1. Both these appeals arise out of the judgment and order of conviction and sentence passed by learned Special Judge, City Civil Court, Ahmedabad on 18/7/1997 in Special case no. 17/93 convicting the accused for the offences under the various provisions of the Prevention of Corruption Act, 1988.
2. According to the prosecution case, accused no. 1 Suryakantbhai Jivrambhai Patel was working as Shirastedar in the Office of Executive Magistrate, Metropolitan Court no. 2, Ahmedabad and thereby he was a Public servant. PW 1 Hasmukhbhai Jani went to the office of Executive Magistrate at the Collector's Office on 9/4/1992 in the morning at about 10.00 Clock to swear affidavit to obtain duplicate School Leaving Certificate. While he was standing in the queue at the office, P.I. Pathan came to him and said that he has received information that Rs. 5, Rs.
10 or Rs. 15 are being taken as bribe for affidavits and asked for his cooperation. PW 1 Hasmukhbhai agreed and hence they went to the office of Anti Corruption Bureau. Two Panchas were called at the Office and after drawing preliminary panchnama, trap was laid. PW 1 Hasmukhbhai and panch PW 2 Shirishkumar went to the office of Executive Magistrate at Collector's Office and stood in queue. Panch PW 2 Shirishkumar was behind PW 1 Hasmukhbhai. There were about four to five persons ahead of them in the queue. When his turn came, PW 1 Hasmukhbhai gave copy of the affidavit to accused Jayentibhai, who prepared and recorded the affidavit in the register and gave it to accused Suryakantbhai, who signed the affidavit and demanded Rs. 10/ from PW 1 Hasmukhbhai, who took out currency note of Rs. 10/ from left pocket of his shirt and accused Jayentibhai accepted the same. Hence, PW 1 Hasmukhbhai gave signal as agreed earlier and other members of raiding party reached at the place of incident. Currency note of Rs. 10/ and other documents were seized and remaining part of panchnama was drawn. The statement of the witnesses were recorded and offence was registered. After obtaining sanction to prosecute accused Suryakantbhai Charge sheet came to be filed in the Special Court at Ahmedabad. The accused were prosecuted, on the charge that accused no. 1 Suryakantbhai while discharging his duty as Shirestedar of Executive Magistrate, Metropolitan Court no. 2, Ahmedabad demanded amount of Rs. 10/ as bribe being the amount other then legal remuneration through Accused no. 2 Jayentibhai, and accepted the same from PW 1 Hasmukhbhai for rendering services of putting signature and seal on the affidavit for obtaining duplicate School Leaving Certificate. Accused no. 2 Jayantibhai abetted accused no. 1 Suryakantbhai in accepting the amount of Rs. 10/ from PW 1 Hasmukhbhai and accused Suryakantbhai committed offence of criminal misconduct and obtained pecuniary benefit by abusing his position as a Public Servant while holding office of a Public servant.
3. Learned Special Judge framed charge exh 3 for the offences under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 against the accused. The charge was read over and explained to the accused who denied having committed the offences and claimed to be tried. Therefore, the prosecution adduced evidence. At the end of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to them. Accused no. 1 Suryakantbhai in his further statement recorded under section 313 of the Criminal Procedure Code, 1973 stated that he is innocent and has been falsely implicated in the offence. He further explained that there are two Courts of Executive Magistrate in the Office of Collector and he has been appointed in Court no. 2 by order of the Collector. He further explained that time for swearing affidavit in Court no. 1 is between 11.00 in the morning and 2.00 in the noon and time of Court no. 2 is from 3.00 in the noon to 6.00 in the evening. On 9/4/1992, the Court was undertaking other work like recording dying declaration, signing the summons and certified copies etc. The said work was to be completed before 2.00 in the noon and thereafter as per the order of Collector, the affidavit was to be sworn. As there was heavy rush, the affidavits were being collected through Peon and after calling each of the executant he was affirming the affidavit. As per practice, PW 1 Hasmukhbhai was called in cabin for affidavit, which was recorded by accused Jayentibhai. After signing the affidavit and affixing the seal, he returned the affidavit. As there was heavy rush, he had called accused Jayentibhai in his cabin to record the affidavit in register. The accused produced certain documentary evidence with further statement.
