Gujarat High Court
Mathurbhai vs State on 25 January, 2010
Author: Harsha Devani
Bench: Harsha Devani
Gujarat High Court Case Information System
Print
CR.A/1141/1992 57/ 57 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1141 of 1992
For
Approval and Signature:
HONOURABLE
MS. JUSTICE H.N.DEVANI
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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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MATHURBHAI
H PATEL & 2 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance
:
MR KB ANANDJIWALA
for Appellant(s) : 1 2.
MR PRAKASH K JANI for
Appellant(s) : 3,
MR JK SHAH, ADDITIONAL PUBLIC PROSECUTOR for
Opponent(s) : 1,
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CORAM
:
HONOURABLE
MS. JUSTICE H.N.DEVANI
Date
: 25/01/2010
ORAL
JUDGMENT
1. Vide a Government Resolution dated 22nd February, 1988, the Government of Gujarat increased the non-practicing allowance granted to Medical Officers to Rs.600/- per month. Prior to the issuance of the said Government Resolution, the medical officers were paid Rs.450/- per month as non-practicing allowance as private practice by Medical Officers was banned. The complainant Ashraf Roshansha Diwan was holding a degree of M.B.B.S. and was serving as a Medical Officer in the Primary Health Centre at Nandasan from 15th December, 1987 to 04th April, 1988. On 04th April, 1988, he was transferred to the District Panchayat Primary Health Centre at Hadol, Taluka Kheralu. Pursuant to the aforesaid Government Resolution the complainant became entitled to payment of the difference in the amount of non-practicing allowance, accordingly, one Shri G.B. Parmar, Accounts Clerk, Nandasan Primary Health Centre prepared his arrears bill for a sum of Rs.6,400/- and after obtaining the signature of the complainant, forwarded the same to the Taluka Development Officer in the office of Kadi Taluka Panchayat. Despite the bill having been forwarded, as the same was not sanctioned, on 12th April, 1988, in the morning at about 11.00 a.m., the complainant went to the office of the Taluka Development Officer to enquire about the same. Upon enquiry, it was found that his bill was lying with the accused No.1 Patel Mathurbhai Harjivandas who was the Deputy Accountant and was required to check the bill before the same was presented before the Taluka Development Officer for passing and signing the same. The complainant, therefore, enquired from the accused No.1 why his bill was not sanctioned whereupon the accused No.1 told him that the bill was lying with him and that it would not go through unless the complainant paid him Rs.500/- to get the bill passed; that further queries would be raised and the bill would be stalled so that the complainant could not receive the amount promptly. The complainant had Rs.300/- with him and offered the same to the accused No.1. However, the accused No.1 insisted on payment of Rs.500/- and told him to come on Friday, 15th April, 1988 with the said amount as on the said date, the Taluka Development Officer would also be in the office for the entire day and he (the accused No.1) would keep the arrears bill ready so that the complainant could take it personally. Since the complainant was not desirous of giving the bribe, he went to the office of the Anti-Corruption Bureau at Mehsana on 13th April, 1988 and lodged a complaint against the accused No.1. At that time, Police Sub-Inspectors Mr. Rana and Mr. Chavda as well as ACB Inspector Mr. Vyas were present and Mr. Vyas had recorded his complaint (Exh.22) as per his version. The complainant was asked to remain present at the office of the Anti-Corruption Bureau, Mehsana on 15th April, 1988 at 09.30 a.m. In the meanwhile, on 13th April, 1988, when ACB Inspector Mr. Vyas wrote a confidential letter to the Deputy Executive Engineer, Gujarat Electricity Board, City Office, Mehsana requisitioning the services of two employees of his confidence who may be directed to remain present on 15th April, 1988 in his office at 08.00 a.m., the Deputy Executive Engineer chose Lineman Shri M.C. Patel and Meter Reader Shri G.M. Nayak, who, following the instructions, reached the office of the Anti-Corruption Bureau at Mehsana at 09.30 a.m. The complainant and the panchas were introduced to each other and the complaint was read over to the panchas. They were apprised of the facts, what role they had to play and after the bribe was given what signal the complainant would give so as to convey the acceptance of the bribe amount. The complainant produced Rs.500/- in five currency notes, each of the denomination of Rs.100/-. A demonstration was given under the ultra-violet light before the anthracene powder was smeared and after. It appears that anthracene powder glows a bluish colour under the ultra-violet light. The currency notes were placed in the left side empty pocket of the bush-shirt of the complainant and he was instructed not to touch those currency notes till the bribe was demanded and that he should give the amount only after the demand was made. Panch No.1 Shri G.M. Nayak was instructed to remain present with the complainant and to observe and hear whatever transpired between the complainant and the accused No.1. Panch No.2 Shri M.C. Patel and other raiding party members were instructed to follow them. After completing all formalities, the first part of the panchnama was prepared recording all that had transpired. The raiding party went to Kadi in a Government vehicle and they reached Kadi at 11.15 a.m. They stopped at Bhaupura area of Kadi and everyone alighted from the vehicle. The complainant and the panch No.1 went on foot to the Kadi Taluka Panchayat office and the others spread out and followed them. The complainant and panch No.1 went to the Accounts Section of the Taluka Panchayat office to the table of the accused No.1, whereupon the accused No.1 asked the complainant whether he had come with the money or not and the complainant had replied in the affirmative. The complainant enquired from the accused No.1 as to what had happened to his bill, to which the accused No.1 replied that the bill is already sanctioned and the cheque is also ready and that he should go to Nandasan and call the Computer Clerk Shri Vyas, i.e., the accused No.4 or bring a chit from him so that he can hand over the cheque to him. The complainant and panch No.1 came out of the Accounts Section and informed ACB Inspector Mr Vyas and ACB Inspector Mr. Rana as to what had happened there. The complainant and panch No.1 were instructed to go to Nandasan in the Government vehicle alongwith Police Sub-Inspector Mr. Rana. All the three persons then went to Nandasan where the complainant and panch No.1 contacted the accused No.4 and told him about the talk that they had with accused No.1 and requested him to accompany them to Kadi but he replied that he had some urgent work. However, at the request of the complainant, the accused No.4 wrote a chit and told the complainant that he should give it to the accused No.1 whereupon his work will be done and that as regards settling the account for completing his work, they would settle the same when they meet personally. The complainant and panch No.1 as well as Mr. Rana then returned to Kadi with the chit at about 01.15 p.m. The complainant and the panch showed the chit written by accused No.4 to Police Sub-Inspector Mr. Vyas and apprised him as to what happened at Nandasan. Police Sub-Inspector Mr. Vyas again told them to contact the accused No.1 with the chit. The complainant and panch No.1 went on foot to the Accounts Branch while the rest of the members of the raiding party were deployed at different places and were waiting for the signal from the complainant. The complainant accompanied by panch No.1 met accused No.1 and showed him the chit written by the accused No.4. At that time, two other employees of Kadi Taluka Panchayat were also working in the room. The accused No.1 read the chit and after reading it, put it in his drawer and asked the complainant as to whether he had brought Rs.500/- as per their talk. The complainant told him that he had brought the money whereupon the accused No.1 directed the accused No.2 - Shri Khamarbhai, Senior Clerk in the Accounts Department, who was sitting near him, to go outside and accept whatever amount is given to him by the complainant. The accused No.2 came out of the office alongwith the complainant and panch No.1 and called out to accused No.3 - Shri Prajapati Nagarbhai Tulsidas who was standing near the compound wall and told the complainant to give the amount to accused No.3. The complainant handed over the currency notes to accused No.3 who accepted the same with his right hand and counted them using both his hands. He told accused No.2 that they were Rs.500/-. The accused No.2 told him to keep the money with him saying that he would collect the amount from him in the evening. The accused No.3, therefore, folded the currency notes and put them in the hip-pocket of his pant. In the meantime, the complainant gave the pre-arranged signal to the members of the raiding party. On receiving the signal, the panch No.2 and members of the ACB raiding party rushed to the spot and disclosed their identities to the accused No.2 and 3 and asked them not to move and took the accused to the Accounts Branch. Thereafter, they enquired about the names and other details of the accused No.1, 2 and
3. They asked the other staff members present in the room to leave the room. Thereafter, in the presence of the accused, the complainant and the panchas, the hands of all the persons present in the room were checked under ordinary light and there were no glowing bluish marks on anyone's hands. Thereafter, the hands of all the members of the raiding party were checked under the ultraviolet lamp; however, there were no glowing bluish marks on the hands of any of the members of the raiding party. Thereafter, the hands and clothes of accused No.1 and 2 were checked under the ultraviolet lamp; however, no glowing bluish marks were seen. Both the hands of the accused No.3 were checked under the ultraviolet lamp and bluish glowing marks were found on the tips of the fingers of both his hands as well as the tips of both the thumbs and the mound of his palm. The pant of the accused No.3 was also checked under the ultraviolet lamp and glowing bluish stains were seen on the right side hip-pocket of the pant. Panch No.1 was asked to take out all the contents of the pocket and a bundle of Rs.100/- notes as well as a postcard were recovered. The currency notes were counted and five notes of the denomination of Rs.100/- were found. All the currency notes were examined under the ultraviolet lamp and glowing bluish stains were seen on both sides of the notes. The numbers of the currency notes were compared with the numbers recorded in the first part of the panchnama and were found to tally. The pant as well as the currency notes were seized. The chit written by the accused No.4 was seized from the drawer of the table of accused No.1. The hands of the complainant were examined under the ultraviolet lamp and glowing bluish stains were seen on the tips of the four fingers as well as on the tip of the thumb of his right hand. The left upper part of his bush-shirt was also examined under the ultraviolet lamp and glowing bluish stains were found. Xerox copies of the cheque and bills were produced by the accused and they were also seized and the remaining portion of the panchnama was completed and was signed by both the panchas. The ACB Police Inspector Mr. Vyas recorded the statement of the accused and all of them returned to Mehsana and an offence came to be registered against all the accused. The initial investigation was carried out by Police Inspector Mr. Vyas who subsequently came to be transferred from Mehsana and the investigation was then carried out by Police Inspector Shri G.P. Puwar who recorded the statements of the other witnesses and obtained the specimen handwriting of the accused No.4 Shri Harishbhai Vyas and sent the said chit as well as the admitted handwritings of the accused No.4 for the opinion of the handwriting expert. Sanction for prosecuting the accused was obtained from the District Development Officer on 14th April, 1988 and charge-sheet came to be filed against all the accused. On 01st October, 1992, the charge came to be framed against the accused at Exh.14.
