State Of Gujarat ­ Opponents

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 409 of 1998

For Approval and Signature:

HONOURABLE MR.JUSTICE Z.K.SAIYED

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PURSHOTTAM KALUBHAI BARIA ­ Appellant(s)

Versus

STATE OF GUJARAT ­ Opponent(s)

====================================== Appearance :

MS.NIDHI P BAROT for Appellant(s) : 1, MS JIRGA JHAVERI ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 1, ======================================

CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 17/08/2012

ORAL JUDGMENT

1. The appellant has filed this Appeal challenging the judgment and order of conviction and sentence passed by the learned Special Judge Ahmedabad city in Special Case No.12 of 1994 dated 31.3.1998, by which the appellant – accused is convicted and sentenced for the offences punishable under Sections 7, 13(1)(d) and Section 13(2) of the Prevention of Corruption Act. The learned Special Judge has convicted the appellant ­ accused for the offence punishable under Section 7 of the Prevention of Corruption Act and awarded sentence to the appellant to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.500/­, i/d, to further undergo simple imprisonment for three months, whereas the appellant was ordered to suffer one year rigorous imprisonment for the offence punishable under Sections 13(2) & 13(1)(d) of the Act and to pay a fine of Rs.500/­, i/d. to suffer three months simple imprisonment. The learned Special Judge has ordered that all the sentences shall run concurrently.

2. The prosecution version as reflected in the complaint to be briefly stated, is the effect that the complainant Ashokbhai Becharbhai was residing at 1054, Ambika Krupa Society in the year 1993. In the said society, one Kanubhai Maganbhai was residing and he used to try to meet the wife of the complainant, but the wife of the complainant resisted and therefore, said Kanubhai administered threat to the wife of the complainant to kill her. Therefore, the complainant gave intimation for extending police protection to his family at Odhav Police Station, on 22.7.1993, but the Police had not investigated into the matter. Therefore, on 17.8.1993, one more application was given to the Odhav Police Station. Thereafter, the investigation of the said matter was entrusted to the accused, present appellant and Chapter Case was filed. In connection of the said case, the accused demanded Rs.500/­ towards illegal gratification from the complainant on 29.7.1993. On 9.8.1993, the complainant gave Rs.300/­ to the accused and he promised the accused to give the remaining amount of Rs.200/­ later on and thereafter, the accused made frequent demand of said amount from the complainant, as the complainant was unable to give said amount of Rs.200/­ to the accused. Thereafter, the complainant did not want to give money towards illegal gratification to the accused and therefore, he approached the ACB Police Station, Ahmedabad, for lodging the complaint against the accused. After completing necessary formalities, one preliminary panchnama was prepared in the presence of two panchas and trap was arranged. Thereafter, the ACB personnel and complainant went to the Odhav Police Station on 10.9.1993, where the accused was available and the complainant gave the amount of bribe to the accused on demanding by the accused and the accused was caught by accepting the said amount of Rs.200/­ from the complainant. Thereafter, panchnama was prepared and sanction was obtained from the competent authority for proceeding ahead against the accused.

3. After usual investigation, the Investigating Agency submitted the charge­sheet. In order to bring home the charge, prosecution had examined the witnesses and got exhibited a large number of documents. The witnesses examined by the prosecution viz. PW­1, Ashokbhai Becharbhai Panchal, complainant at Exhibit 10, PW­2, Naginbhai Laxmanbhai, Panch at Exhibit 18, PW­3, Kirankumar Manubhai Rathod, Panch at Exhibit 21. Thereafter, documentary evidence viz. complaint at Exhibit 13, charge­sheet at Exhibit 14, Panchnama at Exhibit 19, Sanction order at Exhibit 23 etc. were produced.

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, the trial Court has also considered the defence version and rejected the same. Accordingly the appellant was convicted and sentenced as stated above by the trial court.

