IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 983 of 2004 For Approval and Signature:
HONOURABLE MR.JUSTICE Z.K.SAIYED ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of 4 law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
====================================== PURSOTTAMBHAI HIRABHAI HARIJAN Appellant(s) Versus STATE OF GUJARAT Opponent(s) ====================================== Appearance :
MR YOGESH S LAKHANI SENIOR ADVOCATE for Appellant(s) : 1, MR HL JANI ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 11/05/2012 CAV JUDGMENT
1. Challenge in this appeal is to the judgment and order of learned Special Judge, Anand, passed in Special ACB Case No.11 of 1997 dated 28.5.2004, whereby the learned Special Judge (Fast Track Court), Anand was pleased to convict the appellant-accused under Section 7 of the Prevention of Corruption Act and awarded sentence to the appellant to suffer simple imprisonment for two years and to pay a fine of Rs.3,000/-, i/d, to further undergo simple imprisonment for three months. The appellant was also ordered to suffer simple imprisonment for two years and to pay a fine of Rs.3000/-, i/d, to suffer simple imprisonment for three months for the offence punishable under Sections 13(1)(gh) and 13(2) of the Prevention of Corruption Act. The learned Judge has ordered that all the sentences shall run concurrently.
2. Prosecution version is that on 1.5.1997 the complainant lodged a complaint before the ACB Inspector, ACB office, Nadiad, stating that the complainant was engaged in the business of the grocery and cattle feed. He also having agricultural land about 20 Vighas at village Morad and agriculture operation was going on at that relevant point of time. In the year 1990, the complainant purchased five Vighas land situated at Survey No.1181 at village Adas at the consideration of Rs.1 Lac from one Chandrasinh Sahebsinh and other three persons and sale deed was executed in the year of 1990. The complainant wanted to start factory over the said land but due to economic crisis, he could not construct the building of the factory and also he could not obtain N.A. Permission. The Circle Inspector and Prant Officer filed Tenancy Case No.219 of 1990 on the ground that there was breach of limitation of 8 Km. in purchasing the land. The Krushi Panch, Mamlatdar and Prant Officer called the complainant and original owner of the land and ordered to obtain N.A. permission and complete the construction within a period of six months. On 21.3.1997, one notice was sent to the complainant by Deputy Collector, Land Reforms, Nadiad, whereby the order passed in Tenancy Case No.219 of 1990 was quashed and sale transaction was also quashed by Change report No.12523. Thereafter, the complainant approached Gujarat Revenue Tribunal and on 3.4.1997, the complainant obtained stay against order of Deputy Collector and said packet of stay order was to be handed over to the Talati-Cum-Mantri, appellant herein, who was working at Adas village. The complainant met the appellant and the appellant intimated the complainant that the Deputy Collector, Kheda, made the entry in the register with pencil. At that time, the appellant being Talati-Cum-Mantri, told the complainant to do as per his advise and the complainant told the appellant to come at his shop. On 19.4.1997, the appellant went to the shop of the complainant and told him that he will make arrangement and land would be with the complainant and for that work, he demanded Rs.15,000/- as illegal gratification. Even the appellant told that out of said amount, some money be given to him for starting the proceedings. On 22.4.1997, the appellant took Rs.5000/- from the complainant and at that time, the complainant asked about the copy of the entry of stay order, but the appellant told that he had brought the copy of the order, but he would provide the same whenever he would come. On 30.4.1997, the appellant accused made phone call to the complainant informing him that “the copy of the order is ready and he can collect the same tomorrow” and he instructed the complainant to give him another amount of Rs.5000/-. Therefore, the complainant shown his inability to pay Rs.5000/- at a time. However, he assured to pay Rs.3000/- to the appellant. The complainant did not want to pay the said amount, but keeping in mind his work for getting for copy of order, he had assured to pay the amount of Rs.3000/- to the appellant. Thereafter, the complainant decided to lodge a complaint with ACB Office and his complaint was taken down by ACB Inspector, Nadiad. The panchnama and other formalities including experiment