Gujarat High Court
Girishbhai vs State on 17 February, 2010
Author: M.D.Shah
Bench: Md Shah
Gujarat High Court Case Information System
Print
CR.A/433/2009 1/ 33 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 433 of 2009
With
CRIMINAL
REVISION APPLICATION No. 330 of 2009
With
CRIMINAL
REVISION APPLICATION No. 293 of 2009
With
CRIMINAL
APPEAL No. 466 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
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 ?
=========================================================
GIRISHBHAI
MUKUNDRAY GANDHI - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
CRIMINAL
APPEAL NO.433 OF 2009
MR MB
PARIKH for
Appellant(s) : 1,
MR LR PUJARI, APP for Opponent(s) : 1,
MR
HARIN P RAVAL for Opponent(s) : 2,
MR YN RAVANI for Opponent(s) :
2
CRIMINAL
APPEAL NO.466 OF 2009
MR BS
PATEL FOR MR KAMAL M SOJITRA for Appellant(s) : 1,
MR LR PUJARI,
APP for Opponent(s) : 1,
MR HARIN P RAVAL for Opponent(s) : 2,
MR
YN RAVANI for Opponent(s) : 2
CRIMINAL
REV. APPLN. NO.293 OF 2009(SUO MOTU)
MR LR
PUJARI, APP for Opponent (s) : 1,
MR BS PATEL FOR MR KAMAL M
SOJITRA for Opponent No.2
CRIMINAL
REV. APPLN. NO.330 OF 2009(SUO MOTU)
MR LR
PUJARI, APP for Opponent (s) : 1,
MR MB PARIKH for Opponent (s) :
2
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 17/02/2010
COMMON ORAL
JUDGMENT
Both the appeals namely, Criminal Appeal No.433 of 2009 by the appellant-original accused No.2 and Criminal Appeal No.466 of 2009 by the appellant-original accused No.1 were filed being aggrieved and dissatisfied with the judgment and order dated 17-2-2009 passed by the learned Special Judge, CBI Court No.3, at Mirzapur, Ahmedabad, in Special Case No.33 of 1995 whereby the appellants have been convicted for the offences under Secs.120-B of Indian Penal Code ( the Code for short) and Secs.7 and 13(2) read with Sec.13(1)(d) of Prevention of Corruption Act ( the Act for short) and sentenced them to suffer RI for three years and to pay fine of Rs.5,000/- in each offence, in default, to suffer further imprisonment for three months. All the sentences were ordered to run concurrently.
Criminal Revision Appln. No.293 of 2009 has been initiated suo motu by the Court for enhancement of sentence vide order dated 20-3-2009 passed in Criminal Appeal No.466 of 2009 while Criminal Revision Appln. No.330 of 2009 has been initiated suo motu by the Court for enhancement of sentence vide order dated 17-3-2009 passed in Criminal Appeal No.433 of 2009.
The case of the prosecution in short is that a complaint was lodged by the complainant, Shri Harshadray Jamnadas Gadhia, who was running a travel agency at Savarkundla, before ACB Police Station, Bhavnagar, on 12-10-1994 against both the accused, who were working as Branch Manager and Field Officer respectively in the National Insurance Company at Bhavnagar, inter alia alleging that the accused demanded Rs.20,000/- from him for passing the accident claims. Hence, a raid was arranged by Police Inspector, Mr.D.L.Dodiya, ACB Police Station, Bhavnagar, by calling two panchas. As the accused were not available in their office, the said trap could not be succeeded. Thereafter, on 17-10-1994, at the instance of the complainant, again a trap was arranged by PI, Shri R.L.Gohil, by calling two panchas and both the accused were caught while demanding and accepting Rs.20,000/- as illegal gratification from the complainant. Shri Gohil then drew panchnama of scene of offence and on completion of other formalities, sent the papers to CBI for further investigation. The investigation was entrusted to Shri H.L.Wakodikar, who recorded statements of various witnesses and also collected sufficient evidence. At the end of investigation, as there appeared a prima-facie case, charge sheet was submitted in the Court against the accused before the CBI Court where the case was numbered as Special Case No.33 of 1995. The learned Special Judge framed charge against the accused at Ex.27 for the offences under Secs.120-B of the Code and Secs.7 and 13(2) read with Sec.13(1)(d) of the Act. The charge was read over and explained to the accused, who pleaded not guilty to the charge and claimed to be tried.
To prove case, the prosecution has examined several witnesses and also produced and relied on many documentary evidences. After recording the evidence of prosecution witnesses was over, further statements of the accused under Sec.313 of the Code were recorded.
On affording opportunity of hearing to the learned advocates appearing for the respective parties and on appreciation of evidence adduced by the prosecution, both oral as well as documentary, the learned Special Judge held the appellants-accused guilty and sentenced them as mentioned in the earlier part of the judgment, giving rise to the present appeals by the appellants-accused as also to the suo-motu revision by the Court.
Heard the learned counsels, Mr.M.B.Parikh for the appellant-original accused No.2, Mr.B.S.Patel for the appellant-original accused No.1, learned Addl. Public Prosecutor, Mr.L.R.Pujari for the State and learned counsel, Mr.Y.N.Ravani for the CBI in all the revisions. Also perused the record pertaining to the case.
