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2024 DIGILAW 640 (GUJ)

Muljibhai Dahyabhai Patel v. State of Gujarat

2024-03-26

S.V.PINTO

body2024
JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellant-original accused under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment and order of conviction in Special (ACB) Case No. 15 of 2001 passed by the learned Presiding Officer, 6th Fast Track Court, Surat (herein after referred to as ‘the learned Trial Court’) on 19.04.2006, whereby, the learned Trial Court has convicted the respondent for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (herein after referred to as ‘the P.C. Act’). 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 relevant facts leading to filing the conviction appeal are as under: 2.1. That the accused in the year 2001 was working as Talati-cum-Mantri in Takarma Gram Panchayat and was a public servant and the complainant Mahendrabhai Maganbhai Patel had property bearing Survey No. 292 in Takarma village. The complainant wanted the name of his wife Kanchanben and his son Bharatbhai to be mutated in the revenue record as joint owners and had submitted the partition deed as also the pedigree to the accused and had orally told the accused to get the names mutated but the accused did not get the names entered in the revenue record. That on 18.07.2001, the complainant gave a written application and at that time, the accused demanded an amount of Rs. 4,000/- as illegal gratification and after bargaining, the amount was fixed at Rs. 3,000/- The complainant did not want to pay the amount of illegal gratification to the accused and hence, he went to the ACB Police Station, Surat on 19.07.2001 and gave the complaint against the accused, which was registered at C.R. No. 9 of 2001 under Section 7, 13(1)(d) and 13(2) of the P.C. Act. That the amount of illegal gratification was to be paid on 23.07.2001 and hence, the Trap Laying Officer called the panch witnesses and the entire experiment of anthracene powder and ultraviolet lamp test was done and the trap was laid down and the complainant and the shadow witness went to the office of the accused on 23.01.2001. That the amount of illegal gratification was to be paid on 23.07.2001 and hence, the Trap Laying Officer called the panch witnesses and the entire experiment of anthracene powder and ultraviolet lamp test was done and the trap was laid down and the complainant and the shadow witness went to the office of the accused on 23.01.2001. At that time, the accused gave a notice under Section 135(d)(2) of the Land Revenue Code and the statements of the wife and the son of the complainant to the complainant and told him to bring the signatures of his wife and son on the statements. That the accused did not demand for any amount and the trap was failed The accused called the complainant on 24.07.2001 with the documents and the complainant went to the ACB Police Station, where, his further complaint was recorded. On 24.07.2001, the complainant and the shadow witness once again went to Takarma Gram Panchayat at about 12.20 hours and at that time, the accused demanded the amount of Rs. 3,000/- as illegal gratification, which was given by the complainant and accepted by the accused and the complainant gave the pre-determined signal and the members of the raiding party rushed in and caught the accused red handed. The complaint under section 7, 13(1)(d) and 13(2) of the P.C. Act was recorded and after due investigation, a charge sheet was filed before the learned Sessions Court, Surat, which came to be registered as Special (ACB) Case No. 15 of 2001. 2.2. The accused was summoned and after following the procedure of Section 207 of the Code of Criminal Procedure, a charge was framed by the learned Trial Court at Exh.7 and the statement of the accused was recorded at Exh.8, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution has produced the following oral as well as documentary evidence in support of the case. ORAL EVIDENCE: S. No. Particulars Exhibit 1 Dineshbhai Jamubhai Lad 12 2 Mahendrabhai Nagarbhai Patel 26 3 Thakorbhai Bhimabhai Patel 33 4 Lalmahammad Jummakhan Merunjay 36 5 Kirtikumar Manchhabhai Chaudhari 36 DOCUMENTARY EVIDENCE: S. No. Particulars Exhibit 1 Complaint 27 2 Further complaint 38 3 Panchanama 13 4 Panchnama 14 5 Seizure Memo 16 6 Arrest Panchnama 15 7 Sanction Order 40 2.3. After the closing pursis was submitted by the learned APP at Exh.43, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded and the arguments of the learned APP and learned advocate for the accused were heard and the learned Trial Court, by the impugned judgment and order dated 19.04.2006, convicted the accused and sentenced the accused to 2 years rigorous imprisonment and fine of Rs. 15,000/- and in default, imprisonment of three months for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. 