Gujarat High Court
Abdulmunaf vs State on 28 April, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.A/950/1998 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 950 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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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 ?
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ABDULMUNAF
GULAMBHAI CHAUHAN @ MUNNABHAI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance :
MR
MJ BUDDHBHATTI for
Appellant(s) : 1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 28/04/2011
CAV
JUDGMENT
By way of present appeal filed under Section 374 of the Code of Criminal Procedure, 1973, the appellant-original accused No.1 has inter alia prayed to quash and set aside the judgment and order of conviction and sentence dated 15th October, 1998 passed by the learned Special Judge, Surat, in Special Case No.21 of 1995 whereby the learned Special Judge was pleased to convict the appellant for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment for a period of two years, and also imposed fine of Rs.2,000/-, and in default of payment of fine; sentenced him to undergo simple imprisonment for a further period of two months. The appellant was also convicted for the offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and was sentenced to undergo rigorous imprisonment for a period of four years, and also imposed fine of Rs.20,000/-, and in default of payment of fine; sentenced to undergo simple imprisonment for a further period of six months.
As per the case of the prosecution, the appellant was serving as Talati-cum-Mantri of Naren Gram Panchayat, Taluka-Mandvi, District-Surat. The complainant had filed a Suit against his mother and therefore, wanted copies of Form No.7/12 of Survey No.339 from 1945 to 1990. The complainant had applied for the same before the Mamlatdar. The said application of the complainant was forwarded by the Mamlatdar to the present appellant on 16th September, 1994 and ordered the appellant to do the needful and also ordered to make report to the said effect. It is the case of the prosecution that therefore, the complainant on 19th September, 1994 about 10.00 hours, visited office of Areth Gram Panchayat and gave his application to the present appellant. The appellant thrown the said application of the complainant and demanded Rs.450/- from the complainant as illegal gratification from the complainant. Thereafter, again on 21st September, 1994 the complainant visited the office of Gram Panchayat, Areth and gave application to obtain copies of Form No.7/12 of Survey No.339. Therefore, the appellant told the complainant that come on 26th September, 1994 at the office of Areth Gram Panchayat between 10.00 hours to 11.00 hours with Rs.450/- and thereafter only, he will give copies of Form No.7/12.
Thereafter, as the complainant was not willing to pay the said amount, he approached office of ACB at Surat and lodged his complaint. Thereafter, services of two panchas were sought. The facts of the case were narrated to them and thereafter experiment was made on the currency notes with the help of anthracene powder. The basic ingredients of the anthracene powder were made understood to the panchas as well as the complainant. After performing the experiment, preliminary part of the panchnama was drawn. The currency notes were smeared with anthracene powder, i.e. nine notes of the denomination of Rs.50/- each. Thereafter, the complainant, panchas and members of the raiding party proceeded to trap the accused person to village Areth. When the reached to Areth, it revealed that the appellant had left for Mandvi. Therefore, the raiding party proceeded to Mandvi. There the appellant was approached by the complainant in presence of panch No.1, the appellant demanded the amount of Rs.450/- from the complainant and accepted the said amount from the complainant in presence of panch No.1. Thereafter, as agreed, the appellant gave signal to the members of raiding party and raid was carried out. Thereafter, on making necessary inquiry, trap amount was received from the plastic bag of the appellant. Thereafter, experiment of UV Lamp was carried out. The light blue fluorescent marks were found on the currency notes, on the hand of the appellant-accused and on the hand of the complainant. The number of the currency notes recovered from the plastic bag of the appellant got tallied with the numbers noted down in the first part of panchnama. Thereafter, the currency notes and plastic bag were seized under the panchnama. Thereafter, the second part of panchnama was drawn.
Thereafter, the Investigating Officer lodged FIR, registered the offence and recorded statements of various persons. Thereafter, after obtaining sanction, charge-sheet came to be filed against the appellants-accused before the learned Special Judge, Surat.