2. The substance of the charge was that at the relevant time, the accused No.1 was holding the post of Deputy Accountant in Kadi Taluka Panchayat. The accused No.2 was holding the post of Senior Clerk in Kadi Taluka Panchayat. The accused No.4 was discharging duties as a Computer Clerk in Nandasan Primary Health Centre and all of them were public servants. On 12th April, 1988, the accused No.1 other than his legal remuneration, for his own personal benefit, demanded illegal gratification of Rs.500/- from the complainant for sanctioning his bill and not raising any query in exchange thereof and in this context, a trap was arranged and the accused No.1 called for a chit from the accused No.4 and the accused No.4 abetted him by writing a chit. Upon submitting the chit before the accused No.1, he again demanded Rs.500/- and told to give the bribe amount of Rs.500/- to the accused No.2 and the accused No.1 instructed the accused No.2 to go outside and accept the amount and in this manner, the accused No.2 as well as the complainant and the panch No.1 went outside and the accused No.2 called the accused No.3 and asked him to accept the amount on behalf of accused No.1, 2 and 4 and the accused No.3 accepted the same. In this manner, all the accused, in connivance with each other, abetted each other and by demanding and accepting the bribe amount, the accused No.1, 2 and 4 having misused their official positions as such have committed the offence punishable under Sections 161 and 165-A of the Indian Penal Code as well as Section 5(2) of the Act.
3. The accused denied the charge and claimed to be tried. During the course of trial, the prosecution examined five witnesses to prove its case. The prosecution witness No.1 Dr. Ashraf Roshansha Diwan the complainant was examined at Exh.21 and he has proved his complaint at Exh.22 which was recorded by ACB Inspector Mr. J.V. Vyas who is examined at Exh.47 as prosecution witness No.4. Prosecution witness No.2 Shri Girish Nayak who was the panch No.1 was examined at Exh.23 and in his evidence, the panchnama (Exh.24) was produced and proved. Prosecution witness No.3 Police Sub-Inspector Mr. M.T. Rana was examined at Exh.29. Prosecution witness No.4 ACB Police Inspector Mr. J.V. Vyas was examined at Exh.47 and prosecution witness No.5 Mr. G.P Puwar was examined at Exh.48. Certain other documents were also produced and exhibited which shall be referred to as and when necessary in the body of the judgment.
4. In the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973 (the Code), the accused denied the case of the prosecution. All the accused submitted separate written submissions putting forth their defence. No defence witness was examined by the defence. After appreciating the evidence on record and hearing the learned counsel for the parties, the learned Special Judge found the accused No.1 guilty of the offence punishable under Section 5(2) of the Act read with Section 161 of the Indian Penal Code. The learned Special Judge found the appellant No.2 (original accused No.2) and appellant No.3 (original accused No.4) guilty of the offence punishable under Section 165-A of the Indian Penal Code and convicted them accordingly. The appellant No.1 Mathurbhai Harjivandas Patel was sentenced to undergo Rigorous Imprisonment for five years and fine of Rs.1,000/-, in default, to undergo Rigorous Imprisonment for one year for the offence punishable under Section 5(2) of the Act and Rigorous Imprisonment for one year for the offence punishable under Section 161 of the Indian Penal Code. The appellants No.2 and 3 were sentenced to undergo Rigorous Imprisonment for one year and to pay fine of Rs.300/-, in default, to undergo Rigorous Imprisonment for six months for the offence punishable under Section 165-A of Indian Penal Code. Being aggrieved, the appellants have preferred the present appeal.
5. This Court has heard Mr. K.B. Anandjiwala, learned advocate for appellants No.1 and 2, Mr. P.K. Jani, learned advocate for appellant No.3 and Mr. J.K. Shah, learned Additional Public Prosecutor on behalf of the respondent - State of Gujarat. This Court has also perused the record of the case thoroughly and has gone through each of the documents produced by the prosecution as well as the evidence of the witnesses examined on behalf of the prosecution.
6. Mr. K.B. Anandjiwala, learned advocate for the accused No.1 and 2 vehemently submitted that there is no reliable evidence as regards demand by the accused which is an essential ingredient of the offence under section 5(b) of the Prevention of Corruption Act. It is argued that in a trap case, the prosecution is required to prove (i) a prior demand for illegal gratification, (ii) a demand preceding the acceptance and (iii) acceptance. It is submitted that if any of the aforesaid three requirements are not satisfied, the prosecution case would fail. It is contended that in the facts of the present case, the evidence of the three most important witnesses is not in consonance with each other and there are inconsistencies on material aspects. The prosecution has, therefore, failed to establish the aspects required to bring home the charges against the accused and as such, the accused deserve to be acquitted.
6.1 It is submitted that insofar as the initial demand is concerned, the only evidence is the evidence of the complainant, which is not corroborated by any independent source and that even the evidence of the complainant regarding the initial demand is not consistent. Attention is invited to the deposition of the complainant to submit that in his examination-in-chief, he has stated that the demand was made on 12th April, 1988 whereas in his cross-examination, he has improved his case and stated that the initial demand was also on 13th April, 1988. It is submitted that the subsequent change in version is because the complainant was required to report for duty at Hadol, hence it was difficult for him to substantiate his say that he had gone to meet the accused No.1 at Kadi on that day. It is submitted that the charge refers to the date of initial demand as 12th April, 1988 whereas the evidence of the witnesses reveals that the demand was made on 13th April, 1988. Hence, the prosecution has failed to establish the demand as per the charge. It is contended that the evidence of the complainant does not establish the fact of initial demand by the accused No.1 beyond reasonable doubt. The decision of this Court in Anantray Lalji Pandya v. The State of Gujarat, 1982 CRI.L.J. 1883 was cited for the proposition that as to demand of money, there was only the complainant s evidence. When the complainant is found to be an unreliable witness, the prosecution must be held to have failed to prove a vital part of its case and this failure must necessarily result into acquittal of the accused from the charges levelled against him.
6.2 As regards the demand prior to acceptance, it is submitted that to prove the fact of demand there should be consistency between the evidence of the complainant and the panch. It is contended that there is material discrepancy as regards the conversation between the accused No.1 and the complainant in the deposition of the complainant and the deposition of the panch No.1. It is contended that the most important aspect as regards demand prior to acceptance is that the panchnama is silent about the initial demand as to whether the accused No.1 had asked the complainant if he had brought the money. It is submitted that there are material discrepancies between the evidence of the complainant, panch No.1 and the panchnama which go to the root of the matter so as to shake the prosecution case. It is submitted that in absence of any cogent and credible evidence, the prosecution has neither been able to establish initial demand nor the demand prior to acceptance. As regards the third ingredient namely acceptance, the learned advocate had submitted that it is accused No.3 Nagarbhai who had actually accepted the bribe, however, he has been acquitted by the Trial Court. It is contended that if accused No.3 had accepted the amount to facilitate the other accused, he too would be an abettor of the offence in question. Once he is found to be not guilty, the factum of acceptance of illegal gratification cannot be said to have been established. Reliance was placed upon the decision of the Supreme Court in G.V. Nanjundiah v. State (Delhi Administration), AIR 1987 SC 2402 for the proposition that where factum of acceptance is not established the guilt of the accused cannot be said to be proved. Reliance was also placed upon a decision of this Court in State of Gujarat v. Trambaklal Fulshankar Trivedi, 1979 (2) GLR 60 for the proposition that where the panch does not depose about passing of currency notes and conversation regarding the same, it is hazardous to record a finding of corruption.
6.3 Further according to Mr. Anandjiwala, the services of two panchas were requisitioned from the government office namely Deputy Executive Engineer, Gujarat Electricity Board, Mehsana requesting him to send two confidential employees for the purpose of confidential investigation on 15th April, 1988. It is submitted that this clearly indicates that the panchas were selected panchas on two counts, namely (1) that the panchas had been specially requisitioned from the GEB office and (2) the panchas, being Government servants, were bound to support the prosecution apprehending departmental action against them if they fail to support the prosecution case. Attention is invited to the cross-examination of panch No.1 wherein he has stated that prior to the incident, one corruption case had been launched against a Junior Engineer as well an Assistant Accountant of the Board as well as to the part wherein it had been deposed that two employees of their office had also acted as panchas in one corruption case of Vadnagar, to submit that there is a tendency to select panchas from this office as they would be under pressure. Stress is particularly laid on that part of the deposition wherein it has been stated that in case they do not depose as per the panchnama, departmental inquiry can be carried out against them. It is submitted that prosecution witness No.2 was a selected panch and being a selected witness, prima facie, he would lose his character and credibility as an independent witness and he is a witness who has been selected by the appellants with an oblique motive to secure conviction of the accused at any cost.
6.4 Next, it is submitted that the panchnama is not admissible in evidence as it has been dictated by the panchas and has been written by the Writer from the police department as per the dictation of P.S.I. Rana and also because it is in terms of the statement of the complainant and is, therefore, hit by Section 162 of the Code as being a statement of a witness before the police. It is submitted that the basic requirement of a panchnama is that it should be in the words of the panch and that it is only a panchnama which is as per the say of the panch, though it may have been written by the police, that can be called a panchnama. It is contended that in the present case, the panchnama, therefore, cannot be said to be a panchnama. In support of the said submission, the learned advocate has placed reliance upon a decision of this Court in Kanubhai Kantibhai Patel vs. The State of Gujarat, 1998 (1) GLH 924, wherein this Court has observed that the panchnama as dictated by the Investigating Officer and not by panchas would lose its evidentiary value. It is, therefore, submitted that having regard to the totality of the evidence and the aforesaid circumstances appearing from the evidence, the prosecution has miserably failed to prove its case.