5. Learned advocate Ms. Nidhi Barot appearing on behalf of the appellant submitted that the judgment and order is bad in law, illegal and unwarranted. She further submitted that learned Sessions Judge has seriously erred in convicting the accused without properly appreciating the evidence. She also submitted that the charge and the statement of the accused U/s. 313 of the Code are not in conformity with the provisions of the Code. She further submitted that the appellant was performing his service as Head Constable at Odhav Police Station. She has read the evidence of complainant P.W.1 Ashokbhai Becharbhai Panchal and submitted that the main material aspect of demand is not proved from the evidence of this witness. She further submitted that the application which was made by the wife of the complainant at Mark 8/54, is not proper and there are so many editions and erasion in the said application. Even the recovery was made the ACB Personnel from the file and not from the accused. The application which was made by the wife of the accused, was pending and therefore, there is no question of demanding any bribe amount as there was no power with the accused being Head Constable of the Odav Police Station. She further submitted that from the cross­examination, the allegations levelled against the accused that the accused demanded bribe amount from the complainant is not cogently proved. She further stated that looking to application made by the wife of the complainant, it appears that there was dispute with one Kanubhai and the complainant only wanted protection, as said Kanubhai administered threat to the wife of the complainant. The accused had performed his duty properly and on the part of the accused, the demand was not made by the accused. She further stated this witness is interested witness and therefore, it can be said that his evidence is not trustworthy and reliable. She read the oral evidence of P.W.2 Naginbhai Laxmanbhai Dave at Exhibit 18, who is panch of the said trap. This witness is also interested witness and he has not properly proved the talk which was between the accused and complainant during the trap, by his oral evidence. She also submitted that from the evidence of this witness, the demand is not proved, especially in the presence of this witness. She drew attention to the oral evidence of P.W. 3 Kirankumar Manubhai Rathod, who is I.O. of the incident, working as P.I. of the ACB Branch. This witness stated in his evidence that nothing was recovered from the accused and the spot, where the trap was carried out. This witness also admitted that he had no further knowledge about the anthracene powder, which was used in the trap, except to apply to the currency notes and thereafter, during the course of experiment of ultra violet lamp, as per his say, the white marks were found on the currency notes as well as other articles. She further submitted that the trap was not carried out properly and without cogent proof against the accused, the accused was held guilty for the offence alleged under the Act. She further submitted that in this case, only three witnesses were examined. From the contents of the panchnama, the allegations alleged against the accused, are not supported by the evidence of the witnesses examined on record. Even the contents of the complaint are not supported by the evidence of the witnesses and the documents are not corroborated with the evidence of the witnesses. She further submitted that the accused made his defence in the statement recording under Section 313 of the Cr.P.C., but the learned Special Judge has not properly appreciated his defence.

6. Learned advocate Ms. Barot relied upon the case of Ajitkumar Somnath Pandya Vs. State of Gujarat reported in 1992(2) GLH 515 and submitted that when two types of sets of evidence produced on record, then the benefits of doubt is required to be given to the appellant – accused.

7. Learned APP Ms. Jirga Jhaveri for the State, vehemently opposed the submissions made by the learned advocate Ms. Barot. As per her submission, the evidence of witnesses examined, cannot be rejected in toto. Learned APP also read further statement recorded under Section 313 of the Code of Criminal Procedure and submitted that the accused has not explained properly the incident and the defence of the accused is not believable and he being the public servant demanded bribe other legal remuneration, can be said to be serious offence under the provision of Prevention of Corruption Act. She also submitted that learned Special Judge has rightly appreciated the evidence produced on record and rightly held the appellant guilty for the alleged offence. She read the contents of evidence of P.W.1 – Ashokbhai, complainant and submitted that the said witness stated in his evidence that the accused told him (complainant) to come with him in another room of police station, where the accused demanded money towards the bribe from the complainant. This witness also admitted in his evidence that the accused demanded the money and same was given to the accused and therefore, marks of anthracene powder were found on the hand of the accused. The contents of his evidence and the contents of complaint and panchnama are corroborated wholly and, therefore, it cannot be said that the accused had not made demand by way of illegal gratification from the complainant. If the evidence of P.W.2 – Naginbhai Laxmanbhai Dave, panch, is carefully scrutinized, the demand on the part of the accused is very well proved, as the demand Rs.200/­ from the complainant, was made by the accused in the presence of this witness. This witness also stated that the stains of anthracene powder were found on the right hand of the accused. She drew the attention of the oral evidence of P.W.3 – Kiran Rathod and submitted that from the evidence of this witness also, the main ingredient of demand as prescribed under the Act is proved. The recovery of the amount is not denied in any way because the amount which was given towards bribe was found from the accused and, therefore, it cannot be said that the amount was not recovered from the accused and if no demand is made how the amount was found in the file, which was having with the accused at that relevant time, and same was smeared with anthracene powder. He also read the contents of panchnama and complaint. The accused had not explained his defence properly in his statement recorded under Section 313 of the Code of Criminal Procedure. Even the sanction to prosecute the case against the accused was just and proper. Therefore, on the aspect of sanction, it cannot be said that the complaint was filed wrongly against the accused because the competent Authority after verifying the papers, accorded sanction to prosecute the case against the person, who is involved in such kind of offence. Therefore, it is established that the accused was very well involved in the offence by considering other aspects of case like evidence, complaint and panchnama. He also submitted that the evidence on record is against the accused and therefore, there is no reason to disbelieve the case of the prosecution. Hence, the appeal may be dismissed.

8. Heard the parties and perused the record. It appears from the judgment that learned Sessions Judge has specifically made attempt to frame the charge in connection with demand and acceptance.