Thereafter, charge at Exhibit 4 was framed against the appellant for the offences punishable under Section 7, 13(1)(d)(i), (ii) and (iii) as well as under Section 13(2) of the Prevention of Corruption Act, 1988. The appellant-accused pleaded not guilty and claimed to be tried.
In order to bring the home charges levelled against the appellant-accused, the prosecution has examined three witnesses and also produced four documentary evidence in support of its case.
Thereafter, after filing closing pursis by the prosecution, further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded in which accused has denied the case of the prosecution and submitted that he has never demanded any amount from the complainant. He has also submitted that a false case is filed against him. The appellant has also submitted in his further statement that there was hot exchange of words and the complainant threatened the appellant of dire consequences. The case of the appellant is that copies were already supplied to the complainant and to prove the case, the appellant has examined five defence witnesses.
After considering the oral as well as documentary evidence and after hearing the parties, the learned Special Judge vide impugned judgment and order dated 15th October, 1998 held the appellant-original accused guilty to the charges levelled against him as mentioned above.
Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Surat, the appellant has preferred the present appeal.
Heard Mr.M.J. Budhbhatti, leaned counsel for the appellant and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent-State.
Mr.Bhdubhatti, learned counsel appearing for the appellant has contended that the judgment and order passed by the learned trial Judge is illegal, invalid and improper. He has also contended that the learned trial Judge has not considered the case of the defence and evidence and material produced on record. He has read the charge at Exhibit 4 and contended that the complainant was an accomplice and therefore, his evidence was required to be corroborated by evidence of independent witnesses on material evidence like first demand, agreement, fixing date, second demand, acceptance and recovery. He has contended that the prosecution evidence is totally absent on these material aspects. Mr.Budhbhatt has further contended that the trap was arranged trap. Originally the complainant shall have to meet the appellant at village Areth and not at Mandvi. The members of raiding party were in fact chasing the appellant wherever he had been. This shows the conduct of the complainant. The learned Special Judge has failed to consider that this is case a of plantation. He, therefore, contended that in absence of any independent witnesses, case of the complainant cannot be considered. He has contended that the appellant has proved his probable defence through the evidence of defence witnesses. The learned Special Judge has not considered the probable defence of the appellant. He has also contended that panchas are selected panchas. Under the pressure, they were supported the case of the prosecution. He has further read the cross-examination of the complainant and contended that the plastic bag of the appellant was lying on the table and in absence of the appellant, the trap amount was thrusted into the bag. Mr.Budhbhatti has read the oral evidence of PW No.2 and contended that he is police witness and under pressure of Trapping Officer and due to fear, he has supported the case of the prosecution. He, therefore, contended that the oral evidence of PW No.2 is not trustworthy, reliable and acceptable. He has also contended that panchnama at Exhibit 32 is not proved beyond reasonable doubt. He has read the oral evidence of defence witnesses, who are examined by the present appellant. He has read the oral evidence of DW No.1 at Exhibit 29 and contended that he is an eye-witness of the case. He was present at the event of trap, yet, due to bias investigation, he was not considered as an eye-witness. He has contended that his statement was forcefully recorded. He has also read the evidence of DW Nos.2, 3, 4 and 5 and contended that appellant has proved the probable defence, but the learned Special Judge has discarded the evidence of defence witnesses. He has contended that even investigation was biased and the Trapping Officer as well as Investigating Officer are biased and they have not conducted the investigation in a proper manner. He has also contended that when the appellant has successfully proved probable defence, benefit of doubt is required to be given to the appellant. Mr.Budhbhatti has further contended that so far as offence under Section 13(2) is concerned, punishment imposed upon the appellant is very harsh. When the prosecution has failed to prove the story of demand and acceptance beyond reasonable doubt, benefit of doubt ought to have been given to the appellant. He has contended that four years imprisonment under Section 13(2) is very harsh in nature. He, therefore, contended that present appellant is, therefore, required to be acquitted from the charges levelled against him.
