Gujarat High Court
Ramanbhai Ashabhai Chauhan vs State Of ... on 22 April, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/840/1998 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 840 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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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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RAMANBHAI ASHABHAI CHAUHAN....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR NITIN M AMIN, ADVOCATE for the Appellant(s) No. 1
MS MH BHATT, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 22/04/2015
ORAL JUDGMENT
1. This is an appeal by the original accused No.1, challenging the judgment and order of the learned Special Judge, Nadiad (for short, 'the trial Court'), Dated : 06.08.1998, rendered in ACB Special Case No. 4 of 1994, whereby, the trial Court convicted accused No.1 for the offence punishable under Section 7 of the Page 1 of 13 R/CR.A/840/1998 JUDGMENT Prevention of Corruption Act ('the Act', for short) and sentenced him to undergo simple imprisonment for six months and to pay fine of Rs.250/- and in default to undergo further simple imprisonment for 15 days. However, the trial Court did not inflict any separate sentence for the offence punishable under Sections 12 and 13(1) of the Act.
2. For the sake of convenience, the parties shall be referred to as they stood before the trial Court, i.e. accused No.1, the complainant etc..
3. The brief facts of the case of the prosecution, as set out before the trial Court, are that the original complainant wanted to get his name entered into the Record of Rights, and therefore, he approached accused No.1, who was at the relevant point of time discharging duties as Talati-cum-Mantri, whereas, accused No.2 was discharging duties as a Peon. It is alleged in the complaint that for getting his work done, accused No.1 demanded Rs.300/-, but, finally he settled to Rs.100/-. Since, the complainant did not want to given the aforesaid amount, he approached the ACB officials and a trap was arranged, wherein, the accused Nos. 1 and 2 were allegedly apprehended. At the end of the Page 2 of 13 R/CR.A/840/1998 JUDGMENT investigation, on finding sufficient evidence, charge-sheet was filed against the accused. In order to prove the guilt of the accused, the prosecution examined the following witnesses;
PROSECUTION NAME OF THE WITNESS EXHIBIT
WITNESS NO.
NUMBER
1 Prabhubhai Chhotabhai 14
Chaudhary
2 Harivadan Thakorlal Jani 62
3 Jayantilal Icchubhai 66
4 Suryakant Ambalal Bhatt 67
5 Rajulkant Kantilal Dave 69
6 Gamanbhai Jasubhai Chaudhary 75
4. Over and above the oral evidences, the prosecution also produced the following documentary evidences in support of its case;
SR. PARTICULARS OF THE DOCUMENTS EXHIBIT
NO. NO.
1 Complaint 63
2 Death certificate of Mangalbhai 16
3 Panchnama 17
4 Pedigree of the complainant 19
5 Sanction` 78
5. At the end of the trial, the further
statement of the accused under Section 313 of the Cr.P.C. came to be recorded, and then, the trial Page 3 of 13 R/CR.A/840/1998 JUDGMENT Court passed the impugned judgment and order, as referred to herein above. Hence, the present appeal.
6. Mr. Amin, learned Sr. Advocate for the accused No.1, submitted that the trial Court committed a grave error in convicting the accused No.1, inasmuch as it failed to appreciate the material on record in its proper perspective. He submitted that the trial Court ought to have appreciated that there was no demand on the part of the accused No.1. He, further, submitted that the trial Court ought to have appreciated the fact that the prosecution failed to prove beyound doubt the charges leveled against accused No.1. He, hence, prayed that the appeal be allowed.
7. On the other hand, learned APP for the Respondent-State, herein, opposed the appeal and submitted that the trial Court convicted the accused after perusing the entire material on record, and hence, no interference is called for at the hands of this Court and the appeal be dismissed.
8. Heard the learned Advocate for the original accused No.1 as well as the learned APP for the Respondent-State and perused the material on record with their assistance.
Page 4 of 13R/CR.A/840/1998 JUDGMENT 9. Having heard the learned Counsels for
the parties and having perused the material on record, this appeal requires to be allowed only on one ground, i.e. the charge-sheet in this case was file, after a gross delay of about seven years. The decision of the Apex Court in 2002 Crime 166 should, therefore, inure for the benefit of the accused, who were made scapegoat of the conspiracy hatched-up by the bootlegger. The charge, itself, shows that he was Talati-Cum- Mantri working at Chuva. The complainant wanted to make an entry into the record of rights so as to get compensation towards acquisition of land. From the record, it is established that there was no acquisition of the land in question. Thus, the genesis of the complaint itself fells. The sanction, which was given after about three years, speaks volumes, whereas, the charge-sheet was laid about four years, thereafter. The sanction, itself, was mechanical, which is bad in law. The original complainant had expired before the commencement of the trial, and hence, in the absence of the complainant, the complaint given by him was treated to be accepted on the basis of the evidence of the police officers. Be that as it may, but, there is delay of about seven years. No one has seen the recovery of the amount, no one has seen the accused throwing amount in the dustbin. Thus, in this case, it can be said that Page 5 of 13 R/CR.A/840/1998 JUDGMENT the sanction was mechanical.
