Gujarat High Court
Bhikhabhai vs State on 19 April, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.A/436/1998 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 436 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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BHIKHABHAI
BECHARBHAI MACHHI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance :
MR
KJ SHETHNA for Appellant(s) : 1,
MR RC KODEKAR ADDITIONALPUBLIC
PROSECUTOR for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 19/04/2011
CAV
JUDGMENT
1. The appellant was put on trial for the commission of the offences under Sections 7 and Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred 'the Act'). The learned Additional Sessions Judge, Vadodara, in Special Case No.1 of 1996 passed judgment and order of conviction and sentence dated 6.5.1998, whereby the learned Sessions 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 2 years and to pay fine of Rs.500/-, i/d, to further undergo rigorous imprisonment for 3 months. 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 three months for the offence punishable under Sections 13(2) of the Prevention of Corruption Act. All the sentences shall run concurrently.
2. According to the prosecution, at the relevant time, the appellant - accused was serving as the Maintenance Surveyor in the Land Record and Consolidation Office of Savli Taluka, Dist. Vadodara. The father of complainant purchased residential premises on 8.11.1976 and thereafter, there was no change in the record. The complainant for getting Sanad, had paid Rs.70/- towards legal fees. In the map, which was received by the complainant, some portion of the residential premises of the complainant was not shown. On 6.6.1995, the accused had gone to the Panchayat Office, where the complainant met him and drew his attention to the infirmity in the map. The accused along with his peon went to the premises with a view to see the same and the accused told the complainant for effecting the changes, he asked for Rs.1100/- towards illegal gratification and ultimately, the complainant agreed to give Rs.800/- instead of Rs.1100/-. The appellant did not want to give the said amount and therefore, approached the ACB Office, Vadodara and lodged his complaint against the accused. As per the instructions, the complainant went to the ACB Office with Rs.800/- in morning on 8.6.1995. Thereafter, panchas were called, necessary instruction was given and the first part of panchnama was drawn.Thereafter, the raiding party left the ACB Office at 1:30 p.m., reached Savli and the complainant and P.W.2 went to the office of the accused. The accused prepared rough sketch and then he took the complainant outside the office and demanded the money. The complainant gave the bribe amount and accused accepted the same. On prearranged single was given and thereafter, raiding party rushed to the place and raid was carried out. Thereafter, the second part of trap panchnama was drawn and the sanction under Section 19 of the Act to prosecute the accused was obtained.
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, Govindbhai Harjivandsa Darji, complainant at Exhibit 9, whereas PW-2, Madhukar Shankarrav Dhore, panch witness at Exhibit 15, PW-3, Himmatrav Vamanrav Nikamal, Police Head Constable at Exhibit 21, P.W.4 - Anilbhai Narayanbhai Trivedi, Exhibit 22, P.W. 5- G.J. Sindhi, Investigating Officer at Exhibit 24. Thereafter, the documentary evidence viz. complaint at Exhibit 25, trap panchnama at Exhibit 16, receipt of muddamal at Exhibit 17, appointment order of the accused at Savli, Exhibit 18, copy of the first page of service book of the accused at Exhibit 19, Pay-slip of the accused at Exhibit 20, sale deed of the house of complainant at Exhibit 10, Sand of the house of the complainant at Exhibit 11, receipt of fees paid towards sanad at Exhibit 12, sanction at Exhibit 23. 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.
