Gujarat High Court
Mohanbhai Chhitabhai Vankar vs State Of ... on 26 February, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/616/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 616 of 1999
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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MOHANBHAI CHHITABHAI VANKAR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR. HARESH N. JOSHI, ADVOCATE FOR MR NAVIN K PAHWA,
ADVOCATE for the Appellant(s)
MR. HARDIK SONI, APP, for the Opponent(s)/Respondent(s)
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 26/02/2015
ORAL JUDGMENT
[1] The present conviction Appeal has been filed by the appellants-original accused under Section 374(2) of the Cr. P.C., against the Judgment and order dated 29.05.1999 passed by the learned Additional Sessions Judge, Page 1 of 15 R/CR.A/616/1999 JUDGMENT Vadodara, in Special Case No.03 of 1994, whereby the appellant-accused was convicted for the offences punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to undergo 1 year simple imprisonment with fine of Rs.500/-, in default of payment of fine, further simple imprisonment of 2 months and for the offence punishable under Sections-13(1)(d) read with Section-13(2) of the Prevention of Corruption Act, 1988 and sentence to undergo 1 year simple imprisonment with fine of Rs.500/-, in default of payment of fine, further simple imprisonment of 2 months.
[2] According to the prosecution case, complainant- Remla Saliya Rathwa, resident of Chorwana, Chhota Udepur was agriculturist and was doing agriculture work on his land. His grander father had expired and because of inherent rights, complainant and his brothers became owners of the land. The land was in the name of complainant's father and uncle Kaliyabhai. Both were residing separately since long and cultivating land separately. But actually, the land ran in the name of uncles of the complainant. During that period, uncles of the complainant namely Tetiyabhai and Kaliyabhai expired and therefore, son of Kaliyabhai came to Talati-Mohanbhai Parmar to enter his and his mother's name on record. In the year 1993, Civil litigation was filed by son for land bearing block No.73 and notice was served upon the complainant. As the advocate of the complainant demanded copy of the land bearing Block No.73, the Page 2 of 15 R/CR.A/616/1999 JUDGMENT complainant approached Mohanbhai Parmar, Talati, resident of Bhilpur-appellant accused herein and got the copy and for the said copy, the appellant-accused demanded Rs.100/- and complainant paid Rs.30/-. Thereafter, the advocate of the complainant asked for the copy of Block No.62. Then, on 06.06.1993, the appellant- accused came in village for the meeting and the complainant asked regarding the copy of block No.62, but the appellant-accused demanded Rs.150/-including Rs.70/- of earlier copy. The complainant told him that due to pendency of the civil Court, copy was required and later on he would pay money, but the appellant-accused was not ready to give the copy and told the complainant that he would give the copy only if the complainant paid Rs.150/- to him. On 14.09.1993, the complainant met the appellant-accused at Bhilpur Bus-stand and complainant requested to give the copy, but the appellant-accused did not agree without making payment of Rs150/-. On 20.09.1993, the appellant-accused told the complainant to come at Tejpur to get the copy. The appellant-accused was of Bholpur Gram Panchayat, but he was carrying his office in rental house. On 20.09.1993 upto noon, it was told by the appellant-accused to pay of Rs.150/-. As the complainant did not want to pay the amount of bribe, he approached ACB Office, Vadodara and lodged the complaint before Police Inspector. Then, PI called two panchas and Trapping Officer introduced both the panchas with the complainant. Then, trap amount of Rs.150/-was Page 3 of 15 R/CR.A/616/1999 JUDGMENT produced before the Police Inspector ACB. PI, ACB instructed one Constable Jayvir Jadeja to demonstrate the use of anthracene powder as well as ultra violate lamp. So, Mr. Jadeja explained the use of anthracene powder and ultra violate lamp. Then, trap amount of Rs.150/- was tainted with anthracene powder and the same was put into the left pocket of the shirt. Thereafter, the complainant was instructed not to touch the trap amount unless the demand made by appellant-accused. Panch No.1 was advised to stay with the complainant and to hear the talk took place between the complainant and appellant-accused while panch No.2 was advised to stay with the members of raiding party. Then, preliminary panchnama was drawn and they went to the office of appellant-accused, where, the appellant-accused was doing some work and two other persons were also present. After the completion of work, on being asked regarding the copy of 7/12, the appellant-accused prepared the same and gave the complainant and trap amount was given to accused. Then, pre-decided signal was given and members of raiding party rushed to the place and trap was carried out by Police Inspector and in presence of both the panchas, search was made and from the pent of the appellant-accused, the trap amount was recovered and from the pant, fingers, palm anthracene powder was found. Then, second part of the panchnama was drawn and statement of the witnesses were recorded and appellant-accused was arrested and seizure memo Page 4 of 15 R/CR.A/616/1999 JUDGMENT issued to appellant-accused. Then to prosecute against the appellant-accused, sanction was obtained from the competent authority and charge-sheet was filed against the appellant-accused for the offence punishable under Section-7, 13(1)(d) read with Section-13(2) of the Prevention of Corruption Act before the learned Additional Sessions Judge, Vadodara, which was numbered as Special Case No.03 of 1994.
