The appellant, original accused, has preferred this appeal and challenged the order of conviction and sentence passed by learned Additional City Sessions Judge, on 23.5.1997 in Special Case No. 10 of 1992 convicting him for the offence under Section 7 read with Section 13(1)(2) of the Prevention of Corruption Act, 1988 (“the Act” for short) and sentencing him to undergo various sentences. 2. According to the prosecution case, the complainant Rajendrabhai Jivanbhai Soni lodged complaint before Anti Corruption Bureau (“ACB” for short), Ahmedabad City, on 21.3.1991; that he is running business of jewellery in the name of Mahalaxmi Jewellers; that the accused is discharging duty as Inspector in the Office of Weights and Measures at Ahmedabad and he is a public servant; that before about one month, he went to the office of weights and measures at Ahmedabad for certification of verification and standardization of his scale and measures; that the accused demanded Rs. 200/- for certification and issued certificate; that the accused gave receipt of Rs. 82.50 and did not return the remaining amount and thereby the accused retained the remaining amount as bribe; that on the previous day, he met the accused for verification and standardization of his scale and measures and hence the accused asked him to come the next day and on inquiry about fees for certification, the accused informed him that he would take reasonable amount; that the accused would take more amount than legal fees as bribe; that he will produce Rs. 400/- for legal fees and the amount of bribe and would produce the receipt of Rs. 82.50 given earlier.
3. On the basis of complaint, trap was arranged. After drawing preliminary panchnama, the complainant, panch and other members of the raiding party went near the office of weight and measures. The complainant with panch went to the office for certification of scale and measures. The accused demanded Rs. 100/- from the complainant and though fee for certification was Rs. 24.50, the accused did not return the remaining amount of Rs. 75.50 and thereby retained the same as bribe. Therefore, on giving signal the members of the raiding party caught the accused red handed. Statements of the witnesses were recorded during investigation and the accused was arrested. The Court released the accused on bail. On completion of investigation, charge sheet was filed against the accused.
4. The trial Court framed charges against the accused at Exh. 3. The charge was read over and explained to the accused who pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. At the end of recording of evidence, further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, was recorded. The accused in his further statement explained that he has not demanded or accepted bribe amount; that the complainant and his relatives were pressurizing him and his staff members for certification as shop of the complainant was adjoining to his office; that before about 10 days of incident, he had altercation with the complainant in that regard and the complainant gave him threat; that on the day of incident, the complainant had come with scale and three measures for certification and left the same at his office; that after verification, while he was preparing certificate, the complainant came to take scale and measures and hence he demanded Rs.
24.50 towards fees but the complainant after taking the certificate left leaving Rs. 100/-; that before he could prepare receipt for the same, the members of the raiding party came there and Mr. Solanki told him that he has taken bribe and asked about the amount and hence he said that he has not taken any bribe and he has not demanded or accepted bribe, that he has been falsely implicated and he is innocent. After hearing learned A.P.P. and learned advocate for the accused, the trial Court by impugned judgement convicted the accused. Being aggrieved by the said decision, the convict has preferred this appeal.
5. I have heard learned advocate Mr. A.D. Shah for the appellant and learned A.P.P. Mr. Kodekar for the respondent at length and in great detail. I have also perused the impugned judgement and record and proceeding of the trial Court.
6. Learned advocate Mr. Shah submitted that according to the complainant, on earlier occasion he gave Rs. 200/- for certification and the accused gave receipt of Rs. 82.50 and did not return the remaining amount and thereby took the remaining amount as bribe and therefore, the complainant apprehended that the accused would again demand bribe for certification and hence the complaint was filed but the complainant did not produce receipt of Rs. 82.50 during investigation. Therefore, there is no documentary evidence to show that the accused earlier took bribe for certification. He also submitted that the complaint refers to the visit of the office of the accused on the previous day and demand made by the accused but in the oral deposition there is no mention of earlier day visit. He also submitted that the complainant produced Rs. 400/- for fees and amount of bribe to be paid to the accused but there is no basis for ascertaining the amount. He also submitted that the prosecution also failed to prove the demand and acceptance by the accused and the amount was received for certificate but before receipt could be passed, the raiding party came at the place of incident. There is no evidence that the remaining amount was retained by the accused. He further submitted that the contents of panchnama were not duly proved and therefore learned trial Judge committed error in relying on the panchnama. He further submitted that evidence of panch witness indicates that after verification of scale and measure, the accused demanded Rs. 100/- from the complainant who told him that the amount was very high. This aspect is not stated by the complainant in his deposition. He further submitted that the currency note of Rs. 100/- was placed on the table when the accused demanded legal fees for certification and evidence of panch does not indicate that the complainant told the accused that he was not having change amount. Therefore, the panch did not prove demand by the accused. Mr. Shah further submitted that the panchnama is silent about examination of the table under ultraviolet lamp and panchnama also indicates presence of certificate book and receipt book but both these books have not been examined in ultraviolet lamp. Mr. Shah further submitted that the complainant had criminal antecedents as he was involved in numerous criminal cases and he had filed cases against public servants under the Act. Therefore, in absence of cogent and convincing evidence, the trial Court committed error in convicting the appellant and therefore the impugned judgement is required to be set aside. He relied on the decisions of KANUBHAI KANTIBHAI PATEL VS. THE STATE OF GUJARAT reported in 1998(1) GLH 924; GOPAL LAL GHISULAL CHIPPA & ORS. VS. THE STATE OF GUJARAT reported in 1998(1) GLH 943; BANARSI DASS VS. STATE OF HARYANA reported in (2010) 4 SCC 450; V. VENKATA SUBBARAO VS. STATE reported in AIR 2007 SC 489 and MOHMOODKHAN MAHBOOBKHAN PATHAN VS. STATE OF MAHARASHTRA reported in 1997(1) Crimes 186 (SC).
