Gujarat High Court
Vinubhai Peterbhai Christi vs State Of Gujarat on 13 June, 2016
Author: S.G. Shah
Bench: S.G. Shah
R/CR.A/770/2000 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 770 OF 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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VINUBHAI PETERBHAI CHRISTI
Versus
STATE OF GUJARAT
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Appearance :
MR AD SHAH, ADVOCATE for the Appellant
MS REETA CHANDARANA, ADDL PUBLIC PROSECUTOR, for the Respondent
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 13/06/2016
CAV JUDGMENT
1. Appellant has been convicted under Sections 7,13(1)(d)(i)(ii) and (iii) read with Section 13(2) of Prevention of Corruption Act, 1988 by the impugned judgment dated 28.7.2000. By Such impugned judgment, Special Judge of Ahmedabad City Sessions Court has awarded sentence of 7 months rigorous imprisonment with fine of Rs.500/- and simple imprisonment of 15 days in default of payment of such fine for offence under Section 7 of the Act, whereas one year R.I. with fine of Rs.750/- and in default of payment of such fine, R.I. of one month for the offence under Sections 7,13(1)(d)(i)(ii) and (iii) read with Section 13(2) of the Act.
2. Sum and substance of the prosecution case before Special Judge, emerging from charge-sheet at Exh.4 dated 25.1.2000, is to the effect that Sureshgiri Dhanrajgiri Goswami, who is practicing Page 1 of 11 HC-NIC Page 1 of 11 Created On Tue Jun 14 03:55:01 IST 2016 R/CR.A/770/2000 CAV JUDGMENT advocate, has inquired about requisite certificate regarding registration of firm, namely 'Khodiyar Mitra Mandal' on 20.9.1996. Thereupon, it is alleged that the accused has demanded an amount of Rs.750/- towards illegal gratification and bribe and after much discussion between both of them, the accused has agreed to accept Rs.600/-. Thereupon on 21.9.1996, the complainant has to pay such amount of bribe in the office of the accused with declaration of partners of the firm. However, since the complainant does not want to pay bribe, he has lodged a complaint with ACB office, which has arranged a trap on 21.9.1996. The story and history regarding registration of complaint till actual date are stereotype and it does not require to be reproduced in detail when it is well discussed in the impugned judgment, more particularly when it does not change the consideration regarding confirmation of conviction of the appellant.
3. Thereafter on 21.11.1996, as contended by the complainant, he reached to the office of the accused with requisite papers regarding declaration and amount of bribe and again discussed with the accused regarding the amount of bribe requesting that it is too much and therefore, it is the say of the complainant that the accused has agreed to accept Rs.500/- and thereupon both had reached to tea stall outside the office where the complainant had tried to handover the amount of bribe in the form of Rs.500/- in presence of panch witness No.1 but the accused has asked him to place it in a register kept on his desk and therefore, it is alleged that the complainant has paid such amount as demanded and thereby the accused has committed offence for which he is convicted as recorded hereinabove.
4. It is now settled legal position that for confirming conviction in such case, the prosecution has to prove beyond reasonable doubt that; (1) there was prior demand of bribe or illegal gratification by the accused, for which complaint is filed before the ACB, (2) there must be demand of bribe or illegal gratification at the time of raid, (3) there Page 2 of 11 HC-NIC Page 2 of 11 Created On Tue Jun 14 03:55:01 IST 2016 R/CR.A/770/2000 CAV JUDGMENT must be proper acceptance of tained currency notes or illegal gratification by the accused and (4) possession of tained currency notes by the accused. Therefore, though all above four acts require to be proved beyond reasonable doubt for confirming conviction under the Prevention of Corruption Act, even if we consider, that in the present case, admittedly, when there is no prior demand, at least for remaining three points, there must be positive proof on record for confirming conviction.
