Gujarat High Court
Vinubhai vs State on 25 August, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/690/1998 20/ 20 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 690 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2.
To
be referred to the Reporter or not ?
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5.
Whether
it is to be circulated to the civil judge ?
=========================================
VINUBHAI
SHANABHAI VANKAR - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
======================================
Appearance :
MR
AD SHAH for Appellant(s) : 1,
MR HL JANI ADDITONAL PUBLIC
PROSECUTOR for Opponent(s) :
1,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/08/2011
CAV
JUDGMENT
1. The appellant was serving as Talati-Cum-Mantri with Bhundasan Gram Panchayat in the year 1993. The learned Special Judge, Sabarkantha at Himmatnagar convicted and sentenced the appellant - accused for the offences punishable under Sections 7 and 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act by passing judgment and order in Special Case No.1 of 1994 dated 30.7.1998. The learned Special Judge was pleased to convict the appellant - accused 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.300/-, i/d, to further undergo rigorous imprisonment for 1 month. The appellant was also ordered to suffer rigorous imprisonment for two years and to pay a fine of Rs.500/-, i/d, to suffer rigorous imprisonment for two months for the offence punishable under Section 13 of the Prevention of Corruption Act. The learned Special Judge has ordered that all the sentences shall run concurrently.
2. Briefly stated, the prosecution case is that in the year 1993, the appellant
- accused was Talati-Cum-Mantri at Bhundasan Gram Panchayat. The complainant Talsibhai Ishwarbhai had to obtain financial assistance by way of loan for thrasher and bullock-cart for the agriculture purposes, from Land Development Bank. Some documents were required to be submitted to the bank along with application form for obtaining loan and, therefore, the complainant requested the accused for Form No.7/12. The accused demanded Rs.500/- (bribe amount) for doing such work. But the complainant did not want to pay the said amount, however, he paid Rs.100/- at that time to the accused and promised to pay Rs.400/- after 10 days. It is the case of the complainant that on payment of Rs.100/-, the accused had signed and sealed the loan form and had supplied the necessary documents for land, which were to be submitted to the bank. Thereafter, after the complainant obtained signatures on loan form and necessary 7/12 forms, he presented the same to the Land Development Bank at Bayad Branch. On 14.6.1993, the accused called complainant through peon of Panchayat and hence, the complainant had gone to the accused. The accused made demand of Rs.400/- and he promised to pay the same on Tuesday. It is also case of the complainant that thereafter, again the peon of Panchayat had come and informed the complainant regarding the payment of Rs.400/- to be made to the accused, and the complainant requested the accused to give him time till 16.6.1993. As the complainant did not want to give or pay any amount towards illegal gratification to the accused, the complainant approached on 16.6.1993, the ACB office Himmatnagar. After completing necessary formalities, the complainant, panchas and the members of the ACB office proceeded to the office of Bhundasan Gram Panchayat. The complainant and panch No.1 went to Bhundasan Gram Panchayat office, where the accused was sitting on his chair. Thereafter, the accused inquired about panch No.1 and, therefore, the complainant told the accused that the panch No.1 is son of his maternal uncle. The accused inquired from the complainant by saying "Have you brought". The complainant told the accused in presence of panch No.1 that he had brought. Therefore, the accused told complainant to come out and the complainant and panch No.1 went outside, where the accused again inquired from the complainant about the amount and the complainant took out currency notes of Rs.400/- and presented the same to the accused, which the accused accepted with right hand and kept the same in left side pocket of his shirt. Thereafter, prearranged signal was given and immediately, the members of raiding party rushed to that place. The ACB members recovered the currency notes from the pocket of the shirt of the accused and panchnama was completed. The Police Inspector, ACB registered the offence and on completion of investigation forwarded all the papers to the District Panchayat, Sabarkantha for necessary sanction. The Deputy District Development Officer granted sanction on 14.12.1993.
3. After usual investigation, the Investigating Agency submitted the charge-sheet. 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. PW-1, Bhaktibhai Keshabhai Vankar, panch at Exhibit 16, whereas PW-2, Talsibhai Ishwarbhai Patel, complainant at Exhibit 28, PW-3, Abdul Ajij Mohmmadbhai Jamsa, P.I, ACB at Exhibit 31, P.W.4 - Chimanbhai Bhikhabhai Parmar, Deputy District Development Officer, Exhibit 36. Thereafter, the documentary evidence viz. letter written by Inspector, ACB to Dy. Forest Conservator at Exhibit 17, list of the recovered articles like currency notes, shirt, mini purse at Exhibit 18, recovery of paper at Exhibit 19, Panchnama at Exhibit 20, complaint at Exhibit 29, certificate issued by the Talati regarding selling of buffalo at Exhibit 32, list prepared by the bank at Exhibit 33, appointment order of accused at Exhibit 34, Sanction letter at Exhibit 35 were produced. The defence witness i.e. D.W.1 Ashwinkumar Mansukhbhai Patel at Exhibit 40 and P.W.2 - Ishwarbhai Bababhai Patel at Exhibit 46 were examined. On closure of prosecution evidence, the accused was questioned under Section- 313 of the Code of Criminal Procedure and he denied the charges levelled against him. The accused pleaded that the Panchayat had resolved to collect the amount for the purpose of making payment to GEB as the outstanding amount was not paid by Gram Panchayat.
