Gujarat High Court
Mahendrakumar Chandulal Shah vs State Of Gujarat on 27 August, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.A/966/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 966 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed to NO
see 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 NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MAHENDRAKUMAR CHANDULAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR YATIN SONI(868) for the PETITIONER.
MR RC KODEKAR(1395) for the RESPONDENT-CBI
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR(2) for the
RESPONDENT-STATE.
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 27-28/08/2018
ORAL JUDGMENT
Learned counsel Mr. Yatin Soni for the appellant has taken a serious objection to the appearance of learned APP Ms. Monali Bhatt for State of Gujarat on the ground that the State of Gujarat is a formal party since the learned APP is replaced by CBI counsel Mr.R.C.Kodekar. Learned APP Ms. Monali Bhatt has contended that the State of Gujarat being a party to the appeal, has all the rights to address this court.
This matter has been heard since last few days and this Page 1 of 26 R/CR.A/966/2000 JUDGMENT court has been addressed by learned APP Ms. Monali Bhatt as also by learned CBI counsel Mr. R.C. Kodekar. Strangely enough the learned counsel Mr. Yatin Soni has no objection against the appearance of CBI counsel who is not party to the appeal but has an objection only against the appearance of learned APP for State; though the State of Gujarat being a party to the proceedings, the objection is not understandable; it is over-ruled.
2. Judgment and order dated 29.9.2000 rendered by the learned Special Judge, Court No.4, Ahmedabad City, in Special Case No. 24 of 1995 recording conviction and ordering the appellant to serve the sentence for the offences punishable under Sections 7 and 13 of the Prevention of Corruption Act, 1988, (for short "the Act of 1988") is sought to be assailed in this appeal under Section 378(4) of the Code of Criminal Procedure (for short "Cr.P.C.").
2.1 The appellant was employed as a Chief Draftsman with the Central Railway. One M/s. Chromatography and Instruments Company with whom the informant Rakesh Dhansukhlal Shah was employed as a store officer was awarded contract for supply of dissolved gas analysers at Jhansi and Nagpur. In pursuance to the tender floated by the Controller of Stores, Central Railway Office, Mumbai, the purchase order in respect of above two contracts came to be issued on 6.12.1994 and 16.1.1995 subject to inspection of machinery by one M/s. Rites Limited, which company was employed by Central Railway for the said purpose. It appears that the tenderer requested the Stores Department of Central Railway for inspection contending that the machineries were Page 2 of 26 R/CR.A/966/2000 JUDGMENT ready for use; however, inspection was not taking place.
2.2 The appellant allegedly contacted the informant on 18.3.1995 stating that his efforts had yielded the contract to the tenderer and therefore he must be paid a sum of Rs.15,000/-; in absence of the bribe, he allegedly threatened to ensure the rejection of product during the inspection. The informant communicated this fact to Shri M.K.Shingari, proprietor of the firm above-named, who told the informant that the contract awarded to it on its own strength and not as a result of favour by appellant and therefore he was disinclined to pay Rs.15,000/- to him. The informant therefore was instructed to lodge the complaint. The appellant allegedly again reiterated his demand telephonically on 19.3.1995 on which date he also talked to Shri M.K.Shingari. The appellant allegedly agreed to accept Rs.10,000/- on 20.3.1995; i.e. before the inspection and the remainder of Rs.5,000/- after inspection. Eventually FIR was lodged, trap was laid, the appellant was trapped while demanding and accepting the illegal gratification and the tainted money were recovered from the appellant.
2.3 Following oral as well as documentary evidences were adduced during the trial after the appellant sought trial rather than pleading guilty to the charge when asked to select such option.
1. Arvindbhai D. Rana, PW No.1 at Exh.22.
2. Rakeshbhai D. Shah, PW No.2 at Exh.32.
3. Kantibhai M. Patel, PW No.3 at Exh.39.
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4. Bipinbhai P. Vora, PW No.4 at Exh.84.
5. Mahendrakumar Shingari, PW No.5 at Exh.85.
6. G.P. Thomas, PW No.6 at Exh.93.
7. B.D. Moris, PW No.7 at Exh.107 and
8. V.R. Rao, PW No.8 at Exh.108.
Documentary Evidence:
1. The complaint given by Rakeshbhai D. Shah dtd. 25.3.95 at Exh.33.
2. The award of the contract intimated by the Senior Store Officer on behalf of the President of India on 16.1.95 is produced at Exh.30.
