Gujarat High Court
State Of Gujarat vs Amrutbhai Maganbhai ... on 14 March, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.A/1291/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1291 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers may NO
be allowed to see the judgment?
2 To be referred to the Reporter or NO
not?
3 Whether their Lordships wish to see NO
the fair copy of the judgment?
4 Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of NO
India, 1950 or any order made
thereunder?
5 Whether it is to be circulated to the NO
civil judge?
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STATE OF GUJARAT....Appellant(s)
Versus
AMRUTBHAI MAGANBHAI SENMA....Opponent(s)/Respondent(s)
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Appearance:
MS MONALI BHATT APP for the Appellant(s) No. 1
MR VISHAL MEHTA for MR ANIL S DAVE ADVOCATE for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 14/03/2014
ORAL JUDGMENT
1. The present Appeal is directed against the judgment and order passed in Special Case No.9 of Page 1 of 15 R/CR.A/1291/2003 JUDGMENT 2000 by the Special Judge, Mehsana dated 25.07.2003 recording acquittal of the accused for the alleged offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act .
2. The facts of the case briefly summarized are as follows:
2.1 The complainant was having land at Village :
Kaiyal and desired to have an entry mutated in respect of the land on the basis of the will of his grandfather. For that purpose, he approached the respondent, who is said to have stated that he may come with the papers and the expenses would be Rs.5,000/, thereafter, it was settled at Rs.4,000/. The complainant is said to have visited the respondentaccused after the death of his mother for the entry regarding the death of his mother. He had requested at that time for mutation of entry based on the will as per his earlier talk. At that time also, the accused is said to have asked for the papers and the amount and as the complainant did not desire to pay the bribe, he lodged complaint being C.R.No.I16/1999 with ACB Police Page 2 of 15 R/CR.A/1291/2003 JUDGMENT Station for the offence under the Prevention of Corruption Act and on the basis of which, trap was arranged.
2.2 Thereafter, case was registered as Special Case No.9 of 2000 and the learned Judge proceeded with the trial.
2.3 After recording the evidence of the prosecution witnesses was over, further statement of the accused under Section 313 of the Criminal Procedure Code was recorded. 2.4 After hearing the learned Additional Public Prosecutor as well as for the defence, the court below passed an order of acquittal on the basis of appreciation of material and evidence, which has been assailed by the appellantState in the present appeal inter alia on the ground that the court below has failed to appreciate the material and evidence on record.
3. Heard learned APP Ms.Monali Bhatt for the appellantState and learned advocate, Shri Vishal Mehta for the respondentaccused.
4. Learned APP Ms.Bhatt has referred to the testimony of the complainant at Exh.21 and the testimony of Page 3 of 15 R/CR.A/1291/2003 JUDGMENT the PW No.1, panch witness no.2 at Exh.26. She has also referred to the judgment and order and submitted that the demand for Rs.5,000/ was made for mutation of the entry on the basis of will of the grandfather and as stated by the complainant in his testimony at Exh.21, it was settled for Rs.4,000/. Learned APP Ms.Bhatt pointedly referred to the testimony of the complainant at Exh.21 and submitted that he has stated about the amount and the panch no.1, PW 2 has corroborated the testimony of the complainant on material aspect regarding the acceptance and recovery.
Learned APP Ms.Bhatt has therefore submitted that though the complainant in his testimony may not have totally supported the prosecution case, he has also not been declared hostile and, therefore, considering the circumstances and the evidence, the finding recorded by the court below and the reasons are erroneous and the minor discrepancy could not have been accepted as a fatal to the prosecution case. She has tried to submit referring to the testimony of the witnesses that when the tainted currency notes have been accepted by the accused, which have been recovered from the Page 4 of 15 R/CR.A/1291/2003 JUDGMENT pocket of the pent of the accused, marks of anthracene power are also found both on the finger tips as well as pent, the acceptance and the recovery are established. Learned APP Ms.Bhatt has also submitted that there is no explanation offered by the accused for this in the statement recorded under Section 313 of the Criminal Procedure Code. Learned APP Ms.Bhatt, therefore, submitted that the presumption under Section 20 of the Act would be attracted as the amount has been accepted and recovered from the accused. Learned APP Ms.Bhatt has referred to and relied upon the judgment of the Hon'ble Apex Court in case of State Represented by Inspector of Police, Pudukottai, T.N. Vs. A. Parthiban, reported in (2006) 11 SCC 473 (Para No.8) and submitted that as observed in this judgment, the acceptance of illegal gratification whether it is preceded by demand or not would be covered by Section 7 of the Act. Therefore it was submitted that even if, there is no demand, the acceptance and the recovery, which has been proved by the prosecution, would be sufficient for conviction of the accused for the offence under Section 7 of the Page 5 of 15 R/CR.A/1291/2003 JUDGMENT Act. She therefore submitted that the judgment is erroneous.