6.5 It is also submitted that as per the prosecution case, the demand had been made in the Accounts Department of the Taluka Panchayat office, where several other members of the staff were also present who can be said to be independent witnesses. However, no such witness has been examined by the prosecution. Reliance was placed upon the decision of the Apex Court in Gulam Mahmood A. Malek vs. State of Gujarat, AIR 1980 SC 1558.
6.6 Another grievance voiced by Mr. Anandjiwala is that recently there is a trend of recording complaint initially on plain paper and no entry in this regard is made even in the station diary, which is an unhealthy practice. It is submitted that before starting any proceeding in furtherance of the complaint, the offence is required to be registered. Though the complainant had given complaint disclosing commission of a cognizable offence, no FIR was registered and the complaint was reduced to writing on a plain paper and no entry was made in the station diary. Without making any formal note in the station diary, the act of calling the trap witnesses cannot be said to be an official act. This irregularity is material as the same prejudices the transparency in the investigation.
6.7 The learned advocate stressed upon the fact that a statement alleged to have been made by the accused as to demand of bribe is hit by Section 162 of the Code. It is contended that the statement of the accused which is sought to be proved is excluded from the evidence as the same is not admissible and as such, there is no evidence at all against the accused for demand and acceptance of bribe. In conclusion, it is urged that the prosecution has failed to establish the charges against the appellants herein beyond reasonable doubt and as such, the accused deserve to be acquitted.
7. Mr. P.K. Jani, learned advocate for the appellant No.3 has submitted that the appellant No.3 has been convicted for the offence punishable under Section 165-A of the Indian Penal Code and on the basis of the evidence led, the conviction is not sustainable and supportable. Drawing the attention of the Court to the facts of the case, it is pointed out that the necessary formalities in respect of the complainant s arrears bill had already been completed by the Taluka Panchayat office by 11th April, 1988 and the cheque came to be issued on 13th April, 1988. Hence, there was no occasion for demanding any illegal gratification for doing a task which was already completed on the day of the alleged demand. Insofar as the appellant No.3 (accused No.4) is concerned, the complainant who first in point of time gave his version of demand of illegal gratification did not utter a single word against the accused No.4. Accordingly, the accused No.4 is not named in the first information report. Even in his deposition, the complainant has not deposed anything against him and he is admittedly not a recipient of the amount. It is submitted that the procedure for passing the bill is that the bill is prepared by the concerned Primary Health Centre and is forwarded to the office of the Taluka Panchayat which processes the bill. In case any deficiencies are found, queries are raised and upon removal of the objections, the bill is placed before the Taluka Development Officer who sanctions it and signs the cheque. It is submitted that the cheque so issued is either sent by post to the Primary Health Centre or to the responsible person of the Primary Health Centre. In the circumstances, the accused No.4 had no role to play in the matter of passing the bill hence, the question of his demanding illegal gratification would not arise at all. It is submitted that the case put up against the accused is that the accused No.1 asked the complainant to call the accused No.4 from Nandasan or to bring a chit from him and the accused No.4 had written a chit (Exh.45) and given the same to the complainant, perhaps out of a desire to help a Medical Officer who was transferred to another place. It is urged that an innocent act done with the sole intention of helping the complainant so that he may not have to come back from the place of his transfer has landed the appellant No.3 in this situation and it is on the basis of this chit that he has been convicted.
7.1 Referring to the cross-examination of the complainant, the learned advocate has assailed the character of the complainant. It is submitted that on 10th April, 1988, on a public holiday, the complainant says that he met the accused No.1. This part itself shows that he is a person who can make an incorrect statement on oath qua one event, in the circumstances his version on all other aspects may not be accepted. It is further submitted that the complainant does not say whether on 11th April, 1988, 12th April, 1988 and 13th April, 1988, which were working days, he had taken leave and had gone to meet the accused No.1, hence on the face of it, the version of the complainant is unbelievable. It is contended that once the cheque was issued on 13th April, 1988 in the name of the Medical Officer, Nandasan Primary Health Centre, nothing remained to be done, which raises a serious doubt as regards the say of the complainant, who was initially willing to pay Rs.300/- towards illegal gratification.
7.2 Next it is submitted that P.W.2 the panch witness says that he has neither written nor participated in the writing of the panchnama. Attention is invited to the deposition of the prosecution witnesses to submit that the complainant has stated that the panchnama was dictated by Shri Rana, the panch has stated that the panchnama was dictated by Shri Rana whereas Shri Rana has denied dictating the panchnama and stated that it was Shri Vyas who had dictated the panchnama whereas Shri Vyas had denied dictating the panchnama and has stated that it was the panch who had dictated the panchnama. It is submitted that when the witnesses have given inconsistent and false and fabricated depositions on such an important aspect, they cannot be believed on other important issues which can make or mar somebody's life. Reliance was placed upon a decision of this Court in State of Gujarat v. Gunvantlal H. Shah, 2006 (1) GLR 418 wherein in view of the discrepancy in the evidence of the panch witness and the Investigating Officer as regards the authorship of the panchnama the Court found that the credibility of the panch witness as well as the Investigating Officer was doubtful. The Court also held that if the panch witness is not the author of the panchnama then the panchnama is merely an ornament without having any probative value. It is submitted that none of the prosecution witnesses have stated true and correct facts with respect to the drawing of the panchnama which can be seen from making a comparative analysis of the deposition of these witnesses. It is submitted that though the Writer Amarsinh and Constable Pravinsinh were part of the raiding party and are cited as witnesses, neither of them have been examined by the prosecution to establish that they had written the panchnama. It is submitted that the panchnama can be used only for corroborating the evidence of the panch. When the contents of the panchnama are not proved, it cannot be used to corroborate the evidence of the panch, hence, it is not admissible in evidence. In support of his submission, the learned advocate has placed reliance upon a decision of this Court in Kalubhai Danabhai Patel vs. State of Gujarat, 2007 1 GLH 441, for the proposition that it is established law that panchnama itself is not a substantive piece of evidence and can only be used to corroborate the substantive evidence of the panchas. The contents of panchnama, therefore, cannot be read as substantive piece of evidence.
7.3 Next it is submitted that though the four accused have been charged with involvement in the offence in question, the prosecution does not say that there is any meeting of minds among the accused. It is submitted that only oral evidence is the foundation for conviction. It is submitted that on the facts of the case, though some suspicion may have been raised against the accused more particularly, the appellant No.3 (accused No.4), however, unless the prosecution is in a position to establish the case beyond reasonable doubt, no case is made out for convicting the accused for the offence with which they are charged. Reliance is placed upon the decision of the Apex Court in Pannalal Damodar Rathi vs. State of Maharashtra, AIR 1979 SC 1191, wherein the Court had made it clear that they were not convinced about the innocence of the appellant therein. The Court was of the opinion that on the material before them, though there was grave suspicion, the guilt of the accused had not been established beyond reasonable doubt. In the circumstances, the Court was constrained to give the appellant the benefit of doubt and set aside the conviction and sentence and acquit the appellant.
7.4 Mr. Jani also submitted that insofar as the accused No.4 is concerned he has been convicted for abetment of the offence, whereas no charge for abetment was framed, hence, in absence of any charge for abetment, the conviction of the said accused is required to be set aside. Reliance was placed upon a decision of the Supreme Court in Mahendra Singh Chotelal Bhargad v. State of Maharashtra, AIR 1998 SC 601.
8. On the other hand, Mr. J.K. Shah, learned Additional Public Prosecutor for the respondent State has supported the decision impugned in the appeal and submitted that the prosecution has successfully established its case beyond reasonable doubt. It is submitted that demand or obtainment is to seen from the first information report filed by the complainant wherein the demand is made and there is consistent evidence throughout in this respect. It is submitted that in the evidence of the complainant and in the evidence of the panch witness there may be minor discrepancies but those discrepancies should be ignored in appreciating the evidence as a whole. It is submitted that the evidence of the witness must be read as a whole and stray sentences should not be read in isolation. It is submitted that the complainant, in his deposition, has stood by what has been stated in the first information report (Exh.22) which is duly proved by the complainant and the prosecution witness No.4 Police Inspector Mr. Vyas. P.W. No.4 has also supported the say of the complainant as regards lodging the first information report and as such, the initial demand made by the accused No.1 stands proved. It is submitted that as regards the demand prior to acceptance and acceptance, the same has been duly proved by the prosecution through the deposition of the complainant, panch No.1 and the panchnama as well as other documents produced on record. Insofar as accused No.4 is concerned, it is submitted that his complicity is evident from the chit written by him as well as the evidence of the complainant as well as the panch No.1 and the panchnama which bear out the reference made by the accused No.4 to the payment of the amount for completing the work. It is submitted that the chit (Exh.45) is an important piece of evidence and the learned Special Judge was justified in placing reliance upon it.
8.1 As regards the contention that the panchnama not having been dictated by the panch cannot be called a panchnama, it is submitted that the decisions relied upon by the learned advocate for the appellant were rendered in the peculiar facts of the said case whereas the facts of the present case are different. It is submitted that in the facts of the present case, even if it is assumed that the panchnama was dictated by a Police Officer, it was dictated as per the say of the panchas. The panchas, not being experienced in writing panchnamas, narrated their version and it was based on this version that the panchnama was written. Attention is further invited to the evidence of panch No.1 wherein he has categorically stated that he and the other panch had read the entire panchnama and that what was stated therein was correct. It is submitted that when the panch fully supports the contents of the panchnama, even if the same had not been actually dictated by him, at best, it could be said to be an irregularity but it does not go to the root of the matter so as to demolish the prosecution case.
