Gujarat High Court
Tarachand Jethabhai Chauhan (Since ... vs State Of ... on 6 June, 2016
Author: S.G.Shah
Bench: S.G.Shah
R/CR.A/2753/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2753 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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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 or any order made thereunder ?
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TARACHAND JETHABHAI CHAUHAN (SINCE DECEASED TH'GH L/H'RS) &
1....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
DECESED LITIGANT, ADVOCATE for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1.1
MS JK HINGORANI, ADVOCATE for the Appellant(s) No. 1.1
MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 06/06/2016
CAV JUDGMENT
Page 1 of 9
HC-NIC Page 1 of 9 Created On Tue Jun 07 01:00:53 IST 2016 R/CR.A/2753/2008 CAV JUDGMENT The appellant is convicted by the impugned judgment and order dated 22/9/2008 in Special Case No. 52/2003 by the Special Judge, ACB of Ahmedabad for the offences punishable under sections 7, 13[2] read with 13[1][d] of the Prevention of Corruption Act [for short 'the Act']. The Special Judge has awarded sentence in the form of rigorous imprisonment [RI] for a period of six months with fine of Rs.250/- and in default of payment of fine, to undergo simple imprisonment [SI] for a period of one week for the offence punishable under section 7 of the Act; whereas RI for one year with fine of Rs.250/- and in default of payment of fine, to undergo SI for a period of one month for the offence punishable under section 13[2] read with section 13[1][d] of the Act.
2 While admitting the appeal on 3/12/2009, this Court has released the appellant on bail.
3 The case of the prosecution before the trial Court is to the effect that when the complainant - Rasulbhai Husenbhai Shaikh has received a telephone bill of huge amount of Rs.6,085/-, he approached the Telephone Department where present appellant has, for extending benefit of reducing the amount of bill and to pay it in instalment, demanded illegal Page 2 of 9 HC-NIC Page 2 of 9 Created On Tue Jun 07 01:00:53 IST 2016 R/CR.A/2753/2008 CAV JUDGMENT gratification and bribe of Rs.250/- and accepted five currency notes of Rs.50/- each during the trap managed by the CBI on receipt of the complaint by the complainant. After trial, when there was sufficient evidence against the accused, the Special Court has awarded sentence as aforesaid.
4 Before scrutinizing the evidence on record, it is to be recollected that now the law is well settled in such cases, which confirms that for confirming conviction under the Act i.e., for accepting illegal gratification as a bribe by a public servant, there must be cogent and reliable evidence without reasonable doubt so as to prove that -
i] There is prior demand before raid ii] There is demand at the time of raid iii] There is acceptance of tainted currency notes by the accused just before the raid and iv] Possession of tainted currency notes by the accused at the time of raid.
Therefore, if all above four ingredients are properly proved, then conviction cannot be interfered with only because there is possibility of different view to be taken on re-appreciation of evidence.
Page 3 of 9HC-NIC Page 3 of 9 Created On Tue Jun 07 01:00:53 IST 2016 R/CR.A/2753/2008 CAV JUDGMENT 5 The law is well settled so far as re- appreciation of evidence is concerned, which confirms that if there is trust worthy and reliable evidence of the witnesses to confirm particular act, then only because there is possibility of second or another view, the appellate Court should not come to different conclusion on re-appreciation of evidence only because the appellant so desired for confirming his acquittal. In the background of above settled position, if we scrutinize the evidence on record, it transpires that practically there is no substance in the appeal inasmuch as most of the witnesses have categorically confirmed the commission of offence by the accused as alleged in the charge-sheet.
6 I have considered the submissions advanced by the learned advocate for the appellant and perused the record. The basic evidence to be scrutinized is only to confirm that whether there is lack of any of the grounds mentioned herein or that whether there is any lacuna in the evidence which can raise a presumption in favour of the accused to extent benefit of doubt in his favour. Unfortunately, the evidence is clear on all such issues and there is neither lacuna nor shortfall in any of Page 4 of 9 HC-NIC Page 4 of 9 Created On Tue Jun 07 01:00:53 IST 2016 R/CR.A/2753/2008 CAV JUDGMENT the evidence which is discussed as under.
7 The charge is framed at exh. 3 on 15/9/2005 when it is alleged that to help the complainant in reducing the amount of his bill and to pay it after sometime, the appellant - accused has demanded Rs.250/- and as agreed between the complainant and accused, he accepted tainted currency notes of Rs.50/- each on 8/10/2001 near his office. To prove such charge, the prosecution has examined four witnesses.
7.1 P.W. No. 1 - Babubhai Somdas Patel at exh. 14 is Chief Accounts Officer of Bharat Sanchar Nigam Ltd., Ahmedabad Telecom District, who has confirmed and proved the sanction to prosecute the appellant. He simply confirms that there is provision in the Department to accept the amount of bill by part payment and that he has relied upon police papers for granting the sanction. However, it does not confirm anything in favour of the appellant - accused except to confirm that after accepting bribe, the accused was able to help the complainant in accepting part-payment against telephone bill of the complainant.