[3] On the basis of above allegations, charge was framed against the appellants-accused vide Exh.5 and read-over and explained to the appellant-accused for the offences punishable under Sections 7, 13(1)(d) read with Section- 13(2) of the Prevention of Corruption Act, 1988. Then plea was recorded, wherein, appellant-accused pleaded not guilty to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined following oral evidences :-
Sr. Exh. Name of Witness No. 1 9 Remlabhai Taliyabhai Rathwa 2 2 Jemlabhai Dhuliyabhai Rathwa 3 13 Ramanbhai Maganbhai Rathwa 4 18 Victorbhai Paulbhai Parmar 5 19 Ghanshyamkumar Chandulal Brahmbhatt
[5] In support of the prosecution case, the prosecution has produced several documentary evidences like Page 5 of 15 R/CR.A/616/1999 JUDGMENT complaint at Exh.10, panchanma of raid at Exh.14, yadi of currency notes recovered from the appellant-accused at Exh.15 and list of currency notes recovered from the complainant at Exh.16, sanction to prosecute at Exh.20 extract of 7/12 at Exh.22 and notification to give authority to police Inspector to investigate at Exh.23.
[6] Thereafter, after filing closing pursis by the prosecution, further statement of appellant-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, it is admitted by the appellant-accused admitted that he never accepted any bribe amount from the complainant and he was innocent and he has not committed any offence and was wrongly charge-sheeted. The appellant-accused has denied the case of the prosecution and submitted that a false case is filed against him.
[7] After considering the oral as well as documentary evidence and after hearing the parties, learned Additional Sessions Judge, Vadodara vide impugned judgment and order dated 29.05.1999 held the appellant-accused guilty to the charge levelled against them under Sections 7, 13(1)(d) read with Section-13(2) of the Prevention of Corruption Act, 1988, and convicted and sentenced the appellant-accused, as stated above.
[8] Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Vadodara, the present appellant-accused preferred present different appeal.
Page 6 of 15R/CR.A/616/1999 JUDGMENT [9] Heard Mr. Haresh N. Joshi, learned counsel for Mr.Navin Pahwa, learned counsel for the appellant- accused and Mr.Hardik Soni, learned Additional Public Prosecutor for the respondent-State.
[10] Heard Mr. Haresh N. Joshi, learned counsel for Mr.Navin Pahwa, learned counsel for the appellant- accused read the charge and contended that the prosecution examined complainant as PW-1 at Exh.9 and also produced complaint at Exh.10. He contended that it is the case of the prosecution that complainant asked for the copies of the land and for which, the present appellant- accused demanded Rs.150/-and as a result of which, the trap was made by the ACB Officer, Vadodara. He further contended that in the present case, it is the case of the prosecution that appellant-accused made demand of illegal gratification from the complainant and in result of that, both the panchas were called by the Trapping Officer and trap amount of Rs.150/-was produced by the complainant and necessary procedure was followed. He then contended that as per the evidence of complainant PW-1, it is disclosed by him that when he went to the office of the appellant-accused, appellant-accused gave copy to him, but appellant-accused did not make any demand from the complainant by way of illegal gratification. The complainant forcefully tried to give the trap amount to the appellant-accused, which was not accepted by the appellant-accused and the same was lying on the floor, at that time, members of raiding party Page 7 of 15 R/CR.A/616/1999 JUDGMENT rushed to the place of trap and trap amount was recovered by panch No.1 under the instructions of the Trapping Officer and panchnama was drawn. As far as the evidence of the complainant is concerned, demand is not proved and established beyond reasonable doubt through his oral version. Mr.Joshi, fairly admitted that the trap amount was not recovered from the pocket of the appellant-accused and when the demand is not proved beyond reasonable doubt, it cannot be said that the case of the prosecution is proved. He read the evidence of panch No.1 PW-3-Ramanbhai Maganbhai Rathwa at Exh.13 and contended that even this witness has also not disclosed that appellant-accused made any demand from the complainant and it was accepted by him. He further read the oral evidence of this witness and it was disclosed by him that when the appellant-accused gave copy to complainant, the trap amount was given to the appellant- accused by the complainant, inspite of having no demand made by the appellant-accused. The prosecution produced panchnama at Exh.14, but the contents of the panchnama does not get substantiate through oral version of panch No.1. He then contended that the prosecution examined PW-4-Victerbhai Paulbhai Rathwa at Exh.18. In his evidence also, it is disclosed by him that he was present at the time of trap. Further, after receiving the signal, he entered in the office of the appellant-accused with the members of raiding party. At that time, the amount was recovered from the possession of the appellant-accused.
