Shashikant Atmaram Parmar vs State of Gujarat

Mr. R.P. Dholaria, J.(Oral)—The appellant - original accused has preferred the present appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 31.12.2002 rendered by learned Joint District Judge and Presiding Officer, 3rd Fast Track Court, Nadiad in ACB Case No. 3 of 1998.

The short facts giving rise to the present appeal are that as the complainant wanted to get his lands amalgamated and consolidated for panchayat''s pasture land, he had applied one year prior to the occurrence of the incident to the Collector. It is alleged that six months prior to the incident, Circle Inspector Mr. Gohil had come and inspected two lands. It is alleged that the appellant who was Revenue Circle Officer at Matar had inspected the land in pursuance of the application submitted by the complainant and drawn the panchnama, statement of the complainant was recorded but his signature was not obtained below it. It is alleged that the appellant - accused demanded Rs. 10,000/- for favour of the complainant, but the complainant requested the appellant to reduce the said amount which was scaled down to Rs. 6000/- and further the said amount was scaled down to Rs. 4000/-. As the complainant did not want to part with the said amount, he approached the ACB office on 10.9.1997 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. J.M. Panchal, learned senior advocate for the appellant has argued that as per the prosecution case, the complainant wanted to consolidate the government land and club with his land bearing block no.759 situated at village Setra, Taluka Matar, District Kheda and hence, he applied to the Collector and the appellant accused who was serving as Circle Inspector, Matar visited for the inquiry on 7.9.1997, carried out the panchnama and demanded Rs. 10,000/- as illegal gratification for giving favourable opinion for the said consolidation work. However, as the complainant was not able to pay the said amount, after negotiation, it was scaled down to Rs. 4000/- and ultimately, the appellant was caught red handed on 10.9.1997. He submitted that the complainant is very specific that he lodged the complaint on 10.9.1997, whereas the predemand was raised on 7.9.1997, at that time, demand was scaled down from Rs. 10,000/- to Rs. 6000/- and thereafter on the subsequent day, he could not meet to the complainant and on 9.9.1997, the amount was further scaled down to Rs. 4000/- and as the complainant was not willing to pay the illegal gratification, he approached the ACB office on 10.9.1997 and on the same day, trap was arranged. Mr. Panchal has drawn attention of this Court to the fact that muddamal article No.4 seized during the course of investigation came to be proved during the course of depositions of two Investigating Officers in the present case. He submitted that panchnama was drawn on 3.9.1997 and there was no panchnama or inquiry on 7.9.1997 and, therefore, inquiry at the time of predemand itself becomes doubtful. He submitted that even at the time of trap when the complainant remained present along with panch No.1, at that time, his behaviour and conduct clearly emerging out unnatural though nothing was demanded from him by the appellant accused, but the complainant voluntarily placed money on the towel and thereafter though he had visited the place of the appellant for carrying out consolidation work of his land for which, the complainant was directed to wait for recording his statement but the complainant denied. He submitted that the evidence on record clearly suggests that prior to application made by the complainant, his applications were rejected twice by the Collector and the application in question is for the third time and he was so much eager for consolidation and, therefore, entire evidence of the complainant becomes doubtful. He submitted that predemand and scaling down of the amount of illegal gratification are not at all getting corroboration from the depositions of PW 4, PW 5 and Investigating Officer and hence, the entire evidence of the complainant becomes doubtful. He, therefore, submitted that the prosecution has miserably failed to establish vital ingredients as regards to demand, acceptance and recovery of the alleged bribe amount so far and, therefore, the judgment of conviction is not based upon the evidence on record which is not sustainable. Lastly, he submitted that the impugned judgment and order of conviction is required to be set aside.

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 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. J.M. Panchal, learned senior 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 appellant accused was serving as Circle Inspector in the Mamlatdar''s office, Matar, District Kheda. It is alleged that while inquiring into the application for consolidation of the lands filed by the complainant on 7.9.1997, the appellant raised demand of illegal gratification of Rs. 10,000/- for favourable opinion which came to be scaled down to Rs. 4000/- and on 10.9.1997, during the trap, the appellant was caught red handed along with tainted currency notes and thereby the appellant committed the offence as alleged against him.

PW 1-Manubhai Karsanbhai Dulera has been examined at Exh.14. The witness has deposed that he has applied to the office of the Collector, Kheda for consolidation of the land and that the application was made one year prior to the date of incident. The witness has deposed that the appellant accused visited his village on 7.9.1997 and he was called in the panchayat office for the first time and thereafter he went with the accused in the field for drawing the panchnama. The panchnama was carried out but the signature of the witness was not obtained. The witness has deposed that the appellant accused stated that expenses of Rs. 10,000/- would be incurred, but the witness showed his inability to pay the said amount and ultimately, it was agreed to Rs. 6000/-. The witness has deposed that thereafter he requested the appellant to scale down the said amount to Rs. 4000/- and in response to the query as to where the said amount was to be paid, the appellant stated that the amount be paid at his house. The witness has stated that as he was not willing to pay the said amount, he approached the ACB office and lodged the complaint. The witness has deposed that thereafter the trap was arranged and as per the appointed date, time and place, the witness reached at the place and tried to hand over the amount, at that time, the appellant stated to place the said amount on the towel lying on the cot and accordingly, the witness placed the amount on it. The witness has deposed that thereafter the appellant called Nilesh and asked him to take the said amount. In the cross examination, the witness has admitted that without referring to the muddamal article No. 4, when he was confronted as to whether the panchnama was drawn by the present appellant on 3.9.1997, the witness denied the same, but after showing muddamal article No.4 and on going through the same, the witness has admitted that the said panchnama was carried out on 3.9.1997. The witness has also admitted the contents of the said panchnama and that the appellant has not carried out any proceedings after 3.9.1997. The witness has also admitted that the papers contained in muddamal article No.3 were prepared in the presence of the Talati as well as panch and in his presence.

