Chandrakant Chhaganlal Bhupatani vs State of Gujarat

Z.K. Saiyed, J.—The appellant has preferred the present Appeal u/s 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 27th March 1997 passed by the learned Special Judge, Jamnagar passed in Special Case No. 12 of 1993, whereby the learned Judge was pleased to convict the appellant-accused under Sections 7 and 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988.

It is the case of the prosecution that the appellant was serving as Mamlatdar at Taluka Kalyanpur in the year 1991. The complainant was the resident of Khandera, Taluka Kalyanpur and dealing in distribution of Kerosene. It is the case of the complainant that in the month of October, 1991 the appellant visited the shop of the complainant and asked the complainant to give him 10 paisa per liter if the complainant wants to continue his business and if the complainant did not do so, his licence would be cancelled and the appellant took Rs. 500/-from the complainant in the month of October, 1991. It is also the case of the complainant that in the month of November, 1991 the appellant has once again taken Rs. 500/-as installment from the complainant. It is also the case of the complainant that when on 20th January 1992 the complainant met the appellant in his office, the appellant demanded installment for the month of January, 1992 and agreed to accept the same on 28th January 1992. Therefore, a complaint to the said effect was lodged with the Police Inspector, Anti Corruption Bureau, Jamnagar on 28th January 1992. Therefore, it is decided to catch the appellant red-handed and trap is arranged. Thereafter, formal procedure was explained to the complainant and panch witnesses and it was stated to them that on sprinkling anthracene powder on currency note it will be seen in light blue shining, if the same will be seen under ultraviolet lamp. Thereafter preliminary panchnama was drawn in presence of two panchas, who were summoned by the Police Inspector. Thereafter, after completing the necessary formalities, the complainant, two panchas and the members of raiding party went to Kalawad. It is further the case of the prosecution that when they reached to the office of the appellant at about 10:45 hours, it was informed to them that the appellant was out of station and therefore, it is decided to arrange the trap at 16:00 hours. At that time also, the appellant was not in his office. Therefore, on 29th January 1992 once again the complainant, two panchas and the members of raiding party went to Kalawad Mamlatdar''s office. It is further the case of the complainant when the complainant and panch witness No. 1 entered the chamber of the appellant, the appellant welcomed them and after some conversation, the appellant demanded the installment from the complainant. Therefore, the complainant gave the appellant the said currency notes, which the appellant accepted with his right hand and put in right side drawer of the table. Thereafter, when signal was passed-on by the complainant as suggested by the Police Inspector, members of raiding party entered in the chamber and carried out the raid. It is the case of the prosecution that as alleged, the experiment under Ultra Violet lamp was carried out and anthracine powder was found. Thereafter, second part of the Panchnama was drawn and the panchas signed that Panchnama.

Thereafter the police completed the investigation by recording statements of some witnesses and after obtaining the sanction, charge-sheet came to be filed against the present appellant for the alleged offence punishable u/s 7, 13(1)(d) and 13(2).

Thereafter the trial was conducted before the learned Judge. To prove the case of the prosecution, prosecution has examined five witnesses and also produced oral as well as documentary evidence in support of the prosecution case. After filing of the closing pursis, the learned Judge has recorded the statement of the present appellant-accused u/s 313 of the Code of Criminal Procedure, 1973, in which the appellant has denied the case of the prosecution and contended that he has been falsely implicated in the present case. The appellant-accused pleaded not guilty and claimed to be tried.

After hearing both the sides at length, the learned Special Judge, Jamnagar, has passed the judgment and order of conviction dated 27th March 1997 in Special Case No. 12 of 1993, whereby the learned Judge was pleased to convict the appellant u/s 7 and 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988 and ordered to undergo rigorous imprisonment for a period of four years and fine of Rs. 05,000/-, and in default of payment of fine, ordered to undergo rigorous imprisonment for a further period of one year. The learned Special Judge has also convicted the appellant u/s 13(1)(d) punishable u/s 13(2) of the Prevention of Corruption Act, 1988 for a period of two years and fine of Rs. 03,000/-, and in default of payment of fine, ordered to undergo rigorous imprisonment for a further period of six months. However, both the sentences are ordered to run concurrently.

Being aggrieved byand dissatisfied with the said judgment and order of conviction and sentence dated 27th March 1997 passed by the learned Special Judge, Jamnagar in Special Case No. 12 of 1993, the appellant above-named preferred the present appeal.