5. For the purpose, if we scrutinize the available evidence, it becomes clear that there is no cogent and reliable evidence beyond reasonable doubt to confirm that there was prior demand so also there was demand at the time of raid and that the accused has accepted the amount which was recovered from his possession. Therefore, in absence of any such clinching ingredients, conviction cannot sustain.
6. At Exh.10, the prosecution has examined PW-1 Sureshgiri Dhanrajgiri Goswami, who is a practicing advocate for 15 years. Therefore, a better evidence is expected from him to prove guilt of the accused, more particularly when he is a complainant. Therefore, he is the only witness to prove beyond reasonable doubt the first ingredient for commission of the offence, i.e. prior demand. Unfortunately, perusal of the entire evidence makes it clear that the complainant has failed to prove beyond reasonable doubt that it was the accused who has demanded the amount and therefore, he has paid it to the accused and thereby, the accused has accepted it as illegal gratification and bribe so as to constitute the offence under the Act. Unfortunately, the witness has not only added but modified the version of the complaint in the charge framed against the accused when he deposed that while inquiring about registration of the firm and when he asked the accused that how much time it will take, the accused had conveyed him that it will take four months. Therefore, because his client wants registration certificate at the Page 3 of 11 HC-NIC Page 3 of 11 Created On Tue Jun 14 03:55:01 IST 2016 R/CR.A/770/2000 CAV JUDGMENT earliest, he on his own has conveyed the accused that the matter is urgent one and he wants it at the earliest and therefore, it is his say that the accused has conveyed him that he was to spend for Chy- Pani, i.e. he has to pay some illegal gratification. It is further deposed that the accused has conveyed that his rate is one thousand rupees but you may pay Rs.900/- and also conveyed that pay whatever you can pay right now and therefore, the complainant has paid Rs.300/- at that time and therefore, the accused has conveyed him that you should keep remaining Rs.600/- in register of my table on tomorrow with declaration of partners and that their certificate of registration would be ready. It is further stated by the witness that since he has charged Rs.1000/- for such registration and therefore, if he pays Rs.900/- to the accused, then he has to even add some amount from his pocket for the expenditure and therefore, he lodged the complaint with ACB office, where he reached at 5.00 p.m. and met Police Inspector Mr. Rathod to whom he has conveyed the story that the accused has demanded Rs.900/- but he has paid Rs.300/- and remaining Rs.600/- is yet to be paid. Thereupon, P.I. Mr. Rathod has prepared papers for raid by calling panch witnesses, etc. and instructed all of them with explanation of chemical test regarding presence of powder to be checked during raid. Thereupon, at the time of raid, i.e. on 21.9.1996, he has placed the amount of Rs.500/- in the register kept on the table of the accused and signed to raiding party which has raided the place and carried out the test to confirm the presence of tained currency notes and powder. However, surprisingly, during further examination-in-chief, now the witness has changed his version when he deposed that in fact, the accused has demanded Rs.750/- and when he has asked to reduce it, Rs.600/- was confirmed between them but, he had already given Rs.300/- and therefore, in total, he has given Rs.900/-.
7. Therefore, there is material contradiction so far as the amount of bribe is concerned because initially, the complainant says that Page 4 of 11 HC-NIC Page 4 of 11 Created On Tue Jun 14 03:55:01 IST 2016 R/CR.A/770/2000 CAV JUDGMENT Rs.1000/- was demanded, then he says that Rs.750/- is demanded, whereas so far as actual payment is concerned, if Rs.300/- is paid, then not Rs.600/- but Rs.700/- is to be paid, whereas actually Rs.500/- is paid by placing it in the register, thereby total payment comes to Rs.800/-. Whereas, the complainant says that he has paid total Rs.900/-. So, a practicing advocate for 15 years is uncertain about the amount of bribe fixed between him and the accused so also the actual payment by him, which certainly goes to show that probably, the complainant is not aware about the actual facts or as considered by the Special Judge, he is now helping the accused. Whatsoever reasons, namely if there is material contradiction in the deposition of the complainant himself and more particularly when he is practicing advocate for 15 years, his evidence cannot be relied upon, more particularly when there is no positive evidence regarding passing of tained currency note from his hands to the hands of the accused and thereby when there is absence of possession of tained notes with the accused.
