Gujarat High Court
Chandulal @ Chandrakant Chhaganlal ... vs State Of Gujarat on 9 April, 2018
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/1355/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1355 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
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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CHANDULAL @ CHANDRAKANT CHHAGANLAL DUBAL
Versus
STATE OF GUJARAT
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Appearance:
MS VIDITA D JAYSWAL(6730) for the PETITIONER(s) No. 1
MR. KP RAWAL, ADDITIONAL PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 09/04/2018
ORAL JUDGMENT
1. The present Criminal Appeal No.1355 of 2006 is preferred by the appellant-accused against the judgment dated 12.07.2006 Page 1 of 25 R/CR.A/1355/2006 JUDGMENT delivered by the learned Special Judge, Fast Track Court No.2, Surendranagar in Special Case No.3 of 1999 whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 1 year with fine of Rs.2,500/- and, in default, to undergo rigorous imprisonment for 3 months under Section 7 of the Prevention of Corruption Act ('the Act' for short). The appellant has also been convicted and sentenced to undergo rigorous imprisonment for 2 years with fine of Rs.10,000/-, and in default, to undergo rigorous imprisonment for 6 months under Section 13(2) read with Section 13(1)(d) of the Act. Both the sentences were ordered to run concurrently.
2. The short facts giving rise to the present case are that the complainant was having an ancestral property in the name of his ancestors and he was in need of sketch as well as printed maps, so he met the accused who at Page 2 of 25 R/CR.A/1355/2006 JUDGMENT the relevant time was serving as City Survey Superintendent in the office at Vadhvan. At that time, the accused demanded Rs.250/- as the amount of illegal gratification and Rs.50/- was paid and the remainder of Rs.200/- was to be paid at the time of delivering the copies. As he was not willing to pay the said amount of illegal gratification to the accused, he lodged a complaint and in pursuance of the said complaint, a trap came to be laid by the officers of Anti Corruption Bureau on 19.02.1999 and he was caught red handed along with tainted currency notes and thereby committed offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act.
3.In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge sheet against the accused. The charge was framed against the accused. The accused pleaded not Page 3 of 25 R/CR.A/1355/2006 JUDGMENT guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined several 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 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 appellant has preferred the aforesaid Criminal Appeal before this Court.
5. By way of preferring the present appeal, the appellant-original accused has mainly contended that the learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. Page 4 of 25
R/CR.A/1355/2006 JUDGMENT It is further contended that the 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. Ms. Vidita D Jayswal, learned advocate for the appellant has taken this Court through the entire records and proceedings and read over the evidence of material witnesses and argued that the complaint at Exhibit-38 itself is not disclosing any sort of demand of illegal gratification but the same is revealing that the amount was asked for the charges towards copying charges. Though, in the later portion, the complainant narrated that he was not desirous of giving any sort of bribe and therefore, he lodged a complaint. The same fact is also revealing from his deposition and on conjoint reading with the deposition of shadow panch who accompanied along with Page 5 of 25 R/CR.A/1355/2006 JUDGMENT complainant at the time of trap, makes it clear that the aforesaid amount came to be demanded by the accused towards the copying charges and he did accept it and after accepting the same he had also taken out the receipt book for issuing receipt which also came to be seized at the time of trap and before he could issue the receipt for accepting the amount towards the copying charges, he was caught red handed along with tainted currency notes and consequently therefore, no case is made out. Therefore, the prosecution has miserably failed to establish that the said amount was demanded and accepted towards illegal gratification. She has further argued that the accused while explaining the evidence against him, in his statement under Section 313 of Code of Criminal Procedure, clearly explained that on the day of trap, accused visited his office and handed over two applications for getting copies of sketch as well as printed maps. Page 6 of 25
R/CR.A/1355/2006 JUDGMENT However, at that time, he was busy with preparation of the said printed maps and sketch and thereafter upon getting printed
maps and sketches ready, the complainant and one another person accompanied with him visited there and he handed over Rs.100/- towards the copying charges. Thereafter, in order to issue the receipt, he took out the receipt book from the cupboard and before he could issue the receipt for the money he accepted, the officials of Anti Corruption Bureau arrived there and caught him red handed, and therefore, he could not issue receipt as such. Therefore, the said fact he mentioned in his explanation is clearly getting corroboration from the mouth of shadow panch who accompanied at the time of complainant, more particularly in para-4 at page No.333 of paper book.