8.2 As regards the character of the complainant, it is submitted that though the appellants have tried to paint a poor picture of his character, the facts brought out in the cross-examination are not such as to create an impression that the complainant was a person of doubtful character. It is urged that the prosecution story is credible and there is no reason to disbelieve these witnesses as nothing could be brought on record as to why these witnesses and police officers would attempt to frame these two accused in a false trap case.
9. Before re-appreciating the evidence on record, the contention regarding the panchas being selected witnesses, the admissibility in evidence of the panchnama and the character of the complainant may be dealt with since the other contentions would inter alia be based upon the evidence of the complainant, the panch witness and the panchnama.
9.1 On behalf of the appellants, it has been contended that the panchas were selected panchas and as such, were not independent witnesses. Attention of the Court has been invited to the communication dated 13th April, 1988 addressed by the Police Inspector Anti-Corruption Bureau, Mehsana to the Deputy Executive Engineer, Gujarat Electricity Board, Mehsana requesting him to send two trustworthy employees for the purpose of confidential investigation on 15th April, 1988. It is submitted that the panchas are selected by Police Inspector, Anti-Corruption Bureau. There are other government offices in the compound where the office of Anti-Corruption Bureau is situated. Despite the fact that the office of the Gujarat Electricity Board is at a far away distance, requisition has been made from the office of the Gujarat Electricity board for the persons of confidence. It is submitted that this has been done intentionally as prior thereto, a trap was laid against two officers of the Gujarat Electricity Board and the case against them was pending and that on an earlier occasion also, the panchas were taken from the very office of the Gujarat Electricity Board. It is pointed out that the panch No.1 in his deposition has admitted that if the Government employee does not depose as per the panchnama, departmental action can be initiated against such person to contend that such a person would not give the correct story and that he would depose under pressure. In this regard, it may be pertinent to refer to a decision rendered by a Division Bench of this Court in State of Gujarat vs. Mansurbhai Motibhai Damor, 1996 (2) GLH 782, wherein similar arguments had been advanced. The Court held that to mechanically brand a panch witness as a selected panch and thereby resort to excathedra condemnation of his evidence as selected panch and thereafter, to ask the Court to disregard his evidence is too fallacious and mischievous an approach to be accepted at its face value. The Court held that much spinned, quite loosely alleged, often abused, confused, misunderstood and accepted at face value, the phrase selected panch requires to be understood in its proper perspective in order to avoid being wandered away from the just and legitimate conclusion. If this much care, caution and circumspection is not exercised, the catch phrase selected panch if accepted at its face value is capable of making the Court commit serious blunders resulting into unjust, illegal and farcical acquittal resulting into serious miscarriage of justice. The Court inter alia held that it is only when the panch is selected in conspiracy with the complainant or if the panch is selected ultimately with a view to wreak vengeance upon a particular person with oblique and malafide motive, then such evidence of a selected panch has to be discarded. When a police officer selects any person as a panch as he ordinarily selects him with a view to see that he is not rendered vulnerable and amenable to the influences of the accused or his friends, associates and relatives who obviously in order to earn easy acquittal would not fail to administer threat, promise or inducement to back out from the case. To this extent, the concerned Police Officer acts legally and within his right to select panch. However, as against this, if there is any material brought on record showing malafide and colourable exercise of power in selecting panch as his mouthpiece for securing patently false conviction, then in that case, evidence of such selected panch has got to be discarded. Therefore, a panch can also be selected in a normal ordinary way while discharging the duty as a good efficient police officer and panch can be selected by malafide colourable exercise of power for false implication. In both these cases, panchas are selected. Therefore mere label of selected panch should not by itself be permitted to carry any weight any obsession with the Court unless of course it is brought on record that they were so selected and selected only with a view to see that the honest person was illegally sent behind the bars at any cost. If this material is not forthcoming on the record, one cannot simply label out a witness as a selected witness throwing him out of all considerations and acquit the accused. The Court further held that the Investigating Officer has to apply himself fully with a view to see that he selects the right person only as a panch who is strong enough to withstand any sort of inducement, promise or threat to be influenced to deviate from the prosecution case. Therefore, in absence of any material on the record, it would be prejudicial to say that when the police officer selects a panch, he selects him with a view to see that he will depose whatever way the concerned police officer liked and dictated. One cannot and should not draw such unwarranted inferences and presumptions against a police officer in absence of material on record. To draw such unfounded inferences presumption is not only unfair but sounds incredible as a Judge. Applying the aforesaid principles to the facts of the present case, it is true that the Investigating Officer had sent a request to the GEB office for sending two trustworthy persons to act as panchas, however, in absence of any material on record to indicate that the witnesses have any axe to grind against the accused so as to falsely implicate them and secure conviction at any cost or any other material to assail the credibility of the said witnesses, the contention that merely because requisition had been sent by the Investigating Officer to a particular office, the panchas being selected witnesses are not independent witnesses cannot be accepted.
9.2 Another contention which has been raised is that the panchnama written and dictated by the police as per the say of the panch cannot be treated as a panchnama. That the basic requirement is that it should be in the words of the panch. As in the facts of the present case, it is an admitted position that the panchnama was dictated by the police officer and not the panchas, the panchnama is required to be discarded. The panchnama is also assailed on the ground that different versions are forthcoming from different witnesses as regards who had actually dictated the panchnama to submit that the panchnama becomes questionable as there are inconsistent versions as regards the author of the panchnama. Reliance is placed upon a decision of this Court in Kanubhai Kantibhai Patel vs. The State of Gujarat, 1998 (1) G.L.H. 924 for the proposition that where the panchnama was not dictated by the panchas, but was dictated by the police officer investigating into the matter, no reliance could be placed thereon because it was not the record prepared on the basis of what was told by the panchas and what the panchas heard and saw. Insofar as this contention is concerned, it is true that the panch No.1 P.W.2 has deposed that he had not taken part in writing the panchnama. He has further deposed that the police had written the panchnama on their own and the same was not read over to them. That it had taken about 20 minutes to read the panchnama and that the same appeared to be correct. He has also stated that he had never taken part in any trap proceedings as a panch in any Anti-Corruption Bureau case on an earlier occasion and, therefore, had no experience of writing a panchnama. That the panchnama was written by the Writer and that Mr. Rana, Police Sub-Inspector had dictated the same. From the facts emerging on record, it is apparent that the panchnama has not been dictated by the panchas, however, that by itself, would not render the panchnama inadmissible in evidence. What is required to be seen is as to whether the contents of the panchnama were as per the say of the panchas or as to whether the panchas had mechanically signed the same. In the facts of the present case, it is apparent that after gathering the facts from the panchas, the panchnama has been noted down and the panchas after reading the same have ascertained the facts stated therein and thereafter have signed the same. It has been brought out in the cross-examination of the panch that he had read the entire panchnama and had found the same to be proper and that it had taken him about 20 minutes to read the panchnama. The said witness has also admitted that he had no knowledge as to how to write a panchnama in an Anti-Corruption Bureau trap case and that the same was written by the police Officer. Considering the evidence on record, this Court is of the view that it cannot be stated that the panchas have mechanically signed the panchnama and the contents thereof are not as per the say of the panchas. When the panchnama reveals the correct facts as admitted by the panchas, and the panchas have, after duly verifying the facts, found the contents to be true and signed the same, it cannot be said that the panchnama does not bear the version of the panchas. The decision of this Court in Kanubhai Kantibhai Patel (supra) would not come to the aid of the appellants inasmuch as in the said case, the Police Inspector had dictated the panchnama to his Writer Police Constable and the panchas were asked to sign mechanically. It is in those circumstances that the Court had not accepted the panchnama as a supporting piece of evidence. In the circumstances, the version that the panchnama is not admissible in evidence does not merit acceptance.
9.3 As regards the character of the complainant, Mr. P.K. Jani learned advocate for the appellant No.3 has invited the attention of the Court to the testimony of the complainant P.W.1 and more particularly to his cross-examination in paragraphs 3 and 4 of this deposition. In his cross-examination, the complainant in reply to the suggestion that some inquiry is pending against him, has stated that he is not aware of that. He has stated that as the period of his bond was over, he has given resignation and started his private practice. He has denied the suggestion that he has given resignation as there was an inquiry against him. In reply to the suggestion as to whether any Court case is pending against him in any Court, he has replied that he is not aware of that. He has stated that there is no particular reason for obtaining a loan of Rs.12,000/- from the District Panchayat Employees' Bank and has admitted the fact that out of the said loan, an amount of Rs.2,300/- is still outstanding and that the Nominee Court has instituted a suit against him for recovery of Rs.6,600/-. He has denied the suggestion that any departmental proceedings are pending against him; that despite the fact that 30 persons ought to have been operated upon, the forms had been filled in to show that such operations had been carried out and the amount of incentive was obtained. He has denied the suggestion that he had accepted the amount despite not carrying out operation and that since the departmental inquiry had been initiated against him, he had tendered his resignation. In the aforesaid background, Mr. Jani, learned advocate submitted that the complainant who holds an M.B.B.S. degree has involved himself in three or four issues. The conduct and character of the complainant does not inspire confidence and his conduct is highly debatable, controversial and questionable and as such his evidence cannot be accepted without any independent corroborative evidence. In the background of the aforesaid facts and contentions, insofar as the character of the complainant is concerned, from the evidence emerging on record, it appears that some complaint had been lodged against him which has subsequently been compromised. He had obtained a loan in respect of which recovery proceedings in respect of part of the loan had been instituted against him. As regards the allegation that he has accepted the amount despite not having carried out the operations, nothing has been brought on record to prove the said allegation. In the circumstances, nothing substantial has been brought out against the complainant so as to impeach his character. Besides, nothing has been brought on record to indicate that the complainant has any axe to grind against the appellants - accused so as to falsely implicate them in any offence. It may be apt to refer to the following observations of the Supreme Court in State of U.P. vs. Dr. G.K. Ghosh, (1984) 1 SCC 254:-
By and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort whilst doing so. Thereafter, he has to attend the court at the time of the trial from day to day. He has to withstand the searching cross-examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go-bye to the rules, the official refuses to yield.
