Gujarat High Court
Kirtikumar Rikhavachand Shah vs State Of ... on 29 March, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/1591/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1591 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
==========================================================
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 ?
==========================================================
KIRTIKUMAR RIKHAVACHAND SHAH....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
==========================================================
Appearance:
MR MEHULSHARAD SHAH, ADVOCATE for the Appellant(s)
MS MH BHATT, APP for the Opponent(s)/Respondent(s)
==========================================================
CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 29/03/2017
ORAL JUDGMENT
1. The appellant has preferred the present appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 18/12/2003 Page 1 of 16 HC-NIC Page 1 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT rendered by the learned Special Judge (ACB), Fast Track Court, Mehsana in Special (ACB) Case No.6 of 1995 whereby the appellant has been convicted for the offence punishable under Sections 7, 13(1)(d), (i), (ii), (iii) and 13(2) of the Prevention of Corruption Act, 1988. The appellant is sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.1,000/- and in default to pay fine, simple imprisonment for a period of two months for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988. The appellant-accused is also convicted for the offence punishable under Section 13(1)(d), (i), (ii) and
(iii) read with Section Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.1,000/- and in default to pay fine, simple imprisonment for a period of two months. It is also ordered to run both the sentence concurrently.
2. The short facts giving rise to the present appeal are that the complainant Bharatkumar Ramjibhai Vaghela is residing near City Police Station, Mehsana. His father was serving in PWD Department, Mehsana and expired on 21/09/1991 during the course of employment. After death of his father, he applied for compassionate appointment. Thereafter, the complainant met the accused about 25 times before lodging complaint for processing his application as well as he has fulfilled necessary documentary process. The accused when met the complainant on 21/11/1994, told the complainant that his work is done and his papers are pending before the officer superior to him and would collect the papers on 23/11/1994 and also told to bring Rs.100/- and told that if that money Page 2 of 16 HC-NIC Page 2 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT would be there, his work would be done. As the complainant did not want to give such bribe, he approached the ACB office, Mehsana. Accordingly, a trap was arranged and requisition of panchas were made and procedure of trap was made to understand to the complainant as well as other members of the raiding party. Preliminary panchnama was also drawn accordingly. Thereafter, the complainant as well as members of the raiding party went to the office of the accused and the complainant asked about his work to which the accused demanded the money which the complainant gave and the accused accepted. Thereafter, the complainant raised pre- arranged signal due to which members of raiding party arrived there and thereby the accused was caught red handed with tainted currency notes and, thereby the appellant committed the offence as alleged. Hence, the complaint came to be lodged against the appellant-accused.
3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet 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 about five witnesses and also produced several documentary evidences.
3.2 At the end of the trial, after recording the statement of the accused under Section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as Page 3 of 16 HC-NIC Page 3 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT 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.
6. Mr. Dev Patel, learned advocate for Mr. Mehul Sharad Shah, learned advocate for the appellant has taken this Court through the entire records and proceedings of the learned trial court and he has argued that neither the complainant nor panch no.1 who accompanied the complainant at the time of trap have supported the case to the extent so as to establish vital ingredients i.e. demand and acceptance. On the contrary from their evidence, it is clearly emerging out that the complainant himself has placed the tainted currency notes into the pocket of accused and thereafter the complainant gave pre-arranged signal and due to which other members of raiding party arrived there and recovery alleged to have been carried out. However, so far as the recovery of said amount of illegal gratification is concerned, no uniform evidence is coming out from the mouth of panch no.1 and panch no.2. Consequently, therefore, the prosecution has miserably failed to establish demand, acceptance as well as recovery of the Page 4 of 16 HC-NIC Page 4 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT tainted currency notes. He further argued that even if the evidence of the complainant PW-1 may be believed as it is, then also it lacks corroboration as panch no.1 who accompanied at the time of trap has not at all supported the case of the prosecution. The trial court could not have held the accused guilty solely relying upon the evidence of the complainant in absence of any corroborative evidence on record and the evidence of the complainant also suffers from several contradictions as well as omissions and improvements therein and they are also brought on record. Therefore, findings recorded by the learned Judge is not in accordance with law and the judgment and conviction is required to be set aside as such. He, therefore, urged to this Court to allow the present appeal and set aside the impugned judgment of conviction.
