Ashwinkumar Chinubhai Soni vs State of Gujarat

Z.K. Saiyed, J.—By way of present appeal filed u/s 374 of the Code of Criminal Procedure, 1973, the Appellant-original accused has inter alias payed to quash and set aside the judgment and order of conviction and sentence dated 17th February 1998 passed by the learned Special Judge and Additional Sessions Judge, Kheda at Nadiad, in Special Case No. 09 of 1992 whereby the learned trial Judge was pleased to convict the Appellant u/s 7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment for a period of six months and also imposed fine of Rs. 01,000/-, and in default of payment of fine, sentenced him to undergo simple imprisonment for a further period of one month. The Appellantaccused was also held guilty for the offence punishable u/s 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and was sentenced to undergo rigorous imprisonment for a period of one year, and also imposed fine of Rs. 02,000/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of six months. However, it was clarified that both the sentences shall run concurrently.

As per the case of the prosecution, the complainant is doing business of grocery items in the name and style of Satyam Kariyana Stores at Lasundra and he is selling grains and grocery items in retain since 1989. The accused being the Deputy Mamlatdar used to visit his shop for inspection and checking the books etc. It is alleged that on 11th February, 1992 at about 14.00 hours, the accused had visited the shop of the complainant and after checking the books, as alleged, he demanded the amount of Rs. 5,000/- from the complainant by way of illegal gratification. It is the case of the prosecution that at that time the accused, after checking the books, told the complainant that he would have to file a prosecution and thereupon the complainant requested him not to file the prosecution and thereupon the aforesaid demand was made. The complainant requested him to reduce the amount and ultimately, as alleged, an agreement was arrived at between the complainant and the accused for payment of Rs. 2,500/-. It is further alleged that on that day, the complainant made the payment of Rs. 2,000/- in cash. The amount was paid from the cash received from business on that particular date. However, no entry was made by the complainant in the books of accounts regarding the same. Thereafter, at once when the accused met the complainant, he told the complainant to make the payment of Rs. 500/- on the next day between 12.00 noon and 14.00 hours, otherwise he would have to lodge the prosecution just as the prosecution was lodged against the person of Antroli village.

Thereafter, as the complainant was not willing to make the payment, he approached the ACB Office at Nadiad on 25th February, 1992 and lodged his FIR before the police. He had also stated that there is no other government dues pending. Thereafter, the services of two panchas were sought. The facts of the case were narrated to them and thereafter the experiment was made on the currency notes with the help of anthracene powder. The basic ingredients of the anthracene powder were made understood to the panchas as well as the complainant. After performing the experiment, preliminary part of the panchnama was drawn. The currency notes were smeared with anthrecene powder on the currency notes, i.e. five notes of Rs. 100/-each. Thereafter, the complainant, panchs and members of the raiding party proceeded for Kapadvanj from Nadiad. They started at about 10.55 a.m. from Nadiad and reached at Kapadvanj at about 12.00 noon. Thereafter the complainant and the panch No. 1 went to the general room of the Mamlatdar office. In the general room of the office of the Mamlatdar, the complainant and the Panch No. 1 set for some time and after some time the accused called the complainant. Thereafter, the accused asked the complainant as to whether he has brought the remaining amount of Rs. 500/-, to which the complainant said in the affirmative. Thereafter, the accused demanded the said amount by saying "give the amount". Therefore, the complainant took out Rs. 500/- from the right pocket of his bush-shirt and gave the same to the accused. It is the case of the prosecution that the accused accepted the same by his right hand and put the same in the right side drawer of the table. Thereafter, after some time, again he took out the said amount from the drawer and put the same in his right pocket of trouser. Thereafter, the complainant came outside the room and gave signal to the members of raiding party. Thereafter, the Inspector told the panch No. 1 to take the said currency notes and when they matched the number of the said notes, it matched with the numbers mentioned in the panchnama. Thereafter, when the experiment of UV lamp was carried out, light blue fluorescent marks were found on the currency notes as well as on the right hand finger as well as on upper part of the finger of the accused. Thereafter, on the bush-shirt and trouser of the accused also, light blue fluorescent marks were found. Thereafter, trouser and bush-shirt wear by the accused were seized as muddamal. Thereafter the second part of the panchnama was drawn and certain documents were seized and the raid concluded.