9.4 From the facts emerging on record, the complainant was, at the relevant time, a Medical Officer who had been transferred from Nandasan to Hadol. He would not be interested in falsely implicating the accused since he too would have to face the rigours of being a witness to the trial. All this while, he would have to remain away from his job and would have to sacrifice his time and efforts in doing so. For the purpose of prosecuting the appellants - accused, the complainant would be required to face all the hazards of having to attend the Court at the time of the trial from day to day and to withstand the searching cross-examination by the defence counsel as if he himself is guilty of some fault. In the circumstances, when nothing substantial has been brought out against the complainant to assail his character, his evidence cannot be easily or lightly brushed aside.
10. Re-appreciating the evidence on record, this Court would be required to examine as to whether the prosecution has successfully established the three basic ingredients of a trap case, viz., the initial demand, the demand prior to acceptance and the acceptance. Insofar as the initial demand is concerned, the evidence led by the prosecution is by way of the testimony of the complainant - P.W.1 who has stated in his examination-in-chief that on 12th April, 1988, he had met the accused No.1 in the office of the Kadi Taluka Panchayat. He has stated that he had asked the accused No.1 as regards the status of his arrears bill. Accused No.1 initially did not give any direct answer, however, thereafter, he told the complainant that he should try and understand and that he should do something for him so that his arrears bill can be sanctioned. P.W.1 has further deposed that he had replied that his bill was a legal bill and that there was nothing underhand about it, hence, he was not required to give anything to the accused No.1. Accused No.1 replied that whether the bill was correct or incorrect, they take 10% of the bill towards commission. At that rate, he is required to give Rs.640/-, however, he being a Medical Officer, he would take only Rs.500/- to complete the formalities. The complainant has further deposed that he did not have Rs.500/- and the accused No.1 told him that he should come on the day after with Rs.500/- and in case, he did not come he (accused No.1) would raise objections and would not let his bill be passed.
Hence, he had gone to the ACB office on 13th April, 1988 and lodged his complaint. The complainant has supported the complaint lodged by him and the contents thereof. In his cross-examination in paragraph 8, the complainant has stated that on the very same day that he had talked to the accused No.1, he had lodged the complaint. The date of the complaint and the date of demand of bribe are the same i.e., 13th April, 1988 and that there does not appear to be any mistake in that regard. In the complaint, P.W.1 has stated that on 12th April, 1988, he had gone to the office of the Taluka Development Officer at Kadi to enquire about his arrears bill at about 11.00 a.m. and had found that his bill was still pending with Deputy Accountant Mr. Mathurbhai, i.e., the accused No.1, hence, he met him and asked him as to why the bill was not sanctioned, whereupon the accused No.1 informed him that the bill was lying with him and it was he who had to get it sanctioned through the Taluka Development Officer. The accused No.1 had further told the complainant that the bill would not be sanctioned as it is. That the complainant was never seen in the office, hence, how could his bill be sanctioned? For getting his bill sanctioned, he is required to understand something. The complainant told him that he does not come to the office unless he has some work and also asked him as to what he was required to understand. Accused No.1 told him that he was required to pay him Rs.500/- for getting his bill sanctioned. In case he does not do so, queries would be raised and the bill would be stalled and he would not get money from him. The complainant told him that it was his arrears bill and why should he have to give him money. Accused No.1 told him that no work was done without money and that he was new and did not know much. Thereafter, left with no option, the complainant told him that he had Rs.300/- which he could pay and he should let go the demand of Rs.500/-. However, the accused No.1 insisted that he had not asked for 10% of the bill and that nothing can be reduced from that and that Rs.500/- will have to be paid for the bill. The complainant told him that he did not have that much amount and would give the same in a day or two whereupon the accused No.1 told him that he should come with Rs.500/- on 15th April, 1988 and on that day, the Taluka Development Officer would also be present in the office throughout the day, hence, the arrears bill as well as cheque would also be ready and he could take it personally. Hence, the complainant told him that he would come with Rs.500/- on Friday but he should get the bill sanctioned and keep the cheque ready.
10.1 ACB Police Inspector Mr. Vinod J. Vyas - P.W.4 has testified that the complaint had been recorded as per the say of the complainant - Dr. Ashraf Diwan. Mr. M.T. Rana - P.W.3 who, at the relevant time, was Police Sub-Inspector has also deposed that the complainant had come to lodge his complaint on 13th April, 1988 and that the same was taken down as per his version. Thus, from the evidence referred to hereinabove, it is apparent that though later on, some discrepancy had crept in as regards the date of initial demand, the fact regarding initial demand is consistent. The version of the complainant as regards the initial demand in his examination-in-chief as well as the complaint lodged by him are quite consistent and except for the fact that in his cross-examination, the complainant has subsequently stated that the demand was also made on 13th April, 1988, there is no other discrepancy in the version of the complainant. In the circumstances, merely because there is a discrepancy in the date of the initial demand, it cannot be said that no such demand, as alleged, was made. On the basis of the evidence of the aforesaid witnesses, which finds corroboration in the complaint, the prosecution has successfully established the fact that there was an initial demand of Rs.500/- by the accused No.1, beyond reasonable doubt.
10.2 The next factor which requires to be addressed is as regards the demand prior to acceptance of the illegal gratification. Mr. Anandjiwala has submitted that to prove the fact of demand, there should be consistency between the evidence of the complainant and the panch. It is contended that there is material discrepancy as regards the conversation between the accused No.1 and the complainant in the deposition of the complainant and the panch No.1. It is submitted that the most important aspect as regards the demand prior to acceptance is that the panchnama is silent about the initial demand as to whether the accused No.1 had asked the complainant if he had brought the money. The second aspect is that there is discrepancy between the evidence of the complainant, panch No.1 and the panchnama. Attention is invited to the depositions of the prosecution witness No.1 (Exh.21), P.W.2 at Exh.23 and the panchnama (Exh.24).
10.3 Insofar as the evidence regarding demand prior to acceptance of illegal gratification, the complainant has in his deposition stated that they had gone to the Taluka Panchayat Office to the table of the accused No.1 who asked him So, doctor, you have come . So, he replied in the affirmative whereupon the accused No.1 asked him whether he had come with money or had come empty-handed whereupon the complainant told him that he had come with Rs.500/-. Thereafter, the accused No.1 told him to go to Nandasan and call the Computer Clerk Mr. Harishbhai Vyas or bring a chit from him whereupon the complainant and panch No.1 went outside and told the ACB raiding staff about what had transpired. Thereafter, P.W.1 has referred to the events regarding going to Nandasan and getting the chit from the accused No.4 and then returning to Taluka Panchayat Office, Kadi where they met the accused No.1. He gave the chit given by the accused No.4 to the accused No.1 who read it and kept it with him. Thereafter, the accused No.1 asked the complainant whether he had really brought the money to which the complainant replied in the affirmative and then the accused No.1 asked the person sitting next to him namely, accused No.2 - Khamarbhai that he should go outside with the doctor and carefully ascertain the sum of Rs.500/- and take it from him and thereafter, he would give him his share and take the balance amount. In his cross-examination, P.W.1 has stated that he was not aware as to whether the talk between him and the accused No.1 when they met first time had been recorded in the panchnama. He has stated that he was present when the panchnama was made and that the facts regarding the conversation between him and the accused No.1 as recorded in the panchnama are true. He has denied the suggestion that no other talks had taken place between him and the accused No.1. He has stated that the talk between him and the accused No.1 to the effect that the accused No.1 had asked him whether he had come empty-handed or had brought money had actually taken place but was not written in the panchnama. He has stated that he was not aware that as the cheque was drawn in favour of the Medical Officer, Primary Health Centre, Nandasan, the cheque could not be handed over to him personally. He has further denied the suggestion that he had said that the accused No.1 told him to come on 15th April, 1988 and take the cheque personally. He has stated that the accused No.1 had told him that he should come on Friday with Rs.500/- and that he would get the bill sanctioned and keep his cheque ready which he should come personally and take. He has denied the suggestion that the accused No.1 had told him that the cheque was ready, however, it could not be handed over to him personally and that he should call Mr. Harish Vyas from Nandasan.
