IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 824 of 1997 For Approval and Signature:
HONOURABLE MR.JUSTICE Z.K.SAIYED =========================================================
========================================================= AJITSINH BHITASINH RAJPUT - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
MR MJ BUDDHBHATTI for Appellant(s) : 1, MR LB DABHI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 17/08/2012 C.A.V. JUDGMENT
1. The appellant – original accused has preferred this appeal under sec. 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 21.8.1997 passed by the learned Special Judge, City Civil Court No.10, Ahmedabad, in Special Case No.31 of 1993, whereby, the learned Special Judge has convicted the appellant – accused for the offences punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and sentenced him to undergo R.I. for 1 (one) year and to pay a fine of Rs.1,000/, in default of which, to undergo further R.I. for one month.
2. The brief facts of the prosecution case are as under:
One Jignesh Harshadrai Sompura made a complaint to A.C.B. police on 26.8.1992, with the allegation that he applied for the job in military technical side and in response to that on 26.7.1992 he appeared in written examination in the office situated at Camp Hanuman. He received one letter that he had to remain present on 26.8.1992 at Camp Hanuman Office of military at 8 a.m. After he received the letter one person came to his house and informed him that he is the driver in military and if the complainant wanted to be selected in military he will have to pay Rs.10,000/ his order will be cancelled. He gave his address and told him that he should see him in the evening at the given address. In the evening, he and his uncle Hariprasad M. Sompura went at the address given to him. They went to his house. The accused offered them chair and talked about money with complainant's uncle and it was settled for Rs.9,000/. The complainant's uncle told the accused that after receiving the salary they will make arrangement for the amount. On 25.8.1992 at 3.30 p.m. he came to the complainant's house on Enfield Motorcycle and informed him that his name is listed on the Board and you can see it by visiting the Camp Office. He informed to come with Rs.9,000/ tomorrow evening at 7.30 p.m. and he should give it to him. The complainant could not manage Rs.9,000/ and he had only Rs.1,000/ with him. Thereafter, complainant approached Anti Corruption Bureau and lodged complaint. On receipt of the complaint, the Investigating Officer called the panchas and completed the necessary formalities. The raiding party thereafter rushed to the spot. Thereafter, investigation was carried out and after following the necessary procedure, and on grant of sanction, the chargesheet against the accused came to be submitted before the Court.
3. Thereafter, the charge was framed against the appellant to which the appellant – accused pleaded not guilty and claimed to be tried.
4. In order to bring home the charge levelled against the appellant accused, the prosecution has examined witnesses and also produced documentary evidence on record of the trial Court.
5. After examining the witnesses, further statement of the appellantaccused under Sec.
313 of Cr PC was recorded wherein the appellantaccused has denied the case of the prosecution.
6. After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, City Civil Court No.10, Ahmedabad, vide impugned judgment and order dated 21.8.1997, held the appellant – accused guilty of the charge levelled against him and convicted and awarded the sentence as stated herein above.
7. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, City Civil Court No.10, Ahmedabad, the present appellant has preferred this appeal.
8. Heard Mr.M.J.Buddhbhatti, learned advocate for the appellant and Mr.L.B.Dabhi, learned APP for the respondentState.
9. Mr.Buddhbhatti has read the charge and contended that the learned Special Judge has failed to appreciate that there are four stages which are required to be proved through the evidence of the complainant and that there should be corroboration to all those stages, namely, (i) initial demand (ii) second demand to be made in presence of panch (iii) acceptance and (iv) recovery. He has contended that prosecution has examined the complainant, panchas, trapping officer, Sanctioning Officer as well as Investigating Officer. From the evidence of all these witnesses and documentary evidence which are produced on record the prosecution has failed to prove four ingredients of the prosecution case and the learned Judge has wrongly convicted the present appellant in the said offence.
10. He has contended that P.W. Nos.1 and 2 are declared hostile. He has read evidence of the P.W. Nos.1 and 2 and contended that prosecution has failed to prove case from the evidence of the complainant and panch beyond reasonable doubt. He has further contended that so far as present appellant – accused is concerned, he is wrongly trapped by the Anti Corruption Bureau due to some grudge with Colonel Gandhi, who is an Officer of the Military. He has read statement of the appellantaccused recorded under Sec. 313 of Cr PC and contended that it is explained by the present appellant in his statement and looking to the explanation, probable defence is made out by the present appellant, but the learned Judge has wrongly considered and convicted present appellant. He has read answer No.58 and contended that when he was serving in Border Wing Homeguard at Palanpur as driver he was driver of Dy. Commandant. The Dy. Commandant had very good relation with Mr.D.B.Singh and he used to visit at Mr.Singh's place frequently. Once when the appellant was cleaning car of his Officer at that time Mr.Gandhi told him to clean his car, but the appellant refused to do so and due to this grudge with him he has wrongly booked in the said trap case.