7. Learned A.P.P. Mr. Kodekar submitted that on earlier occasion also the accused did not return the remaining amount and therefore the complainant had to lodge the complaint. He further submitted that the evidence of panch witness corroborates the evidence of the complainant that the accused demanded amount of bribe and therefore the prosecution proved demand made by the accused. He further submitted that essential ingredients of the Act are proved by the prosecution and the appellant has failed to point out any legal infirmity in the impugned judgement and therefore the appeal is required to be dismissed.
8. It appears from the complaint Exh. 11 that before about one month of the complaint, the complainant went to the accused for verification and standardization of his scale and measures and at that time the accused demanded Rs. 200/- for certification but issued receipt of Rs. 82.50 and did not return the remaining amount and hence the complainant apprehended that the accused would again demand bribe for certification. Therefore, on the previous day of the incident the complainant went to the accused for certification who asked him to come the next day. The complaint also indicates that when the complainant enquired from the accused about legal fees the accused told him that he would take reasonable amount. Therefore, the complaint was lodged against the accused.
9. In order to prove the case PW-1 Rajendrabhai Jivanbhai Soni, complainant, has examined himself at Exh. 10. The evidence of this witness indicates that on previous occasion the accused demanded Rs. 200/- towards fees of Rs.
82.50 and did not return the remaining amount after deducting the fees and as he was to go to the office again for certification of his scale and measure, he apprehended that the accused would again demand bribe and therefore lodged the complaint and produced currency notes of Rs. 400/- to give fees for certification and bribe. The evidence also indicates that after verification of scale and measures, the accused gave certificate indicating receipt of Rs. 24.50 and demanded Rs. 100/-. It further indicates that he gave currency note of Rs. 100/- and demanded the remaining amount but the accused did not return the amount. It also indicates that as the accused put the currency note in the left pocket of the shirt, the complainant with panch left the office and gave signal as agreed earlier. The cross-examination further indicates that though on previous occasion the accused did not return the remaining amount, the complainant did not lodge any complaint before police nor filed any complaint before Superior Officer of the accused. The cross-examination further indicates that the complainant was not sure as to what amount the accused would demand and therefore, he produced currency notes of Rs. 400/- before the ACB. The cross-examination also indicates that the complainant was taken as a panch by the Department of the accused at the instance of one Mr. N.K. Shah who was Assistant Controller in the Weight and Measures Office and amount of about Rs. 2400/- was found from the bag of the accused and copy of the certificate given by the accused was recovered as muddamal article and was admitted in evidence at Exh. 13. It further indicates that the complainant was running his business in a rented shop and had filed criminal complaint against his landlord and two days after the incident, the complainant filed a complaint in police against the brother of the accused and three cases were filed against him in respect of receiving stolen property. The cross-examination also indicates that the complainant filed one criminal complaint against one Chandrikaben and Kiritbhai as talks of engagement of her daughter Monali with their son failed. The cross- examination further indicates that the complainant did not remember that before lodging the complaint he had any occasion to go to ACB office and was not aware as to how trap is to be arranged and how bribe amount is to be tendered. The cross-examination further indicates that preliminary panchnama was dictated by Investigating Officer, PW-3 Mr. Solanki.