It is submitted by learned counsels for the appellants-original accused that the impugned judgment and order of conviction and sentence is contrary to law and evidence on record. Taking this Court through the oral evidence of the complainant-P.W.No.7, Shri Harshad Ghadia, Ex.97; panch witness-P.W.No.2, Shri Bharatbhai Jinabhai; P.W.No.3-Rafiyuddin Shaikh, P.W.No.4-Manishbhai Chimanlal Daftari; P.W.No.5- Pratapsinh Bhimsinh Sisodiya and P.W.No.8-Vinodbhai Pathak, it is submitted by learned counsels for the appellants-original accused that there is contradiction between the evidence of the complainant and panch witness No.1. According to the evidence of these witnesses, the accused No.1 was out of town and accused No.2 had gone for lunch. There is further contradiction in the evidence of Officers of Insurance Company and the complainant pressurized these officers and got the vouchers prepared and implicated the accused falsely. According to them, the ingredients of demand, acceptance and recovery were not proved by the prosecution. It is further submitted that the trial court did not consider the relevant documentary evidence namely Ex.79 which is the voucher, Ex.80 which is the Surveyor's report, Exs.102 and 103, letters addressed to and by Vinodbhai Patel. Had these evidence been taken into consideration in its proper perspective, it would appear that the entire story put forward by the complainant was false and fabricated.
Mr.M.B.Parikh, learned counsel for the original accused No.2, has submitted that as per the FIR filed by the complainant, the original accused No.2 demanded Rs.15,000/- on 25-4-1994 for passing his claim but he did not pay the same as it was unaffordable. However, no complaint either under the provisions of the Act or any other provisions was filed. He has further submitted that it has come from the evidence of the complainant that the accused No.2, Shri Girishbhai is looking after the insurance of the vehicles of the complainant and he has accepted the amount towards the same. He has drawn the attention of this Court towards the law laid down by a Division bench of this Court in the case of Kishorchan and Mansukhlal Joshi Vs. State of Gujarat reported in 1985 G.L.H. Page 103 wherein it was held that in a corruption case, the case depends on the credibility of the complainant and the panch. It was also held that since the evidence of these two persons depend on the career of a public servant, their evidence has to be examined carefully. Here in this case, the complainant admitted in his cross-examination that the accused No.2 did not demand any amount as bribe and hence, the impugned judgment and order qua him is required to be quashed and set aside and he be acquitted.
It is submitted by learned counsel, Mr.B.S.Patel for the original accused No.1 that it is in the evidence of the complainant himself that he was asked to come on 12-10-1994 with money. However, the original accused No.1 was on tour on the said date and the accused No.2 was also not present in the office. Had the appellants asked the complainant to come on 12-10-1994 with an intention to accept illegal gratification, they would have remained present in the office. Their absence clearly speaks that they did not demand any illegal gratification. Hence, a serious doubt has been created as to the credibility of the version given by the complainant. Since the evidence of complainant is creating a serious doubt, the conviction cannot be sustained and hence, it is urged that the impugned judgment and order be quashed qua the accused No.1.
Ultimately, it is submitted by learned counsels for the accused that looking to the facts that the incident occurred in 1994, they were sentenced in 2009, they have already undergone more than 11 months in jail coupled with the facts that they were out of job for long, the sentenced imposed upon them may be reduced to some extent.
Learned counsel for the respondent-CBI, Mr.Y.N.Ravani, has submitted that prosecution has proved the aspect of demand, acceptance and recovery of illegal gratification by the appellants-accused from the complainant through trustworthy and reliable evidence of complainant and other witnesses supported by the documentary evidence such as Ex.83, the letter written by the Regional Office to the Divisional Office. When the case against the appellants accused has been proved beyond reasonable doubt, the learned Special Judge was right in passing the impugned judgment and order of conviction and sentence against the appellants-accused. He has relied on (2005) 12 Supreme Court Cases 576 in the case of Union of India through Inspector, CBI V s. Purnandu Biswas; 2002(2) G.L.H. Page 654 in the case of Subhash Parbat Sonvane Vs. State of Gujarat and (2009)6 Supreme Court Cases 587 in the case of A.Subair Vs. State of Kerala.
learned Addl. Public Prosecutor, Mr.L.R.Pujari for the State has adopted the submissions made by the learned counsel, Mr.Ravani.
This court has gone through the judgment and order passed by the learned Special Judge together with the oral as well as documentary evidence shown to me by the learned advocates appearing for the respective parties.
Here in the present case, to prove the case putforward by the prosecution, apart from the evidence of the complainant and the panch witness, the crucial witnesses in the case are the officers of M/s National India Insurance Company namely, P.W.3, Shri Rafiuddin Shaikh, Ex.69; P.W.No.5 Shri Pratapsinh Sisodia at Ex.82; P.W.No.6 Shri Hemant H.Desai at Ex.84; P.W.No.8 Shri Vinodbhai B.Thaker at Ex.101. Hence, their evidence are required to be gone into in great detail.
