Gujarat High Court
State Of Gujarat vs Hathiyabhai Hamirbhai Jalu & ... on 21 April, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/2490/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2490 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
===============================================================
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 ?
================================================================
STATE OF GUJARAT....Appellant(s)
Versus
HATHIYABHAI HAMIRBHAI JALU & 1....Opponent(s)/Respondent(s)
================================================================
Appearance:
MS. HANSA PUNANI, APP, for the Appellant(s) No. 1
MS. SHAILI KAPADIA, ADVOCATE with MR ARPIT A KAPADIA, ADVOCATE
for the Opponent(s)/Respondent(s) No. 1 - 2
================================================================
CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 21/04/2015
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 17.09.2009 rendered by the learned Special Page 1 of 14 R/CR.A/2490/2009 JUDGMENT Judge/Additional Sessions Judge and Presiding Officer, Fast Track Court, Veraval, in Special Case No.13 of 2006 (old Special Case No.05 of 2004). The said case was registered against the present respondent-original accused for the offence under Sections-7, 13(1)(d) and 13(2) of the Prevention of Corruption Act and under Section-201 of the Indian Penal Code.
[2] According to the prosecution case, the complainant Jamanbhai Dahyabhai Munjpura, aged about 35 years, resident of Bilkha village staying with his family. The complainant's father was having two wives namely Dholiben and Nanduben. Nanduben was living separately at Bilkha. The complainant was having two brothers namely Vrajlal and Rameshbhai. Vrajlal was residing at Bilka village and Rameshbhai was living at Vadla village Taluka Talala with his family. His father was living with Vrajlal. The complainant having 22 vighas in his own name, and 42 vighas situated at Bilkha village in which 24 vighas of land was in the name of Rameshbhai and 18 vighas land was in name of his parents. Complainant's mother Nanduben was living separately, so the complainant and his brothers were giving Rs.5000/-each every to their mother. The complainant's father secretly transfered 10 vighas land in the name of Vrajlal, and his father was holding the ownership of other 8 vighas land which was transferred in the name wife of Vrajlal and Vipul son of Vrajlal. The said 18 vighas land secretly transferred on Vrajlal and his family without informing to the Page 2 of 14 R/CR.A/2490/2009 JUDGMENT complainant. Thereafter, Dholiben was expired in the Shravan month, so Nanduben told to the complainant that she wanted 9 vighas land out of 18 vighas, so the complainant told that the said was situated at Valdla village, so she had to go there. Therefore, Nanduben went to village Vadla and cultivated Bajro in 2 vighas of land. Because of that, quarrel took place between the complainant's father and Rameshbhai. Therefore, Rameshbhai registered one complaint against the complainant, Vrajlal and his father. Vrajlal informed to the complainant that they have to present in the Police Station in the month of December. Thereafter, the complainant Vrajlal and his father went to the Police Station and met accused No.1-Hathiyabhai Jamadar and accused No.2-Natubhai Police Constable, and talked about the complaint. Therefore, accused No.2-Natubhai told them that he would pay Rs.10,000/-and after bargaining, the accused was ready to do work of Rs.5,000/-. Thereafter, the complainant, Vrajlal and his father were released on bail, and Vrajlal gave Rs.5,000/-to accused No.2. Thereafter, the complainant's father registered complaint against Rameshbhai and complainant also registered complaint against Rameshbhai for not returning his motorcycle. Thereafter, on coming to know about the complaint, the relatives and elders got it compromised between Rameshbhai and complainant. Thereafter, the complainant met his advocate Mr.Santoshbhai Thakkar for cancelling the complaint. Then, the complainant, Vrajlal, Page 3 of 14 R/CR.A/2490/2009 JUDGMENT Rameshbhai and Karsanbhai Mohanbhai went to the outpost at Ankolvadi, and they reached near the bus stop, accused No.1 Hathiyabhai standing there, so they stopped there and met him and told about papers, which was given from the Police Station. The accused No.1 demanded money for doing the work. Thereafter, the complainant and other witness went to the Police Station and talked with accused No.2-Natubhai and he demanded Rs.3,000/-, but the complainant replied that he would pay the said amount by 15.02.2004. As the complainant did not want to pay the said amount of bribe, he approached P.I., ACB Police Station, Junagadh and filed complaint against the respondents-accused bearing registration No.5 of 2004. After verifying the correctness of the said complaint, he called two panchas and they agreed to act as panchas during the trap. Then, the trap amount of Rs.3,000/-, was presented by the complainant and under the instructions of the Trapping Officer, anthracene powder was applied on the trap amount. The numbers of currency notes were noted down in the first part of the panchnama. Thereafter, experiment of phenolphthalein powder was made. All of them were explained the use of phenolphthalein powder. Accordingly, first part of the panchnam was prepared in presence of panchas. The complainant was directed not to touch the said amount prior to demand made by respondents-accused. Panch No.1 was advised to stay with the complainant and listen all talk took place between the complainant and the respondents-accused Page 4 of 14 R/CR.A/2490/2009 JUDGMENT 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. Thereafter, they went to the place of trap in vehicle. Thereafter, the complainant and panch No.1 entered into the office compound, but nobody was present there so they went to residence of accused No.1and knocked the door. Accused No.1 opened the door and he told to sit in the chair. Thereafter, accused No.1 came there and demanded the said money and therefore, the complainant took out the currency notes of Rs.3,000/-from his pocket and gave to accused No.1, which was accepted y accused No.1 in presence of panch. Then, the complainant gave a fixed signal to the raiding party and upon getting the fixed signal, the raiding party came there. On seeing them, accused No.1 run away from there and the raiding party chased accused No.1, but they could not catch him. After due completion of the investigation, arrested the accused, filed charge-sheet against the accused before the learned Special Judge/Additional Sessions Judge and Presiding Officer, Fast Track Court, Veraval, which was numbered as Special Case No.13 of 2006 (old Special Case No.05 of 2004).