Thereafter, the Investigating Officer recorded statements of various persons. Thereafter, FIR was lodged. Statements of the complainant were recorded. After obtaining the sanction from the appropriate authority, charge-sheet came to be filed against the Appellant-accused.

Thereafter, charge was framed below Exhibit 10 against the Appellant for the offences punishable u/s 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. The Appellant-accused did not plead guilty and claimed to be tried.

In order to bring the home the charges leveled against the Appellant-accused, the prosecution has examined witnesses in support of its case.

Thereafter, after examining the witnesses, further statement of the Appellantaccused u/s 313 of the Code of Criminal Procedure, 1973 was recorded in which the Appellant-accused had denied the case of the prosecution. The Appellant accused in his further statement submitted his defence and has submitted that with a view to take revenge, absolutely false complaint is filed against him.

After considering the oral as well as documentary evidence and after hearing the parties, the learned trial Judge vide impugned judgment and order dated 17th February, 1998 held the Appellant-accused guilty to the charges leveled against him as mentioned above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge and Additional Sessions Judge, Kheda at Nadiad, the Appellant has preferred the present appeal.

Heard Mr. K.B. Anandjiwala, leaned counsel for the Appellant and Mr. R.C. Kodekar, learned Additional Public Prosecutor for the Respondent-State.

Mr. Anandjiwala, learned Counsel appearing for the Appellant has contended that the judgment and order passed by the learned trial Judge is illegal, invalid and improper. He has also contended that the learned trial Judge has not considered the case of the defence and evidence and material produced on record. He has read the charge at Exhibit 33 and contended that the Appellant has proved its case beyond reasonable doubt. He has read the oral evidence of the complainant, PW No. 1 and contended that he is a liar and with a view to settle the previous enmity, he has filed absolutely false complaint against the present Appellant. He has also contended that it is proved beyond reasonable doubt from the oral evidence of the complainant that he was booked by the present Appellant in one food adulteration matter and in that case, initially the complainant was arrested and thereafter he was released on anticipatory bail. Thus, to settle the previous enmity concocted complaint is filed against the present Appellant. He has contended that from the oral evidence of PW No. 1, demand and acceptance is not proved beyond reasonable doubt. He has also contended that there are material contradiction in the oral evidence of PW No. 1 and PW No. 2. It is also contended by Mr. Anandjiwala that in the case of corruption, demand and acceptance is vital part of the prosecution case. He has contended that in the instant case, acceptance of amount is not established in consonance with the alleged demand being made by the accused. He has contended that the evidence of the complainant is an accomplice. He has also contended that regarding the demand and part acceptance of Rs. 2,000/-, there is no corroboration of the evidence of the complainant and therefore, the evidence is doubtful. He has further contended that the amount which is alleged to have been recovered from the Appellant is not in consonance with the original demand made and therefore, the whole case falls. Thus, the prosecution has failed to establish the demand and acceptance beyond reasonable doubt against the Appellant. He has also contended that the probable defence is already established by the Appellant and when previous enmity is proved, then benefit of doubt is required to be given to the Appellant. He has also read the cross-examination of PW No. 1 and contended that in connection with the food adulteration case filed by the present Appellant against the complainant, there was some hot conversation was exchanged between them. In that case, charge-sheet was also filed against the present complainant. The said conduct of the complainant is required to be considered. He has further contended that if the Appellant is corrupt, then he can easily facilitate the complainant in that food adulteration case by taking illegal gratification from him, but he could not. He has also read the oral evidence of PW No. 3, i.e Trapping Officer, and contended that he is not an eye-witness. He has also read the panchnama and oral evidence of PW No. 2 and contended that presence of anthracene powder is not proved beyond reasonable doubt. He has also read the further evidence and contended that there is sufficient lacuna in the panchnama and the oral evidence of the witnesses. He has also further contended that trap was carried out in a biased manner and a concocted story is made out by the complainant and panch witnesses. He has read the cross-examination of PW No. 2 and contended that one of the co-staff member of PW No. 2 was trapped and due to that pressure, present PW No. 2 has supported the case of the prosecution. He has also read the cross-examination of PW No. 3 and contended that sufficient contradiction and omission is proved. Mr. Anandjiwala has further contended that in the instant case, though there were number of independent witnesses available in the general room in the office of the Mamlatdar, the prosecution has chosen not to examine any of those witnesses for the reasons best known to them. As per the case of the prosecution, through out the raid, one person is sitting on the adjoining table of the Appellant, then also he was not examined by the prosecution.

