Gujarat High Court
Ratilal Ravjibhai Tank vs The State Of Gujarat on 14 August, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.A/1350/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1350 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
===========================================================
1 Whether Reporters of Local Papers may be allowed toYes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of lawNo
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
RATILAL RAVJIBHAI TANK
Versus
THE STATE OF GUJARAT
================================================================
Appearance:
MR MJ BUDDHBHATTI(209) for the PETITIONER(s) No. 1
MS MONALI H BHATT ADDITIONAL PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 14& 16/08/2018
ORAL JUDGMENT
1. Judgement and order dated 30.06.2005 rendered by the learned Special Judge, Fast Track Court No.11, Rajkot in Special (A.C.B.) Case No. 11 of 1993 recording conviction for the appellant for the offence punishable under sections 7, 13(1)(d)(i)(ii)(iii) read with section 13(2) of the Prevention of Corruption Act, 1988 ( for short 'the Act') is sought to be assailed in this appeal under section 374 of Code of Page 1 of 10 R/CR.A/1350/2005 JUDGMENT Criminal Procedure ( for short 'Cr.P.C). By the impugned judgement and order, the appellant has been sentenced to rigorous imprisonment for one year with fine of Rs. 1500/( Rupees One Thousand Five Hundred only) and sentence of imprisonment for one month in default of the fine for section 7 of the Act and two years rigorous imprisonment with fine of Rs. 2000/ ( Rupees Two Thousand only) and sentence of imprisonment for two months in default of the fine for the offence under section 13(1)(d)(i)(ii)(iii) read with section 13(2) of the Act.
2. Upon consideration of the rival submissions, it transpires that the decoy trap was laid by P.W. 4 Natwar Narshibhai Nagar the then Police Inspector, Anti Corruption Bureau, Rajkot on 26.04.1993 in order to verify the secret information that on the sugarcane loaded trucks entering Rajkot, the octroi is not recovered in accordance with law and illegal gratification is forcibly extracted by the servants working at octroi point situated on Morbi Road within the jurisdiction of Rajkot Municipal Corporation. For such verification, P.W. 1 agreed to be a decoy witness who would on demand pay the octroi to the Municipal servants employed at the above octroi point, and panch witnesses 1 and 2 who also agreed to be the part of the decoy trap were respectively deputed as the witnesses to oversee the occurrences and recoveries. It also transpires from the record that P.W. 2 who was not supposed to be with P.W. 1, claims to have heard entire conversation and has implicated accused no.1 who has preferred this appeal; other two accused having been acquitted by the trial court.
3. Only witness offering a substantive piece of evidence is P.W. 1; in absence of panch witness 1, who was a shadow witness but could not be examined as such on account of his demise before or during the Page 2 of 10 R/CR.A/1350/2005 JUDGMENT pendency of the trial. It is settled legal position that for the cases under the Act, even solitary testimony of interested witnesses can be relied upon if found to be creditworthy. P.W.1, upon his agreement to assist P.W. 4, for being part of decoy trap, virtually was akin to the complainant. His evidence therefore required close scrutiny and attempt of this court would be to find out whether the facts stated by him gets corroboration from other independent evidence on record.
4. His examinationinchief would indicate that Rs. 80/ was demanded from him as octroi and he pleaded that the correct sum was Rs. 66/ as he had the sugarcane worth Rs 3600/( the evidence on record would show that the octroi chargeable per Rs 1000/ of sugarcane was Rs. 22/); he paid Rs. 80/ and asked the refund of the difference. Initially the refund was refused but upon P.W. 1 identifying himself by the name of his father, with whom the accused person was acquainted, a sum of Rs. 14/ was refunded and receipt of Rs. 66/ was issued. As indicated above, panch witness no. 1 could not be examined. It is submitted by the learned counsel for the appellant that in his absence, the contents thereof were not established and even if they were so established, the panchnama did not offer substantive piece of evidence but it was only a corroborative piece of evidence. Before answering the said submission, it would be appropriate to refer to the contents of the pachnama in an endevour to find out whether the testimony of P.W. 1 gets any corroboration from the said document. As noted above, P.W. 1 stated that an argument in reference to the actual amount of octroi leviable had taken place between those manning octroi check point and himself. In the panchnama Exh. 33 also, such arguments have been noted. The fact that Rs. 80/ was demanded is also noted. Only aspect which is absent in the panchnama is the factum Page 3 of 10 R/CR.A/1350/2005 JUDGMENT of refund of Rs. 14/ after such arguments. Thus all other material facts i.e. demand of Rs. 14/ in excess of actual octroi bill, issuance of receipt of Rs. 66/ against the total collection of Rs.80/ gets corroboration from the panchnama.
