Gujarat High Court
Babulal Hiralal Upadhyay vs State Of ... on 28 March, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/1037/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1037 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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BABULAL HIRALAL UPADHYAY....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR UMESH A TRIVEDI, ADVOCATE for the Appellant(s)
MS MONALI BHATT, APP for the Opponent(s)/Respondent(s)
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 28/03/2017
ORAL JUDGMENT
1. The present appeal is preferred by the Page 1 of 20 HC-NIC Page 1 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT appellant - original accused against the judgment and order dated 21.6.2004 passed by learned Special Judge and Additional Sessions Judge, 6th Fast Track Court, Veraval in Special Case No.25 of 1999 (05/99).
2. The short facts giving rise to the present case are that the appellant accused was serving as Talati-cum-Mantri in Dandi Gram Panchayat. The complainant approached the appellant accused for making succession entry for which the Mamlatdar has passed the order for making succession entry. It is alleged that therefore the appellant accused demanded Rs.2000/- from the complainant. It is alleged that in pursuance of the said demand, the complainant gave the said amount towards illegal gratification and, therefore, the complainant lodged the complaint against the appellant accused.
3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused persons. 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.
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3.2 At the end of the trial, after recording
the statements of the accused under section 313 of the Criminal Procedure Code, 1973 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 appellants have preferred the aforesaid Criminal Appeals before this Court.
5. By way of preferring the present appeal, the appellant - original accused 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.Umesh Trivedi, learned advocate for the appellant - original accused has taken this Court through the entire judgment and record and argued that very contents of the complaint at Exh.44 falsified in view of entry No.371 mutated in the name of Benaben and Lakhiben in pursuance of their application dated 6.11.1998 and the same entry came to be effected on 16.11.1998 and, Page 3 of 20 HC-NIC Page 3 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT therefore, names of the sister and mother of the complainant were already mutated prior to lodging the complaint for about 22 days prior thereto. He submitted that in the complaint at Exh.44, the complainant repeatedly made assertion that the appellant accused demanded Rs.2000/- as an amount of illegal gratification for mutation the names in the revenue record and if such amount is not paid, then the names would not be entered in the revenue record, however, Exh.59 at page 101 of the paper book clearly reveals that names were already mutated with effect from 16.11.1998 and therefore entire contents of the complaint stand falsified and the act for which the amount of illegal gratification alleged to have been demanded falls on ground. He submitted that on conjoint reading of the depositions of the complainant as well as panch No.1, no clear utterance is coming from the mouth of the accused as regards to demand, on the contrary, the complainant voluntarily handed over the amount of Rs.2000/- to the accused for which the accused raised defence that the said amount was handed over to him in order to pay outstanding amount of tax for which the notice at Exh.64 dated 2.12.1998 came to be served upon the present complainant and therefore also, in absence of clear demand, the amount so handed over is towards clearance of unpaid tax to the Gram Panchayat. He submitted that the complainant was knowing full well that names of his sister and Page 4 of 20 HC-NIC Page 4 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT mother were mutated for which the notice under section 135-D of the Gujarat Land Revenue Code was issued on 16.11.1998 and handed over to the complainant to serve the same to the concerned person, but he refused to accept it. He submitted that thereafter 22 days later from there, the complainant lodged the complaint making false allegations as if the names were not mutated in the revenue record. He submitted that in fact, the complainant himself has admitted that once there was recommendation from the sitting MLA as well as from the concerned Mamlatdar in his favour, there was no necessity to initiate any proceedings against the accused and hence, without verifying the record with regard to his application for mutating the names of his sister and mother, the complainant straightaway filed the complaint which itself is suggestive of the motive on the part of the complainant to wrongly implicate the appellant accused in the crime in question. He, therefore, submitted that the prosecution has miserably failed to establish vital ingredients i.e. demand, acceptance and recovery and that the depositions of the complainant as well as panch No.1 are not satisfactory so far as the recovery of tainted currency notes are concerned. Lastly, Mr.Trivedi requested this Court to allow the present appeal.
7. On the other-hand, Ms.Monali Bhatt, learned APP has supported the judgment rendered Page 5 of 20 HC-NIC Page 5 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT by learned trial Court so far as it relates to conviction of the appellant - original accused. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. She further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and, therefore, punishment inflicted upon the accused does not call for any interference. She submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law.