[3] On the basis of above allegations, charge was framed vide Exh.13 and read-over and explained to the accused for the offence punishable under Section-7 of the Prevention of Corruption Act. The accused pleaded not guilty vide Exh.14 and 14 to the charge and claimed to be Page 5 of 14 R/CR.A/2490/2009 JUDGMENT tried.
[4] In support of the prosecution case, prosecution has examined four oral evidences:-
Sr Exh Name of Witness No . 1 16 Jamanbhai Dahyabhai Munjpara 2 21 Kantilal Panchabhai Chaudhari 3 28 Bhikhubha Shivubha Chudasma 4 30 Rajabhai Jethabhai Parmar 5 37 Babubhai Lakhmanbhai 6 39 Kantilal Karsanbhai Borichangar 7 51 Ranabhai Devshibhai Ulva
[5] In support of the prosecution case, the prosecution has produced several documentary evidences like copy of complaint of Talala Inquiry Case No.3 of 2008 at Ex.18, report made in Talala Inquiry Case at Ex.19, original copy of pursis given by the complainant at Ex.20, complaint at Ex.22, FIR at Ex.23, panchnama of raid at Ex.24, nil panchnama of accused at Ex.25, letter of Police Officer at Ex.26 etc. [6] Thereafter, after filing closing pursis by the prosecution vide Exh.69, further statement of accused persons under Section-313 of the Code of Criminal Procedure, 1973 were recorded, wherein, the present respondents-accused stated that they were innocent and they have not made any demand in connection of illegal Page 6 of 14 R/CR.A/2490/2009 JUDGMENT gratification and just to take the revenge, the complaint was filed against them. They further admitted that demand was not proved beyond reasonable doubt and trap amount was also not recovered from the possession of the respondents-accused. The accused persons denied the case of the prosecution and submitted that a false case is filed against them.
[7] Then, arguments of both the parties were heard and after perusal of the evidence and statement made by both the parties, learned trial Judge after considering the probable defence made by the respondents-accused observed that prosecution could not prove demand made by the respondents-accused and in absence of demand of illegal gratification, it was considered by the learned trial Judge that only recovery of the trap amount from the possession of the respondents-accused is not sufficient to convict them. In result of this, learned trial Judge passed the acquittal order in favour of the respondents-accused.
[8] Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 17.09.2009 rendered by the learned Special Judge/Additional Sessions Judge and Presiding Officer, Fast Track Court, Veraval, in Special Case No.13 of 2006 (old Special Case No.05 of 2004), the appellant-State has preferred the present appeal before this Court.
[9] Heard Ms. Hansa Punani, learned Additional Public Prosecutor for the appellant-State and Ms. Shaili Kapadia, learned advocate with Mr. Arpit Kapadia, learned counsel Page 7 of 14 R/CR.A/2490/2009 JUDGMENT for the respondents-accused.
[10] Ms. Hansa Punani, learned Additional Public Prosecutor read the charge and contents of the complaint and vehemently argued that as per the allegations made against the respondents-accused, prosecution has proved demand made by the respondents-accused and during the trap, the said trap amount was accepted by the respondents,accused and recovered from their possession. She further submitted that oral version of the complaint is supported by the evidence of panch, Trapping Officer and Investigating Officer. She then argued that learned trial Judge wrongly considered the defence version of the respondents-accused and wrongly acquitted them from the charge levelled against them. She further submitted that it is the duty of the respondents-accused to disclose their probable defence just to prove the presumption under Section-20 of the Act. She lastly contended that the learned trial Judge committed a grave error and therefore, she prayed to set aside the judgment and order of acquittal.