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 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 Mr. A.D. Shah appearing on behalf of the appellant submitted that the judgment and order is bad in law, illegal and unwarranted. He further submitted that learned Judge has seriously erred in convicting the accused without properly appreciating the evidence. There was no sanction for the commission of this offence on the part of the accused. As per submission of the learned advocate Mr. A.D. Shah, the sanction obtained by the prosecution related to Section 13(1)(d)(i)(ii)(iii) read with Section 13(2). Therefore, the conviction of the accused for the offence punishable under Section 13(1)(b) read with Section 13(2) is absolutely illegal and unwarranted. He also submitted that the provisions of Section 13(1)(b) deals with the charge of habitually committing the said offences under the Act. Therefore, the conviction of the accused for the offence punishable under Section 13(1)(b) read with Section 13(2) is absolutely illegal. He also submitted that the sanction was not valid and it was given without application of mind. He also submitted that it appears from the evidence of the sanctioning authority that along with the papers forwarded by ACB, there was a prepared draft of the sanction and the same was forwarded by ACB. There is reference to the commission of offences under Section 13(1) (d)(i)(ii) & (iii) of the Act and the facts of case do not cover the clauses of Section 13(1)(d). He further submitted that the oral evidence of complainant Talsibhai Ishwarbhai - P.W.2 Exhibit 28 clearly established pendency of electricity bill of water works in the village and issuance of notice to Gram Panchayat by Gujarat Electricity Board. The evidence of this witness - complainant clearly established that in pursuance to that notice, Sarpanch of the village had issued advance cheque to GEB and for payment of the amount of the said bill, the Sarpanch had started to collect funds from people in the village. The Sarpanch had instructed Talati to collect such funds and thereafter, the accused had demanded the amount towards deposit and the said deposit was for making payment to GEB. This admission made by the complainant clearly substantiate the defence of the accused that the said amount was collected towards deposit and thus the acceptance of the amount was for the purpose of collecting deposit to meet the demand made by GEB. Learned advocate also submitted that the oral evidence of P.W.2 - complainant Talshibhai clearly established the fact about pending electricity bill of water works in the village and issuance of notice to Gram Panchayat by Gujarat Electricity Board and the complainant also admitted that Gujarat Electricity Board had given notice to Gram Panchayat for the bill of electricity and water works. Therefore, the Sarpanch issued advance cheque to GEB in pursuance to the notice and also the Sarpanch had instructed the accused to collect the amount and the complainant subsequently came to know that the accused had made demand for making payment to GEB. Learned advocate also submitted that the evidence of complainant is not reliable inasmuch as according to the complainant, he had gone to ACB Office on previous day to make necessary inquiries, but, he had not filed any complaint at ACB Office on that day. As per the complainant, he (complainant) approached the ACB office and informed about the demand of bribe. The complainant also admitted that the accused had issued the extract of village Form No.7/12 on the same day when the complainant had gone to the office of accused. Learned advocate also submitted that thereafter, there was no reason for the accused to make any demand and the complainant himself has admitted that the amount which was demanded by the accused was for making payment of GEB charges.
