Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 653 (GUJ)

State of Gujarat v. Daudbhai Bhikhabhai Rathod

2024-03-27

S.V.PINTO

body2024
JUDGMENT : 1. This appeal has been filed by the appellant – State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 15.10.2005 passed by the learned Special Judge, Fast Track Court No. 1, Amreli (herein after referred to as ‘the learned Trial Court’) in Special (ACB) Case No. 16 of 1998, whereby, the learned trial Court has acquitted the respondent from the offences punishable under Sections 7, 13(1) (gh) read with 13(2) of the Prevention of Corruption Act (herein after referred to as ‘the 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 brief facts that emerge from the record of the case are as under: 2.1 That the accused was working as a Talati-cum-Mantri of village Mota Ankadiya, District: Amreli and the complainant viz. Jitendra Lalbhai Patel had property bearing survey No. 137/1 and 137/2 situated in village Mota Ankadiya and the property was in the joint names of Shantaben-mother of the complainant and her brother Savjibhai Bhagvanbhai Kubhani. That the complainant wanted copies of mutation entries of the revenue record and he had gone to meet the accused and asked for the copies of the village Form No. 7 and 12 and village Form No. 8-A of the said property and at that time, the accused had demanded an amount of illegal gratification of Rs.1,000/-. That the complainant did not want to pay the amount of illegal gratification to the accused and hence, the complainant went to ACB Police Station, Amreli and filed the complaint under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and the same was registered at C.R.No. 4 of 1997 on 05.09.1997. 2.2 That the trap laying Officer called the panch witnesses and after explaining to the complainant and the panch witnesses the procedure of anthracene powder and ultraviolet lamp conducted the necessary experiment and thereafter a trap was laid and the complainant along with the panch witness went to the office of the accused where the accused demanded the amount of Rs.800/- and accepted the tainted currency notes of Rs.800/- and after predetermined signal was given the members of the raiding party rushed in and the accused was caught red-handed with the tainted currency notes. That, after due investigation, a chargesheet came to be filed before the learned Sessions Court, Amreli, which was registered as Special Case (ACB) No. 16 of 1998. 2.3 That the accused was duly served with the summons from the learned trial Court and the accused appeared before the learned trial Court and after the due procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 6 was framed against the accused and the statement of the accused was recorded at Exh: 7. The accused denied all contents of the charge and the evidence of the prosecution was taken on record. 2.4 The prosecution has filed five oral evidences and 6 documentary evidence in support of their case respectively, which are as under: ORAL EVIDENCE Sr. No. Name Exh 1 Jitendra Laljibhai Patel 10 2 Arvindbhai Nanjibhai Sarkhedi 18 3 Vikramsinh Jivatsinh Puvar 38 4 Jayantilal Khimabhai Thesia 43 5 Dilip Shantilal Maheta 45 DOCUMENTARY EVIDENCES Sr. No. Particular Exh 1 Complaint 11 2 Exh:1 of Regular Civil Suit No. 248 of 1997 12 3 Seizure Memo 27 4 Panchnama 28 5 Sanction for Prosecution 44 6 Extract of Service Book 46 2.5 After the learned Additional Public Prosecutor filed the closing pursis at Exh; 47, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded and after the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard the learned trial Court by the impugned judgment and order dated 15.10.2005 was pleased to acquit the accused under Section 248 (1) of the Code of Criminal Procedure, 1973 from all the charges leveled against him. 3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, 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 the evidence on record and the learned trial Court ought to have believed the evidence of the complainant Jitendra Lalbhai Patel and the evidence of panch witness Arvindbhai Nanjibhai Sarkhedi and the both witnesses have supported the case of the prosecution. That both the witnesses have stated that the accused had demanded the amount of illegal gratification when they had accompanied him to the house of the accused situated behind the Panchayat Office and it was on the instruction of the accused that the amount of illegal gratification of Rs.800/- was placed by the complainant under the mattress. That thereafter, the predetermined signal was given and Police Inspector Vikramsinh Jivatsinh Puvar, who was the Trap Laying Officer has fully supported the case of the prosecution. That the recovery of the tainted currency notes has been clearly proved by the prosecution and the recovery was from the house which was in possession of the accused and hence the prosecution has proved all the ingredients of demand, acceptance and recovery and there was no reason for the learned trial Court to acquit the accused. That the prosecution has produced cogent and convincing evidence that the accused had demanded the amount of illegal gratification from the complainant and the same has been accepted by the accused and hence the accused must be convicted for the said offences. 