Takhatsinh Makhubhai Parmar vs State of Gujarat

Mr. R.P. Dholaria, J. (Oral)—This appeal filed under Section 374 of the Code of Criminal Procedure is directed against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Court No.24, Ahmedabad, on 26.5.1998, in Special Case No.23 of 1994, whereby the accused-appellant has been found guilty of commission of the offences under Section 7 of the Prevention of Corruption Act, 1988 (for short "the Act") and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- and in default to undergo simple imprisonment for three months and under Section 13(1)(d) read with Section 13 (2) of the Act and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- and in default to undergo simple imprisonment for three months.

According to the prosecution, the accused-appellant was, at the relevant point of time, serving in Gujarat State Civil Supplies Corporation. In the year 1994, a complaint was filed before ACB, Ahmedabad, by one Manish Jagdish Patel working in Mahavir Rice and Pulse Mill against the appellant alleging that the appellant had demanded gratification other than legal remuneration in respect of official act and that the appellant had committed criminal misconduct. Accordingly, a trap was arranged on 25.3.1994 whereby the appellant-accused demanded an illegal gratification of Rs.1100/- and the complainant delivered the said amount and the appellant-accused was caught red-handed by the ACB officials and raiding party. The tainted currency notes were recovered from the possession of the accused-appellant.

After preparing panchnamas and seizure memo, statement of various witness were recorded and ultimately charge-sheet was filed against the accused-appellant and on completion of investigation after obtaining necessary sanction from the Competent Authority, a case was registered as Special Case No.23 of 1994 and trial was initiated against the accused-appellant. To prove the case, the prosecution examined several witnesses and also produced several documentary evidence. At the end of trial after recording the statement of the accused-appellant under Section 313 of the Code of Criminal Procedure and after hearing arguments on behalf of prosecution and defence, the learned trial Court convicted and sentenced the accused-appellant for the charges levelled against him by judgment and order dated 25.5.1998. Being aggrieved and dissatisfied with the said judgment and order of conviction passed by the trial Court, the accused-appellant has preferred the present appeal.

This Court has heard Ms. Megha Jani, learned advocate for the appellant-accused and Ms. Monali H. Bhatt, Additional Public Prosecutor for the respondent-State.

Ms. Megha Jani, learned advocate for the appellant has taken this Court through the evidence of the witnesses as well as impugned order and argued that this is a clear cut case wherein the complainant has turned hostile and has not at all supported the case of the prosecution. She has further argued that the complainant in his deposition at Exh:4 did not support the incident as narrated in the complaint. He has specifically stated in his deposition that the amount of Rs.1100/was given back to the appellant against two bags of rice which could not be delivered as required. In the circumstances, the very fact of illegal gratification is not proved. The same evidence is also forthcoming from another important witness namely M.R. Waghela PW2 who was made to act as Panch No.1 in whose presence the trap was arranged. In his deposition, he has categorically stated that on the way to the Office of Corporation, the complainant had informed that Rs.1100/is to be given to the appellant being the amount of rice. In his cross-examination, he has clearly admitted that he has not viewed and heard any conversation between the complainant and accused. Ms. Megha Jani, learned advocate has argued that not only the prosecution has miserably failed to establish vital ingredients as regards demand and acceptance of illegal gratification, but from the perusal of the panchnama which was drawn at the time of carrying out the raid, it is noticed that on being asked by the complainant as to what happened to remaining amount to which the complainant delivered the aforesaid currency notes and thereafter the complainant himself has stated that the said amount is to be adjusted against two bags of rice. In that view of the matter, at the time of trap, the aforesaid amount was not required to be handedover as the illegal gratification, but it was against supply of two bags of rice to the accused by the complainant. In these circumstances, the factum of trap was baseless from the beginning. She has further argued that evidence on record is clearly indicative that there were several rejections of the goods supplied by the present accused as it was not confirming to the standard prescribed and consequently therefore, the employer of the complainant wanted to teach the appellant-accused a lesson by implicating him in false bribery case. Such evidence is coming forth from the evidence of complainant himself and the previous rejections of several trucks are also proved. Consequently therefore, vital ingredients regarding demand and acceptance have not been proved. She has further argued that learned Judge has recorded findings based upon surmises and presumptions which are not permitted under the law and the same is not in consonance with the evidence available on record. She has further argued that the complainant is in habit of making false complaint and he has previously filed such types of complaints against several officers of the Corporation and all have been dismissed. Lastly, she has requested this Court to allow the present appeal.