7. On the other hand, Ms. M. H. Bhatt, learned APP has strongly supported the judgment of learned Special Judge and she has argued that evidence of the complainant is consistent, clinching and to some extent his evidence is also getting support and corroboration from mouth of panch no.1 who accompanied at the time of trap and therefore, the judgment of conviction recorded by the learned Special Judge is in accordance with law and this Court may not interfere with the same. She further argued that panch no.1 has not supported the case of the prosecution for extraneous consideration which is brought on record. Moreover, PW-2 has supported the case of the prosecution, therefore, recovery of tainted currency notes is proved. So far as demand and acceptance from the evidence of the complainant and panch no.1, the prosecution has successfully established vital ingredients of Page 5 of 16 HC-NIC Page 5 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT demand, acceptance. Therefore, the judgment of conviction recorded by the learned trial court requires no interference of this Court. She has therefore, argued 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 Court, as such.
8. This Court has heard Mr. Dev Patel, learned advocate with Mr. Mehul Sharad Shah, learned advocate for the appellant and Ms. M. H. Bhatt, learned Additional Public Prosecutor 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 applied for compassionate appointment as his father died in harness. While processing his application for getting compassionate appointment, the accused who was serving as a senior clerk in the establishment of Roads and Building Department, Mehsana demanded Rs.100/- as illegal gratification. As he was not willing to pay the said amount, he lodged the complaint. On the day of trap i.e. 24/11/1994, the accused was caught red handed along with tainted currency note and thereby committed offence punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
10. In the present case, this Court is required to scrutinize Page 6 of 16 HC-NIC Page 6 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT 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.
11. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. In the case of A. Subair vs. State of Kerala reported in (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon'ble Apex Court 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.
12. In the case of State of Kerala and another vs. C.P. Rao reported in (2011) 6 SCC 450, the Hon'ble Apex Court, reiterating its earlier dictum, vis-à-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.
13. In a recent enunciation by the Hon'ble Supreme Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined by the Hon'ble Apex Court in Page 7 of 16 HC-NIC Page 7 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT the case of B. Jayaraj vs. State of A.P. Reported in AIR 2014 SC (Supp) 1837, 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)&(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)&(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.
14. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon'ble Apex Court in the case of Sujit Biswas vs. State of Assam, reported in (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or Page 8 of 16 HC-NIC Page 8 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
15. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
16. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)
(i)&(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.
17. PW-1, Bharatkumar Ramjibhai Vaghela has deposed that his father was serving as peon in PWD Department and he expired on 21/09/1991. He has deposed that he applied for compassionate appointment. He has deposed that for the same, he used to meet the appellant-accused who demanded Rs.100/- as illegal gratification. He has deposed that as he was not willing to pay bribe, he lodged the complaint. He has deposed that at the time of trap, he was accompanied by panch no.1 and while they reached the office of the accused, at that time, two to three other clerks were working there. He has deposed that at that time he asked the accused as Page 9 of 16 HC-NIC Page 9 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT regards to his compassionate appointment. He has deposed that at that time accused asked him as to whether he had brought the money. He has deposed that thereafter he told that he brought the money and thereafter he handed over the amount to the accused which the accused accepted and placed into his pocket and thereafter he gave pre arranged signal due to which other members of raiding party arrived there. He has deposed that thereafter other members of raiding party recovered the money from the pocket of the accused and test of ultra violet lamp was carried out. In the cross examination, he has admitted that he applied for compassionate appointment on 13/11/1991. He has also admitted that thereafter he used to comply various requirements as and when demanded by the office of the accused. He has also admitted that in the year, 1991, he met the accused for about 10 times. He has also admitted that in all he met the accused for about 20 to 25 times from 1992 to 1994. He has admitted that lastly, when he met the accused on 21/11/1994, at that time, the accused apprised him that he will send the proposal and no other conversation took place between them. He has also admitted that on raising demand by the accused, he lodged the complaint on the following day. He admitted that demand was raised on 22/11/1994 and at that time, several other employees were present. He clearly and categorically admitted that no demand was raised by the accused on 21/11/1994. He further admitted that from 1992 to 1994, he frequently visited the accused and due to which he got frustrated and therefore, he lodged the complaint against the accused. He also admitted that as directed by the ACB officials, the accused took out tainted currency notes from his own pocket.