The first important and crucial witness is P.W.3, Shri Rafiuddin Shaikh, Ex.69, who, at the relevant point of time was serving as an Assistant Administrative Officer looking after accounts and computer sections in M/s National Insurance Company Ltd., Bhavnagar. He has deposed that when Shri Gadhia came to his office on 25-4-1994, his Manager, Shri K.O.Thakkar asked to prepare four cheques based on four vouchers. On the said instructions, Shri Nilesh Vasani, a Typist, prepared those cheques and putting his signature and that of Shri H.H.Desai, said cheques were given to Shri Thakkar to hand over the same to Shri Gadhia. He has further deposed that however said cheques were returned to him by Shri Thakkar in the evening for cancellation by saying that as they were not given to the party. He has further deposed that on verification of four claim files of Shri Gadhia by him and Shri H.H.Desai on the next day, a revised voucher for Rs.58,900/- prepared at the instance of Shri Thakkar was found to have been not authorized by him and hence, he and Shri Desai asked Shri Thakkar to invalidate said voucher but Shri Thakkar refused to do so stating that said cheques were not to be given to the party. He then requested Shri Gadhia through the Development Officer, Shri G.M.Gandhi to accept three cheques already authorized and to accept fourth cheque of Rs.49,028/- only but not of Rs.58,900/-. Shri Gadhia however insisted for the cheques of full amount. He has further deposed that he, Shri Desai and Shri Sisodia convinced Shri Gadhia to accept three cheques on 8-7-1994 and stated that since cheque of Rs.58,900/- was not authorized, it could not be given. He has further deposed that bound counterfoil of cheques at Ex.72 contained counterfoil of cancelled cheque for Rs.58,900/-. He has further deposed that cheque for Rs.58,900/- was prepared based on voucher at Ex.73 and voucher at Ex.76 is its duplicate. He handed over some documents to P.I. of CBI, Shri Wakodikar. He has further deposed that Shri Thakkar was on tour and Shri Gandhi was in office on 12-10-1994 but they were present in office on 17-10-1994. He has stated on seeing verification report Ex.77 that it was prepared by Surveyor Shri Kiran Bosamia qua claim of Shri Gadhia.
When Shri Rafiuddin Shaikh was cross-examined by the learned advocate for the accused, he has admitted that out of four cheques, the complainant was having grievance about one cheque. He has further admitted that voucher Ex.73 was prepared by the Claim Department in his office. He has further admitted that no instructions were given in writing to cancel the cheques of Shri Gadhia. He has further admitted that the Development Officer, Shri Gandhi was looking after the claims of Shri Gadhia.
Another witness, P.W.No.4, Shri Manishbhai C.Daftari, Ex.78, who, at the relevant time was working as Senior Assistant in M/s National Insurance Company Ltd., Bhavnagar, has deposed that he prepared voucher in duplicate at Exs.73 and 76 in respect of claim of Shri Gadhia on 25-4-1994 as instructed by Shri H.H.Desai, the Assistant Administrative Officer and he and Shri H.H.Desai put their signatures on them.
This witness has admitted in his cross-examination that vouchers at Exs.73 and 76 were prepared based on the claim process data sheet Ex.79. He has further admitted that claim of Rs.49,028/- only was sanctioned as per Ex.79 and then voucher was prepared based on the sanctioned claim and thereafter cheque would be prepared. He however denied that he, Shri Desai and Shri Shaikh managed to give Shri Gadhia more amount than what he was entitled. To a question put by the Court, he has stated that voucher at Ex.73 for Rs.58,900/- was prepared by him at the instance of Shri H.H.Desai. He has admitted that based on the Surveyor's report, voucher could not be prepared and amount of Rs.9,872/- as mentioned by Shri Tarak Mehta, the Surveyor, in his report was not sanctioned by the competent authority.
Another crucial witness is P.W.No.5, Shri Pratapsinh Sisodia, Ex.82, who, at the relevant point of time, was working as Assistant Administrative Officer in National Insurance Company. He has deposed that counterfoils of cheques in question were handed over by him to Shri Gohil, PI of ACB. He has admitted in is cross-examination that though as many as five claims of Shri Gadhia were pending in office, they were not paid in time.