of ultra violet lamp were completed by the ACB personnel. After completing the formalities, the raiding party of ACB left for the shop of the complainant at about 17:50 hrs.. The complainant was instructed by the ACB Inspector that unless and until the amount is demanded by the accused, the complainant should not hand over the amount directly to the accused and after the amount is accepted by the accused, the complainant should give signal to the ACB staff. Thereafter, the panch No.1 and complainant proceeded towards the shop of the complainant. At about 18:30 Hrs. one person, who is appellant, came in auto rickshaw and in the said rickshaw, the wife of the appellant and on the front seat, two other person were there. The appellant proceeded towards the shop of the complainant. The complainant demanded the copy of the stay order from the appellant, but the appellant did not bring the same and he told that he will bring the same on tomorrow. Thereafter, the appellant made demand of money as per telephonic talk, and in response, the complainant gave Rs.3000/- to the appellant and the appellant accepted the same by his left hand. Immediately, the complainant gave signal to the ACB personnel and the entire raiding party rushed to the spot. The ACB staff carried out procedure of ultra violet lamp and anthracene powder marks were seen on the fingers and palm of both hands as well as stick of the accused. The seizure list was prepared and necessary panchnama was drawn, statement of the accused was recorded. The offence, thereafter, was registered and as the accused falls within the definition of “public servant”, necessary sanction was obtained before prosecuting him.
3. After investigation, the Investigating Agency submitted the charge-sheet. During the trial, prosecution examined the witnesses and got exhibited large number of documents. The witnesses examined by the prosecution viz. PW-1, Rajnikant Maganbhai Patel complainant at Exhibit 11, PW-2, Baldevbhai Hargovindbhai Patel at Exhibit 44, PW-3, Shankardas Kesraji Gadhvi, panch witness at Exhibit 48, P.W.4 – Sanyuddin Jalalluddin Exhibit 50, P.W. 5- Trivedi Kheval Anantray at Exhibit 53, Panch witness, P.W.6 Chandrakant Chhaganlal Raval, P.S.I., ACB, at Exhibit 57, P.W.7- Jonbhai Thomasbhai Kristi at Exhibit 68, P.W.8 Nalinkumar Somabhai Joshi, P.I. ACB at Exhibit 77. Thereafter, the documentary evidence produced before the lower Court. During recording of the further statement under Section 313 of Code Criminal Procedure, the accused stated that he had no knowledge about case and denied demand of the amount.
4. The trial court on appreciation of the evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts. While doing so it considered the defence version and rejected the same. Accordingly the appellant was convicted and sentenced as narrated above, by the trial court.
5. Learned senior advocate Mr. Yogesh Lakhani appearing on behalf of the appellant submitted that impugned judgment and order is bad in law and against the evidence on record. He also submitted that there is vast difference and contradictions in the deposition of both the panch witnesses. Even the deposition of complainant is found contradictory to his own complaint. He also submitted that at the time of the alleged incident, son of complainant, his Mehtaji and one person Haribhai were present in the shop. Even in the rickshaw, the wife of appellant and other two persons were also present. The prosecuting agency has not recorded statement of these independent witnesses nor all such witnesses examined before the Court. The entry in the revenue record was already discharged by the Talati-Cum- Mantri and therefore, there is no question of demanding the bribe by the appellant. He also submitted that once the entry is already posted, there would not be any question of asking for any amount for doing favour. Copy of the revenue entry can be obtained on payment of negligible charges and for this kind of act, nobody would dare to demand huge amount. There is absolutely no evidence to point out that on the earlier occasion the amount of Rs.5,000/- was already paid to the appellant. Thus, the impugned judgment and order passed by the learned Special Judge is based on conjecturer. He also submitted that the panch witnesses are selected and they are not the independent panchas. They were called from Nadiad specially for this purpose though independent panchass could have been made available from Anand. The appellant is physically handicapped and taking advantage of his physical infirmity a false and concocted case is made against the appellant.