10.4 Panch No.1 P.W.2 has, in his deposition, stated that when they had gone to the Panchayat office, the accused No.1 was sitting in his chair and doing some work. He told them to be seated. They sat there for some time and the complainant asked for his bill. The accused No.1 was busy with his work for some time and after finishing the same, he told him that his bill was ready and that he should go to Nandasan and call the Computer Clerk i.e. accused No.4 or bring a chit from him so that he could hand over the cheque to the complainant. Thereafter, the accused No.1 talked with the complainant about 'give and take'. Thereafter, they came outside and met the ACB Police Inspector Mr. Vyas. P.W.2 has thereafter narrated the facts regarding going to Nandasan and getting the chit. He has further deposed that after getting the chit, they returned to Kadi and he and the complainant approached accused No.1 and the complainant gave the chit to accused No.1. Accused No.1 asked accused No.2, who was sitting next to him, to go outside. This witness has stated that he did not know as to why Khamarbhai-accused No.2 was sent outside. Thereafter, he and the complainant were sitting inside and accused No.2 had gone outside. After some time, the complainant got up and went after him. Insofar as panchnama (Exh.24) is concerned, there is no mention about any demand having been made prior to the complainant and the panch going to Nandasan for calling accused No.4 or getting a chit from him. However, the panchnama records that after returning from Nandasan, the complainant and panch No.1 had again gone to the Accounts Branch whereupon the accused No.1, upon seeing the complainant, commented that he had come very fast. The complainant and panch No.1 were seated on chairs opposite accused No.1 and the complainant took out the chit from his pocket and gave it to accused No.1 and said that accused No.4 had given the said chit. Accused No.1 opened the chit and read it and asked the complainant as to whether he had brought Rs.500/- as per their talk whereupon the complainant had said that he had brought the said amount. Thereafter, accused No.1 told the complainant that he was sending accused No.2 outside and that he should give the amount to him. Both the complainant as well as panch No.1 have been cross-examined at length. However, nothing substantial has been elicited to shake their testimonies. In his deposition, the complainant has stated that when they reached the office of the accused No.1 at the first instance, the accused No.1 had asked him whether he had brought money with him and at the second instance, when they returned with the chit, the accused No.1 had asked him as to whether he had actually brought money with him and on the reply being given in the affirmative, he had asked the accused No.2 to go outside and collect Rs.500/- after ascertaining the amount from the complainant whereas panch No.1, in his deposition, has stated that at the first instance, after the accused No.1 told the complainant to call Mr. Vyas (accused No.4) else to bring a chit with him, there was a talk of 'give and take' between the complainant and the accused No.1. However, as regards the second instance, he has stated that upon the chit being given to accused No.1, he had asked the accused No.2 to go outside. However, the witness was not aware as to why he was sent outside. Thereafter, he and the complainant had gone out and the accused No.2 had called one person (accused No.3) and asked him to accept the money from the complainant. P.W.2 has also stated that he read the panchnama and that the facts stated therein were correct. Though the narration as regards the demand of amount prior to acceptance slightly differs in the version put forth by the panch in his deposition as compared to the panchnama, the discrepancy is not of such a nature so as to destroy the prosecution case as regards demand prior to acceptance. The say of the complainant as regards the demand at the first instance finds support in the deposition of the panch, who though has not stated in specific words, has stated that there was some talk about 'give and take'. Considering the evidence of the complainant and the panch witness which finds corroboration in the panchnama (Exh.24), this Court is of the view that the prosecution has succeeded in establishing, beyond reasonable doubt, the demand prior to acceptance.
10.5 Insofar as the third factor namely, acceptance is concerned, it has been contended by Mr. Anandjiwala, learned advocate for the appellants No.1 and 2 that as per the prosecution case, it is the accused No.3 Nagarbhai who had actually accepted the bribe. However, he has been acquitted by the Trial Court. It is contended that if the accused No.3 had accepted the amount to facilitate the other accused, he would also have been convicted for abetment. The prosecution has not been in a position to prove the aspect of acceptance as regards both the accused No.1 and 2 inasmuch as it is the accused No.3 who had accepted the amount. It is the prosecution case that the accused No.2 came out of the office at the instance of the accused No.1 and he called the accused No.3 and told him to accept the amount. Thereupon, the accused No.3 accepted the amount and put the amount in his pocket and thereafter, the raid was carried out. The panch witness has deposed that the accused No.1 directed the accused No.2 to go outside and he does not know for what reason, he was asked to go out. It is accordingly submitted that therefore, the say of the complainant that the accused No.1 directed the accused No.2 to accept the money from the complainant and that he would give his share to him and that he would keep the remaining amount is not corroborated at all. The complainant himself has, in paragraph 11 of his evidence, admitted that it is not mentioned in the panchnama you take Rs.500/- and share will be given . It is submitted that, therefore, the complainant has made an improvement with deliberations to implicate accused No.2 with the charge of aiding and abetting. It is submitted that regarding acceptance of amount by accused No.3, the version of accused No.3 Nagarbhai who is an absolutely independent person and not a public servant is different. Attention is invited to the written reply given by the accused No.3 to point out that his defence was that he was going to the Taluka Panchayat office as he had to obtain a certificate for his brother from the Taluka Development Officer. As the TDO was not present, he was sitting at a tea stall. At about 12:00 hours the complainant approached him and told him that he wanted to make a phone call to Nandasan and asked if there was any telephone facility nearby, whereupon he had taken the complainant to a place of an acquaintance to make the phone call. The complainant registered a call but it did not get through, hence he went away. At about 2.00 p.m., when he was going to enquire about the TDO, he came across the complainant in the compound of the Taluka Panchayat Office. The complainant told him that he was required to pay Rs.500/- in the Accounts Branch and that there was nobody in the branch, and requested him to pay the amount on his behalf, whereupon he asked him to do it himself. However, the complainant told him that he was required to go to Nandasan and hence, he should do that much work for him and at that time, by saying so, the complainant gave him Rs.500/- and put it in his pocket. At that time, the ACB personnel caught him and seized the amount from him. It is submitted that considering both the stories of the prosecution as well as the accused No.3, the version of accused No.3 is more probable. It is submitted that there is nothing on record to show that the accused No.2 had prior acquaintance with accused No.3. It is more probable that when the accused No.1 refused to give cheque to the complainant and as the complainant found that the trap is likely to fail, he decided to trap the accused in this manner. Mr. J.K. Shah, learned Additional Public Prosecutor has submitted that from the evidence on record, it is apparent that the accused No.3 had accepted the amount of Rs.500/- on behalf of accused No.1, 2 and 4 and that merely because there was no acceptance by accused No.1, 2 and 4, it cannot be said that the prosecution has failed to prove the aspect of acceptance. It is submitted that the prosecution has successfully brought on record the fact that the accused No.1 had asked accused No.2 to accept the sum of Rs.500/- from the complainant and that the accused No.2 had asked the accused No.3 to accept the same from the complainant. Hence, it has been established that the accused No.3 had accepted the amount on behalf of the accused.
10.6 Insofar as the aspect of acceptance is concerned, the prosecution has tried to establish the factum of acceptance by examining the complainant and panch No.1 P.W.2. The complainant, in his deposition, has stated that after they returned from Nandasan with a chit from accused No.4, accused No.1 after reading the chit had asked him if he had brought the money and on the reply being given in the affirmative, accused No.1 told accused No.2, who was sitting next to him, to go outside and accept the sum of Rs.500/- after ascertaining the amount from the complainant and that he would give him his share and keep the remaining amount with him. Thereupon, accused No.2 took the complainant to the tea cabin in the compound of Taluka Panchayat office where he was accompanied by panch No.1. The accused No.2 called out to one Narayanbhai saying that he had some work with him. Narayanbhai who was standing near the tea cabin came to the accused No.2 whereupon the accused No.2 told him that he had some work with him. Narayanbhai asked him as to what was the work. The accused No.2 told him that he should keep whatever amount the doctor (complainant) gives him and that he (accused No.2) would take the amount from him in the evening. The complainant had thereafter identified accused No.3 and has further deposed that thereafter, he had taken five currency notes each of the denomination of Rs.100/- from his pocket and after counting the same, handed over the same to accused No.3 and in return, accused No.3 counted the currency notes and after ascertaining the sum of Rs.500/-, had told him that the amount is correct and that there is a full amount of Rs.500/-. At this stage, accused No.2 shook his head whereupon the accused No.3 put the money in the hip-pocket of his pant. It is stated that thereafter upon the pre-arranged signal being given by him, the ACB raiding party came to the spot and caught hold of accused No.3 and asked him to hand over the money. It is further stated that thereafter, the ACB officers had disclosed their identities and thereafter, had taken accused No.2 and 3 to accused No.1 in the office of the Taluka Panchayat. It is further stated that thereafter, all of them were called in one room and panchnama was drawn. At that time, all the accused persons except accused No.4 were present. Accused No.3 had taken out five currency notes of the denomination of Rs.100/- each whereupon the ultraviolet lamp test was carried out and bluish glowing marks were seen on the same. The numbers of the currency notes matched with the numbers of the currency notes recorded in the preliminary panchnama. The ultraviolet lamp experiment was also carried out on the hip-pocket of the pant of accused No.3 which showed bluish glowing marks. He was thereafter asked to take off the pant which was seized thereafter. The ultraviolet lamp test was carried out on the hands and thumbs of the accused as well as the right hand and thumb of the complainant which indicated bluish glowing marks. In his cross-examination, queries were put to the complainant as regards the presence of other staff members in the room. He has denied the suggestion that he had said that take the money and give the cheque. He has categorically stated that he had not touched the money or taken out the same inside the office. He has agreed to the suggestion that when so much work is going on, a person sitting in the office would not ask for money. He has denied the suggestion that accused No.1 had given the chit to accused No.2 when he came to the office of the Taluka Development Officer to telephone accused No.4 and call him and that accused No.2 had forgotten the chit when he went to make a call. Hence, local police had been called as the chit was not given. He has also denied the suggestion that when accused No.2 returned after making the telephone call, accused No.3 was coming to the office. He has denied the suggestion that at that point of time, no one was accepting the amount and the trap was about to fail, hence, he had forcibly handed over the amount to accused No.3 and told him to give the money in the office. He has denied the suggestion that when he was going to make a telephone call, he had come across accused No.3 and had asked him as whether there was a telephone booth nearby and that he had shown him the place where there was a telephone. He has denied the suggestion that with a view to forcibly implicate accused No.1, he had lodged a false complaint as he was not handed over the cheque by him personally. He has denied the suggestion that accused No.3 had taken him to the place of his acquaintance for making a telephone call. He has also denied that accused No.3 was going towards the office of Taluka Development Officer at which point of time he had given him Rs.500/- and asked him to hand over the same in the Accounts Branch. Panch No.1 P.W.2 has deposed that after they returned from Nandasan, the complainant had handed over the chit to accused No.1. Accused No.1 had asked accused No.2 to go outside however, he did not know why he had been asked to go outside. Thereafter, he and the complainant were sitting inside the office and accused No.2 had gone outside. Thereafter, the complainant and panch No.1 also got up. In the meanwhile, accused No.2 had called one person (accused No.3) and had told the complainant to give the amount to the said person. Therefore, the complainant had handed over five currency notes each of the denomination of Rs.100/- to the said person which that person kept in the pocket of his pant. Thereafter, on giving the pre-arranged signal, the ACB party had come and conducted the raid. They had revealed their identities to the accused and asked them not to move and enquired about their names. Thereafter, they had gone to the Accounts Branch and accused No.1 was asked to give his name and all other details. Thereafter, he was called and asked to take out the money from the pocket of accused No.3. At that time, he came to know that the name of that person was Nagarbhai. He has stated that at that point of time, all the four persons involved in the incident namely, accused No.1, 2, 3 and 4 were present. He has further deposed that immediately, the currency notes were seized and on the said Muddamal currency notes as well as the pocket of the pant of the accused No.3 as well as on his hands and the right hand of the complainant, the ultraviolet lamp test was carried out and bluish glowing marks were seen. Upon the examination being carried out on his hands, bluish glowing marks were seen. In his cross-examination, he has denied the suggestion that the accused No.1 had instructed to make a telephone call and sent him outside. Nothing further has been elicited in the cross-examination of this witness. The version given by the panch witness finds corroboration on all material aspects in the panchnama (Exh.24). From the evidence of the complainant and panch No.1 which finds corroboration in the panchnama, it is apparent that after the complainant and panch No.1 returned from Nandasan with a chit written by accused No.4, the same was handed over to accused No.1 who thereupon asked the complainant as to whether he had brought Rs.500/- with him and on getting a reply in the affirmative, asked him to hand over the same to the accused No.2. At the same time, he also asked accused No.2 to go out and accept the amount from the complainant. After the complainant, the panch No.1 and accused No.2 went outside, accused No.2 called accused No.3 and asked him to accept the amount and retain the same with him stating that he would take the amount from him in the evening. It is true that there are certain discrepancies in the version of the complainant, the panch No.1 and the panchnama as regards the conversation between the accused No.1 and the complainant. However, the version given by the panch witness is substantially corroborated by the version recorded in the panchnama which, according to the panch witness, had been signed by him as the same revealed the correct facts. Besides, the discrepancies in the evidence of the two witnesses and the facts recorded in the panchnama are not substantial in nature so as to go to the root of the matter and shake the prosecution case. From the evidence discussed hereinabove, it is apparent that the prosecution has successfully established that the amount was accepted by accused No.3 directly at the instance of accused No.2 and indirectly at the instance of accused No.1. In the circumstances, the prosecution has successfully established the aspect of acceptance by accused No.1, 2 and 3.