The evidence of aforesaid witnesses find support with the evidence of Shri Hemant H.Desai, P.W.No.6, Ex.84, who was also working as Assistant Administrative Officer in the Claims Department of National Insurance Company. He described about the procedures having followed in his office for sanctioning the claim. He has further deposed that Ex.85 was the claim form of Shri Gadhia filled by Shri Girishbhai Gandhi in his handwriting, Ex.86 the bills scrutiny report dt. 26-2-1994 of Surveyor Shri Tarak Mehta making assessment of Rs.51,028/- and Ex.87 was the office note signed by him and Senior Assistant Shri Manish Daftari wherein Shri Gadhia's claim of Rs.49,028/- was sanctioned by Shri Thakkar by making endorsement as 'voucher issued' by himself. He has further deposed that Ex.79 was the data sheet put up before the Divisional Manager, Ex.80 was the revised scrutiny report of Shri Tarak Mehta entitling him to get additional amount of Rs.9,872/-. As far as Shri Gadhia's claim No.20 is concerned, he has deposed that Ex.88 was the office note in connection with accident dated 19-6-94 involving vehicle NO.GJ-14-T-119 and Ex.89 was the data sheet. He has further deposed that Ex.90 was the office note in respect of claim No.53 of Shri Gadhia in connection with accident dated 25-12-1994 and Ex.91 was the date sheet of said claim. He has further deposed that Exs.92 to 95 were the documents qua claim No.37. He has further deposed that in respect of claim No.5, Rs.49,028/- was initially sanctioned by issuing voucher to Shri Gadhia but as claim was not fully sanctioned, he requested for review of his case and Shri Tarak Mehta, the Surveyor allowed additional amount of Rs.9,872/- and Shri Thakkar asked him to prepare voucher of Rs.58,900/- and asked Shri Thakkar to sanction the said amount first but Shri Thakkar told that he would authorize the revised amount in the voucher itself and hence, Senior Assistant Shri Daftari was asked to prepare the voucher of Rs.58,900/- which was prepared by Shri Daftari under his signature and it was placed before Shri Thakkar, who asked Shri R.G.Shaikh, Accounts Officer, to prepare the cheque based on the voucher. On 25-4-1994 Shri Shaikh prepared the cheque and gave to Shri Thakkar and on 26-4-1994 said cheque was returned by Shri Thakkar to Shri Shaikh asking to cancel on the ground that Shri Gadhia was not accepting the same. He has further deposed that when he and Shri Shaikh asked Shri Thakkar for the reason for cancellation, Shri Thakkar asked him not to question him as they being his subordinates. He has further deposed that he and Shri Shaikh informed Shri Gadhia that his claim of Rs.58,900/- was not authorized by Shri Thakkar and hence should accept other cheques. Shri Gadhia has told that if he was not given the cheque of Rs.58,900/-, other cheques would not be accepted by him. He has further deposed that on Shri Gadhia's claim Nos.53 and 20, he put up the files before Shri Thakkar which was sent to Regional Office by Shri Thakkar and on 7-10-1994 Shri Thakkar gave him back the said files without the regional office's record. On his inquiry, Shri Thakkar told that he had given Regional Office's letter (Ex.83) to Shri Vinubhai Thakkar but Shri Vinubhai was on leave on that day. When resumed on 10-10-1994, he asked Shri Vinubhai about the said letter, at that time, Shri Vinubhai told that he was on leave from 14-10-1994 to 28-10-1994 and he was not given any such letter by Shri Thakkar and the incident in question took place on 17-10-1994. He has further deposed that when Shri Thakkar was suspended, on a search on the table of Shri Thakkar by him, Shri V.B.Thakkar and Shri P.B.Sisodia at the instruction of Shri J.S.Mehta, who had taken charge in place of Shri Thakkar, said letter dated 13-9-1994 Ex.83 of Regional Office was found out.
When this witness was cross-examined by the learned advocate for the original accused No.1, he admitted about 7 to 8 claims having filed by Shri Gadhia during 1993 to 1995. He has further admitted that revised scrutiny bills were cleared by Shri Tarak Mehta, the Surveyor, as he was not satisfied about the bills of Shri Gadhia for Rs.9,872/-. In his further cross-examination by the learned advocate for the original accused No.2, it was denied that voucher Ex.73 was prepared by him and Shri Daftari on their own and Shri Thakkar did not sanction the same as it being a disputed matter.
The testimonies of aforesaid witnesses are supported by the evidence of with P.W.No.8-Vinodbhai Pathak, Ex.101, who was also working as Administrative Officer in M/s National Insurance Company Ltd. He has deposed that the complainant Shri Gadhia came to see Shri Thakkar on 17-10-1994 at about 12.30 p.m. for settling his claims. At that time, the Development Officer, Shri Gandhi, asked for the file of Shri Gadhia from him. Thereafter, when he and Shri Gandhi went with the file to the chamber of Shri Thakkar, an unknown person and Shri Gadhia were sitting there and he handed over the file to Shri Thakkar. He has further deposed that he had seen the letter Ex.83 which was written by the Manager Shri Hirawat from Regional Office to Divisional Manager. He has deposed that he does not remember whether said letter was found from the bunch of papers lying on the table of Shri Thakkar. He has admitted in his cross-examination that on 17-10-1994 when said file was called for by Shri Thakkar, letter of Regional Office at Ex.102 and the complaint of one Shri Vinodbhai Patel at Ex.103 were in the said file. He however denied to have handed over the said file to CBI office on 17-10-1994.
