Gujarat High Court
Narendrakumar Kalidas Makwana vs State Of ... on 6 June, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/34/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 34 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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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NARENDRAKUMAR KALIDAS MAKWANA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR VIJAY PATEL, ADVOCATE FOR HL PATEL ADVOCATES, ADVOCATE
for the Appellant(s)
MR KL PANDYA, APP for the Opponent(s)/Respondent(s)
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 06/06/2017
ORAL JUDGMENT
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1. The present appeal is preferred by the appellant - original accused against the judgment and order dated 31.12.2004 passed by learned Additional Sessions Judge & Special Judge, Dahod in Special Case No.3 of 2004 (old Special Case No.9 of 1999) whereby the appellant accused has been convicted and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/-, in default, to undergo simple imprisonment for three months for the offence under section 7 of the Prevention of Corruption Act 1988 ("the Act" for short) and also convicted the appellant and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/-, in default, to undergo simple imprisonment for three months for the offence under section 13(2) of the Act. Both the sentences were ordered to run concurrently.
2. The short facts giving rise to the present case are that the complainant and his nephew got injured in assault a day prior to Holi and hence, they approached the accused during nocturnal hours on that day. It is alleged that at that time, the accused demanded Rs.50/- for carrying out their treatment and accepted the same. Thereafter, on 27.3.1999, the Investigating Officer asked the complainant for obtaining injury certificate from the concerned Medical Officer and hence, the complainant approached the accused, at that time, the accused demanded Rs.500/- for issuance of such injury certificate Page 2 of 17 HC-NIC Page 2 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT and the complainant was directed to hand over the said amount on 30.3.1999. As the complainant was not willing to pay the bribe amount, he lodged the complaint and hence, the trap was carried out on 31.3.1999 wherein the accused was caught red handed along with tainted currency notes and thereby the accused has committed the offence, as alleged.
3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused persons. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences.
3.2 At the end of the trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.
4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.
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R/CR.A/34/2005 JUDGMENT
5. By way of preferring the present appeal, the appellant - original accused has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the 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.
6. Mr.Vijay Patel, learned advocate for the appellant - original accused has taken this Court through the entire judgment and record and argued that the complainant who has been examined as PW 1 has not supported the case of the prosecution and therefore, he was declared hostile. He submitted that virtually, taking into consideration the entire evidence of the complainant, he has disowned the complaint itself and after declaring hostile, half-heartedly he supported the case of the prosecution, but during the course of cross examination carried out by learned advocate for the accused, he washed away entire deposition so far as establishment of vital ingredients like demand and acceptance are concerned. He submitted that the shadow panch who accompanied with the complainant at the time of trap had made lots of improvements and omissions during the course of his testimony and Page 4 of 17 HC-NIC Page 4 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT the same is proved. He submitted that so far as material aspect as regards to demand and acceptance of Rs.50/- by the accused at the time of treatment, the shadow panch has not deposed before learned trial Court and he made improvement that at the time of trap, the son of the Doctor arrived and thereafter demand was raised and that was nobody's case as such. He submitted that neither such things were emerging out from the police statement of the shadow panch nor such things are stated in the panchnama and hence, the shadow panch has materially improved the case and that has been proved. He submitted that similarly, the shadow panch has omitted the demand and acceptance of Rs.50/- as well as the demand of Rs.500/- also and, therefore, the evidence of the shadow panch is not at all reliable. He submitted that even otherwise the evidence of the shadow panch is not consistent to the complaint lodged prior to holding the trap as well as his previous statement and the contents of previous panchnama. He submitted that admittedly, at the time of trap, the presence of Peon Tejsinh and one nurse as well as driver were revealing, but they have not been examined as witnesses by the prosecution and hence the entire case rested upon the depositions of the complainant and shadow panch and there appears no uniformity in their evidence. He, therefore, submitted that entire story putforward by the shadow panch becomes unreliable and creates lots Page 5 of 17 HC-NIC Page 5 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT of doubt and solely based upon such evidence, learned trial Judge has wrongly convicted the appellant accused. He submitted that driver Kalyansinh has been examined as DW 1 wherein he has deposed that at the time of trap, though the complainant insisted for handing over the amount to the accused, but the accused told him that he is rendering service in the government hospital and hence he is not charging anything for treatment as well as for issuance of any injury certificate. He submitted that DW 1 has also deposed that neither the Doctor has demanded any amount nor he accepted and hence the entire case of the prosecution solely rested upon the sole evidence of the shadow panch which becomes unreliable. Lastly, Mr.Patel requested this Court to allow the present appeal.