8. This Court has heard Mr.Umesh Trivedi, learned advocate for the appellant - accused and Ms.Monali Bhatt, learned APP for the 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 wanted to mutate the names of his sister and mother in the revenue record as his father expired long back and, therefore, he made the application on 6.11.1998 and thereafter he met the accused for carrying out necessary formalities for mutating their names in the revenue, at that time, the accused demanded Page 6 of 20 HC-NIC Page 6 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT Rs.2000/- as illegal gratification for the same. As the complainant was not willing to pay the said amount, he lodged the complaint. The trap was carried out on 9.12.1998, at that time, the accused was caught red handed along with tainted currency notes and thereby the appellant accused committed the offence, as alleged.
10. PW 1 - Abhabhai Merabhai Majithiya has been examined at Exh.42. The witness has deposed that he gave the application for mutating the names of his sister and mother in the revenue record and thereafter he met the accused who demanded Rs.2000/- as illegal gratification disclosing that there was many hindrances in mutating the names and the accused directed him to hand over the amount of illegal gratification of Rs.2000/- either at his office or at his residence situated at Vidyanagar - Una. The witness has deposed that he lodged the complaint and on the day of trap, he was accompanied along with panch No.1 and they reached to the house of the accused, at that time, he was sleeping and hence, the wife of the accused called him. The witness has deposed that thereafter the accused as well as the complainant and panch No.1 took their seats on the otla, at that time, the witness has told that he had come to mutate the names of his sister and mother and requested to do for the same and thereafter, he handed over Rs.2000/- to the accused, which was accepted by Page 7 of 20 HC-NIC Page 7 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT him by his hand, counted and told the complainant that this is Rs.2000/-. The witness has deposed that thereafter he gave prearranged signal and hence the members of the raiding party arrived there and the tainted currency notes were recovered from the hand of the accused. In the cross examination, the witness has admitted that sitting MLA Punjabhai is his relative and he was requested to do needful and in response thereto, said Punjabhai had also recommended the Mamlatdar concerned for entering the names in the revenue record. The witness has admitted that if the names would have been entered in pursuance of the said recommendation, nothing remains to be done in the matter and though the said sitting MLA as well as the Mamlatdar recommended to the accused, the accused did not mutate the names and thereafter without inquiring with regard to his application for mutating the names, straightaway, the complainant lodged the complaint. The witness has admitted that he received the demand notice dated 2.12.1998 demanding outstanding amount of tax of Rs.1895/- from the accused.
11. PW 2 - Amrabhai Bhanabhai Manat has been examined at Exh.46. The witness has deposed that at the relevant time, he was serving in District Employment Exchange office, Junagadh and he was requisitioned as panch No.1. The witness has deposed that he was made to understand regarding the complaint, laying of trap as well as test of Page 8 of 20 HC-NIC Page 8 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT anthracene powder on the currency notes to be used in the trap in question. The witness has deposed that on the day of trap, he proceeded along with the complainant to the house of the accused where the accused was found present in his house, at that time, the complainant told him to enter the names of his sister and mother in the revenue record and also told that he has brought Rs.2000/-. The witness has deposed that at that time, the accused told that there are many objections and if the work would not be done, he will return the amount and thereafter again the complainant told that he has brought Rs.2000/- and insisted to accept and therefore, the accused accepted the said amount. The witness has deposed that thereafter the complainant gave prearranged signal and therefore, other members of raiding party arrived there and the tainted currency notes came to be recovered from the hand of the accused. The witness has deposed that thereafter test of ultra violate lamp was found positive on the hand of the accused. In the cross examination, the witness has admitted that he was unaware as to whether the said amount was towards illegal gratification or not and he had no idea as regards to previous talk between the accused and the complainant. The witness has admitted that while the accused was counting the amount, at that time, the members of the raiding party arrived at the place of incident.
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12. PW 3 - Mahendrarai Jayashanker Dave has been examined at Exh.50. The witness has deposed as to how he has recorded the complaint, arrangement of trap and carrying out the actual trap. In the cross examination, the witness has admitted that during the course of investigation as well as recording the complaint, he did not receive any order from the Mamlatdar directing to mutate the names of the sister and mother of the complainant. The witness has admitted that he did not inquire as regards to the application made by the complainant for mutating the names of his sister and mother in the revenue record and even he did not inquire as regards to any mutation entry in the revenue record.