In light of the evidence of aforesaid witnesses of Officers of Insurance Company, the evidence of the complainant-Shri Harshadrai J.Gadhia, P.W.No.7, Ex.97 is to be seen. Shri Gadhia has deposed in his examination-in-chief that while doing his business of transportation in 1994, he had five luxury buses and one jeep, all of which were insured with M/s National Insurance Company Ltd., Bhavnagar. He has further deposed that in pursuance of claims raised by him as a consequence of accident caused to his five vehicles, total claims of Rs.3,38,785/- were sanctioned by the insurance company. Out of which, two cheques of Rs.50,033/- and Rs.58,900/- were prepared and other three cheques were yet to be made ready. He has further deposed that when the Manager, Shri K.O.Thakkar demanded Rs.15,000/- from him, he refused to pay the same and hence, his assistant Shri Shaikh was asked to cancel the cheques. Hence, he filed applications to Head Offices of insurance Company at Calcutta and Ahmedabad as well as before the Consumer Forum. He has further deposed that he then asked Field Officer, Shri Girishbhai Gandhi to convince Shri Thakkar. Shri Gandhi having talked with Shri Thakkar asked him to pay bribe amount of Rs.20,000/- on 8-10-1994. He has further deposed that since he was not having the money, he asked Shri Gandhi that he would come with money on 12-10-1994. As he did not want to pay the money, he approached ACB Office, Bhavnagar, on 12-10-1994 and a trap was arranged after calling two panchas. He has further deposed that after completion of necessary formalities such as spraying anthracene power on the currency notes, drawing panchnama, etc., they proceeded to the office of Insurance Company where they came to know that Shri Thakkar was on tour and Shri Girishbhai had gone for lunch and hence, they returned back. He has further deposed that he again lodged complaint before PI, Shri Gohil of ACB Police Station on 17-10-1994 at about 10.00 a.m. and again a trap was laid by calling two panchas, who were apprised of the contents of the complaint, experiments of ultraviolet lamp and anthracene power were carried out on the notes and they proceeded towards the place of raid. He has further deposed that on reaching the office of M/s National Insurance Company Ltd., he and panch No.1 went inside the office and met Shri Girishbhai. He then asked Shri Girishbhai to talk to Shri Thakkar to settle his claims. He has further deposed that as three persons were sitting in the chamber of Shri Thakkar, Shri Girishbhai came back and on their leaving, Shri Girishbhai went inside the chamber of Shri Thakkar and they three sat on chairs. When Shri Thakkar inquired about panch No.1, he told that he was his cousin. He has further deposed that he then requested Shri Takkar to settle his claims but Shri Thakkar told that it would take two more days. He then apologized to Shri Thakkar if any mistake has been committed by him. By doing this, he took out tainted currency notes from his pocket of his shirt and placed the same on one printed paper lying on the table of Shri Thakkar. Shri Takkar took the paper in his hand, gave back the money to him. He has further deposed that he gave the same money to Shri Girishbhai with his right hand and Shri Girishbhai accepted the said money with his right hand and put them in his left side pocket of his pants. He thereafter told Shri Thakkar and Shri Gandhi that he was giving them the cash. At that time, Shri Girishbhai gave back the money to him by taking the money from his pocket and said that same be given to xeroxwala at the downstairs. He however said that he would not give such amount to xeroxwala and Shri Girishbhai should accompany him. He again gave back the money to Shri Girishbhai and Shri Girishbhai put the money in the pocket of his pants. While coming out of the chamber of Shri Thakkar, he gave pre-planned signal to PI, Shri Gohil and hence, Shri Gohil and members of raiding party rushed there and caught Shri Gandhi and Shri Thakkar. He has further deposed that they carried out personal search of these persons and found out tainted currency notes of Rs.20,000/-, one Trishul Gutkha, one handkerchief and Rs.431/- cash from the pocket of pants of Shri Girishbhai. When they were placed on the ultra violet lamps, powder marks were seen on the currency notes. When search was carried on Shri Thakkar, Rs.231/- were found from his pocket and light marks were also seen on fingers of Shri Thakkar. He has further deposed that thereafter panchnama of the proceedings was drawn and he identified his signatures on the panchnama.
In his cross-examination, the complainant has admitted that when he and members of raiding went on 12-10-1994 to the office of accused, the accused were not found. He has further admitted that when he along with panch No.1 met Shri Girishbhai, Shri Girishbhai did not demand any money from him during their 20-25 minutes talk. He has further admitted that during the whole incident, Shri Girishbhai did not demand any money from him. He however has stated that he had fixed the amount with Shri Thakkar.
