Amarshi Gokalbhai Charola vs State of Gujarat

Z.K. Saiyed, J.—The present Appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 27.6.1997 passed by the learned Special Judge, Jamnagar in Special Case No. 4 of 1994, whereby, the learned Judge has convicted the Appellant u/s 7 of the Indian Penal Code and sentenced him to undergo R.I. for two years and to pay a fine of Rs. 1000/-, in default, to undergo three months S.I. Learned Special Judge was pleased to convict the Appellant under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act and sentenced him to undergo R.I. for two years and to pay a fine of Rs. 1000/-, in default, to undergo S.I. for three months.

The brief facts of the prosecution case is as under:

It is the case of the prosecution that the Appellant was serving as Talati-Cum-Matri at Nadana Grampanchayat of Jamkalyanpur Taluka. The complainant was having in all 16 Acres of land and the complainant himself was managing the said land. Out of said land, 6 Acres land was known as Malivadi field, nearby the said land, a pond was located. Therefore, the Appellant needed detonators cap explosive for digging out a small canal from the said pond so as to pass the said pond water nearby his field and for the purpose, he needed licence to keep explosives. Therefore, the complainant applied for such licence by submitting an Application in Form No. 6 and for filling up Form No. 7/12. On 18.2.1994, at about 3:00 p.m., the complainant and one Mr. Sureshbhai Shantilal Joshi met the accused, Talati-Cum-Mantri at his quarter, where he was residing. After meeting with the accused, the accused made demand of Rs. 500/- by way of illegal gratification and, therefore, the complainant requested to reduce the said amount, but the accused denied and told the complainant to bring the papers along with Rs. 500/- tomorrow i.e. on 19.2.1994. Thereafter, the complainant on 19.2.1994, filed complaint before the ACB office, Jamnagar. The two panchas were called by the ACB office for carrying out trap and thereafter, the complainant produced currency notes of Rs. 500/-, each denomination of Rs. 100/-. The numbers of said currency notes were noted in first part of Panchnama and thereafter, anthracene powder was applied on the said currency notes. Thereafter, the complainant, panchas and raiding party went to Nandana Village, where the Appellant - accused was present at that time in office of Gram Panchayat. The complainant and panch No. 1 met the accused in the office of Gram Panchayat. Thereafter, after sometime, the complainant came outside the office of Gram Panchayat and made pre-arranged signal to the members of raiding party, who were standing outside the office and therefore, they entered the office. The ACB Officer, Mr. Mavani asked the complainant about the demand of illegal gratification of Rs. 500/-. Thereafter, the complainant told him that the accused has accepted the amount as demanded by him and he has put the amount of Rs. 500/- in the right side drawer of the table. Thereafter, the experiment of ultra violet lamp was carried out and the second part of panchnama was prepared. After obtaining the sanction from the appropriate authority, the charge-sheet was filed against the Appellant, which was given number as Special Case No. 4 of 1994.

Thereafter, the charge was framed at Ex.8 against the Appellant. The Appellant - accused has pleaded not guilty and claimed to be tried.

In order to bring the home the charge levelled against the Appellant- accused, the prosecution has examined the following witnesses

Complainant - Rajshi Sava at Exhibit 12, PW No. 1 Gopalbhai Vitthalbhai Solanki, Exhibit 14, P.W. 2 Sureshbhai Shantilal Joshi, Exhibit 17, P.W.3 Kaushik Maganbhai Bhimchiya, Exhibit 18, P.W.4 Hemantsinh Natubhai Jadeja, Exhibit 24, P.W.5.

The prosecution has also produced and relied upon various documentary evidence before the trial Court to prove the case.

Thereafter, after examining the witnesses, further statement of the Appellant-accused u/s 313 of Code of Criminal Procedure was recorded in which the Appellant-accused has denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge vide impugned judgment and order dated 27.6.1997 held the Appellant - accused guilty to the charges levelled against him and sentenced him as stated above

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Jamnagar, the present Appellant has preferred this appeal.

Heard Mr. Virat Popat, learned advocate for the Appellant and Mr R.C. Kodekar, learned APP for the Respondent-State.

Mr Popat, learned advocate appearing for the Appellant submitted that the judgment and order is solely based on surmises and conjectures. He also submitted that learned Special Judge has committed serious error of the fact and law in convicting the Appellant in spite of the fact that the complainant was an accomplice witness as he was a willing bribe giver. The law requires that the evidence of such an accomplice witness must be corroborated on material particulars by an independent and unimpeachable evidence. Mr. Popat, learned advocate further submitted that in the corruption cases, there are four stages which are required to be proved thorough the evidence of the complainant and there should be corroboration to all those stages from independent evidence. He also submitted that the stages like (I) initial demand (ii) Second demand to be made in presence of panch (iii) acceptance and (iv) recovery. He has submitted that here in this case, there is no evidence regarding initial demand, the recovery of currency notes and therefore, the case of the prosecution cannot be said to have been established beyond reasonable doubt. He has further submitted that the complainant himself was hardly a reliable person as he was interested witness and his aim was to see that the Appellant is trapped. Here in this case, no such demand of Rs. 500/- on the part of the accused, was proved through any independent evidence.