5. The contents of the documents may be proved either by primary or by secondary evidence (Section 61 of the Evidence Act) and documents produced for the inspection of the court would constitute the primary evidence within the meaning of section 62 of the Evidence Act. It cannot be disputed that the panchnama is a document and its production for the inspection of the court constituted the proof of its contents; its truthfulness, however would be a matter of evidence. The truthfulness of a document can be authenticated not merely by its author but also by a person acquainted with the contents referred to in the document; such person may not necessarily be aware of the existence of the document. In fact, if the contents of the documents get authenticated by a person unaware of the existence of the document, it would lend more credence to the matter expressed on the paper or other substance (see section 3 of the Evidence Act); provided his evidence is creditworthy. It would be hazardous to conclude against the creditworthiness of the document only because of the failure of its author to lend credence to it, in cases where other reliable and creditworthy evidence lends credence to it. It would be a travesty of justice to reject the document on technicalities.
6. In the instant case, P.W. 1 was decoy witness, present at the scene of offence; having participated in the decoy trap but was not the panch witness. He was a witness in whose presence the entire episode took place. Therefore, he was capable of throwing light on the Page 4 of 10 R/CR.A/1350/2005 JUDGMENT occurrences recorded in the panchnama and that is what he exactly did by referring to the above stated facts; which turned out to be the most crucial contents of the panchnama. Witness thus has authenticated the panchnama and has enhanced its creditworthiness. Therefore, the panchnama cannot be rejected for lack of proof by its author.
7. As noted above, P.W. 1 pleaded for Rs. 66/ as the correct bill against the demand of Rs. 80/, by the accused person. This plea of bill finds place in the contemporaneous records i.e. panchnama. True that panchnama does not refer to the refund of Rs. 14/ and this court would assume the same as improvement. In fact it appears that the possible attempt by P.W. 1 by referring to the refund was to save the accused by showing that eventually he accepted Rs 66/ only. The impact of the refund on the prosecution case is required to be seen. As indicated above, the actual legally leviable/chargeable octroi, was Rs.66/. The demand was of Rs. 80/ and the said amount was scaled down to Rs.66/ by accused; not on legal basis, but only on consideration of the acquaintance of the father of the witness with the accused. But for the said fact, the accused insisted for Rs. 80/ for the receipt of Rs.66/; the difference being a bribe extraction money. Therefore, what is relevant is not the fact that amount of Rs. 14/ was refunded; the refund followed after extraction which represented the intention of the accused to extract the bribe money and that is what was relevant. This court uses the word extraction to emphasize the fact that the accused had formulated unwritten illegal rule for himself, to charge extra and issue a short receipt, and pocket the difference as illegal gratification, irrespective of the consent of the transporters. The demand was implied in such forcible extraction. The refund of Rs. 14/ has not been challenged in the cross examination of P.W. 1 and thus it is an Page 5 of 10 R/CR.A/1350/2005 JUDGMENT admitted position that the said amount was refunded. In the opinion of this court, whether the amount was refunded or not is not significant as the evidence on record indicates the intention of the appellant to retain the amount which was not leviable as octroi. Interestingly, the appellant has taken the stand in the statement under section 313 of Cr.P.C that he initially charged Rs.80/ on the ground that sugarcane contained in the truck was worth Rs.3600/ but it was only upon insistence of P.W. 1 that he had to refund Rs. 14/ to him. If that statement of accused is taken at face value, then also the aggregate leviable octroi at Rs. 22/ per Rs. 1000/ of sugarcane would be Rs.79.20/ and not Rs. 80/. It was not the case of the appellant that he rounded the figure to Rs. 80/, it is not his case that he had no change to offer to the P.W.1. Judicial note of the fact can be taken that in the year 1993, coins of varying denomination of 1,2,3 paisa, 5 paisa, 10 paisa, 20 paisa, 25 paisa, 50 paisa were prevailing in the currency and it was possible to pay exact amount of Rs. 79.20/.
8. It is also pertinent to note that recovery has been effected from the cash box of the accused and he was given seizure memo evidencing the recovery of Rs. 80/. He did not tender any immediate explanation to the investigator, as has been done by him in his statement under section 313 of Cr.P.C. that he had refunded Rs. 14/ to P.W.1.
9. In the opinion of this Court, this is a fit case where presumption can be raised under section 20 of the Act that the accused accepted or attempted to accept the gratification as a motive or reward as contemplated in section 7 or with inadequate consideration, to his knowledge.
Page 6 of 10R/CR.A/1350/2005 JUDGMENT
10. The judgement and order is also sought to be assailed for irregular sanction for prosecution as contemplated in section 19 of the Act and if sub section (1) is taken into consideration, it would appear that in absence of the sanction, the court would not be obliged to take cognizance of the offence punishable under sections 7, 10, 11,13 and 15; however if sub section (3) of the said provision is taken into consideration, once the findings are recorded or sentence is imposed, such finding or sentence or order cannot be reversed or altered by the court of appeal, confirmation or revision for error, omission or irregularity in the sanction; in absence of proof of failure of justice. Sanction is sought to be assailed without demonstrating the failure of justice and therefore having regard to the subsection (3) of section 19, even in absence of sanction or notwithstanding error therein or omission or irregularities in sanction, sentence or order passed by the court below cannot be reversed or altered.
