Gujarat High Court
The State Of Gujarat vs Jayantilal Chunilal Gor Talati on 24 March, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/401/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 401 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 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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THE STATE OF GUJARAT....Appellant(s)
Versus
JAYANTILAL CHUNILAL GOR TALATI-
REVENUE....Opponent(s)/Respondent(s)
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Appearance:
MS MH BHATT, APP for the Appellant(s) No. 1
MR KB ANANDJIWALA, SENIOR ADVOCATE assisted by MR. VISHAL
ANANDJIWALA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 24/03/2017
ORAL JUDGMENT
1. This is an appeal preferred by the State of Gujarat under Section 378 (3) of the Criminal Procedure Code, 1973 against Page 1 of 12 HC-NIC Page 1 of 12 Created On Tue Aug 15 07:33:48 IST 2017 R/CR.A/401/2006 JUDGMENT the judgment and order of acquittal dated 27/10/2005 recorded by the learned Special Judge, Kachchh at Bhuj in Special Case No.12 of 1993 whereby the learned Trial Judge acquitted the respondent-accused, of the charges for the offence punishable under Sections 7, 12, 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, 1988.
2. Brief facts of the case are that at the relevant time, the accused was working as a Talati at Sukhpar, Taluka Bhuj- Kachchh. The complainant claims to own 23 acres agriculture land. The complainant had applied for transfer of agriculture land in the name of his four sons on 27/02/1991. After giving application, the complainant approached the accused on 07/03/1991 and made inquiry about transfer of name to which the accused demanded Rs.800/- for that work. The complainant argued that the amount is on higher side and finally he agreed to pay Rs.600/- for the said work. It is further the case of the prosecution that the respondent- accused told that complainant to pay the amount by evening and that too either at the office or at home. Thereupon, the complainant approached the ACB office and lodged the complaint. Thereafter, a trap was arranged and on the success of the same, a complaint was registered. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, after following the due procedure and after obtaining the sanction for prosecution, the accused was charge-sheeted and a case was registered as Special Case No.12 of 1993. The trial was initiated against the respondent-accused.
3. To prove the case against the present respondent-
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accused, the prosecution has examined several witnesses and also produced several documentary evidence.
4. At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent-accused of all the charges leveled against him by judgment and order dated 27/10/2005.
5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant- State has preferred the present appeal.
6. This Court has heard Ms. M. H. Bhatt, learned APP for the appellant-State and Mr. K. B. Anandjiwala, learned senior advocate assisted by Mr. Vishal Anandjiwala, learned advocate for the respondent.
7. Ms. M. H. Bhatt, learned APP has taken this Court through the entire records and proceedings and the evidence of all the three witnesses i.e. panch, investigating officer and person from whom the sanction was accorded. Relying upon the aforesaid evidence on record, she has argued that from the oral evidence of panch no.1 who accompanied the complainant at that time of trap, vital ingredients as regards to demand, acceptance as well as recovery are clearly established. She has further argued that though the complainant could not be examined as he expired prior to trial but the FIR was registered during his existence and panchnama was drawn and panchs signed over it, therefore, relying upon the FIR in consonance with the evidence of panch no.1, vital ingredients such as demand, acceptance and Page 3 of 12 HC-NIC Page 3 of 12 Created On Tue Aug 15 07:33:48 IST 2017 R/CR.A/401/2006 JUDGMENT recovery are established. She has further contended that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondent for the alleged offence under Sections 7, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, which requires to be reversed as such and the accused is required to be convicted.
8. On the contrary, Mr. K. B. Anandjiwala, learned Senior Advocate for the respondent supported the impugned judgment of acquittal and has argued that the learned Special Judge has recorded ample reasons for arriving at the findings thereon. He has further argued that in absence of examination of the complainant, the prosecution miserably failed to establish vital ingredients of demand and acceptance. Even evidence of panch who alleged to have accompanied the complainant is not clearly disclosing and in absence of any demand from the accused, handing over of amount of illegal gratification would not be believed to be handing over in pursuance of the demand. Therefore, the prosecution miserably failed to establish the case of the prosecution. Except evidence of panch no.1, no other evidence is linking Page 4 of 12 HC-NIC Page 4 of 12 Created On Tue Aug 15 07:33:48 IST 2017 R/CR.A/401/2006 JUDGMENT the accused with the crime in question and it would be very risky to convert the acquittal into conviction solely relying upon the evidence of panch no.1. He has contended that findings recorded by the learned Special Judge cannot be said to be perverse or contrary to the evidence on record. Consequently, therefore, the finding recorded by the learned trial court does not require any interference by this Court.
9. This Court has minutely perused the oral as well as documentary evidence available on record and gone through the impugned judgment and order passed by the trial court as well as paper book and evidence adduced by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant-State and learned advocate for the respondent.
10. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. In the case of A. Subair vs. State of Kerala reported in (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon'ble Apex Court ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
11. In the case of State of Kerala and another vs. C.P. Rao reported in (2011) 6 SCC 450, the Hon'ble Apex Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge Page 5 of 12 HC-NIC Page 5 of 12 Created On Tue Aug 15 07:33:48 IST 2017 R/CR.A/401/2006 JUDGMENT 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.