Page 8 of 15R/CR.A/616/1999 JUDGMENT Mr.Joshi, argued that from the aforesaid three witnesses, the prosecution could not prove demand made by the appellant-accused. He vehemently argued that through the evidence of panch No.2, only recovered is established. He read the evidence of PW-5 Ghanshyamkumar Chandulal Brahmbhatt at Exh.19, who gave the sanction to prosecute against the appellant-accused and submitted that appellant-accused has not challenged the sanction as well as evidence of the sanctioning authority. He further read the evidence of PW-6 Ramkrushna Gangaram Patel, Trap Officer at Exh.21 and contended that this officer has no personal knowledge regarding the demand made by the present appellant-accused and simply he proved the contents of panchnama and complaint that recovery was made from the possession of the appellant-accused. He then argued that in light of evidence of the aforesaid witnesses, the demand is not proved beyond reasonable doubt and learned trial Judge has wrongly convicted the present appellant-accused for the said alleged offence. He read the judgment and order of the learned trial Judge and argued that learned trial Judge committed a grave error and therefore, he prayed to set aside the judgment and order of the learned trial Judge.
[11] Mr.Soni, learned APP for the respondent-State read the charge as well as evidence of complainant, panch No.1, panch No.2 and Trapping Officer and contended that in this case, present appellant-accused is a public servant and it was his duty to prepare 7/12 extract of the Page 9 of 15 R/CR.A/616/1999 JUDGMENT agriculturist or owner of the land. In the present case, it was asked by the complainant to appellant-accused to prepare a copy of 7/12 extract, for which, demand of illegal gratification was made by the appellant-accused and complainant was not ready to pay amount to him. So, the complainant rushed to the ACB Office, Vadodara and filed complaint against the appellant-accused. Looking to the contents of the complaint, it appears that illegality was committed by the appellant-accused in connection of demand of bribe. He then submitted that presumption is required to be drawn that a simple villager registered the complaint against the present appellant-accused. He read the evidence of complainant and argued that present complainant-PW1 is a rustic villager and illiterate person so he could not properly disclose the facts of the complaint. He further submitted that trap amount was recovered from the possession of the appellant-accused, disclosed by the complainant and panch No.1, but this was not the cause to acquit the accused in absence of any clouds of the doubt. He further read the evidence of panch No.2 and the Trapping Officer and argued that as per the evidence of these witnesses, the amount which was accepted by the appellant-accused was of illegal gratification and therefore, it is the duty of the Court to draw the presumption against the appellant-accused under Section-20 of the Prevention of Corruption Act. He submitted that in statement recorded under Section-313 of the Criminal Procedure Code, presumption is not Page 10 of 15 R/CR.A/616/1999 JUDGMENT rebutted by the appellant-accused. He contended that the learned trial Judge has rightly believed the evidence of the complainant whereby he stated that the appellant made demand and he gave the bribe amount. He contended that there is ample direct and indirect evidence to connect the appellant-accused with the crime. Mr. Soni, read the complaint and contended that looking to the contents of the complaint, demand and acceptance of illegal gratification are proved beyond reasonable doubt. Lastly, he prayed that therefore, judgment and order of the conviction is required to be confirmed.
