Gujarat High Court
Jilubhai Manubhai Vaghela vs State Of ... on 19 February, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/234/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 234 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
================================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
================================================================
JILUBHAI MANUBHAI VAGHELA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
================================================================
Appearance:
MR KB ANANDJIWALA, ADVOCATE for the Appellant(s) No. 1
MR HK SONI APP for the Opponent(s)/Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 19/02/2015
ORAL JUDGMENT
1. The appellant has filed this Appeal challenging the judgment and order of conviction and sentence passed by the learned Special Judge, City Sessions Court, Court No.2, Page 1 of 30 R/CR.A/234/2000 JUDGMENT Ahmedabad, in Special Case No.15 of 1994 dated 15.2.2000, by which the appellant - accused is convicted and sentenced for the offences punishable under Sections 7, 13(1)(d) which is punishable under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "The Act"). The learned Special Judge has convicted the appellant accused for the offence punishable under Section 7 of the Prevention of Corruption Act and awarded sentence to the appellant to suffer simple imprisonment for six months and to pay a fine of Rs.500/, i/d, to further undergo simple imprisonment for one month, whereas the appellant was ordered to suffer 18 months simple imprisonment for the offence under Section 13(1) (d) which is punishable under Sections 13(2) of the Act and to pay a fine of Rs.500/, i/d. to suffer one month simple imprisonment. The learned Special Judge has ordered that all the sentences shall run concurrently.
2. The prosecution version as reflected in the complaint to be briefly stated, is the effect that the complainant Ramjaysingh Parasnath Rajput gave complaint on 25.10.1993 before the ACB office, Ahmedabad stating that he run Government fair price shop in the name of "Santosh Sahkari Bhandar Ltd." Jivrajpark. The said society is registered vide Sr. No.3423/88 with the District Registrar, Cooperative Societies, Page 2 of 30 R/CR.A/234/2000 JUDGMENT Ahmedabad. The complainant was Chairman of the said society and there were 11 managing committee members. The District Collector issued necessary permit to run said fair price shop. According to the complainant, the audit of the said registered society was required to be done by the auditors of the District Registrar, Cooperative Societies as the audit of the society could not be done from the year 1988-92. The complainant wanted to have cash credit facility for the society from the Ahmedabad District Cooperative Bank Ltd. in the year 1992 and for the same purpose, audit report was required to be submitted in the bank and in absence of audit work, no credit facility from the bank could be obtained. For doing audit work, several letters were written by the society. The complainant also wrote letter to the District Registrar to permit the society to get the audit work done through the private auditor. By this time, the complainant got the audit work done for the year 1988-91 through Government approved private auditor Shri K.T. Patel Associates, Ahmedabad.
According to the complainant, in the month of July, 1993, one officer came to the office of the society and told that there were dues of the society and inspite of that, how you have changed from Odhav to Jivrajpark ? In this regard, the complainant stated that their society was never working at Page 3 of 30 R/CR.A/234/2000 JUDGMENT Odhav and it is at Jivrajpark from the very beginning and the society has not obtained any loan. Inspite of the said fact, the officer told the complainant to come with him at the office of District Registrar and on enquiry from the records, it came to know that there were no dues pending in the name of the society, but there was another society in the name of the complainant's society in whose name due amount was shown. Thereafter, the complainant made representation to the District Registrar to do the audit work of the year 1992-93 and the District Registrar assured that it would be done shortly. According to the complainant, in the month of August, 1993, present appellant came to the shop of the complainant and introduced himself as auditor in the Cooperative Societies and stated that he was appointed as Special Auditor to audit the work. The appellant demanded the books of accounts of the society. The complainant produced Rojmel, Khatavahi, vouchers etc. from the year 1988 till date before the present appellant and the appellant took away with him all the account books at his office by saying the complainant to come later on to his office. On 19.9.1993, the complainant went the office of auditor of District Registrar, Ahmedabad at Relief Shopping Center and met the appellant, who told the complainant that audit of five years were pending and therefore, audit fees of Page 4 of 30 R/CR.A/234/2000 JUDGMENT Rs.1,298/- was required to be paid and for not raising objection in the five years audit, present appellant told the complainant that at the rate of Rs.2000/- per year, the complainant would have to pay Rs.10,000/- for five years. Therefore, the complainant told the appellant that he would pay the official amount but for the amount of Rs.10,000/-, he will have to ask the managing committee members. Thereafter, present appellant told the complainant to come on 22.9.1993. Therefore, on 22.9.1993, the complainant along with the members of the managing committee went to the office of the appellant, but they found that the present appellant was on leave for 10 days. On 6.10.1993, when the complainant was not at this office, the appellant came to the shop where Narsinh Ramdhari who used to weigh the articles of the fair price shop, was present to whom one letter was given by the appellant. In the said letter, the appellant demanded certain information and also called the complainant at his office. Accordingly, on 11.10.1993, when the complainant went to the office of the appellant, the appellant demanded Rs.10000/- as earlier. Therefore, the complainant told that the society ran on no profit no loss basis and therefore, he could not give such amount even though appellant went on demanding the amount.