6. Learned senior advocate Mr. Lakhani read the charge at Exhibit 6 and submitted that the prosecution has filed charge-sheet against the appellant alleging the offence punishable under Sections 7, 13(1)(d) and 13(1)(gh) of the Prevention of Corruption Act. He further submitted that learned Special Judge has not properly considered the oral evidence of the panch witnesses as well as complainant. Here in this case, when the probable defence is established then it is a right of the present appellant to obtain acquittal order against the order of conviction and sentence passed by the learned Special Judge. He also submitted that when the judgment and order itself is unjust, improper and against the provisions of law as well as contrary to the evidence on record, it is required to be quashed and set aside by allowing present appeal.
7. Learned senior advocate Mr. Lakhani drew the attention towards the oral evidence of complainant – P.W.1 - Rajnikant Maganbhai Patel at Exhibit 11, panch witness – P.W. 2- Baldevbhai Hargovindbhai Patel at Exhibit 44, Panch witness P.W.3 – Shankardas Kesarji Gadhvi at Exhibit 48, Panch witness P.W.4 – Samayuddin Jalaluddin at Exhibit 50, panch witness – P.W. 5 – Trivedi Kheval Anantray, panch witness P.W.6 – Chandrakant Chhaganlal Raval at Exhibit 57 and submitted that from the evidence of these witnesses, there is nothing come out which links with the demand on the part of the appellant. Even there is no corroboration of oral evidence with the documentary evidence. Therefore, the evidence led before the Special Judge have no weight to hold the appellant guilty for the offences alleged. He read the evidence of P.W.8 – P.I. ACB Office, Nalinkumar Somabhai Joshi and submitted that from the evidence of this witness, it is admitted fact that no demand of Rs.15,000/- towards bribe on the part of the appellant was made before the complainant for handing over the copy of alleged stay order. He submitted that from the evidence of the complainant, it is also reflected that the appellant has extended the help only to the complainant. He also submitted that at the time of alleged trap, there were three other persons viz. his son, one Haribhai and Mehtaji present, but they were not examined and even in the rickshaw, there were three persons viz. wife of appellant and other two persons on the front seat of rickshaw were there, they were not examined. Therefore, the star witnesses, who were already there, were not examined and only selected witnesses were examined to prove the case against the appellant. The complainant himself has criminal history and there were so many criminal cases lodged against the complainant including the case of kidnapping. Therefore, the complainant, here in this case, is having criminal mind, his complaint or evidence cannot be said to be a reliable and trustworthy evidence. It is also reflected from the evidence, that till one year, the complainant had not obtained NA permission after purchasing the land. It is admitted by the complainant that he does not know the person before whom he lodged complaint against the appellant. Learned senior advocate also submitted that even the complainant himself is uncertain about giving of Rs.5000/- to the appellant, which is very well reflected from the cross-examination of the complainant. Therefore, as per the submission of the learned senior advocate, the oral evidence of the complainant cannot be said to be reliable and such complaint was given by the complainant to settle the score with the appellant. He also submitted that the evidence of P.W.2 – Baldevbhai Hargovindbhai Patel has not supported the case of prosecution and at the time of trap, said witness was in the shop of the complainant, and as per the complaint, the complainant gave bribe amount to the appellant outside the shop, where they were sitting on the plastic chairs. Even from the oral evidence of P.W.3, who was District Development Officer under whom the appellant was working as Talati-Cum-Matri, Adas, it appears that sanction order is not just and proper. The evidence of P.W.4 – Panch No.2 has not supported the case of prosecution. Learned senior advocate Mr. Lakhani submitted that when the entry was already posted in the register then the question of demanding bribe on the part of the appellant is totally baseless, because, as per the complainant, the appellant had to handover the copy of the order regarding such entry. Even there are so many ways under the provisions of law, to obtain such a copy of order by paying negligible charges and for that the complainant was not required to pay such a huge amount to the appellant. He also submitted that the panchas are selected witnesses. He also submitted that the investigation carried out by the Investigating Officer creates doubt and therefore, the evidence of Investigating Officer is said to be not supported to the case of prosecution. He also submitted that the appellant is physically handicapped person and he has been falsely implicated in the case. He also submitted that the contents of complaint and panchnama are not corroborated to each other and even with the oral evidence. From the statement recorded under Section 313, it has not come out that the appellant made demand, which is proved and in turn he accepted the bribe money. But without properly considering the statement under Section 313, learned Special Judge convicted the appellant. Even the appellant submitted written statement before the learned Special Judge, wherein it is mentioned that due to declaring the sale deed executed by the complainant as void, the complainant got exited and he doubted that the appellant has extended help to the original owner of the land namely Chandrasinh. The appellant also averred in his written statement that if he wanted to take bribe money from the complainant then why he has decided the public place i.e. shop of the complainant. Even the panchnama was not drawn at the spot but same was drawn at ACB office, Nadiad. There were so many tenancy and criminal cases lodged between the complainant and original owner of the land in question. But the learned Special Judge while passing such order of conviction and sentence, has not taken into consideration the defence made out by the appellant. Therefore, the judgment and order of conviction and sentence is required to be quashed and set aside by allowing this Appeal.