It appears that the complainant has stuck to his version given in the complaint. His evidence is further supported by the evidence of panch witness of the second trap laid on 17-10-1994, P.W.No.2-Shri Bharatbhai Hingnajia, Ex.40. He has deposed that he, the complainant and other members of raiding party proceeded to the office insurance company in a Government vehicle and he and the complainant went inside the chamber of insurance company while others remained outside. On entering the said office, he and Shri Gadhia met Shri Gandhi and talked about the cheque to be issued to Shri Gadhia. As there were three persons in the chamber of Shri Thakkar, they waited for some time and when those three persons left, they three went inside the chamber of Shri Thakkar. Shri Gadhia then requested Shri Thakkar to pardon him and yo give his cheques and settle his claims on that day itself. He has further deposed that Shri Thakkar then asked Shri Gandhi to bring the file of Shri Gadhia. He has further deposed that Shri Gadhia then placed the anthracene powdered notes on the table and gave them to Shri Thakkar and Shri Thakkar told him to keep them for a while. He has further deposed that he did not remember as to what were the words spoken by Shri Thakkar. He has further deposed that Shri Gadhia gave the said money to Shri Gandhi and Shri Gandhi put in his pocket and thereafter Shri Gandhi told Shri Gadhia to give the said money to xeroxwala at the downstairs but Shri Gadhia refused to do so and told him that he should accompany him. When he, Shri Gadhia and Shri Gandhi came out of the room, Shri Gadhia gave the pre-planned signal and PI Shri Gohil and other members of raiding party rushed there and they all went inside the chamber of Shri Thakkar. He has further deposed that upon instructions from Shri Gohil, he took out the money from the pocket of Shri Gandhi and when they were placed on ultraviolet lamp, powder marks were found on them and also on the paper lying on the table of Shri Thakkar. The powder marks were also seen on fingers of Shri Gandhi and on pocket of his pants and on the handkerchief taken out from his pocket. He has further deposed that light marks were also found on the finger tips of Shri Thakkar. He has further deposed that the currency notes were then tallied with the numbers noted in the panchnama and they were seized by preparing a panchnama. A panchnama was drawn of the proceedings in the chamber of Shri Thakkar. He identified his signatures on the panchnamas.
Shri Bharatbhai Hingnajia has been cross examined by the learned advocates for the accused. He has admitted in his cross-examination that during the talks with the accused No.2 in his office, the accused No.2 did not demand any money from the complainant. He has also admitted that Shri Thakkar also did not demand any money from the complainant before the complainant took it out for offering it to Shri Thakkar.
P.W.No.10, P.I., Shri Gohil, who has been examined at Ex.107 has deposed that on 17-10-1994 the complainant Shri Gadhia came to his police station for lodging complaint. In addition to the earlier complaint of 12-10-1994, the complainant gave another complaint and he arranged for a trap by calling two panchas. He has further deposed that necessary procedures were carried out at the police station itself and the first panchnama Ex.42 was completed and they proceeded to the place of raid. He has further deposed that the complainant and the panch No.1 went inside while he and other members of the raiding party remained outside. He has further deposed that after about an hour, when the complainant gave pre-determined signal, he and other members of the raiding party rushed there where the complainant, panch No.1 and one third person were there. He has further deposed that Shri Gadhia told him that Shri Gandhi accepted the bribe and on asking the name of the third person, who named him as Shri Gandhi, they went to the chamber of Shri Thakkar and panchnama of the proceedings was drawn.
In light of the aforesaid evidence of witnesses, the version given in the complaint is required to be gone into. It is alleged in the complaint that on 25-4-1994 when the complainant went for the cheques of Rs.58,900/- and Rs.50,033/- for the accident claims for his luxury bus Nos.119 and 117, the Divisional Manager, Mr.Thakkar demanded Rs.15,000/- as illegal gratification. It was further alleged that though cheque of Rs.58,900/- was prepared by Clerk Shri Shaikh, since the complainant refused to pay the bribe, said cheque was ordered to be cancelled by Shri Thakkar to Shri Shaikh. Though other three claims were also sanctioned, as he was not giving bribe to Shri Thakkar, he was not giving the cheques for his claim amounts and hence, an application was made to Head Office at Calcutta and at Ahmedabad office as well as before the Consumer Forum. He then approached Shri Girishbhai Gandhi, the Field Officer, requesting him to convince Shri Thakkar for settling his claims. It was further alleged that the complainant had telephonic talk with Shri Gandhi on 8-10-1994 whereby amount of Rs.20,000/- was fixed with Shri Thakkar and was asked to come on the next Monday. Instead of Monday, the complainant asked Shri Gandhi that he would come on Wednesday i.e. 12-10-1994. Instead of paying the bribe, he informed the ACB and a trap was laid. However, as both the accused were not available, said trap could not succeed. Hence, again on 17-10-1994 at the instance of the complainant, a trap was laid by PI, Shri R.L.Gohil and both the accused caught red-handed while accepting bribe of Rs.20,000/- from the complainant.
It is clear from the evidence of the complainant that he has supported his complaint. The evidence of the complainant is corroborated with the evidence of Assistant Administrative Officer in charge of accounts department namely, P.W.No.3, Shri Raffiyuddin Shaikh, Ex.69. He has deposed that when Shri Gadhia went to their office and met Shri Thakkar regarding his claims, he was asked to prepare four cheques. After preparing the cheques, he handed over to Shri Thakkar to be given to Shri Gadhia. However, in the evening, said cheques were returned to him for cancellation.
Shri H.H.Desai, who was examined at Ex.84 as P.W.No.6 has also deposed on the same line. He has deposed that though a voucher for Rs.49,028/- was issued to Shri Gadhia as per the office note Ex.87, since Shri Gadia requested for review, additional claim of Rs.9,872/- was allowed by the surveyor Shri Tarak Mehta. Shri Thakkar therefore asked him to prepare voucher of Rs.58,900/- and Shri Daftari was in turn asked to prepare the said voucher. Shri Daftari after preparing the voucher for Rs.58,900/- under his signature placed before Shri Thakkar, who in turn asked Shri R.G.Shaikh to prepare the cheque on the basis of said voucher which was prepared and gave it to Shri Thakkar. On the next day i.e. on 26-4-1994, Shri Thakkar asked him to cancel the said cheque. Shri Manish Daftari, P.W.No.4, Ex.78, has also deposed that on 25-4-1994, he prepared the vouchers as per the instructions of Shri H.H.Desai in duplicate at Exs.73 and 76 for the claim of Shri Gadhia.