3. Being aggrieved and dissatisfied with the impugned judgment and order dated 19.04.2006 passed by the learned Presiding Officer, Fast Track Court No. 6, Surat, the appellant has filed the present appeal mainly contending that the impugned judgment and order is illegal, improper and unjust and has been passed without considering the material on record. The learned Trial Court has not appreciated the evidence in true perspective. The learned Trial Court has failed to consider the statement of the independent witnesses that have been recorded by the Investigating Officer, but no independent witnesses have been examined by the prosecution and the evidence of the independent witnesses has deliberately been kept aside and suppressed and the presumption must go against the prosecution. That the defense has consistently maintained that there was no cause in existence as the names of the wife and the son of the complainant was mutated on 02.06.2001 vide Mutation Entry No. 4369, which was much prior to the date of complaint i.e. 19.07.2001. There was no cause, for which, the accused had demanded the illegal gratification and the motive has not been proved against the accused. The necessary entry was made by the accused in discharging his duty and the sanction has been given by the Deputy District Officer, who is not a competent authority to grant the sanction for prosecution. Moreover, the learned Trial Court has failed to consider the principle of double jeopardy as per the case of the prosecution, the trap was laid on 23.07.2001, but it had failed. The complainant has, thereafter, filed a further complaint on 24.07.2001 pursuant to which, the trap was laid. Moreover, the learned Trial Court has failed to consider the principle of double jeopardy as per the case of the prosecution, the trap was laid on 23.07.2001, but it had failed. The complainant has, thereafter, filed a further complaint on 24.07.2001 pursuant to which, the trap was laid. That the provision of demand and acceptance are not satisfied and the panch witnesses have stated that there were no explanation about the use of the anthracene powder and the ultraviolet lamp. The accused had already mutated the entry in the revenue record on 02.06.2001 and the complainant has categorically admitted that no demand of any illegal gratification was made prior to the mutation of the entry in the revenue record, but the learned Trial Court has not appreciated the entire evidence in proper perspective and the impugned judgment and order of conviction is without appreciation of the relevant material evidence on record and the same must be quashed and set aside and the accused must be acquitted from the all the offences. 4. Heard learned advocate Mr. Shakeel Qureshi for the appellant and learned APP Ms. Divyagna Jhala for the respondent-State. 5. Learned advocate Mr. Shakeel Qureshi has taken this Court through the entire evidence by the prosecution and has submitted that the accused has discharged his duty as a Talati-cum-Mantri and has entered the name of the wife and the son of the complainant vide Mutation Entry No. 4369 on 02.06.2001. That even on 23.07.2001, the accused did not demand any amount and gave a copy of the notice under Section 135(d)(2) of the Land Revenue Code and the statements of the wife and the son of the complainant to the complainant to be signed by them and if there was any demand of the amount of illegal gratification, the accused would have made the same before mutating the name of the wife and the son of the complainant on 24.07.2001. It is proved that no demand of illegal gratification, whatsoever, was made by the accused and the sanction for prosecution was given by the Deputy District Officer, who is not the competent authority to give the sanction for the prosecution of the accused. The prosecution has not proved the case against the accused beyond reasonable doubts and therefore, the impugned judgment and order may be quashed and set aside. 5.1. Learned Advocate Mr. The prosecution has not proved the case against the accused beyond reasonable doubts and therefore, the impugned judgment and order may be quashed and set aside. 5.1. Learned Advocate Mr. Shakeel Qureshi for the accused has relied upon the following decisions: (i) K. Sahnthamma vs. State of Telangana, 2022 (0) AIJEL-SC 68400 (ii) Neeraj Dutta vs. State (Govt. of NCT of Delhi), 2023 (0) AIJEL-SC 70625 (iii) Soundarajan vs. State Rep. by the Inspector of Police Vigilance Anticorruption Dindigul, 2022 (0) AIJEL-SC 70804 6. Learned APP Ms. Divyangna Jhala for the respondent-State has opposed the present appeal and has mainly stated that the learned Trial Court has appreciated all the evidence properly and no order of interference in required in the impugned judgment and order, hence, the present appeal may be dismissed. 