Gujarat High Court
State Of Gujarat vs Vijaychandra N on 1 March, 2013
Author: Harsha Devani
Bench: Harsha Devani
STATE OF GUJARAT....Appellant(s)V/SVIJAYCHANDRA N PANDIT....Opponent(s)/Respondent(s) R/CR.A/220/1998 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 220 of 1998 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI ================================================================ 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 ? ================================================================ STATE OF GUJARAT....Appellant(s) Versus VIJAYCHANDRA N PANDIT....Opponent(s)/Respondent(s) ================================================================ Appearance: MR. H. K. PATEL, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1 MR JM BUDDHBHATTI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 01/03/2013 ORAL JUDGMENT
1) This appeal is directed against the judgment and order dated 24th December, 1997 passed by the learned Special Judge, Bhavnagar in Special (A.C.B.) Case No.12 of 1992, whereby the respondent-accused has been acquitted of the offences punishable under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act ).
2) The prosecution case is that, on 29th October, 1991, the complainant Mukeshbhai Balubhai approached the A.C.B. Inspector, Bhavnagar at 11:00 hours in the morning and lodged a complaint to the effect that his father had expired about five to six years prior thereto and his mother was alive. The complainant was the only son of his parents and he had six sisters. Hence, he wanted to construct a residential house in the name of his father at Nirmal Nagar. There were already shops in the name of the complainant s father at Nirmal Nagar, which used to fetch rent, out of which, the complainant used to eke out a livelihood. Since the complainant wanted to construct a house on the land which was running in the name of his father, he had given the work of preparing plans to Girishbhai Babariya, who had submitted the same to the Bhavnagar Municipality for sanctioning the same. The plans had been submitted about one month prior thereto, however, since the complainant was facing residential problems and was residing in rented premises, there was an urgent need to construct his house. Hence, time and again, he used to visit the Town Planning Department of the Municipality and used to frequently meet the accused Vijaybhai Pandit and other concerned officers, however, no proper reply was being given to him. Lastly, on 28th October, 1991, the complainant went and met the accused at the Town Planning Office, whereupon he had told the complainant that there was an oil mill operating in his shop, hence, he would be required to pay Rs.4,000/- by way of penalty. However, if, he was willing to give a bribe, he would be required to pay penalty of Rs.3,000/- and towards sanctioning of the plans of his new house, he would be required to pay Rs.5,000/- separately, else, the plans would not be sanctioned. In response thereto, the complainant told him that the amount was too high and was not within his reach and that it would be good if the same could be reduced. Whereupon, the accused told him that he alone was not going to keep the entire amount of Rs.5,000/- and that the amount was to be distributed amongst other persons and that a very small amount would come to his share. Pursuant thereto, the complainant told him that if the plans are sanctioned at an early date, he was willing to pay Rs.5,000/- towards his work and Rs.3,000/- by way of penalty. Pursuant thereto the accused had told him that he should come with the said amount on the next day, that is, on Tuesday 29th October, 1991 at 1:00 hours in the afternoon to his office, whereupon his plans would be sanctioned, otherwise, the plans would not be sanctioned. The complainant had asked him as to whether there would be any problem thereafter, in response to which, he had said that whatever be the nature of the plans, the same would be sanctioned and that on the one side there would be his file and on the other side he would have to count and give the amount. After so deciding, the complainant returned home. Since the complainant was compelled to pay the amount of Rs.5,000/- to the accused for the purpose of sanctioning the plans, which he did not desire to pay, he had come and lodged the complaint. The complainant has further stated that he had no other transaction with the accused and that he would furnish the amount that was required to be given by way of bribe. Pursuant to the lodging of the aforesaid complaint, the A.C.B. Officer recorded the complaint and obtained