Gujarat High Court
State Of Gujarat vs Babubhai Govabhai ... on 15 April, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/1436/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1436 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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 ?
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STATE OF GUJARAT....Appellant(s)
Versus
BABUBHAI GOVABHAI RAVALIYA....Opponent(s)/Respondent(s)
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Appearance:
MS. HANSA PUNANI, APP, for the Appellant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 15/04/2015
ORAL JUDGMENT
[1] The present acquittal Appeal has been filed by the appellant-original complainant, State of Gujarat under Section 378(1)(3) of the Cr. P.C., against the Judgment and order dated 28.01.2004 rendered by the learned Special Judge, Panchmahal, Camp at Dahod, in Special Case No.9 Page 1 of 13 R/CR.A/1436/2004 JUDGMENT of 1998. The said case was registered against the present respondent-original accused for the offence under Sections-7, 13(a)(d) and 13(2) of the Prevention of Corruption Act.
[2] According to the prosecution case, respondent- accused-Babubhai Govabhai Ravaliya of this case was discharging his duty as Talati-cum-Mantri of Garbada Gram Panchayat and as such he was a public servant. The complainant of this case had purchased piece of land which was originally of the ownership of an Adivasi and in respect of which, proceedings were initiated in the Court and ultimately, he succeeded in the said case. Thereafter, he paid required stamp duty for transferring the land in his ownership permanently and in respect of the said transfer of the land in question, he approached the respondent- accused for making necessary entry in the record of rights. However, the respondent-accused, though it was his duty being the Talati-Cum-Mantri, demanded an amount of Rs.5,000/-from the complainant. However, after bargaining, it was reduced to Rs.2,000/-. The complainant informed the accused that he would pay the same in two installments and he was called by the respondent-accused on 03.10.2007 to pay Rs.1,000/- at Chora. As the complainant did not want to pay the said amount of bribe, he approached Sub-Divisional Office of Dahod Police Station and registered his complaint before Chamanbhai Khatrabhai Parghi, Dy.S.P. Thereafter, Chamanbhai Khatrabhai Parghi, Dy.S.P, called two panchas. Both the Page 2 of 13 R/CR.A/1436/2004 JUDGMENT panchas were introduced with the complainant and facts of the complaint were disclosed to both the panchas. In presence of members of raiding party, search of the complainant and panchas was made. Then, Police Inspector called Head Constable, Fatesinh was called to explain uses of the anthracene powder and ultra violate lamp. First part of the panchnama was drawn and signatures of panchas were taken. Then, the trap amount of Rs.1,000/-, was presented by the complainant under the instructions of the Trapping Officer and anthracene powder was applied on the trap amount. The complainant was directed not to touch the said amount prior to demand made by respondent-accused. Panch No.1 was advised to stay with the complainant and listen all talk took place between the complainant and the respondent- accused while panch No.2 was advised to stay with the members of raiding party. The complainant was also instructed to give signal after the demand made by the accused. After completing necessary formalities, they went to the place of trap. The complainant and panch No.1 went to the office of the respondent-accused and other members of raiding party and Trapping Officer took their position. Then, as decided earlier, signal was given by the complainant and Trapping Officer alongwith members of raiding party rushed to the place of trap and respondent- accused was instructed not to do anything. The amount which was inserted into the pocket of the respondent- accused was searched out by panch No.1 and amount was Page 3 of 13 R/CR.A/1436/2004 JUDGMENT recovered from the pocket of the respondent-accused and anthracene powder was found from the fingers, tips and pocket of the respondent-accused. Thereafter, second part of the panchnama was drawn and signatures of the panchas were taken. The respondent-accused was arrested and seizure memo was given to him. Thereafter, investigation was carried out and statements of the witnesses and panchas were recorded by the Investigating Officer. To prosecute against the respondent-accused, sanction was obtained from the competent authority. Then, charge-sheet was filed against the respondent- accused for offence under Sections-7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, which was numbered as Special Case No.9 of 1998.
[3] On the basis of above allegations, charge was framed vide Exh.2 and read-over and explained to the accused for the offence punishable under Sections-7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. The accused pleaded not guilty vide Exh.3 to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined four oral evidences:-
Sr Exh Name of Witness
No .
1 10 Bhalubhai Premabhai Bhabhor
2 12 Alkesh Dadamchand Soni
3 16 Chamanbhai Khatrabhai Parghi
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R/CR.A/1436/2004 JUDGMENT
[5] In support of the prosecution case, the prosecution has produced several documentary evidences like complaint at Exh.11, panchanma at Exh.13, copy of receipt at Exh.14, copy of yadi to Nagarpalika, Dahod at Exh.17, sanction at Exh.18, photocopy of village form No.6 at Exh.19, photocopy of service book of the accused at Exh.20, yadi to TDO at Exh.21, letter of TDO at Exh.22, order of Deputy Collector at Exh.31, copy of yadi to Deputy Collector at Exh.32, photocopy of LND of Deputy Collector at Exh.33, copy of yadi to DDO at Exh.34 and 35 and letter of Taluka Panchayat at Exh.36.