8. As against that, the learned APP Mr. Jani submitted that the charge is proved against the accused as per the facts and circumstances of the case and as per documentary and oral evidence produced on record. He also submitted that the appellant made demand from the complainant in presence of panch No.1, who was already there at the shop of the complainant and the said witness had very well supported the case of prosecution, therefore, the question of giving false complaint against the appellant cannot arise. Learned APP further submitted that the appellant was public servant working as Talati-Cum-Mantri at Adas village and the said appellant told the complainant for doing work (handing over the copy of stay order) pertaining to the land of the complainant) for which, Rs.15,000/- was agreed to be paid to the appellant by way of illegal gratification, and out of the said amount, the complainant had already paid Rs.5000/-. Such contention is taken in the complaint by the complainant, which is very well supported by his oral evidence. Even in the oral evidence, the complainant stated such fact and also same was admitted by him in his cross-examination, therefore, the question of not believing the case of the prosecution, does not arise at all. The appellant being public servant, has no right to demand any money from any person for functioning his duties. It is also reflected from all the documents that the appellant himself demanded Rs.15000/- towards illegal gratification from the complainant for completing his work. He also submitted that other cases whatever against the complainant has no concern with the present case because this is a case falls under the provisions of Prevention of Corruption Act and the appellant did act contrary to the provisions of said Act. He also submitted that so far other panch witnesses are concerned, they are the experienced persons, acted in past as panch for carrying out the trap. Therefore, the question of selected panchas cannot arise. The amount was accepted by the appellant by his right hand at the time of trap and stains of anthracene powder were found on the right hand of the appellant. Learned APP further submitted that the prosecution has successfully proved its case through the evidence of P.W.2, panch witness, who was present at the time of trap and in his presence the appellant demanded money from the complainant and the appellant promised that the copy of the order would be given to the complainant on next day. This witness also stated that the appellant accepted the amount from the complainant and the said amount was counted by him and at that time, the complainant made pre-arranged signal to the ACB persons and ACB persons rushed there immediately. This witness also stated that stains of anthracene powder were found on the hands and on the stick of the appellant. Learned APP drew the attention of this Court to the oral evidence of P.W.3, who was District Development Officer at that time and as per his evidence, it is clearly established that after minutely scrutinizing the papers, he has accorded the sanction to prosecute against the appellant. Therefore, sanction is legal, just and proper. Learned APP further submitted that P.W.4, who is panch witness No.2, has stated in his oral evidence that at the time of trap, the appellant came at the shop of the complainant by auto rickshaw and the amount of Rs.3000/- was given by the complainant to the appellant in his presence and marks of anthracene powder were found on the hands of the appellant. Learned APP also drew the attention of this Court to the oral evidence of P.W.6 Chandrakant Chhaganbhai Raval, PSI of ACB Office, Nadiad, and submitted that this witness had very well explained about the trap, which was carried out and this witness has supported the case of the prosecution by stating that the recovery was made from the appellant and stains of anthracene powder were found on the hand and stick of the appellant. Learned APP read the evidence of P.W.7 Jonbhai, who was working as senior clerk at Taluka Panchayat, Anand and submitted that it is reflected that the appellant was working as Talati- Cum-Mantri, Adas village and he has produced the work diary of the appellant working as Talati-Cum-Mantri. Learned APP Mr. Jani submitted that looking to the complaint and panchnama, it cannot be said that they are not supported by the oral evidence of the witnesses. He also submitted that sanction is just and proper and therefore, it cannot be said that superior Authority has wrongly accorded the sanction. He also submitted that from the statement under Section 313 of the Code of Criminal Procedure, it appears that the appellant has not satisfactorily clarified and explained that the case of the prosecution is baseless and false. He also submitted that three main ingredients like demand, acceptance and recovery are proved against the appellant beyond reasonable doubt and therefore, learned Special Judge has after considering the evidence on record, held the appellant guilty for the charges levelled against him and no interference is required to be called for by this Court. It is true that the appellant is physically handicapped, but he has no right to demand and accept any amount towards illegal gratification from any person. He submitted that in this case, Section 20 of the Act, is straightway applicable. He submitted that this appeal is required to be dismissed by confirming the judgment and order of conviction and sentence imposed upon the appellant.
