IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1060 of 1999 For Approval and Signature:
HONOURABLE MR.JUSTICE Z.K.SAIYED =========================================================
========================================================= MANUBHAI JAWANJI ZALA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
MR BOMI H SETHNA for Appellant(s) : 1, MS JIRGA JHAVERI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED preferred this appeal under sec. 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 20.9.1999 passed by the learned Special Judge, Ahmedabad City, in Special Case No.4 of 1995, whereby, the learned Special Judge has convicted the appellant – accused for the offence under sec. 7 of the Prevention of Corruption Act and sentenced him to undergo R.I. of 6 (six) months and to pay a fine of Rs.300/, in default, to undergo further R.I. for 15 (fifteen) days. The appellant is also convicted for the offence under section 13(2) of the P.C. Act and sentenced him to undergo R.I. for a period of 1 (one) year and to pay a fine of Rs.300/, in default, to undergo further R.I. for 15 (fifteen) days, which is impugned in this appeal. The learned Judge has ordered that substantive sentences are to run concurrently.
2. The brief facts of the prosecution case are as under:
That one Rajendra Jivanlal Soni gave a complaint to ACB Police on 29.7.1994 mainly alleging that he had a goldsmith shop situated at Ganesh Apartments, Naroda, Ahmedabad. On 26.7.1994 at about 9:30 a.m. Sanitary Inspector of Ahmedabad Municipal Corporation named Manubhai J. Jhala came to his shop and inquired, whether he had license for hand operated machine situated in his shop ? Then complainant replied that his hand operated machine does not require any license, then Mr.Jhala told that without license, no machine can be operated and case is to be filed against you and if you want that case should not be filed against you, then he should understand something and told that Rs.1,000/ is to be paid to him. Then complainant told that he cannot pay this much amount and so finally Mr.Jhala told that Rs.200/ be paid to him at his Ahmedabad Municipal Corporation Office, at Naroda. He was called to give Rs.200/ to him on 29.7.1994 and so he has filed this complaint to police. Two panchas were called by A.C.B. police. After following the due procedure raid was carried out and Mr.Jhala was caught red handed. 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 denied the case of the prosecution.
6. After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, Ahmedabad City, in Special Case No.4 of 1995, vide impugned judgment and order dated 20.9.1999, 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, Ahmedabad City, the present appellant has preferred this appeal.
8. Heard Mr.Bomi H. Sethna, learned advocate for the appellant and Ms.Jirga Jhaveri, learned APP for the respondentState.
9. Mr.Sethna 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 there should be corroboration to all those stages i.e. (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 the above four ingredients and learned Judge has wrongly convicted the present appellant in the said offence.
10. He has contended that the trial Court has erred in relying upon the evidence of the complainant whose evidence cannot be relied upon even for the worth of it in as much as the complainant is a person who is a habitual complainant, as in one Special Case No.33 of 1992 allegation was made against Dr.Kiritbhai Popatlal Patel under the provisions of Prevention of Corruption Act. He has contended that in such circumstances the entire evidence of the complainant stands tainted.
11. He has further contended that the entire investigation is vitiated on the count that the very officer who came to record the complaint i.e. P.W. No.3 Laxmansinh Chhabildas Barot was himself the Investigating Officer and it was only formal lodging of the charge sheet upon receipt of sanction that came to be carried out later by one Shri Vaghela. The entire value of the said investigation does not remain worthy of acceptance inasmuch as the person recording the complaint having himself investigated the matter.
12. He has contended that the said ACB raid having been carried out by use of anthracene powder and not by phynophthelene powder, it looses its efficacy inasmuch as the raid cannot be said to have been carried out in a foolproof manner and the evidence is not beyond all reasonable doubt against the appellant.
13. He has contended that the demand as well as the acceptance is shrouded in doubt. The single panch witness who came to be examined as P.W. No.2 vide Ex.41 states that he has been informed that for the purpose of taking a license an amount of Rs.200/ has been demanded. It is stated that there are material contradictions and omissions in the deposition of the said panch witness materially not corroborating the case of the complainant. He has further contended that as per say of the P.W. No.1, prosecution could not prove first and second demand. Hence the prosecution has failed to prove the case.
