Gujarat High Court
Kishorbhai Meghjibhai Gohil vs State Of ... on 13 April, 2015
Author: K.J. Thaker
Bench: K.J.Thaker
R/CR.A/713/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 713 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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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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KISHORBHAI MEGHJIBHAI GOHIL....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR KB ANANDJIWALA, SENIOR ADVOCATE for the Appellant(s) No. 1
MS MAITHILI MEHTA for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 13/04/2015
ORAL JUDGMENT
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R/CR.A/713/2001 JUDGMENT 1. The present appellant has preferred this
appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 30.7.2001 passed by the learned Special Judge, Valsad at Navsari in Special Case No. 8/1993, whereby, the learned Judge has convicted the appellant under sec. 7 of the Prevention of Corruption Act and sentenced to undergo six months R/I and to pay a fine of Rs. 1000/-each, in default, to undergo further S/I for one month. The appellant is also convicted under sec. 13(2) of Prevention of Corruption Act and sentenced to undergo R/I for a period of one year and to pay a fine of Rs.2000/-, in default, to undergo further S/I for three months, which is impugned in these appeal.
2. The brief facts of the prosecution case is as under:
2.1 It is the case of the prosecution that the Police Inspector Hussein Miya Saiyed was serving as such in the year 1992 in ACB, Valsad. In March, 1992, he received a secret information that the Medical Officer Shri Gohil of Vesma Primary Health Centre is charging different amount either for giving treatment to the patient or for issuing the certificate. He, thereupon, decided to arrange a trap. Accordingly, he sought the services of a decoy patient Bharatbhai Page 2 of 18 R/CR.A/713/2001 JUDGMENT Govindbhai Tandel and two panchas, namely Bimalkumar Jawaharlal Parikh and Hasmukhbhai Ramubhai Patel from the Forest Department.
Bharatbhai Tandel was selected to act as a decoy patient whereas Bimalkumar Parikh was selected to act as panch no. 1. These persons were called on 30th March, 1992 in the office and thereafter they were instructed to come at 7.00am on 31.3.1992 at Valsad ACB Office. Accordingly, the above mentioned three persons reported at multistoried building Valsad at about 7.00am. Thereafter, they proceeded to Navsari Circuit House. It is further the case that PI Saiyed produced the currency notes of Rs. 50/- in different denominations, viz. One currency note of Rs.20/- and three notes of Rs. 10/- denomination. One Shantaram was instructed to demonstrate the use of anthracene powder and to apply the same on the said currency notes. Accordingly, Shantaram applied the anthracene powder on the said currency notes and thereafter the demonstration in U.V. Lamp rays was made. The characteristics of the said powder was made aware to those three persons. After demonstrating the experiments on the currency notes and explaining the same to the above mentioned persons, preliminary part of the panchnama was prepared in the Circuit House at Navsari. It is further the case of the prosecution that the pocket of the open shirt of Page 3 of 18 R/CR.A/713/2001 JUDGMENT Bharatbhai. PI Saiyed instructed Bharatbhai to go to the accused and to request for certificate and if he demands any amount, then the same is to be given from the smeared currency notes. The panch no. 1 was instructed to remain with the bogus patient and to hear the conversation which takes place between the accused and the bogus patient and to see the passing of currency notes if any. At about 10.05am, the above mentioned three persons along with the members of the raiding party proceeded to go to Vesma and they reached to Vesma Cross Roads at about 10.25am. Thereafter, the bogus patient Bharatbhai and panch no. 1 proceeded to the Primary Health Centre and the other members of the raiding party and panch no. 2 followed them. It is the case that Bharatbhai - bogus patient, took out a case paper from the compounder and thereafter he and panch no. 1 sat on the bench outside the chamber of the Doctor. At the relevant time, the doctor