State Of Gujarat vs Naginbhai Dhhanjibhai ... on 11 March, 2015

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Gujarat High Court

State Of Gujarat vs Naginbhai Dhhanjibhai ... on 11 March, 2015

Bench: Z.K.Saiyed

         R/CR.A/1578/2005                                 JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      CRIMINAL APPEAL NO. 1578 of 2005


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
       NAGINBHAI DHHANJIBHAI PATEL....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
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          CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED

                              Date : 11/03/2015
                              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 Page 1 of 13 R/CR.A/1578/2005 JUDGMENT 19.01.2005 rendered by the learned Special Judge, Bharuch, Fast Track Court No.5, Bharuch, in Special Corruption Case No.3 of 2002. The said case was registered against the present respondentoriginal accused for the offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act.

[2] According to the prosecution case, complainantBhaveshkumar Kanubhai Purohit, resident of 19/2, Narayankunj Kunjvihar, Street No.5, Near Tulsidham, Jhadeshwar Road, Bharuch was pursuing his study as Boiler Attendant Apprentice in ITI. He completed 3rd year and examination was to be held on 20.11.2001. As a part of his study, he had to undergone a practical training and he was posted at Sitaram Paper Mill Limited. As sufficient attendance was the requirement of the study and to appear in further examination, he had to fill up form showing his attendance and submit it to ITI. For the said procedure, signature of the respondent accused was required to be obtained and for that purpose, the complainant made request to respondentaccused to put his signature on the prescribed form. Therefore, the respondent accused examined the papers and declined to make his signature as his attendance was less. So, the complainant requested the respondentaccused that Page 2 of 13 R/CR.A/1578/2005 JUDGMENT if he did not make his signature, his academic year would be spoiled. Upon such request, the respondentaccused told that as the attendance was less and if the complainant wanted to obtain his signature, the complainant should have to pay Rs.2000/to him and thereafter, his form would be accepted. At the relevant time, as the complainant did not have money, the respondent accused told the complainant to bring money. As the complainant did not want to pay the amount in form of illegal gratification, he approached ACB Police Station, Bharuch and lodged complaint against the respondentaccused bearing C.R.No.11 of 2003. The complaint was noted down by Mr.Koralwala, PI, Bharuch and called two panchas. Both the 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 were made. Then, Mr.Koralwala, called lamp operator and told him to show and explain use of the anthracene powder and ultra violate lamp. Preliminary panchnama was drawn. Then, the trap amount of Rs.2,000/was produced and under the instructions of the Trapping Officer, anthracene powder was applied on the trap amount and the said trap amount put into the pocket of the complainant and directed him not to touch the said amount prior to demand Page 3 of 13 R/CR.A/1578/2005 JUDGMENT made by the respondentaccused. Panch No.1 was advised to stay with the complainant and listen all talk took place between the complainant and the respondentaccused 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 respondentaccused. Then, they went to the place of trap and complainant went to the office of the respondentaccused with panch No.1. At that time, the respondentaccused told the complainant to pay the fees and verify the form. Then, the respondentaccused told the complainant to meet him at the railway station. Then, panch No.1 and complainant came back to the Trapping Officer and narrated the incident. Thereafter, they arranged to go to railway station. After an hour, the respondentaccused came and he called the complainant by name and the trap amount of Rs.2,000/was given to the respondentaccused by the complainant. Then, signal was given and members of raiding party rushed to the place of trap. Trapping Officer introduced all the members of raiding party and panch and search was made in presence of panchas and Rs.2,000/was recovered from the respondentaccused and same was tallied with the panchnama. Then, the trap amount and clothes of the respondentaccused were recovered and receipt and seizure memo were issued to Page 4 of 13 R/CR.A/1578/2005 JUDGMENT respondentaccused. Then, investigation was carried out and statements of the witnesses were recorded. To prosecute against the respondent accused, sanction was obtained from the competent authority. Then, chargesheet was filed against the respondentaccused for offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, which was numbered as Special Corruption Case No.3 of 2002.

[3] On the basis of above allegations, charge was framed vide Exh.7 and readover 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 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 19 Bhaveshbhai Kanubhai Purohi 2 23 Kamleshbhai Jagdishbhai Goswami 3 33 Singabhai Surjibhai Vasava 4 35 Nareshchandra Bhikhabhai Koralwala 5 37 Rajdhar Vallabhbhai Marathe 6 44 Rajkumar Premswaroop Page 5 of 13 R/CR.A/1578/2005 JUDGMENT [5] In support of the prosecution case, the prosecution has produced several documentary evidences like complaint at Exh.20, office copy of letter to do secret work at Exh.36, preliminary and final panchnama of raid at Exh.26, seizure memo at Exh.24, papers produced by the complainant at Exh.27 to 37 and 38 to 42, receipt filed up by the complainant at Exh .21, sanction letter to prosecute against the accused at Exh.45, muster role of the complainant with forwarding letter at Exh.43 and arrest panchnama of respondentaccused at Exh.32.

[6] Thereafter, after filing closing pursis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, the present respondentaccused has stated that he did not make any demand of illegal gratification. Further, during the service offered by him to students of ITI, some quarrel took place and he was degraded from the higher position and due to said insult made by him of the complainant, complaint filed the complaint against him. He further admitted that demand was not proved beyond reasonable doubt and trap amount was also not recovered from the possession of the respondentaccused. The accused person denied the case of the prosecution and submitted that a Page 6 of 13 R/CR.A/1578/2005 JUDGMENT false case is filed against him.