7. On the other-hand, Mr.K.L.Pandya, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellant - original accused. He submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. He 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. He submitted that learned trial Court has recorded ample Page 6 of 17 HC-NIC Page 6 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT reasons based on the evidence on record for convicting the accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law.
8. This Court has heard Mr.Vijay Patel, learned advocate for the appellant - accused and Mr.K.L.Pandya, learned APP for the State.
9. 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. As per the prosecution version, as stated above, the complainant and his nephew got injured in assault a day prior to Holi and hence, they approached the accused during nocturnal hours on that day. It is alleged that at that time, the accused demanded Rs.50/- for carrying out their treatment and accepted the same. Thereafter, on 27.3.1999, the Investigating Officer asked the complainant for obtaining injury certificate from the concerned Medical Officer and hence, the complainant approached the accused, at that time, the accused demanded Rs.500/- for issuance of such injury certificate and the complainant was directed to hand over the said amount on 30.3.1999. As the complainant was not willing to pay the bribe amount, he lodged the complaint and hence, the trap was carried out on 31.3.1999 wherein the accused was caught red handed along with tainted currency notes and Page 7 of 17 HC-NIC Page 7 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT thereby the accused has committed the offence, as alleged.
10. PW 1 - Virkabhai Rupabhai Makwana has been examined at Exh.6. The witness has deposed that he made the complaint before Limdi Police Station for injury caused to him and his nephew in assault and they undergone treatment before the accused in the government hospital and thereafter the Investigating Officer asked him to bring the injury certificate for which the Doctor demanded the money and therefore, he lodged the complaint. The witness has deposed that in pursuance of the complaint, trap was arranged on 30.3.1999, but the accused was found absent and therefore, on the following day, the trap was arranged, at that time, he asked for certificate from the accused. The witness has deposed that the accused handed over the certificate, at that time, he handed over the money and gave prearranged signal and hence other members of the raiding party arrived there. Though extensive cross examination was carried out, but he did not support the case of the prosecution, but to some extent, he supported the case of the prosecution, however, the witness was declared hostile. In the cross examination carried out by learned advocate for the accused, the witness has admitted that after taking treatment, he did not meet the accused till the raid was carried out. The witness has admitted that there was failure raid Page 8 of 17 HC-NIC Page 8 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT on 30.3.1999 and on the second day, when he reached at the hospital, at that time, the accused was found present in his chamber and that driver as well as nurse were also present and one another person was also found to be seated in the chamber of the accused. At that time, the complainant asked for the injury certificate which the accused issued and thereafter the complainant inquired from the accused as to how much money is required to be paid for issuance of such certificate, to which, the Doctor replied that he is not charging anything as he is rendering services in the government hospital. The witness has admitted that the accused had not demanded any amount for issuance of such certificate and he had not handed over any such amount as the amount of illegal gratification to the Doctor as he did not demand and accept the amount of illegal gratification. The witness has admitted that Mr.Patel, Police Inspector, ACB got annoyed and again directed the complainant to visit the accused for taking medical certificate of his nephew Kamlesh, at that time, he was directed by Mr.Patel to handover the amount to the accused by any means. The witness has admitted that therefore while visiting the second time and when the accused was issuing certificate, he handed over the tainted currency notes to the accused.
11. PW 2 - Prakashbhai Vadilal Parmar has Page 9 of 17 HC-NIC Page 9 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT been examined at Exh.7. The witness has deposed that at the relevant time, he was serving in the office of Godhra Nagarpalika and he was requisitioned as shadow panch. The witness has deposed that he was made to understand regarding the complaint, laying of trap as well as test of anthracene powder on the currency notes to be used in the trap in question. The witness has deposed that he was directed to remain with the complainant at the time of trap and while they visited the accused's hospital, at that time, the complainant asked for certificate. The witness has deposed that the Doctor asked for the money, at that time, the complainant replied that he has brought money. The witness has deposed that at that time, the son of the Doctor arrived there and asked for taking lunch, but as the patients were there, the Doctor asked his son to wait for sometime and thereafter the accused demanded Rs.500/-, in turn, the complainant handed over the tainted currency notes to the accused. The witness has deposed that thereafter the complainant gave prearranged signal and therefore, other members of raiding party arrived there. In the cross examination, material improvements as regards to arrival of the son of the accused and raising demand of Rs.500/- by the accused for issuance of injury certificate have been brought on record by the defence.