7. Before minutely dissecting the evidence that have been brought on record by the prosecution before the learned Trial Court, it is necessary to reiterate the principles of cardinal jurisprudence as settled by the Apex Court in a catena of decision and the first principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot take any benefit of the weakness of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent until he is proved guilty by the evidence adduced by the prosecution on record beyond reasonable doubts and the third principle is that the onus of burden never shifts from the prosecution. 8. To bring home the charge against the accused, the prosecution has examined PW-1 Dineshbhai Jamubhai Lad at Exh.12. This witness is the panch witness, who had accompanied the complainant to the Takarma Gram Panchayat and the witness has stated that he was called to the ACB Police Station on 21.07.2001, but he had gone there along with other panch witnesses on 23.07.2001 at about 8.00 a.m. When they reached, the ACB Office, the complainant was present and he was introduced to both the panch witnesses and the facts of the complaint were intimated to then. The complainant had taken currency notes of Rs. 3,000/- which were denomination of Rs. The complainant had taken currency notes of Rs. 3,000/- which were denomination of Rs. 500/- and the constable had conducted the experiment of anthracene powder and ultraviolet lamp and thereafter, the police constable folded the currency notes, which were traced with the anthracene powder and put them in the left side shirt pocket of the complainant. The necessary instructions were given to the complainant and the panch witness and the panch witness had accompanied the complainant as a shadow witness to the Takrama Gram Panchayat. When they reached the Takarma Gram Panchayat, it was closed and locked and they waited for about 1½ hours and thereafter, the accused came on a motorcycle and the complainant told the witness that this person was the Talati-cum-Mantri. The accused waited in the compound of the panchayat office and the complainant and the accused went to meet him and at that time, the accused took out two papers from the motorcycle dickey and gave the papers to the complainant and told him to bring the signatures of his wife and son on the next day. Thereafter, immediately the complainant and the panch witness returned to the ACB office. The witness was called on the next day and on that day, he again accompanied the complainant to the Takarma Gram Panchayat and the same currency notes laced with the anthracene powder were placed in the left side shirt pocket of the complainant by the constable and they went to the Takarma Gram Panchyat. That at that time, the panchyat office was opened and the accused was sitting on his seat and the complainant gave the papers to the accused and the complainant told the accused that he had brought Rs. 3,000 as discussed with him. The accused told the complainant to accompany him and went into the lobby and the complainant followed the accused and the shadow witness also followed and at that time, the accused asked the complainant about the witness, whereby, the complainant told him that he had accompanied him. Thereafter, the accused accepted the amount of illegal gratification of Rs. 3,000/- and placed it in his left side pant pocket and returned back to the office and the complainant gave the predetermined signal. Thereafter, the accused accepted the amount of illegal gratification of Rs. 3,000/- and placed it in his left side pant pocket and returned back to the office and the complainant gave the predetermined signal. The members of the raiding party immediately rushed to him and the necessary test was conducted, wherein, florescent marks were found in the ultraviolet lamp on the fingers of the accused. The tainted currency notes of Rs. 3,000/- which were 6 notes of the denomination of Rs. 500/- each was found from the left side pant pocket of the accused. That the necessary panchnama, which is produced at Exh.13, was drawn up and the witness has identified the muddamal as also the signature on the panchnama before the learned Trial Court. During the cross-examination, the witness has stated that the accused did not make any demand on 23.07.2001 and the complaint of the complainant was falsified on 23.07.2001. The panchnama does not state the number of the motorcycle or the colour of the motorcycle, on which, the accused had come to the Takarma Gram Panchayat and the explanation of anthracene powder and ultraviolet lamp test was given to all the witnesses at one time but no practical test was done. That in the further complaint on 24.07.2001, there was no mention that the accused had demanded for the illegal gratification for mutating the entry and in the panchnama on 24.07.2021, the numbers of the currency notes were written. That on 24.07.2001, no anthracene powder was applied on the currency notes. The witness had seen the Mutation Entry Register and Mutation Entry No. 4369 on 02.06.2001 was the entry of the name of the wife and the son of the complainant in the Register. That when he saw the document, he thought that the work of the complainant was already completed on 24.07.2001 and there was no discussion regarding the mutation of entry between the complainant and the accused. 