the signature of the complainant. Thereafter, he called two panchas. Upon the arrival of the panchas, they were apprised of the contents of the complaint and their signatures were obtained thereon. Thereafter, the complainant was asked to handover the amount, which was to be given by way of bribe and the usual procedure of smearing the currency notes with Anthracene powder and carrying out the ultraviolet lamp demonstration was done. After following the procedure, a preliminary panchnama came to be drawn at the A.C.B. Office at Bhavnagar, after which, the raiding party left for the office of the Bhavnagar Municipality Corporation. The Panch No.1 and the complainant went inside the Town Planning Office, Room No.17, whereas the other members of the raiding party and the Panch No.2 positioned themselves at different places outside the office. When the complainant and the Panch No.1 entered Room No.17, the accused was sitting there. Upon seeing the complainant, the accused asked him whether he was ready to act as per their discussion on the previous day, whereupon, the complainant told him that he had made arrangement as told by him. Thereafter, the accused told him that, firstly, they would get a challan prepared for a fine of Rs.3,000/- in respect of the shops and pay the amount and, thereafter, they would carry out the procedure for passing plans as agreed earlier. Thereafter, the accused inquired with regard to the Panch No.1, whereupon, the complainant told him that he had also come in connection with passing of the plans of his house and had, therefore, accompanied him. The accused inquired from the Panch No.1, who also said that he had come for passing of his plans, whereupon, the accused said that they would complete the procedure for paying the penalty on the next day and asked the complainant to pay the amount of Rs.5,000/- as decided by them, pursuant to which, the complainant took out the anthracene tainted currency notes from this left pocket and handed over the same to the accused. The accused asked him whether the amount was of Rs.5,000/-, in response to which, the complainant told him to count the same. The accused told him that it did not matter and accepted the same with his right hand and after counting the same, put the currency notes in the left pocket of his pant. Thereafter, the complainant went outside and gave the prearranged signal, whereupon, the Panch No.2 and the raiding party entered the premises. Upon seeing the raiding party, the accused appeared to be scared. Thereafter, the A.C.B. Inspector introduced himself and inquired about the name and other details of the accused. The ultraviolet lamp demonstration was carried out and it was found that except for the hands of the accused and the complainant, the hands of none of the other persons present there were tainted with anthracene. Examining the hands of the accused under the ultraviolet lamp, the fingers of both of his hands as well as his palms were found to be tainted with anthracene, other than that, there were no anthracene marks on any part of his body. Upon examining the clothes of the accused under the ultraviolet lamp, the border of the left pocket of his pant and the inner-side of the pocket were found to be tainted with anthracene. Panch No.1 was asked to take out the currency notes from the pocket of the accused and the same were compared with the numbers recorded in the preliminary panchnama and were found to tally. Thereafter, the hands of the complainant were examined under the ultraviolet lamp and all the fingers of his right hand as well as thumb and palm were found to be tainted with anthracene. Anthracene marks were also found on the left pocket of his shirt. Accordingly, a panchnama came to be prepared and, thereafter, an offence came to be registered against the accused. After obtaining due sanction, charge-sheet was submitted in the Special Court at Bhavnagar.
3) During the course of trial, the prosecution examined, in all, six witnesses, namely, the complainant-Mukeshbhai Balubhai at exhibit-11, Panch No.1-Mahendrabhai Jechandbhai at exhibit-21, Mahendrabhai Mulshankarbhai at exhibit-26, Santoshbhai Jayantibhai at exhibit-30, P.I. Shri Abubha Tigubha Gohil at exhibit-45. The prosecution also produced certain documentary evidence on record. The defence also examined witness-A.C.B. Inspector-Mahipatrai Manishankar at exhibit-48. Upon conclusion of the trial, the trial court, after duly appreciating the evidence on record, found that the prosecution has not established the charges levelled against the accused beyond reasonable doubt and acquitted him.
