Gujarat High Court
Dilipkumar Bhalchandra Raval vs State Of Gujarat on 16 April, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 112 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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DILIPKUMAR BHALCHANDRA RAVAL & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Appellant(s) No. 1,1.1,1.2,1.3
MS. JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 16/04/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant under
Section 374 of Code of Criminal Procedure, 1973 against the
judgement and order of conviction passed by the learned
Special Judge, 5th Fast Track Court, Surat, (hereinafter
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referred to as "the learned Trial Court") in Special ACB Case
No. 4 of 1998 on 28.12.2005, whereby, the learned Trial
Court has convicted the appellant for the offence punishable
under Sections 7, 13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as "the PC
Act").
The appellant is hereinafter referred to as the accused
as he stood in the original case for the sake of convenience,
clarity and brevity.
During the pendency of the appeal, the appellant
expired and hence, the legal heirs had filed Criminal Misc.
Application No. 1/2021 in Criminal Appeal No. 112/2006 to
be joined as legal heirs and pursue the appeal and by an
order dated 04.10.2021, the legal heirs were permitted to be
joined in the appeal.
2. The brief facts that emerge from the record of the case
are as under:
2.1 That the accused was working in RTO Check Post,
Songadh and was a public servant and on 22.10.1997, the
complainant - Mr. L.J. Merunjai - Police Insepctor, ACB
Police Station Surat received information that the employees
of RTO Check Post were demanding illegal gratification of
Rs. 20/- to Rs. 30/- from the truck drivers stating that their
trucks were overloaded and hence, a decoy trap was
arranged and the driver of the truck bearing registration no.
MH-19-J-0629 - Shaikh Saeed Shaikh Fayyaz was halted
and he agreed to be a decoy punter. That on 22.10.1997 at
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02.10 hours, the accused demanded for the illegal
gratification of Rs. 50/- and accepted the same from the
decoy punter and after the predetermined signal was given,
the members of the raiding party rushed in and the accused
was caught red handed. That the complainant Mr. L.J.
Merunjai - Police Inspector, ACB Police Station filed the
complaint under Section 7, 13(1)(d) and 13(2) of the PC Act
which was registered at C.R. No. 11/1997 on 20.10.1997.
2.2. That the accused was duly served with the summons
and the accused appeared before the learned Trial Court
and after the procedure under Section 207 of Code of
Criminal Procedure, 1973, the charge was framed by the
learned Trial Court at Exh. 4 and the statement of the
accused was recorded at Exh. 5. The accused denied all the
contents of the charge and the entire evidence of the
prosecution was taken on record.
2.3 The prosecution produced the following oral evidence
to bring home the charge against the accused.
Sr. No. PW Particulars Exh.
Chaudhary
Merunjai
2.4 The prosecution also produced the following
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documentary evidence to bring home the charge against the
accused.
Sr. No. Particulars Exh.
accused.
Surat.
Bonus paid.
Bonus paid.
2.5 That after the closing pursis was submitted by the
learned APP at Exh. 35, further statement of the accused
under Section 313 of Code of Criminal Procedure was
recorded, wherein, the accused had stated that he has not
demanded any amount of illegal gratification or accepted the
same from anyone and is working as a Junior Clerk in the
Songadh Check Post. That the work of verifying the overload
trucks and to check the permits and documents of the
truck, is of the RTO Inspector and on the date of the trap
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RTO Inspector - Dineshrai Thakorlal Mehta was verifying
the documents of the trucks and checking the trucks and
he has not checked the papers of any truck was it was not
within his jurisdiction. That he has falsely been involved in
the offence.
2.6 That after the arguments of learned APP and learned
advocate for the accused were heard, the learned Trial Court
was pleased to convict the accused and sentenced the
accused to one year rigorous imprisonment and fine of Rs.
1,000/- and in default, three months rigorous
imprisonment for the offence under Section 7 of the PC Act,
two years rigorous imprisonment and fine of Rs. 1,000/-
and in default, three months rigorous imprisonment for the
offence under Section 13(1)(d) and Section 13(2) of the PC
Act. The learned Trial Court was pleased to order that all
the sentences to run concurrently.