Page 5 of 30
R/CR.A/234/2000 JUDGMENT According to the complainant, on 23.10.1993 at about 11:00 a.m., the appellant came on scooter at the shop of the complainant, where the complainant and cashier Brijnath Shamsunder Pathek were present. The appellant told the complainant that you did not give the amount so what he wants to do. To this, the complainant told that the society was not having black money and society was not doing any profit business and therefore, there was no possibility of giving amount. Therefore, the appellant told the complainant to pay Rs.200/- towards scooter petrol and Rs.500/- for Diwali. Therefore, the complainant agreed and as he was not having money, he took Rs.200/- from Mr. Pathak, Secretary and gave to the appellant 2 currency notes of Rs.100/- each. The appellant told the complainant to give him Rs.500/- on 25.10.1993 at his office by saying that on receiving said amount, he would complete the audit work.
The complainant was not ready and willing to pay the amount of bribe to the appellant, therefore, he approached the ACB office and registered the complaint against the appellant. Therefore, ACB officer called two panchas from the office of Sale Tax Department, Laldarwaja, Ahmedabad. The ACB Officer Mr. H.K. Patel introduced the complainant to the panchas and the panchas showed their willingness as panchas in the case. Page 6 of 30
R/CR.A/234/2000 JUDGMENT Thereafter, the complainant produced 5 currency notes of Rs.100/- each which numbers and denominations were noted down. The said currency notes thereafter were given to the lamp operator for experiment of anthracene powder and ultra violet lamp and then anthracene powder was applied to currency notes and introduced the characteristics of said articles and experiment was carried out by ultra violet lamp. Then trap was arranged and the complainant was instructed about the talk with the appellant and at time of acceptance made by the appellant, the complainant would have to raise both the hands and also tainted currency notes should be given to the appellant. The panch No.1 was also instructed to remain with the complainant and hear and see the transaction of bribe amount. Thereafter, first part of the panchnama was completed at the ACB office duly signed by the panchas and P.I. ACB officer Mr. Patel. Thereafter, the complainant, panchas and members of raiding party went near GPO office and then, the complainant and panch No.1 came to know that the appellant went out from the office and second part of panchnama was completed duly signed by the panchas and P.I. Mr. Patel. Thereafter, on next day i.e. on 26.10.1993, as per the instructions of ACB officer, the panchas, complainant and other members of raiding party came to ACB office, where Page 7 of 30 R/CR.A/234/2000 JUDGMENT they were informed about the earlier complaint and facts of the panchnama. The complainant's left pocket of shirt was kept vacant, wherein 5 currency notes of Rs.100/- each were placed after carrying out the experiment. The panchas and members of raiding party were given the instruction as per the earlier day and then first part of panchnama was completed at ACB office duly signed by the panchas and P.I. Mr. Patel.