12. Rest of the witnesses are the persons Page 10 of 17 HC-NIC Page 10 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT who accorded the sanction for prosecuting the accused as well as the members of the raiding party and Investigating Officer. However, it would be incongruous to discuss their evidence at this stage.
13. In view of the aforesaid nature of evidence, the important question arises for determination of this Court, as to whether the prosecution has established the three ingredients i.e. demand, acceptance and recovery of illegal gratification or not ?
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 Page 11 of 17 HC-NIC Page 11 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT 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 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 Page 12 of 17 HC-NIC Page 12 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT 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 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. 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, Page 13 of 17 HC-NIC Page 13 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT 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 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. In view of the aforesaid principle laid down by the Honourable Apex Court, so far as present case is concerned, it is pure and simple that the complainant while taking the treatment for assault with the accused, the accused demanded Rs.50/- and accepted the same. It is the case of the prosecution that subsequently, while the complainant asked for issuance of injury certificate which is to be tendered by the complainant to the police in criminal complaint, the accused demanded Rs.500/- for issuance of such certificate. However, on going through the entire evidence of the complainant as well as shadow panch, nowhere in their oral testimonies they have deposed that the accused had ever demanded and accepted Rs.50/- though such averments have been made in the complaint at Exh.15 and therefore, material omission is Page 14 of 17 HC-NIC Page 14 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT emerging out from their depositions as regards to material aspect like demand and acceptance of Rs.50/-.
19. Similarly, so far as demand of Rs.500/- alleged to have been made by the accused on 27.3.1999 is concerned, such factum is not emerging out from the oral evidence of the complainant PW 1. On the contrary, the complainant in his cross examination admitted that neither the accused demanded Rs.500/- nor accepted such amount for issuance of injury certificate. On the contrary, the complainant deposed that Police Inspector Mr.Patel got annoyed and, therefore, though raid on 30.3.1999 was failed, in the raid on the following day, while issuance of his certificate, the accused did not demand and accept any amount of illegal gratification, but he was directed to again visit for issuance of certificate of his nephew Kamlesh and he was also directed to thrust the money on the accused and, therefore, at that point of time, the complainant thrusted the money on the accused. In this view of the matter, the prosecution has miserably failed to prove the vital ingredients like demand and acceptance.
20. The evidence of the shadow panch - PW 2 is not out of doubt as he has made material omissions and improvements as argued by Mr.Vijay Patel, learned advocate for the appellant Page 15 of 17 HC-NIC Page 15 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT accused. On going through the entire evidence of the shadow panch, it can be noticed that he has made material improvements in his deposition as to the presence of the son of the Doctor and even he has omitted the presence of other persons like driver as well as nurse who were present at the time of trap. Similarly, the shadow panch has not at all deposed before the learned trial Court as regards to demand and acceptance of Rs.50/- at the time of treatment undergone by the complainant. So far as the instant demand and acceptance of the amount of illegal gratification is concerned, the testimony of the shadow panch is not consistent with the contemporaneous record in the nature of panchnama as well as his previous statement recorded by the police. PW 2 has stated before the learned trial Court that after arrival and departure of the son of the accused, the accused demanded the amount of illegal gratification and accepted the same. Though arrival and departure of the son of the Doctor is not revealing at all from the contemporaneous record i.e. panchnama as well as even PW 2 admitted during the course of his cross examination that he made such improvement in his deposition.
21. In view of the aforesaid nature of evidence, this Court is of the considered opinion that in absence of primary evidence of the complainant though he gave evidence to some Page 16 of 17 HC-NIC Page 16 of 17 Created On Fri Aug 18 03:10:56 IST 2017 R/CR.A/34/2005 JUDGMENT extent involving the present accused, but the same is not reliable. Therefore, the prosecution has miserably failed to establish the vital ingredients i.e. demand, acceptance and recovery and therefore, the impugned judgment and order of learned trial Court recording conviction of the appellant accused is not in accordance with the evidence available on record and it clearly appears that learned trial Court has not appreciated the evidence on record in its true perspective and based his findings upon surmises and conjectures which have no place in the eye of law.
22. In the result, the appeal succeeds and the same is allowed. The impugned the judgment and order dated 31.12.2004 passed by learned Additional Sessions Judge & Special Judge, Dahod in Special Case No.3 of 2004 (old Special Case No.9 of 1999) is quashed and set aside. The appellant - accused is acquitted of the charges levelled against him. Fine, if any, paid by him be refunded to him. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith.
(R.P.DHOLARIA,J.) pathan Page 17 of 17 HC-NIC Page 17 of 17 Created On Fri Aug 18 03:10:56 IST 2017