10. In view of the above evidence, it emerges that the complainant was involved in number of criminal cases. The accused produced documentary evidence at Exhs. 15 to 20 in that regard in cross-examination of the complainant. The documentary evidence indicates that the complainant even filed complaint against the persons with whom talks of engagement of his daughter failed. It also indicates that the complainant filed complaint against his landlord and after the incident against the brother of the accused. It also indicates that the complainant had filed complaint under the provisions of the Act against the Medical Officer of Civil Hospital and Sanitary Inspector of Municipal Corporation and they were caught in trap. The complainant was prosecuted for keeping stolen property. The evidence also indicates that there was a common wall between the office of the accused and the shop of the complainant and Mr. Shah Superior Officer of the accused was known to the complainant and at the instance of Mr. Shah, the complainant remained as Panch in the case filed by the Department of the accused. In the further statement the accused explained that as there was common wall between his shop and the office, the complainant was pressurizing him for certification and there was altercation with the complainant. As the complainant had remained as panch in the case filed by the Department and was known to the Superior Officer of the accused Mr. Shah, possibility of the complainant pressurizing the accused for certification using his relation with Mr. Shah and altercation between them on that account cannot be ruled out. It is also very significant that the complainant failed to explain the basis for giving currency notes of Rs. 400/- for trap as certification was for less number of measures than the previous incident. According to the complainant, he went to the accused on the previous day of the incident for certification but the accused asked him to come on the next day and made demand of bribe but in the oral deposition the complainant did not depose about his previous day visit and demand by the accused. According to the complainant, the accused did not return the remaining amount but the evidence indicates that immediately after giving the amount to the accused, the complainant with panch, came out of office and gave signal and raid was effected. Hence it appears that before the accused could prepare the receipt and return the remaining amount, the raid was carried out. Therefore, it is difficult to believe that the accused did not return the remaining amount and kept it as bribe. As regards previous incident, the complainant did not produce receipt of Rs. 82.50 given by the accused to support his case of apprehension that he gave Rs. 200/- to the accused but he did not return the remaining amount. Hence, it cannot be said that the accused did not return remaining amount in previous incident. The complainant has pleaded ignorance about the procedure to be followed in respect of complaints in corruption cases but evidence indicates that the complainant had earlier filed two complaints against public servants and after trap, charge sheets were filed in both the complaints. Therefore, the complainant was very much aware about the procedure to be followed in complaints of corruption by Public Officers. In view of the fact that the earlier traps were arranged in the complaints by the complainant, it cannot be said that he was not aware about the procedure but intentionally pleaded ignorance and hence the witness is not trustworthy. Therefore, the evidence of the complainant with regard to demand and acceptance is shaky and suffers from infirmities. Therefore, it is not safe to rely on his evidence to connect the accused with the offence charged against him.
11. The prosecution examined panch PW-2 Jujarsingh Devisingh Waghela at Exh. 22. It appears from his evidence that he was with the complainant when the bribe amount was allegedly accepted by the accused. According to him, after verification of scale and measures, the complainant came to the accused for making payment. At that time, the accused demanded amount like Rs. 100/- and hence the complainant made request to reduce the amount but as the accused refused to reduce took out currency note of Rs. 100/- from his pocket of shirt and placed it on the table. The witness did not state about exact amount demanded as he used word “like”. It also emerges that before making payment, there was talk between the complainant and accused to reduce the amount but the complainant did not depose about any such talk. According to the witness, the complainant placed currency note on the table. The complainant has not stated this fact. Therefore, there is discrepancy in the evidence with regard to demand and acceptance. It also appears that preliminary panchnama was dictated by PW-3 Solanki to his writer and remaining part of panchnama was narrated by the witness to PW-3 Solanki and PW-3 Solanki dictated the panchnama to his writer. Therefore, it cannot be said that the panchnama was dictated by the witness. The witness identified his signature only on the panchnama Exh.24 but did not prove the contents of panchnama Exh. 24. Hence such panchnama cannot be relied upon. The witness also admitted that when the accused was writing in another book, the complainant came out, gave signal and PW-3 Solanki effected the trap. This evidence is contrary to the evidence of the complainant as he has stated that after giving the amount panch also came out of the office with him. Therefore, the prosecution case raises serious doubt that the accused made demand of Rs. 100/- and did not return remaining amount and retained it as bribe. The witness had also deposed that he does not remember that the complainant had said that he had no change amount when the accused demanded the amount for certification. It appears that the witness gave such reply only with a view to support the prosecution case. An inference can legitimately be drawn that the accused demanded change amount for payment of fees but the complainant did not give exact amount and immediately went out after giving the amount to give signal so that the accused could be caught with the amount. As observed earlier, panchnama is not drawn by the witness and contents thereof are not duly proved. In the decision of KANUBHAI KANTIBHAI PATEL VS. THE STATE OF GUJARAT (supra) this Court ruled that panchnama not dictated by panchas cannot be accepted as a supporting piece of evidence. As the witness did not dictate the panchnama and as contents thereof are not proved, trial Court committed error in relying upon the evidence of panch and panchnama. Therefore, evidence of this witness does not prove beyond reasonable doubt demand of Rs. 100/- and acceptance of bribe by not returning remaining amount by the accused.