3. Being aggrieved and dissatisfied with the said
judgement and order of conviction, the accused has filed the
present appeal mainly contending that the impugned
judgement and order is illegal, improper and unjust and the
judgement is passed without considering the material on
record and the learned Trial Court has not properly
appreciated the evidence in true perspective. That the
impugned judgement and order is merely based on
presumptions, conjectures and surmises and the
prosecution has failed to prove the ingredients of demand,
acceptance and recovery beyond reasonable doubts. That
the evidence of the witnesses are not properly appreciated
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and the learned Trial Court has only considered the
examination-in-chief of the witnesses and has not
considered the cross-examination, wherein, the defence of
the accused is put up. Moreover, the driver punter Shaikh
Saeed Shaikh Fayyaz has stated that the currency notes in
the denomination of Rs. 100/-, Rs. 50/-, Rs. 20/-, Rs. 10/-
and Rs. 5/- were handed over when in fact, it is the specific
case of the prosecution that the currency notes of
denomination of Rs. 50/- and Rs. 10/- were handed over to
the driver punter. That the driver has stated that he entered
into the cabin where the accused was sitting and after
verifying the papers, the accused had demanded for the
illegal gratification from him but during the cross-
examination, he has admitted that he had not entered into
the check post. Moreover, the currency note of Rs. 50/- was
recovered from the drawer of the table and other currency
notes were also recovered. That the panch witness has not
accompanied the punter driver and it has also come on
record that the driver being a resident of the State of
Maharashtra does know Gujarati and this is also creates a
doubt in the conversation. That the prosecution has not
proved the demand by the accused and it is also on record
that there was no complaint and without any complaint, the
trap has been arranged and the entire case has been
concocted against the appellant who had the duty to
maintain the accounts only. That the RTO Inspector was the
person who had to check the documents of the truck and
had to verify the other aspects of the truck but he has been
conveniently let off and this creates a doubt on the case of
the prosecution. That the complainant is himself the
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Investigating Officer and in this circumstances also, the
case of the prosecution is not believable and in the evidence,
it is on record that the panch witnesses were merely asked
to sign the panchnama mechanically. That there are patent
infirmities in the evidence of the prosecution and the
learned Trial Court has misread all the evidences and has
wrongly convicted the appellant and the judgement and
order of conviction must be set aside and the accused may
be acquitted from all the offences.
4. Heard learned advocate Mr. Shakeel Qureshi for the
appellant and learned APP Ms. Jirga Jhaveri for the
respondent State.
5. Learned advocate Mr. Shakeel Qureshi for the
appellant has taken this Court through the entire evidence
of the prosecution before the learned Trial Court and has
submitted that the prosecution has examined five witnesses
and in the examination-in-chief of the driver Shaikh Saeed
Shaikh Fayyaz, the amount demanded by the accused is not
mentioned and it is clear that the panch witness had not
accompanied the truck driver. That there is no specific
averment in respect of any demand made by the accused
and admittedly, the tainted currency note was recovered
from the drawer of the table. That moreover, it has also
come on record that the truck driver did not know Gujarati
language and he could only speak Hindi and Marathi and it
is also on record that the ACB Officers did not enter the
check post. Moreover, the cleaner of the truck was also
present in the truck who was an independent witness but
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the cleaner has not been examined before the learned Trial
Court. In the evidence of the panch witness, it has also
come on record that the RTO Inspector and one another
peon were also present but they have not been examined
and the panch witness in fact, says that the accused had
gone to the washroom and at that time, the accused was
caught with the tainted currency note. There are major
contradictions in the evidence of the panch witness and the
truck driver and the complainant himself had registered the
complaint, identified himself, had arranged for the trap and
had investigated the offence and that is not permitted as per
the settled principles of law. The demand of illegal
gratification and recovery has not been proved beyond
reasonable doubts and the accused was a junior clerk in
whose duty, it was not to verify the documents of the truck
but it was the duty of the RTO Inspector to verify the
documents of the truck. That the alleged amount of bribe
was recovered from the drawer of the table but there is
contradiction to this effect also as the driver decoy and the
panch witness have made contradictory statements
regarding the recovery. That even though independent
witnesses in the form of the RTO Inspector and the peon
were available, they have not been examined and the
cleaner of the truck has also not been examined. That the
learned Trial Court has completely failed to hold that the
prosecution has not proved the demand and acceptance
beyond reasonable doubts which are the main ingredients
under the PC Act and hence, the judgement and order of
conviction must be set aside and the accused must be
acquitted from all the offences.
