Ramjibhai Kavabhai Patel vs State of Gujarat

Z.K. Saiyed, J.—The Appellant - original accused has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 23.06.1999 passed by the learned Special Judge, Ahmedabad (Rural), in Special Case No. 11 of 1998, whereby, the learned Judge has convicted the Appellant u/s 7 of the Prevention of Corruption Act (for short "P.C. Act") and sentenced him to suffer RI for one year and to pay a fine of Rs. 2000/- i/d to suffer imprisonment for 6 (six) months. The learned Judge has also held the Appellant - accused guilty for the offence u/s 13(1)(d), r/w Section 13 of the P.C. Act and sentenced him to suffer for 2 (two) years and to pay a fine of Rs. 3,000/- i/d to further undergo imprisonment for a period of nine months, which is impugned in this appeal.

The brief facts of the prosecution case is as under:

It is the case of the prosecution that, at the relevant time, the Appellant was serving as Talati-cum-Mantri at village Zezara. It is alleged that on 21.11.1997, the complainant Zinabhai Mangabhai had approached the Appellant - accused in his office for obtaining village form No. 7/12 and 8A as he wanted to take loan for the purchase of Rickshaw - Chhakda. It is alleged that for issuing such extract, the accused demanded Rs. 1000/- as illegal gratification and ultimately the accused agreed to take Rs. 850/- as illegal gratification. The complainant agreed to pay the said amount to the accused in his office on 25.11.1997 at 11.00 A.M. As the complainant was disinclined to pay the bribe amount to the accused and, therefore, on 24.11.1997 he went to the office of Anti Corruption Bureau, Ahmedabad (Rural) and met Shri Dodiya, Police Inspector and appraised him of his disinclination to pay the bribe amount, demanded by the accused for giving him the extracts of village forms No. 7/12 and 8A. The Police Inspector reduced the complaint in writing and decided to lay a trap on the next day i.e. on 25.11.1997 and accordingly he asked the complainant to come on the next day i.e. on 25.11.1997 in the morning. Police Inspector also aranged to call the panchas on that day in the morning at 8.00 O''clock in his office. On 25.11.1997 the panchas and the complainant came. They were introduced with each other and other raiding party members. The currency notes of Rs. 850/- were got produced from the complainant for the purpose of using the same in the trap for giving to the accused, if demanded. After giving all of them understanding about the utility and natural qualities of the anthracene powder and ultra-violet lamp, the currency notes of Rs. 850/- were treated with anthracene powder by Police Head Constable, at the instruction of P.I. After having treated with anthracene powder and experimented with ultra violet lamp, the said currency notes were placed in the fold of rexine money purse which was kept empty on personal search being made of the complainant and that money purse containing these notes was put in the left side pocket of the bush-shirt of the complainant. Necessary instructions were given to the complainant, panchas and other members of the raiding party. Thereafter, the first part of the panchnama was done in the office of A.C.B. Thereafter, the raiding party along with panchas proceeded in Government vehicle towawrds village Zezara. The complainant and Panch No. 1 thereafter went to the office of accused and other members walked behind them. The complainant and Panch No. 1 entered into the Panchayat office and other raiding party members kept themselves concealed around that office. It is alleged that at about 2.00 O''clock in the noon, the complainant and panch No. 1 came back from the office and informed the P.I. that the accused asked the complainant to call his uncle Virjibhai and then only the extracts will be given and he was asked to come latest by about 4.00 to 5.00 PM. Thereafter, the complainant came back with his uncle Virjibhai and thereafter the complainant, along with Panch No. 1 and his uncle went in the office of Gram Panchayat Zezara. The accused prepared the extract and gave it to the complainant and asked him to pay the amount and thereupon the complainant took out tainted currency notes from his pocket and put that amount on the table and put a paper on the currency notes. Thereafter, the raiding party rushed to the office of accused on signal being given by the complainant. The Police Inspector disclosed his identity to the accused and recovered the amount, which was placed by the complainant on the table. Thereafter, the currency notes, papers and the hands of the accused were experimented with the aid of ultra violet lamp and on such experiment, the light blue florescent light was found emitted therefrom. The currency notes and the papers were seized under the panchnama, prepared in presence of panchas. The Police Inspector recorded the statement of Virjibhai (uncle of the complainant - P.W.4) and Arjanbhai Merubhai, (P.W.3) Peon of the accused''s office. Thereafter, the offence was registered against the accused and the investigation was entrusted to PI Shri Vaishnav.

Thereafter, PI Shri Vaishnav carried out the investigation. The statement of complainant and other witnesses were recorded. Necessary sanction was obtained from the concerned Authority and after the investigation was over the charge-sheet was filed against the Appellant u/s 7, 13(1)(d) and 13(2) of P.C. Act.