PW 2 - Rameshbhai Ranchhodbhai Megha has been examined at Exh.18. The witness has deposed that he was serving as Beat Guard in the Forest Department and on 10.4.1997, he was requisitioned as panch. The witness has deposed that the complainant took out the tainted currency notes from his left pocket through his right hand and placed the same on the towel lying on the cot and thereafter the appellant called his son to take the same and hence, the son of the appellant took the same and placed it on the TV and thereafter there was talk taken place between the complainant and the appellant. In the cross examination, the witness has admitted that he has noticed prior acquittance between the complainant and the accused and that there was no talk as regards to illegal gratification between the complainant and the accused. The witness has admitted that regarding consolidation proceedings, the complainant initiated the talk. The witness has admitted that it was rainy day and the clothes of the complainant were wet and, therefore, he took towel and went to osari to clean his hands and legs. The witness has admitted that the appellant accused had not demanded and accepted any illegal gratification.

PW 4 - Nalinkumar Somalal Joshi has been examined at Exh.27. The witness has deposed that he was serving as Police Inspector in ACB and recorded the complaint of the complainant. The witness has deposed as to how he has arranged the trap. In the cross examination, the witness has admitted that the panchnama was drawn in the presence of the Circle Officer, Matar on 3.9.1997 and that no panchnama was carried out on 7.9.1997 in village Shetra.

PW 5 - Arvindbhai Dhanjibhai Jasoliya has been examined at Exh.46. The witness has deposed that he has performed the duty as second Investigating Officer and after conclusion of the investigation, he has filed the charge-sheet. In the cross examination, the witness has admitted that he has not inquired from the villagers or Talati-cum-Mantri or Sarpanch of the village as to whether the appellant accused had visited village Shetra on 7.9.1997. The witness has admitted that as per muddamal article No.4, no panchnama was carried out on 7.9.1997. The witness has admitted that though the complainant has specifically alleged that on 7.9.1997, the panchnama of gauchar land was drawn, but he has not carried out any investigation in this respect.

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 on record, more particularly, the fact as regards to pre-demand of illegal gratification of Rs. 10,000/- which alleged to be scaled down from Rs. 10,000/- to Rs. 6000/- and thereafter on the subsequent day, it was scaled down from Rs. 6000/- to Rs. 4000/- is not getting established. On overall appreciation of the evidence of the complainant, it appears that on one set of the evidence of the complainant, panch No.1, PW Nos.1 and 2, the complainant has specifically put up the case that on 7.9.1997, there was predemand of Rs. 10,000/- which was scaled down to Rs. 6000/- and on 8.9.1997, he visited the office of the accused, but he was not available and, therefore, he visited on the subsequent date i.e. on 9.9.1997 at the Vatrak bridge, Nadiad and ultimately, the illegal gratification was scaled down to Rs. 4000/- which was based upon the inquiry came to be made specifically on 7.9.1997 and that the said predemand was raised on 7.9.1997 and it was scaled down on 9.9.1997 and as the complainant was not willing to pay the same, the complaint was lodged on 10.9.1997. However, on reading another set of evidence i.e. evidence of PW Nos.4 and 5, it appears that in light of muddamal article No.4, no such panchnama was carried out on 7.9.1997, however, the same was being carried out on 3.9.1997 and as specifically admitted by the complainant in his cross examination that after 3.9.1997, there was no proceedings and he has not met the accused. Under the circumstances, entire case put up by the prosecution as regards to predemand and scaling down itself becomes doubtful. Even otherwise also, the complaint as well as panchnama which were contemporaneous in nature also disclosing that the panchnama was carried out on 7.9.1997 and demand was also raised on 7.9.1997, whereas muddamal article No.4, more particularly, at pages 73 to 77, the said panchnama was carried out on 3.9.1997. If the comparative weightage is given to the aforesaid two sets of evidence, in that eventuality, muddamal article No.4 as well as depositions of PW Nos.4 and 5 get more weightage as the same is getting corroboration from the evidence of the complainant himself in the cross examination. In this view of the matter, entire case of the complainant put up in the complaint by the prosecution does not inspire any confidence and hence, the benefit of doubt is required to be extended to the appellant accused.

For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 31.12.2002 rendered by learned Joint District Judge and Presiding Officer, 3rd Fast Track Court, Nadiad in ACB Case No.3 of 1998 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.