IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 75 of 2001 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law as No to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ DEVENDRABHAI RATILAL VORA Appellant(s) Versus STATE OF GUJARAT Opponent(s)/Respondent(s) ================================================================ Appearance:
MR UMESH A TRIVEDI, ADVOCATE for the Appellant(s) No. 1 MR YOGESH S LAKHANI, ADVOCATE for the Appellant(s) No. 1 MR RC KODEKAR, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 MS MAITHILI D MEHTA, ADDITIONAL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.J.THAKER Date : 16/04/2015 CAV JUDGMENT
1. Heard learned Advocates appearing for the respective parties.
2. By way of this Appeal, the Appellant – original accused has felt aggrieved by the judgment and order of conviction dated 05.01.2001 of the learned Special Judge, Court No.3, Ahmedabad in Special Case No.9/1993 whereby the appellant herein was convicted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to in short as 'the Act') and was awarded the following punishments :-
Under Section 7 of the Act Rigorous imprisonment for six months and fine of Rs.1,000/=, in default simple imprisonment for two months.
Under Section 13(1)(d) r/w/s 13(2) of the Act.
Rigorous imprisonment for one year and fine of Rs.1,000/=, in default simple imprisonment two months.
Both the sentences were to run concurrently.
3. The case in brief is as under :-
The appellant herein was working as a Phone Inspector at Jamnagar during the year 1992. The complainant herein – Gordhanbhai Gokaldas Modi was having his business at Jamnagar and having a telephone connection in one shop, out of the three shops of his. These shops were adjacent to each other. He had a telephone extension in one of the shops which was unauthorised.
The accused visited the business premises on 29.11.1992 at about 11.00 am and told the complainant that he was using an unauthorised extension. The appellant made a note in his book and threatened the complainant that he would seal his telephone and he will proceed further. He was told by the accused to see him at his office on 01.12.1992.
On the said day, the complainant met the accused wherein it is alleged that the accused demanded illegal gratification of Rs.1,000/-. After some negotiations, the amount was reduced to Rs.500/-. The complainant was also directed by the accused to see him at 18.00 hours at Dreamland Hotel, Jamnagar. Since the complainant was not willing to pay the amount as demanded by the accused, he lodged a complaint before the Police Inspector, ACB, Jamnagar on the said day. Two independent Panchwitness were arranged and the complainant was also asked to produce the amount of Rs.500/-. Five currency notes of Rs.100/- were produced by the complainant and the numbers of the same were noted down in the first part of the Panchnama. The demonstration of anthracene powder and ultraviolet lamp was carried out in the ACB Office. Anthracene powder was applied to the currency notes produced by the complainant and it was placed in his pocket. Thereafter, first part of the Panchnama was completed. Then the complainant alongwith the Panch No.1 – Virendra Gangadas Gagada and other members of the trapping party went to the Hotel and waited for the accused. The accused came to the hotel and welcomed the complainant and invited him to the Hotel. The complainant alongwith the panch No.1 when in to the Hotel where the accused is alleged to have enquired from the complainant as to what has to be done in the matter? The complainant replied that it was the accused who had tell about the same. The accused replied that the complainant should give Rs.500/= as per the talk. The complainant told the accused regarding the note made by him on 29.11.1992 and suggested that now nothing is to be done in this regard. The accused said that it was a casual note made by him, which was already destroyed and there was no question of lodging a case. The accused is alleged to have again asked the complainant for the amount of Rs.500/=. The complainant asked the accused for recommending some shops for purchasing Bill-machine of STD, PCO. The accused is alleged to have thereafter, written a chit and handed over to the complainant. As the accused demanded Rs.500/=, the complainant took out the tainted currency notes from his bu-shirt pocket and extended the same towards the accused who accepted the same with his right hand and kept the same in the upper left side pocket of the bu-shirt. At that juncture, on receiving the pre- arranged signal, the PI – ACB and alongwith Panch No.2 and others rushed to the spot. The demonstration of ultraviolet lamp was conducted, the anthracene powder was noticed on the right hand of the accused and it was also noticed inside the left side pocket of the bu-shirt and the right hand of the complainant. The chit written by the accused was also recovered. The tainted currency notes of Rs.500/= was recovered from the accused. The numbers of the recovered currency notes tallied with the numbers mentioned in the first part of the panchnama. Since the hotel was situated adjacent to the main road and on account of heavy traffic and on also on account of the commotion that had occurred, the second part of the Panchnama was prepared and completed in the ACB Office.