7.2 P.W. No. 2 - Sunil Revabhai Makwana at exh. 17, who has identified the accused before the Page 5 of 9 HC-NIC Page 5 of 9 Created On Tue Jun 07 01:00:53 IST 2016 R/CR.A/2753/2008 CAV JUDGMENT Court and who categorically deposed that when he accompanied the complainant, as instructed by the raiding officer, to his office, the appellant - accused has asked the complainant that have you brought [money] and when the complainant has said that yes he has brought it as asked for, then the appellant accused has called them in the lobby of his office and then demanded the money and thereupon the complainant has handed over him tainted currency notes which were accepted by the accused and he put them in the pocket of his shirt. Thereupon, the complainant has given pre- arranged signal and hence raiding party has come and raid was conducted which was successful when tainted currency notes were found from the pocket of the shirt of the accused and thereupon shirt was also seized as Muddamal article after conducting necessary test. During cross- examination, the appellant could not rebut such positive evidence or prove his innocence in any manner whatsoever. The only suggestion which requires consideration is to the effect that during communication between the complainant and accused at the time of raid, there was no disclosure regarding the work for which such amount was paid. However, it will not help the appellant because that fact is already on record, both in the form of complaint and his deposition.
Page 6 of 9HC-NIC Page 6 of 9 Created On Tue Jun 07 01:00:53 IST 2016 R/CR.A/2753/2008 CAV JUDGMENT 7.3 P.W. No. 3 is complainant - Rasulbhai Husenbhai Shaikh, who is examined at exh. 21. This witness has in clear and categorical words narrated entire story right from the receiving telephone bill of huge amount of Rs.6085/- till raid is completed. In nutshell, it is his case that when he approached the accused with reference to his huge bill, accused has demanded Rs.250/- so as to reduce the bill amount and to accept the same in part payment, but since he was not willing to pay Rs.250/- as demanded by the appellant - accused, he contacted ACB office, who managed the raid. While supporting the version of the panchnama, it is categorically stated by the complainant that on the date of the incident when he has reached to the office of the appellant with panch witness, the appellant has asked him that whether he has brought [money] and when he replied in affirmative, the accused has taken them to the lobby of the office, where he again asked for the money, which was paid by the complainant in presence of panch in the form of tainted currency notes and immediately thereupon sign shown by the complainant, raiding party has conducted the raid, which was successful inasmuch as tainted currency notes were found from the pocket of the shirt of the appellant and thereupon such shirt was also seized after conducting necessary test regarding presence of Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue Jun 07 01:00:53 IST 2016 R/CR.A/2753/2008 CAV JUDGMENT althracene powder. During cross-examination, the appellant not only unsuccessful in rebutting his evidence or to prove his innocence, but on the contrary, dragged himself into confirming conviction when witness has now categorically stated that the demand of Rs.250/- was towards illegal gratification in the name of 'Cha - Pani' for threat from the appellant that if the amount is not paid, then his telephone line may be disconnected. Therefore, to continue the telephone line, the appellant has no option but to either pay Rs.6085/- to the Department or to surrender to the accused by satisfying his demand of Rs.250/- against which the appellant has promised to reduce the amount of bill and to accept such amount by part payment.
7.4 P.W. No. 4 - Keshavlal Kodarlal Patel is examined at exh. 23 and P.W. No. 5 - Vakhatsinh Devisinh Vanar examined at exh. 25 are raiding and investigating officers and, therefore, they have perfectly supported the prosecution case, so also charges and other details and as usual, the accused cannot rebut their evidence so as to prove his innocence. The complaint at exh. 22 is also confirming the entire facts and circumstances which led to conviction of the appellant. Other documentary evidence on record also confirms that the appellant has reason for Page 8 of 9 HC-NIC Page 8 of 9 Created On Tue Jun 07 01:00:53 IST 2016 R/CR.A/2753/2008 CAV JUDGMENT demanding bribe so as to extend some benefits to the complainant and when there is positive evidence regarding all four ingredients which are listed hereinabove, I do not see any substance or reason to interfere with the reasoned impugned judgment.
8 I have perused the impugned judgment in detail. I do not find any illegality, irregularity or arbitrariness in the impugned judgment. Therefore, I do not see any reason to interfere with the impugned judgment.
9 In the result, there is no substance in the appeal and the same is hereby dismissed. R & P be sent back to the concerned trial Court.
(S.G.SHAH, J.) * Pansala Page 9 of 9 HC-NIC Page 9 of 9 Created On Tue Jun 07 01:00:53 IST 2016