[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 observed that prosecution could not prove first demand or second demand made by the respondentaccused 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 respondentaccused is not sufficient to convict him. In result of this, learned trial Judge passed the acquittal order in favour of the respondentaccused. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 19.05.2005 rendered by the learned Special Judge, Bharuch, Fast Track Court No.5, Bharuch, in Special Corruption Case No.03 of 2002, the appellant-State has preferred the present appeal before this Court.

[8] Heard Ms. Hansa Punani, learned Additional Public Prosecutor for the appellant- State and Ms. Shaili Kapadia, learned advocate for Mr. Arpit A. Kapadia, learned counsel for the respondentaccused.

[9] Ms. Hansa Punani, learned APP argued that the learned trial Judge committed a grave error in acquitting the respondentaccused. The Page 7 of 13 R/CR.A/1578/2005 JUDGMENT complainant disclosed cogent evidence and the same gets substantiated through the contents of the complaint at Exh.20. She further contended that as per the oral evidence of PW1 complainant, it is established beyond reasonable doubt to say that first demand was made by the respondentaccused to the complainant and as the complainant did not agree to pay the illegal gratification, he filed complaint and accordingly, a trap was arranged and in presence of panch, again demand was made and accepted by the respondentaccused at the railway station, as agreed between the complainant and the respondentaccused. She then submitted that PW2 panch also disclosed that in his presence, respondentaccused made demand at the railway station, which was accepted by the respondent accused. She submitted that from the evidence of both the witnesses i.e. complainant and panch No.1 and evidence of the Investigating Officer and the Trapping Officer, it is proved beyond reasonable doubt that tainted amount of illegal gratification was recovered from the possession of the respondentaccused. The prosecution also obtained legal sanction for the prosecution from the competent authority, but the same did not not challenge by the respondentaccused. She then submitted that the learned trial Judge observed that the demand made by the respondentaccused Page 8 of 13 R/CR.A/1578/2005 JUDGMENT was not proved and only considering the probable defence of the respondentaccused, wrongly acquitted the respondentaccused from the alleged charge of corruption. Lastly, she prayed to set aside the judgment and order of acquittal and allow the appeal.

[10] Ms. Shaili Kapadia, learned advocate for Mr. Arpit A. Kapadia, learned counsel for the respondentaccused read the charge as sell as evidence of the complainant and panchas and vehemently argued that this is case of offence under the provision of Prevention of Corruption Act and to prove the offence under the said provision, demand and acceptance of illegal gratification are required to be proved. She contended that it is also observed by this Court as well Apex Court that it is the duty of the respondentaccused to explain probable defence in statement recorded under Section313 of the Code of Criminal Procedure or in evidence to rebut the presumption under Section20 of the Act. She further submitted that when the demand is not proved beyond reasonable doubt through evidence of the complainant as well as panchas, only on the ground of recovery and acceptance of the trap amount, respondentaccused cannot be convicted. She further submitted that it is admitted by the complainant as well as panch in crossexamination Page 9 of 13 R/CR.A/1578/2005 JUDGMENT that the respondentaccused never made any demand of illegal gratification and same probable defence which was made before the learned trial Judge was also made before the Investigating Officer, but the Investigating Officer smartly denied that question. She then submitted that the learned trial Judge has rightly observed that in the present case, the prosecution could not prove any specific demand made by the respondent accused and rightly acquitted him. Lastly, she prayed to dismiss the appeal.

[11] 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 witnesscomplainant and also perused the charge framed against the respondentaccused. I have also considered the submissions advanced by the learned advocates for the respective parties.

[12] 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.

[13] I have perused the oral as well as documentary evidences. It is true that learned APP Ms. Hansa Punani, has argued that prosecution Page 10 of 13 R/CR.A/1578/2005 JUDGMENT has proved demand and acceptance. I have minutely perused the submission of Ms.Kapadia, who argued that demand is not proved on record through evidence of PW1 complainant and PW2 panch. I have further minutely perused the cross examination of both the witnesses. As per the facts of the prosecution case, it was the say of the complainant that first demand was made by the respondentaccused to him and against the said demand, he filed complaint under the Prevention of Corruption Act. But only the say of the complainant is not sufficient to convict the respondentaccused, perusal of evidence of complainant and panch witnesses is also necessary. It is admitted by both witnesses and also primafacie established on record that at the first meeting or even at the second meeting, no demand was made by the respondentaccused, which shows that demand of illegal gratification is not established and only acceptance and recovery from the respondentaccused is produced on record. It is laid down by this Court as well as Apex Court that in absence of any demand, person cannot be convicted for the offence punishable under Sections7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. From the perusal of the evidence, the learned trial Judge rightly observed that prosecution could not prove its case beyond reasonable doubt against the Page 11 of 13 R/CR.A/1578/2005 JUDGMENT respondentaccused.

[14] In the present case, prosecution has failed to prove that respondent-accused demanded any amount from the complainant. Even recovery from the physical possession of the respondent- 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.

[15] 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 Page 12 of 13 R/CR.A/1578/2005 JUDGMENT 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, therefore, mere alleged recovery is not sufficient to prove the case against the respondent accused. Even the recovery is also not proved as per law.

[16] In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 19.01.2005 rendered by the learned Special Judge, Bharuch, Fast Track Court No.5, Bharuch, in Special Corruption Case No.3 of 2002, 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

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