Mansukhlal Devraj vs State of Gujarat

Mr. S.G. Shah, J. (CAV) - Heard learned advocate Mr.M.J. Buddhbhatti with learned advocate Mr.Devang Bhatt for the appellant and learned APP Mr. K.P. Rawal for the respondent No.1 � State in both the appeals.

The appellant has been convicted u5(1)(D) r/w. Section 5(2) of the Prevention of Corruption Act, 1947 read with Sections 161 and 165(A) of the Indian Penal Code whereby he has been awarded punishment of six months with fine of Rs.500/- and in default of payment of fine, to undergo sentence of two months by impugned order dated 11.4.1991 in Special Case No.1 of 1988 by the Special Judge, Surendranagar. Such order of conviction is against two persons, namely, present appellant � Mansukhlal Devraj, who was working on contract basis with the Social Welfare Department of the State of Gujarat with one Bhanjibhai Govabhai, who was serving as Inspector in the same department.

The case of the prosecution is to the effect that from such department a loan and subsidy is being provided to people of economically backward class and such activity is being managed by respondent No.2, whereas respondent No.1 has to work as agent to spread such activities amongst the needy persons. Whereas, while performing duty as such, when daughter of the complainant and her cousin had desired to start a small business of ready-made clothes, they had approached the office of the accused when it is alleged that accused No.2 has demanded Rs.50/- and conveyed that if he is not present, then, amount of such illegal gratification and bribe should be paid to accused No.1 i.e. the present appellant.

It is undisputed fact that accused No.2 was though convicted with same punishment by the impugned order, at present, the appeal filed by him has been abated because of his death. However, when his appeal was admitted and when he was released on bail, though there is one final order of conviction against him, when his appeal was pending, it can be said that the offence, if any, committed by respondent No.2 is yet to be confirmed by the competent Court and therefore, there is no final decision so far as offence committed by respondent No.2 is concerned. Such observation is necessary for the simple reason that only because of abatement of appeal of respondent No.2 or an order of conviction of respondent No.2, cannot be treated as conclusive proof and evidence against respondent No.1 also so as to confirm his conviction and thereby, to dismiss this appeal. Therefore, in any case, one has to scrutinize the available record to verify that whether there is any cogent, reliable and sufficient evidence beyond reasonable doubt to prove that the present appellant has committed the offence as alleged against him for which he has been convicted by impugned order.

Being the oldest appeal, its record was not available, but a paper-book was made available by the office of the Government Pleader and thereby, the appeal has been considered as re-constructed and is decided based upon such paper-book.

The paper-book contains all relevant documents, including Rojkam, charge sheet, depositions and documentary evidence proved on record.

The perusal of evidence of PW-1 at Exh.31, namely, Robert Sebastian Mendonza, makes it clear that he was serving as Supply Inspector with Surendranagar Collectorate and was called upon by the A.C.B. Inspector as a panch witness prior to trap and he was explained all the requirements and activities to be performed during the trap. All those details are not much material at this stage. Though, he is confirming the conversation between the complainant and the appellant, it transpires that practically, such conversation is with reference to the payment to be made to accused No.2. However, even if we believe that such conversation is confirming the demand at the time of raid, the other part of the evidence, makes it clear that the accused has placed the note below the file as per the story of the witness and therefore, there is reason to believe that practically, the amount is placed below the file by the complainant or the witness, but accused has not accepted it with his hands. Whereas, the crucial evidence is in cross-examination. In paragraph 16, witness admits that it is true that there was no conversation regarding demand by appellant No.1 and such fact is not recorded in panchnama. Thereby, the witness has gone beyond the documentary evidence in the form of panchnama, which has been proved on record at Exh.32 by the same witness. Thus, when the witness is travelling beyond the facts, which is very well there in the form of documentary evidence, then, such additional fact, cannot be treated and considered as a sole ground for confirming conviction, because it is settled legal position that omission to say something from previous statement, may not be fatal to the prosecution case, but changing the version from the documentary evidence and that too so as to adduce clinching evidence against the accused at the time of oral evidence, without its disclosure during investigation, cannot be a ground for confirming conviction. Such additional story needs to be examined because it was not brought to the notice of the accused that he is being charged with such offence. Therefore, deposition of this prosecution witness is not material to convict the accused.

PW-2 at Exh.34 is Junior Clerk � cum � Typist in the office of accused, namely, Kalpeshkumar Navalshankar Joshi. Though he has tried to support the case of the prosecution, he has no option, but to admit that he came to know about the transaction only after the raid and arrival of his officer, but he confirms that accused No.2 was not present and that he has not seen anything else. He also confirms that amount was not recovered from accused, but it was recovered from the table only. However, the material evidence of this witness is to the effect that he does not know that who has placed the note below the file and he has not seen the transaction or transmission of currency notes from any person and that from his table, everything is not visible. He also clarified that complainant had already taken loan from their office and therefore, complainant and his family members are not entitled to second loan within three years from such subsidy. He also admits that complainant is repeatedly visiting their office. Therefore, though he supports the activity during the raid, in his cross-examination it has become clear that he is not supporting his statement recorded by the police and therefore, there is reason to believe that investigating agency has recorded his statement in confirmation of the complaint even without asking him the factual details. Therefore, deposition of this witness would not be sufficient to confirm the conviction.

PW-3 at Exh.38 is Accountant of Union Bank of India, Junagadh branch, which has to disburse the amount once approved by the office of the accused, but simply confirmed the loan papers of the daughter of the complainant with endorsement of accused No.2. However, it would not prove the commission of offence by any of the accused.

