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2024 DIGILAW 690 (GUJ)

State of Gujarat v. Vijaykumar Sohankarnath Mehra

2024-04-01

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 30.01.2012 passed by the learned Special Judge & Additional Sessions Judge, Jamnagar (herein after referred to as ‘the learned Trial Court’) in Special (ACB) Case No. 4 of 2003, whereby, the learned Trial Court has acquitted the respondent from the offenses punishable under Sections 7, 13(1)(d) and 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 clerk Grade-III in the Mercantile Marine Department, Deep Bhavan, Jamnagar and was a public servant. That the complainant was working at a vessel belonging to his nephew and wanted seamens card from the Gujarat Maritime Board and he had gone to get five seamens’ card at the Gujarat Maritime Board and at that time, the accused had demanded the amount of Rs. 200/- for each card and in all demanded an illegal gratification of Rs. 1,000/- from the complainant. That the complainant did not want to pay an amount of illegal gratification and hence he went to ACB office at Jamnagar on 30.08.2001 and filed the complaint against the accused, which was registered at C.R. No. 6 of 2001 under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act on 30.08.2001. That, the trap laying officer called the panch witnesses and after explaining the entire procedure of Anthracene Powder and the Ultraviolet Lamp, a trap was laid and in the presence of the panch witnesses, the accused demanded and accepted the amount of illegal gratification of Rs. 1,000/-. That the predetermined signal was given and the members of the raiding party rushed into the office of the accused and the accused was caught red handed with the currency notes. That the Investigating Officer recorded the statements of all connected witnesses, drew the necessary panchnama and after the sanction for prosecution was received filed the charge sheet before the Sessions Court, Jamnagar, which came to be registered as a Special Case (ACB) No. 4 of 2003. That the Investigating Officer recorded the statements of all connected witnesses, drew the necessary panchnama and after the sanction for prosecution was received filed the charge sheet before the Sessions Court, Jamnagar, which came to be registered as a Special Case (ACB) No. 4 of 2003. 2.2 That the accused was duly summoned and after following the procedure of Section 207 of the Code of Criminal Procedure, 1973, a charge was framed against the accused at Exh.5 and the statement of the accused was recorded at Exh.6 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 and documentary evidence to bring home the charge against the accused: ORAL EVIDENCE S. No. Prosecution Witness Name of the Witness Exhibit 1 1 Jignesh Premchand Malde 12 2 2 Vahnikumar Prafulchandra Vyas 20 3 3 Ahmedkhan Shekh 25 4 4 Sukhdevsinh Hanubha Zala 36 DOCUMENTARY EVIDENCES S. No. Name of the Witness Exhibit 1 Panchnama 13 2 Seizure Memo 14 3 Seizure memo 15 4 Complaint 21 5 Yadi for allotment of Panch 22 6 Yadi of allotted panch witnesses 23 7 Service Book of the Accused 26 8 Office Order 27 9 Transfer Order 28 10 Attendance report 29 11 Payment Slip 30 12 Office address of the accused 31 13 T.R. 5 counterfoil receipt 32, 33 14 Application for obtaining identity card of sailors 34 15 License to sail 35 16 Sanction for Prosecution 36 17 Forwarding letter C.B.I. Gandhinagar 37 2.4 After the entire evidence of the prosecution was taken on record and the closing pursis was filed by the learned Additional Public Prosecutor, the further statement of the accused U/s. 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, the accused mainly denied all the evidence. That the arguments of learned Additional Public Prosecutor and the learned Advocate for the accused were heard and the learned trial Court by the impugned judgment and order dated 30.01.2012 was pleased to give benefit of doubt to the accused and acquitted the accused under 235 (1) of the Code of Criminal Procedure, 1973. 3. That the arguments of learned Additional Public Prosecutor and the learned Advocate for the accused were heard and the learned trial Court by the impugned judgment and order dated 30.01.2012 was pleased to give benefit of doubt to the accused and acquitted the accused under 235 (1) of the Code of Criminal Procedure, 1973. 