The evidence of the complainant is corroborated by the evidence of these three officers of Insurance Company. Thus, it is crystal clear that though voucher for Rs.58,900/- was prepared by the Assistant Administrative Officer in charge of Claims Department Shri H.H.Desai at the instructions of the Divisional Manager Shri K.O.Thakkar in respect of claim of Shri Gadhia of his vehicle No.GJ-14-T-119, Shri Thakkar asked Asstt. Administrative Officer, Raffiyuddin Shaikh, to cancel the said cheque along with other cheques. They being independent witnesses, their evidence are found to be trustworthy and inspire confidence in the mind of the Court and hence can be taken into consideration.
The impost important document in the present case is Ex.83. It is the letter sent by the Regional Office to the Divisional Manager asking him to settle the claims of the complainant as per the authority vested in Shri Thakkar. It is clear that though said letter was on the file as seen by Shri H.H.Desai, said letter was not seen on the file when it was returned to Shri H.H.Desai by Shri Thakkar. On inquiry, it was stated by Shri Thakkar that said letter was given to Shri Vinubhai Thakkar, who was on leave on that day. However, when Shri Vinubhai Thakkar returned from leave, it was stated by him that on 10-10-1994, no such letter was given to him by Shri Thakkar(the accused No.1).
It is clear from the aforesaid that though Shri Thakkar was instructed by the Regional Office vide aforesaid letter Ex.83 to settle the claims of complainant, Shri Thakkar did not act as per the instructions given in the said letter. He, however, kept the said letter Ex.83 with him and when the file was returned to Shri H.H.Desai, the said letter was not parted with. It may be noted that after Shri Thakkar was suspended, said later was recovered from his table. It is also noted that though other claims of the complainant were cleared by Shri Thakkar-accused No.1, same were kept pending. Sufficient evidence has been produced by the prosecution to show that there were as many as 4-5 cheques prepared by Shri Rafiuddin Shaikh, who was an Assistant Administrative Officer looking after accounts and computer sections in M/s National Insurance Company Ltd., Bhavnagar, on the basis of sanctioned data-sheets. However, the same were not given to the complainant on 25-4-1994 when he visited the Company. It thus appear that since the claims of complainant were not being settled, he went to accused No.2 Shri Gandhi, the then Development Officer, to request Shri Thakkar to get his claims settled and for which, an amount of Rs.20,000/- was fixed as illegal gratification to be paid by the complainant to the accused No.1-Thakkar and the tainted currency notes as fixed were given to him, who asked him to keep with him. The complainant then gave it to accused No.2-Shri Gandhi who accepted the same and put in his pocket of pants. Shri Gandhi then asked the complainant to give to Xeroxwala at the downstairs. Since the complainant refused to give it to Xeroxwala, he asked Shri Gandhi to accompany him and Shri Gandhi and the complainant came out of the chamber of Shri Thakkar, the complainant gave pre-determined signal and the raiding party consisting of PI, Shri Gohil immediately rushed there and the tainted currency notes were recovered from the pocket of pants of Shri Ghandhi along with a handkerchief. The said tainted currency notes bore the anthracene powder marks which were tallied with the numbers and denominations as described in the panchnama. As the notes were given to Shri Thakkar, Shri Thakkar asked the complainant to keep with him and hence, his fingertips bore the ultraviolet light marks.
It was submitted by the learned counsel for the original accused that demand of illegal gratification has not been proved beyond reasonable doubt by the prosecution. It appears from the evidence of aforesaid witnesses of Officers of Insurance Company that though cheque for Rs.58,900/- pertaining to the complainant was ready and handed over to Shri Thakkar in view of revised scrutiny report of Surveyor allowing additional Rs.9,872/-, same was returned by Shri Thakkar in the evening for cancellation for the reasons best known to him. Other claims of the complainant were also not paid to him. It may be noted that the demands for illegal gratification are made in four corners of the wall and there may not be any direct evidence. Hence, an inference is required to be made that such a demand must have been made by the accused and since the demand was not met by the complainant, the cheque prepared in favour of the complainant given to Shri Thakkar was not handed over to the complainant.
It has been submitted by Mr.Parikh on behalf of the original accused No.2 that it has come from the evidence of the complainant that the accused No.2 being the Field Officer was looking after the insurance of the vehicles of the complainant and the amount has been accepted by Shri Girishbhai towards the same. However, it may be noted that the complainant has specifically stated that amount of bribe was accepted by Shri Girishbhai on behalf of Mr.Thakkar and he was caught red-handed. No document is coming forth from the record or no satisfactory and convincing explanation could be putforward by the learned counsel, Mr.Parikh, as to for what insurance premia or debt, said amount has been accepted accepted by Shri Girishbhai. It is therefore inferred that Shri Girishbhai has accepted the amount of Rs.20,000/- as illegal gratification for settling the claims of the complainant and he was caught red-handed by the raiding party. It is clear from the record that Shri Girishbhai has accepted the amount as bribe for settling the claim of the complainant. Merely by saying that he had accepted the amount towards insurance premia or debt as he was looking after the insurance affairs of the complainant would not be sufficient to absolve from the charges levelled against him. Hence, the offence charged against Shri Girishbhai has been proved beyond reasonable doubt by the prosecution through the evidence of Officers of Insurance Company and other documentary evidence.