3. The award of contract intimated by Store Officer for and on behalf of President of India dtd.6.12.94 at Exh.31.
4. The panchnama of the trap signed by both the panch witnesses is produced at Exh.23.
5. The letter written by M.S. Shingari, Proprietor of the Firm to Mr. Thomas, PI, CBI, Ahmedabad is produced at Exh.102.
6. Mr. K.M.Patel, PI, ACB, Baroda who registered the offence against the accused vide Exh.54.
7. The offences registered against the accused vide FIR bearing No.RC 15(A)-795/Ahmedabad at Exh.94.
8. Mr. Shingari's letter dtd. 19.3.95 to the Store Officer, Bombay vide Exh.89.
9. Sanction order against the accused no.1 is produced vide Exh.100.
10. Telephone diary of accused No.1 at Exh.26.
11. File bearing No.83-95-6507 and 83-94-6510 of the Central Railway, Bombay at Exh.36.
12. Visitors in and out register of Chromatography and Instruments Company, Baroda at Exh.38.Page 4 of 26
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13. ACB muddamal pavati pertaining to accused No.1 at Exh.56 and pertaining to accused No.2 at Exh.55.
14. Specimen writing of accused No.2 vide Exh.98.
15. Seizures list at Exh.24.
16. Acknowledgment at Exh.96.
17. Literature of dissolved gas analyzers at Exh.35.
18. Receipt at Exh.34 to the present case.
2.4 Upon considering the material and the rival contentions, the appellant on conviction under Section 7 of the Act, he was awarded sentence of simple imprisonment for six months with a fine of Rs.500/-; in default thereof, a simple imprisonment for two months and simple imprisonment for two years with a fine of Rs.1000/-; in default thereof, a simple imprisonment for six months for the offences punishable under Section 13 of the Act.
3. Learned counsel Mr. Yatin Soni invited the attention of this court to the charge framed against the appellant at Exh.15 and contended that the impugned judgment and order is erroneous since the appellant was employed only as a Chief Draftsman and he had no authority to deal with the tender or the inspection of the product, and therefore, even if it is assumed that the illegal gratification was taken by the appellant, it was not for doing or forbearing to do his official act or for showing favour or forbearing to show favour or disfavour to the tenderer, in exercise of his official functions;
or for rendering or attempting to render any service or disservice to the tenderer, within the meaning of Section 7 of the Act. The learned counsel also contended that the quality check was to be undertaken admittedly by third party i.e. M/s.
Page 5 of 26R/CR.A/966/2000 JUDGMENT Rites Limited to whom such a contract was awarded by railway, and therefore, as such, the appellant could not have maneuvered the rejection of the product, even if he desired to do so. The learned counsel submitted that the fact that M/s. Rites Limited was empowered to check the quality was known to the tenderer and therefore there was no question for the appellant to demand or attempt to obtain illegal gratification from the tenderer.
3.1 It is next contended by learned counsel Mr. Yatin Soni that the FIR, panchnama and other documents were concocted as they could not have come into being within a short time, having regard to the number of pages used for preparing the said documents. To buttress the said contention, the learned counsel invited attention of this court to the FIR Exh.33 and pointed out that the writing of the FIR was completed by 13:15 hrs. He has invited attention of this court to the panchnama Exh.23 and pointed out that it comprises 14 pages, amongst which 6 pages were devoted to the first part of panchnama which was written between 13:30 hr and 15:00 hrs. Learned counsel also invited attention of this court to the contents of panchnama, and submitted that, in fact, the panchas were approached at about 12:30 hrs and panchas delayed their appearance in the ACB office, and eventually appeared at 13:20 hrs and consented to be the panchas. It was contended that since the first part of panchnama commenced at 13:30 hrs, which comprised of 6 pages, it obviously followed the FIR. According to the learned counsel, the FIR must have been written before 12:30 hrs as the panchas were approached at that hour and it was not possible to write a panchnama between 13:30 hrs and 15:00 Page 6 of 26 R/CR.A/966/2000 JUDGMENT hrs; simultaneously with other activities like explaining of the FIR to the panchas, explaining to the informant and the panchas the procedure to be followed during the trial, making an experiment with phenolphthalein powder, recording 20 different currency notes of Rs.500/- each in the panchnama. In the submission of Mr. Soni, one and half hour was not enough to complete all the procedures and record the same in the panchnama.