3. Being aggrieved and dissatisfied with the said impugned order of acquittal, the appellant-State has filed the present appeal mainly stating that the 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 by the prosecution in support of their case. That the learned trial Court has committed a grave error and the impugned judgment is illegal, invalid and improper. That the prosecution has proved that the accused was working as a Clerk in the Mercantile Maritime Board, Deep Bhavan, Jamnagar and had demanded an amount of Rs. 1,000/- but returned Rs. 200/- to the complainant and accepted the other amount of illegal gratification of Rs. 800/-. That the panch witness has deposed that the amount of illegal gratification was demanded and accepted in his presence and it is crystal clear that the ingredients of the offence i.e. demand, acceptance and recovery have been proved by the prosecution beyond reasonable doubts. That the prosecution has also proved that there were markes of anthracene powder on the currency notes and in view of the provision contained in Section 20 of the Prevention of Corruption Act, the learned trial Court ought to have considered that the prosecution has proved the case beyond reasonable doubts. That the panch witness has heard the conversation made between the accused and the complainant and it is settled principles of law that even if the complainant has turned hostile or has expired, the prosecution can prove their case beyond reasonable doubts by circumstantial evidence. That all the witnesses have supported the case of the prosecution and if the record of the case is considered as a whole, it is clear that the prosecution has successfully established the charge against the accused and the learned trial Court has erred in passing the order of acquittal. That all the witnesses have supported the case of the prosecution and if the record of the case is considered as a whole, it is clear that the prosecution has successfully established the charge against the accused and the learned trial Court has erred in passing the order of acquittal. That the impugned judgment and order is contrary to law and evidence on record and the same must be quashed and set aside and the accused must be found for guilt for the said offence. 4. Heard Ms. Jirga Jhaveri, learned Additional Public Prosecutor for the appellant-State and learned advocate Mr. Jitendra H. Singh for the respondent. Perused the impugned judgment and order of acquittal and the entire evidence produced by the prosecution on record. 5. Learned Additional Public Prosecutor Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution and has submitted that the complainant has expired and the prosecution could not record his oral evidence before the learned trial Court. That the death certificate of the complainant is produced at Exh.18 but the prosecution has produced the evidence of Jignesh Premchand Malde, who was the panch witness and the panch witness has clearly deposed that he was instructed to be a shadow witness and they had gone to the office of the accused where the accused had demanded for the amount of illegal gratification and when the complainant bargained stated to reduce the amount, the accused had told the complainant to give Rs. 200/- less. That the accused had demanded and accepted an amount of Rs. 800/- as illegal gratification from the complainant in the presence of the witness Jignesh Premchand Malde and the witness is an independent witness and the learned trial Court has not believed the deposition of this witness. Learned Additional Public Prosecution has further submitted that the prosecution has also brought on record the evidence of PW-2 Vahnikumar Prafulchandra Vyas, who was working as a Police Inspector in the ACB Police Station, Jamnagar and the complainant Husen @ Sanghar resident of Salaya, Barlo Vas, Bhim Pado, Jamnagar had filed the complaint before this witness and the witness had laid trap and has deposed fully supporting the case of the prosecution. That Yasinkhan Ahmedkhan Shekh, Investigating Officer and Sukhdevsinh Hanubha Zhala, the Investigation Officer have also been examined by the prosecution and they have investigated the matter, recorded the statement of witnesses, collected the necessary documents and have filed the charge sheet and from their depositions, the prosecution has proved the case against the accused whereas the learned trial Court has relied on minor contradiction and omission and has passed the impugned judgment and order of acquittal, which must be set aside. That the prosecution has produced ample evidence to bring home the charge against the accused and the appeal must be allowed and the accused must be convicted for the said offences. 5.1 Learned advocate for the respondent Mr. Jitendra H. Singh has submitted that the learned Trial Court had discussed the entire evidence and in fact the prosecution has not proved the contents of the complaint. Moreover, the respondent -accused is working in the Regional Office (SAILS) even the Investigating Officer states that the complaint is lodged against the person sitting in Gujarat Maritime Board. That the learned trial Court has in the well reasoned order appreciating all the evidence of the prosecution has rightly acquitted the accused and no order of interference is required in the impugned judgment and order of acquittal. Hence the appeal of the appellant-State must be rejected. 