Gujarat High Court
State Of Gujarat vs Jivraj Manjibhai Patel on 1 July, 1998
Equivalent citations: 1999CRILJ4951, (1999)2GLR286
Author: A.L. Dave
Bench: A.L. Dave
JUDGMENT R.K. Abichandani, J.
1. The State has appealed against the acquittal of the respondent for the offences under Section 161 of the I.P.C. and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 by the judgment and order dated 8-5-1986 passed in Special Case No. 1/85 by the Special Judge, Amreli.
The respondent, who was at the relevant time serving as a Talati-cum-Mantri of Nana Machiyala Giriya group of villages, was charged on 28-4-1986 for the said offences on an allegation that while he was working as a Talati-cum-Mantri, he had demanded an illegal gratification of Rupees 1,000/- from the complainant Abidhusain Akbarali, a resident of village Giriya for ensuring that mutation entries are not made in the record of rights in favour of the vendees of land which was sold by the father of the complainant under a sale deed executed in their favour and that for that purpose, the accused had accepted illegal gratification of Rs. 500/- on 8-3-1984 from the complainant thereby committing offences under Section 161 of the Indian Penal Code and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947.
2. The prosecution case is that the complainant's father executed a sale deed in favour of Popat Tharkarshi and Rasilaben Popat for the lands bearing Survey Nos. 85/1 and 85/2, which were sold to them for a total sum of Rupees 44,000/-. On receipt of the intimation of the said transfer, the accused who was Talati-cum-Mantri was required to enter a report in a register of mutation and to notify the entry in a conspicuous place in the village Chavdi, with written intimation to all persons appearing from the record of rights or register of mutations to be interested in the mutation, and, to any other person whom he had reason to believe that he was interested therein, as required by Section 135-D(2) of the Land Revenue Code, 1879. Accordingly, mutation entries Nos. 531 and 532 were made by the accused on 15-7-1983 and the accused had issued notices as required by Section 135-D(2) of the Bombay Land Revenue Code. In response to this notice, the complainant filed his objection application on 1-8-1983 by presenting it in person before the accused against the making of such mutation entries, on the ground that he had a share in the property, which he had inherited along with other heirs including his father and, therefore, his father could not have sold the entire land to the vendees. The complainant had also filed a Civil Suit in the Court of Civil Judge (S.D.) for a declaration that the said transaction was invalid and not binding on him. The objection of the complainant was noted by the acccused against these entries in village Form No. 6 and the papers were forwarded on 7-10-1983 to the Mamlatdar, who, by virtue of Sub-section (6) of Section 135-D of the said Code was empowered to certify the entries in the register of mutation. The complainant had also sent his objection application to the Mamlatdar on 4-8-1983, who sent the matter to the accused for enquiry. The case of the prosecution is that in this background, the complainant was required to attend the office of the Mamlatdar where even the accused used to come on the dates fixed for hearing of his objections. On 24-8-1983 when the complainant had gone to the Mamlatdar's Court for that purpose, the accused was also present and after the matter was adjourned, he met the complainant outside the Mamlatdar's Court and told him that if the complainant did not want entries to be made in favour of the vendee Popats Thakarshi and Rasilaben Popat, then according to the Mamlatdar, a sum of Rs. 1,000/- will have to be paid. The complainant told him that he would think about it. Thereafter, the matter was being adjourned from time to time. By registered post A. D. dated 2-3-1984, the Mamlatdar had informed the complainanat's Advocate about the next date of hearing, which was to take place on 14-3-1984 in respect of the objection application of the complainant. According to the prosecution about four days prior to 6th March, 1984, the accused had met the complainant in the market of Amreli and demanded a sum of Rs. 1,000/- from him to ensure that the said mutation entries are not made. Thereafter, on 6-3-1984, the accused again on the road near Roopam Talkies, demanded from the complainant Rs. 1,000/- and at that time the complainant told him that he cannot give the entire amount at a time. Thereupon, the accused told him to pay Rs. 500/- initially and thereafter pay the remaining Rs. 500/-. The complainant told him that he would get his salary on 7th March, 1984, out of which he would give him Rs. 500/-. The accused