On the other-hand, Ms. Monali Bhatt, learned APP has supported the judgment rendered by the learned trial Court and has argued that the panch PW2 in his deposition at Exh:28 has supported the case of the prosecution wherein vital ingredients as regards demand and acceptance has been established. She has submitted that vital ingredient i.e. demand is clearly coming out from the complaint itself and at the time of raid also, the complainant delivered tainted currency notes and the accused-appellant accepted the same, therefore, demand itself is required to be inferred as the tainted currency notes were recovered from the possession of the accused. She has further submitted that test of ultraviolate lamp clearly indicates that pocket of the shirt as well as fingers of the appellant-accused were tainted with anthracene powder and hence, finding recorded by learned trial Court is in accordance with the evidence available on record which calls for no interference.

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 accused at the relevant time, was serving as Grading Officer in Gujarat State Civil Supplies Corporation, whereas, the complainant was serving as manager in Mahalaxmi Rice & Pulse Mills, Ahmedabad. The complainant used to get approved the grading from the accused for supplying the goods to the Civil Supply Corporation and while doing so, the accused demanded Rs.1100/- as illegal gratification and a trap was arranged on 25.3.1994, whereby the accused demanded the said amount and the complainant delivered the same and he was caught red handed and thereby the accused committed offence punishable under Sections 7, 13(1)(d) read with Sections 13(2) of the Act.

At this juncture, it would be fruitful to refer to some decisions of Hon''ble Apex Court. In the case of A. Subair v. State of Kerala reported in (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon''ble Apex Court 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 the case of State of Kerala and another v. C.P. Rao reported in (2011) 6 SCC 450, the Hon''ble 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 Hon''ble Supreme Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined by the Hon''ble Apex Court in the case of B. Jayaraj v. State of A.P. Reported in AIR 2014 SC (Supp) 1837, 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)&(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)&(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 reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon''ble Apex Court in the case of Sujit Biswas v. State of Assam, reported in (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.

In order to prove the guilt on the part of the accused, the prosecution has examined several witnesses and produced several documentary evidences. PW1 complainant Manish Jagdishbhai Patel has deposed that in the year 1994, he was working as Manager of Mahalaxmi Rice & Pulse Mills and his mill used to supply rice in levy and at that time, the function of grading the goods was undertaken by the appellant-accused.

Previously, two trucks of the complainant were rejected by the accused. Consequently therefore, his employer Nirmesh Shah had instructed him to teach a lesson to the accused and the amount of Rs.1100/- which he had given against two bags of rice was to be returned to the accused. As the complainant has not supported the case of the prosecution, he was declared hostile. However, to some extent, he has admitted that he has filed the complaint and the amount of bribe of Rs.1100/- is required to be returned back to the appellant-accused.

However, in the cross-examination, he has clearly and categorically admitted that before 2 to 3 days of filing of the complaint, their truck was accepted by the Civil Supply Corporation as per the standard and he has also admitted that from the time of acceptance of truck and till the filing of the complaint, the accused did not demand any illegal gratification and that even at the time of passing of last truck illegal gratification was not demanded. He has further admitted that Panch PW1 was standing outside the closed door of laboratory and it was not possible for him to view and hear any conversation between him and the accused. He has further admitted that rejection of 12 orders were brought on record at Exh:8 to 23 and he has also admitted that the same was not confirming to the standard prescribed by the Supply Department.

PW2 Mahendrakumar Waghela has deposed that he is a government official and was called by the ACB Officials and in his presence, the complaint was recorded and thereafter a detailed panchanama was carried out after obtaining the amount of bribe of Rs.1100/- in denomination of Rs.100/- and thereafter, anthracene powder was applied on the currency notes and the experiment of ultraviolet lamp was carried out and detailed information was given to the panchas and complainant as to how the raid was going to be conducted. He has further deposed that while he proceeded along with the complainant and member of the raiding party in order to reach the office of accused, at that time, the complainant told him that he has to return the said amount to Mr. Parmar against the consideration of bags of rice and that amount is to be presented as illegal gratification to the accused and that said amount is to be given at the office of the accused. On reaching the office of the accused, the complainant took the money from his pocket and gave to the accused and the accused put it in his pocket. In the cross-examination, more particularly in para 5, he has admitted that the complainant told him that his employer was required to return an amount of Rs.1100/- to the accused and the said amount of Rs.1100/- is to be given as illegal gratification and he also admitted that he came to know that the amount of Rs.1100/- given as illegal gratification was the amount to be returned for bags of rice. He has further admitted that since two bags of rice could not be supplied to the accused an amount of Rs.1100/was to be returned and that the said amount was given to the accused against two bags of rice and that amount was recovered by the ACB Officials at the time of raid as illegal gratification. He has further admitted that while he reached the office of the accused, he was standing outside the office nearby the door and the accused and complainant were inside and he did not hear anything regarding the conversation which took place between them. He has further admitted that in the panchnama itself, it was stated that the aforesaid amount of Rs.1100/- is to be counted against two bags of rice.