11. He has contended that from the evidence of the complainant and panch no corroborative piece of evidence regarding contents of the panchnama is proved beyond reasonable doubt. He has relied on the decision in the case of State of Ajmer (now Rajasthan) Vs. Shivji Lal, reported in AIR 1959 SC 847, wherein it is held that, mere receiving of money by a public servant even if it be by corrupt means is not sufficient to make out an offence under Section 5(2) read with Section 5(1)(d). It is observed that, it is not part of the duty of a Government teacher to make appointments in a Railway Running Shed. There would, therefore, be no question of his committing misconduct in the discharge of his duty when he takes money for procuring a job for a person in the Running Shed.
12. He has also relied on the decision in the case of Rabindra Kumar Dey Vs. State of Orissa, reported in AIR 1977 SC 170. He contended that as per provisions of Section 154 of the Evidence Act it is the duty of the Court to exercise power judiciously. He has further contended that from the explanation of the present appellant accused recorded in Section 313 probable defence is made out and presumption cannot be drawn. Lastly he contended that the judgment of the learned Judge is against the provisions of law and present appellant is wrongly convicted and therefore, the judgment and order of conviction is required to be quashed and set aside.
13. On the other hand, learned APP Mr.L.B.Dabhi has supported the judgment and order of the Special Court and contended that the trial Court has fully appreciated the evidence produced on record by the prosecution and, therefore, no interference is called for by this Court. He has contended that as per contents of the charge it is the case of the prosecution that on 25/26.8.1992 present appellant was a public servant and was serving in Border Wing Homeguard at Ahmedabad in Civil Defence Office. He has contended that so far as issue relating to sanction is concerned, when it is not challenged then no question can arise regarding legality of sanction. He has read evidence of P.W. No.1 and contended that demand is proved beyond reasonable doubt in the case. It is disclosed by this witness that he received letter of selection in Military Technical Department that he has to appear on 20.8.1992. After receiving that letter present appellant though not knowing to this witness came to his residence and informed that he is coming from the Military Department and he demanded Rs.15,000/ and conveyed that if the amount is not paid, the order will be cancelled. He has contended that when the complainant went to the house of appellant with his uncle the appellant – accused offered them chair for sitting and the uncle of the complainant conveyed that at present he has Rs.1,000/ and remaining amount will be paid after the date of salary. The appellant – accused accepted Rs.1,000/ from the witness and which amount was recovered from the possession of the present appellant.
14. He has contended that xerox copy of MarkA was given to the Trapping Officer and address written by the present appellant is proved at Ex.18 and it is not challenged by the present appellant – accused. He has read evidence of P.W. No.2 and contended that he is an independent witness and he has proved contents of the panchnama Ex.24. The demand and acceptance of the illegal gratification is proved through oral version of this witness. He has contended that looking to the provisions of Section 20 of the Prevention of Corruption Act it is the duty of the prosecution to rebut the presumption. As per evidence of both these witnesses marks of anthracene powder could be seen on fingers, thumb, tips and palms on both hands of the present appellant – accused. The appellant – accused has accepted trap amount from the complainant in presence of the panchas.
15. The learned APP has contended that so far as provisions of Section 154 of the Evidence Act is concerned, it is the power and discretion of the Court to follow the provisions of Section 154 of the Evidence Act. He has read para23 of the judgment of the learned Judge and contended that the learned Judge has observed that Army Officer had no grudge or grievance against the accused because accused is not serving in military department. He has contended that it was willful demand made by the present appellant and acceptance is proved in the case beyond reasonable doubt.
16. The learned APP has also contended that looking to the facts of the case presumption under Section 20 of the P.C. Act is required to be drawn against the present appellant – accused.