4. Heard learned Additional Public Prosecutor Ms. Monali Bhatt for the appellate-State and learned advocate Mr. Parth Tolia for learned Senior Counsel Mr. H.S.Tolia for the respondent. Perused the impugned judgment and order of acquittal and reappreciated the entire evidence on record of the case. 5. Learned Additional Public Prosecutor Ms. Monali Bhatt has taken this Court through the entire evidence of the prosecution and has submitted that the prosecution has successfully proved all the ingredients of demand, acceptance and the recovery and it has come on record that at the time of the trap, the accused was working as a Talati-cum-Mantri of village Mota Ankadiya and the complainant wanted the necessary documents of the revenue record. That he had approached the accused but the accused did not give him the documents and thereafter the accused had demanded for an amount of Rs.1,000/- but after bargaining, the amount was reduced to Rs.800/-. That he had approached the accused but the accused did not give him the documents and thereafter the accused had demanded for an amount of Rs.1,000/- but after bargaining, the amount was reduced to Rs.800/-. That, on 05.09.1997, the complainant and the shadow witness went to the office of the accused where the accused had clearly demanded the amount from the complainant in the presence of the shadow witness and the complainant and the shadow witness went to his house, which was behind the Panchayat Office and on the instructions of the accused, the complainant had placed the tainted currency notes under the mattress of the cot from where it was recovered by the members of the raiding party. That the prosecution has clearly proved the case against the accused beyond reasonable doubts and the Trap Laying Officer has also fully supported the case of the prosecution and there is no reason to disbelieve the evidence of the Trap Laying Officer. That the prosecution has also examined Jayantilal Khimabhai Thesia, who was Deputy District Development Officer, and he has given the sanction for Prosecution of the accused which is also produced at Exh: 44. That the learned trial Court has merely on the basis of minor contradictions and omissions acquitted the accused, which is illegal and the impugned judgment and order of acquittal is perverse and is required to be quashed and set aside. 5. Learned advocate Mr. Parth Tolia for learned Senior Counsel Mr. H.S.Tolia for the respondent has submitted that the learned trial Court has in the judgment discussed the entire evidence produced by the prosecution and there is no evidence that the tainted currency notes were found from the possession of the accused. That in fact in the evidence of the complainant, it has come on record that the complainant himself had, without any demand from the accused, placed the tainted currency notes in the house of the accused below the mattress from where it was found and there is no evidence that traces of anthracene powder were found from the mattress in the house of the accused. The Trap Laying Officer does not say that blue florescent light was found on the mattress and the learned trial Court has considered all the evidences produced by the prosecution and hence no interference is required in the impugned judgment and order of acquittal and the appeal may be dismissed. 6. 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. 7. The Honourable Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under: “68. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 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. 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. 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. 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. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.” 8 In view of the above settled principles of law in acquittal appeals, it is essential to dissect the evidence produced before the learned trial Court and to bring home the charge against the accused, the prosecution has examined the complainant Jitendra Lalbhai Patel at Exh;10. This witness has stated that his mother Shantaben and uncle Savjibhai Bhagvanbhai Kubhani had property situated in village Mota Ankadiya, Amreli bearing survey No. 137/1 and 137/2 and the complainant wanted copies of the revenue record of the said property such as village Form No. 7 and 12 and village Form No. 8-A and he had met the accused, who was the Talati-cumMantri of village Mota Ankadiya. That he had given the power of attorney of his mother to the accused but the accused did not give him the copies of the revenue entries and hence he had gone to the Mamlatdar and gave the Mamlatdar an application and took that application with the endorsement and the order of the Mamlatdar and once again met the accused and the accused told the complainant that he would have to pay a certain amount. That the accused had demanded for an amount of Rs.1,000/- as illegal gratification and at that time he had given Rs.200/- and told the accused that he would pay the remaining amount later. Thereafter, he had contacted the ACB Police Station, Amreli and filed the complaint, which is produced at Exh: 11. That the ACB Officer, had called two panch witnesses and had explained to them about the procedure of anthracene powder and ultraviolet lamp and at that time the complainant had produced eight currency notes of the denomination of Rs.100/- each, on which, anthracene powder was applied and the notes were placed in his shirt pocket. That the preliminary panchnama was drawn and he and the panch witness no. That the preliminary panchnama was drawn and he and the panch witness no. 1, who was the shadow witness, had gone to meet the accused. That, at that time, the accused had demanded for the illegal gratification and had told him that now the work of trap is going on and asked him to go behind the Panchayat Office and when they went there, they had tea and the accused demanded the amount of Rs.1,000/-. That the accused told him to place the amount of illegal gratification below the mattress and he had placed Rs.800/- below the mattress as per the instructions of the accused. That