Gujarat High Court
Ashwinbhai Ambalal Vyas vs State Of ... on 10 January, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/1495/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1495 of 2003
With
CRIMINAL APPEAL NO. 1517 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
ASHWINBHAI AMBALAL VYAS....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
==========================================================
Appearance:
CRIMINAL APPEAL NO.1495 OF 2003 :
MR DJ PANCHAL, ADVOCATE for the Appellant(s)
MR K J PANCHAL, ADVOCATE for the Appellant(s)
MS HB PUNANI, APP for the Opponent(s)/Respondent(s)
CRIMINAL APPEAL NO.1517 OF 2003 :
MR PRAVIN GONDALIA , ADVOCATE for the Appellant(s)
MS HB PUNANI, APP for the Opponent(s)/Respondent(s)
==========================================================
Page 1 of 20
HC-NIC Page 1 of 20 Created On Sat Aug 12 06:14:05 IST 2017
R/CR.A/1495/2003 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 10/01/2017
COMMON ORAL JUDGMENT
1. Both these appeals arise out of the same incident and involve common questions of law and facts and hence, they are being decided by this common judgment.
2. Criminal Appeal No.1495 of 2003 is preferred by the appellant - Ashwinbhai Ambalal Vyas - original accused against the judgment and order dated 18.11.2003 passed in Special (ACB) Case No.1 of 2001 by learned Special Judge and Sessions Judge, Amreli in Special Case (ACB) No.1 of 2001 whereby the original accused was convicted for the offence under section 7 of the Prevention of Corruption Act 1988 ("the Act" for short) and sentenced to undergo six months rigorous imprisonment and to pay fine of Rs.5000/-, in default, to undergo further one month simple imprisonment, to undergo three years rigorous imprisonment and to pay fine of Rs.5000/-, in default, to undergo further six months simple imprisonment for the offence under section 13(2) read with section 13(1)(d) of the Act and both the sentences were ordered to run concurrently.
2.1 Criminal Appeal No.1517 of 2003 is
Page 2 of 20
HC-NIC Page 2 of 20 Created On Sat Aug 12 06:14:05 IST 2017
R/CR.A/1495/2003 JUDGMENT
preferred by the appellant - Rameshbhai Mohanlal Rathod - original prosecution witness No.1 in Special (ACB) Case No.1 of 2001 against the judgment and order dated 29.11.2003 passed below Exh.26 in Special Case No.1 of 2001 by learned Special Judge, Amreli whereby the appellant was convicted for the offence under section 344 of the Code of Criminal Procedure and sentenced to undergo three months rigorous imprisonment and to pay fine of Rs.500/-, in default, to undergo seven days simple imprisonment.
3. The short facts giving rise to Criminal Appeal No.1495 of 2003 are that the complainant was appointed as a teacher at village Pipaliya and he was required to be granted higher pay scale. It is alleged that the complainant met the accused and gave an application for grant of higher pay scale, at that time, demand was made and the complainant told the accused that he would give the amount on 4.9.2000 from the salary of August 2000. As the complainant was not desirous to give the amount of bribe, he lodged the complaint before the ACB office. The raid was carried out and the accused was trapped. So far as Criminal Appeal No.1517 of 2003 is concerned, the appellant who was prosecution witness No.1 was convicted under section 344 of the Code of Criminal Procedure 1973.
4. In pursuance of the complaint, the Investigating Officer carried out the Page 3 of 20 HC-NIC Page 3 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT investigation and filed the chargesheet against the original accused. The charge was framed against the original accused. The original accused pleaded not guilty to the charge and claimed to be tried.
4.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences.
4.2 At the end of the trial, after recording the statement of the accused under section 313 of the Code of Criminal Procedure and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order convicting the appellant accused, as stated above. Whereas, the appellant
- Rameshbhai Mohanlal Rathod - original prosecution witness No.1 in Special (ACB) Case No.1 of 2001 has been convicted for the offence under section 344 of the Code of Criminal Procedure.
5. Being aggrieved by the same, the appellants have preferred the aforesaid Criminal Appeals before this Court.
6. By way of preferring the present appeals, the appellants have mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the Page 4 of 20 HC-NIC Page 4 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such.