14. He has contended that prosecution has not produced any evidence in corroboration of contents of the complaint. He has read cross examination of complainant and also of accused and contended that demand, acceptance and recovery creates some doubt. Even prima facie prosecution has not proved that recovery is made from possession of the appellant accused. He has read the explanation of the present appellant under Section 313 of the Code and contended that so far as explanation is concerned, the appellant has explained before the learned Judge that the complainant forcibly thrusted the currency notes in the pocket of the appellant and in the meanwhile, the appellant was caught by raiding party.
15. He has contended that even from the cross examination of the P.W. No.2 there is no corroboration to the contents of the panchnama Ex.43. He has contended that learned Judge has wrongly considered that demand, acceptance and recovery is proved beyond reasonable doubt. The learned Judge has not observed that in which manner demand and acceptance is proved. He has contended that when defence of appellant is primafacie established then benefit of doubt is required to be given to the present appellant. The learned Judge has wrongly convicted the appellant for the alleged offence.
16. He has relied on the decision in the case of Gopal Lal Ghisulal Chhipa & Ors. Vs. The State of Gujarat, reported in 1998 (1) G.L.H. 943. Para8 reads as under : “8. My attention was drawn to the decision of the Supreme Court in the case of Bhagwansingh vs. The State of Rajasthan A.I.R. 1976 S.C. 985 wherein it is held that if everything is done by the police officer, it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. In that case the complaint was recorded by the Investigating Officer, raid was also carried out by the Investigating Officer, search and seizure were also made by him and thereafter the investigation was also carried out by him and the chargesheet was also filed by him before the court. In this case, Mr. Vyas, the PSI has also done every thing right from recording of the complaint till the chargesheet was filed before the court. When that is so, the credibility of the case of the prosecution is certainly doubtful and the prosecution case must fail on that count. Even if this tarnishing point is ignored and the evidence is considered, there is nothing which would lead me to hold that the prosecution has succeeded in establishing the charge levelled against the deceased appellant.”
He has contended that the evidence discussed by the learned Judge in the judgment is not proved beyond reasonable doubt. Lastly, he has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
17. On the other hand, learned APP Jirga Jhaveri has supported the judgment and order passed by the learned Special Judge 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. She has contended that evidence of the complainant has been scrutinized closely and on close scrutiny thereof it is found that the evidence of the complainant reveals that he is a reliable person. Once it is found out that the evidence of the complainant is reliable one then it should be accepted and conviction can be based on his evidence also.
18. She has read oral evidence of the complainant and contended that first demand is proved beyond reasonable doubt through oral evidence of the complainant himself. She has contended that the evidence of the complainant is supported by independent witness panch No.1, Kiritbhai M. Patel and it is further supported by Mr.Barot, P.I. A.C.B. Ahmedabad.
19. She has contended that mark of anthracene powder could be seen on fingers, thumb, tips and palms of both hands of the present appellant – accused. Marks of anthracene powder were also found on his pocket. In support of her submission she has relied on the decision in the case of Narendra Champaklal Trivedi Vs. State of Gujarat, reported in 2012(5) JT 496. She has contended that from the hands of the present appellant – accused, marks of anthracene powder were found in connection with which the appellant has failed to explain in his statement recorded under Section 313 of the Code as to how the marks of anthracene powder were found from his hands. In support of that
complainant, the appellant has not proved that demand was not made by him and amount was not accepted by him. As per probable defence of the present appellant it is his duty to establish and prove probable defence beyond reasonable doubt.
20. She has read the complaint and contended that looking to the contents of the complaint, demand and acceptance of Rs.200/ is proved beyond reasonable doubt. She has contended that there is nothing on record to show that complainant had any enmity with the present appellant. She has read Section 8 of the Evidence Act and contended that the act of the present appellant is voluntary.
21. She 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. 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. She has read judgment and order passed by the Apex Court in Criminal Appeal Nos.97 and 98 of 2012 and contended that the Apex Court has also held as per Section 20 of the Prevention of Corruption Act presumption is required to be drawn in such type of cases.