[6] Thereafter, after filing closing pursis by the prosecution vide Exh.23, further statement of accused person under Section-313 of the Code of Criminal Procedure, 1973 was recorded, wherein, he explained that false case was filed against him. He further explained that due to political rivalry, he was falsely implicated by the respondent-accused. Further, Talati has to make entry on the basis of documents and except this work, other works such as to hear the parties and consider the objections, have to be handled by the Circle Officer and Mamlatdar. Further, local political persons of Garbada village wanted to sanction the bill of room of school illegally, to which the respondent-accused was not agreed and hence, concocted the story and trap was arranged. He further stated that he was innocent and he had not made any demand in connection of illegal gratification. He further admitted that demand was not proved beyond reasonable doubt and Page 5 of 13 R/CR.A/1436/2004 JUDGMENT trap amount was also not recovered from the possession of the respondent-accused. He also submitted written explanation to rebut the presumption under Section-20 of the Act. The accused person denied the case of the prosecution and submitted that a false case is filed against him.
[7] Then, arguments of both the parties were heard. In the present case, learned trial Judge considered the oral evidence of the PW-1 complainant and PW-2 panch witness and observed that they never disclosed regarding the demand made by the respondent-accused. Panch No.2 simply deposed that within a minute, members of raiding party rushed to the place of trap and the respondent- accused was arrested. Learned trial Judge observed that prosecution could not prove demand made by the respondent-accused and in absence of demand of illegal gratification, it was considered by the learned trial Judge that only recovery and acceptance of the trap amount from the possession of the respondent-accused are not sufficient to convict him. In result of this, learned trial Judge passed the acquittal order in favour of the respondent-accused.
[8] Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 28.01.2004 rendered by the learned Special Judge, Panchmahal, Camp at Dahod, in Special Case No.9 of 1998, the appellant- State has preferred the present appeal before this Court.
[9] Heard Ms. Hansa Punani, learned Additional Public Page 6 of 13 R/CR.A/1436/2004 JUDGMENT Prosecutor for the appellant-State and Mr. Viral Vyas, learned advocate for Mr.Ashish Dagli, learned counsel for the respondent-accused.
[10] Ms. Hansa Punani, learned Additional Public Prosecutor read the charge as well as evidence of the complainant. She contended that oral version of the complainant and complaint, which itself show that first demand was made by the respondent-accused and therefore, prosecution proved its case under Section-7 of the Prevention of Corruption Act beyond reasonable doubt, even though learned trial Judge wrongly acquitted the respondent-accused from the charge under Section-7 of the Act. She drew attention of the Court to panchnama and argued that contents of the panchnama is proved through oral version of the panch witness PW-2-Alkesh Dadamchand Soni and Trapping Officer Mr.Chamanbhai Khatrabhai Parghi. From the oral versions of the above witnesses, it is proved that the trap amount was recovered from the possession of the respondent-accused, but the learned trial Judge wrongly observed that the demand was not proved. She then contended that under Section-20 of the Act, it is the duty of the prosecution to explain the probable defence regarding the recovery made from his possession, but the respondent-accused did not explain his probable defence and therefore, it can be said that the learned trial Judged committed a grave error in acquitting the respondent-accused. Lastly, she prayed to set aside the judgment and order of acquittal and allow the appeal.
Page 7 of 13R/CR.A/1436/2004 JUDGMENT [11] Mr. Viral Vyas, learned advocate for Mr.Ashish Dagli, learned counsel for the respondent-accused read Sections- 7 and 13 of the Prevention of Corruption Act and argued that in corruption cases, actually demand is required to be proved through oral version of the complainant as well as independent witness panch. He read the evidence of the complainant PW-1 and argued that the complainant never stated that when the complainant entered into the office of the respondent-accused with panch No.1 and in result of demand of Rs.1,000/-made by the respondent-accused, it was accepted by him. He further argued that when the evidence regarding the demand is not established and proved through oral version of the complainant on record, then acceptance and recovery are not the ingredient for the offence punishable under the Prevention of Corruption Act. He further read the evidence of PW-2 panch No.2 and contended that he did not disclose any single iota of the evidence in support of the prosecution case. He then contended that simply recovery of the trap amount from the possession of the respondent-accused is not sufficient to convict the respondent-accused and prima-facie when demand is not properly established, then question regarding setting aside the judgment and order of acquittal does not arise. Lastly, he prayed to dismiss the appeal.
[12] Heard learned advocates for both the parties. I have gone through the impugned judgment and order passed Page 8 of 13 R/CR.A/1436/2004 JUDGMENT by the learned trial Judge. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the respondents-accused. I have also considered the submissions advanced by the learned advocates for the respective parties.
[13] It is pertinent to note that in corruption cases, four things are required to be appreciated, viz. (I) initial demand, (ii) second demand to be made in presence of Panch, (iii) voluntary acceptance and (iv) recovery of amount.