9. I have perused the record as well as judgment and order passed by the learned Sessions Judge. From evidence of P.W.1 – Ashokbhai, complainant, it appears that the complainant approached the accused at Odhav Police Station, due to harassment caused by one Kanubhai to the wife of the complainant and said Kanubhai threatened to kill the wife of the complainant. Therefore, the complainant wanted protection for his family from the police. At that time, the accused told the complainant to give him Rs.500/­ and the complainant showed his inability to give Rs.500/­ and therefore, he could give only Rs.300/­ to the complainant at that time. Thereafter, the accused made frequent demand of remaining amount of Rs.200/­ from the complainant. The complainant did not want to give the said amount to the accused and therefore, he approached the ACB office, Ahmedabad and lodged the complaint against the accused. After completing necessary formalities of procedure, the ACB persons including the complainant and panchas decided to carry out trap at the Police Station, where the accused was Head Constable and the complainant and panch No.1 went into police station of the accused. The accused called the complainant to another room of the said Police Station and the complainant and panch, both were going to another room, where the accused made demand of Rs.200/­ from the complainant. Here one thing is required to be considered that when the accused told the complainant that have you brought money of Rs.200/­ and in response to the same, the complainant gave Rs.200/­ to the accused. It is clearly established that previously the accused told the complainant about amount of illegal gratification and if accused had not demanded the amount, why the complainant on his own would hand over the money to the accused. Therefore, the say of the accused that he had not demanded the money towards illegal gratification, is not believable at all. It can be inferred that without previous talk or conversation, a person cannot give money to any person. Secondly, as per the oral evidence of this witness, the stains of the anthracene powder were found on the finger, tips and palm of the accused. If the say of the accused is believed, for a moment, then how the currency notes smeared with anthracene powder, were found from the file, and marks of anthracene powder were found. Therefore, it is established fact that previously the accused made demand from the complainant and in response to the same, the amount was given by complainant to the accused and also the stains of anthracene powder were found on the finger of right hand of the accused. Looking to the oral evidence of P.W.2 Naginbhai Laxmanbhai Dave, panch, this witness and the complainant met the accused in the Odhav Police Station and during conversation, the accused demanded Rs.200/­ from the complainant other than legal remuneration. As per this witness, the marks of anthracene powder were found on the finger, tip and palm of right hand of the accused. In his cross­examination, this witness did not deny about stains of the anthracene powder found from right hand of the accused. I have also perused the evidence of P.W.3 Kirankumar, I.O. and the fact about demand was very well established. I have perused the complaint and panchnama and the contents stated therein are corroborated with the evidence of the witnesses recorded during the trial.

10. I have also perused the complaint and panchnama and they are corroborated with the evidence led by the witnesses. Therefore, it is established that the accused demanded bribe money from the complainant and after arranging the trap, the recovery was made from the possession of the accused and therefore, the aspect of the acceptance is also proved. The stains of anthracene powder were found on the hands of the accused. Therefore, it cannot be said that the accused had not demanded the bribe money and had not accepted the same.

11. Looking to the evidence on record, in my opinion, the appellant has failed to prove his probable defence and he has not explained as to how anthracene powder was found from the person of appellant – accused. 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 sub­section (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 sub­section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub­sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.”

12. I have perused the case relied upon by the advocate of the appellant reported in 1992(2) GLH 515 (Ajitkumar Somnath Pandya Vs. State of Gujarat). The said case was decided by this Court and this Court while deciding said case, found discrepancies in the evidence, compliant etc. Here in this case, no discrepancy is found between oral as well as documentary evidence.

13. From the perusal of the case of Syed Ahmed Vs. State of Karnataka reported 1983 (3) SCC 217, it appears that in that case, the Hon'ble Supreme Court referred the provisions of Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act and confirmed the order of conviction passed by the High Court, though the trial Court acquitted the accused of the charges. In that matter also, the Hon'ble Supreme Court referred the case of Chandrappa Vs. State of Karnataka reported (2007) 4 SCC 415 and held that :

“(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

14. I have also perused the case of Narendra Champaklal Trivedi Vs.

State of Gujarat reported JT 2012 (5) SC 496 (AIR 2012 SC 2263), wherein the Hon'ble Supreme Court has confirmed the order passed by this Hon'ble Court.

15. From the perusal of the evidence, it is found that present appellant is a public servant and he, in his own capacity, had accepted the bribe amount from the complainant. So the conduct of the present appellant is proved by documentary as well as oral evidence. When he made demand of illegal gratification and when he accepted the same, then it is proved beyond reasonable doubt that the appellant has committed criminal misconduct. The aspects of demand and acceptance on the part of the appellant ­ accused are very well proved by the prosecution.

16. Even As per Section 8 of the Evidence Act, the conduct of the accused is required to be considered. From the record it is clearly established that at the place of occurrence, the accused was found and from his possession the trap amount was recovered in presence of panch witness and hence conduct of the accused suggests that there was motive of the accused to commit the offence to get some illegal gratification. The trial Judge has rightly held the appellant – accused guilty for the aforesaid offences. Therefore, contention of the appellant – accused that the accused was wrongly involved in the commission of offence is not believable.

17. In view of the above observation, I do not find any merit in this appeal and it is dismissed accordingly. The judgment and order passed by the learned Special Judge, Ahmedabad city passed in Special Case No.12 of 1994 dated 31.3.1998 is hereby confirmed. Bail bond stands cancelled. The appellant – accused is directed to surrender before the Jail Authority within a period of four weeks from the date of this order, failing which the concerned Sessions Court shall issue non­bailable warrant to effect the arrest of the appellant – original accused. R & P to be sent back to the trial court forthwith.

(Z.K. SAIYED,J.) ynvyas