5. Learned APP Ms.Bhatt has also referred to the judgment of the Hon'ble Apex Court in case of Narsinga Rao Vs. State of A.P., reported in (2001) 1 SCC 691, reported in (2001) 1 SCC 691 and also judgment in case of T. Shankar Prasad Vs. State of Andhra Prades, reported in (2004) 3 SCC 753 with regard to the presumption, which is available and submitted that once the tainted currency notes are recovered from the accused, burden would shift and it was for him to explain. She submitted that as there is no explanation offered under Section 313 of the Criminal Procedure Code, the charges are established and, therefore, the judgment recording acquittal is erroneous and the court below has failed to appreciate the material and evidence. She submitted that minor discrepancy in the testimony of the complainant and the panch no.1 would not be fatal though the court below has tried to consider minutely. Learned APP Ms.Bhatt therefore submitted that when the ingredients are established or atleast acceptance and recovery are established, the acquittal ought not to have Page 6 of 15 R/CR.A/1291/2003 JUDGMENT been recorded. She has strenuously submitted that the discrepancy in the testimony may not be fatal in every case. In support of her submission, she has referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of West Bungal Vs. Kailash Chandra Pandey, reported in (2004) 12 SCC 29.
6. Learned APP Ms.Bhatt has also submitted that merely because the Investigating Officer was the member of raiding party, it would not vitiate the proceeding. In support of her submission, she referred to and relied upon the judgment of the Hon'ble Apex Court in case of State represented by Inspector of Police, Vigilance and Anti corruption, Tiruchirapalli, T.N. Vs. Jayapaul, reported in (2004) 5 SCC 223 and in case of Gorabai (Smt) & Ors. Vs. Ummed Singh (dead) By Lrs. & Ors., reported in (2004) 5 SCC 230. She therefore submitted that the impugned judgment recording acquittal is erroneous.
7. Per contra, learned advocate, Shri Vishal Mehta, however, referred to the testimony of the witnesses including the complainant and submitted that the complainant has not at all corroborated Page 7 of 15 R/CR.A/1291/2003 JUDGMENT and supported the prosecution case with regard to the demand. He referred to the testimony of the complainant at Exh.21 and submitted that though he may not have been declared hostile, the fact remains that he has not supported the prosecution case with regard to any demand for illegal gratification or bribe. He submitted that what he has referred in the examination in chief is the papers and the amount towards the expenses and not bribe, thereafter also, he has not referred to any demand and the panchnama which has recorded about it. He therefore submitted that previous conversation or talks with regard to the demand for Rs.5,000/ and ultimately settled for Rs.4,000/ has not been established couple with the fact that there are major contradictions in the testimony of the complainant at Exh.21 and the testimony of panch no.1 at Exh.23. For that purpose, he has referred to the testimony of the witnesses and submitted that the complainant in his testimony has stated that he has not brought the original papers as the children have spoiled with the tea, whereas panch no.1 in his testimony has referred to the papers. Further, panch no.1 in Page 8 of 15 R/CR.A/1291/2003 JUDGMENT his testimony at Exh.23 has stated that the amount was given below the table wrapped in the paper. He therefore submitted that there is difference in the version of all three witnesses at the time of trap, which raises doubt about the prosecution case. Learned advocate, Shri Mehta submitted that when the complainant has not stated about any demand for bribe, mere recovery of tainted currency notes would not be sufficient. He has stated that though the panchnama at Exh.24 has recorded in detail about the conversation with the complainant and the accused and what transpires at the time of trap regarding the payment or the acceptance of the tainted currency notes, the complainant has not supported this version nor even the panch no.1 has supported this version stated in the panchnama at Exh.24. For that purpose, he referred to the testimony of the complainant, Exh.21 and panch no.1 at Exh.23. Learned advocate, Shri Mehta has referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of Punjab Vs. Madan Mohan Lal Verma, reported in AIR 2013 SC 3368 and submitted that mere recovery itself would not be sufficient. Page 9 of 15
R/CR.A/1291/2003 JUDGMENT He submitted that as observed in this judgment, demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. He emphasized the observations, "demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988."