6. Learned advocate for the respondent has relied on the judgment of the Hon’ble Apex Court reported in Kalyan and Others vs. State of Uttar Pradesh, 2001 (9) SCC 632 wherein the relevant paragraph are reproduced as under in support of his case: “The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram vs. State of Himachal Pradesh, AIR 1973 SC 2773 this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The court further observed: “It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and his hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of “The Proof of Guilt” by Glanville Williams, Second Edition: “I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos.” The fact that there has to be clear evidence of the guilty of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, Criminal Appeal No. 26 of 1970, dated 27.8.1973 (supra) as is clear from the following observations: “Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure considerations.” 9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely (i) the slowness of the appellate court to disturb a finding of fact; (ii) the non-interference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court. 10. 10. In Antar Singh vs. State of Madhya Pradesh, AIR 1979 SC 1188 , it was held: “This Court has repeatedly held that although in an appeal against acquittal, the powers of the High Court in dealing with the case are as extensive as of the trial court, but before reversing the acquittal, the High Court should bear in mind that the initial presumption of the innocence of the accused is in no way weakened, if not reinforced, by his acquittal at the trial, and further, the opinion of the trial court which had the advantage of observing the demeanour of the witnesses, as to the value of their evidence should not be lightly discarded. Where two views of the evidence are reasonably possible, and the trial court has opted for one favouring acquittal, the High Court should not disturb the same merely on the ground that if it were in the position of the trial court, it would have taken the alternative view and convicted the accused accordingly. In the instant case, by any reckoning, the view of Diwakar's testimony taken by the trial court could not be said to be unreasonable or erroneous.” 11. In Harijan Megha Jesha vs. State of Gujarat, AIR 1979 SC 1566 the Court observed that: “Even assuming that the view taken by the High Court is correct, the circumstances clearly disclose that the view taken by the learned Sessions Judge was also reasonably possible. Once this is so, there can be no question of reversing the order of acquittal.” 6.2 Learned advocate for the respondent has also relied on the judgment of the Hon’ble Apex Court in the case of Sanjeev and Another vs. State of Himachal Pradesh, wherein the relevant paragraph are reproduced as under: 7. It is well settled that: (A) While dealing with an appeal against acquittal, the reasons which had weighed with the Trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the Trial Court deserves to be upturned. [See Vijay Mohan Singh vs. State of Karnataka and Anwar Ali and Another vs. State of Himachal Pradesh] (B) With an order of acquittal by the Trial Court, the normal presumption of innocence in a criminal matter gets reinforced. [See Vijay Mohan Singh vs. State of Karnataka and Anwar Ali and Another vs. State of Himachal Pradesh] (B) With an order of acquittal by the Trial Court, the normal presumption of innocence in a criminal matter gets reinforced. [See Atley vs. State of Uttar Pradesh] (C) If two views are possible from the evidence on record, the appellate Court must be extremely slow in Sambasivan and Others vs. State of Kerala. 7. Before adverting to the facts on hand, it would be proper to refer to the scope of the Appellate Court in acquittal appeals and it is settled principles of law by the Hon’ble Apex Court in the catena of decisions and the decision relied upon by the learned advocate for the respondent that unless the finding of acquittal is found to be perverse, no interference by the Appellate Court is warranted. As far as acquittal appeals under the Prevention of Corruption Act are concerned, it is settled law that the prosecution has to prove the three ingredients of demand, acceptance and recovery beyond reasonable doubts. The proof of demand is a sine-qua-non for constituting, the findings under the Prevention of Corruption Act and only the recovery of currency notes from the possession of the accused is not sufficient to convict the accused in the absence of convincing and cogent evidence of demand. That if the prosecution seeks to fasten the guilt under the Prevention of Corruption Act, on the accused convincing evidence with regard to the demand and acceptance of the amount of illegal gratification is a must. 8. That it is also settled law that if the complainant has expired and the prosecution is unable to produce the oral evidence of the complainant during the trial, the demand of illegal gratification can be proved by circumstantial evidence and the trial does not abate or result in order of acquittal. 