Learned advocate Mr. Popat has read the charge Exhibit 8 and submitted that as per the contents of charge, the first demand was made by the accused on 18.2.1994 for Rs. 500/- and on 19.2.1994, Rs. 500/- was accepted by accused. In connection with the said charge, learned advocate Mr. Popat read the oral evidence of P.W.1 at Exhibit 12 and from the cross-examination of the said witness, it appears that on 19.2.1994, the complainant went to the house (quarter) of the Appellant - accused with one Mr. Suresh Joshi, for the first time and prior to that date, he never met the present Appellant. He further submitted that as per the oral evidence of the P.W.1, prima facie, it is established that on 19.2.1994, the complainant met for the first time the Appellant and as per the charge, the first demand was made on 18.2.1994. So from the evidence of the P.W.1, the first demand was not at all established. He has also read the oral evidence of P.W.3 - Sureshbhai Joshi and submitted that from his evidence, it appears that the complainant met this witness on 18.2.1994 and told him that he wanted licence and, therefore, the complainant asked the said witness to come with him at the residence of the Appellant - accused. In his presence, the Talati-Cum-Mantri told the complainant that for issuance of 7/12 Form, Rs. 500/- was required to be paid and the complainant was told by the accused to come at the office of Panchayat. Now, from the oral evidence of P.W.3, there are material contradictions made by this witness qua the oral evidence of P.W.1. The P.W.1 had never stated that on 18.2.1994, he met the present Appellant with Mr. Suresh Joshi, and hence, so for as the first demand of Rs. 500/- is concerned, it creates some doubt from the oral evidence of P.W.1. From the cross-examination of the complainant P.W.1, it appears that he has admitted that Panchnama at Exhibit 15, in which the signatures were made by his father Savabhai and Sureshbhai, the panchnama bears the names of witness as Gopalbhai Vitthalbhai Solanki and Mansukhlal Nathalal Kanzaria. He further submitted that the prosecution examined the P.W. 2 Gopalbhai at Exhibit 14 and from the evidence of the said witness, it appears that there were so many contradictions with regard to the demand made by the present Appellant - accused. He also read the evidence of P.W.4 Exhibit 18 and also of P.W.5, Hemantsingh Natubhai Jadeja at Exhibit 24, who was examined by the prosecution on account of death of Mr. V.K. Mavani, who was trapping officer. But he had no personal knowledge about the demand and also about the contents of the complaint. Even from the evidence of this witness, it appears that the anthracene powder was not found on the hands, fingers and tips of the accused. He further submitted that the trap amount was recovered from the right side drawer of the table. He submitted that from this fact, it is clearly established that the amount was not accepted by the Appellant - accused and it was recovered from the drawer of the table. He further submitted that the trap amount was not recovered from the possession of the Appellant - accused. He submitted that when from the physical possession, the said amount was not recovered, then the probable defence of the accused is worth believable that the trap amount was put in the drawer of the table of the accused in his absence. He submitted that when the demand is not proved beyond reasonable doubt and acceptance of the trap amount is also not proved, then the conviction order passed by the learned Special Judge is required to be quashed and set aside.

Mr. Joshi, learned advocate relied upon the case reported judgment in Criminal Law Reporter (Mah) 1986 in the case of Marverka H. Pathan v. State of Maharashtra, wherein in para 20, it has been observed that "once the foundation of the demand becomes not only brutal but is practically destroyed, then this must have impact on the other circumstances because as stated earlier, one circumstance in such cases always unfolds other and the impact of one on other cannot be ignored." He further submitted that in corruption cases, it is the duty of the investigating officer to secure independent and respectable witness. In support of this submission, he has relied upon the case of Raghbir Singh Vs. State of Punjab, . Mr. Popat, learned advocate further submitted that learned Special Judge has failed to appreciate that the accused would ever demand and accept the bribe in the presence of a person about whom he was not sure and in these circumstances, the Appellant accused was entitled to be acquitted.