PW3 Abdul Wahidkhan has deposed that he was serving as Police Inspector in ACB and in his presence complaint was lodged and trap was arranged and he has also carried out the entire investigation and has filed the charge-sheet. The defence has also examined Rajpoot who was working as Dusting Operator in the Supply Department and was subordinate to the accused. In his cross-examination, he has admitted that at the time of raid, he was present there and at that time, the complainant as well as accused were in the laboratory and only two persons were there and at the relevant time, Manishbhai-complainant told that he had come to return the amount of two bags of rice to him and thereafter, the complainant placed the aforesaid amount on the table and when the aforesaid conversation took place, there were two persons. However, nothing worth has come out in his cross-examination.

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 with regard to the factum of demand and acceptance.

In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, it appears that 12 trucks of goods were rejected by the present accused belonging to the Rice Mill of the complainant and the said evidence is brought on record at Exh:8 to 23. The panchnama of trap at Exh:29 more particularly in the second part, clearly mentions that when the complainant reached the main office, the accused asked the complainant as to when would the truck come and the complainant replied that it has left and will reach there within an hour. Thereafter, Shri Parmar asked him to give the money and the complainant took currency notes from his left pocket of his shirt and gave to Mr. Parmar and told this is to be counted against two bags of rice which was asked for.

The prosecution has to prove three main vital ingredients of illegal gratification, namely demand, acceptance and recovery of tainted currency notes. On overall analysis of the evidence on record, so far as the demand and acceptance of the illegal gratification is concerned, PW1 complainant was declared hostile during the course of trial and he did not support the case of the prosecution and he has deposed that as the accused used to reject consequently, his trucks of rice, therefore, his employer Nirmesh Shah directed to him to teach lesson by implicating him in a bribery case. In consequence whereof, he approached the ACB office for arranging trap. He himself told the ACB officials while drawing the panchanma that amount of Rs.1100/- is required to be returned to the accused and that amount is to be paid in consideration of illegal gratification in order to teach him lesson. The said fact is also revealed from the recitals of the panchnama as well as in his examination before the trial Court. In that view of the matter the aforesaid amount of Rs.1100/- came to be tainted with anthrance powder and came to be handed over to the accused which was also came to be recovered from the possession of the accused. However, the same was not delivered to him as illegal gratification but which was required to be returned for price of two bags of rice which was asked by the accused. Such type of evidence is precisely coming out from the recitals of the panchnama as well as from the deposition of complainant himself. Moreover, the PW2 was required to view as well as hear the conversation which took place between complainant and accused, however, he could not hear the conversation between them.

In view of the aforesaid nature of evidence from the beginning i.e. at the time of drawing panchanma, prior to arranging the trap, the complainant himself has made clear that the aforesaid amount was required to be returned to the accused as price of rice of two bags and that was to be treated as an amount of illegal gratification itself, is indicative of the fact that the said amount was not an amount of illegal gratification. Consequently therefore, the entire trap was meaningless itself.

On overall evaluation of the evidence on record, the prosecution miserably failed to prove as regard demand of illegal gratification of Rs.1100/- as well acceptance and recovery. It also appears from the records that the learned trial Court has recorded the reasons relying upon the evidence as contained in the examination-in-chief and it appears that the learned trial Court has overlooked the entire version which was revealed from the cross-examination.

Not only that, but the learned trial Court has also failed to appreciate the factual scenario regarding handing over the amount of Rs.1100/- as price of two bags of rice. It also appears that the finding of the learned trial Court with regard to demand and acceptance is based upon the presumption and surmises which is not permitted under such sort of cases as the prosecution is obliged to prove beyond reasonable doubt regarding demand and acceptance by leading and clinching evidence. In this view of the matter, finding recorded by learned trial Court is not in consonance with the evidence available on record. Therefore, as stated above, in absence of any specific and clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable.

As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.

For the reasons recorded above, this appeal succeeds. The impugned judgment and order dated 26.5.1998 rendered by learned the Additional Sessions Judge, Court No.24, Ahmedabad, in Special Case No.23 of 1994 is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. Fine, if paid, be refunded to the appellant. Surety, if any shall stands discharged. R & P be sent back to the trial Court, forthwith.