As per the case of the complainant, thereafter, the complainant, panchas and ACB members of raiding party reached near GPO at 11:05 a.m. and as decided earlier, went to the commercial center. At about 12:25 p.m., when the complainant and panch No.1 were waiting at the main gate for the appellant, the appellant came and after making initial talk, the appellant went to his office to put his briefcase. Thereafter, the appellant, the complainant and panch No.1 went towards S.V. College and occupied seats in a hotel. The panch No.2 and other ACB party members also followed them and took their position without causing any doubt on anyone. According to the complainant, at about 13:15 hrs., the complainant made agreed signal by raising his two hands and therefore, raiding party members rushed there and said Mr. Patel, P.I. Introduced himself and told the person not to make any move and on enquiry, the appellant told his name as Mr. Vaghela, Auditor Page 8 of 30 R/CR.A/234/2000 JUDGMENT (Grade II), District Cooperative Societies, Ahmedabad and residing at Sargasan village. The panch No.1 told that the tainted currency notes are in the left pocket of shirt of appellant. Thereafter, the members of raiding party, complainant, panchas and appellant as well as lamp operator went to the office of the appellant, where experiment of currency notes in ultra violet lamp was carried out. Thereafter, the ultra violet lamp was thrown on the hands of appellant, tips of fingers, thumb, below portions, palm portion of right hand as well as the borders of inside portion of the left pocket of shirt were showing the white shining marks in the light blue colour. At the instruction of P.I. Mr. Patel, panch No.1 was told to take out the articles from the left pocket of shirt worn by the appellant and under the light of ultra violet lamp, both the sides of tainted currency notes and flower designed calender which was near currency notes showing the light blue marks. Thereafter, the numbers and denominations of currency notes were tallied as per the first part of the panchnama. Then the tainted currency notes were seized by keeping paper duly signed by the panchas and said P.I. Mr. Patel for further investigation. The left pocket of shirt wore by the appellant where the shining marks were shown were encircled with pen duly signed by panchas and P.I. Mr. Patel. Then the receipts for Page 9 of 30 R/CR.A/234/2000 JUDGMENT the articles seized were given to the accused appellant and same receipts were duly signed by panchas, P.I. Mr. Patel and the appellant. Thereafter, second part of panchnama was completed including hotel boundaries. Said Mr. Patel, P.I. Thereafter recorded the statements of witnesses and the appellant prepared the report under Section 157 of the Code of Criminal Procedure, upon which the offence at C.R. No.10 of 1993 was registered at ACB Police Station. Thereafter, on further investigation, said P.I. Mr. Patel recorded the statements of rest of the witnesses including panchas, obtained the documents. By that time, said P.I. Mr. Patel was transferred. After investigation, for obtaining necessary permission for prosecution, the papers were sent to the competent authority of the appellant through the head office. It appears that on transfer of P.I. Mr. Patel, P.I. Mr. Barot received the necessary sanction for prosecution and kept in the record. Ultimately, the appellant was charge-sheeted.
3. In order to bring home the charge, prosecution had examined the witnesses and got exhibited a large number of documents. The following witness examined by the prosecution during the trial.
Sr. Name of the witnesses Exhibit No. P.W.1 Ramjaysingh Parasnathsingh Rajput 13 Page 10 of 30 R/CR.A/234/2000 JUDGMENT P.W.2 Sardarsingh Sanaji Vanjara 23 P.W.3 Jayeshkumar Babulal Brahmbhatt 25 4 Harjivan Keshavlal Patel 26 The prosecution produced following documentary
evidence to prove the case against the appellant.
Sr. Particulars Exhibit No. 1 Original complaint 14 2 Xerox copy of receipt dated 17.10.1992 15 3 Certified copy of order issued by the 16 office of the District Collector dated 4.10.1993 cancelling the authority letter No.302 and confiscating deposit amount of Rs.500/- in case No.17/93 4 Certified copy of order from District 17 Collector, Ahmedabad dated 4.10.1993 regarding confiscation of deposit amount of Rs.750/- in case No.17/93 5 Certified xerox copy of order from 18 District Collector, Ahmedabad, dated 4.10.1993 regarding seizure of 470 Kg.