7. So far as Criminal Appeal No.1495 of 2003 is concerned, Mr.Panchal, learned advocate for the appellant - original accused has argued that on going through the evidence of the complainant himself, he has admitted in the cross examination that there was prior acquittance with the accused and there was financial transaction with his son and hence, Rs.400/- was required to be returned by the complainant to the accused and during the course of cross examination of the complainant, the writing at Exh.8 for such amount came to be produced by the complainant in favour of the accused wherein he has admitted that his son has borrowed Rs.400/- from the accused which was required to be paid to the accused. He submitted that such writing was given in favour of the accused on 15.4.2000. He further submitted that till the date of trap, no such debt was cleared and that the amount of Rs.400/- has been described against illegal gratification but in fact, it was against clearing outstanding amount and the said fact is also admitted by the complainant and getting corroboration from the evidence of the Investigating Officer - PW 3 that Page 5 of 20 HC-NIC Page 5 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT during the course of investigation, the accused explained that the amount of Rs.400/- was accepted against the debt. He argued that learned trial Judge has doubted the aforesaid writing executed by the complainant in favour of the accused during the course of recording his evidence and learned trial Court itself has taken the similar writing by invoking the provisions of section 73 of the Indian Evidence Act in order to compare the writing, however, without giving finding thereon, learned trial Court while delivering the judgment, without even any material on record and without hearing on that point, assigned the reasons upon surmises and conjectures which has prejudicially affectd the right of the accused. He argued that when it was nobody's case that such writing at Exh.8 is fabricated or false, it was not incumbent upon learned trial Court to straightaway presume that such document is fabricated. He submitted that even if the said notion was there in the mind of learned trial Court, in that event, learned trial Court should have followed the due procedure and principles of natural justice so as to offer reasonable opportunity to the complainant and the accused in order to prove that the said document is not fabricated one but it is genuine one which has not been done so far and in absence thereof, straightaway by recording the reasons, it is held that such document is forged one, but no reliance can be placed on it and that the case of the Page 6 of 20 HC-NIC Page 6 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT complainant stood to be proved is not in accordance with the provisions of law. He submitted that so far as vital ingredients as regards to demand and acceptance are concerned, the evidence of the complainant is not clearly revealing that there was any demand from him by the accused, but the complainant voluntarily offered and delivered the money and that is also in consistent with the story put forth by the complainant in the complaint. He, therefore, submitted that the appellant - original accused is required to be acquitted, as such.
8. So far as Criminal Appeal No.1517 of 2003 is concerned, Mr.Pravin Gondalia, learned advocate for the appellant has argued that appellant - original complainant has been held guilty for tendering fabricated evidence at Exh.8 and thereby while delivering the judgment against the original accused, learned trial Judge has recorded several reasons for arriving at the finding that such document is fabricated one and thereafter straightaway by way of issuing the notice as contemplated under section 344 of the Code of Criminal Procedure and affording opportunity of hearing, inflicted punishment upon the appellant. He submitted, however, learned trial Judge failed to carry out procedure as laid down under the provisions of section 344 of the Code of Criminal Procedure for summary trial against the offender before delivering the Page 7 of 20 HC-NIC Page 7 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT impugned judgment and order and thereby for want of trial and straightaway, the appellant has been held guilty which is not sustainable at law. He argued that while delivering the judgment against the original accused, learned trial Judge has recorded several reasons for holding that the document at Exh.8 is fabricated one and at the time of serving the show cause notice, such finding which were the basis of issuance of the notice were not conveyed and hence, the appellant was not in a position to explain the same and thereby the entire judgment is virtually against the principles of natural justice.
9. On the other-hand, Ms.H.B.Punani, learned APP has supported both the judgments rendered by learned trial Court. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused which calls for no interference. She further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and, therefore, punishment inflicted upon the accused does not call for any interference. She submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellants and ingredients as regards to demand, acceptance and recovery are proved in accordance with law.
Page 8 of 20
HC-NIC Page 8 of 20 Created On Sat Aug 12 06:14:05 IST 2017
R/CR.A/1495/2003 JUDGMENT
10. This Court has heard Mr.Panchal, learned advocate for the appellant - original accused, Mr.Pravin Gondalia, learned advocate for appellant - original complainant and Ms.H.B.Punani, learned APP for the State.
11. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book.