23. She has read further statement of the appellant – accused recorded under Section 313 of the Code and contended that presence of the anthracene powder found on both the hands of the appellant is not satisfactorily 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 her contention she relied on the decision in the case of Balasubramanian Vs. State through Inspector of Police, reported in 2011 (1) GLR 739 and and contended that sufficient opportunity was given to the appellant to explain the evidence against him after the prosecution witnesses are examined and no satisfactory explanation is given about the trap amount recovered from the possession of the present appellant in further statement under Section 313 of the Code.
24. 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. I have minutely perused the evidence of P.W. No.1 and crossexamination of defence. In the crossexamination, the defence side has not made any attempt to establish that contents of the complaint are written by the Investigating Officer with his own hand writing. So far as the contents of panchnama of P.W. No.2 is concerned, it is proved through oral evidence of P.W. No.3.
25. So far as demand, acceptance and recovery are concerned, I have minutely perused oral evidence of the P.W. No.1 and from his evidence, first demand was made by the accused, who is Sanitary Inspector from the complainant and it was conveyed to the complainant that he is indulging in illegality in the shop and thereby creating some health problem as per Rules of the Municipal Corporation and so he can be prosecuted and if he wants to come out of that issue he has to give money; and in that connection, he made demand for illegal gratification. Just to prove the first demand of the present appellant the complainant filed the complaint at A.C.B. Police Station and then trap was carried out by the trapping officer. It is required to be noted that in relation to the first demand, from the direct evidence it has to be verified and perused through oral evidence of the panch witness and complainant and in the result of trap, panch No.1 and P.W. 2 visited the place of trap and at that time the complainant informed him that he has come. At that time, the present appellant told him to give it to him. These words show the conduct of the present appellant – accused to obtain illegal gratification in connection with the agreement made by him with the complainant. It is also proved on record that at the time of the first demand, visiting card was given to the complainant by the present appellant and that card is also produced on record. I have perused further statement of the present appellant recorded under Section 313 of the Criminal Procedure Code, wherein he has not disclosed anything as to how that visiting card is produced by the complainant. Section 8 of the Evidence Act come in the way of the version of the defence. I have perused the oral evidence of the P.W. No.1, who gave signal to the members of the raiding party in presence of the panchas and search was carried out and trap amount was recovered from the possession of the present appellant and on his search presence of anthracene powder was found from the fingers, thumb, tips and palms of both hands of the present appellant – accused as well on the clothes. This shows that recovery made by the trapping officer is proved beyond reasonable doubt.
26. I have perused further statement of the appellant recorded under Section 313 of the Code of Criminal Procedure, wherein the appellant has tried to prove the defence version beyond reasonable doubt. However, 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 evidence. Thus, when 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 in their true perspective.
27. 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 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 by the Apex Court that it is not to be proved beyond reasonable doubt and it is necessary to state that the prosecution is bound to establish that there was an illegal offer of bribe and acceptance thereof and 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 legal 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.”
28. In Raj Rajendra Singh Seth v. State of Jharkhand & Anr. the principle laid down in Madhukar Bhaskarrao Joshi (supra) was reiterated.
29. 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.
30. 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), this 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.”
31. 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.
32. 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 examinationinchief and in the cross examination. 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 further 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 miserably failed to dislodge the presumption. Thus analysed and understood, there remains no shadow of doubt that the accused appellant had demanded the bribe and accepted the same to provide license. Therefore, the conviction recorded by the learned trial Judge does not warrant any interference.
33. 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.
34. 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 as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence.
35. In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 20.9.1999 passed by the learned Special Judge, Court No.9, Ahmedabad City, in Special Case No. 4 of 1995 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 Special Court shall issue nonbailable warrant to effect the arrest of the appellant – original accused.
36. During the dictation of final order Mr.Sethna has prayed that conviction of 1 (year) can be reduced to six months.
37. Ms.Jhaveri has opposed submission of Mr.Sethna and contended that looking to the sentence awarded to the present appellant it is very lesser than gravity of offence. She further contended that in case of corruption nowadays it is fashion of the public servant to get some more luxurious livelihood by way of getting illegal gratification from the innocent citizens.
38. I am not agreeing with the submission of Mr.Sethna, learned advocate for the appellant, to reduce the sentence. Hence it is rejected.
(Z.K.SAIYED, J.) kks