Gujarat High Court
Kanjibhai Premjibhai Bagda vs State Of ... on 25 January, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/559/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 559 of 2004
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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KANJIBHAI PREMJIBHAI BAGDA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Appellant(s)
MR KP RAVAL, APP for the Opponent(s)/Respondent(s)
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 25/01/2017
ORAL JUDGMENT
1. The appellant has preferred the present Page 1 of 14 HC-NIC Page 1 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 16.4.2004 rendered by learned Special Judge and Additional Sessions Judge, 7th Fast Track Court, Veraval in Special Case (ACB) No.23 of 1999 (1 of 1998).
2. The short facts giving rise to the present appeal are that the complainant is having factory named Sorathiya Fish Products in Plot No.703 in GIDC, Bhidiya Plot, Veraval and that he is having two electric connections being consumer Nos.22205 and 22206, single phase and three phase respectively. It is alleged that on 17.4.1997, the Meter Reader of the GEB office, Veraval has recorded the meter reading and he was issued two bills for the month of April 1997. It is alleged that on checking the bill, the complainant found that there was no total of the amount for payment of the actual amount in the three phase bill and hence, he contacted the accused in the GEB office on 21.4.1997 and on inquiry, the accused told the complainant that the bill is excessive and it can be reduced by Rs.1500/- for which the complainant would be required to pay Rs.1000/- to the accused. It is alleged that thereafter the complainant approached the ACB office and lodged the complaint against the accused on 22.4.1997 at 13.00 hours.
3. In pursuance of the complaint, the Page 2 of 14 HC-NIC Page 2 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT Investigating Officer carried out the investigation and filed the chargesheet against the appellant accused. 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 statement of the accused under section 313 of the Code of Criminal Procedure 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.
5. By way of preferring the present appeal, the appellant 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.
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6. Mr.Ashish Dagli, learned advocate for
the appellant has taken this Court through the charge as well as evidence of material witnesses and argued that the entire case put up by the prosecution appears to be not based on any logical reasons as no total of the amount payable was found in the electricity consumption bill and, therefore, as per the prosecution case, the accused lured the customer to give the benefit to the extent of Rs.1500/- and in lieu thereof, demanded the amount of Rs.1000/- as illegal gratification, however, on going through the evidence of the complainant, panch as well as Investigating Officer, the fact reveals otherwise. He submitted that on the contrary, after making the total of the amount payable, the bills were handed over to the complainant and the amount handed over by the complainant to the accused was to be paid in the office and before the accused can deposit the said amount, the raid was conducted and the amount was seized. He submitted that explanation in this regard is also forthcoming from the oral evidence of the panch and the Investigating Officer and, therefore, the prosecution has miserably failed to prove the vital ingredients as regards to demand, acceptance and recovery of illegal gratification, as such. He submitted that the bill at page 74 of the paper book clearly establishes that there was bill of total consumption of Rs.3498=13 paise and Page 4 of 14 HC-NIC Page 4 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT there was credit of Rs.1230=87 paise and hence payable amount was Rs.2267=26 paise and that after the correction, the bill was handed over to the complainant which was verified by the complainant and when the bill was not indicating any benefit of Rs.1500/- to the complainant, there was no cause of paying illegal gratification of Rs.1000/- in lieu of getting benefit of Rs.1500/-. He further submitted that there is no corroborative evidence available on record in order to corroborate the say of the complainant. He submitted that in view of catena of decisions rendered by the Honourable Apex Court, by now, the law on the issue raised in this appeal has become very clear wherein the prosecution has to establish the case beyond reasonable doubt in clear and conjoint evidence as regards to demand and acceptance thereof and unless that is established, no conviction can be recorded in such cases. Lastly, Mr.Dagli requested this Court to allow the present appeal.
7. On the other-hand, Mr.K.P.Raval, learned APP has supported the judgment rendered by learned trial Court. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court should not disturb the finding recorded by learned trial Page 5 of 14 HC-NIC Page 5 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT Court, as such. He submitted that from overall perusal of the evidence on record, the prosecution has successfully proved the case beyond reasonable doubt and therefore, the order of conviction calls for no interference by this Court.
8. This Court has heard Mr.Ashish Dagli, learned advocate for the appellant and Mr.Raval, learned APP for the respondent 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, the complainant was running his factory in the name and style of Sorathiya Fish Products at Plot No.703, GIDC, Veraval and that he had two electric connections. It is alleged that two light bills were issued for the month of April 1997, out of which, one bill was without total amount payable. Therefore, the complainant approached the accused and the accused has stated that the bill is excessive and would be reduced by Rs.1500/- for which he demanded Rs.1000/- as illegal gratification. As the complainant was not willing to pay the bribe amount, he approached the ACB office and lodged the complaint, trap was laid on 22.4.1997, the accused was caught red handed with tainted currency notes and thereby the appellant Page 6 of 14 HC-NIC Page 6 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT committed the offence, as alleged.
10. PW 1 - Yunushbhai Amadbhai Sorathiya has been examined at Exh.16. The witness has deposed that he is running factory of fish products at plot No.703 situated at GIDC, Veraval and that he has two electric connections. He deposed that he was issued two bills fr the month of April 1997 wherein one bill was found without total amount payable and hence, he approached the accused in the GEB office. The witness has deposed that the accused has stated that he would total the amount payable and it would be reduced by Rs.1500/- for which, the witness has to pay Rs.1000/- as illegal gratification. The witness has deposed that therefore, he approached the ACB office and lodged the complaint for which the ACB official requisitioned official panch, arranged the trap and at the time of trap, when he visited the office of the accused, the accused was found on his table. The witness has deposed that the witness has asked the accused as regards to his bill and in turn, the accused delivered the bill, at that time, the accused inquired about the money and thereafter the accused came out from his office and gone nearby window for the purpose of paying the bill for which the accused accepted the amount of Rs.1000/- from the witness and put the same in his pocket. In the cross examination, the witness has admitted that the accused has not asked whether the witness has brought money or Page 7 of 14 HC-NIC Page 7 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT not and that the accused did not tell him that there would be benefit of Rs.1500/- but the accused told that the witness would get the benefit of previous deposit lying in the office. The witness has admitted that when he received the bill from the accused, he verified that the bill was having total amount payable and there was no mistake in the bill and thereafter he put both the bills in his pocket. The witness has admitted that he did not narrate before the police that the accused asked him to give money immediately and when the Investigating Officer Mr.Yagnik asked the accused about the money, at that time, he came to know that the accused accepted the money for paying the bill.
