Gujarat High Court
State Of Gujarat vs Vajubhai Shiyabhai Chavda on 20 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1257 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE --Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT
Versus
VAJUBHAI SHIYABHAI CHAVDA
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Appearance:
MR. RONAK RAVAL, APP for the Appellant(s) No. 1
MR NK MAJMUDAR(430) for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 20/09/2024
ORAL JUDGMENT
1. This appeal is filed at the instance of the State under
Section 378(1)(3) of the Code of Criminal Procedure
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challenging the judgment and order dated 29 th April, 2010
passed by the learned Special Judge (ACB), Amreli in Special
(ACB) Case no.47 of 1993 recording the acquittal of the
respondent - original accused for the offence alleged under
Sections 13(1)(d) r.w.s. 13(2) of the Prevention of Corruption
Act, 1988.
2. In nutshell, the case of the prosecution as voiced for
consideration before the Trial Court is :
2.1 That one complainant named Mr. Arvindbhai Visvanath
Jani was facing proceedings of Chapter Case conducted by the
Mamlatdar Office, Rajula. As per the complainant, the
respondent accused, who was in charge as Junior Clerk in the
aforesaid office had assured him that no action shall be taken
against him in the aforesaid proceedings and the case shall be
disposed of, for which he had demanded illegal amount of
Rs.500/-. Such complaint was reported by the aforesaid
complainant on 27th August, 1992.
2.2 On receipt of such complaint, which was registered with
the ACB Police Station, Amreli being I-C.R. no.11 of 1992 for
the offence punishable under Sections 13(1)(b), as well as,
Section 13(1)(2)(3) of the Prevention of Corruption Act, 1988
against the respondent, the trap was arranged. The panch
witnesses were called for from the office of District Collector,
whereby one Devchandbhai Purshottambhai Savaliya, who
was working as Senior Clerk in the Social Welfare Office,
Amreli was requested to be the panch witness. One Vasantrao
Narayanrao Saluke, who was a Government servant was also
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requested to appear as panch witness no.2.
2.3 The part-I panchnama of the trap proceedings were
conducted in presence of the aforesaid panch witnesses and
the original complainant. The denomination notes were
recovered from the complainant, however in absence of
sufficient money the IO had provided an amount of Rs.150/-,
which mainly include one note of Rs.100/- and Rs.50/-. The
aforesaid notes were tainted with anthracene powder. The
witnesses were apprised about the significance of the trap
proceedings. The marked denomination notes were placed
inside the pocket of the complainant. These proceedings of
part-I of pre-trap was reduced in the form of panchnama. The
raiding party had thereafter, left the circuit house to reach
the Deputy Mamlatdar office, Rajula.
2.4 The panch witness no.1 had accompanied the original
complainant and had entered the room of the respondent
no.1. It is the specific case of the prosecution that the
respondent while entertaining the complainant had interacted
with regard to the bribe amount. As per the case of the
prosecution, the complainant had responded to the accused
by saying that as assured by him, he has come with the
amount to which the respondent accused had replied that he
was bound to fulfill his promise. The complainant had further
asked the respondent accused to take care of his case. At that
stage, the respondent accused had stated that if he has
brought the money, he may handover and he may not have to
worry about his case. He had further submitted that he may
not. He had thereafter, said that he will take care of his case.
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The aforesaid conversation, which has taken place at the time
of raid has been reproduced in the panchnama, which is
drawn and signed by the panch witnesses.
2.5 As per the case of the prosecution, the raid was
conducted successfully. Inasmuch as the bribe amount of
Rs.200/- was thereafter recovered from the possession of the
respondent accused. The respondent accused was arrested
on the spot. The complaint had culminated into a charge-
sheet. The respondent accused was charge-sheeted for the
offence punishable under Section 7, 13(1)(d) and 13(1)(2)(3),
as well as, r.w.s. 13(2) of the Prevention of Corruption Act,
1988.
2.6 The necessary sanction to proceed against the
respondent accused being a public servant was availed from
the Higher Officer. Upon sanction of such permission, the
criminal case came to be registered before the Court of
learned Special Judge (ACB), Amreli being Special (ACB) case
no.47 of 1993. Before the trial Court, upon appreciation of
the charge-sheet papers placed for consideration, the learned
Special Judge for the reasons recorded has proceeded to
frame the charge u/s.13(1)(d) r.w.s. 13(2) of the Act, 1988
against the respondent accused.
2.7 The prosecution was unable to examine the original
complainant who was reported to have expired on 1 st January,
2006. In such circumstance, the prosecution was left-out with
three witnesses, which includes the panch witness no.1 - Mr.