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

In order to bring home the charge levelled against the Appellant- accused, the prosecution has examined as many as 5 (five) witnesses and also relied upon the documentary evidence.

Thereafter, after examining the witnesses, further statement of the A ppellant-accused u/s 313 of Cr PC was recorded in which the Appellant-accused has denied the case of the prosecution. The accused has also produced his statement in writing (Exh.23) in which it has been stated that complainant Zinabhai was to pay the Government dues at the time of incident and that amount was being paid after the incident and the accused has also produced the statement showing the outstanding amount in the account of Zinabhai, the complainant. He has further stated in his statement that false complaint is filed by the complainant against him at the instance of Premjibhai Shivabhai, MLA, who has enmity against the accused.

After considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 23.06.1999 held the Appellant - accused guilty to the charge levelled against him and convicted and sentenced the Appellant accused, as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence dated 23.6.1999, passed by the learned Special Judge, Ahmedabad (Rural) in Special Case (ACB) No. 11 of 1998, the present Appellant has preferred this appeal.

Heard Mr. Y.S. Lakhani, learned Senior Advocate for the Appellant and Mr H.L. Jani, learned APP for the Respondent-State.

Mr. Lakhani, learned advocate, appearing for the Appellant has read the charge Exh. 6 and contended that as per the charge, it appears that the alleged trap amount was put by the complainant on the table of the Appellant - accused. The complainant, in his examination in chief, in Para - 5, has also deposed that when the copy of village form No. 7/12 was prepared and given to the witness, at that time the trap amount was given to the Appellant - accused. As per the say of this witness, he has stated that when the Appellant - accused Talati told him that the amount is required to be given and, therefore, it was given and that trap amount was put on the table by the present witness and on that trap amount one paper was put by the Talati and then signal was given. He has contended that if the deposition of the witnesses are seen and read together, it is clearly coming out on record that there are material contradictions in the deposition of witnesses. If the depositions are kept in mind together it is not possible to reconcile as to how and in what manner the incident has occurred. He has contended that when the deposition of the peon of the office is considered, he has categorically stated that the complainant wanted to give money to the accused, but, he refused to accept it and, therefore, the complainant put the money on the table. He has contended that the complainant, in his deposition, has also not stated that the money was put on table on being asked by the accused. He has contended that when the witnesses are not consistent in the story which go to the root of the case, the accused cannot be held guilty for the offences alleged against him. He has contended that when the demand is not proved beyond reasonable doubt, then no case can be proved against the accused beyond reasonable doubt. Mr. Lakhani has read the cross examination of the complainant and contended that the complainant has categorically admitted in his cross examination that when the complainant had gone to obtain the certificate from the Talati, at that time, the Talati informed him that whatever dues of the Government are pending, he has to pay and then he would get the Certificate. The complainant has also admitted that he has visited the office of Talati often frequently and, therefore, he was displeased with the accused. He has contended that it has also come in evidence that:

after putting the amount on the table and after preparing the bunch of extracts, to be given to the complainant, the accused had gone out of his office for urinal.

If the accused intended to accept the bribe money then he wou ld have taken the money with him when he left office for urinal, which clearly suggests that he did not accept the amount though offered and placed by the complainant on the table. He has contended that the conduct of the complainant is not natural. The complainant has stated in his evidence that for giving extracts he was called on 4 to 5 occasions by the accused, however, the complainant did not disclose this fact to his uncle P.W.4 - Virjibhai. Therefore, the story put forward by the complainant is not believable and it cannot be said that the prosecution established the initial demand of bribe by the accused from the complainant. Mr. Lakhani has further contended that there are discrepancies in version of the prosecution witnesses as to timings of giving signal by the complainant and, therefore, the evidence of the witnesses cannot be said to be trustworthy. Mr. Lakhani has also contended that the complainant has admitted in his cross examination that he is uneducated and illiterate and, therefore, when he had gone to file complaint one Sagarbhai was with him and said Sagarbhai and Dodiya Saheb (Trapping Officer) have written the complainant and he was asked to put the signature. He has also admitted in his cross examination that on the next day when he had gone to A.C.B. Office, said Sagarbhai was with him. However, the prosecution has not examined this material witness Sagarbhai to corroborate the say of the complainant. Therefore, non-examination of this material witness would be fatal the case of the prosecution. Mr. Lakhani has also read the evidence of P.W.2 - Vijaykumar Laljibhai Prajapati (Exh.10) and contended that this witness is a panch witness, who had accompanied the complainant. He has contended that from the evidence of this witness, it is clearly established that there is no demand made by the Appellant - accused. Mr. Lakhani has also read the evidence of P.W.4 - Virjibhai Kachrabhai (Exh.19) and contended that from the evidence of this witness also the prosecution is not able to establish the demand made by the complainant. He has contended that looking to the over all evidence the demand and acceptance is not proved and, therefore, the judgment and order of conviction passed by the learned Judge may be quashed and set aside. Mr. Lakhani has also relied upon a decision in the case of Banarsi Dass Vs. State of Haryana, and contended that in absence of proof of demand,the prosecution has failed to prove its case beyond reasonable doubt and the judgment of the trial Court may be quashed and set aside and the Appellant may be acquitted from the charges alleged against him.

