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2017 Supreme(Guj) 243
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R.P. Dholaria, J.
Madhusudhan Ramanlal Soni - Appellant
Vs.
State of Gujarat - Respondent
Criminal Appeal Nos. 1250 of 1999 and 73 of 2000
Decided On : 12-01-2017
For the Appellant : Haresh Joshi, for Navin K. Pahwa
For the Respondent: Chintan Dave
Headnote:
Prevention of Corruption Act, 1988 – Sections 7 and 13(1)(d) read with Section 13(2) – Demand and Acceptance of Money – Bribe – Convicted – Appeal against conviction – Seeking enhancement of sentence – Appellant contend that trial Judge did not appreciate the evidence on record in its proper perspective and findings recorded by trial Court are not based upon the evidence on record though prosecution failed to prove vital ingredients i.e. demand, acceptance and recovery, he has been wrongfully convicted – Appeal are that the complainant tendered the application for entering his name in the property card which is maintained by the City Survey Office – At the time of carrying out such procedure appellant-accused demanded Rs. 400/-. Since the complainant did not desire to give any amount to the present appellant-accused, complainant approached the ACB office – Alleged that appellant-accused was caught red handed while accepting tainted currency notes and thereby committed the offence – Held, On overall analysis of the evidence of the complainant as well as the aforesaid P.W. Nos. 2 and 3 – Court is not satisfied with their testimony and as deposition of the complainant is not at all getting any corroboration, it would be very hazardous to confirm the conviction recorded by the learned Special Judge based upon such insufficient evidence – As laid down by the Honble Supreme Court in several decisions, corroboration in all ACB cases is sine-qua-none, more particularly, when the status of the complainant is tainted with involvement in crime of murder. Solely based upon the sole testimony of the complainant, it would be hazardous to convict the accused in such sort of the cases of bribe – It clearly reveals that the personal search of the accused was carried out through the panch No. 1 and the panch No. 1 recovered tainted currency notes from the pocket of the shirt of the accused which was found to be smeared with anthracene powder and the numbers of tainted currency notes were tallied with the numbers mentioned in the preliminary panchnama – The judgment of conviction recorded against the accused by the Special Judge in Special Case is not sustainable at law and prosecution miserably failed to establish the vital ingredients as regard to the demand and acceptance against him and it is required to be quashed and set-aside – Impugned judgment and order of conviction and sentence recorded against accused by the learned Special Judge in Special Case is not sustainable at law and the prosecution miserably failed to establish the vital ingredients as regard to the demand and acceptance against him and it is required to be quashed and set-aside – Judgment of conviction recorded by the learned Special Judge in Special Case is not sustainable at law – Appeal Dismissed. (Paras 20, 21 ,23 and 24)
R.P. Dholaria, J.
1. The aforementioned both the appeals have arisen out of the same judgment of conviction recorded by the learned Special Judge, Vadodara in Special Case No.07 of 1994, convicting the present appellant under Section 7 of the Prevention of Corruption Act, and awarding rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default, to undergo further simple imprisonment for 30 days and also convicted under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for 2 years and to pay fine of Rs. 500/-, in default, to undergo simple imprisonment for 30 days and therefore, they are being heard and decided by this common judgment.
2. Criminal Appeal No. 1250 of 1999 has been preferred by the original accused questioning his conviction inter-alia contending that the learned trial Judge did not appreciate the evidence on record in its proper perspective and the findings recorded by the learned trial Court, are not based upon the evidence on record. It is further contended that though the prosecution failed to prove vital ingredients i.e. demand, acceptance and recovery, he has been wrongfully convicted.
3. Criminal Appeal No. 73 of 2000 has been preferred by the State of Gujarat for seeking enhancement of sentence inter-alia contending that taking into consideration the menace of corruption prevailing in the society, the accused is rightly convicted and this Court may enhance the sentence imposed by the trial Court.
4. The short facts giving rise to the present appeal are that the complainant tendered the application for entering his name in the property card which is maintained by the City Survey Office, Vadodara. At the time of carrying out such procedure, the appellant-accused demanded Rs. 400/-. Since the complainant did not desire to give any amount to the present appellant-accused, the complainant approached the ACB office. After the complainant lodged the complaint, necessary formalities in respect of trap were carried out at ACB Office and the trap was arranged accordingly. The present appellant-accused was caught red handed while accepting tainted currency notes on 29.04.1993 and thereby, committed the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Hence, the complaint came to be lodged against the appellant-accused for the offence punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act.
5. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused persons. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
5.1 In order to bring home the guilt, the prosecution has examined four witnesses and also produced several documentary evidences.
5.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.
6. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.
7. Mr. Haresh H. Joshi, learned advocate for the original accused has argued that in the present case, the prosecution failed to prove vital ingredients as regard to demand, acceptance and recovery thereof. He further argued that the complainant has supported the prosecution case, but the independent witness panch No. 1 has not at all supported the prosecution case and not given testimony as regard to any demand for anything and as to what he viewed or heard the conversation between the complainant and the accused. He therefore, submitted that so far as the demand and acceptance are concerned, the present case is not getting any sort of corroboration from independent witness. He has further argued t
