1. The present appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction and sentence dated 7.9.2002 passed by the learned Special Judge, Nadiad at Kheda whereby the learned Special Judge was pleased to convict the appellant – original accused No.1 for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment for a period of two years, and also imposed fine of Rs.25,000/, and in default of payment of fine; sentenced him to undergo rigorous imprisonment for a further period of six months. The said appellant was also convicted for the offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and was sentenced to undergo rigorous imprisonment for a period of two years, and fine of Rs.15,000/, and in default of payment of fine; the appellant was sentenced to undergo rigorous imprisonment for a further period of six months. Both the sentences awarded to appellant No.1 were ordered to run concurrently. For the offence punishable under Section 12 of the Act, appellant No.2 was ordered to undergo rigorous imprisonment for a period of two years and fine of Rs.10,000/, in default, said appellant was ordered to undergo rigorous imprisonment for a further period of six months.
2. The brief facts of the case that as per the complaint lodged by the complainant before ACB Police Station, Vadodara, are that the complainant had engaged into business transaction of Rs. 2 Lacs with one Narendrasinh Jhala and accounts of business transaction were settled between them. Thereafter, said Narendrasinh Jhala was in need of money, therefore, he borrowed a sum of Rs.70,000/, which were to be paid in two installments of Rs.50,000/ and Rs.20,000/ to the complainant. When the complainant demanded that amount back, said Narendrasinh Jhala refused to give back the said amount on the ground that potatoes sent by the complainant were decayed. Thereafter, said Narendrasinh Jhala contacted appellant No.1, who was serving with the Police Department and asked him to harass the complainant. It is alleged by the complainant that the appellant No.1 demanded a sum of Rs.70,000/ and told him that he would not take any complaint, if the amount is not paid. Later on, appellant No.1 demanded a sum of Rs.40,000/ from the complainant. Accordingly, the complaint was filed by the complainant before the ACB. The facts of the case were narrated to them and thereafter the experiment of Utraviolet. Lamp was carried out with the help of anthracene powder. The basic ingredients of the anthracene powder were explained and made understood to the panchas as well as the complainant. Thereafter, currency notes produced by the complainant, were smeared with anthracene powder. Thereafter, the Police Inspector, A.C.B., gave necessary instructions to the complainant as well as to the panchas. After completing necessary formalities, the raiding party went to the house of the accused No.1, but he was not available and therefore, the complainant was called on next day (13.7.1995). On next day, the accused and the complainant along with members of raiding party went by car to one Bosky Pan Centre and there the amount of bribe was given to accused No.1, which the accused No.1 in turn gave to accused No.2 by calling him from the Pan Center. Thereafter, the investigation was carried out and as the investigating agency found sufficient material to place both the accused to face the trial. The police filed chargesheet. Thereafter, the case was committed to the Court of Sessions and charge was framed by the learned Special Judge.
3. To prove the guilt of the accused, the prosecution in all examined 5 witnesses i.e. P.W.1 – Vinodkumar Surprasad Birla at Exhibit 17, P.W.2 – Gurukirpalsing Gopalsinh, Additional Director General of Police at Exhibit 29, P.W.3, Jashvantsinh Kanaksinh Sinora, Panch witness at Exhibit 32, P.W.4 – A.P. Pawar, P.I., ACB, at Exhibit 44 and P.W.5 – Nalinkumar Somalal Joshi, P.I. at Exhibit 54. The documents like charge at Exhibit 8, complaint at Exhibit 18, sanction order at Exhibit 30, Panchnama at Exhibit 33, Seizure memo at Exhibit 34, Affidavit at Exhibit 49 and 50 and several other documents were produced by the prosecution. From the defence side, D.W. 1 Narendrasinh Jhala at Exhibit 72 and D.W.2 – Nareshbhai Thakorlal Shah at Exhibit 79 were examined.
4. Thereafter, charge was framed at Exhibit 1 against the appellant for the offence under the Prevention of Corruption Act, 1988 and read over to the appellant, to which the appellant pleaded not guilty and claimed to be tried.