4. Accused no. 2 Jayantibhai in his further statement explained that he is innocent and he is practicing law. He has not accepted any bribe but he has been falsely implicated. After hearing learned advocate for the parties, Trial Court by impugned judgment convicted accused Suryakantbhai for the offences punishable under section 7, 13(1)(1) (d) and 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to suffer six months RI and to pay fine of Rs. 300/ in default to undergo RI for 15 days for the offences punishable under section 7 of the Act and sentenced to undergo RI for one year and to pay fine of Rs. 300/ in default thereof to undergo RI for fifteen days for the offences under section 13(1)(b) and 13(2) of the Act. The Court also convicted accused Jayantibhai for the offence under section 7 & 12 of the Act and sentenced him to suffer RI for six months and to pay fine of Rs. 300/ in default to undergo RI for fifteen days. Being aggrieved by the said decision both the convicts have preferred these appeals.
5. I have heard learned advocate Mr. AD Shah for the appellant in criminal appeal no. 699/97 and learned advocate Mr. Ahuja for the appellant in criminal appeal no. 735/1997. I have also heard learned APP Mr. Kodekar for respondent State at length and in great detail. I have also perused the impugned judgment and record and proceeding of the Trial Court.
6. Learned advocate Mr. Shah submitted that the case is in respect of running trap and there was no previous demand by the accused and that the alleged demand was of Rs. 10/. Therefore, presumption under section 20 of the Act is not available to the prosecution. He also submitted that there is contradiction with regard to acceptance and oral evidence of PW 1 Hasmukhbhai with regard to trap is contrary to the evidence of Panch witness. He further submitted that the Investigating Officer lodged the complaint, drew panchnama and carried out the investigation. Therefore, the investigation was carried out only with a view to rope in the accused. He also submitted that there was no convincing evidence with regard to demand and acceptance by accused Suryakantbhai. Therefore, learned Trial Judge committed error in convicting the accused. He relied on the decision in case of A. Subair Vs. State of Kerala reported in 2009 (3) SCC (Cri) 85 and in case of Banarsi Dass Vs. State of Haryana reported in 2010 (4) SCC 450.
7. Learned advocate Mr. Ahuja submitted that the Panch witness did not depose about the demand and there is no evidence that the amount of bribe was demanded for doing favour. He also submitted that statement of other persons ahead in queue for affidavit were not recorded during the investigation and the person, who was standing behind was not shown as witness in the charge sheet though his statement was recorded. This conduct of the Investigating Officer raises serious doubt about the prosecution case. He also submitted that the Investigating Agency did not seize the register wherein the entry was made with regard to affidavit and the original affidavit of the complainant was not examined in the ultraviolet lamp. Therefore, there are discrepancies in the prosecution evidence and hence, benefit of doubt is required to be given to the accused as the prosecution failed to prove the case beyond reasonable doubt. He relied on the decisions in case of Kanubhai Kantibhai Patel Vs. The State of Gujarat reported in 1998 (1) GLH 924 and in case of the State of Gujarat Vs. Bhavjidan Chandidan Charan reported in 1984 GLH 572.
8. In order to prove the case, the prosecution examined PW 1 Hasmukhbhai Gordhandas Jani at exh 10. It appears from evidence of this witness that before arranging trap he had no knowledge that bribe was being demand in the office of Executive Magistrate for affirming affidavit but as P I Pathan (PW3) requested him to give cooperation, he agreed and trap was laid. It is not the prosecution case that bribe was demanded from PW 1 Hasmukhbhai and hence trap was arranged. The evidence of this witness reveals numerous discrepancies. It creates doubt as to whether the witness stood in the queue with stamps affixed on the affidavit and typed copy when PW 3 Pathan sought his cooperation in the morning at about 10 O,clock or weather he obtained change from PW 2 Shirishkumar after drawing of preliminary panchnama and purchased the stamps after reaching to the office with Panch PW 2 Shirishkumar and affixed them on the affidavit and typed copy. It also emerges from the evidence that accused Suryakantbhai demanded bribe from him and accused Jayentibhai accepted the same but the prosecution case is that accused Suryakantbhai demanded bribe through Accused Jayentibhai. The evidence with regard to lodging of complaint is also suspicious as it does not clearly indicate that whether the complaint was recorded in the morning at Anti Corruption Bureau Office before preliminary panchnama or that it was recorded at night after the trap. The evidence of the witness also indicates that about four to five persons were ahead of him in the queue and one person was behind him but statement of the persons ahead of witness was not recorded and statement of the person behind him was recorded but he was not shown as witness in charge sheet. The evidence of this witness also indicates that after giving bribe amount to the accused he signed the register but the investigating Agency neither seized the register nor examined the register in ultra violet lamp to ascertain whether there were marks of anthrecene powder on the register. Even the pen used to sign the register is not recovered nor examined in the ultra violet lamp. It also appears that the witness was a clerk of an advocate and he used to get commission for giving matters to the advocate and was attending the Courts and was acquainted with the Court. It also indicates that the witness was involved in several criminal cases.