Of what in case No.6/93 6 Certified xerox copy of order of District 19 Collector dated 19.4.1996 in respect of seizure of 21.250 Kg. Wheat and 11000 Kg. Of wheat In case No.191/95 7 Certified xerox copy of order of District 20 Collector dated 19.4.1996 regarding confiscation of deposit amount of rs.125/- and another Rs.188/- in case No.15/96 8 Xerox copy of letter written by present 21 accused to the complainant dated 6.10.1993 9 Xerox copy of challan showing the 22 payment made to Government treasury by the complainant society on 21.6.1994 Page 11 of 30 R/CR.A/234/2000 JUDGMENT 10 Original Panchnama duly signed by 27 panchas and P.I. Mr. Patel dated 25.10.1993 11 Receipt to accused 28 12 Original panchnama dated 26.10.1993 29 13 Sanction order dated 10.6.1994 30 14 Reply given by District Supply Auditor 31 to P.I. Mr. Patel dated 11.11.1993 along with xerox copy of letter showing recovery of audit fees 15 Reply given by District Supply Auditor 32 to P.I. Mr. Patel dated 26.10.1993 along with xerox copy of 1 to 55 pages
4. The trial Court, on appreciation of the evidence, came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts. While doing so, the trial Court has also considered the defence version and rejected the same. Accordingly the appellant was convicted and sentenced as stated above by the trial court. Therefore, the appellant has preferred present appeal.
5. Learned advocate Mr. K.B. Anandjiwala appearing on behalf of the appellant submitted that the impugned judgment and order is bad in law, illegal and unwarranted. He further submitted that learned Sessions Judge has seriously erred in convicting the accused without properly appreciating the evidence. He also submitted that the charge and the statement of the accused U/s. 313 of the Code of Criminal Page 12 of 30 R/CR.A/234/2000 JUDGMENT Procedure are not in conformity with the provisions of the Code.
6. Learned advocate Mr. Anandjiwala further submitted that from the evidence of the complainant, P.W.1, it appears he made payment of Rs.200/- to the accused on 23.10.1993 when the appellant came to his shop and demanded Rs.200/- for petrol expenses. Therefore, as per his submission, the complainant is held to be guilty for the offence of giving bribe. He further submitted that the complainant committed so many irregularities in past while running fair price shop. It is also submitted that Civil Supply Department took steps and certain grains and deposits were also confiscated and the society of the complainant was fined. He further submitted that by the order dated 4.10.1993, the District Collector, Civil Supply Department had also cancelled the authority letter given to the complainant. The complainant was also detained in Surat jail for the committing violations of provisions of Prevention of Black Marketing Act. He also submitted that in view of this position and conduct of the complainant, as per the settled principle of law, it would be hazardous to accept the testimony of the complainant having a poor moral fiber without there being any corroboration to his testimony from other independent witnesses. Learned advocate Mr. Anandjiwala Page 13 of 30 R/CR.A/234/2000 JUDGMENT further submitted that as per the evidence of the complainant, on 23.10.1993, the appellant came at his shop and made demand by the appellant of Rs.200/- for petrol expenses and Rs.500/- for Diwali and subsequently, the complainant P.W.1 made payment of Rs.200/- by borrowing the same from Mr. Pathak, who happened to be Secretary of the society. He further submitted that looking to this episode, it is clear that Mr. Pathak, Secretary of the society was present when the complainant gave Rs.200/- to the appellant, so Mr. Pathak can be considered as material witness. But in the present case, said Mr. Pathak, the material witness, is not examined by the prosecution during the trial. Therefore, as per his submission, the demand aspect of Rs.200/- cannot be said to be established and in turn acceptance of said amount, is also not established. He, therefore, submitted that there is no corroboration on this aspect to the testimony of the complainant. He further submitted that as far as remaining Rs.500/- is concerned, the appellant told the complainant to make payment of said amount within two days. However, as per the evidence of this witness, there was no agreement about the place, time etc. He also submitted that after two days i.e. on 25.10.1993, when the complainant, panchas and members of raiding party went to the office of the appellant, at Page 14 of 30 R/CR.A/234/2000 JUDGMENT that time, the appellant was not present at his office. Therefore, on the next day i.e. on 26.10.1993, the complainant, panchas and raiding party members again went to the office of the appellant at about 11:05 a.m. and at that time, the appellant was not present in the office. Therefore, the complainant and panch No.1 waited on the ground floor and at about 12:25 p.m., the appellant was straightaway taken them to the restaurant namely Jyoti Restaurant. As per the evidence of the complainant, the appellant asked about the arrangement of canteen to which the complainant replied in affirmative and subsequently made payment of Rs.500/- and the appellant further told the complainant that after the payment of Rs.10,000/-, report will be given. But, the complainant did not narrate in his statement recorded on 1.11.1993 