5. Thereafter, after filing closing pursis by the prosecution, further statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973 was recorded wherein the appellants have denied the case of the prosecution and have pleaded their innocence.
6. After considering the oral as well as documentary evidence and after hearing the parties, the learned Special Judge, Kheda at Nadiad vide impugned judgment and order dated 7.9.2002 held the appellants – accused guilty to the charges levelled against them as mentioned aforesaid.
7. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Kheda at Nadiad, the appellants have preferred the present appeal.
8. Heard Mr. J.M. Panchal, leaned counsel for the appellant and Mr. H.L. Jani, learned Additional Public Prosecutor for the respondentState.
9. Mr. J.M. Panchal, learned counsel appearing for the appellant, has contended that the judgment and order passed by the learned Special Judge is illegal, invalid and improper. He has also contended that the learned Special Judge has not considered the case of the defence and material evidence produced on record and has passed said judgment and order without appreciating the material on record. He has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned Special Judge has not considered the probable defence of the appellants and has wrongly convicted the appellants. Said Narendrasinh Jhala was introduced to the appellant No.1 by his relatives and friends named P.R. Jadeja and Kishorsinh. He also contended that even the sanction as required under Section 19 of the Prevention of Corruption Act is not legal one.
10. Mr. Panchal, learned advocate has read the charge at Exhibit 8 and submitted that from the oral version of the P.W.1 to P.W.4, the role on the part of present appellant No.2 is not established as an abettor or conspirator with appellant No.1. The prosecution has failed to prove the main ingredients of Sections 107 and 108 or Section 120 of the Indian Penal Code. He also submitted that in the provisions under the Prevention of Corruption Act, there is no specific definition prescribed for criminal conspiracy. To prove the role on the part of the appellant No.2 as an abettor or conspirator, there must be some agreement with appellant No.1. It is duty of the prosecution to prove by the oral as well as documentary evidence that there was an agreement and in connection with that agreement, present appellant No.2 had joined hands with appellant No.1 as conspirator. Mr. Panchal, learned advocate drew the attention towards the oral evidences of P.W.1 – Vinodkumar Surajprasad Birla at Exhibit 17 and submitted that the contents of complaint at Exhibit 18 are not corroborated with the said evidence of P.W.1. The main factors like demand and acceptance are not proved through oral as well as documentary evidence. He also submitted that from the evidence of witnesses, it appears that there is nothing borne out about demand and acceptance on the part of the appellants. He also admitted that when they reached at the house of appellant No.1, he was not there. The wife of the appellant No.1 was present at the house and she told that “give her whatever you brought” and at the time, when the wife of the appellant No.1 talked, Mr. Arun Pandit tried cut off that talk and asked when the appellant No.1 will come. During that time, the wife of accused has tried to talk on phone received from Narendrasinh Zala, at that time also, said Arun Pandit has cut off the phone. Even the wife of the appellant No.1 requested to stay for half an hour, said Pandit did not ready to stay there. He also submitted that even at the time of alleged demand, present appellant was not present. The conduct on the part of the appellant No.1 is required to be considered in favour of the present appellant No.1. He further submitted that one political leader named Amarsinh suggested about solution of the dispute arose between the complainant, D.W.1 and D.W.2, and in that connection, the complainant was called by the present appellant. He read the oral evidence of the trapping officer and Investigating Officer and affidavits of the defence witness Nos.1 and 2 at Exhibit 49 and 50, who are the witnesses of the prosecution and they are stated in the chargesheet as witnesses of the prosecution, who are not examined by the learned Prosecutor and just to establish the defence, the appellants have examined both the witnesses as defence witnesses. He read the date of the statement of the witnesses which is recorded by the appellants under Section 161 of the Code of Criminal Procedure and submitted that the statement of the defence witness No.1 is recorded on 12.8.1995 and the statement of defence witness No.2 is recorded on 9.9.1995 and the dates of the affidavits of the defence witness No.1 are 24.7.1995 and for second affidavit, it is 31.7.1995 and submitted that from the date of these affidavits, these dates are required to be compared with the dates of the statements, recorded under Section 161 of the Code of Criminal Procedure. He further submitted that the question after thought if can be considered then the dates of affidavits and dates of statements recorded under Section 161 of the Code of Criminal Procedure, is required to be taken into consideration. He also submitted that the investigation is not fair enough and same is bias. He read the provisions of Section 296 of the Code of Criminal Procedure and the provisions of Section 99 and submitted that the contents of affidavits, produced through the oral evidence of trapping officer are required to be taken into consideration.