7. Ms. Vidita D Jayswal, learned advocate for the appellant has further argued that the complainant is habitual of making complaints Page 7 of 25 R/CR.A/1355/2006 JUDGMENT and his family background is not out of doubt as admitted by him as he was previously involved in several Chapter cases as well as he also came to be involved in several gambling cases arising from the Prevention of Gambling Act and he was also involved in other illegal activities as well as in political activities, and therefore, keeping in mind his evidence and his overall conduct, his testimony may not be relied upon as such.
8. On the other hand, Mr. KP Rawal, learned APP supported the judgment of conviction recorded by the learned Special Judge and he has further argued that the learned Special Judge while appreciating the evidence on record has rightly placed reliance upon the evidence of complainant and his evidence is fully getting corroboration from the evidence of shadow panch and the learned trial Court has recorded elaborate reasonings while recording the findings for the determination and the judgment is based upon the material evidence Page 8 of 25 R/CR.A/1355/2006 JUDGMENT available on record and this Court may not interfere with the well considered judgment as such.
9.This court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence available on record in the nature of paper book. As per the prosecution version, the complainant was having an ancestral property in the name of his ancestors and he was in need of sketch as well as printed maps. So he met the accused who at the relevant time was serving as City Survey Superintendent in the office at Vadhvan. At that time, the accused demanded Rs.250/- as the amount of illegal gratification and Rs.50/- was paid and the remainder of Rs.200/- was to be paid at the time of delivering the copies. As he was not willing to pay the said amount of illegal gratification to the accused, he lodged a complaint and in pursuance of the said Page 9 of 25 R/CR.A/1355/2006 JUDGMENT complaint, a trap came to be laid by the officers of Anti Corruption Bureau on 19.02.1999 and he was caught red handed along with tainted currency notes and thereby committed offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act.
10. P.W.-1-Amrutlal Hirjibhai Patel, deposed that he had ancestral property at Halvad, District Surendranagar in the name of his ancestors. He was in need of sketch as well as printed maps, so he approached the accused, at that time, he asked the accused as to what would be the copying charges to which the accused told that he would have to pay Rs.250/- and at that time, complainant told him whether he is demanding the said amount as bribe, to which the accused replied in affirmative and thereafter he handed over Rs.50/- and the remainder amount of Rs.200/- was to paid on 19.02.1999 when he would visit for collecting the copies. Thereafter, he visited the office Page 10 of 25 R/CR.A/1355/2006 JUDGMENT of Anti Corruption Bureau and lodged a complaint and in pursuance of which, a trap was laid on 19.02.1999, at that time, he was accompanied with shadow panch Govindbhai Naralbhai Khambla. When they visited the office of accused, the accused was found absent and thereafter they waited for sometime and thereafter the accused arrived and accused told him that the printed maps and sketch are ready. At that time, the complainant told him that he had brought the remaining amount of Rs.200/- and handed over to the accused which the accused accepted and placed over the table and thereafter he took out the receipt book and thereafter complainant went out for flagging the signal, due to which other members of raiding party arrived there and Rs.200/- came to be recovered which was lying over the book. In the cross examination, the witness has admitted that accused never demanded any amount of illegal gratification when he visited prior to 19.02.1999. The Page 11 of 25 R/CR.A/1355/2006 JUDGMENT witness also admitted that on 19.02.1999 he handed over two applications for getting sketches as well as printed maps. Further, the witness also admitted that he had also filed such other complaints against the other government officials wherein the accused came to be acquitted. The witness also admitted that the cases were filed against him for the commission of offences under the provisions of Prevention of Gambling Act and also in Chapter cases. Further he also admitted that while he met the accused, at that time, accused asked for Rs.250/- as the copying charges for which he did not inquire in any other office as regards to the charges for copying. The witness also admitted that he had not mentioned in the complaint that the accused was demanding the amount more than the charges leviable for copying printed maps and sketches.