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 it considered the defence version and rejected the same. Accordingly the appellant was convicted and sentenced as stated above by the trial court
5. Learned senior advocate Mr. K.J. Shethna appearing on behalf of the appellant submitted that the judgment and order is bad in law and against weigh of evidence. Even charge and examination of the accused are not in conformity with the provisions of the Code. He further submitted that genesis of the offences under Section 7 of the Act is that the accused should receive gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing 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, within the Government Central or State or Parliament with the body referred to therein. Therefore, he submitted that none of ingredients of Section 7 of the Act, can be said to have been thoroughly satisfied in the present case. He further submitted that as per Section 13(1)(d) of the Act, if the accused (1) by corrupt or illegal means obtains for himself of for any other person any valuable thing or advantage or (ii) by abusing his position as a public servant obtained for himself or for any other person any valuable thing or pecuniary advantages or (iii) while holding office as public servant, obtains for any person any valuable thing or any pecuniary advantage with any public interest, then he can be said to have committed the offence of criminal misconduct under Section 13(2) can be said to have thoroughly satisfied in the instant case. He further submitted that in the instant case, it was not within the purview, within the jurisdiction of the accused to furnish a valid sanad with a legal sketch to the complainant or his father and in the judgment of the trial Court, the same defence of the accused has been referred and learned Sessions Judge has not adequately answered the same. He further submitted that in the instant case, the anthracene powder was applied to 8 currency notes each of Rs.100/- denomination. A Circular from the Govt. of Gujarat was produced at Exhibit 28 that Phenolphthalein powder should be used, but here in this case, the trapping officer used anthracene powder and he did not use Phenolphthalein powder. In the case, the Peon, who is a star witness, was not examined and, therefore, it cannot be said that the prosecution has proved its case against the appellant - accused. Mr. Shethna, learned counsel stated that the story of the complainant is also not believable that the accused accepted money towards bribe in presence of panch No.2. Even the accused regretted his inability to do anything in the matter as the Appeal was the remedy and, therefore, the appellant was falsely implicated in the case. He also submitted that P.W.3 Himatrao Nikamal had done the experiment but his evidence was not conclusive. Even in para 12 of the evidence of Investigating Officer P.W. 5, he stated that further statement of the accused was recorded on 24.7.1995, but he had not kept it in the papers.
6. Mr. Shethna, learned counsel has read the charge at Exhibit 5 and submitted that the allegations levelled in the charge have not proved against the accused. He has drawn attention to the oral evidence of P.W.1 - complainant - Govindbhai Harjivandas Darji at Exhibit 9 and submitted from the evidence of this witness, the contents of first demand from the complaint at Exhibit 25 is not proved and there are several contradictions between the complaint at Exhibit 25 and oral evidence of the complainant at Exhibit 9. The P.W.1 also admitted in his evidence that the panch No.2 was not present. Leaned advocate also submitted that from the defence version, it is very well established on record that the prosecution has failed to prove the case against the accused. The experiment of ultra violet lamp was also doubtful as the same was carried out in the presence of complainant because the complainant admitted in his cross-examination about the experiment in his presence. Mr. Shethna, learned advocate read the evidence of P.W.2 Madhukar Shankarrav at Exhibit 15, serving in office of the Social Welfare and submitted that he is a selected panch and from the evidence of this panch witness, the contents of panchnama at Exhibit 16 is not proved. He has read the cross-examination of P.W.2, and submitted that the trap amount was given forcefully to the present appellant by the complainant and immediately thereafter, the trap was carried out. He has also submitted that two police personnel from the member of raiding party are known to panch witness and oral evidence of panch witness is not reliable and trustworthy and so their evidence cannot be considered in favour of the prosecution. He has read oral evidence of P.W.3 Himmatrao Exhibit 21 and submitted that from the evidence of this witness also, the demand and acceptance of bribe amount is not proved and, therefore, the evidence of this witness is not reliable and trustworthy. He is also interested witness. Learned advocate Mr. Shethna read the oral evidence of P.W.5 at Exhibit 24, trapping officer and submitted that this evidence of trapping officer, who is also interested witness, therefore, his evidence creates doubt. He has read evidence of P.W.4 Anilbhai Trivedi, serving in the Land Records as Superintendent, and submitted that the sanction to prosecute against the accused was given without application of mind and it was against the provisions of law and covering letter was not produced on record. Therefore, the evidence of the this witness is also not reliable.
7. Learned advocate Mr. Shethna also submitted that the judgment and order passed by the learned Sessions Judge is very harsh in nature and the learned Special Judge has not considered the defence made on behalf of the present appellant. In view of the above submission, he submitted that the judgment and order of conviction and sentence is required to be quashed and set aside by allowing this appeal.