before the police about arrangement of canteen as well as demanded amount of Rs.10,000/-. Learned advocate further submitted that on the other hand, the panch No.1, P.W.2, who was present with complainant at the restaurant, deposed in his chief that no demand was made by the appellant towards illegal gratification, however, the P.W.2 deposed that the appellant demanded Rs.3500/- for completion of audit work. Learned advocate therefore, submitted that in view of this position, it becomes crystal clear Page 15 of 30 R/CR.A/234/2000 JUDGMENT that the vital ingredients of corruption case i.e. demand of illegal gratification made by the appellant is not established as the evidence of two material witnesses i.e. complainant and panch No.1 are in contradiction with each other. Learned advocate also submitted that in cross-examination, the complainant admitted that on 25.10.1993 and 26.10.1993, the panchnama was prepared by same person as directed by the P.I. Mr. Patel. He therefore, submitted that Panch No.1 and Panch No.2 have not deposed in their respective evidence that the said panchnama was directed by the said P.I. and these Panch Nos. 1 and 2 merely deposed that merely there signatures were obtained on panchnama. Therefore, as per his submission, the panchnama is not as per the words of panchas and therefore, same looses its evidential value as well as the same creates doubt about the manner of investigation.
7. Learned advocate further submitted that here one aspect is required to be considered regarding dues of fees. In the present case, one letter dated 16.2.1993 at Exhibit 31 with respect to the recovery of Government dues, addressed by I/c. District Special Auditor, Cooperative Societies, Ahmedabad. The said letter clearly suggests that when there is huge amount of dues from the society in respect of loan, interest, audit fees etc., the District Special Auditor has to meet the Page 16 of 30 R/CR.A/234/2000 JUDGMENT concerned society and informed them to pay the Government dues. He also submitted that as per condition No.4 of the circular, in case audit fees are not paid, no further audit work would be done. Learned advocate therefore, submitted that in view of the said circular with respect to dues of audit fees, the appellant was oftenly going at the shop of the complainant for insisting of the payment of audit fees. He also submitted that moreover, the complainant after 8 months from the trap, made payment audit fees on 21.6.1994 and challan which is produced at Exhibit 22. Learned advocate therefore, submitted that in view of the dues of fees, the amount of Rs.500/- was accepted by the appellant under the pretext of audit fees and not towards any illegal gratification. He further submitted that the trap was carried at Jyoti Restaurant by the raiding party, but the panchnama was prepared at the office of the appellant and not at Jyoti Restaurant. He therefore, submitted that as per settled principle of law, the panchnama has to be drawn at the place of incident only in presence of two independent witnesses in corruption case. Here though number of independent witnesses were present at Jyoti Restaurant, the panchnama was not drawn at Jyoti Restaurant and therefore, it creates doubt about the investigation. Learned advocate further submitted that in the present case, no experiment of Page 17 of 30 R/CR.A/234/2000 JUDGMENT ultra violet lamp was carried out at Jyoti Restaurant, where the trap was made. Learned advocate further submitted that even the P.I. Mr. Patel did not find any shining marks inside the pocket of the shirt of the appellant and also on the telephone diary. He further submitted that the recovery from the appellant is also doubtful when the smeared currency notes along with calendar and telephone diary were recovered from the pocket of the appellant then shining marks are bound to be there on the telephone diary. Learned advocate Mr. Anandjiwala submitted that the prosecution examined only four witnesses to prove the case against the appellant and the material witness Mr. Pathak, who borrowed the money to the complainant, was not examined by the prosecution. Therefore, the conviction and sentence is based on presumption only and not based on any cogent evidence. He further submitted that documentary evidence are not corroborating with the evidence of the witnesses. He also submitted that the complainant himself was involved in committing the offence and therefore, the Civil Supply Department took action against him and even the complainant had to remain jail at Surat for the offence under the provisions of Prevention of Black Marketing Act and therefore, as per his submission, the evidence of the complainant cannot be considered as reliable, trustworthy and Page 18 of 30 R/CR.A/234/2000 JUDGMENT acceptable for convicting the appellant in the present case. He further submitted that the accused made his defence in the statement recording under Section 313 of the Code of Criminal Procedure., but the learned Special Judge has not properly appreciated his defence. He also submitted that in absence of any cogent evidence against the appellant, the benefits of doubt is required to be given to the appellant. He lastly submitted that the impugned judgment and order of conviction and sentence is required to be quashed and set aside by allowing present appeal and the appellant may be acquitted of the charges.