8. He therefore submitted that the impugned judgment and order recording acquittal is just and proper and same may not be disturbed. He also submitted that normally the appellate court would not disturb the finding by the trial court unless it can be said to be perverse merely because other view is possible. He therefore submitted that view taken by the court below is plausible view and the present appeal may not be entertained. Page 10 of 15
R/CR.A/1291/2003 JUDGMENT
9. In view of these rival submissions, it is required to be considered whether the present appeal can be entertained or not.
10. As it transpires from the factual metrix and the background, the complainant, PW No.1 in his testimony at Exh.21 has not supported the prosecution case with regard to the aspect of demand for illegal gratification or the bribe. A close scrutiny of his testimony would clearly state that what he has stated is that the accused had asked for the papers and Rs.5,000/ was towards the expenses but has not stated about any such demand as and by way of illegal gratification or bribe for showing any favour. Further as both sides have taken the court through the evidence, it is evident that the testimony of the complainant at Exh.21, panch no.1 at Exh.23 and panch no.2 at Exh.26 have not been consistent with regard to what has transpired at the time of trap. The complainant in his testimony at Exh.21 has not stated about having given the tainted currency notes to the accused. The complainant has on one hand stated about the papers and the amount towards the expenses and in the crossexamination, Page 11 of 15 R/CR.A/1291/2003 JUDGMENT he has sated and denied the suggestion that the accused had not made any demand. The panch witness, PW 2 in his testimony at Exh.23, who has accompanied the complainant in his testimony has stated that the complainant has given something apparently seen as money to the accused which the accused accepted but does not say that the complainant had given tainted currency notes to the accused. Again he states that the complainant had handed over the papers also to the accused, whereas the accused states that the papers were destroyed by the children due to tea. Panch no.2 in his testimony at Exh.26 has stated that the amount or tainted currency notes were wrapped in the papers given under the table to the accused. Therefore assuming that the acceptance of illegal gratification whether preceded by demand or not could attract Section 7 of the Act, the prosecution has to establish that the acceptance was pursuant to the demand of illegal gratification and acceptance of the tainted currency notes was as and by way of illegal gratification or the bribe as required under law. It is well accepted that in order to establish the Page 12 of 15 R/CR.A/1291/2003 JUDGMENT charges for the offence under Section 7 as well as 13(1)(d) of the Act, necessary ingredients such as demand, acceptance and recovery are required to be established by the prosecution. Initially the burden has to be discharge by the prosecution and after the basic foundation is led thereafter the presumption under Section 20 of the Act could be attracted. The burden would shift and the accused is required to discharge their burden by explanation or probable explanation on the basis of the preponderance of possibility. Therefore, the case would then require appreciation of evidence before the charges can be said to have been established. The judgment of the Hon'ble Apex Court in case of State of Punjab Vs. Madan Mohan Lal Verma (supra) referring to the provisions of the Prevention of Corruption Act, 1988, has observed that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. In this judgment, the Hon'ble Apex Court has observed, "The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not Page 13 of 15 R/CR.A/1291/2003 JUDGMENT reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification............ However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness."
11. Therefore in the facts of the case, as observed, very basis or foundation with regard to the demand is not proved by the prosecution, particularly, when it is examined in light of the testimony of the complainant, PW 1, Exh.21. Further the testimony of the complainant and the panch no.1 at Exh.23 also do not support the prosecution case. As stated above, there are difference in the version what has transpired at the time of trap. This itself would raise doubt about the prosecution case. It is in this background of this fact, the order of court below recording acquittal does not call for any interference in the present appeal.
12. It is well accepted that normally the appellate Page 14 of 15 R/CR.A/1291/2003 JUDGMENT court would not disturb the findings of the court below unless the same is termed as perverse or contrary to the material and evidence on record. In the facts of the case, on appreciation of the material and evidence, acquittal has been recorded, which cannot be said to be erroneous. Therefore, in light of the broad guidelines laid down by the Hon'ble Court in catena of judicial pronouncement including the observation made in a judgment in case Chandrappa Vs. State of Karnataka, reported in (2007) 4 SCC 415, necessary factors or relevant criteria are required to be examined to disturb the findings even by the court below, which would fall short in the present case.
13. It is in these circumstances, the present appeal deserves to be dismissed and accordingly stands dismissed.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 15 of 15