9. The prosecution examined Panch Witness PW 2 Shirishbhai at exh 17. The evidence of this witness indicates that he was serving in the food and civil supply department under Mr. P.
L. Sadhu, who was working as Dy. Controller. It also indicates that when he was called in the cabin of Mr. Sadhu, PW 3 Pathan was present and the complaint was not read over to him. The evidence also indicates that after reaching to Collector's office PW 1 Hasmukhbhai demanded change from him and after obtaining change from him PW 1 hasmukhbhai, purchased three stamps of Rs. 0/65 paise each and affixed two stamps on affidavit and one on the copy of the affidavit. The witness did not depose about the demand of bribe by accused Suryakantbhai. It appears from cross examination of the witness that there was no money transaction for affidavit between the persons ahead of him in the queue and the accused. The evidence of this witness also indicates that accused Jayentibhai was making entry in the register and after accepting bribe amount, accused Jayentibhai gave the affidavit to PW 1 Hasmukhbhai. According to the witness the panchnama was being dictated by PW 3 Pathan and he stated that it is not true that accused Suryakantbhai did not make any demand. The witness also deposed that affidavit was not examined in the ultraviolet lamp and original affidavit was not seized. In view of the fact that the witness accompanied PW 1 Hasmukhbhai and was to witness the demand and acceptance of bribe, his was the best evidence to prove demand of bribe by accused but he did not depose about the demand. Therefore essential ingredient of the offence is not proved beyond reasonable doubt. The evidence of this witness also indicates that hands of PW 1 Hasmukhbhai and Accused Jayentibhai were examined in ultra violate lamp after trap and marks of anthrecene powder were found. There would have been marks of anthrecene powder on the register and affidavit also as both these documents were handled by PW 1 Hasmukhbhai and accused Jayentibhai but the investigating Agency did not recover the register and affidavit nor examine them in ultra violet lamp to support the allegation that after accepting the bribe amount, the accused obtained signature of PW 1 Hasmukhbhai in the register and returned the original affidavit, to him. The evidence of this witness also makes it clear that the panchnama was not drawn as dictated by him but Investigating Officer PW 3 Pathan dictated the panchmana and the panch witnesses signed it mechanically. Therefore, it can not be said that the panchas drew the panchnama Ex. 18. Therefore, except the evidence of PW 1 Hasmukhbhai, there is no evidence that the accused demanded bribe amount from him and accepted the same.
10. The panchnama Ex. 18 indicates that after reaching at Collector's Office after preliminary panchnama, as PW 1 Hasmukhbhai had no change to purchase three 0/65 paise stamp, he obtained change from Panch PW 2 Shirishkumar, purchased three stamps of Rs. 0/65 paise each and affixed two stamps on affidavit and one on copy thereof. It also mentions of giving of Rs. 10/ currency note to accused Jayentibhai and return of original affidavit to PW 1 Hasmukhbhai. The panchnama further indicates that a register containing record of affidavits from 3/1/1992 to 9/4/1992 was found on the table and entry in respect of PW 1 Hasmukhbhai with his signature was made at Sr. No. 2953. The panchnama also indicates that last entry no. 2954 was made in the name of Himmatlal Bhanjibhai Mistry. The panchnama also indicates that there were marks of Anthresene powder on right hand fingers and thumb of PW 1 Hasmukhbhai and accused Jayentibhai. The panchnama does not indicate that the register and the original affidavit were examined in the ultra violet lamp to ascertain whether there were marks of anthrecene powder on these documents.
11. The muddamal receipts exh 19 and 20 indicate that two five rupees currency notes and one ten rupees currency note were recovered from PW 1 Hasmukhbhai and accused Jayentibhai respectively.
