Gujarat High Court
The State Of Gujarat vs Dhulabhai Valabhai ... on 18 March, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/325/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 325 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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THE STATE OF GUJARAT....Appellant(s)
Versus
DHULABHAI VALABHAI PARMAR....Opponent(s)/Respondent(s)
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Appearance:
MS. HANSA PUNANI, APP, for the Appellant(s)
MR HRIDAY BUCH, ADVOCATE for the Opponent(s)/Respondent(s)
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 18/03/2015
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 25.10.2004 rendered by the learned Special Judge(ACB) and 5th Additional Sessions Judge, 5th Fast Page 1 of 18 R/CR.A/325/2005 JUDGMENT Track Court, Veraval, in Special Case (ACB) No.26 of 1999 (old case No.07 of 1999). The said case was registered against the present respondent-original accused for the offence under Sections 7(12), 13(1)(d) and 13(2) of the Prevention of Corruption Act.
[2] According to the prosecution case, complainant talked with Niranjanbhai to return the Camera of Balvantgiri, but Niranjanbhai did not return the Camera and told him that he and Balvantgiri would see the complainant as this Camera is not complainant's father. Therefore, the complainant told him to control his tongue. Niranjanbhai, became aggressive and abused the complainant and on second day, Niranjanbhai filed a complaint before the Chorwad Police Station. Therefore on 15.02.1999, one unknown person came to the complainant and conveyed that Police Inspector of Chorwad Police Station was calling you. When the complainant went to the police station, he was informed that against him police had received one application from Niranjanbhai that you had threatened to kill him and told him that whether he filed the said application or take proper action against him. Therefore, the complainant told him that to do which was proper. Therefore, the respondent-accused told the complainant to give Rs.500/- and he would not take any action against him. The complainant replied that he did not have money right now and tomorrow he would give it. The respondent-accused told him to give the said amount on 16.02.1999, either at Page 2 of 18 R/CR.A/325/2005 JUDGMENT Chorward Police Station, or at village or at house. The said talk took place in wireless room, where colleague of respondent-accused was present and he told respondent- accused that "Bapu finished the transaction of money with Dhulabhai otherwise, you would be in big trouble and proceedings of atrocity would be filed against you". As the complainant did not want to pay the said amount, he approached the Police Inspector, ACB, Junagadh and filed a complaint against the respondent-accused that the respondent-accused made demand of Rs.500/-of illegal gratification from him in connection of application given by one Niranjanbhai Painter, just to protect the complainant from the allegation made by Niranjanbhai. The complaint was noted down by the Police Inspector 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, Police Inspector 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.500/-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 made by the respondent- accused. Panch No.1 was advised to stay with the Page 3 of 18 R/CR.A/325/2005 JUDGMENT complainant and listen all talk took place between the complainant and the respondent-accused 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 respondent-accused. Then, they went to the place of trap. The complainant called at Chorwad Police Station and made a inquiry regarding the respondent-accused, but the person who was present there, conveyed that the respondent-accused was at his house. Therefore, all went to the house of the respondent- accused. Then, complainant went to the house of the respondent-accused with panch No.1. On knocking the door, a lady came out. The complainant asked her about the respondent-accused, at that time, the respondent- accused came out. The complainant told him that he came with the money of Rs.500/-as per the talk. At that time, signal was given and members of raiding party rushed to the place of trap. The trap amount was thrown away by the respondent-accused and found lying on the floor. Then, panch No.2 took up the said amount and hands of the respondent-accused were verified in light of Ahwa Lamp and from the fingers, palm and tips of the respondent-accused, presence of anthracene powder was found. At that time, other persons gathered and they all went to the Police Station alongwith the respondent- accused. Then, seizure memo was given. Sarong of the respondent-accused was also verified by the lamp operator and from the Sarong, particles of the anthracene Page 4 of 18 R/CR.A/325/2005 JUDGMENT powder was found and recovered. Then, arrest was made. Investigation was carried out and statements of the witnesses and panchas were recorded by the Investigating Officer. To prosecute against the respondent-accused, sanction was obtained from the competent authority. Then, charge-sheet was filed against the respondent- accused for offence under Sections 7(12) 13(1)(d) and 13(2) of the Prevention of Corruption Act, which was numbered as Special Case (ACB) No.26 of 1999.
