Gujarat High Court
State Of Gujarat vs Rathod Nanjibhai ... on 13 January, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/1432/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1432 of 2005
With
CRIMINAL APPEAL NO. 500 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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, 1950 or
any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT....Appellant(s)
Versus
RATHOD NANJIBHAI UGABHAI....Opponent(s)/Respondent(s)
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Appearance:
MR HS SONI, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 13/01/2015
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R/CR.A/1432/2005 JUDGMENT
ORAL JUDGMENT
1.The appellant - original accused has preferred this appeal under sec. 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 05.03.2005 passed by the learned Special Judge, FTC No.3, Bhavnagar, in Special Case No.9 of 1996, whereby, the learned Special Judge has convicted the appellant - accused No.1 - Bhatt Bharatbhai Ramnikalal, for the offences punishable under Section 7 of the Prevention of Corruption Act and sentenced him to undergo S.I. for three year and to pay a fine of Rs.500/, in default of which, to undergo further S.I. for thirty days. He is also convicted for the offence punishable under Section 13(2) of the Prevention of Corruption Act and sentenced him to undergo S.I. for two years and to pay a fine of Rs.500/, in default of which, to undergo further S.I. for thirty days. The Page 2 of 20 R/CR.A/1432/2005 JUDGMENT learned Special Judge has acquitted the appellant - accused No.2 - Rathod Nanjibhai Ugabhai, for the offences punishable under Section 12 of the Prevention of Corruption Act.
2.The brief facts of the prosecution case are as under:
The case was registered for the offences punishable under Sections 7,12, 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 before Bhavnagar ACB Police Station against Bhatt Bharatbhai Ramnikalal and Rathod Nanjibhai Ugabhai. The complainant is the Police Inspector, he was discharging his duties on 11.1.1996. He received complaint that at various places of Bhavnagar Nagar Palika, the employees at Jakatnaka were collecting extra money illegally and unauthorisedly. The complainant arranged a trap. He hired auto rickshaw and kept new tyres in the said auto rickshaw. The P.W. Page 3 of 20 R/CR.A/1432/2005 JUDGMENT Nos.1 and 2 were engaged as merchants. They were called in the ACB office. They were explained the characteristics of the anthracene powder. Ultra violate lamp was used and demonstration was also shown. From the grant of ACB office, 04 notes of Rs.50/ denomination were given. The notes were sprayed with anthracene powder. It is the case of the prosecution that the original accused No.1 was working as a clerk on 11.1.1996 at about 6:45 p.m. at Godha toll naka. Accused No.2 was discharging his duties as a security guard. The original accused No.1 inquired for as to what was lying in the auto rickshaw and what is the destination.
The accused No.1 and 2 came out from the octroinaka office and have seen the tyres. The original accused No.2 inquired about the price of the said tyres. Merchants informed that the tyres worth Rs.15,000/. Original accused No.1 said that Rs.75 tax is required to be levied and the receipt of Rs.70/ will Page 4 of 20 R/CR.A/1432/2005 JUDGMENT be given. The merchant expressed his desire to pay Rs.70/. At that point of time the original accused NO.1 said that if the prosecution witness does not insist upon the receipt of payment, he shall have to pay Rs.150/. Money kept in the left side of the shirt of the prosecution witness was brought out. He took 03 notes of Rs.50/ denomination and gave to original accused No.1. The sign was made and the complainant was successful in the said trap. Thereafter, investigation was carried out and after following the necessary procedure, and on grant of sanction, the chargesheet against the accused came to be submitted before the Court.
3. Thereafter, the charge was framed against the accused persons to which the accused pleaded not guilty and claimed to be tried.
4.In order to bring home the charge levelled against the accused persons, the prosecution Page 5 of 20 R/CR.A/1432/2005 JUDGMENT has examined witnesses and also produced documentary evidence on record of the trial Court.
5. After examining the witnesses, further statement of the accused persons under Sec. 313 of Cr PC was recorded wherein the accused persons have denied the case of the prosecution.
6. After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, FTC No.3, Bhavnagar, vide impugned judgment and order dated 05.3.2005, held the appellant - accused No.1 guilty of the charge levelled against him and convicted and awarded the sentence as stated herein above and acquitted accused No.2 Rathod Nanjibhai Ugabhai. Against acquittal of accused No.2 Rathod Nanjibhai Ugabhai the State has preferred Criminal Appeal No.1432 of 2005.
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R/CR.A/1432/2005 JUDGMENT
7. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence of accused No.1 Bhatt Bharatbhai Ramnikalal and order of acquittal of accused No.2 Rathod Nanjibhai Ugabhai passed by the learned Special Judge, Bhavnagar, the present appellant has preferred this appeal.
8. Heard Mr.Dharmendra Shah, learned advocate for the appellant in Criminal Appeal No.500 of 2005 and Mr.H.S.Soni, learned APP for the respondentState. I have also heard Mr.H.S.Soni, learned APP for the appellant State in Criminal Appeal No.1432 of 2005.