As against this, Mr Jani, learned APP appearing for the Respondent - State has supported the judgment and order passed by the learned Special Judge. He has contended that the learned Judge has not committed any error in holding the Appellant guilty of the charges levelled against him. He has contended that looking to the evidence of complainant, Panch witness and the Trapping Officer, the demand, recovery and acceptance by the accused is proved and, therefore, no interference is called for by this Court. He has contended that the learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper judgment. Mr. Jani has also contended that the presumption is required to be drawn against the accused u/s 20 of the P.C. Act. He has also contended that the trap amount is recovered from the table of the accused and from the evidence of the complainant and other witnesses it is clearly established that at the instance of accused the said amount was put on the table of the accused. 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 oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the Appellant. It is pertinent to note that in corruption cases four things are required to be appreciated, viz.

(I) initial demand,

(ii) second demand to be made in presence of Panch,

(iii) voluntary acceptance and

(iv) recovery of amount.

From the perusal of the oral evidence of P.W.1 Jinabhai Mangabhai (Exh.9) - the complainant, it is clearly established that he is illiterate person. He has categorically admitted in his evidence that when he had gone to file complaint, one Sagarbhai was with him and said Sagarbhai and Dodiya Saheb (Trapping Officer) have written the complaint and asked him to put his signature. Even on the next day, as per the deposition of the complainant, said Sagarbhai had accompanied the complainant at the A.C.B. Office. However, the prosecution has not examined this star and material witness to prove it case beyond reasonable doubt. From the evidence of P.W.3 - Arjanbhai Merubha (Exh.12), who is Peon in the Panchayat office, it clearly appears that at the time of incident he was present in the office. He has categorically deposed that complainant has asked the Talati for copy and that Talati told the complainant that he is giving. He has also stated that the complainant has given money, but the complainant did not accept it and, therefore, the complainant has put the amount on the table. In the present case the amount is recovered from the table of the accused, but, in connection of demand alleged to have been made by the accused, no fruitful or reliable circumstantial evidence is produced on record. Even no anthracene powder was found from the body of the accused and when the demand and acceptance is not proved beyond reasonable doubt then the learned Judge has committed grave error in holding the Appellant - accused guilty for the offences alleged against him.

Looking to the overall evidence of the prosecution witnesses, it is clearly established that the Appellant has not made any demand from the complainant. Even from the evidence of panch witness, it is not established that whether any demand has been made by the Appellant from the complainant. Looking to the evidence, it clearly appears that there are material contradictions in the evidence of prosecution witnesses. I have also perused the statement of the present Appellant recorded u/s 313 of Code of Criminal Procedure and the additional reply submitted by the accused vide Exh.23, in which he has stated that the complainant had approached him for obtaining certificate showing that there is no Government dues pending in the name of complainant. It is also stated in the said writing that some dues were pending and at the time of incident the complainant has paid the amount towards the pending dues. The accused has also produced certified copy of document showing that the amount was due in the account of the complainant. He has mentioned in the said writing that the local M.L.A. Shri Premjibhai Shivabhai Vadvani was having enmity with the accused and the complainant was a man of said M.L.A. and, therefore, false case has been filed against him. The probable defence is established by the present Appellant beyond reasonable doubt. In the decision of the Hon''ble Supreme Court in the case of Banarsi Dass Vs. State of Haryana, the Hon''ble Supreme Court has observed that mere proof of recovery of bribe money from accused 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. The amount is also not recovered from the Appellant - accused. Even the anthracene powder was also not found on the person of the accused. Therefore, in absence of any evidence regarding the demand, then mere recovery, that too on the table of the Appellant - accused, is not sufficient to convict the present Appellant and no presumption can be raised, and hence, this appeal deserves to be allowed.

In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 23.06.1999 passed by the learned Special Judge, Ahmedabad (Rural) in Special Case No. 11 of 1998 is hereby quashed and set aside. The Appellant-accused is hereby acquitted from all the charges levelled against him. Fine, if paid, be refunded to the Appellant. The Appellant-accused is on bail, his bail bonds stands discharged. R & P to be sent back to the trial court forthwith.