was examining one patient and after he left the chamber, the bogus patient Bharatbhai was called inside. Thereupon, Bharatbhai went inside and he informed the accused that since last 2 days he was suffering from fever and he required a certificate. Thereafter, the doctor examined him and issued a certificate. He further told to get the fitness certificate on 2nd. The doctor wrote down the name on a printed certificate and signed Page 4 of 18 R/CR.A/713/2001 JUDGMENT below it and thereafter it is alleged that he demanded Rs. 10/- from the bogus patient Bharatbhai. It is stated that Bharatbhai took-out one currency note of Rs. 10/- by his right hand from the left side pocket of the shirt and gave the same to the accused who accepted the same by his left hand and thereafter he transferred it to his right hand and put the same in his bush-shirt pocket. When the bogus patient Bharatbhai was going out of the chamber, Doctor instructed him to give blood for testing and thereafter Bharatbhai came to the compounder, gave the case paper to him and he made a proposed signal by raising his hand on head. Thereupon, the members of the raiding party and panch no. 2 rushed into the chamber of the doctor. It is further the case of prosecution that after entering into th chamber of doctor, PI Saiyed introduced him as ACB Officer and told the accused to remain as it is. It is further the case that thereafter the accused were caught red handed and after nabbing the accused, the muddamal notes were recovered and the receipt in that regard was given to the accused from whom notes were seized. Necessary permission to prosecute the accused was obtained and on receiving the sanction and other materials on record, statements of witnesses were also recorded. The accused came to be charge-
sheeted, as stated above, for the alleged
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offence punishable under section 7, and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, which was numbered as Special Case No. 8/1993.
3. The accused was charged vide at Ex. 6. The appellant - accused pleaded not guilty and claimed to be tried.
4. In order to bring home the charge levelled against the appellant- accused, the prosecution has examined the following witnesses:
1. Bharatbhai Govindbhai Tandel Ex. 15
2. Bimalkumar Javaharlal Parikh Ex. 17
3. Husenmiya Sarfuddin Saiyed Ex. 22
5. To bring home the charge levelleged against the accused, the prosecution has also produced the following documentary evidence before the trial Court.
1. Complaint Ex. 24
2. Panchnama Ex. 18
3. Seizure memo- Harivadan Kunvarji Modi Ex. 23
4. Seizure memo -Bharatkumar Govindbhai Ex. 16
5. Seizure memo -Kishor Meghaji Gohil Ex. 23
6. Sanction Ex. 21
7. Direction of transfer of accused Ex. 25 & 26 Page 6 of 18 R/CR.A/713/2001 JUDGMENT
8. Yadi for charge Ex. 27
9. Certificate of transfer of charge Ex. 28
10. Circular of District Panchayat for transfer Ex. 29
11. Details of salary Ex. 30
6. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned Judge, vide impugned judgment and order dated 30.7.2001 held the appellant - accused guilty to the charge levelled against him under sec.7 and 13(2) of the Prevention of Corruption Act and convicted and sentenced the appellant accused, as stated above.
8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Judge, the present appellant has preferred this appeal.
9. Heard Mr. K.B. Anandjiwala learned senior advocate with Mr. V.K. Anandjiwala for the appellant and Ms. Monali Bhatt learned APP for Page 7 of 18 R/CR.A/713/2001 JUDGMENT the respondent-State.
10. Mr. Anandjiwala learned senior advocate appearing for the appellant-accused has vehemently submitted that the evidence on record goes to show that the offence under section 7 and 13(2) of Prevention of Corruption Act is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Mr. Anandjiwala learned advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities and therefore the same deserves to be quashed and set aside.
11. Per contra, learned APP Ms. Mehta has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. Mehta learned APP further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused, and therefore, the Page 8 of 18 R/CR.A/713/2001 JUDGMENT present appeal deserves to be allowed.
12. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. I have also considered the submissions made by the learned advocates appearing for the parties. The genesis of the incident occurred due to the complaint lodged by the Police Inspector, ACB to this effect. He had sent one Bharatbhai Govindbhai Tandel as a patient. In fact, this government servant was not suffering from any illness but was selected as decoy patient. He was made to know about all these things. There were other panch witnesses of the government. According to the complainant, on 31.3.1992 he has given Rs. 50/- out of which, one note was of denomination of Rs. 20/- and three notes of denomination of Rs. 10/-each. They were made to understand the procedural aspects of the corruption raid. They went to Vesma Primary Health Centre where the appellant-accused had demanded Rs. 10/- from the decoy patient and that is how he was caught red handed. At the end of the trial, after examining the witnesses and after exhibiting the documents, the appellant has been convicted. After the prosecution concluded its evidence, the accused Page 9 of 18 R/CR.A/713/2001 JUDGMENT was put questionnaires under sec. 313 of CrPC and his stand was that he has till date never demanded any illegal gratification. No amount was ever recovered form him. He has never demanded Rs. 10/- for issuance of certificate which can be said to be illegal certificate. I am not going into other details of statement u/s. 313 of CrPC. The main genesis for convicting the accused lies in para30 and 31 of the judgment, which reads as follows:
"30. Considering the evidence led by the prosecution on record, it is proved beyond reasonable doubt that the appellant-accused had demanded Rs. 10/- from the decoy patient, and thereby, he had misused his position as a government servant. In view of this, all ingredients of the offence are proved and therefore the prosecution has proved the charge levelled against the accused beyond reasonable doubt.
31. Considering the oral as well as documentary evidence produced on record by the prosecution, this Court has come to the conclusion that, on 31.3.1992, at about 10.40am, at Vesma Primary Health Centre, the accused has demanded illegal Page 10 of 18 R/CR.A/713/2001 JUDGMENT gratification of Rs. 10/- for issuing medical certificate from decoy patient Bharatbhai Govindbhai Tandel, and thereby, he has misused the his position as government servant and has committed the offence."
13. This takes this to the evidence of PW-1 namely Bharatbhai Govindbhai Tandel Ex. 15 who was made to go to the accused as a decoy patient. Para-6 after narrating why he was called by the I.O. and made to understand the procedure at 10.05 along with panch no. 1 and 2 and the raiding party. They reached the place of offence i.e. Vesma Primary Health Centre and case papers in the name of Bharat G. Patel was obtained. He stayed on the western side of the room where the doctor (accused) was seated. After he(decoy patient) went to the chamber of doctor, he has identified the accused. Now, the testimony of PW- 1 will have to be scrutinized on the touch-stone of the decision of of the Apex Court in the case of M.R. Purushotham v. State of Karnataka, reported in 2015 Cri.L.J. 72. In this back ground, the fact that the submissions made by Mr. Anandjiwalal that the doctor did not accept anything what is called as illegal gratification. It is an admitted position, according to Mr. Anandjiwala that when the panchnama was drawn it Page 11 of 18 R/CR.A/713/2001 JUDGMENT was drawn in absence of the panch and the person who is alleged to have given the money by way of illegal gratification to the doctor. He has also relied on the decision of the Apex Court in the case of Dr. Kanwarjit Singh v. State of Punjab, reported in (2011)3 GLR 2645.
14. As against this, Ms. Mehta learned APP also submitted that there was a demand which can be termed as illegal gratification. There was a complaint to the police officer, and therefore, raid was carried. The I.O. Who is the complainant has deposed on oath, and therefore, it cannot be said that there was no demand and no acceptance.
15. The fact that the doctor treated the decoy patient, and for that, Rs. 10/- was asked. I am unmoved by the submission that in trap cases, phenolphthalein and not anthracene should be used. In this case, it cannot be said that Rs. 10/- was demanded by way of illegal gratification. The term illegal gratification is defined in section 7 of the Act, which reads as follows:
"7. Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, Page 12 of 18 R/CR.A/713/2001 JUDGMENT for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour of disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause
(c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
16. Therefore, the learned trial Judge has failed to appreciate the fact that there was no demand or acceptance of illegal gratification. This Court in the case of Gopal Lal Ghisulal Chhipa & Ors. v. The State of Gujarat, reported in 1998(1) GLH 943 has held as under:
(B) Evidence Act, 1872- S. 3- Appreciation of -P.S.I. Vyas, I.O., doing every thing right from recording of complaint till the charge-0sheet was filed before the Court- Credibility of the case of the Prosecution is certainly doubtful and the Prosecution case must fail Bhagwansingh v. The State of Rajasthan, AIR 1976 SC 985.