Heard Mr. Niranjan Daftary, learned Counsel for the appellant and Mr. H.L. Jani, learned Additional Public Prosecutor for the respondent-State.

Mr. Daftaryhas contended that the judgment and order of conviction passed by the learned Judge is erroneous, illegal and unwarranted on the facts and circumstances of the case. He has also contended that the appellant has produced probable defence before the learned Judge, but the learned Judge has not considered the probable defence of the appellant. He has also contended that in the case of corruption, demand is vital. If the demand is not established by the prosecution beyond reasonable doubt, case of the prosecution fails. Mr. Daftary has contended that as per the case of the complainant he had given Rs. 500/-to the present appellant in the month of October, 1991 and also in the month of November, 1991, but the complainant had not made any complaint in this behalf before any Authority. Mr. Daftary has also contended that according to law, evidence of such accomplish witness is required to be corroborated on all material particulars. Mr. Daftary has also contended that looking to the case of the complainant that he had given Rs. 500/-as a bribe to the appellant in the month of October, 1991 and also in the month of November, 1991, the complainant is also required to be held guilty as to offer bribe to someone is also against law. The complainant is accomplish witness, who is willing to give bribe to the appellant to get his work done, but as the same was against the principle and against the law, the appellant denied the same. Therefore, a false complaint of demanding illegal gratification is field by the complainant against the appellant. Mr. Daftary has further contended that there was redistribution of the ration cards by the present appellant, which was not liked to the complainant and therefore, being annoyed, the complainant has wrongly implicated the appellant in a false case. Mr. Daftary has also contended that there are four stages which are required to be proved by the prosecution beyond reasonable doubt and there should be corroboration to all those stages viz. (I) initial demand; (ii) second demand in presence of panch; (iii) acceptance and (iv) recovery. Mr. Daftary has contended that in the instant case there is no evidence to prove the initial demand and therefore, the case of thee prosecution cannot be said to be proved beyond reasonable doubt. He has also contended that no independent witnesses are there to prove the case of initial demand. Thus, the prosecution has failed to prove the vital part of the case. Without considering the facts of the case and evidence on record, the learned Special Judge has believed the story of the complainant as gospel truth. He has also contended that looking to the oral as well as documentary evidence, prosecution has failed to prove the demand made by the present appellant from the complainant. When demand was not proved beyond reasonable doubt, no question can arise for acceptance of bribe. Mr. Daftary has also read the contention of the panchnama and oral evidence of panchnama and contended that evidence of panch No. 1 is not trustworthy, acceptable and reliable as the panch No. 1 is a selected witness. He has also contended that ordinarily any person would not accept bribe amount in presence of a stranger. The panch No. 1 is totally stranger to the appellant. Looking to the overall circumstances, case of the complainant is not believable and therefore, the order passed by the learned Special Judge is bad, illegal and unjust.

Mr. Daftaryhas also read the cross-examination of the complainant and argued that from the cross-examination of the complainant it is established that conduct of the present complainant is doubtful and just to take revenge against the present appellant, such false complaint was filed by the complainant. Even there are contradiction in the evidence of the complainant and the panch No. 1 about giving and taking the currency notes. Mr. Daftary has also contended that the date and time shown in the panchnama are concocted. Time of panchnama was filled in later on by the Trapping Officer. He has also contended that the case of corruption is a tool to play with the life of public servant. He has also contended that the Trapping Officer was not examined because of his death. He has also contended that the probable defence, which was taken by the present appellant, has to be looked into by the learned Judge before passing any order. The learned Judge has grossly erred in not believing the probable defence of the appellant. Even the learned Judge has not given any cogent reason for not believing the probable defence of the appellant. He has also contended that there are some contradiction in the oral evidence of panch No. 1 and the complainant. He has also contended that from the contentions of the evidence also, the present appellant-accused is totally innocent and he has not committed any offence, but just to take revenge, false complaint was filed by the complainant. He has also read the oral evidence of other witnesses, who were cross-examined by the prosecution, and contended that from their evidence also, sufficient corroborative piece of defence is produced on record to suggest that the appellant-accused is innocent and a false complaint is filed against him. He has also contended that this Court vide order dated 22nd October 2010, called for the original case diary of Special Case No. 12 of 1993. Pursuant to that order, Mr. Jani has submitted that original case diary is not available with ACB and therefore, xerox copy is produced on record. Mr. Daftary has no objection if xerox copy of case diary of Special Case No. 12 of 1993 to be taken into consideration. He has contended that looking to the case diary and panchnama, when doubt is created, doubt of benefit is required to be given to the appellant, more particularly when the appellant has produced probable defence. He, therefore, contended that looking to the facts of the case, circumstantial evidence produced on record of the case, conduct of the complainant and other witnesses and the documentary evidence produced on record of the case, the judgment and order of conviction passed by the learned Judge is illegal, unjust and bad in law and hence, the same is required to be quashed and set aside in the interest of justice.