8. Other documents proved by the complainant regarding firm of his client are not much material, except to believe that there was reason for the complainant to approach the office of the accused but it alone cannot be treated as clinching evidence to confirm the conviction.
9. Whereas, perusal of the complaint makes it clear that the complainant has disclosed in writing with his signature that the accused has demanded Rs.750/- only and agreed to accept Rs.600/-. Therefore, there is no story of demand of Rs.1000/- or reducing it to Rs.900/- and demand of whatever amount available at first occasion itself and thereupon payment of Rs.300/- by the complainant. Similarly, there is no disclosure in the complaint that the accused has categorically conveyed him to place the amount of Rs.600/- in the register kept on his table but there is disclosure that the accused has demanded Rs.600/-. Therefore, it becomes clear that though the Page 5 of 11 HC-NIC Page 5 of 11 Created On Tue Jun 14 03:55:01 IST 2016 R/CR.A/770/2000 CAV JUDGMENT complaint was filed when the accused has not accepted the amount, the investigating agency and the complainant have changed their versions by twisting the fact that the accused has directed the complainant to place the amount of bribe in the register. One more glaring fact is clear that if at all the complainant has agreed to pay Rs.600/- and when the currency notes of Rs.600/- were kept ready tained with anthracene powder for passing it as bribe, there was no reason for the complainant to discuss about the amount of bribe with the accused before passing on the same and then to say that the accused has agreed to accept Rs.500/- also. As per the version of the complainant, the accused has directed him to place in the register and there is no discussion but as per the complainant, the accused has demanded Rs.600/-. Therefore also, there is no scope for discussion and for not to pass on total amount of Rs.600/-. It seems that the complainant is playing smart with the proceedings but he failed to realize that his contradictory statement would damage the case because, the conviction cannot be confirmed only upon without cogent and reliable evidence beyond reasonable doubt. Thereby, if the accused is able to create reasonable doubt in the prosecution evidence then benefit of doubt needs to be extended to the accused instead of confirming the conviction.
10. PW-2 is panch witness, namely Jayesh Bipinbhai Pandey at Exh.20, who has also contradicted the story and version of the prosecution so also the complainant, whereby he could not confirm the story narrated by the complainant and the prosecuting agency regarding either prior demand or actual demand at the time of raid and he does not disclose anything regarding discussion between the accused and the complainant regarding the amount of bribe so as to reduce it Rs.600/-. On the contrary, the witness confirms that in fact, after the meeting in the office of the accused and after enjoying tea, when they reached to the chamber of the accused, the complainant has handed over declaration to the accused and the accused has Page 6 of 11 HC-NIC Page 6 of 11 Created On Tue Jun 14 03:55:01 IST 2016 R/CR.A/770/2000 CAV JUDGMENT given him registration certificate from his cupboard and thereupon they have left the office. However, being a Government servant, he added that at such time, the accused has asked to place it in the register and thereupon the complainant has placed Rs.500/- in the register keeping one note in his pocket and thereupon the complainant has signed to raiding party. Both the witnesses have confirmed that nothing was found from the possession of the accused but the register was showing positive test regarding presence of tained currency note so also presence of anthracene powder. But, unfortunately, on further examination by Additional Public Prosecutor, the witness has reconfirmed that in fact, nobody has asked further to place any amount in the register and on suggestion by Additional Public Prosecutor, the complainant has handed over tained currency note to the accused and the accused has placed it in the register. The witness deposed that it is not correct to say that the complainant has given tained currency note to the accused and that the accused has placed it in the register and even confirmed that the complainant has not placed the tained currency note in the register on instruction or say of anybody. Thereby, practically, the complainant has placed the tained currency note in the register on table on his own. Because of such U-turn by the witness, he was requested to be declared as Hostile and declared as such and thereafter, he was cross-examined by the Public Prosecutor. Now, in cross-examination, he specifically denied the allegation against the accused confirming that he has never conveyed to the investigating agency so as to record his statement that the accused has asked the complainant to place an amount of Rs.500/- in the register and therefore, the complainant has placed such currency note in the register. Overall reading of his deposition makes it clear that there are several material contradictions and probably, the witness was not aware about the actual incident at all and therefore, he is trying to depose anything twisting the facts repeatedly, when he reconfirms that even at the tea stall, there was no discussion regarding the amount of bribe and that Page 7 of 11 HC-NIC Page 7 of 11 Created On Tue Jun 14 03:55:01 IST 2016 R/CR.A/770/2000 CAV JUDGMENT the accused has never demanded bribe from the complainant during his presence. Therefore, there is no clinching evidence for demand at the time of raid. Therefore, the conviction cannot be confirmed.