12. As per the prosecution version, the appellant accused while serving as Junior Clerk in the Taluka Panchayat, Babra demanded Rs.400/- as illegal gratification for processing the papers seeking higher pay scale and thereby during the trap, he came to be caught red handed and thereby, the appellant - original accused committed the offence, as alleged.
13. PW 1 - Rameshbhai Mohanbhai Rathod has been examined at Exh.6. The witness has deposed that he was serving as Assistant Teacher in village Gamapipaliya and he applied for grant of higher pay scale in Taluka Panchayat, Babra where the appellant accused was serving as Junior Clerk. The witness has deposed that the accused delivered the form and the witness has submitted the duly filled in form to the accused and thereafter while he met the accused on 6.7.2000, at that time, the accused demanded Rs.500/- and Page 9 of 20 HC-NIC Page 9 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT he was directed to deliver the same on 4.9.2000. The witness has deposed that as he was not willing to pay the amount of bribe, he approached the ACB office, Amreli, lodged the complaint and the trap was arranged on 4.9.2000. The witness has deposed that when he visited the office of the accused on the appointed date and time, the accused was found there and the witness initially talked as regards to grant of higher pay scale and also told him that he is required to pay Rs.500/-, but he has brought Rs.400/-. The witness has deposed that thereafter the witness and the accused both went out of the office for taking pan near ST depot where the accused asked for the amount and the witness delivered the same whereby the accused was caught red handed with the aforesaid amount. In the cross examination, the witness has admitted that the District Education Officer is the competent authority to sanction the higher pay scale and not the appellant accused. The witness has admitted that he is hailing from Rajkot and the accused is also hailing from Rajkot and they have prior acquittance. In paragraph 18 of the cross examination, the witness has admitted that the accused has son named Ravindra. When the witness was shown the writing, he has admitted that the same is his own handwriting and the signature also appears to be of him and hence, the said document was admitted as Exh.8 which was furnished from the custody of the accused as the Page 10 of 20 HC-NIC Page 10 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT same was written by the complainant in favour of the accused on 15.4.2000 indicating that he has borrowed Rs.400/- from his son and he would pay back. The witness has admitted that till the date of trap, he did not clear the aforesaid Rs.400/- which was taken from the son of the accused.
14. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A.Subair Vs State of Kerala, (2009) 6 SCC 587 : (2009 AIR SCW 3994), while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
15. In State of Kerala and another Vs C.P.Rao (2011) 6 SCC 450 : (AIR 2012 SC (Supp) 393), the Honourable Apex Court reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot Page 11 of 20 HC-NIC Page 11 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT be sustained.
16. In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B.Jayraj (AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Page 12 of 20 HC-NIC Page 12 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT Section 20 of the Act would also not arise.
17. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.
18. In the backdrop of the aforesaid factual position, this Court has minutely gone through the impugned judgment and order as well as the depositions of the witnesses in light of the rival submissions made by learned advocates for both the sides.
19. It is very interesting to note at this stage that the aforesaid writing came from the lawful custody of the accused as it was in favour of him which came to be executed by the complainant. Though none of the parties have doubted the genuineness of the aforesaid document at Exh.8, however, learned trial Judge doubted the said document and even also cross examined the complainant, but nothing worth has come out from his cross examination and thereafter learned trial Court, in order to compare the writing as well as signature over the document at Exh.8, Page 13 of 20 HC-NIC Page 13 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT invoked the provisions of section 73 of the Indian Evidence Act and taken another similar writing under the handwriting of the complainant which came on record at Exh.8-A. The said document at Exh.8-A was not forming the part of the chargesheet, but by way of defence, it came to be produced from the custody of the accused which was admitted by the complainant during the course of trial. When learned trial Court doubted the document at Exh.8 and invoked the provisions of Section 73 of the Indian Evidence Act for comparing the said writing at Exh.8 in order to record subjective satisfaction, but learned trial Court did not record any finding thereon as to whether the Court is satisfied with comparison and whether the said document was found to be genuine or not. When the document at Exh.8 was found to be fabricated by learned trial Court, in that event, for all the reasons, it was found to be fabricated one and such finding is not recorded by learned trial Court and, therefore, neither the complainant who is the author of the said document at Exh.8 nor the accused could elicit any further proceedings for bringing truth on record and, therefore the right of the party concerned has been prejudicially affected. Section 73 of the Indian Evidence Act reads as under.