12. In a recent enunciation by the Hon'ble Supreme Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined by the Hon'ble Apex Court in the case of B.Jayaraj vs. State of A.P. Reported in AIR 2014 SC (Supp) 1837, in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
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13. In reiteration of the golden principle which runs
through the web of administration of justice in criminal cases, the Hon'ble Apex Court in the case of Sujit Biswas vs. State of Assam, reported in (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
14. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
15. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)
(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
16. Having heard learned advocate for the respective parties to the present proceedings and having perused the impugned judgment as well as records and proceedings, as per the prosecution version, it clearly reveals that the complainant Page 7 of 12 HC-NIC Page 7 of 12 Created On Tue Aug 15 07:33:48 IST 2017 R/CR.A/401/2006 JUDGMENT was resident of Juna Vas, Sukhpar. He applied for separating account in the name of his four son and therefore, he met the accused on 07/03/1991. At that time, initially, the accused who was serving as Talati-cum-Mantri of the said village demanded Rs.800/- which was scaled down to Rs.600/-. On the said day, the accused handed over four books to him, separating and entering name of his four sons, however, he was directed to pay the amount of illegal gratification on the same day in the evening. As the complainant was not willing to pay the bribe, he lodged the complaint due to which trap was arranged. In the trap, the accused came to be caught red handed along with tainted currency notes of Rs.600/- and thereby committed offence punishable under Section 7, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
17. PW-1 Dashrathlal Kandas has deposed that at the relevant time i.e. in the year 1991, he was serving in the office of Forest Department as a clerk and he was requisitioned by ACB as panch on 07/03/1991. He has deposed that he was introduced with the complainant Lakhman Naran Rabadia. He has deposed that the complaint was read over to him and his signature was also obtained over the said complaint and thereafter he was made to understand as to how the trap is to be carried out and also made to understand the procedure of trap i.e. smearing of phenolphthalein powder as well as test of ultra violet lamp and he was directed to remain present all through out with the complainant. He has deposed that 07/03/1991, he proceeded along with the complainant to the house of the accused where he was found present and the accused welcomed them and thereafter the complainant told Page 8 of 12 HC-NIC Page 8 of 12 Created On Tue Aug 15 07:33:48 IST 2017 R/CR.A/401/2006 JUDGMENT the accused that he had brought Rs.600/- as agreed in the morning and thereafter the complainant took out the said amount of tainted currency notes from his pocket and handed over the same to the accused and the accused took out the said currency notes and placed over the table and thereafter the complainant took leave and gave pre arranged signal, due to which other members of raiding party arrived there. He has deposed that thereafter search and seizure was carried out and test of phenolphthalein powder by ultra violet lamp was carried out which was found to be positive over the accused as well as the complainant and thereafter seizure memo came to be issued.
18. PW-2 Vijay Nanalal Shah has deposed that he was working as a clerk in the office of the District Panchayat, Bhuj at the relevant time and at that time, Mr. V. S. Gadhvi was the District Development Officer who accorded the sanction which came to be tendered at Exh.12.
19. PW-3 Devisinh Labhusinh Solanki has deposed that he was serving as a Police Inspector, ACB, Bhuj at the relevant time. He has deposed that one Lakhman Naran Rabadia of Sukhpar village lodged the complaint on 07/03/1991 which came to be exhibited at Exh.14. He has deposed that in pursuance of the said complaint, he arranged for a trap and he carried out the trap and thereafter he carried out rest of the investigation also and after conclusion of the investigation, filed the charge sheet. In the cross examination, he admitted that he calculated the outstanding tax of the complainant and his family but on the day of his deposition, he was not in a position to recollect the same.
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20. Indisputably, prior to recording the evidence, the
complainant expired and due to which he could not examined and therefore, the prosecution failed to establish the pre demand, demand and acceptance which required to be proved from the mouth of the complainant. As the complainant is not examined by the prosecution and the evidence of panch no.1 is available on record wherein also the panch no.1, who alleged to have accompanied the complainant at the relevant time, deposed that on reaching the house of the accused, the complainant initiated talk and voluntarily said that he had brought the money as agreed in the morning and thereby, voluntarily handed over the money to the accused. In that view of the matter, nothing is coming from mouth of the accused as regards to demand even at the time of trap as per evidence of panch no.1 who accompanied with the complainant at the time of trap. In view of the aforesaid factual scenario, this case is squarely covered by the judgment of Hon'ble Apex Court in the case case of Selvaraj vs. State of Karnatak reported in (2015) 10 SCC 230. In absence of examination of the complainant, demand and acceptance cannot be proved and for non establishment of the demand and acceptance, even if any recovery is came to be effected and even the test of ultra violet lamp is found to be positive qua the accused, it becomes meaningless.
21. This Court has also gone through the judgment of the learned Special Judge more particularly para -14 to para-16 wherein sufficient reasons are given that evidence of panch i.e. PW-1 is not sufficient to establish the demand as well as proving the vital ingredients as regards to demand, Page 10 of 12 HC-NIC Page 10 of 12 Created On Tue Aug 15 07:33:48 IST 2017 R/CR.A/401/2006 JUDGMENT acceptance and recovery and further points are also objectively reasoned which are in consonance with the evidence available on record and this Court also agrees with the finding of the learned Special Judge.
22. For the reasons recorded as above, it appears that the learned trial court has rightly appreciated the evidence on record and rightly acquitted the accused from the charges leveled against him which calls for no interference by this Court. This Court is of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court finds that the findings recorded by the Trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal.
23. In the result, the present appeal is hereby dismissed. Record and Proceedings to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged.
(R.P.DHOLARIA,J.)
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