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2024 DIGILAW 850 (GUJ)

State Of Gujarat v. Chandrakant Vithoba Surve

2024-04-12

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 judgement and order of acquittal passed by the learned Special Judge, Fast Track Court No. 3, Valsad (hereinafter referred to as “the learned Trial Court”) in Special Corruption Case No. 24 of 2002 on 30.11.2005, whereby, the learned Trial Court has acquitted the appellant for the offence punishable under Sections 13(1)(d) 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 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 Custom Sipahi in the office of the Custom Inspector, Umarsali in the year 1997 and was a public servant. That the complainant Jayantibhai Ramubhai Mangela residing at Umarsali, Mangelwadi, Taluka Pardi, District Valsad was a fisherman and his brothers-in-law Babubhai Govindbhai Mangela and Bavabhai Govindbhai Mangela were also fishermen and Babubhai Govindbhai Mangela had purchased a boat named “Jayvantiprasad” from one Chandrakant Gajanand Tandel of Dahanu, Maharashtra. That the boat was given to the complainant and his brother-in-law Bavabhai Govindbhai Mangela and they had gone to the Umarsali Port and permission to keep the boat from 05.05.1997 to 05.10.1997 was given. That the complainant had gone with the necessary documents including the Port Clearance Certificate to get the season pass and at that time, the employee who was present had checked the documents and made the entry of the boat “Jayvantiprasad” in the Register. That immediately, an amount of Rs. 250/- for entry and Rs. 100/- for the season pass was demanded and the complainant told the employee to give the receipt for the amount but the employee got angry and refused to give the receipt and cancelled the entry in the Register. That the employee demanded the amount of Rs. 350/- and stated that only if the amount of Rs. 350/- was paid, the entry would be made and the season pass would be issued otherwise a report would be sent to the Dahanu Port that the entry is not made. That the employee demanded the amount of Rs. 350/- and stated that only if the amount of Rs. 350/- was paid, the entry would be made and the season pass would be issued otherwise a report would be sent to the Dahanu Port that the entry is not made. That the custom employee told the complainant to pay the amount on 08.09.1997 between 11.00 am to 04.00 pm and as the complainant did not want to pay the amount of illegal gratification of Rs. 350/-, the complainant went to the ACB Office at Valsad and filed the complaint which was registered at C.R. No. 7/1997 under Sections 13(1)(d) and 13(2) of the PC Act. That the Trap Laying Officer called the panch witnesses and explained about the effects of anthracene powder and the ultraviolet lamp and after the experiment was conducted, the complainant gave the amount of Rs. 350/- which were three currency notes of the denomination of Rs. 100/- each and one currency note of the denomination of Rs. 50/- and the currency notes were laced with anthracene powder and the trap was arranged. That the complainant along with the shadow witness went to the office of the accused and in the presence of the shadow witness, the accused demanded for the amount of illegal gratification and accepted the tainted currency notes from the complainant and after the predetermined signal was given, the members of the raiding party came and caught the accused red handed with the tainted currency notes. The Investigating Officer recorded the statements of all the connected witnesses and drew the necessary panchnamas and after the order of sanction for prosecution was received, the charge-sheet was filed against the accused before the Sessions Court, Valsad which came be registered as Special Corruption Case No. 24/2002. 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. 10 was framed against the accused and the statement of the accused was recorded at Exh. 11, 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 Jayantilal Ramubhai 19 2. 11, 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 Jayantilal Ramubhai 19 2. 2 Yunus Aalammiya Mansuri 21 3. 3 Mahavirsinh Pravinsinh Raul 25 4. 4 Ambapratapsinh Chandravijaysinh Jadeja 28 2.4 The prosecution has produced the following documentary evidences in support of their case. Sr. No. Particulars Exh. 1. Complaint 20 2. Panchnama 22 3. Letter of Assistant Commissioner, Valsad 29 4. Seizure Memo 26 5. Service book 30 6. Posting order of accused 31 7. Salary Slip 32 8. Muster Roll of September 1997 33 9. Order of sanction for prosecution 34 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 the impugned judgement and order dated 30.11.2005 was pleased to acquit the accused from all the offences. 