8.1. The prosecution has examined PW-2 Mahendrabhai Nagarbhai Patel at Exh.26 and this witness is the complainant, who has filed the complaint. The complainant has not supported the case of the prosecution and has been declared hostile. 8.1. The prosecution has examined PW-2 Mahendrabhai Nagarbhai Patel at Exh.26 and this witness is the complainant, who has filed the complaint. The complainant has not supported the case of the prosecution and has been declared hostile. During the cross-examination by the learned APP, the complainant has stated that he had made an application on 18.07.2001 and there was no application prior to that and he had not inquired whether the names had been mutated in the Village Form No. 7/12 and Village Form No. 8-A. The complainant has admitted that Mutation Entry No. 4369 in Village Form No. 6 has been made on 02.06.2001, whereby, the names of his wife and his son have been mutated into the revenue record. When he went to Takarma Gram Panchayat on 24.07.2001, the accused had only asked him whether he had taken the signatures of his wife and his son on the papers and had not asked anything else. 8.2. The prosecution has examined PW-3 Tharkorbhai Bhimabhai Patel at Exh.33. This witness is the lamp operator and member of the raiding party, who has supported the case of the prosecution. During the cross-examination, this witness has stated that he had applied anthracene powder only once on the currency notes of Rs. 500/- and during the two days, the currency notes were handled by 5 to 6 persons. That the lamp test on the currency note was done once and no test as done on the next day. 8.3. The prosecution has examined PW-4 Lalmahammad Jumakhan Merunjay at Exh.36. This witness is the Trap Laying Officer, who has fully supported the case of the prosecution and has narrated the entire event that had taken place. During the cross-examination, this witness has stated that the complainant in the complaint had stated that he had met the accused Talati-cum-Mantri before three months and the notice under section 135(d) of the Revenue Code was put on 02.06.2001. That he had not asked for a copy of the Village Form No. 7/12 from the complainant on 24.07.2001 and in the further complaint on 24.07.2001, the complainant had not stated that the accused had asked for any amount of illegal gratification. That on 23.07.2001, when the complainant and the shadow witness returned after the failed trap, they did not state that the accused had told them to come on the next day with the amount of illegal gratification. That on 23.07.2001, when the complainant and the shadow witness returned after the failed trap, they did not state that the accused had told them to come on the next day with the amount of illegal gratification. 8.4. The prosecution has examined PW-5 Kirtikumar Munchhabhai Chaudhari at Exh.39. This witness is the Investigating Officer and has investigated the offence and has arrested the accused and filed the charge sheet. During the cross-examination, this witness has admitted that the names of the wife and the son of the complainant were mutated in the revenue record of Survey No. 292 of village Takarma on 02.06.2001 vide Mutation Entry No. 4369. 9. On meticulous dissection of the entire evidence that have been brought on record by the prosecution, the complainant has not supported the case of the prosecution and has turned hostile and in the entire complaint at Exh.27, there is no clear demand made by the accused for any illegal gratification to mutate the names of the wife and the son of the complainant in the revenue record of Survey No. 292 of Takarma Village. The complainant had stated that the accused had demanded an amount of Rs. 4,000/- as illegal gratification and after bargaining, the amount was fixed at Rs. 3,000/- which was to be paid on 23.07.2001. When the complainant and the shadow witness went to the Takarma Gram Panchayat on 23.07.2001, the accused was not present and the accused came on a motorcycle, but the accused did not demand any amount and merely gave the complainant a copy of the notice under Section 135(d) of the Land Revenue Code and the statements for taking the signatures of the wife and the son of