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5.1 Learned advocate Mr. Shakeel Qureshi has relied on
Megha Singh Vs. State of Haryana reported in 1995 (0)
AIJEL SC 17518, wherein, the Hon'ble Apex Court has
observed in para 4 as under:
4. After considering the facts and circumstances of
the case, it appears to us that there is discrepancy in
the depositions of the P.Ws. 2 and 3 and in the
absence of any independent corroboration such
discrepancy does not inspire confidence about the
reliability of the prosecution case. We have also noted
another disturbing feature in this case. PW-3, Siri
Chand, head Constable arrested the accused and on
search being conducted by him a pistol and the
cartridges were recovered from the accused. It was on
his complaint a formal first information report was
lodged and the case was initiated. He being
complainant should not have proceeded with the
investigation of the case. But it appears to us that he
was not only the complainant in the case but he
carried on with the investigation and examined
witnesses under Section 161, Cr.P.C. Such practice, to
say the least, should not be resorted to so that there
may not be any occasion to suspect fair and impartial
investigation.
5.2 Learned advocate for the appellant has also relied on
Gopal Lal Ghisulal Chhipa Vs. State of Gujarat reported in
1996 (0) AIJEL HC 203755, wherein, this Court has
observed in para 8 as under:
8. My attention was drawn to the decision of the
Supreme Court in the case of Bhagwansingh v. The
State of Rajasthan wherein it is held that if everything
is done by the police officer, it would be an infirmity in
the case which is bound to reflect on the credibility of
the prosecution case. In that case, the complaint was
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recorded by the Investigating Officer, raid was also
carried out by the Investigating Officer, search and
seizure were also made by him and thereafter the
investigation was also carried out by him and the
charge-sheet was also filed by him before the Court. In
this case, Mr. Vyas, the P.S.I., has also done everything
right from recording of the complaint till the charge-
sheet was filed before the Court. When that is so, the
credibility of the case of the prosecution is certainly
doubtful and the prosecution case must fail on that
count. Even if this tarnishing point is ignored and the
evidence is considered, there is nothing which would
lead me to hold that the prosecution has succeeded in
establishing the charge levelled against the deceased
appellant.
5.3 Learned advocate for the appellant has also relied on
Nagjibhai Fulabhai Khant Vs. State of Gujarat reported in
2017 (0) AIJEL HC 237758, wherein, this Court has
observed in para 19 as under:
19. In the present case, it is the contention of Mr.Qureshi
that PW 5 has assumed all the roles right from arranging
the trap till filing of the chargesheet. On analysis of the
evidence on record, there is some force in the contention
raised by Mr.Qureshi. Admittedly, on receiving secret
officials of information traffic that branch are the police
indulging in corrupt practice, PW 5 has arranged for
running trap, carried out the raid, lodged the complaint,
carried out the investigation and then filed the chargesheet.
This course of action on the part of PW 5 goes against the
basic tenets of criminal jurisprudence credibility and of the
fair investigation. case of the The prosecution becomes
suspicious on this count only. In the facts of the present
case, the status of investigating officer could not be placed
on any pedestal higher than of a complainant and the
complainant himself cannot be the sole agency of
investigation. suspect There fair and should be impartial no
occasion to investigation. Therefore, the case of the
prosecution suffers from the basic infirmity which itself is
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sufficient to vitiate the whole investigation as per the
judgments referred hereinabove.
20. In this view of the matter, the prosecution has
miserably failed to prove vital ingredients as regards to
demand and acceptance and therefore, the judgment and
order of conviction calls for interference by this Court.
Therefore, as stated above, in absence of specific and
clinching evidence to prove all such acts by the accused,
conviction recorded by learned trial Judge is not
sustainable.
5.4 Learned advocate for the appellant has also relied on
Kanubhai Kantibhai Patel Vs. State of Gujarat reported in
1996 (0) AIJEL HC 206214, wherein, this Court has
observed in paras 4 and 5 as under:
4. In law the prosecution has to establish the charge
beyond reasonable doubt. What is required to be
proved has been made clear by the Supreme Court in
the case of Rabindra Kumar Dey v. State of Orissa -
AIR 1977 S.C. 170 as under:-
["Three cardinal principles of criminal jurisprudence
are well settled namely:]
[(1) that the onus lies affirmatively on the
prosecution to prove its case beyond reasonable
doubt and it cannot derive any benefit from
weakness or falsity of the defence version while
proving its case;
(2) that in a criminal trial the accused must be
presumed to be innocent unless proved to be
guilty; and
(3) that As per the such he is onus of the
prosecution never shifts."]