13. PW 4 - Vijaykumar Tuljaram Navle has been examined at Exh.53. The witness has deposed that he recorded the statements of the complainant as well as others and filed the chargesheet. In the cross examination, the witness has admitted that he did not requisition any copy of the revenue record or obtain any information as regards to revenue entry as demanded by the complainant. The witness has clearly admitted that he did not inquire into the matter that in pursuance of the application made by the mother of the complainant to the accused for mutating their names, but he inquired as to what actions were taken by the accused upon such application. Taking into consideration the Page 10 of 20 HC-NIC Page 10 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT evidence of the Investigating Officer, it can be noticed that this is a serious lapse on the part of the Investigating Officer in the present case not to inquire into the fact whether such entry has been mutated or not and / or that the complaint in question is genuine or not. These basic facts go to the root of the case. However, since around two decades have elapsed, this Court is not inclined to pass any order in respect of serious lapse on the part of the Investigating Officer in the matter.
14. The defence has also examined the accused as well as one another witness whose evidence is not relevant for the purpose of disposal of this appeal.
15. DW 1 - Babulal Hiralal Upadhyay has been examined at Exh.67 who has deposed that he was serving as Talati-cum-Mantri at village Dandi at the relevant time and he was also holding the charge of other village. He has deposed that the Sarpanch of the village was the wife of Pujabhai Ranabhai who was the uncle of the complainant and that the application for mutating the names of the sister and mother of the complainant came to be received by him through the Mamlatdar which is at Exh.30 and the similar application was also addressed to him which is at Exh.58. He deposed that in pursuance of both the said applications, entry came to be mutated which is at Exh.59 dated Page 11 of 20 HC-NIC Page 11 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT 16.11.1998 and thereafter, he issued the notice to the concerned party under section 135-D of the Gujarat Land Revenue Code which was handed over to the complainant which he refused to receive it and therefore, he carried out the panchnama which is at Exh.61. He also deposed that he had served the notice for unpaid tax to the complainant which is at Exh.64 wherein outstanding amount was Rs.1895/- and thereafter the complainant visited him and the amount to be paid towards tax was figured at Rs.1994=30 paise i.e. nearly Rs.2000/- and therefore the amount of outstanding tax to the extent of Rs.2000/- was to be paid to the panchayat and the complainant was directed to pay the said amount, but instead of paying the said amount, the complainant lodged the false complaint against him.
16. In view of the aforesaid nature of evidence, the important question arises for determination of this Court, as to whether the prosecution has established the three ingredients i.e. demand, acceptance and recovery of illegal gratification or not ?
17. 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 Sections 7 and 13(1)(d) of the Act ruled that the Page 12 of 20 HC-NIC Page 12 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT 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.
18. 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.
19. 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 demand for illegal gratification, the use of Page 13 of 20 HC-NIC Page 13 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT 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.
20. 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.
21. In the backdrop of the aforesaid factual Page 14 of 20 HC-NIC Page 14 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT position, this Court has minutely gone through the impugned judgment and order as well as the depositions of the witnesses in light of the rival submissions made by learned advocates for both the sides. In corruption cases, as laid down in the series of judgments by the Honourable Apex Court as well as by this Court, three vital ingredients are required to be established by the prosecution beyond reasonable doubt in order to prove the offence as alleged. Recently, the Honourable Apex Court has made it clear that the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (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. Precisely, failure of the prosecution to prove demand for illegal gratification would be fatal and mere recovery of amount from the person of the accused of the offence under sections 7 or 13 of the Act would not entail his conviction thereunder. In view of the aforesaid principle laid down by the Honourable Apex Court, so far as present case is concerned, over and above the aforesaid oral evidence, documentary evidence is also required to be referred as the complaint produced at Exh.44 inter alia discloses that the Page 15 of 20 HC-NIC Page 15 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT complainant lodged the complaint on 9.12.1998 stating that for about month prior to the date of lodging the complaint, the complainant approached the appellant accused for entering into the names of his sister and mother in the revenue record, at that time, the accused told him that he had received the order from the Mamlatdar and therefore, if the complainant pays Rs.2000/- to him, their names would be entered in the revenue record. At that time, the complainant told that he is not having Rs.2000/- with him and he also tried to scale down the amount but the accused did not agree and directed the complainant to pay Rs.2000/- as the amount of illegal gratification but as the complainant was not willing to pay the amount of illegal gratification, he lodged the complaint. Exh.58 is the application addressed to the accused by the mother of the complainant on 6.11.1998 for entering her name as well as the name of her daughter in the revenue record of Survey Nos.40 and 41 which came to be received by the accused on 13.11.1998 and in pursuance thereof, entry came to be effected mutating the names vide entry No.371 dated 16.11.1998 at Exh.59.
