2007 Supreme(Guj) 477

2008 (2) GCD 946 (Guj)
Hon’ble Mr. Justice C.K. Buch
Narendra C. Bhatt
Versus
State of Gujarat
Criminal Appeal No. 611 of 1991—Decided on 07/08/2007

Decided in Favour of :
Appellant
Appeal Allowed

Headnote:Subject :

       Criminal Law — Anticorruption Law — Conviction — Maintainability of.

       Point in Issue :

       Prevention of Corruption Act — Sections 7 and 13(1)(d)(ii) — Offence under — Conviction — Appreciation of evidence — Benefit of doubt.

       Head Note :

       Prevention of Corruption Act — Sections 7 and 13(1)(d)(ii) — Offence under — Conviction — Appreciation of evidence — Benefit of doubt — Appellant was working as Inspector of Food and Civil Supply Department — There are documents to show that close relatives of complainant had financial dealings with appellant — There is confusion in evidence as to the place where the ultraviolet lamp examination was carried out after the raid — Appellant has satisfactorily probablized his defence — Panch No. 1 himself has stated that he had no idea whether the appellant had asked the complainant as to what had been done — Alleged procedure undertaken by IO as to recovery of muddammal currency notes is under shadow of some doubt — Non-examination of the material witness by prosecution — Certain crucial questions have not been either discussed or answered while appreciating evidence by trial Court — Held, accused appellant entitled to acquittal — Conviction of appellant set aside.

       Held :

       The learned trial Judge has observed that there is evidence which can be said to be consistent qua the presence of anthracene powder marks on the hands of the appellant and there is also evidence under which it is possible to observe that at least once the muddamal currency notes had reached to the pocket of the appellant, then whether this is a fit case to raise presumption, was altogether a different question and according to me, the same has not been appreciated appropriately in the background of the defence taken by the appellant. As discussed in the foregoing paragraphs, the appellant has satisfactorily probablized his defence, so it is possible for this Court to conclude that the amount was not given under any previous understanding of giving bribe/ illegal gratification and/or the amount was accepted knowing it to be the amount of illegal gratification. The nature of evidence should be cogent. It is settled legal position that there is vast difference between ‘may’ and ‘must’. The defence theory puts the case of the prosecution in the category of ‘may’, and, therefore, it would not be safe for this Court to link the appellant with the crime raising any presumption. When it is accepted principle of law that the presumption can be rebutted by showing some reasonable probability, the appellant ought to have been given benefit of doubt by the learned trial Judge. [Para 25]

       It is relevant to note that even as per the panch No. 1 when he along with the complainant had reached at the table where the appellant was sitting, nobody else from the staff member was present and at that time, the appellant was talking on telephone and the conversation between the appellant and complainant had lasted for about 1 to 2 minutes. When the panch No. 1 himself has stated that he had no idea whether the appellant had asked the complainant as to what had been done. As discussed earlier, after this answer given by the panch No. 1 during the course of cross-examination, a pointed question was asked by the Court and it is clear from the answer given by this witness that before initiating the talk on telephone, the appellant had asked whether he has brought and and at that time, the complainant by gesture had said that he has brought. So no discussion between the appellant and the complainant had taken place under which it could be inferred that this conversation must be in reference to the permit which the appellant was to issue or had issued. Immediately thereafter the panch No. 1 had said that by gesture the things were decided but he has said that he does not recall as to what conversation actually had taken place between them. From the answers given to the suggestions made to panch No. 1 in paragraph No. 7 of the cross-examination, it is clear that the conversation between the complainant and the appellant had remained ambiguous. Thereafter, they had come out. It is not the say of the panch No. 1 or the complainant that after accepting the amount, the appellant had returned to his table. At one place in the evidence it has come on record that the members of the raiding party were on the ground floor and at the other place, it has come on record that the members of the raiding party had followed and they had been to the office of the appellant, and they had scattered. According to the Trapping Officer, on getting the agreed signal he had rushed to the office of the appellant and the procedure of examination of muddamal currency notes, etc. was carried out in the room of the appellant where the appellant was sitting. On the other hand, the panch No. 1 in paragraph No. 8 has said that when the Police Inspector Shri Vyas had reached, at that time the appellant was in the room where the clerks used to sit and the ultraviolet lamp examination procedure was carried out in the said room i.e. the staff room, and at that time three to four staff members were there in the office and the staff members were not permitted to move from their respective work place. This conflict takes the alleged procedure undertaken by the Investigating Officer in presence of panch No. 1 as to the recovery of muddamal currency notes under a shadow of some doubt. The learned trial Judge has not elaborately discussed and appreciated the evidence as to the conduct of the complainant and also panch No. 1. The conduct of the complainant prior to the trap and subsequent thereto as well as the conduct of the panch No. 1 of not acting or behaving as per the instructions given to him by the Trapping Officer has been ignored. The learned trial Judge has not applied mind on one crucial issue that if the appellant was a corrupt or a dishonest public servant and was in a mood to extort money from the complainant under a threat of harassment, the complainant was very well available to him on 19.09.1988. On that day also, the appellant was in-charge of the office of Shri Solanki. Why the appellant did not raise any such demand of monthly instalment on 19.09.1988 itself and cleared the request to grant permit on the same day. If the complainant had been to the Zonal Office on 20.09.1988, why he has been to the office without a written request. Whether any officer would give threat to harass after granting of permit on 21.09.1988, was the question, which ought to have been considered by the learned trial Judge. One Shri M.D.Agrawal has signed one application for the complainant on 22.09.1988. The raid was carried out on that very day. On that day, the request to grant permit for three pamolin oil was made on behalf of the complainant and the appellant had granted that request on that very day. It is possible to infer that this permission must have been granted prior to arrival of the raiding party in the office on 22.09.1988. If the appellant was keen to have illegal gratification for the work, he could have kept the application of the complainant pending till the arrival of the complainant. When it is the case of the prosecution that the complainant was asked to come with the amount of Rs. 200/- on 22.09.1988, and because of the same the trap was arranged, the appellant would not have issued permits for three edible oil tins without any delay, keeping that application pending, that too, by transferring the quota from the quota of one another fair price shop dealer. It is possible to argue both ways that as he was assured about the illegal gratification, he may have done that work, but it is also equally possible to submit that this conduct of the appellant is consistent to his innocence and inconsistent to his guilt. All these aspects have not been appropriately appreciated by the learned trial Judge, which make the conviction bad. The inferences can be drawn by the Court on the evidence but such inferences not only should be logical but also legal and no other inference than the inference drawn by the Court should be possible. Certain conjectures are also there in the judgment and order of conviction and sentence; e.g. the learned trial Judge ought to have thought as to whether the said Shri M.D.Agrawal who had been to the office of the appellant to get the permit for three pamolin oil tins, could have been examined as prosecution witness or the Trapping Officer, after seizing the documents, should have recorded his statement and cited him as a prosecution witness. I am told that his was Mitesh D. Agrawal. If the statement of the said Mitesh D. Agrawal was recorded, he could have been examined by prosecution. So non-examination of this witness also has resulted into some prejudice to the defence side. When Ex. 33 is relied upon by the prosecution, the prosecuting agency ought to have examined as to why this could have happened on 22.09.1988 i.e. the day of trap. For short, in the judgment and order of conviction and sentence under challenge certain crucial questions have not been either discussed or answered while appreciating the evidence by the learned trial Judge and hence, the present appeal is required to be allowed. This is a case where the learned trial Judge could have given benefit of doubt to the present appellant, keeping the scope of initiation of departmental proceedings open. [Para 26]