11. The impugned judgement and order is sought to be assailed on the ground that a joint charge without identifying the role of the three accused persons was framed; two of whom were acquitted. It is contended that therefore accused no. 1 was also entitled to acquittal since the reason for acquittal of the accused nos.2 and 3 applied to him with equal force. The learned APP drew attention of this court to the testimony of trap officer P.W.4 who has stated that the tainted money; serial number of which matched with those narrated in the panchnama, were recovered from his cash box and and the traces of anthracene powder were noticed on his hands and palms whereas it was not noticed on the hands of other two acquits. She also submitted that accused no.1 was identified by P.W. 4 in the court.
Page 7 of 10R/CR.A/1350/2005 JUDGMENT
12. The conviction or acquittal of the accused does not necessarily depend upon similarity or differences in the charge; rather it depends upon the nature of evidence adduced. The charge may be same; yet the evidence qua individual accused may defer. Also, no parity on the order of acquittal of coaccused can be claimed for, the acquittal may be erroneous. What is relevant is the existence of the material against a person and when this court has found a serious material against the appellant, there is no question of extending a mechanical parity on the mere ground of the charge being identical against accused persons.
13. It is however noticed that the conviction of the appellant for the offence punishable under section 13(1)(d)(i)(ii)(iii) suffers from non application of mind in absence of the evidence evidencing the obtaining of valuable thing or pecuniary advantage by appellant. Valuable thing or pecuniary advantage figuring in the said provision if viewed in juxtaposition Section 7, would mean the advantage other than cash, for bribe in cash is punishable under section 7 and bribe other than cash is punishable under section 13; with sentence severer than one contemplated under section 7 of the Act. No evidence to make out an offence under section 13 of the Act is borne on record. The impugned judgement and order to that extent is required to be quashed and set aside.
14. For the foregoing reasons, conviction of the appellant under section 7 of the Prevention of Corruption Act and the sentence of rigorous imprisonment of one year with fine of Rs. 1500/ ( Rupees One thousand five hundred only) and in default thereof, simple imprisonment of one month is upheld and the conviction under section 13(1)(d)(i)(ii)(iii) is quashed and set aside and consequently sentence thereof is also Page 8 of 10 R/CR.A/1350/2005 JUDGMENT quashed and set aside.
15. The appeal thus partly succeeds. The accused to surrender.
16. At this stage, the learned counsel for the appellant seeks listing of this appeal on 16.08.2018 to enable him to address this court on sentence. For the said purpose S.O. to 16.08.2018.
(G.R.UDHWANI, J) FURTHER ORDER
17. The appellant has tendered an affidavit pleading his age, his virtual blindness and deafness and restricted body movements and sufferance of weakness and blood pressure and his being out of job and the quantum of corruption money involved as mitigating circumstance for imposition of fine in lieu of the said sentence.
18. The appellant now aged 75 years has also placed for perusal of this court the medical case papers evidencing his medical condition.
19. Learned APP has submitted that minimum sentence prescribed under section 7 of the Act is six months rigorous imprisonment and relying upon Narendara Champaklal Trivedi vs. State of Gujarat (2012) 7 SCC 80, she would submit that reduction of sentence beyond the minimum prescribed sentence would not be legally permissible.
20. Having considered the rival contention on sentence, it cannot be disputed that in cases under the Act, what is relevant is nature of offence and not amount of the bribe involved. Therefore, sentence cannot be substituted for smallness of bribe money. It is also noticed that minimum prescribed sentence for the offence punishable under Page 9 of 10 R/CR.A/1350/2005 JUDGMENT section 7 of the Act pre 2014,is imprisonment of six months and post 2014 the minimum prescribed sentence is three years. This court is not concerned with the amendment in the year 2014 and thus even if the above referred circumstances are taken into consideration, the incarceration of not less than six months should constitute the part of the sentence for the appellant. The trial court had imposed a sentence of one year and considering the above referred circumstances, this court is of the opinion that ends of justice would be served if imprisonment is reduced to six months while enhancing the fine to Rs. 50,000/ (Rupees Fifty Thousand only) in lieu of reduced sentence. Accordingly, the sentence is modified and the appellant is ordered to serve the simple imprisonment for six months with fine of Rs. 50,000/ (Rupees Fifty Thousand only) and in default of the fine, an additional sentence of simple imprisonment of six months. The appellant would surrender within six weeks from this date.
The appeal partly succeeds.
(G.R.UDHWANI, J) niru* Page 10 of 10