3.2 Learned counsel for the appellant would assail second part of panchnama i.e. panchnama drawn post trap with the submission that the distance between the ACB office and the scene of offence was covered within 20 minutes and second part of panchnama which comprised of 15 pages could not have been completed by 19:00 hrs. 3.3 The learned counsel contended that the timing recorded in the FIR also creates doubt inasmuch as, the panchas came only at 1:20 p.m. and FIR is shown to have been completed at 1:15 p.m., but, in fact, FIR seems to have been written before 12:30 hrs as the panchas were approached at 12:30 hrs. It was contended that the mention of wrong timings in the FIR is an evidence of concoction of the documents.
3.4 The learned counsel also contended that P.W.1 Exh.22 Arvind Dahyabhai was examined only as panch witness No.2 and not an eye-witness. Therefore his evidence may be read only as that of corroborative panch and not the eye-witness.
3.5 To buttress his submissions, the learned counsel has relied upon the following decisions:
Page 7 of 26R/CR.A/966/2000 JUDGMENT (1) State of Maharashtra v. Jaywant Ramchanda Kamble [1979 Cri. L.J. 1460].
(2) State of Maharashtra v. Jagatsing Charasing Arora [AIR 1964 SC 492].
(3) State of U.P. v. Kanhaiya Lal [1976 Cri.L.J. 1230]. (4) Renukaben Rameschandra Kayasth v. State of Gujarat. [2016 JX(Guj) 1276 : 2016 AIJEL_HC 23614 : 2016 Lawsuit (Guj) 1181].
(5) Rakesh Kapoor v. State of Himachal Pradesh [ (2012) 13 SCC 552].
(6) State of Punjab v. Madan Mohan Lal Verma [(2013) 14 SCC 153] : [AIR 2013 SC 3368].
(7) Suraj Mal v. The State (Delhi Administration) [AIR 1979 SC 1408].
(8) Subash Parbat Sonvane v. State of Gujarat [AIR 2003 SC 2169].
(9) Gulam Mahmood A. Malek v. State of Gujarat [AIR 1980 SC 1558].
(10) Selvaraj v. State of Karnataka [(2015) 10 SCC 230]. (11) Padmakar Kavdubhai Likhar v. CBI, through Superintendent of PI and others [ 2016 LawSuit(Guj) 1578 ].
(12) Narendra C. Bhatt v. State of Gujarat [2007(3) GLH 656].
(13) Amrishbhai Manubhai Brahmbhatt and another v. State of Gujarat [2007(2) GLH 650].
(14) State of Gujarat v. Kathi Ramku Aligbhai [ 1986 Cri. L.J. 239 ].
(15) Muluwa s/o Binda and others v. State of Madhya
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Pradesh [AIR 1976 SC 989].
3.6 Learned counsel also contended that the incriminatory occurrences recorded in second part of panchnama being in the nature of confession by the accused while in custody of police were inadmissible in evidence, and in view of Section 27 of the Evidence Act, its inculpatory part must be ignored and ought not to have been read in evidence by the court below. The learned counsel has also pointed out that when the alleged demand and the demand of illegal gratification was made, the police was present beyond the scene of offence at some distance; al beit in hiding; the inculpatory occurrences recorded in second part of panchnama can be said to be confession within the meaning of Section 26 of the Evidence Act, and therefore, should be ignored and be not read in evidence as contemplated in Section 27 of the Evidence Act. The learned counsel would contend that the Indian Evidence Act applies on all force to the cases arising under the Corruption Act, and therefore, the principles enumerated under Sections 26 and 27 of the Evidence Act were applicable to the facts of the present case.
3.7 The learned counsel would also contend that in absence of panchnama being read over to the panchas as held in Mer Veja Meraman v. State of Gujarat [1988(2) GLH 515], it cannot be relied upon.
3.8 The learned counsel would argue that to make out an offence under Section 7 of the Act, the prosecution was obligated to prove: (1) prior demand (2) demand during trap (3) acceptance and (4) recovery, and in absence any of them;
Page 9 of 26R/CR.A/966/2000 JUDGMENT the case cannot be said to have been proved beyond reasonable doubt. To buttress this submission, the learned counsel relied upon the decision in Padmakar Kavdubhai Likhar v. CBI through Suptd. of Police [2016 Law Suit(Guj) 1578].
