Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 635 (GUJ)

State Of Gujarat v. Rajnikant Tribhovandas Vyas

2024-03-26

S.V.PINTO

body2024
JUDGMENT : 1. This appeal has been filed by the appellant under Section 378(1)(3) of Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned Special Judge, Fast Track Court No. 4, Banaskantha at Palanpur (hereinafter referred to as “the learned Trial Court”) in Special ACB Case No. 81 of 2005 on 14.12.2006, whereby, the learned Trial Court has acquitted the appellant for the offence punishable under Sections 7, 13(1)(d) 1, 2, 3 and 13 (2) of the Prevention of Corruption Act, 1988 (hereafter referred to as “the PC Act” for short). The respondent is hereinafter referred to as the accused as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts that emerge from the record of the case are as under: 2.1 That the accused was working as a Gram Sevak in the Taluka Panchayat Office, Deesa at village Nana Kapra which was within the jurisdiction of the accused. That the complainant Thanaji Chamnaji Thakor was a resident of village Nana Kapra, Taluka Deesa, District Banaskantha and was covered in the category of ‘below poverty line’ and was having a BPL Card and entitled to the benefits of Indira Awaas Yojna. That the complainant Thanaji Chamnaji Thakor had filled up a form for taking benefits under the Indira Awaas Yojna and the form was sent to the Taluka Panchayat, Deesa but no relief was granted to the complainant. That on 21.02.2005, the complainant had visited the office of the Taluka Panchayat at Deesa to inquire about his form where the accused met him and told him that his papers were sent to the concerned authorities but as the transaction for sanction of the loan was not made, demanded an amount of illegal gratification of Rs. 4000/-. That the complainant had told the accused that he was not in a position to give the entire amount and hence, it was decided that the amount was to be paid in two equal installments of Rs. 2000/- each, one installment before the grant of relief and the other installment after the grant of relief. 4000/-. That the complainant had told the accused that he was not in a position to give the entire amount and hence, it was decided that the amount was to be paid in two equal installments of Rs. 2000/- each, one installment before the grant of relief and the other installment after the grant of relief. That the accused had demanded the amount on 22.02.2005 and as the complainant was not ready and willing to give the said amount of illegal gratification, the complainant approached the ACB Police Station, Palanpur and filed a complaint under Sections 7, 13(1)(d) 1, 2, 3 and 13 (2) of the PC Act on 22.02.2005. That the Trap Laying Office called the panch witnesses and the experiment of phenolphthalein powder, filter paper and Sodium Carbonate Solution was carried out and explained to the panch witnesses and the complainant and the trap was laid on 22.02.2005. That the complainant accompanied with the shadow witness, went to the Taluka Panchayat Office, Deesa and in the presence of the panch witnesses, the accused demanded for the amount of Rs. 2000/- and accepted the same and after the predetermined signal was given by the complainant, the members of the raiding party came and the accused was caught red handed. That the Investigating Officer recorded the statements of the connected witnesses, drew the necessary panchnamas and after receipt of sanction for prosecution from the Competent Authority, the charge-sheet against the accused was filed before the Sessions Court, Banaskantha which was registered as Special ACB Case No. 81/2005. 2.2 The accused was duly served with the summons and the accused appeared before the learned Trial Court, and after the procedure under Section 207 of the Code of Criminal Procedure was followed, a charge at Exh. 8 was framed against the accused and the statement of the accused was recorded at Exh. 9, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.3 The prosecution has produced the following oral evidences in support of their case. Sr. No. PW Particulars Exh. 1. 1 Thanaji Chamnaji Thakor 11 2. 2 Manilal Ranchhodbhai Solanki 16 3. 3 Rahmatullah Sawaikhan Sindhi 22 4. 4 Hathiji Becharji Chavda 32 2.4 The prosecution has produced the following documentary evidences in support of their case. Sr. No. Particulars Exh. 5. Complaint. 12 6. Panchnama 19 7. Sr. No. PW Particulars Exh. 1. 1 Thanaji Chamnaji Thakor 11 2. 2 Manilal Ranchhodbhai Solanki 16 3. 3 Rahmatullah Sawaikhan Sindhi 22 4. 4 Hathiji Becharji Chavda 32 2.4 The prosecution has produced the following documentary evidences in support of their case. Sr. No. Particulars Exh. 5. Complaint. 12 6. Panchnama 19 7. Seizure memo. 20 8. Yadi for verification of panches. 23 9. Service Book of the accused. 29 10. Order of Transfer of the accused. 30 11. FSL Report . 31 12. Sanction for prosecution. 35 2.5 After the learned APP filed the closing pursis the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded and after the arguments of the learned APP and the learned advocate for the accused were heard, the learned Trial Court by an judgement and order dated 14.12.2006 was pleased to acquit the accused from all the offences. 3. Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant – State has filed the present appeal mainly stating that the judgement and order of acquittal passed by the learned Trial Court is contrary to law, evidence on record and principles of justice. That the learned Trial Court has committed an error in acquitting the accused. That the learned Trial Court has not properly appreciated the evidence of the panch witness and has failed to appreciate that the deposition of the panch witness is corroborated by the panchnama in which it is clearly stated that the muddamaal currency notes were asked to be kept in a plastic bag by the accused from where it was recovered. That it cannot be said that the accused has not demanded or accepted the amount of illegal gratification and the evidence of Police Inspector Mr. Rahmatullah Sawaikhan Sindhi - the Trap Laying Officer has not been properly appreciated by the learned Trial Court. From the evidence of this witness who was discharging his duties as the Police Inspector, ACB Police Station, Palanpur and was present at the time of the trap, there is sufficient evidence against the respondent and the learned Trial Court has merely observed minor contradictions and omissions and has acquitted the accused, which is not proper. From the evidence of this witness who was discharging his duties as the Police Inspector, ACB Police Station, Palanpur and was present at the time of the trap, there is sufficient evidence against the respondent and the learned Trial Court has merely observed minor contradictions and omissions and has acquitted the accused, which is not proper. That the complainant had placed the tainted currency notes in the plastic bag at the instance of the accused and it cannot be said that the demand was not made. That the learned Trial Court has committed an error in appreciating the evidence and the impugned judgement and order passed by the learned Trial Court is illegal, erroneous and contrary to the evidence on record and the same is required to be quashed and set aside. 4. Heard learned APP Ms. Jirga Jhaveri for the prosecution and learned advocate Mr. R.J. Goswami for the respondent. 5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution and has submitted that even though the complainant has turned hostile, his deposition to the effect that he supports the case of the prosecution is required to be considered and the panch witness has stated that the complainant had placed the tainted currency notes of Rs. 2000/- in the plastic bag and had thereafter, given the predetermined signal and the members of the raiding party had rushed in the office and caught the accused and also recovered the tainted currency notes. That the deposition of PW3 – Rahmatullah Sawaikhan Sindhi who was the Trap Laying Officer fully establishes the guilt of the accused and the Investigating Officer has investigated the offence and has produced the necessary sanction for prosecution at Exh. 35. That in the entire evidence, the guilt of the accused is established and as the learned Trial Court has not appreciated the evidence properly, the impugned judgment and order of acquittal must be set aside. 6. Learned advocate for the accused has submitted that there is no iota of evidence that any demand for illegal gratification was ever made by the accused at any point of time and there is no evidence regarding the prior demand made by the accused. 6. Learned advocate for the accused has submitted that there is no iota of evidence that any demand for illegal gratification was ever made by the accused at any point of time and there is no evidence regarding the prior demand made by the accused. Except, bald allegations made in the complaint by the complainant, the complainant or the panch witnesses who were present at the time of the trap have not stated that the accused had made any demand of any amount of illegal gratification and the complainant has himself placed the tainted currency notes in the plastic bag from where it was recovered. The learned Trial Court has appreciated all the evidences in proper perspective and as there is no iota of evidence regarding any demand made by the accused, the impugned judgement and order does not suffer from any infirmity and no interference is required in the impugned judgement and order and the appeal of the appellant – State must be rejected. 6.1 Learned advocate for the respondent has relied upon the judgement of the Hon’ble Apex Court in case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248. 7. Before dissecting the evidences adduced by the prosecution on record before the learned Trial Court, it is essential to reiterate the cardinal principles of Criminal Jurisprudence as settled by the Hon’ble Apex Court in a catena of decisions and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot claim any benefit of the weaknesses of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution. 7.1 At the outset, before appraisal of the evidences produced by the prosecution before the learned Trial Court, it would also be appropriate to refer to observations of the Hon’ble Apex Court in the case of Neeraj Datta (supra), wherein, the Hon’ble Apex Court in para 68 has observed as under: “68. 