Gujarat High Court
State Of Gujarat vs Manharbhai Maganbhai ... on 1 April, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/606/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 606 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 or any order
made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
MANHARBHAI MAGANBHAI PATEL....Opponent(s)/Respondent(s)
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Appearance:
MS. HANSA PUNANI, APP,for the Appellant(s)
MR VIRAL M PANDYA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 01/04/2015
ORAL JUDGMENT
[1] The present acquittal Appeal has been filed by the appellant-original complainant, State of Gujarat under Section 378(1)(3) of the Cr. P.C., against the Judgment and order dated 23.08.2004 rendered by the learned Special Judge, (A.C.B.), Court No.2, Ahmedabad, in Special Case Page 1 of 10 R/CR.A/606/2005 JUDGMENT No.27 of 2000. The said case was registered against the present respondent-original accused for the offence under Section-7 of the Prevention of Corruption Act.
[2] According to the prosecution case, the accused who was working as an Outdoor Clerk in the East Zone of Ahmedabad Municipal Corporation at Rakhial in the year 1999-2000 misused his position and for the purpose of making less assessment in respect of the property tax of the shop of the complainant situated in Satyam Flats at Ahmedabad, demanded an illegal gratification to the tune of Rs.2500/-on 28.03.2000 and agreed to accept an amount of Rs.2,000/-on 05.04.2000 and thereby, he committed an offence punishable under Section-7 of the Act. As the complainant did not want to pay the said amount of bribe, he approached ACB Police Station, Ahmedabad and lodged his complaint, which was reduced in writing. Thereafter, ACB of PI called two panchas. Both the panchas were introduced with the complainant and facts of the complaint were disclosed to both the panchas. In presence of members of raiding party, search of the complainant and panchas was made. Then, Police Inspector called lamp operator and told him to show and explain use of the anthracene powder and ultra violate lamp. Fist part of the panchnama was drawn. Then, the trap amount of Rs.2,500/-, was presented by the complainant under the instructions of the Trapping Officer and anthracene powder was applied on the trap amount. The complainant was directed not to touch the said Page 2 of 10 R/CR.A/606/2005 JUDGMENT amount prior to demand made by respondent-accused. Panch No.1 was advised to stay with the complainant and listen all talk took place between the complainant and the respondent-accused while panch No.2 was advised to stay with the members of raiding party. The complainant was also instructed to give signal after the demand made by the accused. Thereafter, they went to the place of trap. At that time, the respondent-accused demanded bribe amount of Rs.2,000/- from the complainant. Then, pre- decided, signal was given and the respondent-accused was caught red handed. Thereafter, second part of the panchnama was drawn and signatures of the panchas were taken. The respondent-accused was arrested. Thereafter, investigation was carried out and statements of the witnesses and panchas were recorded by the Investigating Officer. Then, seizure memo was given. Subsequently, the respondent-accused was released on bail. To prosecute against the respondent-accused, sanction was obtained from the competent authority. Then, charge-sheet was filed against the respondent- accused for offence under Section-7 of the Prevention of Corruption Act, which was numbered as Special Case No.27 of 2000.
[3] On the basis of above allegations, charge was framed vide Exh.2 and read-over and explained to the accused for the offence punishable under Section-7 of the Prevention of Corruption Act. The accused pleaded not guilty vide Exh.3 to the charge and claimed to be tried.
Page 3 of 10R/CR.A/606/2005 JUDGMENT [4] In support of the prosecution case, prosecution has examined four oral evidences:-
Sr Exh Name of Witness No . 1 9 Ramnalal Mohanlal Suthar 2 15 Purshottambhai Jesanbhai Parmar 3 18 Jalaluddin Ibrahim Saiyed 4 19 Ravindrakumar Kashiram Bhatt
[5] In support of the prosecution case, the prosecution has produced several documentary evidences like complaint at Exh.10, panchnama of trap at Exh.16, receipt give to the complainant for tendering the currency notes to the tune of Rs.2,000/* at Exh.11, second complaint filed by the complaint at Mark-A and sanction at Exh.20.
[6] Thereafter, after filing closing pursis by the prosecution,the respondent-accused examined defence witness Kantibhai Bijalbhai Prajapati at Exh.23 and Harish Dharamshibhai Patel at Exh.27. Then, further statement of accused person under Section-313 of the Code of Criminal Procedure, 1973 was recorded, wherein, the present respondent-accused stated that he was innocent and he has not made any demand in connection of illegal gratification. He further admitted that demand was not proved beyond reasonable doubt and trap amount was also not recovered from the possession of the respondent- accused. He also submitted written explanation to rebut the presumption under Section-20 of the Act. The accused Page 4 of 10 R/CR.A/606/2005 JUDGMENT person denied the case of the prosecution and submitted that a false case is filed against him.
[7] Then, arguments of both the parties were heard and after perusal of the evidence and statement made by both the parties, learned trial Judge observed that prosecution could not prove demand made by the respondent-accused and in absence of demand of illegal gratification, it was considered by the learned trial Judge that only recovery of the trap amount from the possession of the respondent- accused is not sufficient to convict him. In result of this, learned trial Judge passed the acquittal order in favour of the respondent-accused.
[8] Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 23.08.2004 rendered by the learned Special Judge, (A.C.B.), Court No.2, Ahmedabad, in Special Case No.27 of 2000, the appellant-State has preferred the present appeal before this Court.
[9] Heard Ms. Hansa Punani, learned Additional Public Prosecutor for the appellant-State and Mr. Viral M. Pandya, learned counsel for the respondent-accused.