A contention has been made by the learned counsel for the original accused that since the complainant is in habit of filing complaints against government servants, his evidence is required to be scrutinized carefully. It is to be noted that the complainant has explained about the circumstances that led him to file the complaint against the accused. Merely by contenting that he is filing complaints against others, the accused cannot be given the benefit especially when the allegations made in the complaint have been proved by the prosecution beyond reasonable doubt through the evidence of aforesaid witnesses more particularly the officers of M/s National India Insurance Company namely, P.W.3, Shri Rafiuddin Shaikh, P.W.No.5 Shri Pratapsinh Sisodia, P.W.No.6 Shri Hemant H.Desai and P.W.No.8 Shri Vinodbhai B.Thaker together with the evidence of complainant and panch witness. Though there was no direct evidence of demand made by the accused, the strong circumstances narrated hereinabove indicate that the ingredients of demand, acceptance and recovery have been proved by the prosecution beyond reasonable doubt which were substantiated by positive evidence corroborated by various documents and circumstances making the chain complete.
It is true that there is contradiction between the evidence of complainant and panch No.1 apart from an improvement in the version of the complainant while saying that the original accused No.1 asked the complainant to give Rs.20,000/- to accused No.2. Simply because there is minor contradiction between the evidence of complainant and panch No.1, it would not be a ground for rejecting the otherwise reliable and trustworthy evidence of witnesses, who are officers of M/s National Insurance Company Ltd. This is more so when the evidence of those witnesses corroborate with each other and when their evidence is further supported by documentary evidence like letter Ex.83, panchnamas, seizure memos, complaint, etc. In view of the above, the accused would not be entitled to the benefits out of the principles laid down by the Apex Court in the reported decisions cited by the respective learned counsels for the accused.
Thus, on a consideration of the totality of the facts and circumstances narrated hereinabove, this Court is of the opinion that the case against both the accused has been proved by the prosecution beyond reasonable doubt and the learned Special Judge by elaborate reasonings arrived at a correct findings and convicted both the accused. Since no infirmity or illegality as having committed by the court below is noticed, no interference is called for by this Court in the said conviction. Now the question to be considered is as to whether the accused in the given facts and circumstances of the case are entitled to reduction of sentence which has been awarded by the trial court or not.
In this connection reference will have to be made to the decisions rendered in the case of (1)Ghasita Sahu v. State of Madhya Pradesh reported in AIR (Criminal) 277, wherein the Apex Court, considering the poor background of the accused reduced from 5 years to one already undergone(about 4 years as noticed by the Apex Court) and also reduced the fine from Rs.20,000/- to Rs.10,000/- and imposed the default sentence of six months and (2) Shanti Lal v. State of M.P. reported in 2007(2) EFR 702, wherein in para 36 the Apex Court has observed that the accused appellant is very poor person and it was his first offence and considering that fact reduced the sentence, and (3) Balwinder Singh vs. Asstt. Commissioner, Customs and Central Excise reported in 2005(2) EFR 420 = AIR 2005 SC 2917) wherein considering the fact that the accused was a first time offender, sentence of 14 years of imprisonment imposed by the Courts below was reduced to minimum prescribed under the Act that of 10 years.
It is to be noted that for the incident that took place in the year 1994, they were sentenced in 2009, they have undergone the agony for all these long years, they have undergone more than 11 months in jail, this is the first offence committed by them, they were out of job and have the responsibility of maintaining their entire family. Hence, in view of the aforesaid aspects, in the opinion of this Court, if sentence is reduced from three years to one year, ends of justice would be met. Hence, both the appeals are to be partly allowed by reducing their sentence.
As far as suo-motu revisions initiated by the Court for enhancement of sentence are concerned, considering various aspects and also considering the evidence appearing on record, learned counsels for the otherside are not in a position to satisfy the conscience of the Court so as to indicate that it is a case wherein sentence imposed by the learned Special Judge is required to be enhanced and hence, this Court is of the view that no case is made out for enhancement of sentence. Hence, both the revisions are required to be dismissed.
Thus, both the appeals are partly allowed. While confirming the conviction of the appellants-accused, the sentence imposed upon them is reduced from three years to one year. The impugned judgment and order of conviction and sentence dated 17-2-2009 passed by the learned Special Judge, CBI Court No.3, at Mirzapur, Ahmedabad, in Special Case No.33 of 1995 is modified to the aforesaid extent.
As far as the revisions suo-motu initiated by the Court for enhancement of sentence are concerned, they are dismissed. Notice is discharged.
Office to place a copy in each matter.
(M.D.SHAH,J.) radhan Top