3.9 The learned counsel would contend that there was no occasion for the appellant to make the demand of illegal gratification inasmuch as, the purchase orders Exh.30 and 31 respectively were already issued on 6.12.1994 and 16.1.1995. It was contended that therefore appellant could not have stated, after issuance of purchase orders, that his effects yielded the contract to the tenderer. It was contended that if the appellant had guilty mind, he would have demanded the illegal gratification before 6.12.1994 i.e. before issuance of purchase orders as it was at that juncture, the victim was vulnerable to the demand. He would contend that therefore the story regarding securing of contract by the tenderer with the efforts of the appellant put in his mouth, is an unbelievable story.
3.10 Learned counsel invited attention of this court to the testimony of P.W. 8 - a witness from the stores department of the Central Railway who contends that the tender was finalised by him and states that the appellant is not known to him. It was contended that, therefore, as such, the appellant had no decision making authority and therefore there was no question of demanding illegal gratification.
3.11 Learned counsel would contend that no case is made out for presumption under Section 20 of the Evidence Act in Page 10 of 26 R/CR.A/966/2000 JUDGMENT absence of the prosecution establishing all the ingredients of Section 7 of the Act. It was submitted that presumption under Section 20 of the Act is restricted to motive or reward and would not apply purposes referred to in Section 7. In other words, it is argued that only motive or reward can be presumed and the purposes of the gratification. It was argued that since the award of the tenderer and/or controlling the process of quality check did not fall within the official act of the appellant, no question of presumption under Section 20 would arose. It is further contended that, in absence of the evidence on the above lines, the presumption under Section 20 got rebutted inasmuch as, for rebutting the presumption, the appellant was only required to probabilize the facts contrary to the presumption; not necessarily by leading evidence but only by suggestion in the cross-examination of the witnesses or by pointing out the flaws in the evidence in that regard.
4. Learned APP as also the learned counsel for the CBI would submit that the impugned judgment and order is flawless and is required to be upheld by this court. It was contended that undisputedly the appellant was a public servant and he was discharging the duties at relevant point of time with the Central Railway and the work place of the tenderer was situated at Mumbai. It was contended that all the way from Mumbai to Vadodara he came in the chamber of informant for acceptance of illegal gratification already demanded on 18th and 19th, with a threat that in absence of payment thereof, he would ensure rejection of the product during quality check. It is contended that if the demand, acceptance and recovery from the public servant is Page 11 of 26 R/CR.A/966/2000 JUDGMENT established by evidence, presumption under Section 20 is attracted shifting the burden on the offender to render contrary evidence; may be in the nature of preponderance of probabilities or the suggestion made in the cross-examination or by pointing out the flaws in the evidence of the witnesses - documents. It was contended that it would be sufficient for the prosecution to show the demand of illegal gratification and its acceptance and recovery by public servant for the offence under Section 7 of the Act to complete. It was contended that it was not necessary to establish the nature of official functions or duties of the offender or its jurisdiction, capability or ability to do or forbear doing of the act etc. It was argued that as conceded by the appellant, he held himself out as Chief Technical Assistant, though he was not and though he was only a Chief Draftsman, in order to demonstrate his authority and capability to show his dominance over the matter. Reliance is placed upon Chaturdas Bhagwandas Patel v. State of Gujarat [(1976) 3 SCC 46].
4.1 It was contended that insofar as time factor regarding writing of FIR and preparation of panchnama is concerned, they were the official functions of the trap laying officer and have been bonafide recorded in the record of the ACB, at the instance of the informant and there is nothing on record to infer the suspicion regarding concoction of panchnama and FIR, striking to the root of the matter. It was contended that in absence of the demonstrable prejudice to the appellant, the prosecution case cannot be thrown overboard merely on the basis of so-called flaws in recording of the FIR and the panchnama. It was contended that the above facts concerning Page 12 of 26 R/CR.A/966/2000 JUDGMENT the FIR and the panchnama were not put to trap laying officer or the investigator in their cross-examination and therefore were not proved. It was contended that no reliance may be placed by this court on the facts not proved. It was contended that even otherwise the statements in this regard made by P.W.1 and P.W.3 were not controverted in their cross- examination by the appellant, and therefore, such factual disputes may not be entertained in an appeal against conviction.
5. Before addressing the rival contentions, it would be beneficial to glance through the necessary evidence placed on record.