11. PW-3 and PW-4 at Exh.22 and 24 are respectively Mr. Kirankumar Manubhai Rathod, P.I. of ACB, Ahmedabad City and, therefore, Investigating Officer and Mr. Hussainbhai Abdulkhan Pathan, another P.I. of ACB, who has taken over the investigation from Mr. Rathod and filed charge-sheet. Being the investigating officers, they have no option but to support the story of the prosecution case but they deposed in confirmation of the police papers and charge-sheet, now it results into material contradictions when independent witnesses, namely the complainant and panch witness have created several contradictions in their depositions with story of the prosecution.
12. Whereas, PW 5 at Exh.26 is also P.I. of ACB, namely Mr. Mahavirsinh Pravinsinh Rahul, who has simply filed charge-sheet against the accused on completion of the investigation.
13. Therefore, overall scrutiny of evidence and record makes it clear that there are several contradictions in the story and version of the prosecution witnesses regarding prior demand and demand at the time of raid and when it is clear and certain that the amount was never recovered from the accused or his cloths but it was found in the register kept on his desk and thereafter, when the panch witness admits that nobody instructed the complainant to place currency note in such register, it cannot be said that the amount was paid and thereupon accepted by the accused as illegal gratification and bribe, as alleged. Therefore, I do not see any reason or substance to convict the accused as done in the impugned judgment by the Special Judge.
14. Therefore, if we perusal the impugned judgment, it becomes clear that the Special Judge has solely relied upon the procedural part Page 8 of 11 HC-NIC Page 8 of 11 Created On Tue Jun 14 03:55:01 IST 2016 R/CR.A/770/2000 CAV JUDGMENT of the evidence that when raid is successful, then there must be commission of offence, as alleged. Thereby, the Special Judge has failed to realize that to prove the commission of the offence, as alleged, the basic ingredients, which are listed or recorded in previous part of this judgment, need to be established beyond reasonable doubt.
15. It cannot be ignored that the evidence of the complainant is trustworthy and reliable. He has introduced new theory about the demand of bribe. So far as the amount is concerned, there was no conversation with the accused at the time of handing over the requisite document in the form of declaration and accepting registration certificate as admitted by the panch witness. Scrutiny of the record confirms that placing of currency note in the register on the desk was taken place after two hours and five minutes of passing of the document as aforesaid and therefore, it is unbelievable that once registration certificate is received by the advocate, he will go after two hours to pay the amount of bribe to the accused and that too simply for placing it in the register. The evidence also confirms that when the complainant and the panch witness reached to the office of the accused, in fact the accused was out for recess and therefore, by all probabilities, the amount of bribe was placed in absence of the accused in the register kept on his table. Record also shows that even the complainant has also some grievance against the investigating officer when he had made application that the investigation is not carried out properly. Panch witness has no idea about the use of ultra-violet lamp and characteristic of anthracene powder. The prosecution has failed to prove the contradictions in proper perspective while examining the investigating officer and thereby to confirm that the hostile witnesses are not telling truth. It cannot be ignored that the panch witness has categorically admitted that the accused had not said to put Rs.500/- in the register and that the said amount was not placed in the register at the instance of Page 9 of 11 HC-NIC Page 9 of 11 Created On Tue Jun 14 03:55:01 IST 2016 R/CR.A/770/2000 CAV JUDGMENT anyone, which goes to show that it was the voluntary act of the complainant to put note in the register. Therefore, there is no clear and trustworthy evidence about the demand and acceptance and it seems that the amount was placed in the register when the accused came out of his office. Therefore, this is a case of planting trained currency note and thus if the accused has created some doubt in the prosecution case, then it is for the prosecution to prove their case by cogent and reliable evidence beyond reasonable doubt.