8. Learned APP Mr. Soni for the State, vehemently opposed the submissions made by the learned advocate Mr. Ananjiwala for the appellant. As per his submission, the evidence of witnesses examined, cannot be rejected in toto. Learned APP also read further statement recorded under Section 313 of the Code of Criminal Procedure and submitted that the appellant has not explained properly the incident and the defence of the accused is not believable and he being the public servant demanded bribe other than legal remuneration, can be said to be serious offence under the provision of Prevention of Corruption Act. He also submitted that learned Special Judge has rightly appreciated the evidence produced on record and Page 19 of 30 R/CR.A/234/2000 JUDGMENT rightly held the appellant guilty for the alleged offence. He read the contents of evidence of P.W.1 complainant, and submitted that the said witness stated in his evidence that the accused told him to give Rs.10,000/- (Rs.2,000/- per each year for the audit purpose) towards the bribe from the complainant. This witness also admitted in his evidence that the accused demanded the money and same was given to the accused and therefore, marks of anthracene powder were found on the hands of the accused, tips of fingers, thumb, below portions, palm of right hand as well as borders of inside portion of the left pocket of shirt. The contents of his evidence and the contents of complaint and panchnama are corroborated wholly and, therefore, it cannot be said that the accused had not made demand by way of illegal gratification from the complainant. If the evidence of P.W.2, panch No.1, is carefully scrutinized, the demand on the part of the accused is very well proved, as the demand of illegal gratification from the complainant, was made by the accused in the presence of this witness. This witness also stated that the stains of anthracene powder were found on the body of the accused. He drew the attention of the oral evidence of witnesses examined by the prosecution and submitted that from their evidence, the main ingredient of demand as prescribed under the Act is proved. Page 20 of 30
R/CR.A/234/2000 JUDGMENT The recovery of the amount is not denied in any way because the amount which was given towards bribe was found from the accused and, therefore, it cannot be said that the amount was not recovered from the accused and if no demand is made how the amount was found from the appellant, at that relevant time, and same was smeared with anthracene powder. He also read the contents of panchnama and complaint. The accused had not explained his defence properly in his statement recorded under Section 313 of the Code of Criminal Procedure. Even the sanction to prosecute the case against the accused was just and proper. Therefore, on the aspect of sanction, it cannot be said that false complaint was filed against the accused because the competent Authority after verifying the papers, accorded sanction to prosecute the case against the person, who is involved in such kind of offence. Therefore, it is established that the accused was very well involved in the offence by considering other aspects of case like evidence, complaint and panchnama and other documents. He also submitted that the evidence on record is against the accused and therefore, there is no reason to disbelieve the case of the prosecution. Hence, the appeal may be dismissed.
9. Heard the parties and perused the record. It appears from the judgment that learned Sessions Judge has specifically Page 21 of 30 R/CR.A/234/2000 JUDGMENT made attempt to frame the charge in connection with demand and acceptance.