The accused being an employee of the Central Government, further investigation was handed over to C.B.I., wherein statement of witnesses were recorded. After completion of necessary formalities as prescribed under Chapter of the Criminal Procedure Code, 1973 (hereinafter referred to in short as 'the Code') the accused was charge sheeted before the Court of the learned Special Judge, Court No.3, Ahmedabad on 08.04.1993. Alongwith the chargesheet, the sanction order was also appended. Charges were framed vide the above Sections of the Act qua the accused. The accused pleaded not guilty to the charge and claimed to be tried. When the prosecution evidence was over, further statement of the accused was recorded u/s. 313 of the Code. And at the end of the trial, the learned Sessions Judge awarded the above punishments.
4. The prosecution relied on the evidences led by :-
The prosecution relied on the following documentary evidences :-
5. In the above background of facts, learned Advocate for the appellant Mr.
Umesh Trivedi has placed reliance on the following decisions :-
• C. Sukumaran v. State of Kerala reported in 2015 (1) Crimes 130 (SC),
• M.R. Purushotham v. State of Karnataka reported in 2015 Criminal Law Journal 72 and
• B. Jayaraj v. State of A.P. reported in 2014 Criminal Law Journal 2433.
It is submitted by learned Advocate Mr. Umesh Trivedi that the depositions of witnesses particularly of important witnesses smell of a very deliberate and intentional attempt to victimize the appellant and to falsely implicate him in the offence alleged. Further, the learned Judge has also failed to appreciate that though the complainant had sufficient time to approach higher authority, he has not approached the same. The panch witnesses were found to be selected and even the Police Constable – Bhikhusha and the PI were visiting regularly the shop of the complainant. It is also submitted that the appellant all throughout has been on bail. The trial took about seven years before the trial court and the appellant had a spotless service career without any sort of adverse remarks and there are no antecedents of criminal nature ever recorded against the appellant.
It is further submitted that seven witnesses were examined. He has submitted that the Telephone Inspector went to the shop, there was an illegal connection which he noted in his diary and according to the complainant, Rs.500/= was demanded in his office. According to the learned Advocate, no bribe is demanded, the amount which was demanded was for the 2nd connection/machine, which the complainant wanted to install. Even a receipt-pavti was issued and therefore, there was no demand. Besides, the Panch witness No.1 - Virendra Jamnadas Gagada was private person. In addition, the trap was at the behest of the Police Inspector – Mr. Mavani; the persons present in the shop were not examined; the lamp operator was known to the complainant.
Considering the above, it is submitted that this is a fit case wherein the Court should exercise its extra-ordinary jurisdiction and upturn the judgment and order of conviction of the learned Special Judge.
6. Learned Advocate Mr. R.C. Kodekar appearing for the respondent No.1 alongwith the learned Additional Public Prosecutor Ms. Maithili D. Mehta has submitted that the accused being a telephone inspector was assigned duty to inspect such site and/or solve complaint, if there is any. Hence, there is no reason to disbelieve that the accused had demanded money to regularise his illegal extension of telephone. In this case, a public servant has been charged on the allegation that illegal gratification was taken by him for doing unofficial act. Therefore, it is submitted that the prosecution has successfully established the case against the accused by clinching, convincing and cogent evidence that the accused had demanded the bribe amount, accepted the same and ultimately it was recovered from him. Thus, the accused has accepted illegal gratification of Rs.500/- from the complainant and the accused had failed to rebut presumption arising u/s. 20 of the above Act. It is therefore held that the accused had committed offence punishable under Section 7 of the Act. On the same evidence, it was also proved that the accused by abusing his position as a public servant had obtained
13(1)(d) read with Section 13(2) of the above Act. Hence, it is submitted that there is no interference required by this Court in the well reasoned judgment and order of the learned Sessions Judge.