4) Vehemently assailing the impugned judgment and order, Mr. H. K. Patel, learned Additional Public Prosecutor submitted that the prosecution, through the deposition of the complainant, had duly established the prior demand for illegal gratification made by the accused for the purpose of sanctioning the plans submitted by the complainant. The subsequent demand and acceptance had been proved through the depositions of the complainant and the Panch No.1 and recovery of the amount accepted by way of illegal gratification was proved through the testimonies of the complainant, Panch No.1 as well as the Investigating Officer. It was submitted that the incident in question had taken place in the year 1991, whereas the depositions of the witnesses were recorded some time in the year 1997, after a period of more than seven years. Under the circumstances, there are bound to be some minor discrepancies in the depositions of the witnesses. The learned Judge was, therefore, not justified in giving undue weightage to such minor discrepancies and holding that the prosecution had not established the charges levelled against the accused. It was further submitted that the learned Judge has proceeded on a presumption by assuming that the entire exercise was carried out at the behest of a Corporator despite the fact that no evidence worth the name had been brought on record to indicate the involvement of such corporator. Referring to the impugned judgment, it was pointed out that the learned Judge has found that there are inconsistencies in the evidence as regards the time when the complainant went to the Bank and returned with the amount which was to be used for the purpose of the trap. It was pointed out that it is possible to reconcile the inconsistencies referred to by the learned Judge. Referring to the record, it was pointed out that, according to the complainant, he had withdrawn an amount of Rs.8,000/- from the Bank at 11:05 hours in the morning on 29th October, 1991. Prior thereto, he must have lodged a complaint with the A.C.B. Office and, thereafter, withdrawn the amount and reached the A.C.B. Office after fifteen to twenty minutes, namely, between 11:20 to 11:25 hours. Referring to the deposition of Panch No.1, it was pointed out that as per the say of the said witness, they had reached the A.C.B. Office at around 11:15 hours. It was pointed out that the evidence on record shows that the complaint was recorded by the Investigating Officer and was signed by the complainant and subsequently, upon the arrival of the panchas, the same was read over to them and they had affixed their signatures thereon subsequently. Thus, at the time when the panchas came to the office, the complainant had possibly already returned after withdrawing the amount from the Bank. It was submitted that having regard to the fact that the evidence had been recorded after a very long period, such minor inconsistencies ought not to have been taken into consideration, more so, in the light of the fact that the prosecution has led overwhelming evidence in support of its case and has duly proved the demand, acceptance and recovery of illegal gratification by the accused.
5) Next it was urged that it is an admitted position that the amount of Rs.5,000/- was recovered from the pocket of the accused. It would not have been possible for the accused to accept the amount and put the same in his pocket without using his thumb. Referring to the panchnama of the trap proceedings, it was pointed out that it is recorded therein that all the fingers of the accused were tainted with anthracene. It was submitted that reference to all fingers would also include reference to the thumb and, as such, the learned Judge was not justified in disbelieving the authenticity of the trap proceedings on the ground that in the panchnama, it was not recorded that the thumb of the accused was tainted with anthracene. It was submitted that from the facts emerging from the record, it is evident that the reference to all the fingers would also include reference to the thumb.
6) It was submitted that the prosecution has duly established that the accused was responsible for moving the file for sanctioning the plans; that he had demanded the amount of Rs.5,000/- for the purpose of sanctioning such plans in addition to Rs.3,000/- by way of fine for regularizing the shop; that the accused had demanded such amount from the complainant in the presence of the Panch No.1; and that such amount had been recovered by the members of the anti- corruption bureau during the course of the trap. Under the circumstances, the prosecution has duly established the charges levelled against the accused and that the learned Judge was not justified in taking into consideration irrelevant factors like the involvement of the corporator or the presence of the officers from the other offices during the course of the raid. It was, accordingly, urged that the judgment and order of acquittal deserves to be reversed and the accused is required to be convicted of the charges levelled against him.
7) Opposing the appeal, Mr. J. M. Buddhbhatti, learned advocate for the respondent drew the attention of the court to the findings recorded by the learned Judge to submit that the learned Judge has given cogent, convincing and sufficient reasons for the purpose of holding that the prosecution has not established the charges levelled against the accused.
It was argued that the inconsistencies with regard to time are not minor and that the same are glaring and go to the root of the matter and demolish the foundation of the prosecution case. It was further pointed out that the evidence on record shows that insofar as the accused is concerned, he had already made the necessary noting on the file on 24th October, 1991 and had sent the same to the higher officer. This fact has been duly established through the testimonies of prosecution witness No.3-Mahendrabhai Mulshankarbhai Trivedi and prosecution witness No.4-Santoshbhai Jentibhai Chandarana, both of whom have deposed that the file had already been forwarded to the higher officer and that the accused did not have any role to play in respect of the same thereafter. It was submitted that thus, the basic case of the prosecution that the accused had demanded illegal gratification for the purpose of sanctioning the plans on 28th October, 1991 when the file had already been forwarded by him on 24th October, 1991, falsifies the prosecution case. Referring to the statement of the accused recorded under section 313 of the Code of Criminal Procedure, it was pointed out that the defence of the accused was that he had not demanded any amount by way of illegal gratification and that prior to the lodging of the complaint, he had already forwarded the file on 24th October, 1991 along with his opinion, after which, he was not required to undertake any other procedure in respect thereof. On the very same day, that is, on 24th October, 1991, the file had been transferred to another department. It was further the defence of the accused that Kantaben was earlier a corporator, who had pressurized the accused to undertake work which was not legally permissible and, hence, he has refused to accede to her request. Therefore, keeping vengeance, she had used the complainant, who was her confidant and had got a false complaint lodged against him. That in 1983, he (the accused) had acted as a panch in a trap case, hence, all the officers of the A.C.B. Office were well acquainted with him, therefore, officers from outside had been called and a false trap had been arranged. It was submitted that having regard to the facts which have come on record, it is apparent that the entire trap had been arranged with a view to falsely implicate the accused and, as such, the learned Judge was justified in holding that the prosecution has not established the charges levelled against the accused. It was submitted that the appeal, being devoid of merit, deserves to be dismissed.