told him that he would on 8th March, 1984, come to his house at village Giriya between 10.00 a.m. and 12.00 Noon and take the amount of Rs. 500/-, which he must keep ready. According to the prosecution, since the complainant was not intending to pay any such illegal gratification, he went to the office of the Anti-Corruption Bureau at Amreli on 7-3-1984 in the evening and gave his complaint Ex. 9. After the recording of the complaint, he was asked to come to the office on the next day morning i.e. on 8-3-1984. On that day, he reached the office at about 4.15 a.m. and panchas were called before whom his complaint was read over and they put their signatures thereon and the first part of the panchnama was drawn, in which the procedure regarding the application of anthracene powder on the five currency notes of rupees hundred each which were brought by the complainant, was recorded along with other particulars and the raiding party along with the complainant and the two panch witnesses proceeded to village Giriya after the first part of the panchnama was over at about 5.35 a.m. Giriya is a village very near to Amreli and a cyclist can reach within 15 minutes. The member of the raiding party and the complainant proceeded in a jeep halted it at some distance and entered the house of the complainant along with him. The house consisted of a living room admeasuring 3.12 Mtrs. x 2.84 Mtrs. There was another room to its south which was having a door frame without doors in the wall to the south of the sitting room. There was a curtain hanging on that entrance which had holes in it. In the said southern room, the Police Inspector Mr. Zala and two panch witnesses were to wait for the incident. It was a small room admeasuring 2.04 Mtrs. x 2.64 Mtrs. having a cot. According to the prosecution, the persons sitting in that southern room could see and hear what happens in the sitting room. In the sitting room, there was a cot placed towards its northern wall and opposite to that, there was a chair facing the cot. The prosecution version is that the other members of the raiding party sat in the room on the eastern side of the sitting room, the common wall of which was about 6 ft. high with the rest of upper portion open, so that those who sit in that room could hear whatever was said in the sitting room. There was a door from the said eastern room opening in an osri towards its south in which osri a door also fell from the aforesaid southern room in which the Police Officer and panchas were sitting, which door, according to the prosecution, was closed. Till 9'0 Clock morning, they sat in the sitting room and thereafter, Inspector Zala and two panchas positioned themselves in the southern room while the other members of the raiding party sat in the eastern room. At about 12.00 Noon the accused entered the sitting room of the complainant's house and sat on the chair opposite the complainant, who was sitting on the cot. The prosecution case is that when the accused entered, the complainant welcomed him and he sat on the chair. After some-time, the complainant's father entered the room and he went inside, in the other room. The complainant told the accused to get the work done by telling the Mamlatdar, since it was causing much loss to him. The accused thereupon told him that he had gone to the Mamlatdar's office and the Mamlatdar had proceeded on a month's leave. The accused then asked the complainant as to what had he done about what was told to him. Thereupon, the complainant took out the five hundred rupee notes from his bush-shirt's pocket and gave them to the accused. The accused had at that time said "alright give it" and accepted the amount and counted the same. At that time, the complainant gave the prearranged signal by shouting "cha muko" (prepare tea). Immediately thereafter, Inspector Zala and panch witnesses and other members of the raiding party went there and the accused was apprehended with the treated currency notes in his possession. Necessary procedure was done and anthracene powder marks were noted on the thumb fingers and palm of the left hand of the accused and also on three fingers and the palm of his right hand. The currency notes were duly identified in presence of the panchas to be the same notes which were treated and referred to in the initial part of the panchnama. The prosecution case is that at the time when the accused was caught red handed with the treated currency notes, he did not say anything except that he was falsely involved. After the panchnama was drawn, statements were recorded and after the statement of the accused was recorded, further statement of other witnesses were also recorded. According to the prosecution, the accused thus, committed the offences with which he has been charged.
