Naginbhai vs State of Gujarat

Mr. R.P. Dholaria, J.(Oral)—The appellant - original accused No.2 has preferred the present appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 7.8.2000 rendered by learned 2nd Additional Sessions Judge, Special Court, Vadodara in Special Case No. 6 of 1997.

1.1 Criminal Appeal No. 844 of 2000 was preferred by the appellant - original accused No. 1 who died on 14.7.2003 and hence, the said appeal came to be abated vide order dated 16.12.2016.

The short facts giving rise to the present appeal are that the complainant filed the complaint with ACB Police Station, Vadodara city on 5.7.1997 alleging that three months prior to lodging of the complaint, one Vijay Hasmukhbhai Shah had teased his daughter Sunitaben and, therefore the complainant and his wife had scolded said Vijay and hence he got enraged and thereafter his younger brother Pinakin, his wife Ritaben and mother Hemlataben, all assaulted the complainant and his wife for which the complainant has lodged his complaint with Panigate Police Station, Vadodara. That a cross complaint was also filed against the complainant, his wife and his daughter. Said Vijay had filed an application against the complainant, his wife and his daughter with Panigate Police Station, Vadodara under section 151 of the Code of Criminal Procedure. That inquiry of the said application was undertaken by original accused No.1 and he had gone to the house of the complainant and threatened him that he was to be arrested and sent to jail and if he want to avoid that situation, the complainant to pay Rs. 300/- failing which said accused No.1 will put them behind the bars. That the complainant was not desirous to pay the said amount, he approached the ACB Police Station and lodged the complaint.

In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet 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. Nigam Shukla, learned advocate for the appellant has argued that since the complainant died prior to recording the evidence and, therefore, he could not be examined and even otherwise also, on going through the evidence of Panch No.1 - Rana Jayendrabhai, the said witness is not involving the present appellant accused so far as demand of illegal gratification is concerned. He submitted that similarly, even at the time of trap also, in spite of the fact that original accused No.1 has directed the present appellant accused to accept the amount of alleged illegal gratification, the present appellant has refused to accept the same and, therefore, original accused No.3 received the same as per the direction of accused No.1. He submitted that neither the FIR nor the evidence of Panch No.1 is involving the present appellant with the crime in question and hence, there was no legal evidence as regards to vital aspect of demand, acceptance and recovery so far as the present appellant is concerned. He submitted that as the trial was common against all the three accused, learned trial Court while recording the reasons invoked the provisions of section 20 of the Prevention f Corruption Act, 1988 and raised the presumption and wrongfully convicted the present appellant. Lastly, he submitted that the impugned judgment and order of conviction is required to be set aside so far as the present appellant is concerned.

On the other-hand, Ms. H.B. Punani, learned APP has supported the judgment rendered by learned trial Court. She has taken this Court through the entire Record and Proceedings and evidence of material witnesses on record and argued that though in the preliminary demand, the present appellant is not named, however, at the time of actual raid, his presence was there and even the original accused No.1 who alleged to have demanded illegal gratification has directed the present appellant to accept the amount of illegal gratification, but he refused and, therefore, his participation and presence at the time of raid is established. She, therefore, submitted that demand as well as acceptance were proved and, therefore, learned trial Court has rightly appreciated the evidence on record. She has argued that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court should not disturb the finding recorded by learned trial Court, as such.

This Court has heard Mr. Nigam Shukla, learned advocate for the appellant and Ms. Punani, 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 FIR came to be filed one Shivmahal Matagulam on 5.7.1996 wherein he has clearly alleged that original accused No.1 visited his house and told him that one Vijay has lodged the complaint against him and hence, the complainant is required to be arrested and in order to avoid arrest, he will have to pay illegal gratification on 5.7.1996 in between 6.00 pm and 6.30 pm at Ektanagar Police Chowky. As the complainant was not willing to pay illegal gratification, he approached the ACB Police Station, trap was arranged and PW 1 was requisitioned as official panch as he was serving as Head Clerk in the Sales Tax Department. PW 1 was made to understand as regards to the contents of the complaint and as to how the test of anthracene powder works as well as the details as regards to the trap to be laid. PW 1 was required to view and hear the actual conversation between the complainant and the accused that may be taken place. Thereafter, the members of the raiding party proceeded for trap. On the day of trap, accused No.1 asked the complainant whether he has brought the amount of Rs. 300/- or not, to which, the complainant told that he has brought. Thereafter, the said accused No.1 directed the complainant to pay the same to the present appellant, but the present appellant refused to accept it and thereafter said accused No.1 directed the complainant to deliver the said amount to accused No.3 who accepted the said amount. Thereafter, signal was given and hence the members of the raiding party arrived. The tainted currency notes were recovered from the person accused No.3 and necessary panchnama was also drawn.

At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair v. 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 v. 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, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.

In the backdrop of the aforesaid factual as well as legal position and on overall analysis of the evidence of the complainant on record as regards to crucial ingredients of demand, acceptance and recovery, the evidence on record clearly indicates that original accused No.1 raised preliminary demand by visiting the house of the complainant, at that time, he was alone and thereafter, on the appointed place, when the trap was arranged and during the course of trap, the same accused No.1 demanded and there was further direction by him to deliver the amount of illegal gratification to the present appellant accused who refused to accept the same and, hence, the amount of illegal gratification was delivered to accused No.3. In this view of the matter, no any legal evidence is available on record to connect the present appellant accused with the crime in question as regards to preliminary demand or demand at the time of trap and so far as the recovery of tainted currency notes are concerned. Under the circumstances, there is no iota of evidence available on record against the present appellant accused. Moreover, the complainant has died and even on going through the recital of the complaint itself, the complainant is not at all involving the present appellant accused with the crime in question. This Court is, therefore, of the considered opinion that the prosecution has failed to prove the ingredients of demand, acceptance and recovery beyond reasonable doubt against the present appellant accused. Now, coming to the question whether the view taken by learned trial Court while convicting the accused was probable, this Court find that in view of the fact that the complainant died during the trial, as such he was not available for cross examination with respect to the facts which were in his knowledge as to the demand of bribe and its payment. Therefore, this Court looked into the other evidence available on record. Taking into consideration the evidence on record in its entirety, the judgment and order of conviction against the present appellant is not sustainable at law.

For the reasons recorded above, the appeal succeeds. The impugned judgment and order dated 7.8.2000 rendered by learned 2nd Additional Sessions Judge, Special Court, Vadodara in Special Case No.6 of 1997 is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.