6. Learned advocate Mr. Shah further submitted that the Investigating Officer, P.W.3 at Exhibit 31 has clearly indicated in his evidence that the complainant had gone to ACB office on 16.6.1993 and filed complaint. The said investigating officer also denied the claim of complainant as to complainant's visit on previous day of filing of the complaint. The said witness had not inquired about the loan application form submitted to the concerned bank on 21.6.1993. From bare perusal of Exhibit 17, letter dated 16.6.1993, it appears that the presence of two Government servants as panchas was required on 16.6.1993 and the same was solicited on the same day. According to the evidence of witness, the member of ACB had gone to their office at about 4:00 p.m. on 15.6.1993 and they had gone to the office of ACB on 16.6.1993 at abut 10:30 a.m. Therefore, as per the submission of the learned advocate, it is quite contrary to the prosecution case and there was no occasion for the investigating officer to solicit services of panch witnesses on 15.6.1993. Therefore, it clearly appears that the panch witness appears to be a selected one and the complainant has also corrected his version to support the claim of panch which was not the case of the prosecution about complainant visiting ACB office on 15.6.1993 and thereafter ACB office soliciting services of panch witnesses a day before the raid. Learned advocate also submitted that the test of anthracene powder was not properly carried out and therefore, acceptance and placing currency notes is not reliable. He also submitted that the evidence of defence witnesses has not been properly appreciated and straightway rejected. If said aspect is viewed on touchstone of probabilities as well as the evidence, admission of facts by complainant in his evidence in cross-examination probabilize the defence of the accused that the said amount is not the bribe amount and was being collected towards deposit for meeting the expenses of electricity consumption and payment of charges of GEB. Therefore, he prayed to quash the judgment and order of conviction and sentence passed by the learned Sessions Judge.
7. Learned advocate Mr. Shah placed reliance on the decision in the case of State of Tamil Nadu Vs. S. Krishnamurthy reported in (2002) 9 Supreme Court Cases 530. He submitted that in the case cited, the charge was framed against the accused for the offence punishable under Sections 13(2) read with Section 13(1)(d)(ii) of the Prevention of Corruption Act. The amount of Rs.300/- recovered from the pocket of the accused was for Teacher's Day and the trial Court found the accused guilty. But after properly appreciating the evidence, the High Court found that the prosecution case was doubtful and therefore, Hon'ble Supreme Court took the view that the High Court's order of acquittal was neither perverse nor without evidence. As per submission of learned advocate, in the present case, the accused collected the money towards water work and same was to be paid to GEB as per the instruction passed by the Sarpanch. Therefore, the amount which was accepted by the accused was not towards the illegal gratification. Therefore, the said material aspect was not appreciated by the trial Court while passing the order of conviction and sentence.
8. Learned advocate Mr. Shah has relied upon the decision in the case of Mohmoodkhan Mahboobkhan Pathan Vs. State of Maharashtra reported in 1997(1) Crimes 186 (SC).
He submitted that in the case aforesaid, the accused collected amount of Rs.60/- for providing three copies of sale deeds and for that the application was made by the complainant. He also submitted that in this case, the accused was instructed by the Sarpanch to collect the money for the payment to be made to GEB towards water works. Therefore, the complaint was wrongly lodged against the accused for levelling bogus charges of the alleged act.
9. Learned advocate Mr. Shah also relied upon the decision in the case of Banarasi Das Vs. State of Haryana reported (2010) 4 Supreme Court Cases (Cri.) 864, wherein the Hon'ble Supreme Court has observed that the offence should be proved against accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of chain of events is established pointing towards guilt of the accused. He also submitted that the accused cannot be found guilty on basis of inference and in this present case, a clear demand is not established on the part of the accused. Therefore, the question of the acceptance cannot arise and in turn, the judgment and order of the conviction and sentence is required to be quashed and set aside by allowing this Appeal.
10. Learned APP Mr. H.L. Jani for the State, vehemently opposed the submissions made by the learned counsel Mr. Shah. He read the charge at Exhibit 11 and submitted that learned Special Jude has framed charge for offence punishable under Sections 7 and 13(1)(b) as well as 13(2) of the Prevention of Corruption Act, against the accused. Learned APP read the judgment and order passed by the learned Special Judge and submitted that the learned Special Judge has convicted the accused for the offence punishable under Sections 7 and 13 of the Prevention of Corruption Act.
11. Learned APP Mr. H.L. Jani read the oral evidence of P.W.1 - Bhaktibhai Keshabhai Vankar at Exhibit 16 and submitted that this witness has stated in his evidence that the accused told the complainant to give him money and the complainant gave the money to the accused and the accused kept the same in left pocket of his shirt. Thereafter, the accused issued certificate to the complainant. Learned APP submitted that from the evidence of this witness, it is very well established that in the presence of this witness, the accused made demand of bribe from the complainant. Thereafter, as per prearranged signal, the ACB party rushed there and recovery of the currency notes smeared with anthracene powder, was made from the accused. Thereafter, the experiment of ultraviolet lamp was carried out, wherein on tips and palm of the hand of the accused, the stains of anthracene powder were found. Even on the shirt put on by the accused, wherein he kept the bribe amount, the same marks were found. In the cross-examination of this witness, he has admitted that complainant has asked him as to whether he has brought the amount or not and in turn, the complainant replied in affirmative. Thereafter, the accused and complainant went outside and the complainant gave the money to the accused. Therefore, it is clear case of demand and acceptance of money by the accused. He also read the oral evidence of complainant P.W.2 - Talsibhai Ishwarbhai Patel, wherein the witness narrated that when the complainant met the accused for necessary documents for the purpose of obtaining loan from Land Development Bank, the accused told the complainant to pay him Rs.500/- for such work. At that time the complainant told the accused that now he wanted to pay Rs.100/- and remaining Rs.400/- would be paid by him after one week. Thereafter, after more than one week was passed, the accused sent his peon to the complainant. The complainant went to the office of the accused and requested that the complainant had no money, but, he would pay the same on the next day. Thereafter, the complainant lodged complaint before the ACB Office, Himmatnagar. After completing the procedure at ACB office, the complainant, panch and ACB party proceeded to the office of accused. The accused demanded the bribe amount from the complainant and the complainant gave the money, which the accused put in the pocket of his shirt.