12. The prosecution examined Investigating Officer PW- 3 Jayeshkumar Solanki at Exh. 26. It appears from the evidence of this witness that the complainant informed the witness that before about 10 days of the complaint, the accused demanded and accepted Rs. 200/- for certification against fees of Rs.
82.50 and did not return the remaining amount and thereby retained the amount as bribe. The evidence of previous incident between the complainant and the accused was material evidence as it was the reason for the complainant to lodge the complaint but there is no investigation in that regard. According to complaint, the complainant went to accused previous day of the incident and at that time, demand was made, but there is no investigation with regard to visit of the complainant on the previous day and demand allegedly made by the accused. The witness also admitted that he has obtained signature of the witness on the statement recorded by him but has given an explanation that as the offence was subsequently registered he had obtained signature of the witness on the statement. It appears that the signature was obtained only with a view to ensure that the witnesses do not withdraw their statement at the time of trial. The evidence of this witness also indicates that he recorded the complaint, arranged trap, recorded the statement of witness and carried out the investigation. Therefore, everything was done by the witness. In the decisions of this Court in the case of GOPAL LAL GHISULAL CHIPPA & ORS. VS. THE STATE OF GUJARAT (supra) and KANUBHAI KANTILAL PATEL VS. THE STATE OF GUJARAT (supra) this Court ruled that when police Officer has done everything it would be an infirmity in case which is bound to reflect on prosecution case and prosecution case must fail on that count. In the present case the witness has done everything and hence it is an infirmity and the prosecution case must fail on that count. Therefore, in my view, learned trial Judge committed error in relying on the prosecution evidence to convict the accused.
13. It appears from the prosecution case that the bribe amount allegedly obtained by the accused was recovered from the accused. The evidence indicates that accused was required to collect fees for certificates and was to be deposited with the office on every Monday. It also appears that about Rs. 2400/- were found with the accused. In the decision of BANARSI DASS VS. STATE OF HARYANA (supra), Hon'ble Supreme Court held that mere recovery of money from the accused by itself is not enough in absence of substantive evidence of demand and acceptance. In the present case, the prosecution failed to prove demand and acceptance by substantive evidence. Therefore, in my view, it cannot be said that currency note recovered from the accused was bribe amount.
14. In the decision of MOHMOODKHAN MAHBOOBKHDAN PATHAN VS. STATE OF MAHARASHTRA (supra), Hon'ble Supreme Court ruled that unless prosecution proved that money paid was not towards any lawful collection or legal remuneration, the Court cannot take recourse of presumption of law contemplated in Section 4(1) of the Prevention of Corruption Act, 1947. The facts in the present case are similar to the facts of the aforesaid decision. It emerges that the accused had to retain the amount collected towards fees for certification as the office was shifted for temporary period and to deposit the amount in the main office on every Monday. Hence recovery of the amount does not prove that the accused accepted the amount as bribe. Therefore the trial Court committed error in convicting the accused on the count that the amount was recovered from the accused.
15. In view of above, the evidence is not consistent and there are numerous discrepancies in the prosecution case. The evidence of the complainant and Panch witness is not consistent. There is no evidence that in previous incident, the accused did not return remaining amount, after taking fees for certification. The evidence of panch witness do not prove beyond reasonable doubt that the accused demanded Rs. 100/- and did not return the remaining amount to the complainant and retained it as bribe. It also emerges that the complainant had criminal antecedents. It also emerges that Panchnama was not duly proved and ingredients of the offence were not proved beyond reasonable doubt. Therefore, the prosecution failed to prove the case by unbroken chain of events. The trial Court committed serious error in convicting the accused relying upon such inconsistent and shaky evidence. Therefore, benefit of doubt is required to be given to the accused. Hence the impugned judgement is required to be set aside and accused is required to be acquitted for the offences charged against him.
16. In the result, the appeal is allowed. The impugned judgement and order of conviction and sentence passed by learned Additional City Sessions Judge, Ahmedabad, on 23.5.1997 in Special Case No. 10 of 1992 is set aside. The accused is acquitted of the charges levelled against him. The accused is on bail. His bail bond stands cancelled. Fine paid, if any, is ordered to be refunded to the accused.
(BANKIM N. MEHTA, J) (pkn)