12. The evidence of Investigating Officer PW 3 Pathan indicates that after trap and recording of statement of the witnesses, PW 1 Hasmukhbhai lodged the complaint at Office of Anti Corruption Bureau and the offence was registered. It is also borne out from his evidence that the witness was aware that information given to him with regard to bribe was a cognizable offence but no offence was registered. The witness also denied version given by PW 1 Hasmukhbhai that the complaint was written and read over to PW 1 Hasmukhbhai and he signed it in the morning at 11.00 O'clock at the office of Anti Corruption Buereau. The witness was not able to identify signature of Panchas on corrections and alterations made in Panchnama ex. 18. The witness neither made enquiry from Panch PW 2 Shirishkumar that whether other persons in the queue gave bribe to the accused nor recorded statement of the persons ahead of PW 1 Hasmukhbhai in the queue whose affidavits were recorded at Sr. No. 2945 to 2952 in the register but recorded statement of Himmatlal Bhaijibhai Mistry standing behind PW 1 Hasmukhbhai and PW 2 Shirishbhai whose affidavit was recorded at Sr. no. 2954 in the register. The witness does not remember whether the original affidavit and register were examined in ultra violet lamp. The witness also denied that he went to the office of food and civil supply to call panchas but admitted that his office had filed charge sheet against Mr. P. L. Sadhu. It appears that the witness denied having gone to Mr. Sadhu for panchas only with a view to see that the evidence of panch witness is not looked with doubt.
13. On conjoint reading of evidence of these witnesses, it emerges that PW 1 Hasmukhbhai did not lodge any complaint with Anti Corruption Bureau against the accused but the trap was arranged as PW 3 Pathan received information that bribe was being taken for affidavits. It also emerges that PW 3 Pathan received information that Public servant working in the office of Executive Magistrate at Collector's office is taking bribe. The information was in respect of commission of a cognizable offence but strangely the witness did not register any offence. According to him, he made entry in the Station diary in respect of the information but station diary was not produced. Even there is no investigation with regard to information in respect of demand of bribe for affidavits in the said office. The investigating agency did not record statement of the persons ahead of PW 1 Hasmukhbhai to show that bribe was being demanded in the office for affidavits. On the contrary evidence of Panch PW 2 Shirishkumar indicates that there was no monetary transaction between the persons ahead of PW 1 Hasmukhbhai in the queue and the accused. The evidence with regard to affixing stamp on affidavit and demand of change from PW 2 Shirishkumar is also conflicting. Even there is contradiction with regard to time of lodging of complaint as according to PW 1 Hasmukhbhai at about 11.00 in the morning, the complaint was written by PW 3 Pathan in the Anti Corruption Bureau Office and he signed it but PW 3 Pathan has denied this fact and stated that after the trap and panchnama, PW 1 Hasmukhbhai lodged the complaint at Anti Corruption Bureau office at night. PW 1 Hasmukhbhai deposed that there were about seven to eight persons ahead in the queue for affidavits but the witness did not depose about the demand of bribe by the accused from them for affidavits. It is also pertinent that Panch witness PW 2 Shirishkumar did not depose about demand of bribe by Accused Suryakantbhai through accused Jayentibhai. Therefore evidence with regard to demand and acceptance of bribe is shaky and not reliable. It is also pertinent that PW 2 Shirishbhai was serving in Food and Civil Supply Department under Mr. Sadhu, and according to him Mr. Sadhu asked him to remain as Panch witness. Mr. Sadhu was also involved in a case filed by Anti Corruption Bureau. The certified copy of charge sheet exh 27 filed on 16/5/1988 indicates that Mr. Sadhu was an accused in the complaint filed by Anti Corruption Bureau prior to the incident. Therefore, possibility can not be ruled out that Mr. Sadhu with a view to get favour in the case filed against him by Anti Corruption Bureau obliged PW 3 Pathan by sending panchas from his office. However, panch PW 2 Shirishkumar did not depose about demand of bribe by the accused. Therefore, evidence of Pancha witness PW 2 Shirishkumar also do not connect the accused with the crime. It also appears that the Panchnama ex 18 was dictated by PW 3 Pathan and Panchas signed it mechanically. There are corrections/alterations in the panchnama Ex.