12. Mr. Jani, learned APP has relied upon the decision rendered in the case of S. Ganesan Vs. Rama Raghuraman & Ors.
reported in JT 2011 (1) SC 1, with regard to whether conviction under any other provisions for which charge has not been framed is sustainable in law. The accused must know the case against him and what defence he can plead. Unless Court is satisfied that there has been failure of justice due to non framing of charge and prejudice has been caused to accused, conviction under such provision of law is sustainable. He also submitted that the present appellant has never made any attempt to show that he is prejudiced. He also submitted that the omission to frame the charge under Section 13(1)(b) in terms of Section 254 of the Code of Criminal Procedure, may not result into failure of justice or prejudice the accused. He also read Section 215 of the Code of Criminal Procedure, which is as under:
"SECTION 215 CRPC:
Effect of errors:
No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
13. Learned APP Mr. Jani further stated that it cannot be considered that the appellant accused is prejudiced merely because the charge was not framed as per the charge-sheet. He also read Sections 535 and 537 of the Code of Criminal Procedure and it cannot be considered that the appellant - accused is prejudiced. He also read the oral evidence of complainant as well as panch and submitted that the demand is proved through oral evidence of panch witness as well as evidence of complainant. He also submitted that the panch witness is an independent witness and the contents of the panchnama is proved through oral version of panch witness as well as by oral evidence of trapping officer.
14. Learned APP also placed reliance on the decision in the case of State of M.P. Vs. Jiyalal reported in 2010 (1) GLH 597 and submitted that present appellant has never shown any serious failure of justice. He also submitted that even if there has been error, omission, irregularity, it is not correct to set aside conviction. He also submitted that from the oral version of the complainant and panch witness, the prosecution has proved the charge under the provisions of the Act, against the present appellant - accused. He also submitted that from the observation made by the Hon'ble Supreme Court in case that even if it were to be accepted that there had been an error, omission or irregularity in the passing of the sanction order, the learned Single Jude of the High Court has not made finding which show that a serious failure of justice had been caused to the respondent. Therefore, he submitted that the sanction order was clearly passed in discharge of routine official functions and hence, there is presumption that the same was done in a bona fide manner. He read contents of Exhibit 35 Sanction letter and evidence of P.W. 4 - Chimanbhai Bhikhabhai Parmar Exhibit 36, who has stated that he was working as Deputy District Development Officer, who scrutinized the papers and thereafter, he came to the conclusion that the accused demanded Rs.500/- and at that time, the complainant gave Rs.100/- and during the course of trap, the accused was caught while accepting remaining amount of Rs.400/-. Therefore, prima facie, it was established that the accused accepted the bribe amount from the complainant and considering such aspect, he granted permission to prosecute the case against the accused. Therefore, by documentary and oral evidence, it is clearly come out that the accused demanded bribe money and in turn he accepted the same, which was other than legal remuneration. Learned APP further submitted that considering the aforesaid evidence, it cannot be said that the sanction was not proper or without application of mind. He also submitted that looking to the contents of Exhibit 35, sanctioned letter, in which it is clearly stated that the accused accepted Rs.400/- as bribe amount in the presence of P.W.1 and therefore, the accused committed the offence punishable under Sections 7, 13(1) d 1 (2) (3) and 13(2) of the Prevention of Corruption Act. It is also stated in this document that the accused had misused his position as public servant. Therefore, there is no question regarding non committing the offence on the part of accused under the provisions of this Act.