3. The accused has chosen to examine himself on oath and the defence that is taken up by him in his deposition Ex. 46 is that he had issued notices to the concerned parties under Section 135-D(2) of the Bombay Land Revenue Code in respect of the entries in the mutation register inviting objections and the complainant had given his objection application on 1-8-1983 against the making of these entries which objection was noted in the register by him and the papers were forwarded to the Mamlatdar, Amreli. According to the accused, the complainant had filed a Civil Suit No. 56/83 in the Mamlatdar's Court in which he was required to remain present on 7-9-1983. The accused has also stated that he had given a notice to the complainant's father Akbarali Mahmadmiy a for the recovery of the Government dues and that notice was sent under the signature of Taluka Development Officer. The defence of the accused on oath is that on 6th March, 1984, he had gone for recovery of the Government dues to village Giriya and on that day, the complainant's father met him in the bazaar. When the accused asked him to pay up the Government dues, the complainant's father told him that he did not have the money at that time, but his son who was serving in the State Transport Corporation would get his salary on 7th and that the complainant's father would pay some amount towards the Government dues on 8-3-84. The accused has further stated in his defence on oath that on 8-3-1984, while he was going from Amreli to Nana Machiayala, when he reached Giriya at about 11.30 a.m. on his bicycle, Akbarali, the complainant's father stopped him by giving a shout and, therefore, he got down from his bicycle. According to the accused, the complainant's father told him that his son had received his salary and that he should come to his house so that some amount can be given towards the Government dues by him. The accused therefore, went along with him to his house. When he entered the living room, he saw that the complainant was sitting on the cot and he sat opposite him on a chair. According to the accused, the father of the complainant straightway went into the house and he thought that he had gone to fetch water for him. The defence version further is that thereafter, the complainant told him that he was paying Rs. 500/ - towards Government dues, which may be credited and so saying he had placed the amount in his left hand. According to the accused when the complainant took out money from his pocket, he had shouted "cha muko" (prepare tea). According to the accused, when he counted the money which was put in his left hand, four or five persons came running there and Inspector Zala introduced himself. The amount was taken from him and anthracene powder detection procedure was done. According to him, at that time he had said, when asked by Inspector Zala about the amount, that the amount was taken towards the recovery of Government dues and that he was falsely trapped. The defence version in paragraph 7 of the deposition of the accused is that he had never met the complainant and that he had never asked for any bribe from him.
4. On the question of sanction for prosecuting the accused, witness Lalitkumar Arnratlal Thakar was examined at Ex. 32. He had produced the necessary papers and sanction order at Exhibits 33 and 34. The competent authority being the District Development Officer, had given the sanction Ex. 34 after proper application of mind, as rightly found by the trial Court and the validity of the sanction which has been upheld by the trial Court has not been challenged before us.
5. The prosecution has examined the comT plainant Abidhussain Akbarali Saiyad at Ex. 8, the panch witness Laxman Bechar P.W. 2 - Ex. 16, which has proved the panchnama at Ex. 17 and the father of the complainant Akbarali Mahmadmiya at Ex. 18. The prosecution also examined Dipak Vrajlal Joshi P.W. 4 - Ex. 25, a Clerk from the Court of Civil Judge (S. D.), Amreli who produced certain papers from Civil Suit No. 56/83 which was filed by the complainant; Lalitkumar Arnratlal Thakar P.W. 5-Ex. 32, a Junior Clerk from the office of the District Panchayat, to prove the sanction of the prosecution, which he produced at Ex. 34; Police Inspector Dilawarsinh Govindsinh Zala, P.W. 6 - Ex. 36; Jamnadas Makanji Gohil P.W. 7 - Ex. 43, who was a Mamlatdar in Amreli and who prodcued the proceedings regarding mutation register which were taken on record by the consent of both the sides, as recorded in the note made in his deposition and marked as Ex. 44 collectively. These papers show that the notices fixing the dates of hearing which were issued by the Mamlatdat's office in connection with the objections which were raised by the complainant were to be served through the accused on the parties including the complainant. The prosecution also examined Harshadrai Pandya P.W. 8 - Ex. 45 who was the Head Constable in the Anti-Corruption Bureau's office and had remained present when the panchnama was drawn and who was also at the house of the complainant in the room which was in the, eastern side of the sitting room at the time of the raid.