11. PW 2 - Jaisukhbhai Jerambhai Vasoya has been examined at Exh.27. The witness has deposed that he was requisitioned as official shadow panch and along with him, one another panch i.e. Parshottam Tank was introduced with the complainant in the office of the ACB. The witness has deposed that he was made to understand as to how the raid is to be carried out. The witness has deposed that thereafter when they reached to the office of the accused, at that time, one person asked to the complainant as regards to his arrival and also asked him as to what has happened to his bill. The witness has deposed that thereafter recovery was effected in the rest house and the test was found positive so far as Page 8 of 14 HC-NIC Page 8 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT the person of the accused is concerned. In the cross examination, the witness has admitted that the accused has not asked to the complainant as to whether the complainant has brought money or not and he did not even mention the same in his police statement. The witness has admitted that PW 4 - R.C.Yagnik inquired from the accused as regards to tainted currency notes and the accused explained that the said amount was required to be paid against the bill and the same was not towards illegal gratification and that the accused was going with the complainant to deposit the same, but as the raid was carried out on the way, the same amount could not be deposited.
12. PW 4 - Rajendrakumar Chandrashanker Yagnik has been examined at Exh.37. The witness has deposed that he was serving as Police Inspector, ACB, Rajkot. The witness has deposed that he laid the trap and carried out the same at about 16.15 hours on 22.4.1997. The witness has deposed that they reached to the office of the accused and that the complainant and Panch no.1 visited the office of the complainant and after receiving prearranged signal, tainted currency notes were recovered from the pocket of the accused as well as he also seized the electricity bill. In the cross examination, the witness has admitted that during the course of interrogation of the accused after the raid, the accused appraised him that the bills were handed over to Page 9 of 14 HC-NIC Page 9 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT the complainant at about 11.00 O'clock on 21.4.1997. The witness has admitted that the appellant accused told him that while he was proceeding to deposit the amount before the cashier on behalf of the complainant, he was caught red handed.
13. At this stage, it is also pertinent to note that in further statement of the accused recorded under section 313 of the Code of Criminal Procedure, 1973, the accused has explained that the complainant has approached him on 21.4.1997 at 11.00 hours along with the bill and asked him to make the total. The accused has stated that as correction was to be carried out in the bill, he kept the said bill with him and asked the complainant to come on the next day. The accused has further stated that on 22.4.1997, the complainant approached and while he was going to deposit the amount of Rs.1000/- towards bill, he was intercepted and hence, he could not deposit the said amount. The accused has stated that he has not demanded any amount as illegal gratification and even after his arrest, he also stated before PW 4 about the aforesaid facts.
12. 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 Page 10 of 14 HC-NIC Page 10 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT 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.
13. 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 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.
14. 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 Page 11 of 14 HC-NIC Page 11 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT 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 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.
15. 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.
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16. In the backdrop of the aforesaid factual as well as legal position and on overall analysis of the evidence of the complainant on record, it appears that the complainant has put up the case that he was going to derive the benefit of Rs.1500/- and in lieu thereof, he was required to pay Rs.1000/- as illegal gratification to the appellant accused. However, the documentary evidence, i.e. electric bill which was handed over to the complainant prior to laying the trap was clearly disclosing the total bill of Rs.3498=12 paise and previous credit of Rs.1230=87 paise and the total payable amount was Rs.2267=26 paise which clearly indicates that there was bill of Rs.2267=26 paise payable by the complainant to the GEB and the said fact is also accepted by the complainant and he himself has verified and has admitted that there was no benefit and, therefore, entire purpose of handing over illegal gratification of Rs.1000/- remains no more. Even otherwise also, from the evidence of the complainant, nothing reveals that at the time of trap, panch No.1 was accompanied with him as upon entering the chamber of the appellant accused, he went to the window for collecting the bill and his presence is not at all attributed by the accused. In view of the evidence of the complainant, the evidence of panch No.1 who was requisitioned as shadow witness becomes totally meaningless. Even otherwise also, on conjoint reading of the impugned bill at Exh.33 along with Page 13 of 14 HC-NIC Page 13 of 14 Created On Sun Aug 13 02:45:27 IST 2017 R/CR.A/559/2004 JUDGMENT the narration rendered by the appellant accused and clear admission of the Investigating Officer
- PW 4, it clearly established that the aforesaid amount of Rs.1000/- was accepted by the appellant accused in order to deposit the same against the impugned bill at Exh.33. Therefore, as stated above, in absence of specific and clinching evidence to prove all such acts by the accused, conviction recorded by learned trial Judge is not sustainable.
18. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 16.4.2004 rendered by learned Special Judge and Additional Sessions Judge, 7th Fast Track Court, Veraval in Special Case (ACB) No.23 of 1999 (1 of 1998) is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. Fine, if any, paid by the appellant be refunded to him. R & P be sent back to the trial Court, forthwith.
(R.P.DHOLARIA,J.) pathan Page 14 of 14 HC-NIC Page 14 of 14 Created On Sun Aug 13 02:45:27 IST 2017