10. I have perused the record as well as judgment and order passed by the learned Sessions Judge. From evidence of P.W.1
- complainant, it appears that their cooperative societies was registered under the Cooperative Societies Act and having its fair price shop with licence to run it. As per evidence of this witness, the said society maintained accounts and same accounts were required to be audited by the auditor of the office of the District Registrar. It also appears that the audit work of the society from 1998-92 were pending and therefore, this witness made application for the audit of the same. This witness also stated in his evidence that in the month of August, 1993, the appellant came to his shop and told that he was auditor to do audit work of the society. This witness also stated that on 19.9.1993, he went to the office of the appellant, where he was told to give Rs.1298/- towards audit fees and Rs.2000/- per year (total Rs.10000/-) for not to raise any query in the account of the society. In response to the same, this witness told the appellant that he is ready to give real audit fees, but he will not able to pay other amount i.e. Rs.10000/-, as the society was not having any funds. Inspite of this, the appellant insisted for the bribe amount and therefore, Page 22 of 30 R/CR.A/234/2000 JUDGMENT this witness told him to call meeting of the Executive Committee members and he will come later on. Thereafter, on 22.9.1993, this witness went to the office of the appellant along with Secretary, but the appellant was not present in his office. On 6.10.1993, the appellant came to office of the complainant and the appellant gave one chit to one Narsinh Rambhai, stating that the appellant wanted certain books and also to meet with the complainant. Therefore, on 11.10.1993, this witness and his secretary met the appellant at his office and produced demanded books of accounts. At that time also, the appellant insisted for the another amount of Rs.10000/- and for audit fees Rs.1298/- and at that time, this witness shown unwillingness to give the other amount. As per the evidence of this witness, the appellant on 23.10.1993 went to the office of society and met this witness by saying that as demanded, the complainant has not paid the amount. At that time also, this witness showed his unwillingness, however, at the instance of the appellant, he paid Rs.200/- for petrol by borrowing the amount from the Secretary Mr. Pathak, who was there at that time. Then this witness approached the ACB office, where the ACB officer explained the procedure to the complainant as well as two panchas, who were called from the office of Sale Tax Commissioner. On 26.10.1993, the Page 23 of 30 R/CR.A/234/2000 JUDGMENT complainant, panchas as well as members of raiding party reached at the office of the appellant, but they came to know that the appellant was not available at his place. Thereafter, the complainant and panch No.1 were waiting for the appellant at the gate of said Relief Shopping Center, where the office of appellant was situated. At about 12:15 Hrs., the appellant came there and he came after leaving his brief case in the office. After sometime, the appellant came back and told the complainant for cup of tea. Therefore, the complainant, panch No.1 and appellant went to the Jyoti Restaurant at S.V. College Road. The appellant told the complainant "whether he (complainant) has arranged for the canteen?" In response to the same, the complainant said yes and he was having Rs.500/- and thereafter, the appellant made demand of Rs.500/-. According to this witness, he paid Rs.500/- to the appellant and same was accepted by the appellant with his right hand and placed the same in the left pocket of his shirt. Thereafter, this witness told the appellant about the report of the society. In reply, the appellant told the complainant that when you (complainant) pay the remaining amount of Rs.10,000/-, you will get the report. Thereafter, after making the payment of tea by the complainant, the complainant made pre-arranged signal to the members of raiding party and Page 24 of 30 R/CR.A/234/2000 JUDGMENT raiding party rushed to the spot. Thereafter during the search of the appellant, the tainted currency notes and other articles were found. In cross-examination of this witness, same averments were narrated by the witness and he has not denied about the demand made by the appellant. As per the evidence of P.W.2, panch No.1, it is stated by him in light of ultra violet lamp, the right hand fingers, thumb, below the said portion and palms of the appellant were showing white shining marks and left pocket of shirt of the appellant was also showing the shining marks. The numbers and denomination of such currency notes were tallied as per the panchnama dated 25.10.1993. This witness also stated that the complainant, appellant and this witness went for cup of tea to Jyoti Restaurant, where this witness seated nearby the appellant. He further stated that there was talk abut the audit registration and then the complainant told that he will get audit registered and he brought Rs.500/- and same amount was given to the appellant and the appellant put the said amount in the left pocket of his shirt. Thereafter, the complainant gave pre- arranged signal and raiding party members rushed to the spot. No doubt, later on, this witness was declared hostile. This witness also admitted that when this witness, complainant and appellant were at Jyoti Restaurant for cup of tea, at that time, Page 25 of 30 R/CR.A/234/2000 JUDGMENT the appellant asked the complainant as to what arrangement the complainant has made and therefore, the complainant told him that as per your (appellant) instruction, he has brought Rs.500/-. Therefore, the accused told the complainant that will not do and the complainant will have to bring other amount and then and then only, the appellant would sign the audit report. Besides this, the appellant told the complainant to pay Rs.500/- which you have brought and thereafter, the complainant will get the audit report but no compromise would be done. Thereafter, the complainant took out the money from his left pocket and paid to the appellant. The appellant accepted the said amount with right hand and placed it in the left pocket of shirt. Then the complainant made agreed signal and members of raiding party rushed to the spot. In support of prosecution case, P.W.3 deposed that he was panch No.2 in the trap and he repeated the same story narrated by the complainant and panch No.1, in his evidence. He also made signature in panchnama and he identified the same. Later on, this witness was declared as hostile, though in cross- examination, he supported the version of the complainant by admission. I have minutely perused the oral evidence of P.W. 4 P.I. Mr. Patel and this witness supported the version of demand made by the appellant from the complainant and the story Page 26 of 30 R/CR.A/234/2000 JUDGMENT narrated in the complaint.