Page 10 of 16
HC-NIC Page 10 of 16 Created On Tue Aug 15 14:33:51 IST 2017
R/CR.A/1591/2003 JUDGMENT
18. PW-2 Nareshbhai Ambalal Puj has deposed that he was serving as Tester in the GEB office, Mehsana. He has deposed that he was requisitioned by the ACB to act as shadow witness on 23/11/1991. He has deposed that he visited the office of the ACB and at that time another panch was also called and the complainant was also present in the office of ACB. He has deposed that he signed over the complaint. He has deposed that thereafter he was apprised as regards to trap and he was directed to remain all-throughout with the complainant Bharatbhai. He has deposed that at the time of trap, while he accompanied the complainant and visited the office of accused, the complainant asked the accused as regards to his papers to which accused answered that the same was in typing and therefore, they were directed to visit the typist. He has deposed that thereafter they met the person who was typing i.e. Shri Thakore and inquired about typing of the papers and in reply to the same, it was answered that he will type the same in a few minutes. He has deposed that thereafter again they went to the office of the accused and at that time the complainant took out the tainted currency notes from his pocket and put the same in the pocket of the accused while he was writing and thereafter the complainant straight way gave pre-arranged signal and due to which other members of raiding party arrived there and they asked the accused to take out the money from his own pocket and placed over the table due to which the accused took out the tainted currency notes from his pocket and placed the same over the table. Thereafter, he was declared hostile as he did not support the case of the prosecution. Even in the cross examination carried out by the learned APP, he did not Page 11 of 16 HC-NIC Page 11 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT support the case of the prosecution.
19. PW-3, Pittarbhai Dharmaji Ninama who was requisitioned as panch no.2 has fully supported the case of the prosecution and has deposed that after the trap was over, he visited along with other members of raiding party. He has deposed that at that time, search and seizure of the accused was carried out through panch no.1 and test of ultra violet lamp was also found to be positive so far as the accused as well as the complainant are concerned.
20. PW-4 Govindbhai Karsanbhai Chaudhary was lamp operator who carried out test of ultra violet lamp and he has detailed in his deposition as to how he carried out the trap as well as test of ultra violet lamp.
21. PW-5 Tukaram Johru Thakur has deposed that while he was serving as Police Inspector, ACB, the complainant Bharatkumar Vaghela lodged the complaint before him and he recorded the complaint and thereafter arranged for the trap and made requisition of panchas and carried out the entire procedure of trap and also detailed the trap and after success of trap, he directed panch no.1 to carry out search and seizure over the accused and due to which, at his instruction, panch no.2 found out two tainted currency notes from the pocket of shirt of the accused and the same came to be seized along with shirt and test of ultra violet lamp was carried out.
22. On overall evaluation of the evidence on record, it appears that though to some extent, the complainant initially, in examination-in-chief, supported the case of the prosecution.
Page 12 of 16
HC-NIC Page 12 of 16 Created On Tue Aug 15 14:33:51 IST 2017
R/CR.A/1591/2003 JUDGMENT
However, in the cross examination, he has clearly admitted that there was no demand by the accused for any amount of illegal gratification from him on 21/11/1994 and he also admitted that as during the period from 1992 to 1994, he visited the accused for about 25 times and due to which he got frustrated and he lodged the complaint involving the present appellant as accused. On going through his complaint at Exh.15 dated 23/11/1994, it appears that he has clearly and categorically mentioned in it that while he visited the accused lastly on 21/11/1994, at that time, the accused demanded an amount of Rs.100/- as illegal gratification for processing his file whereas in cross examination, he clearly admitted that no such demand was raised and no such conversation took place between them on 21/11/1994. Even otherwise also, there are material contradictions and omissions noticed in the deposition of the complainant and in light of his clear admission made before the learned Special Judge and due to improvements and omissions, his deposition as to whether any demand was raised by the accused from the complainant becomes doubtful.