Whereas, the most material and important evidence is in the form of Exh.43, a Circular by the Government confirming that accused No.1 is not a permanent Government employee. If it is so, there is no need to accord sanction against him to prosecute him, but at the same time, if some money transaction has taken place with him, in absence of evidence that it is for extending some benefit to the complainant, it cannot be said that such transaction is only towards illegal gratification.

Whereas, PW-4 at Exh.46 is daughter of the complainant, namely, Rabiyaben Hussainbhai for whom loan papers are to be submitted. Though she is averting about demand by accused No.2, who has now expired, there is no iota of evidence against the accused No.1.

Whereas, PW-5 at Exh.47 being counsin of PW-4 confirms that she does not know that whether complainant has given any amount to anyone or not, though she has paid Rs.50/- to the complainant. She is also not certain that whether she has received the amount of loan or not. She also admits the contradiction with her statement before the police confirming that she has not stated to the police that there was demand by the present accused. In cross-examination she has also admitted that in fact Hussainbhai has taken loan on several occasions and has not repaid the total amount of loan to her. This goes to show that complainant Hussainbhai is taking disadvantage of his position by pressurising the Government officers to release the loan in different names.

PW-6 at Exh.48, now, makes the picture clear as observed herein above when such witness, namely, Babu Mohan admits that when had been to the office of accused with Hussainbhai, the complainant, Hussainbhai had been annoyed and angry upon the present appellant and threatened him that if appellant is not clearing his loan, he will take revenge. It is undisputed fact that the appellant is not the competent authority either to approve the loan or to release the loan.

PW-7 at Exh.50 is Senior Clerk of the office of the accused, namely, Rajendra Rasiklal Shah. However, except narrating the procedure, there is nothing in his evidence to prove the guilt of the accused. On the contrary, there are contradictions in his deposition with his police statement and therefore, his evidence is not sufficient to confirm the conviction.

PW-8 at Exh.53 is the Trapping officer � cum � Investigating officer. Therefore, he has narrated the entire story in detail. He explained the activities carried out by them before trap and carried out in the office accused and cause of such loan application. However, we are not concerned with all such activities. Whereas, though, he denies the suggestion, it transpires that practically, it was pre-planned to push the tainted currency notes in the pocket of accused No.1, but when accused No.1 was not accepting the amount as instructed by the I.O., the complainant has placed it below the file on the desk. Whereas, the witness, a seasoned investigating officer has the audacity to say that he is not aware about the fact that accused No.1 is not a Government servant or that he has been released from his duty before the trap. Whereas, most crucial admission by the witness in paragraph 26 of his deposition is to the effect that there is no evidence whatsoever to confirm that accused No.1 has demanded or accepted the money from accused No.2. Though he denies the suggestion that on such ground, the head-office has refused to grant sanction and therefore, they have waited to file the case, he has no option but to admit several contradictions in statement recorded by him and deposition by the concerned witness, which prima facie goes to show that probably there was no proper investigation, but after completing the raid, irrespective of its result, it was shown as a successful raid and charge sheet was filed.

It is settled legal position that in any such cases, conviction can be upheld only and only if there is cogent and reliable evidence to prove beyond reasonable doubt that there is clear evidence against the accused to prove that he has accepted the amount of bribe towards illegal gratification. It is also settled legal position that for confirming conviction, all four ingredients viz. (1) prior demand, (2) demand at the time of trap, (3) acceptance of tainted currency notes and (4) possession of tainted currency notes are to be proved beyond reasonable doubt. The above discussion makes it clear that there is no positive and sufficient evidence to prove all the four ingredients.

In view of above evidence, I do not find any illegality or irregularity in the impugned judgment, more particularly, in view of settled legal position, as emerging from the following decisions

(A) P. Satyanarayana Murty v. District Inspector of Police, State of Andhra Pradesh, reported in 2016(1) SCC (Cri.) 11

(B) Selvaraj v. State of Karnataka, reported in 2016(1) SCC (Cri.) 19

(C) Krishan Chander v. State of Delhi, reported in AIR 2016 SC 299

that; in such cases for confirming conviction, all 3 actions are must and shall be proved by prosecution beyond reasonable doubt viz; (i) Prior demand (ii) Demand at the time of trap and (iii) Acceptance of the amount. In absence of specific clinching evidence to prove all such acts by the accused, there cannot be any conviction. Evidence of other witnesses may not be sufficient to prove demand even though recovery is proved. In that case, benefit of doubt is to be extended to the accused. Mere acceptance of any amount alone by way of illegal gratification or recovery thereof dehors the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge. Thereby, admission and acceptance of bribe is sine qua non for constituting offence under the Prevention of Corruption Act. If complainant or witness turns hostile on point of admission and acceptance of bribe and when panch witness did not hear conversation between accused and complainant at the time when complainant had approached to give bribe money, it is held by Hon''ble Supreme Court of India that factum of demand cannot be considered as proof and, thereby conviction was set aside.

In view of above facts and circumstances, the Criminal Appeal No.352 of 1991 is allowed as prayed for. Thereby, the impugned order dated 11.4.1991 in Special Case No.1 of 1988 by Special Judge, Surendranagar convicting the appellant is hereby quashed and set-aside. Thereby, the appellant is acquitted of all the charges levelled against him. Bail bond shall stand cancelled.

In view of allowing of Criminal Appeal No.352 of 1991, the Criminal Appeal No.385 of 1991 preferred by the State for enhancement of sentence passed by the learned Special Judge, Surendranagar in Special Case No.1 of 1988 dated 11.4.1991 is hereby dismissed.