Devchandbhai Purshottambhai Savaliya who has been witness
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to the raid conducted by the Investigating Agency. The panch
witness no.2 Rajgopal Chandangopal, who was officer of the
State having granted sanction for prosecution against the
respondent public servant and panch witness no.3 Govindbhai
Jethalal Yadav, who was the Investigating Officer, who had
conducted the raid and was witness to the acceptance and
recovery of the bribe amount by the respondent accused.
2.8 Apart from the aforesaid witnesses, the prosecution has
also led various documentary evidences, which include the
original complaint given by the complainant - Arvindbhai V.
Jani at Exh.74. The panchnama of the raid conducted by the
Investigating Agency at Exh.58, the seizure memo at Exh.75.
The extract of service book of the respondent accused at
Exh.76. The other documents includes the various chapter
cases registered against the original complainant viz. include
the chapter case nos.29 of 1992 at Exh.65, chapter case no.79
of 1992 at Exh.66, chapter case no. 29 of 1992 at Exh.67. The
report filed by the Police at Exh.68, chapter case no.29 of
1992 at Exh.69 and the orders passed therein at Exh.70. The
prosecution has thereafter submitted their purshis at Exh.78
declaring their closure of evidence. The further statement of
the respondent accused was recorded under Section 313,
whereby specific defence has been raised as having been
impleaded in false case. The respondent accused has
specifically denied the demand and the acceptance of any
bribe amount by him.
2.9 The Trial Court upon appreciation of the aforesaid
evidence and taking into consideration the submissions made
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by the learned advocates on record at the outset had noticed
that prosecution has miserably failed to prove essential
ingredients of the charge alleged against the respondent
accused. The learned Judge, took notice of the fact that
though the panch witness no.1, who is the only eye-witness to
the raid conducted at the time of incident, in absence of
original complainant, has initially deposed before the Court in
his examination-in-chief supporting the version of the
complainant, however, about the alleged demand of bribe
amount the said witness was aided by the learned Public
Prosecutor by refreshing his memory by reading contents of
panchnama with regard to the conduct of trap proceedings.
Again, in his cross-examination, the defence counsel has
successfully brought on record the material contradictions,
which has led the learned Judge to disbelieve the evidence of
the said witness.
2.10 With regard to the time and place of the trap being
conducted, the learned Judge has noticed that upon close
examination of the original complaint produced on record, the
material details with regard to the date of the registration of
the FIR, the time of the reporting of the complaint have been
incorporated subsequently as the learned Judge noticed
variation in the ink of the pen used for filling-up such details.
Though in the panchnama, there is a reference to the specific
offer of Rs.200/- by the original complainant to the respondent
accused, the same does not transpire in the evidence of said
panch witness no.1. The said witness has also failed to bring
on record specific facts with regard to the acceptance of the
alleged amount of bribe by the respondent accused. At one
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stage, the said witness has deposed that the panchnama was
drawn on the spot he had endorsed his signature at Rajula.
However, in his cross-examination, he has admitted that the
first part of panchnama was drawn at Circuit house. With
such contradictions being noticed by the learned Judge, his
evidence has been discarded.
2.11 The learned Judge has also taken into consideration the
manner in which the panchnama has been drawn noticing the
fact that the test of use of anthracene powder and ultra violet
lamp was not conducted in manner it should have been done
at the stage of first part of panchnama being recorded. With
such evidence being brought on record, the learned Judge has
also taken notice of the fact that the prosecution has
miserably failed to prove the acceptance of the bribe amount
in absence of any presence of anthracene powder being found
on the hands of the respondent accused. In such
circumstances, merely because the notes were recovered from
the pocket of the shirt of the respondent accused, the learned
Judge has given benefit of doubt as the prosecution has failed
to prove the case against the respondent accused beyond
reasonable doubt. The learned Judge has also taken note of
the fact that the respondent accused was holding the charge
of Junior Clerk in the office of the Deputy Mamlatdar, whereas
the chapter case was to be conducted by the officer of the
level of Mamlatdar. In such circumstance, the respondent
accused has no authority to deal with the chapter cases. On
overall appreciation of the evidence brought on record by the
prosecution, the learned Judge has proceeded to record
acquittal of the respondent accused as against the charge
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framed. Hence, this appeal at the instance of the State.
3. Mr. Ronak Raval, learned APP has appeared on behalf of
the appellant - State and has invited my attention to the
complaint alleged against the respondent accused. Learned
APP had also invited my attention to the findings recorded and
the reasons assigned by the learned Judge by recording
impugned order of acquittal.
3.1 According to him, the appreciation of the evidence of
panch witness no.1 establishes the essential ingredient of
demand of bribe amount by the respondent accused. He had
submitted that if the evidence of the panch witness no.1 is
read in light of the panchnama, the panchnama of raid
conducted by the Investigating Agency, clearly indicates that
the respondent accused, who was working as Junior Clerk in
the office of Deputy Mamlatdar, Rajula and being a public
servant had entered into a conversation with the complainant,
who was otherwise facing various chapter cases, which were
pending for adjudication with the office of Mamlatdar, Rajula.