9. Mr.Dharmendra Shah has read the charge and contended that the learned Special Judge has failed to appreciate that there are four stages which are required to be proved through the evidence of the complainant and that there should be corroboration to all those stages, namely, (i) initial demand (ii) second demand to be made in presence of panch Page 7 of 20 R/CR.A/1432/2005 JUDGMENT
(iii) acceptance and (iv) recovery. He has contended that prosecution has examined the complainant, panchas, trapping officer, Sanctioning Officer as well as Investigating Officer. From the evidence of all these witnesses and documentary evidence which are produced on record the prosecution has failed to prove four ingredients of the prosecution case and the learned Judge has wrongly convicted the present appellant in the said offence.
10. He has read contents of Ex.50 and contended that sanction is given without application of mind. He has contended that the learned Judge ought to have considered the provisions of Section 7 of the Act. From the facts of the case and evidence adduced by the prosecution, it is clear that ingredients of Section 7 are not proved by the prosecution inasmuch as the prosecution has failed to prove that the appellant has not performed his official duty Page 8 of 20 R/CR.A/1432/2005 JUDGMENT and by taking bribe, he has favoured the complainant. In fact, as per the case of the prosecution also the appellant has issued receipt of Rs.75/. Thus, the learned has committed serious error in not construing the provisions of Section 7 of the Act.
11. He has contended that the learned Judge ought to have considered the fact that in the present case the prosecution has examined in all four witnesses to bring home the guilt of the accused. So far as prosecution witness Nos.3 and 4 are concerned, they are Police Officer & A.C.B. Officer who were not present when the alleged bribe was handed over to the accused, and, therefore, their evidence would only throw light on prior or subsequent event of raid and panchanam. Therefore, these two witnesses would not be knowing anything as to what conversation had taken place between the socalled businessman and pancha No.1 and the appellant by which way the amount is Page 9 of 20 R/CR.A/1432/2005 JUDGMENT transferred from one hand to another, how the amount was demanded, by whom and by which way there was acceptance, and even if they say anything on this aspect it would deprive knowledge or information. Therefore, their evidence cannot be said much reliable.
12. He has contended that the learned Judge ought to have appreciated the fact that decoy trap not being a regular trap upon grievance or complaint of anyone, nonproduction of information on record assumes great importance. Here in the present case, though it is alleged that the complaint was received by the Inspector, ACB, Bhavnagar, the same has not been produced on record of the case. The learned Judge ought to have considered the aspect of nonrecording of complaint, on the basis that, it was not that much secret information which would be exposed and trap would get failed as if accused were having a large network and influential persons. Page 10 of 20
R/CR.A/1432/2005 JUDGMENT
13. He has contended that the learned Judge ought to have considered the fact that in present type of case, when an information is received by the A.C.B. Department and on that basis when a trap is laid at the instance of police and when the complainant himself is an Investigating Officer, the police officer would naturally try to justify their action and they would try to protect their own persons and being sole investigator they would also naturally be interested in the outcome of the investigation.
14. He has read evidence of P.W. No.4 and contended that prosecution could not prove its case prima facie against the present appellant - accused in connection with the offence punishable under Sections 7 and 13 of the Act. He has contended that the learned Judge has failed to consider the fact that it was the prosecution case that complaint was received by them regarding illegal Page 11 of 20 R/CR.A/1432/2005 JUDGMENT gratification being taken by the Jakat Karkoons of different octroi posts, but no such complaint is produced on record nor any explanation was offered by the prosecution witness. Therefore, also benefit of doubt is required to be given to the appellant.
15. He has contended that the learned Judge has failed to consider that the prosecution has not examined Sagarbhai, who was rickshaw driver and whose rickshaw was hired. In fact the prosecution ought to have examined Sagarbhai, who can be said an independent witness, more particularly when he was present at the place of offence as per the prosecution case itself. Therefore, non examination of sole independent witness raise a reasonable doubt on the prosecution case. Lastly, he has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, Page 12 of 20 R/CR.A/1432/2005 JUDGMENT judgment and order of the learned Judge is required to be set aside.
16. Heard Mr.H.S.Soni, learned APP for the State. He has opposed the appeal and contended that the conclusion arrived at by the learned Special Judge is just, legal and proper. He has read contents of the complaint as well as contents of evidence of the independent witness Nos.1 and 2 and contended that as per the evidence of both the witnesses, they are independent witness and with the help of both the panchas trap was carried out and specific demand of Rs.150/ was made by the appellant - accused No.1 and accepted by him and then handed over to the original accused No.2. He has contended that presence of anthracene power was found from the finger tips of the accused Nos.1 and 2. He has read contents of panchnama and contended that when demand, acceptance and recovery is proved beyond reasonable doubt, Page 13 of 20 R/CR.A/1432/2005 JUDGMENT the learned Judge has rightly convicted appellant accused in connection of the said offence.