15. Learned APP also read the charge-sheet and submitted that the learned trial Judge has not committed any error. He also submitted that the charge is not wrongly framed and it is the duty of the present appellant to establish that what prejudice is caused to him. He has also submitted that from the entire evidence of sanctioning Authority, the issue regarding Section 13(b) has not been raised at the time of trial and it is first time raised before this Court. He has read oral version of D.W. 2 - Ishwarbhai Bababhai Patel at Exhibit 46 as well as cross-examination of the witness and submitted that from the evidence of this witness, it is clearly come out that the accused collected the money other than legal remuneration. Therefore, the case of corruption is also established by the evidence of this witness. Even from the evidence of D.W.2 Ashwinbhai Mansukhbhai Patel at Exhibit 40, it is clearly established that the case is very well proved against the accused. Mr. Jani, learned APP also submitted that from the evidence of prosecution and evidence of defence, the case of corruption is very well established against the accused and therefore, the learned Judge has rightly convicted and sentenced the appellant and therefore, the interference of this Court is not required.
16. 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 of the demand and acceptance.
17. The contention is raised by learned advocate Mr. Shah regarding charge, but it is proved beyond reasonable doubt that the defence has never established that what prejudice was caused to the accused. I have perused Section 215 of the Code of Criminal Procedure. I have also perused the decisions cited and considering the same that omission to frame the charge for the said alleged offence has not resulted into failure of justice and when the defence has not made any attempt to establish that what prejudice was caused to the accused, if it is not established then defective charge cannot be considered as fatal to the prosecution case. In the instant case, it cannot be said that the accused person is prejudiced mainly because the charge was framed under Section 13(1)(d)(i)(ii) and (iii) and simpliciter charge is not framed under Section 13(1)(b) of the Prevention of Corruption Act. From the evidence of panch as well as complainant, it is established that the demand for illegal gratification was made by the appellant and during the trap in the presence of independent panch witness, it was accepted by the present appellant - accused. It is also true that a mere imperfection in the charge cannot be used to overthrow a conviction unless prejudice is shown and when it is not a defence version of the present appellant, it cannot be entertained. I have also perused the charge at Exhibit 11 and from the contents of charge, it also appears that it is specifically framed against the public servant and even if it is not framed against the present appellant, it does not necessarily mean that the omission of charge under Section 13(1)(b) is fatal. Mere omission or irregularity in charge is not invalid in absence of prejudice. Especially, when no prejudice is caused to the accused then said contention is required to be ignored. It is true that the charge should disclose the fact of the case and the amount which was taken by the accused as bribe and a person from whom he had taken such bribe but his absence does not make charge as illegal charge. But in the present case, the present appellant has never complained before the trial Court that the charge does not contain necessary particulars. I have perused the record produced before me. Therefore, the submission of the learned advocate regarding charge and in turn the conviction imposed by the learned Sessions Judge is illegal and bad in law, is not acceptable. From the provisions of Prevention of Corruption Act, so far as demand of illegal gratification is concerned, when one accepts the amount, inference which can be drawn is that said illegal gratification was accepted as a motive of demand for doing or forbearing to do the official act. From the evidence of complainant, the demand is proved beyond reasonable doubt, as the said demand was made by the accused for connection for doing the work of complainant. From the evidence of panch witness as well as complainant, it is also established that peculiar advantage was demanded and obtained from the complainant. I have perused the cross-examination of witnesses and I have also perused further statement of the appellant accused which is recorded under Section 313 of the Code of Criminal Procedure and from the explanation given by the present appellant, I found that the appellant has failed to explain his probable defence, even from the oral evidence of the defence witnesses examined by the present appellant. The defence witness also failed to prove that the said amount was not accepted by the present appellant, as a bribe amount.
18. From the above observation, I am of the opinion that the defence version of the present appellant regarding charge cannot be entertained and it cannot be considered to be fatal to the prosecution case and on the ground of defective charge, the conviction and sentence imposed by the learned Special Judge cannot be set aside. It is true that for Section 7 and 13, the law is very clear so far corruption case is concerned and from the evidence of witness is concerned, it is proved beyond reasonable doubt that the appellant has committed criminal misconduct and, therefore, it can be said that the ingredients of Sections 7 and 13 of the Act are attracted to the case of the accused. Therefore, the question regarding quashing and setting aside the conviction and sentence cannot arise.
19. 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. The learned Special Judge has rightly convicted and sentenced the appellant accused after considering the evidence produced before him. I do not find any substance and hence, the appeal is required to be dismissed.
20. 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, Sabarkantha at Himmatnagar passed in ACB Case No.1 of 1994 is hereby confirmed. Appellant is on bail and in view of dismissal of this appeal, his bail bonds are cancelled and he is directed to surrender before the Jail Authority within four weeks from the date of this order, failing which, the concerned Court shall issue non-bailable warrant against the appellant - accused to effect his arrest. R & P to be sent back to the trial Court, forthwith.
(Z.K. SAIYED,J.) ynvyas Top