18 and they do not bear signature of the Panchas. In the decision in case of Kanubhai Kantibhai Patel Vs. The State of Gujarat reported in 1998 (1) GLH 924, this Court ruled that when Panchnama is not dictated by Panch and panchs were asked to sign mechanically, such panchnama can not be accepted as supporting piece of evidence. The facts of the present case are similar to the said decision. Therefore, in my view, panchnama Ex. 18 and evidence of PW 2 Shirishbhai can not be relied on to connect the accused with the offence. The evidence indicates that after paying the bribe amount to accused Jayentibhai, PW 1 Hasmukhbhai signed the register and Accused Jayentibhai returned the original affidavit but the the investigating Agency did not examine the register and affidavit in ultra violet lamp. nor recovered these documents which were very essential to connect the accused with the offence. Therefore, there is no evidence to show that the accused, after accepting the bribe amount, obtained the signature of PW 1 Hasmukhbhai in the register and returned the affidavit.
14. As observed earlier, Investigating Officer did not record the statement of the witnesses, who were in the queue ahead of PW – 1 Hasmukhbhai and their affidavits were recorded in the register. The evidence of those witnesses was material and relevant to prove the prosecution case that bribe was being demanded for affidavits. The statement of Shri Himmatlal Mistry, who was behind PW 1 Hasmukhbhai was recorded but he was not shown as witness in the charge sheet. Therefore, there are numerous discrepancies in the prosecution case. Except the shaky and inconsistent evidence of PW 1 Hasmukhbhai, who has criminal record there is no other independent, cogent and reliable evidence to prove involvement of the accused. In the decision in case of State of Gujarat Vs. Bhavjidan Chandidan Charan of 1984 GLH 572, this Court took a view that in corruption case choosing of panchas is most important aspect and normally evidence of the complainant is not accepted without corroboration. In the present case, as observed earlier except the shaky evidence of PW 1 Hasmukhbhai, there is no reliable evidence to establish involvement of the accused in the offence. Therefore, learned Trial Judge committed error in convicting the accused for the offences charged against them.
15. In the decision in case of A. Subair Vs.
State of Kerala reported in 2009 (3) SCC (Cri) 85, Honourable Supreme Court held that presumption under section 20 of Prevention of Corruption Act can not be drawn in a case where alleged gratification is too trivial. In the present case, alleged demand of gratification is of Rs. 10/, therefore, it is too trivial. Hence, no presumption under section 20 can be drawn.
16. In the decision in case of Banarsi Dass Vs. State of Hariyana reported in 2010 (4) SCC 450, Honourable Supreme Court ruled that offences should be proved beyond reasonable doubt either by direct evidence or even by circumstantial evidence and each link of chain of events is required to be established pointing towards guilt of accused and the prosecution has to lead cogent evidence. In the present case, prosecution failed to prove the case by unbroken chain of events. Accused Suryakantbhai was a public servant but the prosecution failed to prove beyond the reasonable doubt the demand allegedly made by him. Accused Jayentibhai was not a public servant but there is no evidence that he abetted in commission of offence. Therefore, the Trial Court committed error in convicting the accused.
17. In view of the above, on reexamination of prosecution evidence, it appears that there are numerous discrepancies and contradictions in the prosecution case. The evidence of PW 1 Hasmukhbhai is shaky and contradictory. The evidence of PW 2 Shirishkumar does not prove demand and it is not safe to rely upon his evidence as he was serving under Mr.
Sadhu against whom Anti Corruption Bureau had filed a charge sheet. Hence, there is no cogent evidence to connect the accused with the crime. The prosecution failed to prove beyond reasonable doubt that Accused Suryakantbhai demanded bribe through accused Jayentibhai and accused Jayentibhai accepted the bribe. Therefore, in my view, benefit of doubt is required to be given to the accused and impugned judgment passed by the Trial Court is required to be set aside and the accused are required to be acquitted for the offences charged against them giving them benefit of doubt.
18. In the result, both appeals are allowed.
The judgment and order of conviction and sentence passed by the Special Judge, City Civil Court, Ahmedabad on 18/7/1997 in Special Case no. 17/93 convicting the accused for the offences under section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 is set aside. The appellants are on bail, their bail bonds are cancelled. The amount of fine, if any, is paid be refunded to them.
(BANKIM.N.MEHTA, J) asma