10.7 Insofar as the appellant No.3 (accused No.4) is concerned, Mr. P.K. Jani, learned advocate has submitted that the said accused has been convicted under Section 165-A of the Indian Penal Code i.e. abetment of offence under Section 161 of the Indian Penal Code. It is submitted that in the facts of the present case, the conviction under Section 165-A of Indian Penal Code on the evidence led is not sustainable. It is submitted that in view of the Government Resolution dated 22nd March, 1988, whereby the non-practicing allowance of Medical Officers came to be revised, the complainant was entitled to an amount of Rs.6,400/- towards arrears. He had accordingly submitted an application with details to the Primary Health Centre, Nandasan and the office of the Primary Health Centre had sent the bill to the Panchayat Office at Kadi. On 02nd April, 1988, the Taluka Panchayat Office had communicated to the Medical Officer, Nandasan to give a certificate for Non-Practicing for the said period. The complainant gave the certificate on 11th April, 1988 and the bill was sanctioned as there was due compliance. It is accordingly submitted that on 11th April, 1988, the Taluka Panchayat Office had completed all necessary formalities and had issued a cheque in the name of the Medical Officer, Primary Health Centre, Nandasan for a sum of Rs.8,116/- on 13th April, 1988. It is urged that the version of the complainant is required to be examined in the background of the aforesaid facts. It is further submitted that the complainant in his complaint lodged on 13th April, 1988 has not stated anything against accused No.4, hence, there is nothing against the accused No.4 by the complainant in his first version. Referring to the deposition of the complainant, it is pointed out that in the entire deposition, the complainant has not attributed anything against the accused No.4 and what is stated is against the accused No.1 and 2. It is submitted that the case put up against accused No.4 is that on 15th April, 1988, when the complainant went to Kadi, he was asked to call the accused No.4 or else bring a chit from him pursuant to which, as the accused No.4 was not in a position to go to Kadi, he had written down a chit with a view to facilitate the complainant. It is this chit (Exh.45) which has been held as an evidence against the accused No.4 and that in fact, the accused No.4 has been convicted only on the basis of the said chit. In support of his submission, the learned advocate has placed reliance upon a decision of this Court in Kishorchand Mansukhlal Joshi vs. State of Gujarat, 1985 GLH 103, for the proposition that in a corruption case, the whole case depends on the credibility of only two persons, the complainant and the panch. The career of a public servant depends on the evidence of the two persons and when examined carefully, ultimately it would depend upon one person and that one person would be a person who would be a panch witness in the case. It is submitted that the creditworthiness of that person would be the most important criteria. One unscrupulous complainant, if could find out one person to support him, the career of any public servant could be put to an end. Under these circumstances, caution demands that evidence of the complainant and the panch should be such by which no doubt is left in the mind of a Judge in regard to the credibility and ultimately, therefore, acceptability of the evidence of the complainant and the panch witness. It is also contended that in view of the provisions of Section 313 of the Code, it is incumbent upon the Court to put incriminating material against the accused whereas in the facts of the present case, proper details of the accusations against the accused No.4 were not brought to his notice. It is submitted that while recording the statement of the accused No.4 under Section 313 of the Code, the incriminating material against him qua the offence under section 165-A of the Indian Penal Code was not put to him as to how he had abetted the offence under Section 161 of the Indian Penal Code. In support of his submission, the learned advocate has placed reliance upon a decision of the Apex Court in Latu Mahoto and another vs. State of Bihar (now Jharkhand), (2008) 8 SCC 359 for the proposition that if the Court fails to put the needed question under Clause (b) of sub-section (1) of Section 313, it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. The Court held that it is well-settled that a circumstance about which the accused was not asked to explain cannot be used against him.
10.8 It is true that insofar as the accused No.4 is concerned, the only incriminating material available against him is that he has abetted the offence by writing a chit. Examining the evidence insofar as the culpability of accused No.4 in respect of the offence alleged is concerned, it may be pertinent to refer to the testimony of the complainant - P.W.1 and the panch witness - P.W.2. The accused No.4 is not an employee of the Taluka Panchayat and he is a Computer Clerk in the Primary Health Centre at Nandasan. The complainant in his complaint as lodged on 13th April, 1988 has involved only accused No.1 and no accusation has been made against any other accused. In his deposition, the complainant has stated that when he went to the Accounts Branch of the Panchayat office in connection with the raid, the accused No.1 had asked him if he had brought money with him to which he had replied that he had brought Rs.500/-. Thereafter, the accused No.1 told him to go to Nandasan and call the Computer Clerk Mr. Vyas or, in the alternative, to bring a chit from him. Thereafter, the complainant and panch No.1 had gone outside and talked to ACB Police Inspector Mr. Vyas and had left for Nandasan. Upon reaching Nandasan, they had met accused No.4 who had told them that it is not possible for him to come to Kadi personally and that he had other personal work and told them that on their handing over the chit written by him, their work would be done. Insofar as the involvement of accused No.4 is concerned, the prosecution has placed great reliance upon the chit (Exh.45) written by him, the panchnama (Exh.24) as well as the testimony of the complainant and the panch No.1. The contents of the chit (Exh.45) as translated into English read as under:-
As per the talk that had taken place between us and Dr. Diwan after completing the same give him his cheque so that he can be paid the amount. Be sure to give him the cheque. Be sure not to make any mistake.
In his deposition, the complainant has stated that he went to Nandasan and told accused No.4 as to what accused No.1 had told him and accused No.4 had told him that he had some work and could not come and that he is writing a chit which should be given to accused No.1 whereupon his work would be done. As regards the settlement of accounts, they would settle the same when they meet personally. The panch No.1 in his deposition has stated that they had gone to Nandasan and upon enquiry, it was found that the complainant told accused No.4 about the bill and told him that accused No.1 had called him whereupon accused No.4 asked him if he had brought as per the talk between them, to which the complainant replied in the affirmative. Accused No.4 then told the complainant that he was not in a position to come but that he would write a chit for him. Thereafter, accused No.4 wrote a chit on a piece of paper and gave it to the complainant. From the aforesaid evidence, it is apparent that there was some talk between the complainant, accused No.1 and accused No.4 with regard to payment of some amount for passing the complainant's bill and issuance of cheque. Though the complainant has not, in specific words, stated that accused No.4 had demanded any amount, from his deposition, it is apparent that accused No.4 had told him that his work would be done upon his giving a chit to the accused No.1 and that he would settle the account with accused No.1 when he meets him personally. The deposition of panch No.1 clearly shows that accused No.4 was aware of some talk of payment as he had put a specific query to the complainant if he has brought as per the talk. The evidence of the said witnesses finds corroboration in the panchnama (Exh.24). From the facts emerging on record, it is apparent that initially accused No.1 had made a demand on 12th April, 1988. Prior to the acceptance also, accused No.1 had made a demand for payment of illegal gratification and had thereafter asked the complainant to go to Nandasan and call the accused No.4 or ask him to give a chit in writing. It was only when the chit from accused No.4 was handed over to accused No.1 that accused No.1 asked the complainant to hand over the bribe amount to accused No.2. Thus, it is apparent that all the accused had connived in the offence and that accused No.4 was also a party to the offence. From the reply given by the accused, no explanation has come forth to justify as to why the chit was required for handing over the cheque to the complainant. Though it has been sought to be contended that for the innocent purpose of helping the complainant, accused No.4 had written the chit, no explanation is coming forth as to why such a chit was insisted upon in the first place. Referring to the evidence of the panch witness, the learned advocate for the accused No.3 had submitted that there was no question of accused No.4 asking the complainant as regards having brought the amount, which is nothing but an improvement. In this regard, it may be pertinent to note that the deposition of the witness is in consonance with the contents of the panchnama. If there was any contradiction in the evidence of panch No.1, the same has not been brought on record during the course of his cross-examination. Besides, in the deposition of the complainant, there is reference to the settlement of accounts for completion of work. The panch No.1 has specifically deposed that accused No.1 had asked the complainant whether he had brought as per the talk with accused No.1. From the evidence of the panch witness and the complainant duly corroborated by the panchnama, it is more than evident that there was some prior discussion between accused No.1, the complainant and accused No.4 where some amount had been settled. The insistence on the part of accused No.1 for a chit from accused No.4 also gives an indication regarding the involvement of accused No.4.