Mr. H.L. Jani, learned Additional Public Prosecutor, has read the oral evidence of the complainant, panch witnesses and vehemently argued that prosecution has proved its case beyond reasonable doubt. He has also contended that looking to the contention of charge, prosecution has proved its case beyond reasonable doubt. He has also contended that demand is also established. He has also contended that in absence of evidence of Trapping Officer, case of the prosecution cannot be resulted into fatal. Mr. Jani has also argued that Trapping Officer is a public servant. He has no animosity against the appellant-accused. He has also contended that the probable defence of the present appellant-accused cannot be taken as probable defence, but it is just a story created by the appellant to come out from the serious charge of illegal gratification. Thus, the learned Judge is right in not believing the so-called probable defence of the appellant-accused. He has also contended that anthrecine powder was also found in the hand of the present appellant-accused. He has read the oral evidence of the witnesses and also the documentary evidence produced on record of the case and vehemently argued that when demand, acceptance and recovery is proved beyond reasonable doubt, no question can arise to say that the learned Judge has erred in passing the judgment and order of conviction. He has also contended that the learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper order. He, therefore, contended that the judgment and order of conviction passed by the learned Judge is required to be confirmed.

I havegone through papers produced before me and the judgment and order of conviction passed by the learned trial Court. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions advanced by learned Counsel for the parties.

Lookingto the papers produced on record and facts and circumstances of the case, it appears that in the instance case, there are contradiction of time in case diary and panchnama. I have compared the contention taken in case diary and panchnama drawn by the Trapping Officer. The contention taken into case diary is contrary to the contention taken in panchnama. It is seen that time of panchnama is altered to support the case, which in my opinion directly goes to the route of the matter. It is also clear from the perusal of the papers that the complainant is annoyed because of redistribution of the ration cards by the appellant-accused. From the perusal of the evidence as well as cross-examination, it can be said that conduct of the complainant is doubtful and tried to fabricate the evidence to justify the complaint. The Investigating Officer has never bothered to look into the case properly and even not tried to find out that the amount received by the present appellant-accused was towards illegal gratification or otherwise. Looking to this, it can be said that fair investigation was not carried out by the Investigating Officer. Thus, when oral evidence of the star witnesses in the instance case, viz. Complainant himself, panch No. 1 and panch No. 1, are doubtful and when probable defence was taken by the appellant, defence of the appellant is required to be considered. Looking to the overall facts of the case, circumstantial evidence produced on record, probable defence taken by the appellant and more particularly when there is contradiction in the case diary of Special Case No. 12 of 1993 and in the panchnama, doubt is created and therefore, I am of the opinion that when doubt is created, benefit of doubt is required to be given to the appellant.

I have also perused statement of the appellant recorded u/s 313 of the Code of Criminal Procedure by the learned Judge. It appears from the said statement of the appellant-accused that the appellant-accused has very specifically stated in the statement that because of redistribution of ration cards, the complainant was annoyed. The said aspect of the statement was not at all considered by the learned Judge while passing the judgment and order of conviction.

From the perusal of the papers and oral as well as documentary evidence, I am not in agreement with the reasons assigned by the learned Special Judge and I am of the opinion that the learned Judge has committed error in convicting the appellant. Hence, the judgment and order of conviction passed by the learned Special Judge is required to be quashed and set aside.

In view of above observations, present appeal is allowed. The Judgment and Order of conviction and sentence dated 27th March 1997 passed by the learned Special Judge, Jamnagar, is hereby quashed and set aside. The appellant is directed to be set at liberty forthwith. The appellant is acquitted from the charges levelled against him. Bail bond, if any, shall stand discharged. Record and Proceedings, if any, be sent back to the trial Court forthwith.