[12] I have perused the documentary as well as oral evidence produced on record. First of all, I have perused the evidence of PW-1 complainant. It is required to be noted that in cases of corruption, main ingredients are (I) demand (ii) acceptance (iii) recovery and (iv) probable defence. In the present case, as far as the offence punishable under Section-7 is concerned, demand is main and material question which should only be proved through oral and documentary evidence of complainant and panch witnesses. In the case on hand, the complainant was examined by the prosecution. He deposed that he went to the house of the appellant- accused, where he was carrying business with panch No.1, at that time, two persons were there and appellant- accused was doing some work. In between, the complainant asked his copy and appellant-accused replied him to wait for sometime. After the completion of work, Page 11 of 15 R/CR.A/616/1999 JUDGMENT the appellant-accused prepared the copy and gave to the complainant as per the demand made by him, which was put into the pocket by the complainant. Now, further evidence of the complainant is very important. As per the say of the complainant, since no demand coming forth from the appellant-accused till he put the copy in his pocket, he having felt embarrassed situation thinking that the Trapping Officer would become aggressive and due to such fear, he thought that trap amount was required to be given to the appellant-accused to prove his case and hence, he gave the trap amount to accused. As per the say of the complainant, the accused refused to accept the said trap amount and pushed by him as a result of which the same was lying on the floor. At that time, panch No.2 and members of raiding party rushed to the room of the appellant-accused and trap amount was picked up by panch No.1 as per the instructions of Trapping Officer and panchnama was drawn and other procedure was followed. In cross-examination of this witness, he never disclosed that at the time of trap, demand was made by the appellant-accused. It is required to be noted that in such circumstances, prosecution could have declared him as hostile and tried to make attempt in cross-examination, but the prosecution did not do the same. I have minutely perused the evidence of the Panch No.2, who is a public servant. As per his evidence, prior to the trap, they went for urination and when they came back, copy of extract 7/12 was given to the complainant by the appellant-
Page 12 of 15R/CR.A/616/1999 JUDGMENT accused and trap amount was given by the complainant to accused. This is material and star witness, but he has not disclosed that appellant-accused made demand of Rs.150/- and accepted from the complainant. As per the evidence of panch No.2-Victorbhai Paulbhai Parmar, he entered in the office of the accused with members of raiding party after signal was given. So, he has no personal knowledge regarding the demand and he did not know that what was happened between the complainant and accused and he could not explain that whether any demand was made by the appellant-accused or not. Simply he disclosed that during the search, trap amount was recovered from the possession of the accused. Through this witness also, the prosecution could not establish that appellant-accused made demand of illegal gratification and accepted in his presence of this witness. The Trapping Officer also examined by the prosecution and he also did not have any personal knowledge of the demand and he simply deposed to support the evidence of the panch and complainant. Mr.Soni, read the contents of the panchnama and argued that he gathered the information from panch No.1 of demand and acceptance and that evidence should be considered against the appellant-accused. No doubt, Mr.Soni, learned APP made sufficient attempt to support the judgment and order of the conviction, but in light of the evidence of the prosecution, prosecution could not prove demand specifically made by the appellant-accused. As per the law Page 13 of 15 R/CR.A/616/1999 JUDGMENT laid down by the Apex Court that demand is required to be proved beyond reasonable doubt and in absence of demand, simple recovery of the trap amount is not sufficient to convict the person. In the case of B. Jayraj v/s. State of Andhra Pradesh reported in (2014) 13 SCC 55, it is held by the Apex Court that in absence of proof of demand for illegal gratification, mere recovery of the tainted currency notes from the appellant-accused, do not establish commission of offence. In the present case also, prosecution could not prove demand of illegal gratification by appellant-accused beyond reasonable doubt. Further, in the case of Banarasi Das v/s. State of Haryana reported in AIR 2010 SC 1589, it is established that in absence of any evidence regarding the demand, prosecution could not prove its case beyond reasonable doubt.
[12.1] In view of the above, learned trial Judge committed a grave error to consider that the prosecution proved its case even in absence of demand made by the appellant-accused. Hence, I am not in agreement with the judgment and order of conviction of the learned Trial Court and the same deserves to be set aside.
[13] In the result, the judgment of the trial Court is reversed. Conviction and sentence of the appellant- accused are set aside. The appeal is allowed. Fine amount, if any paid be refunded to the appellant-accused. The bail bond shall stand cancelled. R&P to be transmitted to the trial Court .
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(Z.K.SAIYED, J.)
siddharth
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