11. P.W.-2-Govindbhai Naralbhai Khambla, shadow panch, at the relevant time, was serving as Page 12 of 25 R/CR.A/1355/2006 JUDGMENT Senior Clerk in the office of R & B. He deposed that he was requisitioned as shadow panch. He was apprised as regards to the procedure to be adopted during the course of trap. Further, he was directed to remain present along with complainant during the course of trap and to hear the conversation between complainant and accused and view the incident. Accordingly, on the day of trap, he accompanied with the complainant, at that time, the accused was found absent in his office. Though, they waited for some time and thereafter, accused arrived and told the complainant that his printed maps and sketches are ready. At that time, the complainant told the accused that he had brought Rs.200/- as asked by him and thereafter the accused told him to pay Rs.200/- towards remuneration, which he handed over and thereafter, accused kept the money over the table and over which the accused placed the receipt book and thereafter the complainant flagged signal, due Page 13 of 25 R/CR.A/1355/2006 JUDGMENT to which other members of raiding party arrived there. At that time, the accused told the officials of ACB that he had accepted the money towards the copying charges, thereafter, a detailed search and seizure procedure was carried out and during the course of search and seizure, even the two applications handed over by the complainant to the accused along with receipt book, two copies of printed maps as well as two copies of sketches were came to be seized. The said panch in his cross- examination, more particularly in para-4, admitted that the accused took out the receipt book from the cupboard before which he did accept the money from the complainant and receipt book was placed over the money and before he could issue the receipt to the complainant, the complainant left the room and flagged signal to the members of raiding party, due to which accused could not issue the receipt. Further, he also admitted that the accused explained this fact to the Page 14 of 25 R/CR.A/1355/2006 JUDGMENT Inspector Mr. Mahida that he did accept the money towards the copying charges. He also admitted that the said currency notes were kept in folded condition over the table.
12. The prosecution also examined P.W.-3- Ashoksinh Dilipsinh Zala, P.W.-5-Mahendrarai Jaishankar Dave and P.W.-6-Rustombhai Amirbhai Belim, the police officials who laid the trap and carried out the investigation. In their depositions they have narrated the details as regards to the trap laying procedure as well as deposed that after the conclusion of investigation, charge-sheet was filed.
13. P.W.-4-Valsinhbhai Gangjibhai Bhabor, is examined in order to prove the sanction to prosecute the accused granted by him.
14. This court has gone through the impugned judgment as well as the complaint at Exhibit-
38. On going through the complaint itself at Exhibit-38, the complaint came to be recorded in a plain paper by the officials and on going Page 15 of 25 R/CR.A/1355/2006 JUDGMENT through it, nothing is clearly revealing or spelling out as to whether the accused had demanded any amount of illegal gratification or as to whether the demand was raised for copying charges. Though, in the last portion of the complaint, it is being mentioned that the amount was towards the bribe. Precisely, on overall appreciation of the complaint itself, nothing in clear and in unequivocal terms emerges out that there was any sort of demand of illegal gratification from the complainant by the accused.
15. Similarly, on going through the evidence of complainant, his deposition is not clearly revealing as to whether the demand and acceptance of Rs.50/- came to be made on 09.02.1999 and thereafter, on the day of trap, the acceptance of Rs.200/- was either towards the demand of illegal gratification or towards the copying charges for preparation of two sets of printed maps and sketches. Page 16 of 25
R/CR.A/1355/2006 JUDGMENT
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 vital 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 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.
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R/CR.A/1355/2006 JUDGMENT
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.Jayaraj (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 Page 18 of 25 R/CR.A/1355/2006 JUDGMENT 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.