7.1 At the outset, before appraisal of the evidences produced by the prosecution before the learned Trial Court, it would also be appropriate to refer to observations of the Hon’ble Apex Court in the case of Neeraj Datta (supra), wherein, the Hon’ble Apex Court in para 68 has observed 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. To bring home the charge against the accused, the prosecution has examined PW1 – Thanaji Chamnaji Thakor who is the complainant of the case. The witness has stated that he is the beneficiary of Indira Awaas Yojna and is a BPL Card Holder and he does not know as to whether the BPL Card Holders are eligible for any house. That he had given his papers to the Deesa Taluka Panchayat and had gone home and he had tried to get some amount but he was not successful and hence, he had gone to the ACB Office to file the complaint and had told the ACB Police that the TDO of the Taluka Panchayat and one Rawal Saheb are asking for money for sanction of the loan. That the ACB Office has taken the complaint and taken down his thumb impression and after that the ACB Officer has given him four currency notes of Rs. 500/-. That at that time, there were no other persons with him when he had gone to ACB Office with a driver. That when they went, Rawal Saheb was not present and hence, he had asked the accused where Rawal Saheb was and the accused had told him that Rawal Saheb was not present. That there was one bag hanging at the table of Rawal Saheb and the driver who had accompanied him, had made a sign to place the tainted currency notes in that bag. That there was one bag hanging at the table of Rawal Saheb and the driver who had accompanied him, had made a sign to place the tainted currency notes in that bag. That the driver had a mobile phone and when the driver pressed the switch of the mobile phone, the ACB Officials came and on inquiry, he had told them that he had placed the amount in the bag that from which the tainted currency notes were recovered. That no experiment was done on the hands of the accused or on his hands and he has not seen anything but has merely identified his thumb impression in the complaint produced at Exh. 12. The complainant has been declared hostile as he has not supported the case of prosecution and during the lengthy cross-examination by the learned APP, the witness has not supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, the witness has stated that there were two other clerks sitting in the office and Rawal Saheb was called and he had given his loan papers from cupboard. That his loan papers were given about 20 – 25 days prior to the incident of trap to Rawal Saheb. That the accused was continuously doing his work and the officer of the ACB had gone to other room and had prepared the documents. 8.1 The prosecution has examined PW2 – Manilal Ranchhodbhai Solanki at Exh. 16 and this witness is the shadow witness who had accompanied the complainant at the time of trap. The witness has narrated the chronology of events that has taken place and has stated that in the ACB Office, after the experiment of phenolphthalein powder and Sodium Carbonate was done, the tainted currency notes were placed by the ACB Office in the left shirt pocket of the complainant and he had accompanied the complainant to the office of the accused. That when they went, the accused was not present and thereafter, the accused came and was sitting in his seat and at that time, a conversation about the loan papers for the house had taken place. That the accused had told the complainant that Rawal Shaheb was out and the papers of loan are with Rawal Saheb and thereafter, the complainant had placed the tainted currency notes of Rs. That the accused had told the complainant that Rawal Shaheb was out and the papers of loan are with Rawal Saheb and thereafter, the complainant had placed the tainted currency notes of Rs. 2000/- in the plastic bag placed at the side of the accused. That the complainant went out and gave the predetermined signal and the members of the raiding party came and caught the accused. During the cross-examination, the witness has stated that the accused had merely asked the complainant as to why he had come and while the accused was writing, the complainant had placed the tainted currency notes in the bag. That the accused had told the complainant that he had given the papers to Mr. Rawal and besides this, no other conversation had taken place. That the documents of the loan were in the cupboard belonging to Mr. Rawal and the keys of the cupboard were also with Mr. Rawal. That the officers of the ACB had sent their vehicle and called Mr. Rawal and the documents of loan were seized from the cupboard of Mr. Rawal. That the sequence of events were noted by Police Inspector Mr. Chavda and Police Inspector Mr. Sindhi and on the basis of those notes, the writer had written the panchnama and all the signatures of the panch witnesses were taken at Deesa. 8.2 The prosecution has examined PW3 – Rahmatullah Sawaikhan Sindhi at Exh. 22 and this witness is the Trap Laying Officer and he has narrated all the sequence of events that has taken place. The witness has, during the cross-examination, stated that the documents at Exh. 21 were seized from Vasudev and the documents which were given to Vasudev by the accused on 01.02.2005. That when he had sent the muddamaal to FSL, he had not sent the samples of the Phenolphthalein powder; and the tainted currency notes were not sent to the FSL. That the tainted currency notes were not sealed at the time when they were seized. 8.3 The prosecution has examined PW4 – Hathiji Becharji Chavda at Exh. 32 and this witness is the Investigating Officer who has investigated the offence. The witness has produced the sanction for prosecution at Exh. 35 and had thereafter, filed the charge-sheet against the accused. 9. 8.3 The prosecution has examined PW4 – Hathiji Becharji Chavda at Exh. 32 and this witness is the Investigating Officer who has investigated the offence. The witness has produced the sanction for prosecution at Exh. 35 and had thereafter, filed the charge-sheet against the accused. 