He submitted that when the defence version is also established beyond reasonable doubt, then it can be said that the learned Sessions Judge has not considered the defence version. Even the learned Sessions Judge has not bothered to consider the contents of affidavits at Exhibit 49 and 50 in light of the provisions of Evidence Act. He submitted that the learned Sessions Judge has committed serious error while holding the appellants guilty and convicted them.
11. Mr. Panchal, learned advocate referred the decision in the case of Balasubramanian V. State Through Inspector of Police reported in 2011(1) GLR 739. The Hon'ble Supreme Court observed in that judgment that when statement which is recorded under Section 313 by the learned Judge and defence version explained by the appellant and that statement is disclosed before the Investigating Officer and same contents when prima facie established prior to filing of the chargesheet then that issue is required to be considered in favour fo the present appellant. Learned advocate Mr. Panchal submitted that considering the above facts and circumstances of the case, the judgment and order of conviction and sentence is required to be quashed and set aside.
12. As against this, Mr.Jani, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Special Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He has contended that looking to the overall facts and circumstances of the case, circumstantial evidence and evidence produced on record, the order passed by the learned Special Judge is absolutely just and legal and is not required to be interfered with. Mr.Jani has read oral as well as documentary evidence, panchnama and F.I.R. and contended that the prosecution has proved its case beyond reasonable doubt. The amount in question was demanded by the appellant towards illegal gratification and the same was accepted by the appellant. He read Section 20 of the Prevention of Corruption Act and submitted that it is true that the criminal conspiracy is not defined anywhere in the Prevention of Corruption Act, but definition and meaning of the criminal conspiracy can be considered from the provisions of Indian Penal Code. He also submitted that present appellant is regular visitor of Pangalla of the appellant No.2 and there was understanding between both the accused, so that when the trapping amount was accepted by the appellant No.2 then that should be considered as agreement between the appellants and in result, ingredients of Section 20 of the Prevention of Corruption Ac, are proved against the appellants. From the possession of the appellant No.2, the amount was recovered. Learned APP Mr. Jani read oral version of P.W.1 – complainant and submitted that the demand was made by the present appellant is proved beyond reasonable doubt. He drew attention to the contents of the complaint at Exhibit 23. He drew the attention to the contents oral evidence of P.W.2, P.W.3, P.W.4 and P.W.5 and the complaint and panchnama are totally corroborated with charge which is framed against the appellants and they are proved beyond reasonable doubt. He also submitted that even from the evidence of the trapping officer, it is proved that the aspects of demand and acceptance are proved against the appellants. He also submitted that present appellant No.1 has committed criminal conspiracy and therefore, both appellants are rightly convicted and sentenced by the learned Judge and presence of anthracene powder is also proved and therefore, no question can arise to interfere with the judgment and order passed by the learned Sessions Judge.
13. I have gone through the impugned judgment and order passed by the learned Special Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witnesses and also perused the charge framed against the appellant.