3. Being aggrieved and dissatisfied with the impugned judgement and order of acquittal, the appellant – State has filed the present appeal mainly stating that the impugned judgement and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has erred in not appreciating the oral and documentary evidence produced on record by the prosecution. That the learned Trial Court ought to have appreciated that the complainant had approached the Investigating Officer and all the due procedure had been followed before setting up of the trap which was successful. That the Competent Authority, after perusing the records, was pleased to grant the order of sanction for prosecution and the tainted currency notes of Rs. 350/- were recovered from the accused and the test was positive. That the learned Trial Court ought to have appreciated that the accused was on duty and had demanded the amount of illegal gratification and even though the panch witness has turned hostile, it is no ground for an acquittal. That the prosecution has produced the other evidence which is acceptable and the learned Trial Court has erred in concluding that there was no demand for money. That the prosecution has produced the other evidence which is acceptable and the learned Trial Court has erred in concluding that there was no demand for money. That it is proved that the accused had accepted the bribe amount and the defence raised by the accused is not supported by any cogent evidence and the accused has not been able to discharge his burden of establishing his defence. That the Investigating Officer and other Police Officers have supported the case of the prosecution and the impugned judgement and order of acquittal is improper, perverse and bad in law and is required to be quashed and set aside and the accused must be found guilty of the said offences. 4. Heard learned APP Ms. Jirga Jhaveri for the appellant State and learned senior advocate Mr. K.B. Anandjiwala for the respondent – accused. Perused the impugned judgement and order and entire evidence produced by the prosecution before the learned Trial Court. 5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution and has submitted that from the entire evidence, the prosecution has proved the case beyond reasonable doubts and the prosecution has produced the service record of the accused which proves that the accused was a public servant and the prosecution has proved that the accused had demanded the illegal gratification of Rs. 350/-. That the Trap Laying Officer has followed the entire procedure before the trap and the complainant has, in the complaint, clearly stated that the amount of illegal gratification was demanded by the accused. That even though the complainant has been declared hostile before the learned Trial Court, there is enough evidence which would support the case of the prosecution and the learned Trial Court has not considered the deposition of PW3 – Mahavirsinh Pravinsinh Raul – the Trap Laying Officer and PW4 - Ambapratapsinh Chandravijaysinh Jadeja - the Investigating Officer. But if the entire evidence is perused, the prosecution has successfully proved that the tainted currency notes were recovered from the possession of the accused and the presumption under Section 20 of the PC Act is applicable and hence, the impugned judgement and order must be quashed and set aside and the accused must be found guilty for the offences. The learned APP Ms. The learned APP Ms. Jirga Jhaveri has urged this Court to allow the appeal considering the entire evidence produced by the prosecution on record. 6. Learned senior advocate Mr. K.B. Anandjiwala for the respondent has submitted that in the entire evidence of prosecution, there is no iota of evidence that the accused had ever demanded for any amount of illegal gratification and the complainant has turned hostile and has stated that he had taken the tainted currency notes from his pocket and placed them in the pocket of the accused and thereafter, the ACB Officers had come and they had recovered the amount from the pocket of the accused. That the complainant has also stated that the writing portion was done by the ACB Officers and he does not know what had taken place. That even the panch witness has not fully supported the case of the prosecution and there is evidence to show that the complaint was not filed against the present accused and moreover, the panchnama has also not been written or dictated by the panch witness. That the learned Trial Court has rightly appreciated the entire evidence produced by the prosecution and there is nothing on record to show that the accused had ever demanded for any amount of illegal gratification and no interference is required in the impugned judgement and order passed by the learned Trial Court and the learned advocate for the respondent has urged this Court to reject the appeal of the appellant. 7. Before adverting to the evidence of the prosecution and re-appreciating the same, it would be apt 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. 8. The Hon’ble Apex Court in case of Ballu @ Balram @ Balmukund & Anr. Vs. 8. The Hon’ble Apex Court in case of Ballu @ Balram @ Balmukund & Anr. Vs. State of Madhya Pradesh in Criminal Appeal No. 1167 of 2018, in para 9, has observed as under: 9……. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below: “13. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that:- "In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and !aw. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded." 14. Similar, In case of Harljan Bhala Teja vs. State of Gujarat (2016) 12 SCC 665 , the Supreme Court has held that:- "No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open far the appellate court to express the right conclusion after re-appreciating the evidence If the charge is proved beyond reasonable doubt on record, and convict the accused." 9. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open far the appellate court to express the right conclusion after re-appreciating the evidence If the charge is proved beyond reasonable doubt on record, and convict the accused." 9. In view of the above settled principles of law with regard to the acquittal appeal and the power of this Court to re-appreciate the evidence, the evidence produced before the learned Trial Court by the prosecution is looked into and to bring home the charge against the accused, the prosecution has examined PW1 – Jayantilal Ramubhai at Exh. 19 and the witness is the complainant who has stated that he had purchased a boat named “Jayvantiprasad” in the year 1997 from one Chandrakantbhai of Dahanu for Rs. 1,20,000/-. That he had brought the boat to Umarsali and had gone to the office of the customs to make the entry of the boat and at that time, the officer was on leave and there was one Sipahi. That the Sipahi had made the entry and his pass for fishing was ready. That the signature of the office of the customs was required but as the officer was on leave and the complainant told the Sipahi to get the signature of the officer but the Sipahi refused saying that he could leave the place as he was on duty. That the complainant wanted to go immediately for fishing and he told the Sipahi that he would give him some money and to go and get the signature of the officer but the Sipahi refused and hence, the complainant went to the ACB Office and filed the complaint that the Sipahi had demanded Rs. 350/- from him. That the complainant has identified the signature on the complaint produced at Exh. 20. The complainant, has thereafter, stated that they went to the office of the Customs and asked whether his pass was ready and as it was ready, he took Rs. 350/- from his pocket and placed it in the pocket of the Sipahi and the ACB Officers came and took the amount from the pocket of the Sipahi. That thereafter, they asked the complainant to sit outside and they did some writing work and at around 04.00 pm, they called the complainant and took his signatures on some documents. 350/- from his pocket and placed it in the pocket of the Sipahi and the ACB Officers came and took the amount from the pocket of the Sipahi. That thereafter, they asked the complainant to sit outside and they did some writing work and at around 04.00 pm, they called the complainant and took his signatures on some documents. The complainant has been declared hostile and during the lengthy cross-examination by the learned APP, the complainant had not supported the case of the prosecution and has denied all the allegations made in the complaint. During the cross-examination by the learned advocate for the accused, the complainant has stated that nobody had demanded for any amount of illegal gratification from him at the Custom Office. 9.1 The prosecution has examined PW2 – Yunus Aalammiya Mansuri at Exh. 21 and this witness is the panch witness who was the shadow witness and had gone along with the complainant to the Custom Office. The witness has supported the case of the prosecution and has deposed the entire events that had taken place on 08.09.1997 when he was called to the office of the ACB at Valsad and he had gone along with the other panch witness Manibhai. The witness has stated that after the powder was applied on the currency notes, they were placed in the left shirt pocket of the complainant and they all had gone to the Custom Office in a jeep. That he and the complainant went to the Custom Office and the accused had demanded for the amount and the complainant gave the money to the accused who put it in his shirt pocket. That the panch witness was instructed to whistle and he whistled and all the officers had come and they had checked everything in the light of the lamp. That the panchnama was prepared and they all had signed on the panchnama and the Sipahi was caught and brought to the ACB Office. During the cross- examination by the learned advocate for the accused, the witness has stated that the name of the accused was not written in the complaint and the complainant did not know the name of the accused. That the complainant did not say that Chandrakant was demanding for the amount of illegal gratification and when they reached the Custom Office, only one person was present. That the complainant did not say that Chandrakant was demanding for the amount of illegal gratification and when they reached the Custom Office, only one person was present. That when he whistled, the Sipahi asked him why he was whistling and immediately the ACB Officers had come. That he was not instructed to whistle by the ACB Officers but was merely asked to make a sign to call the officers after the amount was accepted. That he does not know how to write the panchnama and the panchnama was written by the ACB Officer and he had signed on the same. The witness has thereafter, stated that he was having some mental issues after his father passed away in the year 1992 and he could not remember certain things and he had negative thoughts. 