9. It is settled law that in case under the PC Act, the prosecution has to prove the demand, acceptance and recovery beyond reasonable doubt and without proof of demand and acceptance of illegal gratification by a public servant which is the sine qua non in order to establish the guilt of the accused under Section 7 and Section 13(1)(d) of the PC Act, the accused cannot be convicted. The prosecution has to first prove the demand of illegal gratification and subsequently the acceptance, in order to bring home the charge against the accused and even if the complainant has turned hostile, the prosecution can prove the case by circumstantial evidence. In the instant case, the complainant Thanaji Chamnaji Thakor who is examined at Exh. 11 has turned hostile and has not supported the case of the prosecution and hence, the prior demand or the demand at the time of trap, has not been proved by the prosecution from the evidence of the complainant beyond reasonable doubt. That the panch witness who was the shadow witness and had accompanied the complainant at the time of trap has been examined at Exh. 16 but this witness also does not state anything about any demand of illegal gratification made by the accused at the time of trap. The witness had deposed to the effect that the accused was seated at this desk and was doing his work and has asked the complainant why he had come and had told the complainant that his documents were already given to Mr. Rawal. There is also evidence on record to the effect that the loan documents of the complainant were recovered from the custody of Mr. Rawal and they were in the cupboard of Mr. Rawal from where they were seized. The Trap Laying Officer has stated that the documents were recovered from the custody of Vasudev and not from the custody of the present accused and the panch witness who is the shadow witness and had accompanied the complainant at the time of trap; has stated that the accused was merely sitting and writing and doing his work. The Trap Laying Officer has stated that the documents were recovered from the custody of Vasudev and not from the custody of the present accused and the panch witness who is the shadow witness and had accompanied the complainant at the time of trap; has stated that the accused was merely sitting and writing and doing his work. The factum of demand has not been proved by the prosecution beyond reasonable doubts and there is no iota of evidence that even at the time of the trap, the accused had demanded for any illegal gratification from the complainant. Moreover, there is evidence on record that the documents of the complainant i.e. the loan papers were already handed over to Mr. Rawal by the accused and there was no reason for the accused to demand any illegal gratification from the complainant. In the evidence of the Trap Laying Officer, it has also come on record that the tainted currency notes were not sent to the FSL by the Investigating Officer for investigation and there is also evidence that the panchnama was not prepared at the place of trap; in the evidence of the panch witness. 10. The prosecution has not proved the factum of demand beyond reasonable doubt and as far as the evidence regarding the acceptance is concerned, there is evidence on record to show that the complainant had himself placed the tainted currency notes in a plastic bag which was lying behind the chair of the accused and there is no evidence to show that the accused had in fact told the complainant to place the amount of illegal gratification in the plastic bag. That the acceptance of the illegal gratification is also not proved by the prosecution beyond reasonable doubt as it appears that while the accused was busy with his writing work, the complainant has merely placed the tainted currency notes in the plastic bag behind the chair of the accused from where it was recovered. 11. The learned Trial Court has, in the impugned judgement and order recorded the findings that the prosecution has not proved the demand and acceptance beyond reasonable doubts and has also observed that the accused had not made any demand for any illegal gratification from the complainant even at the time of the trap. 11. The learned Trial Court has, in the impugned judgement and order recorded the findings that the prosecution has not proved the demand and acceptance beyond reasonable doubts and has also observed that the accused had not made any demand for any illegal gratification from the complainant even at the time of the trap. There is no iota of evidence regarding the prior demand, if any, made by the accused and in view of the settled position of law and decision of Hon’ble Apex Court in Neeraj Datta (supra) and appraisal of the evidence produced by the prosecution, the reasons assigned by the learned Trial Court are just and proper. This Court is of the considered opinion that the learned Trial Court is completely justified in acquitting the accused from all the charges levelled against him and the findings recorded by the learned Trial Court are absolutely just and proper and there is no illegality, infirmity or perversity in the impugned judgement and order passed by the learned Trial Court. This court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court and finds no reason to interfere with the impugned judgement and order. 12. In view of the above discussions, the present appeal is devoid of merits and resultantly the same is dismissed. The impugned judgement and order of acquittal passed by the learned Special Judge, Fast Track Court No. 4, Banaskantha at Palanpur in Special ACB Case No. 81 of 2005 on 14.12.2006 is hereby confirmed. 13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.