5.1 P.W.1 is a panch witness, who accompanied the informant as shadow witness to witness the occurrences. The idea of deputing a shadow witness was to introduce the transparency and enhance the credibility through the person not otherwise interested either in the demand or payment of illegal gratification. Unlike other cases, where the panch witness enters the scene only after commission of offence, the shadow witness enters scene of the threshold potentially offering; not only corroborative piece of evidence, but also a neutral or uninterested version of an eye-witness inasmuch as, he is a witness to the occurrences, and if the demand, acceptance and recovery of illegal gratification occurs in his presence, there can be no reason to treat him only a panch witness and not the eye-witness as contended by the learned counsel for the appellant. He is the witness who would authenticate the complainant's version if the offence occurred and would bestow a clean chit on the accused, if offence does Page 13 of 26 R/CR.A/966/2000 JUDGMENT not take place. The panch witness is thus beneficial to both the complainant and the accused and ensures the transparency and authenticity to the facts of the case.
5.2 P.W.1 has narrated in detail the occurrences pre-trap as also the post-trap in his oral testimony. He, in the first appearance before the police, gathered the facts in relation to the grievance of the informant which were recorded at his instance in the panchnama. His testimony would also show that the scene of offence was the chamber of P.W.4. The appellant all the way came from Mumbai and the evidence in the nature of gate-pass of the company would show his entry into the chamber of P.W.4; the purpose being the meeting with the informant. The appellant was questioned for his presence in the chamber of P.W.4 during the questioning under Section 313 by the court regarding his presence in the office above-stated, in response whereof he came out with the explanation that he had come to offer prayers to his Kuldevi at Vadodara. Both P.W.1 and P.W.3 testified about the demand of Rs.10,000/- as first instalment of payment with the promise to pay the remainder after the inspection of the product. Learned counsel for the appellant is unable to assail the testimony of two crucial witnesses as regards recovery of money. The aforestated witnesses also testified about the manner in which the tainted money was recovered from the appellant; they testified about the presence of the traces of phenolphthalein powder in the bowl of water when right hand of accused was washed in the said bowl. The evidence shows that the accused first accepted the tainted money and then handed it over to accused No.2, who, of course has been acquitted; however, traces of anthracene powder on the right Page 14 of 26 R/CR.A/966/2000 JUDGMENT hand of accused No.2, were also found and actual recovery was effected from him. Thus the testimony of P.W.1 and P.W.3 proves demand and acceptance by the accused No.1 and acceptance by accused No.2 from accused No.1 and a consequential recovery from accused No.2, the currency notes bears the same serial number as referred to in the first part of the panchnama; evidencing that the smeared notes recorded in the panchnama eventually landed in the hands of accused, as alleged in the FIR.
5.3 P.W.4 lends credence to the occurrence in his office. He is an accountant, who drew the required sum of Rs.10,000/- for giving it to the appellant, in the event of demand, as instructed by trap laying officer to the informant. His testimony would also show that the watchman informed Rakesh Shah - P.W.2 about arrival of the appellant at the factory gate wherefrom he was asked to obtain the gate pass. The watchman assisted the appellant to the office of P.W.4. The appellant was accompanied by one person who was subsequently arraigned as accused No.2. In the presence of P.W.4, P.W.2 introduced panch witness No.1 as a stores officer employed in the factory. P.W.4 also heard the conversation between informant and the accused. He testifies the informant having made a grievance about passive approach of the appellant to the letter seeking inspection of the product, to which the appellant is quoted saying that since the gratification is not paid, he did not come for the purpose. He also testifies about the informant drawing the tainted money from his left side pocket and then offering the same to the appellant and who accepted it with his right hand and then handed over to accused No.2. The witness also bears Page 15 of 26 R/CR.A/966/2000 JUDGMENT testimony to signalling of acceptance, to the trap laying officer, their arrival, carrying out the experiment to ensure the absence of traces of phenolphthalein powder on the person of those who had not come in the contact with the money as also presence of traces of phenolphthalein powder on the right hand of the appellant, both the hands of accused No.2 who had counted the currency notes as also in the pocket of his shirt as well as pocket of the shirt of the informant. He also bears the testimony to the recovery of currency notes from the person of accused No.2. The learned counsel for the appellant has not been in a position to point out the evidence disproving the demand, acceptance, recovery of the tainted money and other occurrences narrated by P.W.1, P.W.2, P.W.3 and P.W.4.
5.4 The evidence of P.W.5 is relevant for limited purpose of showing that on demand of illegal gratification by the appellant from the informant, he was consulted for registration of the FIR. It is also noticed from his testimony that the accused had a telephonic conversation with him in addition to the informant, reiterating the demand of illegal gratification. The witnesses was unable to recollect whether telephonic call from the appellant was received by him on 19.3.1995. His evidence also shows that he was not present during the raid as he was away at Chandigarh. Beyond that his evidence does not require any further elaboration.