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R/CR.A/1355/2006 JUDGMENT 20. In the backdrop of the aforesaid factual
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 the learned advocates for both the sides. In corruption cases, as laid down in the series of the 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. On overall appreciation of evidence, it is seen that in cross-examination the complainant has tried to improve upon the factual scenario in order to bring the aspect of demand of illegal gratification which was clearly missing in the complaint. So his overall deposition suffers from material contradictions as well as material improvements as regards to constitution of the offences punishable under the provisions of the Act. Even the crucial conversation at the Page 20 of 25 R/CR.A/1355/2006 JUDGMENT time of trap also clearly indicates that the accused apprised him that his two sets of maps and sketches are ready for delivery to which the complainant asked he had brought outstanding amount of Rs.200/-. That is also not clearly spelling out that the accused had made any instant demand at the time of trap. In his cross-examination, the complainant admitted that he was involved in the offences punishable under the provisions of Prevention of Gambling Act and he was also involved in Chapter cases and he had also lodged complaint against other officials under the provisions of the Act where such persons came to be acquitted as such. The shadow panch, more particularly in para-4 at page No.333, clearly and categorically admitted that the accused after accepting the aforesaid amount was taking out the receipt book from the cupboard and thereafter, placed the money over the table and also placed the receipt book over the money. At that time, accused went outside Page 21 of 25 R/CR.A/1355/2006 JUDGMENT and flagged signal, due to which other members of raiding party arrived there and before he could issue the receipt for the amount of copying charges, he was caught by the officials of Anti Corruption Bureau, and the accused also at that time, explained that he accepted the said amount towards lawful fees/charges leviable for issuance of two sets of maps and sketches as such.
21. This court has also noticed that at the time of recording further statement under Section 313 of Code of Criminal Procedure, the accused clearly explained that he accepted Rs.200/- towards copying charges for preparation of two sets of printed maps as well as sketches and before he could issue the receipt, he was caught by the officials of Anti Corruption Bureau and he did explain to them that he accepted the aforesaid amount towards the fees for copying charges. Unfortunately, as deposed by the shadow panch as well as explanation rendered by the accused that, at the time of Page 22 of 25 R/CR.A/1355/2006 JUDGMENT trap, P.I., Mr. Mahida was apprised that the said money he did accept was towards the copying charges, though, the prosecution has not examined the said trapping officer Mr. Mahida as prosecution witness.
22. On overall analysis of evidence available on record, the complaint itself is vague and not clearly spelling out so as to constitute the offences as envisaged under the provisions of the Act and even the evidence of complainant is not out of doubt and it also suffers from major contradictions as well as improvements. During the course of trial, the conduct of the complainant and family background does not inspire this Court to rely upon his evidence as such. On conjoint reading of evidence of complainant and the evidence of shadow panch, it is clearly in conformity with the explanation rendered by the accused at the time of trap to the trapping officer Mr. Mahida that he did accept the said money towards copying charges. Consequently Page 23 of 25 R/CR.A/1355/2006 JUDGMENT therefore, the prosecution miserably failed to establish that the accused had ever demanded any amount of illegal gratification and accepted the same.
23. For the reasons recorded above, the prosecution miserably failed to establish the crucial aspect like demand and acceptance and the judgment of learned Special Judge is not sustainable at law as the reasons based upon it are not based on the evidence available on record. Hence, for the reasons recorded above, the appeal deserves to be allowed.
24. In the result, Criminal Appeal No.1355 of 2006 preferred by the accused is allowed and the judgment of conviction and sentence passed by learned Special Judge, Fast Tract Court No.2, Surendranagar in Special Case No.3 of 1999 dated 12.07.2006 is quashed and set aside. The appellant - accused is acquitted of the charges levelled against him. Records and proceedings, if any, be sent back to the trial Page 24 of 25 R/CR.A/1355/2006 JUDGMENT Court concerned forthwith. Fine, if any, paid be refunded forthwith.
(R.P.DHOLARIA, J) SAURABH R. CHAUHAN Page 25 of 25