23. So far as the evidence of panch no.1 who accompanied the complainant at the time of trap, it appears that, he did not support the case of the prosecution and he was declared hostile. In his deposition, he has stated that, at the time of trap, the complainant visited the accused and straightway put the money into the pocket of the accused and thereafter gave pre-arranged signal and due to which other members of raiding party arrived there and thereafter search and seizure was carried out. In order to establish vital ingredients as regards to demand and acceptance, the evidence of the Page 13 of 16 HC-NIC Page 13 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT complainant as well as panch no.1 who used to accompany the complainant is crucial. On overall appreciation of evidence of panch no.1 nothing is established as to whether any demand was raised at the time of trap by the accused from the complainant. There appears no uniformity in the evidence of PW-1 and PW-2-panch no.1. Even as regards to pre-demand also, the complainant turned hostile and he deposed otherwise before the court that there was no demand on 21/11/1994. Consequently, therefore, the prosecution miserably failed to establish even the pre-demand also.
24. So far as recovery and search and seizure from the present accused are concerned, there appears no uniform evidence on record. As per evidence of PW-3, recovery came to be effected through panch no.1. Panch No.1-PW-2 had clearly denied as regards to any recovery from the accused through him whereas PW-5, Raiding Officer Thakur Tukaram had deposed that recovery from the accused came to be recovered from panch no.2 and he effected the recovery from left side pocket of shirt of the accused and recovered two tainted currency notes of Rs.50/- in denomination. As regards to search and seizure, evidence of PW-1, PW-2, PW-3 and PW- 4 are different and they all have deposed different stories. As per the evidence of the Investigating Officer, recovery came to be effected through panch no.2 whereas panch no.2 is involving panch no.1 and panch no.1 denied qua any recovery came to be effected by him whereas the complainant has deposed that the same was came to be effected through the accused himself. In view of aforesaid nature of evidence, the prosecution has failed to establish the vital ingredients as regards to demand, acceptance and recovery.
Page 14 of 16
HC-NIC Page 14 of 16 Created On Tue Aug 15 14:33:51 IST 2017
R/CR.A/1591/2003 JUDGMENT
25. This Court has also gone through the impugned
judgment rendered by the learned Special Judge. On perusal of it, it appears that learned Special Judge has not recorded the findings based upon the evidence available on record and wrongly appreciated the evidence and wrongly recorded the conviction which is not sustainable in law.
26. In the present case, in view of the aforesaid nature of evidence, it is clear that there is no clinching cogent and reliable evidence beyond reasonable doubt to confirm the conviction and therefore as a result, the learned trial court has committed error in relying upon the version put forth by the prosecution. This Court has also gone through the decisions of the Apex Court in the cases of (i) P. Satyanarayan Murthy vs. District Inspector of Police, State of Andhra Pradesh reported in (2016) 1 SCC (Cri.) 11, (ii) Selvaraj Vs State of Karnataka, reported in (2016) 1 SCC (Cri) 19 and (iii) Krishan Chander Vs State of Delhi, reported in AIR 2016 SC 299. In view of settled position as emerging from the aforesaid decisions, in absence of specific and clinching evidence to prove all such acts by the accused, conviction recorded by learned trial Judge is not sustainable.
27. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, this Court is constrained to hold that it would be wholly un-safe to sustain the conviction of the Page 15 of 16 HC-NIC Page 15 of 16 Created On Tue Aug 15 14:33:51 IST 2017 R/CR.A/1591/2003 JUDGMENT appellant under Section 13(1)(d)(i), (ii) and (iii) read with Section 13(2) of the Act as well.
28. For the reasons recorded above, the appeal succeeds. The impugned judgment and order dated dated 18/12/2003 rendered by the learned Special Judge (ACB), Fast Track Court, Mehsana in Special (ACB) Case No.6 of 1995 is quashed and set aside. The appellant-accused is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith. Fine, if any paid, be refunded forthwith.
(R.P.DHOLARIA,J.) ila Page 16 of 16 HC-NIC Page 16 of 16 Created On Tue Aug 15 14:33:51 IST 2017