"Section 73. Comparison of signature, writing or seal with others admitted or proved.--In order to ascertain whether a Page 14 of 20 HC-NIC Page 14 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. 1[This section applies also, with any necessary modifications, to finger-impressions.]"
20. In corruption cases, as laid down in the series of judgments by the Honourable Apex Court as well as by this Court, three vital ingredients are required to be established by the prosecution beyond reasonable doubt in order to prove the offence as alleged. Recently, the Honourable Apex Court has made it clear that 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. Precisely, failure of the prosecution to Page 15 of 20 HC-NIC Page 15 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT prove demand for illegal gratification would be fatal and mere recovery of amount from the person of the accused of the offence under sections 7 or 13 of the Act would not entail his conviction thereunder.
21. On overall appreciation of the entire evidence on record, it appears that when the accused was successful in bringing the aforesaid writing at Exh.8 during the course of cross examination of the complainant and thereafter the said document is materially corroborated by the evidence of the Investigating Officer - PW 3 who himself has admitted that during the course of investigation, the accused explained that the amount so recovered as illegal gratification was accepted from the complainant as it was advanced to him and not as illegal gratification. Learned trial Court has recorded several reasons holding that the aforesaid document must have been fabricated by the accused and the complainant in collusion with each other in order to aid each other and also recorded several reasons as regards to use of ink as well as age of the paper and has done microscopic examination and recorded several other reasons which are in the nature as if the some experts have given opinions. In this view of the matter, when the conscious of learned trial Court was shocked, in that event, learned trial Court could have recorded the clear finding on the issue after affording an opportunity to Page 16 of 20 HC-NIC Page 16 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT the party concerned to lead the evidence in their defence so that true finding as to whether document at Exh.8 is fabricated or genuine one can be recorded by following the due procedure of law. Without doing so, learned trial Court straightaway recorded the finding which, in the considered opinion of this Court, is proved to be fatal and prejudicially affected the right of the parties concerned which is not sustainable at law.
22. So far as conviction recorded against the complainant is concerned, for the reasons recorded above, the same is also not sustainable. Even otherwise, when the learned trial Court has reached to the conclusion that the document at Exh.8 is fabricated, at that point of time, learned trial Court was required to serve the notice to the complainant indicating the reasons for which the Court has arrived at the conclusion that the said document at Exh.8 is fabricated so that the complainant could have reasonable opportunity of explaining against such reasons and thereafter learned trial Court to carry out trial by way of following the procedure as laid down under the provisions of section 344 of the Code of Criminal Procedure. Section 344 of the Code of Criminal Procedure 1973 reads as under.
"344. Summary procedure for trial for giving false evidence. (1) If, at the time of delivery of any judgment or Page 17 of 20 HC-NIC Page 17 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both.
(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.
(3) Nothing in this section shall affect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section.
(4) Where, after any action is initiated under sub- section (1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that sub- section has been expressed, it or he shall stay Page 18 of 20 HC-NIC Page 18 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision."
23. Admittedly, as stated above, learned trial Court has not followed the summary procedure for trial for giving false evidence by the complainant.
24. In view of the above discussion, the following final order is passed;
Criminal Appeal No.1495 of 2003 preferred by the appellant - Ashwinbhai Ambalal Vyas - original accused and Criminal Appeal No.1517 of 2003 preferred by the appellant - Rameshbhai Mohanlal Rathod - original prosecution witness No.1 in Special (ACB) Case No.1 of 2001 are allowed. The impugned judgment and order dated 18.11.2003 passed in Special (ACB) Case No.1 of 2001 by learned Special Judge and Sessions Judge, Amreli in Special Case (ACB) No.1 of 2001 and the judgment and order dated 29.11.2003 passed below Exh.26 in Special Case No.1 of 2001 by learned Special Judge, Amreli are quashed and set aside. Both the appellants - accused are acquitted of the charges levelled against them. Fine, if any, paid by them be refunded to them.
Page 19 of 20 HC-NIC Page 19 of 20 Created On Sat Aug 12 06:14:05 IST 2017 R/CR.A/1495/2003 JUDGMENT R & P be sent back to the trial Court, forthwith. (R.P.DHOLARIA,J.) pathan Page 20 of 20 HC-NIC Page 20 of 20 Created On Sat Aug 12 06:14:05 IST 2017