17. The learned APP has relied on the decision in the case of Harjibhai Devjibhai Chauhan Vs. State of State, reported in JT 2012 (5) SC 496, wherein it is held that demand and acceptance has been proved by cogent evidence of complainant and shadow witness. He has also relied on the judgment and order dated 31.12.2012 delivered in the case of Syed Ahmed Vs. State of Karnataka in Criminal Appeal No.1323 0f 2007
18. The learned APP has read further statement of the appellant – accused recorded under Section 313 of the Code and contended that presence of the anthracene powder found from both the hands of the appellant is not explained by the appellant accused. It is the duty of the appellant to rebut the presumption under Section 20 of the Prevention of Corruption Act. In support of his contention he relied on the decision in the case of Balasubramanian Vs. State through Inspector of Police, reported in 2011 (1) GLR 739. He has contended that sufficient opportunity was given to the appellant to explain the evidence against him after the prosecution witnesses are examined and no explanation is given about the trap amount recovered from the possession of the present appellant in further statement under Section 313 of the Code.
19. Heard learned advocates for both the parties. I have perused the oral as well as documentary evidence. I have also considered the oral arguments advanced by learned advocates appearing for both the sides. As per evidence of the P.W. No.1 he is declared hostile but prior to declaration of hostile he has disclosed that present appellant came to his place who was unknown to him and it was conveyed by the present appellant that he has received letter from the military and he has made demand of illegal gratification of Rs.15,000/ and then agreed to accept Rs.10,000/ and in result of that the complainant gave Rs.1,000/ to the appellant and conveyed that remaining amount will be managed by him after the salary. The amount of bribe was accepted by the appellant – accused at his residence. There was willingness and agreement of present appellant to accept the illegal gratification. In the decision of Lella Srinivasa Rao Vs. State of Andhra Pradesh, reported in AIR 2004 SC 1720, the Hon'ble Supreme Court has held that, 'the fact that these witnesses have been declared hostile by the prosecution, does not result in the automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused'. From perusal of Section 8 of the Evidence Act conduct of the present appellant shows that there was willingness and agreement of the present appellant to accept illegal gratification.
20. I have perused para23 of the judgment and order of the learned Judge. The learned Judge has observed that, “Army Officer had no grudge or grievance to grind against the accused because accused is not serving in military department”. I am of the opinion that Army Officer had no grudge with the accused. It is disclosed by the appellant in his statement that, there was enmity with the Army Officer and in the result of enmity the appellant is trapped by the Trapping Officer.
21. The appellant has failed to rebut the said presumption by leading probable defence. Section 20 of the P.C. Act reads as under :
“20. Presumption where public servant accepts gratification other than legal remuneration -
(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub- section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-section
(1) and (2), the court may decline to draw the presumption referred to in either of the said sub- sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.”
22. So far as case of Prevention of Corruption Act is concerned, when a public servant by illegal means misused his position in discharge of public duty for himself or for any other person it shall be presumed that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing. In the present case, in presence of panch when the demand is made by the appellant for Army Officer which shows that ingredients of Section 20 of the P.C. Act is proved in the case beyond reasonable doubt. The present appellant has accepted bribe of Rs.1,000/ from the informant in order to confirm his appointment and evidence of witnesses are trustworthy, reliable and acceptable. Hence, the learned Judge has rightly convicted the appellant – accused for the alleged offence.
23. I have perused further statement of the appellant recorded under Section 313 of the Code of Criminal Procedure. In the further statement the appellant has tried to prove the defence version beyond reasonable doubt. The appellant has failed to explain as to how the amount in question was found in his possession and as to how light blue fluorescent marks of anthrecene powder were found on his hands. The appellant has failed to rebut the said presumption by leading probable defence. Thus, when the demand and acceptance are proved and when the appellant has failed to rebut the presumption under Section 20 of the Prevention of Corruption Act, 1988, I am of the opinion that prosecution has proved its case beyond reasonable doubt. I have perused the oral evidence of Trapping Officer. The defence has not produced any evidence to suggest that the Trapping Officer is biased or that he has committed any illegality. The Trapping Officer is an independent witness and he is not having any illintention to implicate the appellant falsely. He has supported the case of the prosecution. The defence has failed to prove the probable defence. I have not found anything to accept the defence version of the appellant. I am of the opinion that the learned Special Judge has passed the judgment and order after appreciating all the aspects of the matter.