9. Heard the learned advocates for the parties and perused the record. It appears from the judgment that learned Special Judge has specifically made attempt to frame the charge in connection with the demand and acceptance. I have perused oral evidence of P.W. 1 complainant at Exhibit 11 and it appears from the evidence that on 22.4.1997, the appellant came to the shop of the complainant and told that the complaint was to give Rs.15000/- to him for doing his work. As per conversation between the complainant and appellant, Rs.5000/- was already paid to the appellant by the complainant. On 30.4.1997, the appellant made phone call to the complainant and told about remaining amount and for that the complainant shown his inability to pay such a huge amount, however, the complainant was ready to pay Rs.3000/- to the appellant. Thereafter, the complainant lodged complaint before the ACB Office against the appellant. The complainant also stated that after completing formalities, he along with panch No.1 as well as ACB team reached at the shop of the complainant. The appellant demanded money in the presence of panch No.1 and same was accepted by the appellant. The ACB persons recovered the money from the appellant. It is reflected from the evidence of the complainant that the appellant accepted the amount by his right hand and counted the money by his both hands and when the appellant tried to put the money in his pocket, the ACB person caught the appellant red handed with trap amount. The stains of anthracene powder were found on both the hands of the appellant as well as on the pocket of shirt and also on stick of the appellant. Even in the cross-examination, the complainant has categorically stated about the demand and acceptance on the part of the appellant. Even the complainant was interested about success of trap. From the oral evidence of P.W.2, it appears that he has very well explained the facts of the case and also the demand made by the accused from him. This witness categorically stated about the entire incident and he stated that the appellant demanded the money towards illegal gratification and the complainant gave Rs.3000/- to the appellant and also the appellant asked the complaiant about remaining amount. This witness also stated about stains of anthracene powder on the hands, shirt and stick of the appellant. This witness also made signature in the panchnama. By the oral evidence, it is also reflected that this witness is not selected witness but experienced person. In the cross-examination, this witness also admitted that he was in the shop of the complainant and the appellant accepted the trap amount in his presence, but he had no knowledge about the work for which the amount was given to the appellant. From the evidence of P.W.3 who was District Development Officer, it appears that after properly studying the papers, he passed order of sanction to prosecute against the appellant. Therefore, the sanction cannot be said to be invalid or improper. I have persued the oral evidence of P.W.4, who acted as panch No.2 for carrying out trap. He stated same facts which have been narrated by the P.W.1 and P.W.2 and from the cross-examination, nothing is come out that the appellant had not demanded trap amount and accepted the same. I have also perused the oral evidence of P.W.5 and P.W.7. I have minutely perused the oral evidence of P.W.6, who was P.S.I., ACB Office, Nadiad, wherein he stated that he explained very well about the trap to the complainant and panchas and he stated about the stains of anthracene powder found from the hands of the appellant. I have also perused the seizure memo, wherein the contents of three currency notes of Rs.500/- and 15 currency notes of Rs.100/- are stated and those notes were applied with anthracene powder. The complaint is corroborated with the evidence and therefore, this Court has no reason to disbelieve the case of the prosecution. I have taken into consideration the charge at Exhibit 6 and the statement recorded under Section 313 of the Code of Criminal Procedure, wherein the appellant simply denied the version of the prosecution, but in support of his case, he was unable to assail the say of the prosecution. The contents of panchnama are corroborated with the complaint and therefore also, prima facie, it is proved that the appellant demanded money from the complainant and same was accepted by him. ACB persons recovered the said amount from the appellant, when the appellant tried to put in his pocket of shirt. The appellant was caught red handed by the ACB person. Therefore, this Court is of the opinion that the appellant being public servant, promised the complainant to provide him the order regarding entry of stay order and for which the appellant demanded Rs.15000/- from the complainant. As per conversation, the complainant gave Rs.5000/- and thereafter, for remaining amount, the complainant was to give Rs.3000/-, and at that time, complaint was lodged before the ACB office and thereafter, trap was carried out and the appellant was caught with currency notes applied with anthracene powder, by the ACB person.