16. The law is already well settled that while appreciating the evidence, there cannot be presumption against the accused in absence of specific positive evidence when otherwise such evidence is available and, therefore, if independent witness like complainant and panch witness are either not supporting the prosecution case or when their deposition is proved to be non reliable, then conviction cannot be confirmed which would otherwise result into stigma in the life of the accused, who are otherwise government servants. Though offenders under the Prevention of Corruption Act needs to be convicted and punished for accepting bribe, it cannot be said that it is to be done in casual manner and in absence of cogent and reliable evidence beyond reasonable doubt.
17. The appellant is relying upon following judgments:
(1) 1980 Cr.L.J. 1096 Gulam Moh. vs. State of Gujarat (2) 1982 Cr.L.J. 1314 Bharatkumar J. Mehta vs. State of Gujarat (3) 1999 (1) GLH 947 State of Gujarat vs. Jaugarshil (4) AIR 1977 SC 170 Ravindrakumar Dey vs. State of Orissa (5) AIR 2006 SC 836 T. Subrahmaniam vs. State of Tamil Nadu] (6) 2006 (1) GLH 567 State of Gujarat vs. Gunvantlal H. Shah (7) 2004 SCC (Criminal) 1130 Punjabro vs. State of Maharashtra (8) AIR 1977 SCC 666 Trilockchand Jain vs. State of Delhi (9) 1988 Cr.L.J. (SC) page 152 (10) 2015 (1) Supreme 8 (11) 2015 (10) SCC 152
18. For the purpose reference to the case of B. Jayraj vs. State of A. P. reported in 2014 (2) GLH 149 and case of M. R. Purushotham vs. State of Karnataka reported in 2015 (3) SCC Page 10 of 11 HC-NIC Page 10 of 11 Created On Tue Jun 14 03:55:01 IST 2016 R/CR.A/770/2000 CAV JUDGMENT 247 are material. In both the above referred cases, the Honourable Supreme Court has reconfirmed that mere possession of recovery of currency notes from the accused without proof of admission, will not bring offence under Section 7 of the Prevention of the Corruption Act and that presumption cannot be drawn for all the offences in absence of any proof of demand of illegal gratification and, thereby the Honourable Supreme Court has set aside the conviction of the accused, which was confirmed by the High Court. The Honourable Supreme Court has also confirmed that when complainant himself disowned, what he has stated in his initial complaint and when there is no evidence that accused has made any demand, evidence regarding mere possession of currency notes would not be sufficient to attract conviction and, therefore, conviction was set aside.
19. As aforesaid, none of the four ingredients are proved in the present case to confirm that appellant has committed an offence as alleged in the charge- sheet.
20. In view of such facts and circumstances, the impugned order cannot sustain. Therefore, appeal needs to be allowed by quashing and set aside the judgment and order of convicting the appellant. Therefore, appeal is allowed. The appellant is acquitted from the charges levelled against him. Bail Bond shall stand cancelled. Records and Proceedings be sent back to the concerned trial Court forthwith.
Sd/-
(S.G. SHAH, J.) Omkar Page 11 of 11 HC-NIC Page 11 of 11 Created On Tue Jun 14 03:55:01 IST 2016