7. At this stage, it is relevant to go through the decision of the Hon'ble Apex Court in the case of Satvir Singh v. State of Delhi thru CBI reported in 2014 Supreme Court 3798, wherein the Appeal of the accused was allowed. Relevant parts are reproduced as under :-
“The black rexine bag containing the illegal gratification which was kept on the steel cot at the residence of the accused on 08.07.1989 was not recovered from the person of the accused. Therefore, neither acceptance nor recovery of illegal gratification from the appellant is proved. Further, the reliance placed upon the relevant paragraphs extracted above from the judgments of this Court by the learned Senior Counsel on behalf of the appellant applies aptly to the factual situation. Therefore, the demand, acceptance and recovery of the illegal gratification alleged to have been paid to the appellant is not proved by the prosecution. Thus, the Trial Court on overall appreciation of the oral and documentary evidence on record has come to the right conclusion and recorded its findings of fact and held that the demand, acceptance and recovery of gratification from the appellant is not proved, therefore, there is no presumption under Section 20 of the Act. The learned trial Judge in his judgment has rightly held that presumption of innocence is in favour of the appellant and he was acquitted on merits.
39. After careful observation of the above-mentioned facts and evidence on record and on careful examination of the aforesaid rival legal contentions urged on behalf of the parties, with reference to the extracted portion of the evidence of PW-2, PW-3 and PW-9, we are of the considered view that the prosecution has failed to prove the demand and acceptance of illegal gratification by the appellant from the complainant PW-2, upon whose evidence much reliance has been placed by the learned counsel for the respondent.
40. We, accordingly answer the point No.2 in favour of the appellant that exercise of appellate jurisdiction by the High Court to reverse the judgment and order is acquittal is not only erroneous but also suffers from error in law and liable to be set aside. Accordingly, we answer the point Nos.1 and 2 in favour of the appellant.
Point No.3.
41. We have answered the point Nos.1 and 2 in favour of the appellant after adverting to the legal evidence and rival legal contentions urged on behalf of the parties. We have arrived at the aforesaid conclusions after accepting the well founded submissions made by the learned senior counsel on behalf of the appellant. In view of our findings and reasons on point Nos.1 and 2, the submissions made by the learned counsel on behalf of the respondent are rejected as the same are wholly untenable in law.”
8. I would also like to refer to relevant part of the decision in the case of C. Sukumaran (supra) which reads as under :-
“5. The learned Special Judge on appreciation of the evidence on record found that the appellant was guilty of the offences punishable under Sections 7 and 13(1) read with Section 13(2) of the Act and thereby he had convicted and sentenced him with 3½ years of imprisonment each under Sections 7 and 13(1)(d) of the Act and further ordered that the sentence must run concurrently. Aggrieved by the judgment and order of the Trial Court, the appellant had preferred an Appeal before the High Court, questioning the correctness of the same and urging various legal grounds. The High Court on re-appreciation of the evidence has partly allowed the appeal of the appellant. The High held that the conviction of the appellant under Section 7 of the Act is not warranted as the essential demand of illegal gratification by the appellant, from the complainant, is not proved. However, the High Court has held that there is a strong evidence against the appellant under Section 13(1)(d) of the Act to show his culpability. The High Court further held that there is sufficient evidence to prove that PW2 had paid two decoy notes of Rs.100/- denomination to the appellant and he had voluntarily accepted the money from bribe from PW2. Hence, the appeal of the appellant was partly allowed and the conviction of the appellant under Section 7 of the Act was set aside. However, his conviction under Section 13(1)(d) read with Section 13(2) of the Act was confirmed and the order of sentence was modified. Aggrieved by the judgment of conviction and sentence, this appeal has been filed by the appellant, urging certain legal grounds for setting aside the judgment and order of conviction and sentence imposed upon him.”