As per such law made clear I will have to consider and
determine whether the charge has been proved beyond
reasonable doubt. Before I proceed to dissect the
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merits of the rival contentions considering the evidence
on record it may be stated how the offence is
constituted and when the prosecution will fail if offence
is not constituted. It is held by the Supreme Court in
the case of Hari Dev Sharma v. State (Delhi
Administration) - AIR 1976 S.C. 1489 that vital part of
the prosecution if cannot be believed, conviction
cannot be based. As laid down in this decision the
demand and acceptance are required to be proved, and
if one of them is not proved being the vital part the
offence cannot be said to have been constituted and
therefore conviction cannot be sustained. Likewise
view has been taken or reaffirmed in the case of
Anantray Lalji Pandya vs. The State of Gujarat - 1982
G.L.H. 472; State of U.P. vs. Ram Asrey 1990 Cri. Law
Reporter, 188; and Palanisamy Raju v. State of Tamil
Nadu - 1986 Criminal Law Reporter, 99. In view of the
law made clear in the abovestated decisions what is
required to be determined is whether prosecution has
successfully established the case about demand and
acceptance.
5. Before I proceed to consider the evidence on the
point, I may deal with one point going to the root of the
case. The Supreme Court in the case of Bhagwansingh
v. The State of Rajasthan - A.I.R. 1976 S.C. 985 has
held that if every thing is done by the police officer it
would be an infirmity in the case which is bound to
reflect on the credibility of the prosecution case. In
that case the complaint was recorded by the
Investigating Officer, raid was also carried out by the
Investigating Officer, search and seizure were also
made by the same Investigating Officer and thereafter
the investigation was also carried out by the same
Investigating Officer till the chargesheet was filed. Here
in the case on hand, Mr. Gadhvi the Police Inspector
has done every thing in the matter right from recording
of the complaint till the chargesheet was filed. When
that is the case the credibility of the case of the
prosecution is certainly suspicious and on that count
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the prosecution must fail. Even if this point tarnishing
the case of the prosecution is overlooked, I see no
justification to maintain the order of conviction and
that is on the ground of non-establishment of the case
of demand and acceptance.
6. Learned APP Ms. Jirga Jhaveri for the State has
submitted that the prosecution has proved the case beyond
reasonable doubt and the learned Trial Court has
appreciated all the evidences properly. The prosecution has
proved all the ingredients of demand, acceptance and
recovery and the case against the accused beyond
reasonable doubt and the learned Trial Court has
considered all the evidences in its true perspective. That no
order of interference is required in the judgement and order
and the appeal of the appellant must be rejected and the
judgement and order of conviction must be confirmed.
7. In case of Neeraj Dutta Vs. State (Govt. of N.C.T. of
Delhi) reported in 2022 0 Supreme (SC) 1248, the Hon'ble
Apex Court has held as under:
"68. What emerges from the aforesaid discussion is
summarised as under:
(a) Proof of demand and acceptance of illegal gratification
by a public servant as a fact in issue by the
prosecution is a sine qua non in order to establish the
guilt of the accused public servant under Sections 7
and 13 (1)(d) (i) and(ii) of the Act
(b) In order to bring home the guilt of the accused, the
prosecution has to first prove the demand of illegal
gratification and the subsequent acceptance as a
matter of fact. This fact in issue can be proved either
by direct evidence which can be in the nature of oral
evidence or documentary evidence.
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(c) Further, the fact in issue, namely, the proof of
demand and acceptance of illegal gratification can
also be proved by circumstantial evidence in the
absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the
demand and acceptance of illegal gratification by the
public servant, the following aspects have to be borne
in mind:
(i) if there is an offer to pay by the bribe giver
without there being any demand from the public
servant and the latter simply accepts the offer
and receives the illegal gratification, it is a case
of acceptance as per Section 7 of the Act. In
such a case, there need not be a prior demand
by the public servant.