The close reading of the conversation as recorded in the
panchnama as against the evidence of panch witness no.1, the
prosecution has clearly brought on record the demand of
bribe amount of Rs.500/- from the complainant, as well as, the
amount of acceptance of Rs.200/- from the respondent
accused. According to him, the recovery of amount of
Rs.200/- was proved by the prosecution as can be culled-out
from the evidence of panch witness no.1 read in light of the
panchnama. He had therefore, submitted that such
acceptance of the amount of Rs.200/- was other than the legal
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remuneration and therefore, the respondent accused has
committed misconduct, which is unbecoming of the public
servant.
3.2 While dealing with the reasons assigned by the learned
Judge, the learned APP submitted that merely because of
contradictions have been noticed in the cross-examination of
the panch witness no.1, would not discredit the evidence of
the said panch witness, who was otherwise a Government
servant. It was submitted that the original incident relates to
the year 1992, whereas the evidence was recorded in the year
2010 and therefore, there was a reason for noticing few
contradictions, which otherwise did not damage the case of
the prosecution. On the aspect of the recovery of the bribe
amount, learned APP had clearly submitted that though no
anthracene powder was noticed on the finger tips of the
accused. However, it can always be inferred that the amount
was accepted by the respondent accused as ultimately the
recovery of tainted money was effected from the pocket of the
respondent accused. The reference was also made to the
seizure memo produced on record at Exh.75 and the police
report, which has been produced on record at Exh.68. The
learned APP had therefore, submitted that the learned Judge
had not properly appreciated the evidence in its right
perspective and even though the prosecution has brought on
record sufficient evidence, has committed grave error in
recording acquittal. He has therefore, urged to quash and set
aside the order dated 29th April, 2010 passed by the learned
Special Judge (ACB), Amreli in Special (ACB) Case no.47 of
1993 recording the acquittal of the respondent - original
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accused for the offence lodged under Sections 13(1)(d) r.w.s.
13(2) of the Prevention of Corruption Act, 1988.
4. Mr. Majmudar, learned advocate on record for the
respondent accused has vehemently objected to the aforesaid
submissions made by the learned APP for the appellant -
State.
4.1 While referring to the findings and reasons assigned by
the learned Judge, the learned advocate for the respondent
accused has submitted that the cogent reasons has been
assigned by the learned Judge, which are based on right
appreciation of the evidence. It was submitted that the heavy
burden was there upon the prosecution to prove its case
beyond reasonable doubt and noticing the lacunas in the
manner in which raid was conducted and the discrepancies
noticed as against the evidence of witness, no error can be
found with the approach of the learned Judge in taking notice
of such discrepancies, which according to him were the
material defects in the proceedings conducted by the
Investigating Agency. He had submitted that the respondent
was otherwise holding the responsible post of Junior Clerk
and therefore, the prosecution was required to prove its case
beyond reasonable doubt for the charge alleged.
4.2 Lastly, it was submitted that once the learned Judge,
who has seen the demeanor of the witnesses is the best to
judge their evidence and in absence of any perversity or error
being pointed-out by the learned Judge, appellant - State, this
Court may not interfere with the order of acquittal. He has
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therefore, prayed for the dismissal of the appeal.
5. Having heard the learned advocates for the respective
parties and perused the impugned order passed by the
learned Special Judge.
6. With regard to the submissions made by the learned
advocate for the respondent accused, the scope of the
appellate Court u/s.378(3) of the Code is circumscribed
though it is open for the High Court to re-appreciate the
evidence and the conclusions drawn by the trial Court, but it
is rarely in the case when the judgment of Trial Court is found
to be perverse. The word perverse has been interpreted by
the various Courts to mean, "against the weigh of evidence".
Even in cases where two views are possible, the Hon'ble
Supreme Court on various occasions has held that the
Appellate Court should not reverse the judgment merely
because the other view is possible. Even where the judgment
of trial Court is neither perverse nor sufferes from any
infirmity or non-consideration and misappreciation of the
evidence on record, the appellate Court should be slow in
reversing the order of acquittal.
7. In view of the aforesaid legal position, undoubtedly, this
Court has powder to re-appreciate the evidence and the
conclusion drawn by the trial Court. As recorded earlier, I
have gone through the record as placed on record by the
learned advocate for the respondent, more particularly, the
certified copies of the evidence and the copy of panchnama
produced on record. Unfortunately, the record and
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proceedings, though were directed to be called for by this
Court while admitting the appeal, the same has not been
received till date. In absence of record and proceedings, the
Court has taken assistance of the learned APP and learned
advocate for the respondent with the limited certified copies
of the record being provided. This Court has taken-up this
appeal for final hearing noticing the fact that the appeal is of
the year 2010 which relates to the original incident of the
year 1992.