8) From the evidence, which has come on record, the following notable aspects emerge. It is the case of the complainant that on 29th October, 1991 in the afternoon, he had met the accused, who had demanded Rs.5,000/- by way of illegal gratification for the purpose of sanctioning his plans and Rs.3,000/- by way of penalty for commercial utilization of the shop premises. Initially, in his deposition, the complainant has stated that the amount of Rs.5,000/- was provided to him by the A.C.B. Office. However, subsequently, during the course of his examination-in-chief, he has changed his version and has stated that he had an account with the Bhavnagar Nagrik Co-operative Bank, Vadva Branch and that on 29th October, 1991 at 11:05 hours in the morning, he had withdrawn Rs.8,000/- from the said Bank and had gone straight to the A.C.B. Office. He had handed over Rs.5,000/-at the A.C.B. Office and retained Rs.3,000/- in his pocket. In his cross-examination by the learned counsel for the accused, it is revealed that on 29th October, 1991, he had gone to the A.C.B. Office twice. When he went there, he did not have the cheque book with him. It is further revealed that after he received the amount from the Bank, within 15 to 20 minutes thereafter, he had reached the A.C.B. Office. According to him, the Bank opens at 11 O clock in the morning and that he had to stay at the Bank for about 10 to 15 minutes for the purpose of withdrawing the amount. He has deposed that when he went to lodge the complaint, he had gone in a rickshaw to the A.C.B. Office along with his friend. From the A.C.B. Office, they had gone to the Bank on a bicycle. When they returned to the A.C.B. Office, the panchas had already arrived. When the panchas came to the A.C.B. Office, he was not present at the office. In this regard, the Panch No.1 has deposed that when they went to the A.C.B. Office on 29th October, 1991, the complainant was present there and they were introduced to the A.C.B. staff as well as to the complainant. The said witness has further deposed that they reached the A.C.B. Office at about 11:15 hours and that the preliminary panchnama was prepared from 12:30 to 12:45. In his cross-examination, it is revealed that when they reached the A.C.B. Office, the complainant was present and that from the time they reached the A.C.B. Office till the time they left the A.C.B. Office, the complainant was present throughout. In this regard, it may be noted that the complaint (exhibit-12) bears the date 29th October, 1991 and time 11:00 hours. Thus, the documentary evidence on record discloses that the complaint was registered at 11:00 hours. From the depositions of the panch witnesses, it is apparent that they had reached the A.C.B. Office at 11:15 hours, at which point of time, the complainant was present there. The case of the complainant is that after lodging the complaint, he had gone to the Bank and withdrawn the amount of Rs.8,000/-. The facts on record clearly falsify the case of the complainant that he had initially lodged the complaint and thereafter gone to the Bank and then come back to the A.C.B. Office, after which, the trap proceedings had been conducted. Having regard to the fact that the complaint was registered at 11:00 hours and the panchas had reached the A.C.B. Office at 11:15, at which point of time, the complainant was already present, it was not possible for the complainant to have within that period gone to the Bank, withdrawn the amount and come back. Thus, the say of the complainant that he had withdrawn the amount from the Bank after lodging the complaint is falsified by the documentary evidence which has been produced on record by the prosecution itself.