the complainant. If any demand was made by the accused, he would have, before handing over the documents, demanded the amount of illegal gratification from the complainant and accepted the same and thereafter, would have given the papers to the complainant. If the deposition of PW-1 Dineshbhai Jashubha Lad is perused, the fact of demand is not mentioned and on 23.07.2001 or 24.07.2001, the witness does not state that the accused had made any demand of illegal gratification from the complainant. As per the case of the prosecution, the complaint was filed on 19.07.2001 and the trap was laid on 23.07.2001, which failed. As per the case of the prosecution, the complaint was filed on 19.07.2001 and the trap was laid on 23.07.2001, which failed. The further complaint of the complainant was recorded on 24.07.2001 and the trap was laid on 24.07.2001 at around 12.20 hours, when the accused had accepted an amount of Rs. 3,000/- as illegal gratification. In the entire evidence of the prosecution, it has also come on record that the Mutation Entry No. 4369 was mutated by the accused on 02.06.2001 much prior to the filing of the complaint and the names of the wife and son of the complainant were already mutated in the revenue record. The complainant has also stated that he had not met the accused three months prior to the date of the trap and there is no evidence record to show that the accused had made any demand of any illegal gratification. 10. The Apex Court has, in the case of K. Shanthamma (Supra), observed in Para-7, as under: “7. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act. In the case of P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and Another, (2015) 10 SCC 152 this Court has summarised the well-settled law on the subject in paragraph 23 which reads thus: 23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” 10.1. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” 10.1. In the case of Neeraj Dutta (Supra), the Apex Court has observed in Para-19, as under: “19. In the present case, there are no circumstances brought on record which will prove the demand for gratification. Therefore, the ingredients of the offence under Section 7 of the PC Act were not established and consequently, the offence under Section 13(1)(d) will not attracted.” 10.2. In the case of Soundarajan (Supra), the Apex Court has observed in Para-12, as under: “12. There is circumstantial evidence of demand for gratification in this case. In the circumstances, the offence punishable under Section 7 and 13(2) read with Section 13(1)(d) have not been established. Unless both demand and acceptance are established, offence of obtaining pecuniary advantage by corrupt means covered by clauses (i) and (ii) of Section 13(1)(d) cannot be proved.” 11. In view of the settled principles of law regarding demand of illegal gratification, in the entire evidence of the prosecution, the factum of demand is not proved beyond reasonable doubts and there is no clear, cogent and reliable evidence to record the conviction under the PC Act in absence of demand of illegal gratification. That there was no reason for the accused to demand for any illegal gratification as the names of the wife and the son of the complainant had already been mutated in the revenue record but the same was not checked by the complainant or the Trap Laying Officer. There is no iota of evidence of prior demand or demand on the day of the trap and even in the further complaint, there was no demand of illegal gratification by the accused. There are also infirmities in the evidence of the prosecution in regard to the experiment of anthracene powder and the ultraviolet lamp and no anthracene powder was applied to the currency notes on the next day and in between the two day the currency notes had changed 5 to 6 hands. The delay in registering the FIR is also not explained by the prosecution. 12. The delay in registering the FIR is also not explained by the prosecution. 12. In view of the above discussion and appraisal of the evidence of the prosecution and in light of the decisions of the Apex Court in the cases of K. Shanthamma (Supra), Neeraj Dutta (Supra) and Soundarajan (Supra). In the considered opinion of this Court, the conviction of the appellant under Sections 7, 13(1)(2) and 13(2) of the P.C. Act could not have been invoked and consequently, the appeal succeeds and is allowed. The impugned judgment and order in Special (ACB) Case No. 15 of 2001 passed by the learned Presiding Officer, 6th Fast Track Court, Surat, on 19.04.2006 convicting the accused under Sections 7, 13(1)(2) and 13(2) of the P.C. Act is hereby quashed and set aside. Bail bonds stand cancelled. Fine to be refunded to the accused after due verification. 13. Record and proceedings be sent back to the concerned Trial Court forthwith.