As against this, Mr R C Kodekar, learned APP appearing for the Respondent - State has argued that the prosecution has examined in all 5 witnesses in support of the prosecution case and from the oral evidence of complainant, it is established that demand was made by the present Appellant as per the tactics and practice of the office of the Appellant and in connection with the said trap, amount was given to the present Appellant and, therefore, demand is proved beyond reasonable doubt. It was very well proved before the learned trial Judge that the Appellant accused made demand of bribe amount and same was accepted by the accused. He has read the oral evidence of panch, complainant and submitted that trap amount was very well recovered from the drawer of the table of the Appellant-accused and, therefore, a presumption is required to be drawn against the present Appellant. He has read the impugned judgment and order and contended that the learned Judge has considered the defence as well as case of the prosecution and he has rightly convicted the Appellant in accordance with the provisions of law and, therefore, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed. He has read charge and evidence of P.W.1, P.W.2 and complaint as well as Panchnama and the evident of P.W.3, who is a star witness and from his evidence, the demand is very well established. Mr. Kodekar, learned APP further submitted that the sanction was given by competent Authority after considering the seriousness of the offence. Therefore also, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed.

I have gone through the impugned judgment and order passed by the learned Judge and also through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witnesses - complainant and also perused the charge framed against the Appellant. From the perusal of the oral evidence of complainant PW-1, it appears that the demand is not established by him, as the complainant himself put the trap amount in the drawer of the table of the accused. Therefore, the aspect of second demand is not proved because the complainant has not stated in his evidence that the accused had made demand at Gram Panchayat office and immediately, after putting the said amount in the drawer, the complainant made pre-arranged signal to the ACB raiding party and the ACB officer was informed by the panch witness that the trap amount was put in the drawer of the table. Therefore, the trap amount was not found from the physical possession of the accused. I have perused the cross-examination of the P.W.1, wherein he has admitted that he and one Sureshbhai had met the accused at the very first time and prior to this, the complainant had not met the accused. I have perused the contents of charge. I have also perused the evidence of P.W.3 and from the evidence, it is nowhere mentioned by the P.W.3 that the accused - Appellant accepted the trap amount from the complainant. There are several contradictions regarding the date of the meeting with the accused by the complainant and Mr. Joshi because the P.W.3 - Joshi has stated that they met the accused on 18.12.1994 and the complainant P.W.1 stated that he and Mr. Joshi met the accused only on 19.12.1994 and he also stated that prior to 19.12.1994, the complainant did not meet the accused. The panchnama was also signed by father of the complainant and P.W. 3 - Mr. Joshi. I have also perused the evidence of P.W.4 Kaushik Bhimchiya and he has admitted that he had given sanction after considering all the papers produced before him. Here in this case, there is no dispute raised about legality and validity of the sanction and the parties have not argued on this issue. The evidence of the complainant and P.W.3 do not corroborate with the contents of panchnama and complaint and therefore, the evidence creates doubt. The amount was put in the right side drawer of the table of the accused and therefore, the amount was not recovered from the physical possession of the accused and even the anthracene powder was not found on the hands, tips or fingers of the Appellant - accused. I have also perused the oral evidence of P.W.5 Hemantsinh Natubha Jadeja, at Exhibit 24 and he has admitted that the anthracene powder was not found on the hands of the accused, when the experiment of ultra violet lamp was carried out. Here in this case, the trap amount was found in the right side drawer of the table and not from the physical possession of the Appellant - accused. Even the anthracene powder was not found from any parts of body of the Appellant, i.e. on the hand, fingers, tip or cloth of the accused. Therefore, in absence of proof of demand or acceptance or recovery of the trap amount, the offence under Sections 7 and 13(2) and 13(1)(d) of Act cannot be held to be established.

I have also perused the statement of the present Appellant recorded u/s 313 of Code of Criminal Procedure. The probable defence is established by the present Appellant beyond reasonable doubt. In the latest decision of the Supreme Court in the case of Banarsi Dass Vs. State of Haryana, wherein, 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 the offence of bribery is concerned, the demand and acceptance of bribe is required to be proved beyond reasonable doubt and mere proof of 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. I have gone through the evidence produced before the learned Special Judge, but it has not come out from the evidence that the anthracene powder was found from the body parts like finger, tips, hands and the cloth of the accused and even in the experiment of the ultra violet lamp, it has been found that on the currency notes, no marks of anthracene powder of the hands, fingers or tips of the accused were found. Therefore, the demand is not at all not proved by the prosecution against the accused and so far as the recovery is concerned, the same is not found from the physical possession of the accused and therefore, mere allegation levelled against the accused by the complainant about the demand is not sufficient to convict the present Appellant and hence, this appeal deserves to be allowed. Therefore, in absence of any evidence regarding the demand, then mere alleged recovery is not sufficient to convict the present Appellant and hence, this appeal deserves to be allowed.

In the result, the appeal is allowed. The judgment and order dated 27.6.1997 passed by the learned Special Judge, Jamnagar in Special Case No. 4 of 1994, is hereby quashed and set aside. The Appellant - accused is hereby acquitted from the charges alleged against him. Fine if paid, be refunded to the Appellant - accused. Bail bonds shall stands cancelled. R & P to be sent back to the concerned trial Court, forthwith.