The trial Court after discussing the evidence on record, discarded the prosecution version on the ground that since the complainant and the accused both were ordinarily residing at Amreli, Amreli would have been a more convenient venue and the accused would not have agreed to go to village Giriya to take the amount; that there was no corroboration of the story of the complainant regarding the talk that he had with the accused on 6th March, 1984 at Amreli; that the complainant had not informed his father about the talk that had taken place on 6th March, 1984 which would have been the case if it had really taken place; that the witnesses could not have seen the incident from the position where they were sitting in the southern room; that the father of the complainant was also present when the accused came to the complainant's house and he had gone inside the house, which made the defence version probable; that the Mamlatdar was on leave for one month and, therefore, it was not possible to believe that the complainant would pay the amount to the accused for ensuring that the entries are not certified in the mutation register by the Mamlatdar; that the accused had at the time of raid said that he was falsely involved; that there was no anthracene powder mark on the right thumb of the accused, which created a doubt on prosecution version that the said currency notes were counted by the accused after they were taken by him in his right hand; that the raiding party was instructed initially to sit together, but they sat in two different rooms and the instructions, therefore, were not followed; that the panchas and the Inspector could not have seen or heard anything while they were in the southern room; that the complainant did not give the particulars about the exact spot where they met on 6-4-83 near the Roopam Talkies and that the complainant did not remember the size of the holes in the curtain and finally that the complainant is an accomplice and his evidence could not be relied upon. For these reasons, the trial Court acquitted the accused.
6. The learned Additional Public Prosecutor contended that the evidence on record clearly established that the accused who had issued notice under Section 135-D(2) of the Code inviting objections against the entries in the mutation register, on objection being received from the complainant who had personally given the objection application as per the endorsement admittedly made by the accused on that application, had demanded a sum of Rs. 1,000/- from the complainant to ensure that entries were not mutated in the names of the vendees to whom the land was sold by the complainant's father and in respect of which the complainant had filed a Civil Suit challenging the sale transaction on the ground that his father could not have sold away the land to them since he and others had a share therein. The learned counsel further argued that the story of the complainant did not require any corrobora-tion because he cannot be treated as an accomplice since he was not a willing giver of bribe. It was contended that the panch witnesses had fully supported the prosecution and the fact that the accused had come to the house of the complainant on 8th March, 1984 and was caught red handed taking the amount of Rs. 500/- from the complainant has been amply proved. It was contended that the defence version that the amount was paid by the complainant towards the Government dues was an after thought since that was not the version of the accused at the moment when he was caught red handed and the version came as an after thought only after the panchnama was recorded, at a stage when the statement of the accused came to be recorded. It was contended that admittedly there was no talk between the complainant and his father when the accused was in the sitting room and that if really the amount was to be paid towards the dues of the complainant's father, there would have been some talk to that effect. It was contended that the evidence disclosed that the dues of the complainant's father were to be paid by him only and not by the complainant, who was not obliged to pay those dues. Furthermore, there was no need for the accused to come to the house of the complainant to recover the dues of his father. It was submitted that the defence version is highly improbable and tailored as an after thought to fit in with what had been established by the prosecution and which could not have been challeneged in view of the successful raid carried out by the raiding party and the contemporaneous record in form of the complaint, panchnama etc. which showed that the accused was apprehended having accepted the amount from the complainant. The learned Additional Public Prosecutor argued that the reasons which have been given by the trial Court for acquitting the accused are manifestly erroneous and demonstrably unsustainable and that the acquittal of the accused is patently illegal. According to him, the prosecution has clearly established the guilt of the accused.