[11] Ms. Shaili Kapadia, learned advocate with Mr. Arpit Kapadia, learned counsel for the respondents-accused read the evidence of the complainant and panch and vehemently argued that the complainant PW-1 Jamanbhai Dahyabhai Munjpara at Exh.16, disclosed totally different story then what was narrated in complaint as well as panchnama. She further read paras-2 to 5 of Page 8 of 14 R/CR.A/2490/2009 JUDGMENT complainant's deposition and contended that as per the say of the complainant, he talked with accused No.1 on telephone and on telephone, the demand was made by him. When the complainant and panch No.1 reached to Akolwadi and went to compound of outpost, none was present. Therefore, both went to quarter of respondent- accused No.1 Hathiyabhai and on knocking the door, respondent-accused No.1 came out and told them to seat under the tree. Thereafter, respondent-accused No.1 came there and told he talked with respondent-accused No.2 to give money to him. Therefore, the complaint gave the trap amount from his left pocket of the shirt to respondent No.1-accused, which was accepted by him. During the said period, signal was given and members of raiding party with Trapping Officer and panch No.2 rushed to the place of trap. On seeing this, respondent No.1- accused ran away from the back door of the premises. The Trapping Officer and other members of raiding party tried to catch him, but all in vain. Then, search of the complainant was made and panchnama was drawn. Then, they inquired about respondents-accused. Later on, accused No.1 was arrested and panchnama of physical condition of accused No.1 was drawn and it was noted down in the panchnama that muddamal tarp amount and clothes of accused No.1 were destroyed. She then contended that under which provision of law, the panchnama was drawn. She further contended that story of the prosecution is not acceptable because as per the Page 9 of 14 R/CR.A/2490/2009 JUDGMENT evidence of witnesses, at the time of trap, the Trapping Officer was 15 meter away from the place of trap and hence, members of raiding party could easily catch respondent No.1-accused on the spot, however, they could not catch him. She then contended that when the trap amount was not recovered from the possession of respondent No.1-accused and when demand made by respondent No.2-accused is not proved and established, learned trial Judge rightly considered the evidence of the complainant and panch and rightly acquitted the respondents-accused from the alleged offence and therefore, she prayed that judgment and order of the learned trial judge is required to be confirmed.
[12] Heard learned advocates for both the parties. I have gone through the impugned judgment and order passed 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] As per the perusal of the papers of the prosecution case, the complainant filed the complainant under the instructions of advocate Santoshbhai and he conveyed the Page 10 of 14 R/CR.A/2490/2009 JUDGMENT complainant to approach the Police Constable and told him that to send the papers at the Court as the dispute between the brothers is settled and and no offence is established in the complaint lodge by the complainant and the compromise can be easily arrived at. For the purpose, the complainant sent report to learned Judicial Magistrate First Class, Talala through Police Sub Inspector, Talala Police Station. At that time, the said work was already over and arrest which was made by the police in connection of the complaint filed by the the father and preventive action was taken. As far as the demand is concerned, first talk of Rs.10,000/-took place with accused No.2 and Rs.5,000/-was paid to accused No.2 by brother of the complainant Vrajlalbhai. Further, it was disclosed that for the amount of Rs.5,000/-, respondents-accused agreed to accept Rs.3,000/-. It is admitted by the complainant that he never met respondents-accused and he never talked with them on telephone and he also could not identify the voice of the respondents-accused. He further admitted that he was unable to say that on telephone, whether accused No.1 or accused No.2 talked with him. In cross-examination, it is admitted by the complainant that in the inquiry case filed by him against his brother, strict action was required to be taken, but inspite of taking stern actions, respondent No.1,straightway submitted the report prior to two months of the trap stating that no case was made out. Therefore, looking to the conduct of the complainant, it appears that he created some doubt Page 11 of 14 R/CR.A/2490/2009 JUDGMENT regarding the demand. As per further evidence of the witnesses, panch and complainant, they have disclosed that they went to quarter's compound and when members of raiding party rushed to place, respondent No.1 Hathiyabhai, who was sitting on the chair, ran away from the place from the back door of the compound. In cross- examination of panch No.1, it is admitted by him that when the members of raiding party came with panch No.2, prior to that, respondent No.1 ran away from that place. As per the evidence of the Trapping Officer, when signal was given, they rushed to the place of trap, a person who was sitting on the chair, ran away from the said place. Even it is admitted by the Trapping Officer that he never verified that who was in possession of that quarter. Further, later on, accused No.1 was arrested and panchnama was drawn and it was established that the said trap amount and the clothes of respondent No.1- accused were destroyed by him, but in support of that, nothing was recovered and produced on record. Learned trial Judge rightly observed from the evidence of the panch as well as complainant and Trapping Officer and Investigating Officer that the prosecution has failed to prove its case beyond reasonable doubt.
[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 respondents- accused. There in no substance in the appeal and the arguments made by the learned Additional Public Page 12 of 14 R/CR.A/2490/2009 JUDGMENT Prosecutor. Though learned Additional Public Prosecutor has tried to establish her case, but the Court has not 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 Page 13 of 14 R/CR.A/2490/2009 JUDGMENT hand, the demand is not proved and the complainant had not stated about the demand made by the accused and, 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 17.09.2009 rendered by the learned Special Judge/Additional Sessions Judge and Presiding Officer, Fast Track Court, Veraval, in Special Case No.13 of 2006 (old Special Case No.05 of 2004), acquitting the respondents-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 14 of 14