(ii) On the other hand, if the public servant makes
a demand and the bribe giver accepts the
demand and tenders the demanded gratification
which in turn is received by the public servant,
it is a case of obtainment. In the case of
obtainment, the prior demand for illegal
gratification emanates from the public servant.
This is an offence under Section 13 (1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the
bribe giver and the demand by the public
servant respectively have to be proved by the
prosecution as a fact in issue. In other words,
mere acceptance or receipt of an illegal
gratification without anything more would not
make it an offence under Section 7 or Section 13
(1)(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to
bring home the offence, there must be an offer
which emanates from the bribe giver which is
accepted by the public servant which would
make it an offence. Similarly, a prior demand by
the public servant when accepted by the bribe
giver and inturn there is a payment made which
is received by the public servant, would be an
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offence of obtainment under Section 13 (1)(d)
and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand
and acceptance or obtainment of an illegal
gratification may be made by a court of law by way of
an inference only when the foundational facts have
been proved by relevant oral and documentary
evidence and not in the absence thereof. On the basis
of the material on record, the Court has the discretion
to raise a presumption of fact while considering
whether the fact of demand has been proved by the
prosecution or not. Of course, a presumption of fact is
subject to rebuttal by the accused and in the absence
of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has
died or is unavailable to let in his evidence during
trial, demand of illegal gratification can be proved by
letting in the evidence of any other witness who can
again let in evidence, either orally or by documentary
evidence or the prosecution can prove the case by
circumstantial evidence. The trial does not abate nor
does it result in an order of acquittal of the accused
public servant.
(g) In so far as Section 7 of the Act is concerned, on the
proof of the facts in issue, Section 20 mandates the
court to raise a presumption that the illegal
gratification was for the purpose of a motive or reward
as mentioned in the said Section. The said
presumption has to be raised by the court as a legal
presumption or a presumption in law. Of course, the
said presumption is also subject to rebuttal. Section
20 does not apply to Section 13 (1) (d) (i) and (ii) of the
Act.
(h) We clarify that the presumption in law under Section
20 of the Act is distinct from presumption of fact
referred to above in point (e) as the former is a
mandatory presumption while the latter is
discretionary in nature."
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8. As per the settled principles of law, in conviction
appeals, when the Appellate Court finds that the findings of
facts was based on wholesome erroneous approach and the
very basis of reasoning was not in the right perspective and
the intrinsic merit of the evidence of the witnesses was not
considered and the trial was perversely disposed of,
permitting manifest error and glaring infirmities, the
Appellate Court can interfere and set aside the judgement
and order of conviction. To exercise this powers in a
conviction appeal, a finding on merits, after considering and
meticulously dissecting the evidence produced by the
prosecution on record is imperative and hence, the entire
evidence produced by the prosecution is meticulously
dissected and reappreciated.
9. To bring the home the charge against the accused, the
prosecution has examined PW1 - Shaikh Saeed Shaikh
Fayyaz at Exh. 9 and this witness has stated that in the
year 1997, he was the driver on truck bearing registration
no. MH-19-J-0629 which belonged to Majid Khan and he
had a cleaner on the truck and in the year 1997, he had
taken the truck and had come to Vyara and at that time,
the ACB Officers had halted the truck near Vyara Railway
Crossing and asked him what was in the truck. That his
documents were checked and the ACB Officers had given
him currency notes of the denomination of Rs. 100/-,
Rs.50/-, Rs. 20/-, Rs. 10/- and Rs. 5/- and had told him
that if any employee demands for any amount on the
border, he was to pay them from the currency notes which
were given to him. That some persons sat in the truck and
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the other officers were following in a jeep. That when they
reached near Songadh border, he halted the truck and took
his documents to the RTO Check Post and the accused had
demanded for money and hence, he took a Rs. 50/- note
from the currency notes that were given to him and gave it
to the accused, who took it and put it in his table drawer.
That the ACB Officer came and caught the accused. That
the drawer was checked and the currency note of Rs. 50/-
was found from the drawer. That his hands and the hands
of the accused were also checked and powder was found on
both their hands. That a panchnama was done and the
currency note that he had given, was found from the drawer
of the table. The witness has further stated that if there is
overload of goods in his truck, a penalty is recovered by the
RTO and if the permit has expired or if there were no yellow
stripes on the headlights, the RTO collects penalty. That
unless the RTO Inspector does not verify the papers, the
truck is not allowed to move forward. That when the ACB
Officer came, he was standing outside of the Check Post and
he had not entered into the Check Post. That there was a
security guard at the Check Post and there were other
drivers also.