11. I have also perused the complaint and panchnama and they are corroborated with the evidence led by the witnesses. Therefore, it is established that the accused demanded bribe money from the complainant and after arranging the trap, the recovery was made from the possession of the accused and therefore, the aspect of the acceptance is also proved. The stains of anthracene powder were found on the body of the accused. Therefore, it cannot be said that the accused had not demanded the bribe money and had not accepted the same.
12. Looking to the evidence on record, in my opinion, the appellant has failed to prove his probable defence and he has not explained as to how anthracene powder was found from the person of appellant - accused. Looking to the facts of the case, presumption under Section 20 of the Act is required to be drawn against the present appellant - accused. Section 20 of the P.C. Act reads as under :
"20. Presumption where public servant accepts gratification other than legal remuneration (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of subsection (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for Page 27 of 30 R/CR.A/234/2000 JUDGMENT himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause
(b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in subsection (1) and (2), the court may decline to draw the presumption referred to in either of the said subsections, if the gratification or Page 28 of 30 R/CR.A/234/2000 JUDGMENT thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."
13. From the perusal of the evidence, it is found that present appellant is a public servant and he, in his own capacity, had accepted the bribe amount from the complainant. So the conduct of the present appellant is proved by documentary as well as oral evidence. When he made demand of illegal gratification and when he accepted the same, then it is proved beyond reasonable doubt that the appellant has committed criminal misconduct. The aspects of demand and acceptance on the part of the appellant accused are very well proved by the prosecution. Merely the witness declared hostile, it cannot fatal the case of the prosecution. Here in the present case, the appellant is involved in the offence alleged and the documentary and oral evidence are against him from all the corners and therefore, this Court is not inclined to the consider the misconduct on the part of the complainant committed in past as stated by the learned advocate for the appellant in his submission and here this Court is dealing with the matter of corruption case.
14. Even As per Section 8 of the Evidence Act, the conduct of the accused is required to be considered. From the record it is Page 29 of 30 R/CR.A/234/2000 JUDGMENT clearly established that at the place of occurrence, the accused was found and from his possession the trap amount was recovered in presence of panch witness and hence conduct of the accused suggests that there was motive of the accused to commit the offence to get some illegal gratification. The trial Judge has rightly held the appellant - accused guilty for the aforesaid offences. Therefore, contention of the appellant - accused that the accused was wrongly involved in the commission of offence is not believable.
15. In view of the above observation, the Criminal Appeal No. 234 of 2000 is hereby dismissed. The judgment and order of conviction and sentence passed by the learned Special Judge, City Sessions Court, Court No.2, Ahmedabad, in Special Case No.15 of 1994 is hereby confirmed.
Appellant is on bail and in view of dismissal of appeal, his bail bond stands cancelled and he is directed to surrender before the Jail Authority within four weeks from the date of this order, failing which, the concerned Court shall issue nonbailable warrant against the appellant - accused to effect his arrest. R & P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED, J.) YNVYAS Page 30 of 30