the panch witness No. 1 gave the predetermined signal and the members of the raiding party came. The complainant has not supported the case of the prosecution and has been declared hostile and has been cross examined by the learned Additional Public Prosecutor. During the cross examination by the learned advocate for the accused, the complainant has stated that he wanted a copy of the notice under Section 135(d) of the Land Revenue Record and the record was 10 years old. At that time the accused had told him as the record is 10 years old, it would take some time to search for the same and when he had gone there, there was no peon in the panchayat office and he had told the accused that he could not afford to come often to the office. That at that time accused had told him that there was no peon and the record was old and hence it would take some time. That one person had accompanied him and had told him that if he wanted the record earlier and did not want to go to office of the panchayat, he should get the Talati-cum-Mantri arrested in a corruption case. That, he had not sent the ACB Office but the person, who had accompanied him, had showed him the ACB office. That when he went to the panchayat office with panch witness No. 1, the accused was sitting in the office and the accused had showed him the copies. The panch witness no. 1 did not accompany them but stood 60 to 65 feet away and the accused had told him that they would have go to Amreli to get the xerox copies of the records. The panch witness no. 1 did not accompany them but stood 60 to 65 feet away and the accused had told him that they would have go to Amreli to get the xerox copies of the records. That the accused had told him to take him to Amreli and drop him back. That he and the accused went to the quarter and at that time quarter was closed. That he had sat outside of the quarter and at that time the shadow witness was 60 to 65 feet away. That he had some altercation about taking the accused to Amreli and dropping him back and when he went into the house of the accused, the kitchen was in the interior portion of the house and if a person went into kitchen, they could not see the living room. That when the accused went to get water, the complainant placed the tainted currency notes below the mattress and before the accused could come out from the kitchen, he told the shadow witness to give the predetermined signal. The shadow witness gave the predetermined signal and the members of the raiding party came and the tainted currency notes were recovered by the members of the raiding party. The complainant has categorically stated that the accused had not told him to place the amount below the mattress. 8.1 The prosecution has examined the P.W.No. 2 Arvindbhai Nanjibhai Sarkhedi at Exh; 18 and this witness is the shadow witness, who had accompanied the complainant on the day of the trap. This witness has supported the case of the prosecution and has stated that at the time of the trap, he had accompanied the complainant to the Panchayat Office and the complainant had asked for the revenue record and the accused and the peon searched the revenue record and said that the xerox copies would have to be made and had told the complainant to accompany him to Amreli and then he would get the xerox copies after the xerox were made. That they had gone to the house of the accused where the accused had demanded the amount and had told the complainant to put the currency notes under the mattress. During the cross examination, the witness has stated that they had seized the documents, currency notes and the cover of the mattress and gone to the Panchayat Office and the panchnama was drawn. During the cross examination, the witness has stated that they had seized the documents, currency notes and the cover of the mattress and gone to the Panchayat Office and the panchnama was drawn. That he had not spoken to the accused and the complainant and at the time of the trap, the complainant and the accused had only spoken about the documents and no other conversation had taken place. That the complainant had asked for the revenue record and the accused and the peon had searched for the revenue record for half and hour. That there was no provision to make the xerox copy of the record at the Panchayat Office and the record was old and bulky. 8.2 The prosecution has examined P.W.No. 3 Vikramsinh Jivatsinh Puvar at Exh: 38. This witness is the Trap Laying Officer, who had called the panch witnesses and after the entire procedure of anthracene powder and ultraviolet lamp was explained, the necessary experiment was done and trap was laid. This witness was the member of the raiding party, who had gone and caught the accused red handed and had recovered the currency notes from under the mattress from the house of the accused. This witness has fully supported the case of the prosecution and during the cross examination has stated that the tainted currency notes were recovered from below the mattress by the panch witness No. 2 and the cover of the mattress was not sent to the Chemical Analyzer to find whether the traces of anthracene powder was found on the cover of the mattress or not. That his statement was not recorded by the Investigating Officer and the copy of the revenue record that were demanded by the complainant were ordered to be given by the Mamlatdar, Amreli and the accused could not deny giving the copies to the complainant. That from the complaint of the complainant, it was on record that the accused had not given the xerox copy of the notice under Section 138(d) of the Land Revenue Code and the witness does not know as to whether the copies of village Form No. 7 and 12 and village Form No. 8-A were given