8. Learned advocate Mr. Shethna relied upon the decision in the case of M.C. Mehta (Taj Corridor Scam) Vs. Union of India and others reported in (2007) 1 Supreme Court Cases 110 and submitted that in the instant case, the appellant was not delegated with the work, therefore, question of demand of bribe money cannot arise and in turn, the conviction is totally bad in law. He also relied upon the decision in case of State of A.P. Vs. C. Uma Maheswara Rao and Another reported in (2004) 4 Supreme Court Cases 399 and submitted that the presumption cannot be drawn and when it is established that present appellant accused was not the authority in tender matter, so the charge cannot be framed against him and he cannot be convicted. He also relied upon judgment in the case of B. Noha Vs. State of Kerala and Another reported (2006) 12 Supreme Court Cases 277 and submitted that from the evidence of P.W.1 and 2, the demand and acceptance are not proved beyond reasonable doubt. Learned advocate Mr. Shethna submitted that in the instant case, the present appellant had no authority to do the work, which the complainant wanted and therefore, if the work which was not to be done by the appellant, then question of any demand and in turn acceptance of the bribe amount cannot arise. So, he submitted that the decisions aforesaid are applicable to the present case.
9. Learned APP Mr. R.C. Kodekar for the State, vehemently opposed the submissions made by the learned counsel Mr. Shethna. He has read the complaint at Exhibit 25 and submitted that from the complaint itself, it appears that the demand is proved beyond reasonable doubt through the evidence of P.W.1. He also read the oral evidence of the complainant at Exhibit 9 and submitted that Exhibit 25 is proved. P.W.1 stated in his evidence that he reached to the office of the present appellant - accused along with other members of raiding party and P.W. 2 was also present at the same place and the complainant met the present appellant and talked with him in the presence of P.W. 2 and then one map was drawn by the present appellant and the appellant
- accused told that the work of the complainant will be over on Monday then present appellant - accused took the complainant outside the office and in the presence panch, the appellant - accused made demand regarding bribe money and then said trap amount was given to the present appellant - accused and immediately, then signal was given. Mr. R.C. Kodekar, learned APP submitted that from the oral evidence of these witness P.W.1 and the evidence of P.W.2, who is independent witness and public servant, the demand and acceptance are very well proved beyond reasonable doubt. He further submitted that marks of anthracene powder were found on the fingers, tips of the accused as well as on the cloth of the accused. Same facts have been proved from the evidence of P.W.2. He also read the evidence of P.W. 5 Trapping Officer and submitted that from the evidence of this witness, it appears that recovery of the bribe amount from the accused is very well proved and anthracene powder was found on the cloth of the accused and also on fingers, tips of the accused, so the question of demand and acceptance is proved beyond reasonable doubt. He also read the oral evidence of P.W.3, Himatrao Vamanrao Nikmal at Exhibit 21, who was unarmed Head Constable and member of the raiding party and simply on the ground that he is police witness, his evidence cannot be discarded straightway and from his evidence, the prosecution has proved the case against the accused with regard to the recovery of bribe amount and presence of anthracene power are established. Mr. Kodekar, learned APP submitted that looking to the evidence of P.W.1,2,3 and 5, the prosecution has proved the case beyond reasonable doubt. He further submitted that the sanctioning Authority, after verifying the papers, gave sanction to prosecute the case against the accused, therefore, the sanction was just and proper. He further submitted that P.W.4 has also explained that he has read every papers of the case and it is admitted by him that the statement of the accused was not given to him. Learned APP Mr. Kodekar also submitted that if the statement of the accused was not given to the sanctioning Authority, whether is it fatal to the case of prosecution and whether it cannot be considered. The sanction, which was given by the sanctioning Authority, cannot be said that the sanction was given without application of mind. In reply, he submitted that when the panchnama and complaint was read over by the sanctioning Authority and when from the contents of both the documents, demand of the bribe amount and acceptance thereof by the accused as well as recovery of the bribe amount from the accused and presence of anthracene powder was found on the fingers, tips and cloths of the accused, then prima facie case is made out against the accused and therefore, there is no question about the demand and acceptance on the part of the appellant - accused. He also read the statement of accused, recorded under Section 313 of the Code of Criminal Procedure, and he further read the provisions of Section 25 of the Prevention of Corruption Act and submitted that the appellant
- accused has failed to explain about the presence of anthracene powder which was found from the fingers, tips and cloths of the accused. He further submitted that the learned Sessions Judge has imposed the conviction and sentence after appreciating the evidence on record and, therefore, the order and judgment is just and proper.