My attention was drawn to the
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decision of the Supreme Court in the case of Bhagwansingh v. The State of Rajasthan- AIR 1976 S.C. 985 wherein, it is held that if everything is done by the police office, it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. In that case the complaint was recorded by the Investigating Officer, search and seizure were also made by him, and thereafter the investigation was also made by him, and the charge-sheet was also filed by him before the Court. In this case, Mr. Vyas, the PSI has also done every thing right from recording of the complaint till the charge-sheet was filed before the Court. When that is so, the credibility of the case of the prosecution is certainly doubtful and the prosecution case must fail on that count. Even if this tarnishing point is ignored and the evidence is considered, there is nothing which would lead me to hold that the prosecution has succeeded in establishing the charge levelled against the deceased appellant.
17. It is cardinal principle that demand and acceptance are required to be proved without any doubt and if one of them is not proved, being the vital part, the offence cannot be said to have been constituted and conviction cannot be sustained. This takes this court to the fact that there was no demand. Even if we read the deposition of decoy patient, he has nowhere stated that the doctor has demanded money. On the Page 14 of 18 R/CR.A/713/2001 JUDGMENT contrary, going through para-6, it is very clear that it was he who after the end of the investigation and after giving all the papers, gave him Rs. 10/-. In his cross-examination, in para-10, he has deposed as under:
"Before issuing certificate, the accused had examined me.. At that time, I was not suffering from fever. It is true that when accused was examining me, I was knowing that there is no fever and I was not speaking truth, and therefore, I was not feeling well. I don't know whether the doctor had issued medical certificate to any government servant, except him, by accepting money."
18. In this case also, there is procedural irregularities. Thus, the fact that this witness and PW-2 gave entirely different version. Rs. 10/- which was accepted and recovered cannot be said to be an amount of demand of illegal gratification falling within the purview of sec. 7 of the Act. In this case, the prosecution has not examined any other witnesses who were present when the money was allegedly handed over to the accused by the decoy patient/witness. To prove that the same was pursuant to any demand made by the accused, there is no other evidence of any Page 15 of 18 R/CR.A/713/2001 JUDGMENT person to prove that the doctor had demanded money. There is vague statement of I.O. That he has received complaint. Had that been so, they could have recorded the statement of other people who were present at the hospital. Therefore, the learned trial Judge was not right in holding that the demand alleged to have been made was proved. Thus, the conclusive proof is that as in 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 established.
19. In the totality of the facts and circumstances and considering the judgment in the case of Dr. Kanwarjit Singh Kakkar v. State of Punjab, reported in 2011(3) GLR 2645 and "SATVIR SINGH VS. STATE OF DELHI THROUGH CBI", AIR 2014 SC 3798 and the decisions cited hereinabove,a decade old decision of the Apex Court in the case of State of Gujarat vs. Maheshkumar Dheerajlal Thakkar, reported in AIR 1980 SC 1167 will also ennure for the benefit of the accused. It cannot gain said that Rs. 10/- encashed is an illegal gratification, and therefore, Ms. Mehta learned APP has not been able to satisfy this Court that the accused had used any corrupt or illegal means so as to see him behind bar under sec. 13(1)(d) Page 16 of 18 R/CR.A/713/2001 JUDGMENT of the Act as the main ingredients are absent. He has not abused his position as a public servant. Mr. Anandjiwala's submission is based on 23 years old decision of the Bombay High Court in the case of Bhagwan Jathya Bhoir v. The State of Maharashtra, reported in 1992 Cri.L.J. 1144, where there was a challenge to the validity of sanction of a trifle amount of Rs. 30/-. The Bombay High Court has quashed the sanction order. Be that as it may. In this case, it has travelled to this Court and this Court has to decide this appeal after 15 years, may be during which time, the accused might have retired or could have started his own practice. In that view of the matter, this appeal deserves to be allowed.
20. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 30.7.2001 passed by the learned Special Judge, Valsad at Navsari in Special Corruption Case No. 8/1993 is hereby quashed and set aside. The appellant-accused is hereby acquitted from all the charges levelled against him. Bail and bail bond stands cancelled. Surety, if any given, shall stand discharged. R & P to be sent back to the trial court.
(K.J. THAKER, J.)
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mandora/
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