22. On overall analysis of the recital revealing from the complaint, it can be noticed that the appellant accused was not ready to mutate the names of the sister and mother of the complainant unless he would pay Rs.2000/- as Page 16 of 20 HC-NIC Page 16 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT illegal gratification to the accused. Further, it is also revealing that till the complainant would pay such amount, no such entry mutating their names would be entered in the revenue record in pursuance of the application addressed by the mother of the complainant dated 6.11.1998. This is the basic foundation of the complaint. However, the evidence on record, more particularly, Exh.59 clearly discloses that name of the applicant - Benaben as well as Lakhiben were already mutated with effect from 16.11.1998 vide entry No.371 in the revenue record of village Dandi, Taluka Una, District Junagadh and therefore, the grievance raised by the complainant as regards to demand of illegal gratification for not entering the names of his sister and mother in the revenue record no longer exists. On conjoint reading of Exh.44 as well as Exhs.58 and 59 on record, it clearly establish that in pursuance of the application dated 6.11.1998, names were already mutated with effect from 16.11.1998 and therefore, recital and allegations made in the complaint at Exh.44 on 9.12.1998 are contrary to the revenue record.
23. So far as the result of trap is concerned, there is crucial evidence of the complainant as well as panch No.1 pertaining to the demand and acceptance. The complainant in his deposition has deposed that on reaching to the house of the appellant accused, they took seat Page 17 of 20 HC-NIC Page 17 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT over the otla and thereafter the complainant only said as to why the accused is not entering the names of his sister and mother in the revenue record and requested to do the same and thereafter the complainant handed over Rs.2000/- which was accepted by the accused by his hand and while counting the same, the members of the raiding party arrived there. Almost similar version is given by PW 2 who is shadow witness. If we may evaluate the evidence of both the aforesaid witnesses coupled with the notice issued by the accused dated 2.12.1998 to the complainant demanding unpaid tax of Rs.1895/- at Exh.64, it clearly reveals that the aforesaid amount so handed over may also be counted towards unpaid tax as at the time of handing over the aforesaid amount, no utterance is coming out from the accused as regards to any demand of illegal gratification. Similarly, nothing is forthcoming from the mouth of the complainant as regards to payment that he is making the same towards the amount of illegal gratification. The notice calling upon the complainant to pay unpaid tax to the extent almost near to the amount of Rs.2000/- is disclosing the date 2.12.1998, whereas the complaint was lodged on 9.12.1998 and the trap was also carried out on 9.12.1998. In the facts and circumstances of the present case, it appears that neither the complainant is making clear that he has paid the aforesaid amount towards illegal gratification nor any demand is came to be made Page 18 of 20 HC-NIC Page 18 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT by the accused as regards to any amount of illegal gratification as agreed and therefore, in absence of any specification thereof, it would be very difficult to presume that the aforesaid amount so handed over by the complainant to the accused was towards the amount of illegal gratification.
24. Even otherwise, taking into consideration the other material on record, this Court is inclined to believe that the aforesaid amount so handed over to the accused by the complainant was towards clearing unpaid tax rather than extending the payment towards the amount of illegal gratification. In this view of the matter, when the very foundation of the complaint itself is shaken as the entry was made mutating the names of the sister and mother of the complainant for about 22 days prior to lodging the complaint which was within the knowledge of the complainant as he refused to accept the notice under section 135-D of the Gujarat Land Revenue Code for the purpose of serving the same to the concerned persons and the fact that he wrongly narrated before the ACB official that names of his sister and mother have not been entered by the accused and on that ground also, this Court is not inclined to presume that the aforesaid amount was handed over to the accused being the amount of illegal gratification. Therefore, the prosecution has Page 19 of 20 HC-NIC Page 19 of 20 Created On Tue Aug 15 12:35:56 IST 2017 R/CR.A/1037/2004 JUDGMENT miserably failed to establish the vital ingredients i.e. demand, acceptance and recovery and therefore, the impugned judgment and order of learned trial Court recording conviction of the appellant accused is not in accordance with the evidence available on record and it clearly appears that learned trial Court has not appreciated the contemporaneous documentary evidence on record in its true perspective and based his findings upon surmises and conjectures which have no place in the eye of law.
25. In the result, the appeal succeeds and the same is allowed. The impugned judgment and order dated 21.6.2004 passed by learned Special Judge and Additional Sessions Judge, 6th Fast Track Court, Veraval in Special Case No.25 of 1999 (05/99) is quashed and set aside. The appellant - accused is acquitted of the charges levelled against him. Fine, if any, paid by him be refunded to him. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith.
(R.P.DHOLARIA,J.) pathan Page 20 of 20 HC-NIC Page 20 of 20 Created On Tue Aug 15 12:35:56 IST 2017