5.5 According to the learned counsel for the appellant, in addition to demand of illegal gratification during trap, its acceptance and recovery, the pre-trap demand is also an indispensable ingredient of Sections 7 and 13 of the Act.
Page 16 of 26R/CR.A/966/2000 JUDGMENT While pre-trap demand they form the basis for an FIR, rendition of the proof of such a demand would not be a sine- qua-non in cases where independent of pre-trap demand, the ingredients of the relevant provisions are satisfied. In other words, if the demand, acceptance and recovery alongwith motive, reward and its purpose established by the evidence establishing the occurrences during the trap, the conviction of the accused would be justified even in absence of proof of pre- trap demand. It cannot be argued that even after satisfaction of the ingredients of the relevant provisions by cogent evidence relating to the occurrences during the trap, the case would fail for want of the evidence as to pre-trap demand. This court is unable to find any such legal requirement. Be it a pre-trap demand or demand during trap, the offence under Sections 7 and 13 of the Act would be made out on satisfaction of the well-settled legal requirements contemplated therein.
5.6 On proof of acceptance of illegal gratification by an accused be tried for the offences punishable under Sections 7, 11 or clause (a) or clause (b) of sub-sec.(1) of Section 13 of the Act, the presumption linking such acceptance etc. to the motive or reward for the purposes contemplated in Section 7 of the Act would spring into action shifting the burden on the accused that the acceptance etc. was not linked to motive or reward or the purposes contemplated under Section 7 of the Act. In the opinion of this court, reading the provision in the manner canvassed by learned counsel for the appellant would amount to doing injustice to the language of Section 20 when it provides that "as a motive or reward such as is mentioned in Section 7 .....". Bare reading of Section 20 would show that Page 17 of 26 R/CR.A/966/2000 JUDGMENT the motive or reward must be such that a presumption to be raised. The motive or reward must be such as is mentioned in Section 7 of the Act, and if one turn to Section 7, the phrase immediately following the words "motive or reward" are "for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person .......". The last quoted phrase in Section 7 relates the motive or reward to the various purposes contemplated in the quotation. The last quoted phrase, in the opinion of this court, gets bodily lifted and inserted in Section 20, and that in the opinion of this court, the presumption of motive or reward in relation to the purposes mentioned in the said quotation comes into play on proof of demand, acceptance or obtaining or an agreement to accept or an attempt to obtain and recovery of illegal gratification from accused being tried under the provisions referred to in Section 20 of the Act.
5.7 In Chaturdas Bhagwandas Patel (supra), in a case arising under Section 5(2) read with Section 5(1)(d) and Section 4 of the Prevention of Corruption Act, 1947 (for short "the Act of 1947") and Section 161 of the Indian Penal Code (for short "IPC") which are pari materia to the relevant provision of the Act of 1988, the accused was found to have accepted a gratification, and in that context, it was held in para 13 "....... on proof of this fact, the statutory presumption under Section 4(1) of the Prevention of Corruption Act was attracted in full force and the burden had shifted on to the appellant to show that he had not accepted this money as a motive or reward such as in mentioned in Section 161, Penal Page 18 of 26 R/CR.A/966/2000 JUDGMENT Code." Section 4(1) of the Act of 1947 is pari materia to Section 20(1) of the Act of 1988 and Section 161 of IPC is pari materia to Section 7 of the Act of 1988. Thus this court would read Section 20(1) for Section 4(1) and Section 7 of the Act of 1988 for Section 161 of IPC. It was further observed in para 23 thus:
"23. In the light of what has been said above, it is clear that the appellant has failed to rebut the presumption arising against him under Section 4(1) of the Prevention of Corruption Act. It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in Section 161. The appellant had hopelessly failed to show such a balance of probability in his favour."