Mr. Anandjiwala has also contended that the prosecution has failed to establish the demand beyond reasonable doubt. Thus, when demand is not established, then no question of acceptance would arise. When the Appellant has explained the probable defence in his statement recorded u/s 313 of the Code of Criminal Procedure, it cannot be said that the defence taken by the Appellant is an afterthought. He has also contended that the present Appellant is innocent and he has been falsely involved in the present case and just to take revenge, the complainant has filed false complaint against the Appellant. The learned Special Judge has failed to take into consideration the probable defence of the Appellant. He, therefore, contended that the judgment and order of the learned Special Judge is required to be quashed and set aside and the Appellant is required to be set at liberty.

As against this, Mr. Kodekar, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Special Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He has contended that looking to the overall facts and circumstances of the case, circumstantial evidence and evidence produced on record, the order passed by the learned Special Judge is absolutely just, proper and correct and is not required to be interfered with. He has also contended that the evidence of the panchs are supported the case of the prosecution. In presence of the panch No. 1, the Appellant asked the complainant about the money and in his presence, the complainant has given Rs. 500/- to the Appellant. Thus, demand and acceptance is proved through the oral evidence of the panch No. 1. He has relied upon Section 20 of the Act and contended that the so-called enmity between the Appellant and the complainant is not the real story. He has also contended that the PW No. 2 is a public servant and an independent witness. There is no reason to believe that because of his co-staff member was trapped, under pressure, he has supported the case of the complainant. He has also contended that from the possession of the present Appellant, trap amount is recovered and presence of anthracene powder is proved beyond reasonable doubt from the clothes of the Appellant as well as from the fingers of the Appellant. He has contended that the probable defence taken by the Appellant is an afterthought. He, therefore, contended that the appeal is required to be dismissed.

I have heard the learned Counsel for the parties and perused the papers produced before me. I have also perused the submissions advanced by the learned Counsel for the parties. I have not found any substance from the papers regarding enmity between the Appellant and the complainant. When the case is made out from the oral evidence of independent witnesses, panchas and when demand and acceptance is proved beyond reasonable doubt, then the said question of enmity cannot arise. It appears from the papers that the panchas have supported the case of the prosecution. As per Section 20 of the Act, it is the duty of the Appellant to rebut the presumption drawn against him. Even statement recorded u/s 313 of the Code of Criminal Procedure, when the Appellant has failed to establish probable defence beyond reasonable doubt and presumption is not rebuted by the Appellant, then it cannot be said that the prosecution has failed to prove its case. I have also perused the oral evidence of PW No. 3-Trapping Officer and also compared the said evidence with the evidence of PW Nos. 1 and 2 and found that all the evidences are in corroboration. It have not found anything to accept the defence version of enmity. I find that the probable defence made by the Appellant is not trustworthy, reliable and acceptable. The learned Special Judge has passed the order after appreciating all the aspects of the matter. The Appellant has failed to prove its case beyond reasonable doubt.

Hence, in view of the foregoing reasons, present appeal is dismissed. The judgment and order of conviction and sentence dated 17th February 1998 passed by the learned Special Judge and Additional Sessions Judge, Kheda at Nadiad, in Special Case No. 09 of 1992, is hereby confirmed. The Appellant is on bail. This bail bond shall stand cancelled. The Appellant-accused is, therefore, directed to surrender himself before the Jail Authority within a period of four weeks from today, failing which the trial Court concerned is directed to issue Non-bailable warrant against the Appellant-accused to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.