or not. That from the complaint of the complainant, it was on record that the accused had not given the xerox copy of the notice under Section 138(d) of the Land Revenue Code and the witness does not know as to whether the copies of village Form No. 7 and 12 and village Form No. 8-A were given or not. 8.3 The prosecution has examined P.W.No. 4 Jayantilal Khimabhai Thesia at Exh; 43 and this witness is the Competent Authority, who had given the sanction for prosecution of the accused and the witness has stated that at the relevant time, he was working as a Deputy District Development Officer and had given the sanction for prosecution of the accused, which is produced at Exh; 44. During the cross examination, this witness has stated that the copy of the panchnama and the report of the ACB were submitted and he had also found that the mattress and the muddamal were not sealed and there the muddamal was was likely to be tampered as it was not sealed. 8.4 The prosecution has examined P.W.No. 5 Dilip Shantilal Mehta at Exh; 45 and the witness is the Investigating Officer, who has fully supported the case of the prosecution and filed the charge sheet against the accused before the competent court. During the cross examination, this witness has admitted that he has not recorded the statement of the Trap Laying Officer and the panchnama does not state what had occurred in the house of the accused before the Trap Laying Officer and the members of the raiding party went into the house. That the muddamal was not sealed and even the tainted currency notes were not sealed with the slip and the signature of the panch witnesses. 9. From the entire evidence of the prosecution, there is no evidence of prior demand made by the accused and it has come on record that the accused had already provided the copies of the village Form no. 7 and 12 and village Form no. 8-A to the complainant. That the complainant wanted the copy of the notice under Section 135(d) of the Land Revenue Code, and for that the complainant had made an application to the Mamlatdar, Amreli and had got the necessary orders from the Mamlatdar for the copy of the same. 7 and 12 and village Form no. 8-A to the complainant. That the complainant wanted the copy of the notice under Section 135(d) of the Land Revenue Code, and for that the complainant had made an application to the Mamlatdar, Amreli and had got the necessary orders from the Mamlatdar for the copy of the same. That there was no reason for the accused to deny giving the copy as the Mamlatdar had already ordered the same and in the deposition of the complainant and in the complaint, there were major contradictions, regarding the amount of illegal gratification that was demanded, amount paid earlier, the place at which the illegal gratification was to be paid and there is no cogent, convincing and reliable evidence regarding the demand produced by the prosecution on record. Moreover, it has come on record that the record, which was required by the complainant was 10 years old and on the day of the trap when the complainant and the panch witness went to the office of the accused, the accused and the peon searched for the record for half and hour and as there was no facility for taking a xerox copy, the accused had told the complainant that he would have to accompany to him to Amreli and back. Moreover, the complainant has categorically stated that when he went to the house of the accused, the shadow witness was 60-65 feet away and when the accused went to the kitchen to bring water, which was located at place from where he could not see the front room, without any demand by the accused, the complainant placed the tainted currency notes below the mattress from where it was recovered. That in fact, in the evidence of the complainant, it has also come on record that before the accused could bring water, the complainant had instructed the shadow witness to give the predetermined signal and the members of the raiding party rushed into the house and recovered the tainted currency notes from under the mattress where it was placed by the complainant. In the evidence of the prosecution, it has also come on record, that the muddamal i.e. tainted currency notes and the cover of the mattress were not sealed and they were likely to be tampered with as they did not bear the seal and sign of the panch witness and the Trap Laying Officer. In the evidence of the prosecution, it has also come on record, that the muddamal i.e. tainted currency notes and the cover of the mattress were not sealed and they were likely to be tampered with as they did not bear the seal and sign of the panch witness and the Trap Laying Officer. That there is no evidence led by the prosecution to prove the demand by the accused and no evidence regarding acceptance and illegal gratification by the accused. 10. In view of the settled position of law in decision of the Hon’ble Apex Court in the case of Neeraj Datta (supra), the learned trial Court has appreciated all evidences produced by the prosecution in proper perspective and has given proper reason for acquittal of the accused and this Court is of the considered opinion that the learned trial Court is fully justified in acquitting the accused from all charges levelled against him. That there is no illegality, perversity and infirmity in the findings recorded by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. 11. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned judgment and order dated 15.10.2005 passed by the learned Special Judge, Fast Track Court No. 1, Amreli in Special (ACB) Case No. 16 of 1998 is hereby confirmed. Bail bonds stand cancelled. 12. Record and proceedings be sent back to the concerned Trial Court forthwith.