5.8 At this juncture it would be relevant to note from the case of Chaturdas Bhagwandas Patel (supra), the facts that the illegal gratification was demanded by a Head Constable under the threat of implicating the victim in the offence of abduction of a woman who was in the police custody. The Hon'ble Apex Court under such scenario was confronted with the fact as to whether in absence of linking the demand to official act (the registration of FIR), the offence under Section 161 of IPC was made out. It was held in para 21 thus:
"21. The proof of the foregoing facts was sufficient to establish the charge under Section 161, Penal Code. The mere fact that no case of abduction or of any other offence had been registered against Ghanshamsinh in the Police Station or that no complaint had been made against him to the police by any person in respect of the Page 19 of 26 R/CR.A/966/2000 JUDGMENT commission of an offence, could not take the act of the appellant in demanding and accepting the gratification from Ghanshamsinh, out of the mischief of Section 161, Penal Code. The section does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver "with any other public servant" and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing. This is clear from the last Explanation appended to Section 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, as a reward for doing what he has not done, comes within the purview of the words "a motive or reward for doing." The point is further clarified by Illustration (c) under this section. Thus, even if it is assumed that the representation made by the appellant regarding the charge of abduction of Bai Sati against Ghanshamsingh was, in fact, false, this will not enable him to get out of the tentacles of Section 161, although the same act of the appellant may amount to the offence of cheating, also. (see Mahesh Prasad v. State of U. P., (1955) 1 SCR 965 : AIR 1955 SC 70; Dhaneshwar Narain Saxena v. Delhi Admn. AIR 1962 SC 195 : (1962) 3 SCR 259."
(Emphasis supplied) 5.9 Again in para 22 the following observations have been made:-
"22. Indeed, when a public servant, being a police officer, is charged under Section 161, Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider whether or not the Page 20 of 26 R/CR.A/966/2000 JUDGMENT public servant was capable of doing or intended to do any official act of favour or disfavour (see Bhanuprasad Hariprasad v. State of Gujarat and Shiv Raj Singh v. Delhi Administration."
(Emphasis supplied)
6. The above quoted observations are applicable to the facts of the case with equal force and is a clinching answer to the contention that no offence was committed in absence of the act or forbearance contemplated in Section 7 of the Act, being the part of official duty of the accused.
7. It appears from the record including the reply given by the appellant to the question put to him under Section 313 of Cr.P.C. that though he was not a Chief Technical Assistant but was merely a Chief Draftsman, he propounded himself to be a Chief Technical Assistant and held out to the informant as also P.W.5 that he was in a position to ensure the rejection of the product during the quality check, in absence of gratification. As indicated above, he was quoted saying the informant, when confronted with the letter of request for quality check for the product before its delivery, that in absence of the gratification, the matter would not proceed further.
8. In the light of the above discussion, it was immaterial whether M/s. Rites Limited was the authority to supervise the quality check or whether the appellant was capable of controlling the said procedure or whether the appellant was connected with the inspection department. As regards the doubt raised by the learned counsel for the appellant in relation to the authenticity of the panchnama and the FIR, the argument needs to be recorded for rejection in absence of Page 21 of 26 R/CR.A/966/2000 JUDGMENT laying such factual foundation in the evidence of the relevant witnesses. In absence of the said foundation, the submissions made by the learned counsel for the appellant is imaginary and a guess work.
9. The argument in relation to Section 27 of the Evidence Act also requires a mention for rejection. The argument ignores the requirements and the purport of the said provision. Elementary requirement of Section 26 is the confession of a person whilst in a police custody. The provision will operate where (1) there is a confession, (2) the accused is in police custody whilst he makes confession. It is not the case of the appellant that, before laying the trap, he was taken into custody by police. It is also not his case that he made confession. It is also not his case that he made a confession to a police officer within the meaning of Section 25 of the Act.
10. While the confession, under the circumstances referred to in Sections 24, 25 and 26 of the Act is barred being proved its maker, the discovery in pursuance to the information supplied by the accused in the nature of confession or otherwise leading to the discovery of the facts excluding the incriminatory party, is admissible to the limited extent of such discovery.
11. In the instant case, concededly: (1) there was no confession by appellant whilst in the police custody, (2) he was not in police custody during the trap, (3) no police officer was present during the demand and acceptance of gratification by appellant. True it is that after receipt of pre-
Page 22 of 26R/CR.A/966/2000 JUDGMENT arranged signal the police officials entered the scene of offence and the recovery of bribe money was made in presence of the police officers. However it is required to be borne in mind that during recovery also the appellant was not in custody of the police and the recovery was made in presence of independent witnesses including panch witness No.1. Thus none of the occurrences potentially attracted Sections 24, 25 and 26 of the Evidence Act and consequently not even Section 27 thereof. The argument that occurrences must be deemed to have occurred in presence of police, as it was present in the near vicinity and so above sections were attracted is feeble most argument, this court is ever confronted with; it ignores the most elementary requirement of the legal provisions above-referred.