24. The Apex Court in case of Narendra Champaklal Trivedi Vs. State of Gujarat (Supra), held that the demand and acceptance of the amount as illegal gratification is the sine qua non for constituting an offence under the Act. It is also settled in law that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted by him other than the motive or reward as stipulated under Section 7 of the Act. The Apex Court further held that it is obligatory on the part of the court to consider the explanation offered by the accused under Section 20 of the Act and the consideration of the explanation has to be on the anvil of preponderance of probability. It was further held that it is not to be proved beyond reasonable doubt and it is necessary to state here that the prosecution is bound to establish that there was an illegal offer of bribe and acceptance thereof. The same has to be founded on facts. The Apex Court referred to the decision in the case of M.Narsinga Rao v. State of A.P. Reported in (2001) 1 SCC 691 wherein a threeJudge Bench referred to Section 20 of the Act and stated that the only condition for drawing the presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept the gratification. Thereafter, the Apex Court reproduced a passage from the decision in the case of Madhukar Bhaskarrao Joshi v. State of Maharashtra, reported in (2000) 8 SCC 571 with approval. It reads as follows: “The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted ‘as motive or reward’ for doing or forbearing to do any official act. So the word ‘gratification’ need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like ‘gratification or any valuable thing’. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word ‘gratification’ must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.”
25. In Raj Rajendra Singh Seth v. State of Jharkhand & Anr. the principle laid down in Madhukar Bhaskarrao Joshi (supra) was reiterated.
26. In State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, it has been held that to arrive at the conclusion that there had been a demand of illegal gratification, it is the duty of the court to take into consideration the facts and circumstances brought on record in their entirety and for the said purpose, undisputedly, the presumptive evidence as laid down in Section 20 of the Act must also be taken into consideration.
27. In C.M. Girish Babu v. C.B.I., Cochin, High Court of Kerala, after referring to the decisions in M.Narsinga Rao (supra) and Madhukar Bhaskarrao Joshi (supra), the Court has held thus: “19. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the crossexamination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.”
28. In the case on hand, the money was admittedly recovered from the possession of the accusedappellant and therefore a presumption under Section 20 of the Act becomes obligatory. It is a presumption of law and it casts an obligation on the court to apply it in every case brought under Section 7 of the Act. The said presumption is a rebuttable one. In the present case, the explanation offered by the accusedappellant has not been accepted and there is no evidence on the basis of which it can be said that the presumption has been rebutted.
29. The learned advocate for the appellant has vehemently submitted that admittedly there has been no demand or acceptance. To bolster the said aspect, he has drawn inspiration from the statement of the complainant in his examinationinchief. The said statement, in my considered opinion, is not to be read out of context. He has clarified as regards the demand and acceptance at various places in his examination and in the crossexamination. The witness has clearly stated that there was demand of bribe and giving of the same. Nothing has been brought on record to doubt the presence of the shadow witness. He had given the signal after which the trapping party arrived at the scene and did the needful. All the witnesses have supported the case of the prosecution. The currency notes were recovered from the possession of the appellant. In the cross examination nothing has really been elicited to doubt his presence and veracity of the testimony. The appellant in his statement under Section 313 of the Code of Criminal Procedure has made an adroit effort to explain his stand but I have no hesitation in holding that he has miserably failed to dislodge the presumption. Thus analysed and understood, there remains no shadow of doubt that the accusedappellant had demanded the bribe and accepted the same. Therefore, the conviction recorded by the learned trial Judge does not warrant any interference.
30. Looking to the facts of the case, I am of the opinion that the prosecution has proved beyond reasonable doubt that the appellant accused, being a public servant, demanded the bribe amount and also accepted the bribe amount from the complainant. The accused has not explained by discharging his burden of rebutting the statutory presumption of guilt against him. From the facts and evidence on record, it is clearly established beyond reasonable doubt that the amount by way of bribe was demanded by the accused and he accepted the same voluntarily as an illegal gratification.
31. In view of above, I am in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and I am of the view that no other conclusion except the one reached by the trial Court is possible in the instant case on the basis of the evidence that stands on record. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence.
32. In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 21.8.1997 passed by the learned Special Judge, City Civil Court No.10, Ahmedabad, in Special Case No.31 of 1993 is hereby confirmed. Bail bond stands cancelled. R & P to be sent back to the trial court forthwith. The appellant – accused is directed to surrender before the Jail Authority within a period of four weeks from the date of this order, failing which the concerned Sessions Court shall issue non bailable warrant to effect the arrest of the appellant – original accused.
(Z.K.SAIYED, J.) kks