had gone as a panch witness on instructions of the superior officer and not his own will and if he did not obey the instructions of the superior officer, the departmental inquiry would be initiated against him. 9.1 The prosecution has examined Prosecution Witness No. 2 Pareshkumar Sanjivbhai Kothari at Exh.36 and this witness was working in the office of Gujarat Tribunal Development Corporation, Valsad at the time of the raid. The witness has stated that while he was working in the office, the accused No. 1 was the Manager and the accused No. 2 Assistant Manager, and at that time the complainant had filed an application for a bank loan and hence he knows the complainant. That in 1988, an ACB trap case was filed against both the accused and when Police Inspector, Mr. Yadav came into his office, he came to know that there was a trap. That the complainant had earlier come into his office with one person and they had approached the Assistant Manager, but he does not know as to what had taken place between them. That before they came to the Assistant Manager they had gone into the chamber of the Manager and he had not heard any conversation taking place between them and neither had he sent nor received any thing. During the cross examination, the witness has stated that he has not seen what items were lying on the table of the accused No. 2 on the date of the trap and his statement was recorded by PI Mr. During the cross examination, the witness has stated that he has not seen what items were lying on the table of the accused No. 2 on the date of the trap and his statement was recorded by PI Mr. Yadav on 04.04.1988. That his statement was merely taken down by the officer of the ACB as per their convenience and in the year 1988, there was trap case under the Prevention of Corruption Act filed against him by the officer of the ACB. That the case under the Prevention of Corruption Act was filed after the present trap case and after a period of three to four months of this trap, a trap was arranged against him. The officer who had arranged the trap against him was Mr. Yadav, Police Inspector, ACB, the same trap laying officer of this case. That on the date of incident, he ran out of the office as he was afraid. 9.2 The prosecution has examined Prosecution Witness No. 3 Amar Mohanlal Yadav at Exh.38 and this witness is the trap laying officer, who has fully supported the case of the prosecution. That, he had taken down the complaint of the complainant and had arranged for the trap, which was successful. That the witness had thereafter taken necessary sanction for prosecution against the accused from the competent authority and had also filed the charge sheet against the accused. 10. On minutely scrutinizing the evidence produced by the prosecution on record before the learned Trial Court, the infirmity in the case of the prosecution has come to the surface and as the complainant has expired, no evidence with regard to the prior demand has come on record. That the complaint has been brought on record, in the deposition of the Trap Laying Officer Amarsinh Mohanlal Yadav and the same has been produced at Exh.48. That besides the evidence of the shadow witness, Prosecution witness No. 1 Naginbhai Vasavabhai Chaudhary, and the evidence of Prosecution Witness No. 3 Amarsinh Mohanlal Yadav, who was the Trap Laying Officer and has done the entire procedure from filing of the complaint to filing of the charge sheet, there are no other witness examined by the prosecution. That besides the evidence of the shadow witness, Prosecution witness No. 1 Naginbhai Vasavabhai Chaudhary, and the evidence of Prosecution Witness No. 3 Amarsinh Mohanlal Yadav, who was the Trap Laying Officer and has done the entire procedure from filing of the complaint to filing of the charge sheet, there are no other witness examined by the prosecution. That the panch witness has categorically stated that he had read the panchnama before setpping into the witness box before the learned Trial Court and has also stated that the panchnama was not dictated or written as per his say or as per the say of the panch no. 2. Moreover, in the evidence of the panch witness, it has also come on record that the panchnama was not written as the events unfolded and it was written later on as per the memory of the Police Inspector-Trap Laying Officer Mr. Yadav. That both the panch witnesses have merely affixed their signatures on the panchnama and the panch witness was not willing to be a panch witness in the trap case and was a reluctant witness. Moreover, the panch witness has clearly stated that he has not heard or seen anything that had taken place between the complainant and the accused. As far as the evidence of prosecution witness No. 2 Pareshbhai Sanjivbhai Kothari is concerned, the witness is the person, who was working in the same office as the accused and was an eye witness to the trap but his statement has been recorded by the Investigating Officer four months after the trap has taken place. There is no explanation as to why the statement of the witness even though he was an eye witness and present in the office at the time of Trap was not recorded on the day of the trap or immediately thereafter and it has come on record that the statement was recorded after a trap case was filed against the witness by the same trap laying officer Mr. Amarsingh Mohanlal Yadav. The deposition of the witness does not help the prosecution in any manner whatsoever and the witness has categorically has stated that he has not witnessed that had taken place between the complainant and the accused. 11. In the entire evidence of the prosecution, the demand is not proved and there are major contradictions regarding the acceptance also. The deposition of the witness does not help the prosecution in any manner whatsoever and the witness has categorically has stated that he has not witnessed that had taken place between the complainant and the accused. 11. In the entire evidence of the prosecution, the demand is not proved and there are major contradictions regarding the acceptance also. The panch witness has stated that the tainted currency notes were lying on the table of the accused No. 2 whereas the Trap Laying Officer has stated that the accused No. 2 was counting the notes and had the tainted currency notes in his hands. Moreover, even if , the Trap Laying Officer is believed to the extent that the hands of the accused No. 2 were found with the traces of the anthracene powder and the case of acceptance is believed , it would not constitute the offence as a proof of demand of illegal gratification beyond reasonable doubts is the Sine qua non for an offence under the Prevention of Corruption Act. Even otherwise, the panchnama was not dictated by panch witness but was dictated by the Trap Laying Officer and the panch witness has clearly sated that he had merely affixed the signature on the panchnama after he was prepared. 11.1 Moreover, in the present case, it has come on record that Mr. Amarsinh Mohalal Yadav, the Police Inspector, ACB Police Station had recorded the complainant of the complainant and had called the panch witness and had laid the trap and concluded the entire procedure of the trap. That thereafter, the search and seizure was also conducted by him and the entire investigation was done by him and he has also filed the charge sheet after receipt of the sanction for prosecution. In these circumstances a shadow of doubt is cast on the credibility of the case of the prosecution and the case of the prosecution must fail in view of the judgment of this Court in Gopalla Ghisulal Chhipa (supra). 12. As discussed above, the demand of illegal gratification, acceptance of the tainted currency notes and recovery of the tainted currency notes is not clearly established by the prosecution beyond reasonable doubt and hence, the prosecution has not proved the case against the accused in light of the settled principles of law. 12. As discussed above, the demand of illegal gratification, acceptance of the tainted currency notes and recovery of the tainted currency notes is not clearly established by the prosecution beyond reasonable doubt and hence, the prosecution has not proved the case against the accused in light of the settled principles of law. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them . The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. 13. 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 31.03.2005 passed by the learned Special Judge, Fast Track Court No. 3, Valsad in Special (ACB) Case No. 1 of 2002 is hereby confirmed. Bail bonds stand canceled. 14. Record and proceedings be sent back to the concerned Trial Court forthwith.