[10] Ms. Hansa Punani, learned Additional Public Prosecutor read the evidence of the PW-1 complainant and contents of the complaint at Exh.10 and argued that from the evidence of the complainant, it appears that he was declared as hostile. During the cross-examination made by learned Additional Public Prosecutor, it is admitted by him Page 5 of 10 R/CR.A/606/2005 JUDGMENT that initially demand was made by the respondent- accused. She further submitted that it is the duty of the respondent-accused to disclose his probable defence just to prove the presumption under Section-20 of the Act. She then submitted that as per the evidence disclosed by the complainant before the learned trial Judge, the prosecution has proved its case beyond reasonable doubt against the respondent-accused. As per the evidence of PW-2 panch parshottambhai Jesangbhai Parmar, nil panchnama was drawn, but the learned trial Judge did not consider the same and observed that demand was not proved and thereby, acquitted the respondent-accused. The learned trial Judge committed a grave error in not considering the evidence of PW-1 complainant and admission made by him that first demand was proved by the complainant in cross-examination made by learned Additional Public Prosecutor and wrongly acquitted the respondent-accused from the alleged charge levelled against him. Lastly, she prayed to set aside the judgment and order of acquittal and allow the appeal.
[11] Mr. Viral M. Pandya, learned counsel for the respondent-accused submitted that when the demand was not proved beyond reasonable doubt, the respondent- accused cannot be convicted for the said alleged offence. He read the contents of the panchnama and evidences of the witnesses and argued that prosecution could not establish its case against the respondent-accused for the offence punishable under Section-7 of the Act. He read the Page 6 of 10 R/CR.A/606/2005 JUDGMENT written explanation of the respondent-accused and contended that learned trial Judge rightly acquitted the respondent-accused from the said alleged offence. Lastly, he read the judgment and order of acquittal and argued that when the demand was not proved, judgment and order of acquittal is required to confirmed and thereby he prayed to dismiss the appeal.
[12] Heard learned advocates for both the parties. I have gone through the impugned judgment and order passed by the learned trial Judge. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the respondents-accused. I have also considered the submissions advanced by the learned advocates for the respective parties.
[13] It is pertinent to note that in corruption cases, four things are required to be appreciated, viz. (I) initial demand, (ii) second demand to be made in presence of Panch, (iii) voluntary acceptance and (iv) recovery of amount.
[14] I have perused the oral as well as documentary evidences. As far as the evidence of the complainant is concerned, he did not disclose the contents of the complaint in examination-in-chief before the learned Additional Public Prosecutor and therefore, he was declared as hostile. The appellant obtained permission to cross-examine him and in cross-examination, it was admitted by him that he had disclosed the contents of the complaint before the Trapping Officer. First of all, as per Page 7 of 10 R/CR.A/606/2005 JUDGMENT the law laid down by the this Court as well Apex Court, it is the duty of the prosecution to prove its case beyond reasonable doubt through the cogent evidence of the witnesses. It is the duty of the prosecution to say that why charge under Sections-13(1)(d) and 13(2) of the Act was not framed and simply charge under Section-7 of the Act was framed. It is the duty of the prosecution to prove that what actual word uttered by the respondent-accused at the time of visit of the complainant. In present case, the learned trial Judge rightly observed from the admission of the complainant that demand is not proved and established by PW-2 panch. Learned trial Judge rightly observed that the prosecution could not prove its case beyond reasonable doubt against the respondent-accused for the offence punishable under Section-7 of the Act. I have minutely perused the evidence of the witnesses. It is true that evidence of the complainant is relevant, however, he declared as hostile and therefore, the conduct of the complaint creates doubt and therefore, learned trial Judge has rightly come to the conclusion that evidence of the complainant is not trustworthy, acceptable and reliable.
[15] In view of the above observations made by the learned Judge, I am in complete agreement that the learned Judge has rightly acquitted the respondent- accused. There in no substance in the appeal and the arguments made by the learned Additional Public Prosecutor. Though learned Additional Public Prosecutor Page 8 of 10 R/CR.A/606/2005 JUDGMENT has tried to establish her case, but the Court has not found any sufficient evidence to consider and entertain this appeal.
[16] In the present case, prosecution has failed to prove that respondents-accused demanded any amount from the complainant. Even recovery from the physical possession of the respondents-accused creates some doubt. I am in full agreement with the judgment and order of the learned trial Judge and I have not found any substance in the present appeal and hence, the present appeal deserves to be dismissed.
[17] In the latest decision of the Supreme Court in the case of Banarsi Das Vs. State of Haryana, reported in AIR 2010 SC 1589, the Hon'ble Supreme Court has observed that mere proof of recovery of bribe money from accused is not sufficient to prove the offence. In that view of the matter, I am of the opinion that so far as offence of bribery is concerned, the demand and acceptance of money is required to be proved beyond reasonable doubt and mere recovery of bribe money from accused is not sufficient to prove the offence and to hold the person guilty. Presumption cannot be raised when demand is not proved in this case. Therefore, in absence of any evidence regarding the demand, mere alleged recovery is not sufficient to convict the present respondent accused. The ratio laid down in aforesaid decision is squarely applicable to the facts of the present case because in the case on hand, the demand is not proved and the complainant had Page 9 of 10 R/CR.A/606/2005 JUDGMENT not stated about the demand made by the accused and, therefore, mere alleged recovery is not sufficient to prove the case against the respondents-accused. Even the recovery is also not proved as per law.
[18] In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 23.08.2004 rendered by the learned Special Judge, (A.C.B.), Court No.2, Ahmedabad, in Special Case No.27 of 2000, acquitting the respondent-accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.
(Z.K.SAIYED, J.) siddharth// Page 10 of 10