9. In view of the above settled principles of law in acquittal appeals, the evidence produced by the prosecution must be scrutinized and to bring home the charge against the accused, the prosecution has examined PW-1 Jignesh Premchand Malde at Exh.12 and the witness is the shadow witness, who had accompanied the complainant at the time of the trap. 9. In view of the above settled principles of law in acquittal appeals, the evidence produced by the prosecution must be scrutinized and to bring home the charge against the accused, the prosecution has examined PW-1 Jignesh Premchand Malde at Exh.12 and the witness is the shadow witness, who had accompanied the complainant at the time of the trap. The witness has stated that on 30.08.2001, he was called to the ACB Police Station, Jamnagar and the complainant Husen @ Sanghar was present and the other panch witness Ashwin Chavda had also accompanied him. That when they went to the ACB Police Station, the complainant had given the complaint and the complainant had given an amount of Rs. 750/- to the Police Inspector and in their presence, the experiment of anthracene powder and ultraviolet lamp was carried out and explained to them and after the anthracene powder was applied on the currency notes, which were 7 currency notes of the denomination of Rs. 100/- and 1 currency note of the denomination of Rs. 50/- were placed in the left side pant pocket of the complainant. That they had gone to the 4th floor of Deep Bhavan where the accused had demanded the amount of illegal gratification from the complainant and the complainant had bargained to reduce the amount and the accused told him to give Rs. 200/- less. That the accused accepted the amount and placed the currency notes in his left pocket and thereafter the complainant gave the predetermined signal and the members of the raiding party came and caught the accused red handed. The witness has, during the cross examination, stated that they had gone to the office, which was mentioned in the complaint and he had also deposed the same in the Departmental Inquiry Proceedings. That the office, where they had gone, was the Mercantile Maritime Department and Mercantile Maritime Office is at the distance of about 3 kms from the office of the Gujarat Maritime Board. That the complainant had written the name of Gujarat Maritime Board in the complaint and in his statement in the Departmental Inquiry, he has stated that when they went to Regional Office (SAILS), the ACB had given him Rs. That the complainant had written the name of Gujarat Maritime Board in the complaint and in his statement in the Departmental Inquiry, he has stated that when they went to Regional Office (SAILS), the ACB had given him Rs. 1000/- and told him to go into the office and given it to the person seated there and he had given the amount to the accused and asked him about the identity card and the accused told him to give Rs. 1,000/- and he had given 10 currency notes of the denomination of Rs. 100/- each to the accused and the accused had returned Rs. 200/- to him and had kept the amount of Rs. 8,00/- with him. That he has not filed any complaint against the accused. 9.1 The prosecution has examined PW-2 Vahinkumar Prafulchandra Vyas at Exh.20 and this witness is the Trap Laying Officer, who has stated that the complainant had come to him and had stated that he had gone to the Mercantile Maritime Board Office where the person had demanded for the illegal gratification and they had gone to the office of the Maritime Board. The witness is the Trap Laying Officer and he has narrated the chronology of events that had taken place and during the cross examination, he has stated that they had gone to the office as stated in the complaint by the complainant and the office was the Gujarat Maritime Board. That the trap was laid in the Mercantile Maritime Board and he was aware that Gujarat Maritime Board is a unit of State Government and the Maritime Board is a Central Government. That he had come to know that the accused was working in the Regional Office (SAILS) and no trap was laid in the Regional Office (SAILS). That he has not inquired as how much seamens’ cards were to be obtained by the complainant and as a part of his duty, the accused had to make financial transaction on his table. 