9.2 The prosecution has examined PW3 – Mahavirsinh Pravinsinh Raul at Exh. 25 and this witness is the Trap Laying Officer who had recorded the complaint of the complainant and had thereafter, arranged for the panch witnesses and after the entire procedure, has arranged for the trap. The witness has fully supported the case of the prosecution and has deposed entirely about all the events that had taken place from the filing of the complaint till the trap was successful and during the cross-examination by the learned advocate for the accused, the witness has stated that the complainant did not name any person who had demanded for the illegal gratification in the complaint and had also not described the person who had demanded for the illegal gratification. That after the amount was accepted, the panch witness did not whistle and he had not given the panch witness any instruction to whistle. That he had registered the complaint after the trap was successful and the muddamaal was seized. That on the date of the trap, the accused was the only person in the Custom Office and the Custom Officer was on leave. That the Custom Inspector is the competent authority to give the fishing pass and the Sipahi is not the competent person to given any such pass or to make an entry of the boat in the Register. That he has not seen the accused demanding or accepting the amount of illegal gratification. 9.3 The prosecution has examined PW4 – Ambapratapsinh Chandravijaysinh Jadeja at Exh. That he has not seen the accused demanding or accepting the amount of illegal gratification. 9.3 The prosecution has examined PW4 – Ambapratapsinh Chandravijaysinh Jadeja at Exh. 28 and this witness is the Investigating Officer who had collected the service record of the accused and has received the order of sanction for prosecution from the Competent Authority and had thereafter, filed the charge-sheet. 10. In the entire evidence of the prosecution, the complainant has not supported the case of the prosecution and has stated that he had taken the tainted currency notes of Rs. 350/- from his pocket and had placed them into the pocket of the Sipahi. That there is no iota of evidence to show that the accused had demanded for any amount of illegal gratification and it is on record that the complainant had not filed the complaint against the accused but had merely stated that the employee of the Custom Office had demanded for the amount of illegal gratification. That the evidence of the shadow witness is also not believable as the shadow witness has stated that he had given the predetermined signal and had whistled but the Trap Laying Officer – PW3 – Mahavirsinh Pravinsinh Raul has categorically stated that he had not instructed the panch witness to give any predetermined signal by whistle and even after the currency notes were accepted, no whistle was done by the panch witness. It has also come on record that the panch witnesses have not written the panchnama and the panch was dictated by the Trap Laying Officer and was written by the Officers of the ACB. Moreover, it has also come on record that the accused was not the competent authority to give the pass for fishing or to make the necessary entry in the Register and the concerned officer was on leave. That the evidence of the complainant and the panch witness does not inspire any confidence of the Court and there is no iota of evidence regarding the demand and acceptance by the accused. Admittedly, the accused was a Sipahi in the Custom Office and did not have any authority to give any pass and on the date of the trap, the accused was the only person who was present in the office at the time of the trap. 11. Admittedly, the accused was a Sipahi in the Custom Office and did not have any authority to give any pass and on the date of the trap, the accused was the only person who was present in the office at the time of the trap. 11. That the learned Trial Court has discussed the entire evidence of the prosecution in detail and has given cogent reasons for discarding the evidence of the complainant and the panch witness and has also concluded that as the accused was not having the power to issue any fishing pass, there was no reason for the accused to demand any amount of illegal gratification. That the learned Trial Court has also concluded that the evidence of the panch witness does not inspire any confidence and has concluded that the prosecution has not produced evidence to bring home the charge against the accused beyond reasonable doubts. 12. As discussed above, after meticulous dissection of the evidence of the prosecution as also considering the observations of the Hon'ble Apex Court in Ballu @ Balram @ Balmukund (supra), this Court is of the considered opinion that the judgement and order passed by the learned Trial Court is passed after giving proper and cogent reasons and the learned Trial Court is fully justified in acquitting the accused from all the charges levelled against the accused. This Court does not find any illegality, perversity or infirmity in the findings recorded by the learned Trial Court and is in complete agreement with the findings, ultimate conclusion and resultant order of acquittal. 13. This Court finds no reason to interfere with the impugned judgement and order of acquittal and the present appeal is devoid of merits and is resultantly dismissed. The impugned judgement and order of acquittal passed by the learned Special Judge, Fast Track Court No. 3, Valsad in Special Corruption Case No. 24 of 2002 on 30.11.2005 is hereby confirmed. 14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.