Mr.Budhbhatti has also contended that the prosecution has failed to establish the demand and acceptance beyond reasonable doubt. He has further contended that copies were already given to the complainant and therefore, there arises no question of demanding bribe amount. He has also contended that the present appellant is innocent and has been falsely involved in the present case. He, therefore, contended that the judgment and order of conviction and sentence passed by the learned Special Judge is required to be quashed and set aside and the appellant is required to be acquitted from the charges levelled against him.
As against this, Mr.Jani, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Special Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He has contended that looking to the overall facts and circumstances of the case, circumstantial evidence and evidence produced on record, the learned Special Judge has passed absolutely just, proper and correct and is not required to be interfered with. He has read the oral evidence of PW No.1-complainant and contended that the first demand made by the appellant is proved through the oral evidence of this witness. He has also contended that when first time demand was made by the appellant, as the complainant was not having money, he had not given the money to the appellant. When again on 21st September, 1994 the complainant visited the office of the appellant, again the appellant demanded the bribe amount from the complainant and told him to come on 26th September, 1994 with money to collect the copies which the complainant was required. Thus, the first demand is proved through oral evidence of PW No.1-complainant. Mr.Jani has contended that on the day of trap, the complainant along with members of raiding party reached to the office of the appellant round about 11.00 hours and by the time, the appellant went to the office of Mamlatdar at Mandvi. Mr.Jani has contended that PW No.1 in his oral evidence deposed that the appellant called him between 10.00 hours and 11.00 hours, but due to unavoidable circumstances the complainant could not reach to the office of the appellant on the time given by the appellant and went towards Mandvi for his work. Therefore, on the say of Peon that the appellant had left for Mandvi, the complainant along with members of raiding party followed the appellant at Mandvi. It is the case of the complainant that he met the appellant at Mandvi and in presence of panch No.1-PW No.2, the appellant demanded the bribe amount. Mr.Jani has contended that PW No.2 has deposed the said thing in his oral evidence. Thus, question regarding demand is proved through the oral evidence of PW No.2 also. He has further contended that the PW No.2 is an independent witness. Thus, sufficient corroboration is proved through the oral evidence of PW No.2-independent witness. Thus, case of demand and acceptance is proved beyond reasonable doubt. He has also contended that if the say of the learned counsel for the appellant that money was thrusted in the bag of the appellant in his absence, is believed, then anthracene powder would not have been found from the finger tips of the appellant. It is very clear that anthracene powder was found from the finger tips of the appellant. Thus, that defence of the appellant cannot be believed. Mr.Jani has read the oral evidence of PW No.3-Trapping Officer at Exhibit 20 and contended that trap was carried out by him with utmost care and caution. It was not planned trap. The case of the appellant that the trap was biased is absolutely wrong. The defence has failed to prove that the trap was biased. He has contended that when sufficient documents are produced on record to prove the case and even through oral evidence of witnesses, demand, acceptance and recovery of trap amount is proved beyond reasonable doubt, then it is the duty of the appellant to rebut the presumption under Section 20 of the Act. He has also contended that the appellant has failed to explain regarding presence of anthracene powder in his further statement recorded under Section 313 of the Code of Criminal Procedure. Mr.Jani has also read the oral evidence of DW No.1 and contended that he was not an eye-witness. He was not present when the trap was carried out. He has also contended that the appellant has failed to rebut the presumption through the evidence of defence witnesses. He has contended that when the demand, acceptance and recovery is proved beyond reasonable doubt, the judgment and order of conviction passed by the learned Special Judge, Surat is required to be confirmed and appeal is required to be dismissed.