[14] First of all, it was stated by the complaint in the complaint that for the entry in register, demand of Rs.4,000/-was made by the respondent-accused and after negations, it was reduced to Rs.2,000/- and he agreed to pay it to respondent-accused in two installments. On the day of trap, an amount of Rs.1,000/-(first installment), was given to respondent-accused by the complainant in presence of panch No.1 and accordingly, trap amount was recovered from the possession of the respondent-accused and anthracene powder was found from his fingers, palm, tips and inside and outside pocket of the respondent- accused. It is true that recovery is made from the possession of the respondent-accused, but important aspect is demand. For the purpose, I have minutely perused the evidence of the PW-1 complainant, wherein, complainant never disclosed evidence in support of the contents of the complaint. In in examination-in-chief, he stated that when he entered into the office of the Page 9 of 13 R/CR.A/1436/2004 JUDGMENT respondent-accused with panch No.1, no demand was made by the respondent-accused. I have also perused the cross-examination of the complainant, wherein, he stated that no demand was made by the respondent-accused. Therefore, it is the duty of the prosecution to declare him as hostile or prosecution could make attempt to cross- examine him, but the same was not done by the prosecution. PW-2 panch also disclosed that simply he entered into the office of the respondent-accused with the complainant and then, signal was given and members of raiding party rushed to the place of trap with Trapping Officer and search was made by panch No.1 and in presence of members of raiding party, trap amount was recovered from the pocket of the respondent-accused and anthracene powder was found from the fingers, pal and tips of the respondent-accused. Both the aforesaid witnesses did not depose that when they entered into the house of the respondent-accused, the respondent-accused made a demand of Rs.1,000/-from the complainant. Even panch No.2 never disclosed anything regarding the demand, even though prosecution did not declare him as a hostile or not make any attempt to cross-examine him. PW-3 Trapping Officer simply deposed that the complainant narrated the facts and the same was written down by him and arranged trap after calling two panchas. Then, first part of the panchnama was drawn and he went to the place of trap alongwith members of raiding party, complainant and panchas and after receiving signal from Page 10 of 13 R/CR.A/1436/2004 JUDGMENT the complainant, he rushed to the place of trap and search was made and muddamal currency notes were recovered from the possession of the respondent-accused, but he did not have personal knowledge as far as the demand is concerned. After discussing the evidence of witnesses, I have come the conclusion that when the evidence regarding the demand is not established on record, learned trial Judge rightly observed that prosecution could not prove demand prima-facie and simple recovery is not sufficient to convict the respondent-accused. I have minutely perused the explanation made by the respondent-accused at Exh.25 in its written statement. Ms.Punani, learned APP drew attention of the Court to provision of Section-20 of the Act, but it was disclosed by the respondent-accused that due to political rivalry arose between the leaders of the village, who forced the respondent-accused to sanction the bogus bill of the room of school, to which respondent-accused was not agreed and therefore, concocted trap was made and thus it can be said that respondent-accused rebutted the presumption under Section-20 of the Act.
[15] In view of the above observations made by the learned Judge, I am in complete agreement that the learned Judge has rightly acquitted the respondent- accused. There in no substance in the appeal and the arguments made by the learned Additional Public Prosecutor. Though learned Additional Public Prosecutor has tried to establish her case, but the Court has not Page 11 of 13 R/CR.A/1436/2004 JUDGMENT found any sufficient evidence to consider and entertain this appeal.
[16] In the present case, prosecution has failed to prove that respondents-accused demanded any amount from the complainant. Even recovery from the physical possession of the respondents-accused creates some doubt. I am in full agreement with the judgment and order of the learned trial Judge and I have not found any substance in the present appeal and hence, the present appeal deserves to be dismissed.
[17] In the latest decision of the Supreme Court in the case of Banarsi Das Vs. State of Haryana, reported in AIR 2010 SC 1589, the Hon'ble Supreme Court has observed that mere proof of recovery of bribe money from accused is not sufficient to prove the offence. In that view of the matter, I am of the opinion that so far as offence of bribery is concerned, the demand and acceptance of money is required to be proved beyond reasonable doubt and mere recovery of bribe money from accused is not sufficient to prove the offence and to hold the person guilty. Presumption cannot be raised when demand is not proved in this case. Therefore, in absence of any evidence regarding the demand, mere alleged recovery is not sufficient to convict the present respondent accused. The ratio laid down in aforesaid decision is squarely applicable to the facts of the present case because in the case on hand, the demand is not proved and the complainant had not stated about the demand made by the accused and, Page 12 of 13 R/CR.A/1436/2004 JUDGMENT therefore, mere alleged recovery is not sufficient to prove the case against the respondents-accused. Even the recovery is also not proved as per law.
[18] In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 28.01.2004 rendered by the learned Special Judge, Panchmahal, Camp at Dahod, in Special Case No.9 of 1998, acquitting the respondent-accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.
(Z.K.SAIYED, J.) siddharth Page 13 of 13