12. It is no doubt true that panchnama can be used only to corroborate the panch. It is also true that mere exhibition of a document in evidence without proving its contents would not be useful. There can be no dispute to the proposition of law that if the panch omits to mention certain facts; otherwise found in the panchnama, attention must be drawn to the panchnama with a question whether the facts omitted from his testimony but found in the panchnama is correct or not. However the necessity of confronting the witness if the facts contained in the panchnama would arise only if the witness otherwise does not refer to such material facts in his testimony but where the witness, even before confrontation of the facts or the contents of the panchnama, mentions the material factual contents of the panchnama in his testimony, there would be no necessity of reading over the panchnama to the witness. The argument in contrast; while relying upon Page 23 of 26 R/CR.A/966/2000 JUDGMENT the case of Mer Veja Meraman (supra) cannot be accepted for the foregoing reasons. Distinguishing feature between the case of Mer Vega Meraman (supra), and the present case is that, while in the former, the panchnama was exhibited merely on the basis of the acknowledgment of his signature thereon, by the witness, without referring to the contents thereon; in the instant case the witness has elaborately deposed the material contents of the panchnama in his testimony lending the required authenticity and credence to the panchnama. Thus reliance on Mer Vega Meraman (supra) is misconceived.
13. The next question is whether the evidence of a witness can be confined to the title witness bears even though his deposition may expand beyond his title. In the instant case, evidence of panch witness No.1 is sought to be confined to his title i.e. panch, though in fact, in addition to being panch, he was the witness to the occurrence as recorded in the panchnama. The argument is of no significance since it is in ignorance of a fact that what occurred and what was noticed by panch witness was recorded at his instance in the panchnama, and therefore, even if the witness is treated as a witness to the drawl of a panchnama, he is capable of proving occurrence as eye witness.
14. It is also argued that the panch witness No.1 is a tutored witness since FIR was read over to him and he refers to minute details in his evidence and therefore he ceased to be an independent witness. This court is not in a position to accept the said submission for the simple reason that there is a mark difference between a tutored witness and a witness to Page 24 of 26 R/CR.A/966/2000 JUDGMENT the fact. A tutored witness may not be aware of the facts but only for the purpose of deposing in the court, he might be taught what to depose in contrast to the witness to the facts. A person aware of the facts is a witness to facts. Normally in the trap cases arising under the Act of 1988, foundation is laid by informant by apprising the police and all concerned including the panch witnesses with the facts of the case so as to enable the witnesses to better appreciate the occurrences during the trap. It must be borne in mind that after noticing the occurrences during the trap the shadow witness derives authentic information from the occurrences itself and not from the informant. His testimony in the court, under the circumstances, would not be merely based upon his learning from the informant but also from the authentic facts learnt by him during the trap. It is difficult to nomenclate such a witness as a tutored witness.
15. One of the circumstances staring in the face of the appellant is his rushing down from Mumbai to Vadodara, without the proof of his being on leave on that day, for the purpose of offering prayers to his Kuldevi, as contended by him in the statement recorded under Section 313 of Cr.P.C. The explanation is as feeble as can be, in absence of proof of leave report on record. The question as to why a public servant would leave his official place; without the legal sanction and rush all the way for about 400 kms to a place where he had no official function to discharge, remains unanswered. Why a public servant would enter the factory premises of a person without having to discharge any official duty or function, in the said factory premises is also an unanswered question. If the facts leading to such unanswered Page 25 of 26 R/CR.A/966/2000 JUDGMENT questions are taken into consideration alongwith substantive evidence on record, guilt of the appellant under Section 7 is proved beyond reasonable doubt.
16. However this court does not find any reference to the ingredients constituting for offence under Section 13(1) of the Act, in the entire body of the judgment, except the operative part thereof. In absence of the evidence establishing the offence under Section 13(1) of the Act, the appellant is entitled to acquittal. Accordingly the order convicting and sentencing the appellant for the offence punishable under Section 13(1) of the Act is quashed and set aside and the appellant is ordered to be acquitted therefrom. The conviction under Section 7 of the Act and the sentence for the same imposed by the trial court is upheld. The appeal partly succeeds qua Section 13(1) of the Act. The appellant-accused shall surrender for serving the sentence under Section 7 of the Act within six weeks, failing which he shall be arrested.
(G.R.UDHWANI, J) syed/ Page 26 of 26