[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 Sections 7(12), 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 15 Dolatpari Ratanpari Goswami 2 17 Iqbalhussain Kasambhai Sama 3 21 Meghjibhai Jivanbhai Bagda 4 26 Mahendraray Jayashankar Dave 5 36 Rajendrasinh Ghanshyamsinh Vaghela
[5] In support of the prosecution case, the prosecution has produced several documentary evidences like complaint at Exh.16, letter of PSI, Junagadh at Exh.18, panchnama at Exh.19, seizure memo at Exh.20 etc. Page 5 of 18 R/CR.A/325/2005 JUDGMENT [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 respondent-accused stated that he was innocent and false was filed against him. Actually, on 15.02.1999, he was on petrolling in the area of Chorwad Town Police Station and gone to serve the warrant. In evening, in Government Jeep, he went to investigate in connection of C.R.No.-II 6 of 1999. On 16.02.1999, at about 12:10, he was informed that dispute took place at Khorasa village and therefore, he went there. At that time, someone knocked the door. He never accepted any amount and other person tried to give the amount and during the scuffle, the said amount was dropped on the floor. At that time, members of raiding party rushed there and he was arrested and bogus complaint was filed. He further stated that he purchased one old Ambassador Car of Rs.75,000/-from one Zaverbhai, who was close relative of the complainant, by keeping trust on him. The said car was not in a good condition and therefore, relation with him was spoiled. Due to instigation of Zaverbhai, the complainant filed complaint against him. Further, he did not make any demand of illegal gratification. He further admitted that demand was not proved beyond reasonable doubt and trap amount was also not recovered from the possession of the respondent-accused. The accused person denied the case of the prosecution and submitted that a false Page 6 of 18 R/CR.A/325/2005 JUDGMENT 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 demand made by the respondent-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 respondent- accused is not sufficient to convict him. In result of this, learned trial Judge passed the acquittal order in favour of the respondent-accused.
[8] Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 25.10.2004 rendered by the learned Special Judge(ACB) and 5th Additional Sessions Judge, 5th Fast Track Court, Veraval, in Special Case (ACB) No.26 of 1999 (old case No.07 of 1999), 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 Mr. Hriday Buch, learned counsel for for the respondent-accused.
[10] Ms. Hansa Punani, learned Additional Public Prosecutor argued that in present case, respondent- accused made demand of Rs.500/-from the complainant, in connection of the complaint in form of application given by one Niranjanbhai before the Chorwad Police Station. The complainant was called by the respondent-accused, Page 7 of 18 R/CR.A/325/2005 JUDGMENT who was Head Constable of Chorwad Police Station and just to come out from the allegation made by Niranjanbhai, the respondent-accused demanded Rs.500/- in from of illegal gratification from the complainant. Accordingly, the trap was arranged and in presence of panch, the amount was recovered and presence of anthracene powder was also found from the fingers, palm and tips of the respondent-accused. She further argued that in support of the case of the complainant, prosecution examined panch PW-2 Iqbalhusain Kasambhai Sama at Exh.17. She read the evidence of the PW-1 complainant and PW-2 panch and argued that panch deposed totally corroborative piece of evidence in support of evidence of PW-1. She then contended that PW-1 panch is totally independent witness and public servant and he disclosed that when they went to the house of the respondent- accused, the complainant knocked the door and one lady came out. Then, the complainant inquired for the respondent-accused, at that time, respondent-accused came out. Thereafter, the complainant told the respondent-accused that as per the talk, he came with the money and gave the trap amount to the respondent- accused. Further, the statement of the complainant 'as per talk, he went with money of Rs.500/-'shows that demand was made by the respondent-accused. She then contended that provision of Section-7 of the Prevention of Corruption Act is proved beyond reasonable doubt through oral version of the complainant and panch. She read the Page 8 of 18 R/CR.A/325/2005 JUDGMENT contents of the complaint at Exh.16 and panchnama at Exh.19 and argued that it is proved and established that the respondent-accused made two demands and he was agreed and accepted the amount at Police Station, in village or at his house. Ms.Punani, further contended that as per the evidence of panch PW-2, the trap amount was recovered from the floor and when the search was made of the body of the respondent-accused and clothes, presence of anthracene powder was found. She then contended that as per the evidence of the Trapping Officer, it is proved beyond reasonable doubt that the respondent-accused made demand and he was agreed to accept the said amount as per the agreement. The said fact gets substantiated through oral version of PW-1 and PW-2. She read the explanation made by the respondent- accused in statement recorded under Section-313 of Cr.P.C. and argued that looking to his explanation, it appears that the respondent-accused did not rebut the presumption under Section-20 of the Act. She further read the written statement of the respondent-accused and argued that it is also observed by this Court as well Apex Court that it is the duty of the respondent-accused to explain probable defence in statement recorded under Section-313 of the Code of Criminal Procedure or in evidence to rebut the presumption under Section-20 of the Act. She further argued that when the respondent-accused did not rebut the presumption, then facts of the prosecution case were required to be accepted by the Page 9 of 18 R/CR.A/325/2005 JUDGMENT learned trial Judge, but the learned trial Judge did not consider the same and wrongly observed that demand was not proved beyond reasonable doubt. Prima-facie, when learned trial Judge has not considered the evidence of the prosecution and not followed the provision of law as laid down by this Court or the Apex Court, then judgment and order of acquittal is required to be set aside. Lastly, she prayed to set aside the judgment and order of acquittal and allow the appeal.