14. On 20.4.1995, one Narendrasinh Zala had borrowed Rs.70,000/ from the complainant for the business purpose and for the said money, one promissory note was executed. After 15 days, said Narendrasinh Zala met the complainant and when the complainant reminded about his money, said Mr. Zala took the ground that potatoes supplied by him have decayed and therefore, he did not return the said borrowed money to the complainant and threatened the complainant about registering the complaint of cheating. Therefore, the complainant lodged complaint before the learned Magistrate, (Muni. Court), Vadodara. After 2 or 3 days, said appellant No.1 called the partner of complainant at Chaklasi Police Station and told him that the complainant and you both have cheated the said Narendrasinh Zala and therefore, the appellant No.1 told the partner of the complainant to return back the promissory note of Rs.70,000/, and the appellant No.1 threatened to institute different cases before different Courts. Thereafter, said partner of the complainant namely Arvindbhai met his friend Mr. Arun Pandit and on 3.7.1995, said Mr. Arun Pandit contacted complainant and the complainant and said partner Arvindbhai met the appellant No.1 and the appellant No.1 demanded Rs.70,000/. Thereafter, on 12.7.1995, the amount was ascertained to the extent of Rs.40,000/ between them.
15. The complainant Vinodkumar Surajprasad Birla deposed at Exhibit 17, but the main aspects of demand and acceptance on the part of the appellant are not established. The complainant has not specifically admitted in his crossexamination about the demand on the part of appellant No.1 and in turn the same was accepted by him. I have perused the oral evidence of P.W.3 Jashvantsinh Kanaksinh Sinora at Exhibit 32, who is panch, served as Junior Clerk in the Jilla Panchayat, Vadodara and from his crossexamination, it appears that the said witness along with complainant, one Arun Pandit went to the house of appellant No.1, but the appellant No.1 was not there and said Arun Pandit had not told the complainant about the conversation took place with the wife of the appellant. The complainant did not talk with the wife of the appellant No.1. He admitted that the wife of the appellant No.1 told about one phone call from Bhavnagar and she told that they can given here whatever required to be given. He admitted that when the wife of the appellant No.1 was talking, the said Arun Pandit was trying to cut the talk and even the wife of the appellant No.1 told to stay for half an hour, but the complainant or said Arun Pandit were not ready to say. This conduct on the part of the complainant is required to be taken into consideration. He also denied about the demand made by the appellant No.1 and he had no knowledge about the promissory note. Even he did not know for which reason, the appellant No.1 made demand of Rs.70,000/ from the complainant. He did not know about the indication which was ascertained between them. He did not admit that the appellant No.1 took the money from the complainant and gave it to the appellant No.2. I have also perused the oral evidence of P.W.4 Atmaram Pandurag Pawar, P.I., at Exhibit 44, wherein the aspect of demand is not properly reflected. Even in his crossexamination, he admitted that after investigating in the matter, it came out that Rs.70,000/ and promissory note of the same amount were recovered from the Pan galla shop, but there was no any explanation about Rs.70,000/ from the complainant. He also admitted in his crossexamination that one exminister namely Amarsinh Vaghela and complainant and Arvindbhai met him and Narendrasinh affirmed one affidavit. He also admitted that the demand of Rs.70,000/ on the part of the appellant No.1 is not mentioned in the panchnama and it is stated in the panchnama that Rs.40,000/ for the purpose of settlement with Narendrasinh Zala, was sent to the appellant No.1. I have perused the oral evidence of P.W.5 – Nalinkumar Somalal Joshi at Exhibit 54 and in crossexamination, he admitted that chargesheet was filed without studying the record and without verifying the Muddamal, same was produced before the Court. He also admitted that there was no sufficient evidence and even the chargesheet was filed. I have perused the oral evidence of D.W.1 – Narendrasinh Zala at Exhibit 72 and D.W.2 – Nareshbhai Thakorlal Shah at Exhibit 79. But from their oral evidence and crossexamination, nothing has come out about the demand and acceptance on the part of appellant towards the illegal gratification.
16. It appears from the oral evidence of the complainant and the panch witnesses that there are contradiction in their oral evidence. The case of the prosecution that the appellant had demanded Rs.70,000/ from the complainant is not supported by any evidence. It is only the say of the complainant that the appellant had demanded Rs.70,000/ from him. Mere say of the complainant, without any corroborative evidence, cannot be considered.