10. Mr. Kodekar, learned APP has relied upon the decision rendered in the case of State of Gujarat Vs. Raghunath Vamanrao Baxi reported in AIR 1985 Supreme Court 1092, more particularly para 9 of the said decision and submitted that in the present case, the learned Sessions Judge has rightly imposed the sentence and the same is not harsh in nature, therefore, the question of the improper sentence cannot arise. He also relied upon decision in the case of Madhukar Bhaskarrao Joshi Vs. State of Maharashtra reported in AIR 2001 Supreme Court 147, more particularly, Head Note B and submitted that no special reason is established from the appellant side and only on the ground of lapse of time, the said issue cannot be considered. Therefore, judgment and order passed by the learned Special Judge is required to be confirmed and appeal is required to be dismissed.
11. 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. From the perusal of Section 19(1) of the Prevention of Corruption Act, it is sole requirement of the case, which is registered under the Prevention of Corruption Act that the sanction is required to be obtained from the appointing Authority. It is true that it is the duty of the appointing Authority, when said issue regarding sanction is placed before it, it has to consider the whole evidence which is produced before it and then with application of mind that sanction is required to be given to the prosecution. No doubt, learned advocate Mr. Shethna submitted that the sanction is given without application of mind and not as per the provisions of law, but, from the perusal of the documentary evidence, complaint at Exhibit 25, Panchnama at Exhibit 16, receipt of Muddamal Exhibit 17, prima facie, the aspect of demand, recovery of the trap amount, presence of anthracene powder are established with the sufficient documentary evidence. Therefore, the sanction officer can consider that the documents which are required to be produced before him shows that, prima facie, the case was made out against the present appellant accused and sanction which was given after considering the material documents. I have perused the evidence and cross-examination also, it also, prima facie, appears that he has considered the contents of the complaint as well as panchnama and then sanction was given, so I have no reason to say that the sanction was given without application of mind. Learned advocate submitted that from the cross-examination of P.W.5 it appears that the further statement of the accused dated 24.7.1995 was not attached and P.W.4 has not read the statement of the accused, so it is required to be considered that the sanction which is given by this witness is not valid and proper sanction and therefore, on this mechanical ground, the appellant - accused is entitled for acquittal. But I have perused the oral evidence of P.W. 4, complaint as well as panchnama and also the contents of sanction and I have found that before giving sanction, there were sufficient evidence produced before the sanctioning Authority and therefore, the sanction is just and proper and no question regarding valid sanction arises.
12. Even from the perusal of the evidence of P.W.1 complainant and P.W 2, panch witness, it appears that when they both reached at the place of appellant - accused, the appellant had talked with the complainant in presence of P.W. 2 and in his presence, the appellant assured the complainant that the work would be over on Monday and then the complainant and panch both were taken away from the office by the appellant accused and in open place, outside the office, the demand was made by the appellant in presence of P.W. 2 and said trap amount was given to the present appellant and the same was accepted by the appellant in the presence of P.W.2. From the cross-examination of both the witnesses, the defence has established to prove that the appellant had not made any demand and he had not accepted said trap amount. Even from cross-examination of P.W. 1, it is suggested by the defence, that when the surveyor took him from the office to the open place, at that time, panch and surveyor were present, so this defence of the accused shows that presence of panch witness at the place of demand and acceptance made by the present appellant. Even from the oral evidence of P.W. 1 and 2, it appears that the recovery of the trap amount from the possession of the present appellant and presence of anthracene powder is also proved beyond reasonable doubt. It is also not the defence of the appellant to say that in which connection the said trap amount was obtained by him from the complainant. It was the duty of the appellant to explain by rebutting the presumption of the prosecution in the statement under Section 313 of the Code of Criminal Procedure.
13 Mr. Kodekar has also contended that looking to the facts of the case presumption under Section 20 of the P.C. Act is required to be drawn against the present appellant - accused. Section 20 of the P.C. Act reads as under :
"20.
Presumption where public servant accepts gratification other than legal remuneration -
(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."
11. From the perusal of the evidence, it is true that present appellant is a public servant and he, in his own capacity, assured the complainant that his work will be over on Monday and in connection of that work, he 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 committed criminal misconduct. The aspects of demand and acceptance on the part of the appellant - accused are very well proved by the prosecution. Learned advocate for the appellant made submission that the learned Special Judge imposed the sentence which is harsh in nature, but, I am not in agreement with the said submission of the learned advocate as the appellant is involved in a serious offence and he is a public servant and especially, the offence is very well proved against the appellant accused, therefore, 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.
14. 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 Additional Sessions Judge, Vadodara passed in ACB Case No.1 of 1996 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