8. I have carefully gone through the aforesaid record and
have given thoughtful consideration. Upon re-appreciation of
the evidence in light of the evidence and reasons assigned by
the trial Court. As regards the approach of the learned Judge
in appreciation of evidence of panch witness no.1 is
concerned, the defence has been successful in bringing on
record the material contradictions as against the case put
forward by the prosecution. As rightly noticed by the learned
Judge, the place of the incident, the time of recording of the
complaint and the fact noticed by the learned Judge with
regard to the incorporation of the essential details in the
complaint definitely raises the doubt on the manner in which
the trap was conducted. Unfortunately, the prosecution was
left-out with the panch witness no.1 to be examined in
absence of the original complainant, who is reported to have
expired pending the trial on 1st January, 2006. The copy of
FIR produced on record refers date of occurrence of incident
on 27th August, 1992 at around 13:40 Hrs and time of
reporting of FIR as 27th August, 1992 21:30 Hrs. which is
recorded at Circuit House, Amreli, Room no.7. Whereas the
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IO's evidence at Exh.73 suggests complaint was recorded on
27th August, 1992 at around 8:00 Hrs in morning at Circuit
House, Amreli, Room no.7. On the other hand, panch witness
no.1 has deposed before the Court that he was called by IO to
appear as panch in ACB Case on 26 th August, 1992, when he
had seen hand written copy of complaint referring to date 27 th
August, 1992. I am of the view that glaring discrepancies are
noticed in the time and place of recording of the complaint, as
well as first part of panchnama of trap.
9. On the aspect of demand of the bribe money is
concerned, the close reading of the evidence of panch witness
no.1 goes to suggest that at the stage of recording of part-I of
panchnama, he was apprised of initial demand of Rs.500/- by
the respondent no.5, which was negotiated and was agreed
for Rs.200/-. Such demand of the amount was towards the
chapter case registered against the respondent accused. The
said witness is the only person, who had accompanied the
original complainant when they entered into office of the
respondent accused. The bare comparison of the examination-
in-chief referring to the conversation, which had taken place
between the original complainant and original accused, as
against his further cross-examination by the public
prosecutor, while referring to the relevant details of the
panchnama goes to indicate that the said witness has denied
that the panchnama was drawn on the spot. There was no
reference to the time about the conclusion of the panchnama.
According to him, the time was endorsed by the Investigating
Officer. In the cross-examination, he has admitted that
though the complaint was registered on the date after the day
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when he was called to remain as panch witness. On overall
appreciation of the evidence of the aforesaid witness, the
prosecution has failed to bring on record the specific demand
of amount of Rs.200/- as alleged in the original complaint.
Except for the evidence of the aforesaid witness, no other
witness is available to the prosecution to support the case of
the prosecution about the demand of Rs.200/-. In absence of
the aforesaid ingredient being proved beyond reasonable
doubt by bringing on record the cogent material, the
prosecution has failed to prove the case against the
respondent accused. As regards the acceptance of the bribe
amount is concerned, the learned APP has heavily relied upon
the fact that the recovery of the bribe amount was effected
from the pocket of the shirt of the respondent accused. The
principles laid down by the decision of the various Courts in
this regards is that the demand of illegal gratification is sine
qua none to constitute the offence under the Act. Mere
recovery of currency notes does not constitute the offence
under the Act unless it is proved by the prosecution beyond all
reasonable doubt that the accused had voluntarily accepted
the money with a knowledge that such amount is given as
bribe amount. Upon close reading of evidence of panch
witness no.1, nothing has transpired on record to indicate that
the amount was accepted by the respondent accused
voluntarily. More particularly in absence of any anthracene
powder being noticed on the fingers of the respondent
accused. Even if the submissions of learned APP has to be
accepted with regard to the acceptance of bribe amount, this
Court is left with two possible views to be gathered from such
evidence being brought on record. Considering the scope of
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the appellate Court while examining the order of acquittal in
terms of Section 378(3) of the Code of Criminal Procedure,
this Court cannot take a different view merely because the
second view is possible on appreciation of the evidence on
record, in absence of any perversity or illegality noticed in the
impugned judgment and order.
10. Hence, for the foregoing reasons, present appeal is
hereby dismissed. The judgment and order dated 29 th April,
2010 passed by the learned Special Judge (ACB), Amreli in
Special (ACB) Case no.47 of 1993 is confirmed. The bailable
warrant stands revoked against the respondent accused.
Sd/-
(NISHA M. THAKORE, J.)
AMAR RATHOD...