17. I have also perused the affidavits at Exhibit 49 and 50. The affidavit affirmed by Narendrasinh Zala at Exhibit 49 is showing the date as 24.7.1995 and affidavit at Exhibit 50 of D.W. 2 – Nareshbhai Thakorlal Shah is showing the date as 31.7.1995. I have also perused the affidavit affirmed by Narendrasinh Zala at Exhibit 44, wherein he has stated that he and Nareshbhai were called by the appellant No.1 and Arvindbhai said that he had no money towards business transaction at that time and therefore, he would give the same by way installments. He also stated that he was doing job, therefore, the money would be given to the appellant No.1 and first installment of Rs.40,000/ was to be paid on 13.7.1995. It was also stated that the complainant and said Arvindbhai lodged the complaint under the provisions of the Prevention of Anti corruption against the appellant No.1. I have also perused the statement recorded on 12.8.1995 before the Trapping Officer. Another affidavit affirmed by one Nareshbhai Shah at Exhibit 50 bears the date as 31.7.1995 and statement before the Trapping Officer was recorded on 9.9.1995. Therefore, it appears that the affidavits of both the witnesses were recorded prior to the statements under Section 161 of the Code of Criminal Procedure before the Trapping Officer. Now, so far as the questions regarding demand and acceptance as well as recovery are concerned, from the perusal of the oral version of the defence witnesses, it is established beyond reasonable doubt that there was some dispute between the defence witness and complainant. From the perusal of said documents, it appears that the appellant No.1 had acted as a middle man to settle the dispute and at that time, the trapping officer carried out raid and the appellant No.1 along with appellant No.2 were chargesheeted. It is also required to be noted here that whether the investigation is fair and proper ? I have considered this issue minutely and I am of the opinion that the investigation is totally biased and not fair. The disputed facts were very well disclosed before the Investigation Officer and even then the appellant No.1 was chargesheeted. It was the duty of the Investigation Officer to produce the statements recorded under Section 161 of the Code of Criminal Procedure, but for some unknown reasons or just to settle the score, that statement was not adduced and chargesheet is filed against the present appellants and they have faced trial.
18. I have also perused the crossexamination by learned APP of both these defence witnesses and learned APP had never attempted to raise any question in connection with the statements recorded under Section 161 of the Code of Criminal Procedure by the Trapping Officer. So far as the contents of affidavits at Exhibit 49 and 50 filed by the witnesses are concerned, it is not necessary for the witnesses to enter into witness box and to prove the contents of affidavits.
19. I have perused the case of Balasubramanian V. State Through Inspector of Police reported in 2011(1) GLR 739 relied by the learned advocate Mr. Panchal. In this case also, there is no direct evidence which shows that the appellants demanded the amount towards such illegal gratification.
20. Looking to the facts and circumstances, I am of the opinion that the prosecution has failed to prove the first demand and second demand. The conduct of the complainant creates some doubt. His oral evidence cannot be considered as trustworthy.
21. As per above observation, I found that prosecution has failed to prove demand of illegal gratification made by the appellant accused beyond reasonable doubt through the oral evidence of complainant and panch witness as well as through documentary evidence produced on the record. Thus, when demand is not proved, presumption under Section 20 of the Prevention of Corruption Act cannot be drawn against the present appellantaccused and when the appellants accused successfully rebut the said presumption, the case of prosecution cannot be believed.
22. Hence, in view of the foregoing reasons, present appeal is allowed. The Judgment and order of conviction and sentence dated 7.9.2002 passed by the learned Special Judge, Nadiad in Special Case No.2 of 1996 is hereby quashed and set aside. The appellants are on bail. Their bail bond shall stand discharged. Since the appellant is on bail, no order in respect to setting him at liberty is passed. The appellants are hereby acquitted from the charges levelled against them in the present Special Case. Fine, if paid, be refunded to the appellants. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
ynvyas (Z. K. Saiyed, J)