17. He has read judgment and order of the learned Judge and contended that the learned Judge has wrongly acquitted the accused No.2. He has contended that for the purpose of abetment and abettor ingredients of Sections 107 and 108 of the Penal Code is required to be proved. It is established that abetment is proved against accused No.2 in connection of the amount which was demanded by accused No.1 and accepted by him.
18. The learned APP has relied on the decision in the case of Harjibhai Devjibhai Chauhan Vs. State of State, reported in JT 2012 (5) SC 496, wherein it is held that demand and acceptance has been proved by cogent evidence of complainant and shadow witness. He has also relied on the judgment and order dated Page 14 of 20 R/CR.A/1432/2005 JUDGMENT 31.12.2012 delivered in the case of Syed Ahmed Vs. State of Karnataka in Criminal Appeal No.1323 0f 2007.
19. He has read further statement of the appellant - accused recorded under Section 313 of the Code and contended that presence of the anthracene powder found from finger tips of both the appellants is not explained by the appellant accused. It is the duty of the appellant to rebut the presumption under Section 20 of the Prevention of Corruption Act. In support of his contention he relied on the decision in the case of Balasubramanian Vs. State through Inspector of Police, reported in 2011 (1) GLR 739. He has contended that sufficient opportunity was given to the accused persons to explain the evidence against them after the prosecution witnesses are examined and no explanation is given about the trap amount recovered from the possession of the present accused persons Page 15 of 20 R/CR.A/1432/2005 JUDGMENT in further statement under Section 313 of the Code.
20. I have heard the learned counsel for the respective parties and perused the papers produced before me. I have also considered the submissions advanced by the learned counsel for the rival parties. I have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of the prosecution witnesscomplainant and also perused the charge framed against the accused persons.
21. The appellant has failed to explain as to how the amount in question was found in his possession and as to how light blue fluorescent marks of anthrecene powder was found from his hands. The appellant has failed to rebut the said presumption by leading probable defence. Thus, when demand Page 16 of 20 R/CR.A/1432/2005 JUDGMENT and acceptance are proved and when the appellant has failed to rebut the presumption under Section 20 of the Prevention of Corruption Act, 1988, I am of the opinion that prosecution has proved its case beyond reasonable doubt. I have perused the oral evidence of Trapping Officer. The defence has not produced any evidence to suggest that the Trapping Officer is biased or that he has committed any illegality. The Trapping Officer is an independent witness and he is not having any illintention to implicate the appellant falsely. He has supported the case of the prosecution. The defence has failed to prove the probable defence. I have not found anything to accept the defence version of the appellant. I am of the opinion that the learned Special Judge has passed the judgment and order after appreciating all the aspects of the matter.
22. From the evidence of P.W. No.2 so far as Page 17 of 20 R/CR.A/1432/2005 JUDGMENT demand is concerned, it is proved beyond reasonable doubt that present accused persons have made demand of money and in connection of that Rs.150/ was handed over to accused No.1 and it was accepted by him. It is fully supported by the evidence of the P.W. No.1 and 2. During the search carried out by the Trapping Officer in the presence of panchas anthracene powder was found from the finger tips and hands of the accused and muddamal trap amount is recovered from the possession of the accused persons from the drawer of the table. Ex.50 sanction of the prosecution was accepted through oral version of the P.W.No.4 and that was not challenged by accused persons and that was not crossexamined by the appellant and coaccused so it appears that when the sanction is not challenged by the accused persons no question can arise for legality of the sanction. The accused No.1 has failed to establish defence version so appeal of appellant accused No.1 for Page 18 of 20 R/CR.A/1432/2005 JUDGMENT conviction is dismissed.
23. So far as acquittal appeal preferred by the State is concerned. I have minutely perused evidence of the witnesses and documents produced on record. From the panchnama and evidence of P.W. No.1 and 2 it shows that accused No.2 has received amount from the appellant No.1 and not from the P.W. No.1 of the prosecution and no evidence regarding the demand is made by the accused No.2 and, therefore, prosecution has failed to establish that accused No.2 can be convicted by the learned Judge for the offence of abetment under Section 12 of the Prevention of Corruption Act. In the result the acquittal appeal preferred by the State is dismissed.
24. In view of above, I am in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the learned trial Court against Page 19 of 20 R/CR.A/1432/2005 JUDGMENT accused No.1 and acquittal order passed against accused No.2 I am of the view that no other conclusion except the one reached by the learned trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence.
3. Hence, in view of the foregoing reasons, present appeals are dismissed. The judgment and order of conviction and sentence and of acquittal dated 05.03.2005 passed by the learned Special Judge, FTC No.3, Bhavnagar, in Special Case No.9 of 1996, is hereby confirmed. Bail bond, if any, stands cancelled. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) KKS Page 20 of 20