I have heard the learned counsel for the parties and perused the papers produced before me. I have also perused the submissions advanced by the learned counsel for the parties. It appears from the oral evidence of PW No.1-complainant that demand prior to the trap is proved beyond reasonable doubt. It appears that the appellant had demanded the money at the second event in presence of PW No.2-panch No.1. Thus, the version of complaint as well as oral evidence of complainant is corroborated by the evidence of PW No.2, who is an independent witness. The appellant had accepted the said amount in presence of PW No.2 and put it in plastic bag he had with him. The evidence of PW No.2 is in corroboration with the evidence of PW No.1 with regard to demand, acceptance and recovery of trap amount. When experiment of UV Lamp was carried out, anthracene powder was found on the finger tips of the appellant as well as inside the plastic bag. The appellant has failed to explain presence of anthracene powder in further statement recorded under Section 313 of the Code of Criminal Procedure. I have also perused provision of Section 20 of the Prevention of Corruption Act, 1988. As per the said provision, it is the duty of the appellant to rebut the presumption and presence of anthracene powder which is found on the finger tips as well as inside the bag. It appears that the appellant has failed to rebut the presumption. The contention taken by the appellant that PW No.2-panch No.1 is selected witness and under pressure and fear, he has supported the case of the prosecution, is baseless and not acceptable. No doubt defence has tried to establish that investigation is biased and it is fatal to the case of the appellant, but when I have perused oral evidence of PW Nos.1 and 2, I have found that each link of the chain of events is established. I have also perused the oral evidence of PW No.3-Trapping Officer and looking to the evidence of PW No.3, he is fair enough and proper care is taken by him with respect to trap carried out by him. Looking to the oral evidence of PW Nos.1 and 2 and also the documentary evidence produced on record, I have not found anything to consider the probable defence of the appellant. So far as acceptance is concerned, it is proved through oral evidence of PW Nos.1, 2 and 3 and so far as recovery is concerned, it is proved that in connection of the demand made by the present appellant, the amount was accepted by the appellant. Thus, I am of the opinion that in light of Section 7 of the Prevention of Corruption Act, 1988 demand is proved. I have also perused further statement of the appellant recorded under Section 313 of the Code of Criminal Procedure. The appellant has failed to rebut the said evidence of the prosecution witnesses.
I have also perused defence witnesses. It appears from the evidence of these witnesses that they are unable to prove defence version. Even from the cross-examination of these witnesses, I have not found any substance to consider the defence version. The defence witnesses have failed to establish the defence version. The probable defence taken by the defence witnesses is not proved beyond reasonable doubt by the defence witnesses.
So far as offence under Section 13(2) is concerned, I am of the opinion that it is harsh in nature. The present appeal is of the year 1998. Thus, after a long period of 13 years, present appeal is finally heard and decided by this Court. I have also perused age of the appellant and looking to the age of the appellant, I am of the opinion that conviction imposed upon the appellant under Section 13(2) is very harsh and under such circumstances, if some lenient view is taken, it would meet with ends of justice. Therefore, in my opinion, instead of four years, two years punishment under Section 13(2) of the Prevention of Corruption Act, 1988 is sufficient. So far as order qua fine under Section 13(2) of the Act is concerned, I am of the opinion that it is proper and does not require any interference.
As per above observation, I found that demand, acceptance and recovery of trap amount of illegal gratification made by the appellant-accused is proved beyond reasonable doubt through the oral evidence of complainant and panch witness as well as through the documentary evidence produced on record. As per provision of Section 20 of the Prevention of Corruption Act, presumption is required to be drawn against the present appellant and when the appellant has failed to rebut the said presumption, no defence can be considered, which is tried to establish by the learned counsel for the appellant.
Hence, in view of the foregoing reasons, present appeal is partly allowed. The judgment and order of conviction dated 15th October, 1998 passed by the learned Special Judge, Surat, in Special Case No.21 of 1995, is hereby confirmed; however, the judgment and order of sentence dated 15th October, 1998 passed by the learned Special Judge, Surat, in Special Case No.21 of 1995 is concerned, conviction under Section 13(2) of the Prevention of Corruption Act, 1988 is hereby reduced and modified to the extent that now the appellant shall have to undergo rigorous imprisonment for a period of two years instead of four years. The rest of the judgment and order dated 15th October, 1998 shall remain unaltered. The appellant is on bail. This bail bond shall stand cancelled. The appellant-accused is, therefore, directed to surrender himself before the Jail Authority within a period of four weeks from today, failing which the trial Court concerned is directed to issue Non-bailable warrant against the appellant-accused to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z. K. Saiyed, J) Anup Top