9.2 The prosecution has examined PW-3 Yasinkhan Ahmedkhan Shekh. This witness is the Investigating Officer, who has investigated the offence and has deposed the entire events during the investigation. 9.2 The prosecution has examined PW-3 Yasinkhan Ahmedkhan Shekh. This witness is the Investigating Officer, who has investigated the offence and has deposed the entire events during the investigation. The witness has collected the necessary documents and had thereafter handed over the further investigation to the PW-4 Sukhdevsinh Hanubha Zhala, who has been examined at Exh; 36 and has filed the charge-sheet after receiving the order of sanction for prosecution from the Competent Authority. PW-4 Sukhdevsinh Hanubha Zhala had produced the order of sanction for prosecution at Exh.38 and has filed the charge sheet before the Competent Court. 9.3 On appraisal of the entire evidence produced by the prosecution, it is on record that complainant Husen @ Sanghar expired and his oral deposition could not be recorded before the learned trial Court. The shadow witness, who had gone along with the complainant, at the time of the trap, states that they had gone to the Gujarat Maritime Board but in fact the accused was working in the Regional Office (SAILS) and the office of the Gujarat Maritime Board is 3 kms away from the office of the Mercantile Maritime Board. The evidence of the panch witness cannot be relied upon as the witness had admitted that in the Departmental proceedings, he has stated that the ACB Officer had given him an amount of Rs. 1,000/- and had told him to give it to the accused and he had done so. In the deposition of the Trap Laying Officer, it is on record that the accused was working at Regional Office (SAILS) and the trap was laid at Mercantile Maritime Board where the accused was not working. The complainant has, in the complaint, stated that he had gone to the office of the Gujarat Maritime Board for obtaining the seamens’ card and the raid is not conducted at the office of the Gujarat Maritime Board. In view of the entire evidence, the complaint is not proved and the office of the Gujarat Maritime Board, which is mentioned in the complaint, is not the office where the accused was working and the place where the trap was laid. That even in the entire evidence, it appears that the complaint is filed against the persons of the Gujarat Maritime Board and the Mercantile Maritime Board, which is the office of Central Government and not the office where the accused was working. 10. That even in the entire evidence, it appears that the complaint is filed against the persons of the Gujarat Maritime Board and the Mercantile Maritime Board, which is the office of Central Government and not the office where the accused was working. 10. The learned trial Court in the judgment has concluded that the motive is not established and the prior demand or demand is not proved by the prosecution beyond reasonable doubts. That the office where the accused is working is the Regional Office (SAILS), no trap was laid in this office and there is no clear, cogent and convincing evidence submitted by the prosecution on record. 11. In view of the above and in view of the settled position of law and the decision of the Hon’ble Supreme Court in Kalyan (supra) and Sanjeev (supra), the prosecution has not proved the demand, which is a sine-qua-non to establish the guilt of the accused and in the instance case when the complainant has expired, the prosecution is required to prove their case by circumstantial evidence but there is no evidence on record on record to prove the demand by the accused. That the complaint is filed against the person of the Gujarat Maritime Board, the Trap Laying Officer has laid the trap in the Mercantile Maritime Department, Deep Bhavan, and not in the Gujarat Maritime Board. It is clear from the record that the accused was working in Regional Office (SAILS) and no trap was laid at the Regional Office (SAILS). The learned trial Court has appreciated all the evidence and in the considered opinion of this Court, the learned trial Court is fully justified in acquitting the accused from all charges leveled against him. 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. 12. 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 30.01.2012 passed by the learned Special Judge & Additional Sessions Judge, Jamnagar in Special (ACB) Case No. 4 of 2003 is hereby confirmed. Bail bonds stand canceled. 13. The impugned judgment and order dated 30.01.2012 passed by the learned Special Judge & Additional Sessions Judge, Jamnagar in Special (ACB) Case No. 4 of 2003 is hereby confirmed. Bail bonds stand canceled. 13. Record and proceedings be sent back to the concerned Trial Court forthwith.