9.1 The prosecution has examined PW2 - Dhansukhbhai
Radatiyabhai Chaudhary at Exh. 12 and the witness is the
panch witness who has stated that the ACB Officer had
called him and Bharatbhai Bhikhubhai and they had gone
as panch witnesses for the decoy trap. That the experiment
of anthracene powder and ultraviolet lamp was carried out
and explained to them and they were asked to accompany
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the truck driver. That he and others went into the truck and
panch no. 2 - Bharatbhai and others went into the
government vehicle. That at around 02.00 am, they reached
near the Songadh RTO Check Post and the driver went into
the Check Post and he took a file and went behind the
driver. That the accused had asked him why he had come
and he said that the driver had forgotten the file and the
driver had given the accused the file and the accused had
asked the driver what was the weight and the driver had
answered two tons. That the driver had asked how much
amount and the accused had said Rs. 50/- and the driver
had given the currency note of Rs. 50/- which was accepted
by the accused and thereafter, the driver made the
predetermined signal and the ACB Officers came and
rushed into the chamber of the accused. That the currency
note of Rs. 50/- was taken from the hand of the accused
and given to the witness. That the vouchers of the amount
that was in the cash box was found and the Inspector was
waiting outside and there was also a peon present. That the
panchnama was prepared and they had affixed their
signatures. During the cross-examination, the witness has
stated that no written order was given for him to be a panch
witness and the bottle of the anthracene powder did not
have a seal. That he does not know how the anthracene
powder was and how it was applied to the currency notes.
That there was a fight going on at the RTO Check Post and
he had not seen how many persons were present at the RTO
Check Post. That the accused had gone to the washroom
and when he returned from washroom, the currency note of
Rs. 50/- was found from his closed fist. That he had taken
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the tainted currency notes from the accused.
9.2 The prosecution has examined PW3 - Digambar Natu
Shindhe at Exh. 19 and this witness is the Head Constable
and the member of the raiding party and the witness has
stated that the accused had asked the truck driver about
the weight and he had said that the weight was two tons
extra and the accused had demanded an amount of Rs.
50/- and the tainted currency note was given to the
accused. That immediately, the driver gave the
predetermined signal and the members of the raiding party
came and the tainted currency note was recovered from the
left hand of the accused. During the cross-examination, the
witness has stated that he did not go with the panch
witness and the truck driver to the Check Post and the
Police Inspector had entered into the Check Post first. That
the accused was seated on the chair and was not doing any
work but no test of ultraviolet lamp was done on the table or
chair of the accused. That he does not know as to in which
hand the accused had taken the tainted currency note.
9.3 The prosecution has examined PW4 - Lal Mohammad
Jummakhan Merunjai at Exh. 20 and the witness is the
complainant and the Trap Laying Officer who has fully
supported the case of the prosecution and has stated that
he had received secret information that the employees and
officers at the RTO Check Post, Songadh were demanding
for illegal gratification ranging from Rs. 20/- to Rs. 300/-
from truck drivers and hence, had arranged for the decoy
trap and the witness had narrated all chronology of events
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that have unfolded. The witness had filed the complaint
which is produced at Exh. 21 and the witness has stated
that he was the complainant and he had registered the
complaint in his presence. That after the trap was
successful, the tainted currency note was recovered from
the accused. During the cross-examination, the witness has
admitted that the responsibility of checking the vehicle and
the documents of the vehicle is with the RTO Inspector and
the accused was a junior clerk. That he has not recorded
the statement of the RTO Inspector and Rs. 650/ was found
from the RTO Inspector but the same was not seized from
the RTO Inspector. That an amount of Rs. 3800/- was
found from the accused which was seized. That all the truck
drivers have to show their documents at the Check Post
window and he cannot say as to whether the accused being
a junior clerk had the authority to verify the documents or
not.