10. In above view of the matter, here, it would be relevant to refer to a decision of this Court in "STATE OF GUJARAT VS. GUNVANTLAL H. SHAH", 2006 (1) GLH 567. In that case it was alleged that the accused first demanded and then accepted bribe from the complainant, in the presence of witness, who was working in his office. Though, the statement of the said witness was recorded, he was not examined. Further, this Court found that so far as first demand and acceptance are concerned, the evidence of the complainant did not get corroborate from the independent evidence. This court also found that the evidence of PW-1 and the IO were not trustworthy, and therefore, in the peculiar facts of that case this Court held that the prosecution cannot be said to have succeeded in proving its case and dismissed the appeal of the State.
11. Here, it would also be relevant to refer to a recent decision of the Apex Court in "SATVIR SINGH VS. STATE OF DELHI THROUGH CBI", AIR 2014 SC 3798. In that case, the trial Court found that the prosecution failed to prove demand and acceptance on the part of the original accused, and thereby, acquitted the accused of the charges of corruption leveled against him. However, on an Page 6 of 13 R/CR.A/840/1998 JUDGMENT appeal, the Delhi High Court reversed the judgment and order of the trial Court and convicted the accused for the charges under Prevention of Corruption Act. Being aggrieved with the same, the original accused moved the Apex Court and Apex Court set aside the order of the High Court. While setting aside the order of the Delhi High Court, the Apex Court observed as under in Paragraph-37, thereof;
"37. The High Court in exercise of its appellate jurisdiction has exceeded its parameters laid down by this Court in reversing the acquittal order of the trial court. Therefore, the findings are not only erroneous in law but also vitiated in law. The relevant paragraphs from the Crl.A. No. 920 of 2011 31 judgment in State of Kerala v.
C.P.Rao (supra) are extracted
hereunder:
"13. In coming to this conclusion, we are reminded of the well-settled principle that when the Court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan. At SCR p. 129, Subba Rao, J. (as His Lordship then Page 7 of 13 R/CR.A/840/1998 JUDGMENT was) culled out the principles as follows:
"9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case, afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (I) 'substantial and compelling reasons', (ii) 'good and sufficiently cogent reasons', and
(iii) 'strong reasons', are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
12. This takes this court to the submission of Ms. Bhatt that the accused had demanded the amount and had accepted the same. Hence, just because there was no recovery, it cannot be said that the offence under Section 13(1)(d) is not Page 8 of 13 R/CR.A/840/1998 JUDGMENT made out. Sections 7, 12, 13 of the Act read as under;
"7. Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause
(c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
XXX XXX XXX
12. Punishment for abetment of offences defined in section 7 or 11.- Whoever abets any offence punishable under section 7 of section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.Page 9 of 13
R/CR.A/840/1998 JUDGMENT XXX XXX XXX
13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any Page 10 of 13 R/CR.A/840/1998 JUDGMENT other person any valuable thing or pecuniary advantage; or
(iii) while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession of has, at any time during the period of his office, been in possession for which the public servant cannot be satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income."
13. Here, it is pertinent to note that the original complainant expired before the commencement of trial, and therefore, the learned trial Court ought not to have exhibited the complaint given by him. However, the learned trial Court over-looked the position of law while not only exhibiting the FIR but relying upon same for the purpose of corroboration of the prosecution case, the FIR would not be covered by any of the clause of Section 32 and 33 of the Indian Evidence Act and would not be admissible as substantive piece of evidence on account of the death of the complainant. The learned trial Court has committed an error in holding that the FIR is admissible in view of the provisions of Section 32 and 33 of the Indian Evidence Act, while the law is quite contrary to the same. A complaint given by a person or information given Page 11 of 13 R/CR.A/840/1998 JUDGMENT by an informant under Section 154 of the Code of Criminal Procedure does not by itself become evidence automatically. However, it can to in as evidence only to corroborate or to contradict the evidence of the maker of it. It would be admissible under Section 157 of the Code of Criminal Procedure, provided that, if, the information was given orally shall be reduced into writing, provisions of Section 91 of the Evidence Act are attracted. This section provides that when any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of terms of such matters, except, document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act. Thus, even if, the whole complainant is entered into prescribed book, that would not be complaint. Thus, in view of the settled legal position, it cannot be said that the contents of the complaint are proved and the learned trial Court ought not to have relied on the same.
14. Thus, the submission of Ms. Bhatt that the sanction was a valid one and it was given after proper application of mind, PW Nos. 1 and 2 supported the case of the prosecution and that is how the learned trial Court has convicted the Page 12 of 13 R/CR.A/840/1998 JUDGMENT accused, looking to the totality of the facts, first aspect is the amount cannot be said to have been demanded by the accused, as even if we read the complaint and on the touchstone of the preponderance, the decision of the Apex Court in "SATVIR SINGH VS. STATE OF DELHI THROUGH CBI" and of this Court in "STATE OF GUJARAT VS. GUNVANTLAL H. SHAH" will inure for the benefit of the accused. The evidence of Mr. Chaudhari-PW-6, when gone through by this Court, it is nowhere stated therein as to what took him such a long time in granting sanction. In the same manner, the evidence of Mr. Dave-PW-5 also stands shaken, as he could not withstand the cross-examination.
15. In the result, this appeal is ALLOWED. The judgment and order of the trial Court, Dated : 06.08.1998, convicting the accused for the offence punishable under Sections 7, 12 and 13(1) of the Prevention of Corruption Act, 1988, is quashed and set aside and accused is ACQUITTED. His bail bonds stand discharged. The amount of fine, if any paid, be refunded to him. R&P be sent back to the concerned Court, forthwith.
(K.J.THAKER, J) UMESH Page 13 of 13