10.9 Insofar as the contention that while recording the statement of accused No.4 under Section 313 of the Code, the incriminating material against him qua the offence under Section 165-A of the Indian Penal Code was not put to him, the same does not merit acceptance for the reason that all the incriminating material which has been brought on record has been put to the accused No.4. Reliance placed upon the decision of the Apex Court in Mahendra Singh Chotelal Bhargad vs. State of Maharashtra and others, (supra) is misconceived inasmuch as in the said case, the appellant therein had been convicted for abetment whereas the main accused had been acquitted.
Hence, the charge for abetment could not have stood on its own whereas in the facts of the present case, the accused No.1 has been convicted under Section 5 sub-section (2) of the Act read with Section 161 of the Indian Penal Code, hence the said decision would not be applicable to the facts of the present case.
11. In a trap case under the Corruption Act, if during the course of trial the prosecution proves that the accused has accepted or obtained gratification other than legal remuneration, the court has to presume the existence of the further fact in support of the prosecution case, viz., that the gratification was accepted or obtained by the accused as a motive or reward such as mentioned in section 161 of the Indian Penal Code. The presumption, however, is not absolute. It is rebuttable. The accused can prove to the contrary. In the facts of the present case, whereas the prosecution has successfully established demand, acceptance and recovery of illegal gratification, the appellants - accused have not been able to rebut the presumption satisfactorily. In the impugned judgment, the learned Judge has discussed the evidence in detail and has given sufficient, cogent and convincing reasons for arriving at the conclusion of guilt as regards accused No.1 and 2. Insofar as the reasoning adopted by the learned Judge qua the involvement of appellant No.3 (accused No.4) is concerned, though the learned Judge has resorted to conjectures and surmises at certain places with which this Court is not in agreement, for the reasons stated in this judgment, this Court is in agreement with the conclusion arrived at by the learned Judge.
12. As a result of the above discussion, the submission made on behalf of the appellants (accused No.1, 2 and 4) in respect of the merits of the case cannot be accepted and the conclusions arrived at by the Trial Court, after due appreciation of the evidence on record, are not required to be interfered with for the above reasons. So far as the merits of the matter are concerned, this appeal has no substance.
13. At the same time the alternative submission advanced by the learned advocates for the parties for reduction in the sentence awarded by the Trial Court is concerned, the same requires consideration. Mr. Anandjiwala, learned advocate for the appellants No.1 and 2 has submitted that the appellants are persons who have suffered immeasurably on account of the conviction and sentence awarded by the Trial Court as well as on account of the prosecution against them. It is submitted that the appellant No.1 is now aged 65 years. He and his wife aged 62 years, are residing in a village and are maintaining themselves by cultivating agricultural land admeasuring 7 bighas. Their only son resides separately at Ahmedabad. The appellant No.1 is suffering from High Blood Pressure and has been hospitalised thrice on account of heart-attack, angiography, etc. The appellant's wife is suffering from severe arthritis and is not able to do anything in a standing position. It is submitted that as it is the appellant is suffering undue hardship which is likely to be increased, if he is required to undergo imprisonment at this stage. As regards appellant No.2, it is submitted that he is 65 years of age and is suffering from old age disability, has two illiterate sons doing labour work, who are married and do not earn sufficiently to maintain a large family. Mr. P.K. Jani, learned advocate for the appellant No.3 has submitted that in view of the prosecution, in the present case, the appellant has been dismissed from service. He has two daughters and a son who have suffered immensely for 21 years on account of the social disgrace on account of the appellant having been convicted for an offence under the Prevention of Corruption Act; that the appellant would have retired as a Taluka Officer that on account of his dismissal has been reduced to doing puja work and Brahmanical services; that the appellant has been punished enough in terms of financial and economical death; that not only the appellant but his entire family has suffered; that in the event of the Court finding him guilty, the appellant may be sentenced till rising of the Court which would meet the ends of justice. In support of their submissions the learned advocates have placed reliance upon the decision of the Apex Court in (1) T.M. Joseph vs. State of Kerala, 1993 Suppl. (1) SCC 465, and (2) Rupsingbhai Punabhai Patel vs. State of Gujarat, 2006 (3) GLR 2700, wherein this Court had accepted the submission made by the learned counsel for the appellant to reduce the sentence while maintaining the conviction and imposition of fine by the judgment impugned. Coming to the question of sentence, there are certain circumstances that have to be taken into consideration. The occurrence took place in April 1988. Almost 22 years have passed by since then. During the said period the appellants were out of job and have undergone trial for a number of years. Appellant No.1 and 2 are more than 65 years of age and appellant No.3 is 58 years of age. In similar circumstances, the Apex Court in T.M. Joseph (supra) has referred to an earlier decision in B.G. Goswami vs. Delhi Administration and has observed that appellant suffered agony and the harassment of the proceedings for over seven years and he is also going to lose his job and has to earn for himself and his family members and for those dependent on him and, therefore, to meet the ends of justice, the sentence is reduced to the period already undergone . In the case before the Supreme Court, no proof had been placed as regards any imprisonment suffered by the appellant therein during the trial stage. The Apex Court, in light of its earlier decision, confirmed the conviction and reduced the sentence of one year's Rigorous Imprisonment to 15 days on each count. The sentence of fine, however, was confirmed.
13.1 Considering the facts of the present case, in light of the decision of the Apex Court in T.M. Joseph (supra) and Rupsingbhai Punabhai Patel (supra), this Court is of the view that on the question of sentence, the circumstances narrated by the learned advocates for the appellants can be taken into consideration. Considering the fact that the occurrence took place in April 1988; the Trial Court convicted the appellants in 1992; and this appeal has been heard at the end of 2009; almost 22 years have elapsed since the date of occurrence. Since then, the accused were out of job and have undergone trial for a number of years. Appellant No.1 and 2 are aged about 65 years and appellant No.3 is aged 58 years. The appellants have suffered the agony and harassment of the proceedings for several years and have undergone a lot by suffering on account of the trial as well as the conviction. Therefore, having regard to the peculiar facts and circumstances of this case, this Court is inclined to accept the submission of the learned counsel for the appellants to reduce the sentence while maintaining the conviction and maintaining the sentence of fine by the judgment impugned. The appellant No.1 has been convicted for the offence under Section 5(2) of the Prevention of Corruption Act read with Section 161 of the Indian Penal Code and is convicted to undergo Rigorous Imprisonment for 5 years for the offence under Section 5(2) and Rigorous Imprisonment for 1 year for the offence punishable under Section 161 of the Indian Penal Code. Both the sentences are directed to run concurrently. This Court is of the view that ends of justice would be met if the sentence of imprisonment awarded to the extent of Rigorous Imprisonment for 5 years for the offence under Section 5(2) of the Act is reduced to Rigorous Imprisonment for one month and for the offence punishable under Section 161 of the Indian Penal Code, the sentence is reduced to Rigorous Imprisonment for 10 days.
13.2 Insofar as appellants No.2 and 3 are concerned, they have been convicted for the offence punishable under Section 165-A of the Indian Penal Code and have been sentenced to undergo Rigorous Imprisonment for one year and pay fine of Rs.300/- and, in default, to undergo Rigorous Imprisonment for six months. The ends of justice would be met if the sentence of imprisonment awarded to the appellants to the extent of Rigorous Imprisonment for one year be reduced to Rigorous Imprisonment for 10 days.
14. In view of the above, the appeal is partly allowed. While maintaining the conviction awarded by the Trial Court against the appellant No.1 for the offence punishable under Section 5(2) of the Prevention of Corruption Act, the appellant No.1 is sentenced to undergo Rigorous Imprisonment for one month instead of Rigorous Imprisonment for 5 years as awarded by the Trial Court and for the offence punishable under Section 161 of the Indian Penal Code, the appellant No.1 is sentenced to undergo Rigorous Imprisonment for 10 days instead of Rigorous Imprisonment for one year as awarded by the Trial Court and the quantum of sentence of imprisonment is reduced to that extent. Both the sentences shall run concurrently. The amount of fine imposed by the Trial Court is not interfered with. Insofar as appellants No.2 and 3 are concerned, while maintaining the conviction awarded by the Trial Court against the appellants for the offence punishable under Section 165-A of the Indian Penal Code, the appellants No.2 and 3 are sentenced to undergo Rigorous Imprisonment for 10 days instead of Rigorous Imprisonment for one year as awarded by the Trial Court and the quantum of sentence of imprisonment is reduced to that extent. The amount of fine imposed by the Trial Court is not interfered with. The rest of the appeal of all the three appellants except reduction of sentence of Rigorous Imprisonment stands dismissed.
15. The appellants accused are on bail and their bail bonds shall stand cancelled. However, in the facts and circumstances of the case, the appellants are granted time to surrender before the Trial Court for serving of sentence upto 01st April, 2010.
( Harsha Devani, J. ) hki Top