9.4 The prosecution has examined PW5 - Ajabsinh
Mulsinh Rathod at Exh. 25 and this witness is the
Investigating Officer who had taken over the investigation
and had filed the charge-sheet after the order of sanction for
prosecution was received. During the cross-examination,
the witness has stated that on the day of the trap, the RTO
Inspector was present and every employee at the Check Post
was working under the RTO Inspector. That the work of
verifying the documents and permit of the vehicles is of the
RTO Inspector. That he has not recorded the statement of
any Superior Authority of the RTO Inspector.
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10. On minutely scrutinizing the entire evidence of the
prosecution, it has come on record that the accused was a
Junior Clerk working in the RTO Check Post at Songadh
and the complaint has been filed by the complainant -
Police Inspector - Mr. L.J. Merunjai who has recorded the
complaint in his presence and has identified himself as the
complainant. That the witness has done the entire
procedure of the trap and used the decoy punter truck
driver Shaikh Saeed Shaikh Fayyaz - the driver of truck
bearing registration no. MH-19-J-0629. For the aspect of
demand, the prosecution had examined PW1 - the driver
Shaikh Saeed Shaikh Fayyaz and from the deposition of the
truck driver, it is on record that the driver had gone to the
RTO Check Post and his truck was overload by two tons. It
is also on record that the RTO has the authority to recover
penalty for overload vehicles; as also for the vehicles whose
permit has expired. There is also evidence on record to show
that the vouchers had tallied with the amount found from
the drawer of the accused. The major contradiction is
regarding the recovery of the tainted currency note and the
driver Shaikh Saeed Shaikh Fayyaz states that the tainted
currency note was recovered from the drawer of the table of
the accused, whereas, the panch witness no. 2 -
Dhansukhbhai Radatiyabhai Chaudhary states that the
tainted currency note was recovered from the left hand of
the accused and at that time, the accused had gone to the
washroom and while returning from the washroom, his fist
was closed and the tainted currency note was recovered
from his left hand. This major contradiction regarding the
recovery of the tainted currency note and also the panch
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witness has not stated that the accused had made the
demand for the illegal gratification. The only evidence that
comes on record is that the truck of PW1 - Shaikh Saeed
Shaikh Fayyaz was overload by two tons and the accused
had asked for an amount of Rs. 50/-. It appears that before
the accused could give the receipt, the decoy punter who
was standing outside of the cabin gave the signal and the
ACB officers came and recovered the tainted currency note
from the drawer of the table of the accused. There is no
clear evidence regarding the demand of illegal gratification
and the cleaner of truck bearing registration no. MH-19-
0629, the RTO Inspector and the security guard/peon of the
RTO Check Post were present and were independent
witnesses, their evidence has not been brought on record by
the prosecution. There are major discrepancies in the
deposition of the witnesses and there is no independent
corroboration and the deposition of the decoy truck driver
as also the panch witness does not inspire confidence about
the reliability of the case of the prosecution. Moreover, the
complainant has recorded the complaint in his presence
and has arranged for the trap and thereafter, has caught
the accused, which is not proper and that creates a huge
doubt on the case of the prosecution. It is settled law that to
raise the presumption under Section 20 of the PC Act, when
the tainted currency note is recovered, the prosecution has
to prove the demand and acceptance beyond reasonable
doubts and in the instant case, when there is discrepancy
about the recovery of the tainted currency note and no clear
evidence about the demand by the accused, the judgement
and order of conviction cannot be sustained and the same
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warrants interference. In the absence of clear and specific
clinching evidence of demand, the conviction cannot be
sustained and on reappreciating the entire evidence, the
infirmities in the evidence of the prosecution has come on
record.
11. Considering the law settled by the Courts in case of
Megha Singh (supra) and Gopallal Ghisulal Chhipa (supra),
K. Shantamma (supra) and Neeraj Dutta (supra), the
prosecution has not proved the case beyond reasonable
doubts and the judgement and order of conviction is
required to be set aside as the prosecution has miserably
failed to prove the case against the accused beyond
reasonable doubts. Consequently, the appeal is allowed and
the impugned judgement and order passed by the learned
learned Special Judge, 5th Fast Track Court, Surat, in
Special ACB Case No. 4 of 1998 on 28.12.2005 is quashed
and set aside and the appellant is acquitted from all the
charges levelled against him.
12. Bail bond stands cancelled. Fine to be refunded to the
appellant after due verification. Record and Proceedings be
sent back to the Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