9. Relevant part of the decision in the case of M.R. Purushotham (supra) also needs to be reproduced :-
“5. PW1 Ramesh, the complainant did not support the prosecution case. He disowned making the complaint in Exh.P1 and stated in his examination-in-chief that the accused had not demanded anything from him and he did not know what is written in Exh.P1 and the police have not recorded his statement in respect to this case. He was, therefore, declared hostile. However, PW3 Kumaraswamy, panch witness has testified that after being summoned by PW4 Inspector Santosh Kumar on 18.2.2000, the contents of Exh.P1 were explained to him in the presence of the complainant and he accompanied the complainant to the house of the accused, wherein, the complainant gave the sum of Rs.500/- to the accused as illegal gratification. It is on the aforesaid basis that the liability of the appellant/accused for commission of the offences alleged was held to be proved, notwithstanding the fact that in his evidence, the complainant PW1 Ramesh had not supported the prosecution case.
6. In such type of cases the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. As already seen the complainant PW1 Ramesh did not support the prosecution insofar as demand by the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant.”
10. I have heard learned Advocates appearing for the parties and perused the records of the case. In my view, the following emerge :-
a) It is not in dispute that there were witnesses and there was allegedly an illegal extension in the shop. The accused is alleged to have demanded Rs.500/= and was arrested.
b) It was a case of planting. The panchas and the Inspector were both known to the complainant.
c) If we go through the principles enunciated hereinabove in the judgments, the evidence goes to show that no bribe or illegal gratification is demanded. Had it been a case of illegal gratification, the 'pavti' could not have been issued. Since the 'pavti' had been issued, it cannot be said that the accused had demanded any illegal gratification.
d) Nobody was examined by the prosecution from the Dreamland Hotel. The submissions made before the Trial Court were never examined, i.e. there was pre-determination on the part of the PI – Mr. Mavani. Therefore, rickshaws were not allowed to leave the Hotel.
e) A doubt is also created in the mind of the Court as to whether the amount was for the second connection?, which the complainant wanted and which he has admitted in his chief as well as in the cross examination.
f) Further, on Sundays, the shops are closed. The appellant – accused belonged to the lower strata of the Society and hence, was made a scapegoat by the Police Inspector, Virendra Jamnadas Gagada and the complainant.
g) There are certain material contradictions which has been pointed by learned Advocate for the accused before the Trial Court that the learned Sessions Judge has misread and has not accepted the same.
11. This finding of fact cannot be said to be so perverse so as to require interference by this Court. The Apex Court in the case of Satvir Singh (supra) has laid down the principles for acquittal of an accused in such an offence. The decisions cited by learned Advocate Mr. Umesh A. Trivedi for the appellant would also enure for the benefit of the accused. Hence, I am of the view that on appreciation of the evidence, the payment was not made for any illegal gratification under Sections 7 and 13(1)(d) read with Section 13(2) of the Act.
12. In the aforesaid circumstances, the Criminal Appeal is allowed. The case of the prosecution fails. The judgment and order of conviction dated 05.01.2001 of the learned Special Judge, Court No.3, Ahmedabad in Special Case No.9/1993 is quashed and set aside. The appellant is acquitted of all the charges levelled against him.
13. Bail and bail bond, if any, stands cancelled. The amount of fine paid, if any, be refunded to the appellant herein. Record and proceedings, if any, be sent to the concerned Trial Court forthwith.
Sd/-
CAROLINE (K.J. THAKER, J.)