KANCHANBHAI UKABHAI PATEL vs STATE OF GUJARAT

The appellant has preferred the present appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 16.4.2004 rendered by learned Additional Sessions Judge, 2nd Fast Track Court, Surat in Special Case No.5 of 1992.

The short facts giving rise to the present appeal are that the complainant applied for sanction of loan and in order to easing out the sanction of loan, he approached the appellant accused on 23.1.1991, at that time, the appellant accused demanded Rs.200/- towards illegal gratification. As the complainant did not want to give the said amount of illegal gratification, he lodged the complaint before the ACB office.

In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the Code of Criminal Procedure 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.

Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.

By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such.

Mr.Shakeel Qureshi, learned advocate for the appellant has taken this Court through the evidence of the witnesses as well as impugned order and argued that since the complainant himself has disowned the complaint and that even he did not identify his signature as well as accused before learned trial Court and therefore, the complaint itself no longer survives on record. He submitted that there appears no evidence on record as regards to crucial ingredients like demand and acceptance. He submitted that so far as the evidence of panch is concerned, the panch has also not stated in his deposition that as to whether any demand was made by the accused from the complainant. In support of his arguments, Mr.Qureshi has relied upon the decision in the case of M.R.Purushotham Vs State of Karnataka, reported in (2015) 3 SCC 247. Lastly, Mr.Qureshi requested this Court to allow the present appeal.

On the other-hand, Mr.K.P.Raval, learned APP has supported the judgment rendered by learned trial Court. He submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused which calls for no interference. He further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law. He, therefore, submitted that this Court may not interfere with the impugned judgment and order of conviction in view of the cogent and clinching evidence on record.

This Court has heard Mr.Shakeel Qureshi, learned advocate for the appellant and Mr.Raval, learned APP for the respondent State.

This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, the complainant applied for sanction of loan and in order to easing out the sanction of loan, he approached the appellant accused on 23.1.1991, at that time, the appellant accused demanded Rs.200/- towards illegal gratification. As the complainant did not want to give the said amount of illegal gratification, he lodged the complaint before the ACB office. Thereafter, the raid was carried out and the accused caught red handed along with tainted currency notes of Rs.200/- in the toilet of his office and thereby the accused has committed the offence, as alleged.

PW 1 - Ramubhai Bhikhabhai Parmar has been examined at Exh.14. The witness has deposed that he applied for loan before the District Industrial Center, Surat in December 1992. The witness has deposed that he inquired about the accused, but he could not meet the accused and thereafter he did not support the case of the prosecution. Even, in the examination-in-chief, the witness did not identify his signature over the complaint and that he refused to identify the accused before learned trial Court.

PW 2 - Prakashbhai Kevalbhai Patel has been examined at Exh.32. The witness has deposed that he was requisitioned as panch and he was directed to remain with the complainant and he was required to view and hear the conversation between the complainant and the accused. The witness has deposed that when he accompanied the complainant, the accused told the complainant to come to the toilet situated nearby his office and therefore, the witness followed the complainant to the toilet, at that time, the accused followed them. The witness has deposed that thereafter the accused told that papers are ready and asked as to what has happened regarding money as per the conversation and thereafter the complainant handed over the tainted currency notes to the accused, which he accepted and placed in the pocket of the pant and thereafter prearranged signal was given. The witness has deposed that thereafter search and seizure were taken place.

At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A.Subair Vs State of Kerala, (2009) 6 SCC 587 : (2009 AIR SCW 3994), while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.

In State of Kerala and another Vs C.P.Rao (2011) 6 SCC 450 : (AIR 2012 SC (Supp) 393), the Honourable Apex Court reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B.Jayraj (AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, irrespective of the fact that the raid was carried out and recovery was made, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.

At this stage, reference is also required to be made on the decision in the case of M.R.Purushotham (supra) wherein reliance is placed by Mr.Qureshi learned advocate for the appellant accused. Paragraphs 6, 7 and 8 read as under. "6. PW 1 Ramesh, the complainant did not support the prosecution case. He disowned making the complaint in Ext.P-1 and stated in his examination-in-chief that the accused had not demanded anything from him and he did not know what is written in Ext.P-1 and the police have not recorded his statement in respect to this case. He was, therefore, declared hostile. However, PW 3 Kumaraswamy, panch witness has testified that after being summoned by PW 4 Inspector Santosh Kumar on 18.2.2000, the contents of Ext.P-1 were explained to him in the presence of the complainant and he accompanied the complainant to the house of the accused, wherein, the complainant gave the sum of Rs.500 to the accused as illegal gratification. It is on the aforesaid basis that the liability of the appellant - accused for commission of the offences alleged was held to be proved, notwithstanding the fact that in his evidence the complainant PW 1 Ramesh had not supported the prosecution case. 7. In such type of cases the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. As already seen the complainant PW 1 Ramesh did not support the prosecution case insofar as demand by the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant. In this context the recent decision of a three Judge Bench of this Court in B.Jayraj v. State of A.P. is relevant and it is held as follows: (SCC p.58, para 8). "8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witnesses, present at the time when the money was alleged handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext.P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext.P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established." 8. The above decision is squarely applicable to the facts of the present case. When PW 1 Ramesh himself had disowned what he has stated in his initial complaint in Ext.P-1 before PW 4 Inspector Santosh Kumar and there is no other evidence to prove that the accused had made any demand, the evidence of PW 3 Kumaraswamy and the contents of Ext.P- 1 complaint cannot be relied upon to conclude that the said material furnishes proof of demand allegedly made by the accused. The High Court was not correct in holding the demand alleged to be made by the accused as proved. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 13(1)(d) of the Act and the conviction and sentence imposed on the appellant are liable to be set aside."

In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, when the complainant himself has disowned the complaint as well as his signature over the complaint at Exh.30, this Court is of the considered opinion that the complaint remains no longer on record. It is also pertinent to note that even the complainant has not identified the accused before learned trial Court. However, PW 2 who accompanied the complainant at the time of trap has deposed to the extent that the accused asked the complainant regarding bringing of money as per the conversation. This aspect is only forthcoming from the oral evidence of PW 2 which cannot be said to be a fact constituting demand as regards to illegal gratification. In order to relate the aforesaid conversation between the complainant and the accused which the PW 2 has heard, one has to rely upon previous document which is in the nature of complaint. As seen above, since the complainant has disowned the complaint itself, demand cannot be said to be proved by the prosecution. This Court has also considered the decisions referred above and the same are squarely applicable to the facts of the present case. In this view of the matter, no evidence is available on record as regards to demand and acceptance. Once the prosecution has miserably failed to establish demand and acceptance, then in that eventuality, mere recovery becomes meaningless and does not constitute any offence, as alleged. In such type of cases, the prosecution has to prove that there was demand and there was acceptance of illegal gratification by the accused. Under the circumstances, finding recorded by learned trial Court is not in consonance with the evidence available on record. It is by now well settled that demand has to be proved by adducing clinching evidence. Under the circumstances, in absence of specific and clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable.

For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 16.4.2004 rendered by learned Additional Sessions Judge, 2nd Fast Track Court, Surat in Special Case No.5 of 1992 is quashed and set aside. The appellant accused is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. Fine, if any, paid by the appellant accused be refunded. R & P be sent back to the trial Court, forthwith.