9) It may also be pertinent to note that prosecution witness No.3-Mahendrabhai Mulshankarbhai Trivedi, a junior clerk working in the Town Planning Department of the Municipality has deposed that at the relevant time, the accused was a supervisor in their branch. By an order dated 18th October, 1991, the files relating to Kumbharvada ward and Chitra Kulsar ward had been ordered to be handed over to the office of the Deputy Town Planner. The said order was received on 21st October, 1991, and on 23rd October, 1991, the files of that ward were handed over. On 23rd October, 1991, a list of files was prepared, which contained 139 files. The work of handing over the files continued from 23rd October, 1991 to 24th October, 1991. On 24th October, 1991, the accused had handed over four other files to him, which related to Kumbharwada area and included the file pertaining to the complainant-Mukeshbhai Balubhai. All the four files were given different serial numbers and were handed over to Smt. Kiranben, senior clerk of the officer of the Deputy Town Planner. Thus, in all, 143 files were handed over to Kiranben. In his cross-examination, it is revealed that on 24th October, 1991, the accused had voluntarily handed over the four files to him. Similarly, panch witness No.4-Santoshbhai Jentibhai Chandarana, who at the relevant time was working as a Town Development Officer, has deposed that in view of the office transfer order dated 18th October, 1991, the files had been transferred from his office on 24th October, 1991. The accused was working as a supervisor in his office and the file for sanctioning the plans of the complainant was submitted to his office. He has further deposed that there were certain deficiencies in the file submitted by the complainant, hence, the same were ordered to be removed and the file was handed over to the ward-clerk for issuing notice. He has testified that at different stages, different officers from the said office had given their opinions and lastly on 22nd October, 1991, he had signed thereon and called for removal of certain deficiencies. On 24th October, 1991, the files had been sent to the new department. Out of the notings made in the file, the accused Vijaybhai had made a noting on 18th October, 1991 and opined that the plans be sanctioned. Thereafter, the file had moved to one Mr. Dodiya and on 22nd October, 1991, he had made an endorsement thereon, after which, on 24th October, 1991, the complainant s engineer had given his opinion thereon. In his cross-examination, it is revealed that considering the work load of the accused, it cannot be said that he had wrongly retained the file for a long period.
10) Thus, from the evidence, which has come on record, it is apparent that on 24th October, 1991, the file pertaining to sanctioning of the plans of the complainant was already forwarded to another office and the accused no longer had any hold over the same and was not required to take any action thereon. Under the circumstances, the case of the complainant that on 28th October, 1991, that is, four days after the file was forwarded to another office, the accused demanded Rs.5,000/- by way of illegal gratification for sanctioning the file, is evidently falsified. Moreover, there are various other glaring instances which have come on record, which the prosecution is not in a position to explain, namely, the presence of Shri Bhuriya, Assistant Director, Rajkot A.C.B. Office and Mr. Goswami from the A.C.B. Office at Junagadh during the course of the trap proceedings. Both these high ranking officers were present at the A.C.B. Office, Bhavnagar in the morning when the trap was laid and took an active part in the trap proceedings. It is surprising as to how officers from different districts were present at the A.C.B. Office at the time of the raid and were also permitted to take part in the trap proceedings. Thus, there is some force in the submission of the respondent that he was sought to be falsely implicated and that because he was already acquainted with the A.C.B. Staff at Bhavnagar on account of his having acted as a panch in a trap proceedings, the officers from other districts had been called.
11) A perusal of the impugned judgment and order reveals that the learned Judge has adverted to the entire evidence which has been led by the prosecution and has discussed the same in detail and has given cogent, convincing and sufficient reasons in support of the findings recorded by him. For the reasons recorded hereinabove, this court is in complete agreement with the findings recorded by the learned Judge and finds no reason to take a different view. Apart from the inconsistencies discussed hereinabove, there are various other inconsistencies as regards the manner and the time when the amount in question was handed over to the accused, inasmuch, as different versions are coming on record through the depositions of the complainant and the panch witnesses.
12) Moreover, having regard to the evidence which has come on record, evidently the view taken by the learned Judge is a plausible view. It is not the case of the prosecution that the learned Judge has taken into consideration any irrelevant material or that any relevant material has been ignored. Under the circumstances, in the absence of any perversity in the findings recorded by the learned Judge, there is no warrant for intervention by this court. The appeal, therefore, fails and is, accordingly, dismissed.
(HARSHA DEVANI, J.) Vahid Page 18 of 18