[11] Mr. Hriday Buch, learned counsel for the respondent- accused read the charge as sell as evidence of the complainant and panchas and vehemently argued that in the complaint at Exh.16, it is disclosed by the complainant that respondent-accused made demand twice. But, in support of the contents of the complaint, the complainant could not produce any cogent evidence. He then argued that as per the evidence of the complainant, when he went to the house of the respondent-accused with panch, he told the accused that as per the talk, he came with the money and gave the trap amount to the respondent- accused. Mr. Buch, raised a question that after the utterance of the above sentence by the complainant, the respondent-accused kept mum and while he was giving the said trap amount to the respondent-accused, the amount fell on the floor and recovered from the floor. Whether such act of the respondent-accused can be considered that he made a demand from the complainant. He further submitted that even panch PW-2 also could not Page 10 of 18 R/CR.A/325/2005 JUDGMENT disclose that at the time of trap, demand was made by the respondent-accused. Mr. Buch, then argued that as per the provision of Section-20 of the Act, respondent-accused has made probable defence. He stated in his statement that he purchased one old Ambassador Car of Rs.75,000/- from one Zaverbhai, who was close relative of the complainant, by keeping trust on him. The said car was not in a good condition and therefore, relation with him was spoiled. Due to instigation of Zaverbhai and enmity, the complainant filed complaint against him and trap was arranged. Mr. Buch, further argued that learned trial Judge has also considered that the demand is not proved beyond reasonable doubt. Lastly, he read the judgment and order of acquittal and argued that when the demand is not proved, judgment and order of acquittal is required to confirmed and thereby he prayed to dismiss the appeal.
[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 respondent-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.
Page 11 of 18R/CR.A/325/2005 JUDGMENT [14] I have perused the oral as well as documentary evidences. It In the present case, from the perusal of the evidence, I have tried to find out that whether prosecution has proved actual demand made by respondent-accused from the complainant. The complainant in his complaint stated that prior to the trap, two demands were made, but the said factum is not disclosed by him in his oral version. At the time of trap, when the complainant and panch went to the house of the respondent-accused, not a signal word was uttered by the accused and simply the complainant told him that as per the talk, he came with the money and the said amount was accepted. In such circumstances, provision of Section-7 of the Act is required to be considered, which reads 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 disfavor 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 6 Page 12 of 18 R/CR.A/325/2005 JUDGMENT months but which may extend to 5 years and shall also be liable to fine.
Explanations.(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "Legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the Organization, which he serves, to accept.
(d)"A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or he is not in a position to do, or has not done, comes within this expression."
[14.1] As per the ingredient of Section-7 of the Act, demand must be proved beyond reasonable doubt, as per the agreement made between the respondent and complainant. In the present case, main ingredient of Section-7 of the Act is not proved through oral version of the complainant and panch. I have further perused the contents of panchnama and evidence disclosed by the panch witnesses. It is also proved on record that at the time of trap, no demand was made by the respondent- accused. Further, it is also observed by this Court as well Apex Court that it is the duty of the respondent-accused to Page 13 of 18 R/CR.A/325/2005 JUDGMENT rebut the presumption under Section-20 of the Act. Section-20 of the Act is prescribed as under:-
20. Presumption where public servant accepts gratification other than legal remuneration.
(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause
(a)or clause (b) of subsection (1) of Section13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under Section12 or under clause (b) of Section - 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case maybe, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.(3) Notwithstanding anything contained in subsections (1) and (2), the Court may declined to draw the presumption referred to in either of the said subsection, if the gratification or thing aforesaid is, in its opinion so trivial that no inference of corruption may fairly be drawn."
[14.2] In the present case, respondent-accused
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admitted in his probable defence that he purchased one Ambassador car of Rs.75,000/-from the close relative of the complainant and that the same was not in good condition. Therefore, the dispute arose between the seller and purchaser. As a result of which, the complainant filed the complainant through seller of the car. Learned trial Judge also observed that the probable defence is made by the respondent-accused in his statement and presumption under Section-20 is also rebutted by him. From the perusal of the judgment and order of the learned trial Judge, it appears that learned trial Judge has rightly considered that demand is not proved beyond reasonable doubt and in absence of demand, simple recovery of the amount is not sufficient to convict the present respondent-accused.
[14.3] I have gone through the decision of Apex Court in the case of B. Jayaraj v/s. State of A.P., reported in, 2014(2) GLH 149. Relevant para-8 of the said judgment reads as under:-
"8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concenred. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned that he had stated in the initial complaint (Exbt.P-11) before LW-1 and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly Page 15 of 18 R/CR.A/325/2005 JUDGMENT made by the accused. We are, therefore, inclined to hold that the learned trial Court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section-7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as 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 established."
[14.4] In view of the above observations made by the learned Judge, I am in complete agreement that the learned Judge has rightly acquitted the respondent- accused. There in no substance in the appeal and the arguments made by the learned Additional Public 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.
[15] 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 Page 16 of 18 R/CR.A/325/2005 JUDGMENT be dismissed.
[16] 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 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.
[17] In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 25.10.2004 rendered by the learned Special Judge(ACB) and 5th Additional Sessions Judge, 5th Fast Track Court, Veraval, in Special Case (ACB) No.26 of 1999 (old case No.07 of 1999), acquitting the respondent-accused is hereby Page 17 of 18 R/CR.A/325/2005 JUDGMENT 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 18 of 18