10. Learned senior advocate Mr. Lakhani submitted that there were contradiction and discrepancies in the deposition of the witnesses. There were minor contraction and discrepancies in the evidence of the witness and due to such contradiction or discrepancies, the evidence cannot be said to be not believable and the same does not affect the case of the prosecution. I have perused the case of Brahm Swaroop and Another Vs. State of Uttar Pradesh reported in (2011) 6 Supreme Court Cases 288, wherein the Hon'ble Supreme Court has held that “while appreciating the evidence of witness, minor discrepancies on trivial matters which do not affect core of prosecution case, may not prompt court to reject evidence in its entirety”.
11. In the case registered under the provisions of Prevention of Corruption Act, it is the duty of the Court to consider (1) whether the demand is fully proved and established against the appellant (2) recovery from the possession of the appellant is made and in the result, recovery was made from the appellant and (3) presumption. I have also considered the principal Res Ipsa Loquitur and here in this case, the witnesses examined before the trial Court have fully supported the case of the prosecution and there was no denial about demand made by the appellant, by any of the witnesses, and therefore, this Court is of considered view that the appellant being public servant, demanded money from the complainant in presence of P.W.1 and he accepted the same and he was caught red handed by the ACB person and committed the offences punishable under Sections 7, 13(1) (d) and 13 (1) (gh) of the Prevention of Corruption Act. I have perused the judgment and order passed by the learned Special Judge, and I am in total agreement with the reasons assigned by the learned Special Judge.
12. From the above observation, I do not have any reason to believe the submissions of the learned senior advocate Mr. Lakhani for the appellant - accused that the accused had not made demand of illegal gratification and had not accepted the same. In the facts of the present case, I am of the opinion that both the ingredients to bring the act within the meaning of Sections 7 and 13(1) (gh) as well as 13(2) of the Act are satisfied. From the evidence led on behalf of the prosecution it is evident that the appellant demanded the money from the complainant in connection with the copy of the stay order and in the presence of P.W. 1, that demand was made and the amount was accepted by the appellant – accused. The presence of anthracene powder vis-Ã -vis on the fingers, shirt and stick of the accused go to show that he has voluntarily accepted the bribe. Thus there is sufficient evidence of demand of illegal gratification and the voluntary acceptance thereof by the appellant - accused.
13. All the submissions made on behalf of the appellant being devoid of any substance and, I do not find any merit in this appeal and accordingly, this Appeal is dismissed. The judgment and order passed by the learned Special Judge, Anand in Special Case No.11 of 1997 dated 28.5.2004 is hereby confirmed. Appellant is on bail and in view of dismissal of appeal, his bail bond is cancelled and he is directed to surrender before the Jail Authority. As there will be summer vacation in the Hon'ble Supreme Court, eight weeks time from the date of this order, is granted to the appellant to surrender before the Jail Authority, failing which, the concerned Court shall issue non-bailable warrant to effect the arrest of the appellant. R & P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED,J.) ynvyas