7. The learned Counsel appearing for the accused strongly argued that even if another view was possible, the acquittal of the accused should be confirmed. He submitted that the prosecution should demolish the grounds of acquittal and demonstrate that the judgment is perverse. He further contended that the complainant was an accomplice of a low category and, therefore, his evidence was required to be corroborated by independent witnesses. He submitted that on three important aspects namely-motive, demand and acceptance, and, recovery, the complainant's evidence was not corroborated from any independent source. He further submitted that the story of the prosecution is totally unnatural and the witnesses are tutored. He submitted that the learned Judge has assigned the valid reasons (which are set out earlier in this judgment) and there was no valid ground to take a different view of the matter. He also argued that the defence version put up on oath by the accused raised sufficient doubt and when the version of the accused can compete the case of the prosecution and there is a likelihood of its being true then that should be enough for holding that the case of the prosecution is doubtful, the benefit of which must go to the accused. The learned counsel for the accused relied upon the decision of the Supreme Court in M. O. Shamsuddin v. State of Kerala, reported in 1995 SCC (Cri) 509 : (1995 AIR SCW 2717), in support of his submission that a bribe giver is an accomplice and, therefore, the complainant's version requires corroboration. This decision in fact lays down that there are grades of accomplices and a person who participates as a trap witness and the element of mens rea is not apparent and is not a 'particeps criminis' cannot strictly be classified as an accomplice. At the most he can be treated as an interested witness and his evidence is to be scrutinised carefully. He also relied upon the decision of the Supreme Court in the case of Mahmood Khan Mahboob Khan Pathan v. State of Maharashtra, reported in (1997) 1 Supreme (Cri) 198, in support of his submission that if there is a reasonable doubt whether the money was received as lawful collection by the accused, the benefit of it cannot be denied to the accused. In that case it was held that there was a reasonable doubt, on admitted facts, that what the appellant collected from the complainant could have been the charges which he was lawfully obliged to collect from any person applying for three copies of the sale deeds. For his submission that mere possibility of a different view being taken on the same evidence was not enough to disturb the acquittal, he relied upon the decision of the Supreme Court in Ramesh Babulal Doshi v. State of Gujarat, reported in 1997 (1) Guj LR 307. This is a sound and well established proposition. He also relied upon the decision of the Supreme Court in Rabindra Kumar Dey v. State of Orissa, reported in AIR 1977 SC170: (1977 Cri LJ173) in support of his contetion that onus rested with the prosecution and despite the defence version having been given on oath by the accused, it would not shift on the accused. It is true that the onus would rest on the prosecution. In support of his submission that it is sufficient if the accused offers probable explanation, he placed reliance on a decision in the case of Man Singh v. Delhi Administration, reported in AIR 1979 SC 1455 : (1979 Cri LJ 1118). He also relied upon the decision of this Court in Prafulchandra Somalal Vasani v. The State of Gujarat, reported in (1987) 1 Guj LH 364 : (1988 Cri LJ NOC 20) in support of his contention that corroboration was needed before the complainant's evidence could be accepted. This decision on the contrary lays down that a complainant who was not willing to give the bribe would not be an accomplice and his evidence can be relied upon without independent corrobotation.
8. We have gone through the original record and have heard both the sides at great length. Since the paper books which were forwarded by the trial Court, though authenticated, contained lot of mistakes, on the first day itself we directed the office to prepare xerox copy of the entire paper book from the original record and accordingly, the registry prepared those copies duly certified by them and a copy of the paper book so prepared from the original paper book by the High Court registry was handed over in Court to the learned counsel for the accused, as also to the learned Additional Public Prosecutor and the matter has proceeded on the basis of the said authentic paper book. The entire evidence was read before us and the aforesaid contentions were canvassed.
9. As noted above, there is no dispute regarding the validity of sanction accorded by the competent authority for the prosecution of the accused. He was at the relevant time serving as Talati-cum-Mantri. As seen from the provisions of Section 135-D(1) and (2), the Talati-cum-Mantri was required to make entry in the mutation register on receipt of the information regarding transfer and since the accused had received the intimation from the Sub-Registrar's Office regarding the sale transaction effected by the, complainant' s father in favour of Popat Thakarshi and Rasilaben Popat, he had entered that transaction and issued notices as required by Section 135-D(2) inviting objections against these entries. The complainant had given his objections in person on 1-8-1983, which fact is borne out from the endorsement made below the application dated 1 -8-1983, which shows that it was given in person to the accused who had put signature in token of having received the same. A copy of this objection application of the complainant given to the accused on 1-8-1983 along with the endorsement put by the accused, indicating that it was personally handed over to him, is at Exhibit 44 collectively, at serial No. 3 thereof. All the papers at Ex. 44 were proved by the consent of both the sides as recorded in the note made in the deposition of the then Mamlatdar Jamnadas Gohil P.W. 7 - Ex. 43. The complainant's application to the Mamlatdar made on 4-8-1983 along with the endorsement of the Mamlatdar forwarding it to the accused for necessary enquiry is also on record at Ex. 44 collectively at serial Nos. 4 and 5. The fact that the objection application dated 1-8-1983 was personally handed over to the accused is also recorded in the application which was made in response to the notice served on him of the interim relief application made in Special Civil Suit No. 56/83, a copy of which is at Ex. 44 collectively at serial No. 7. It is brought on record that the complainant had made an application (Ex. 26 in the present proceedings) on 6-8-1983 in the Civil Suit which he had filed in the Court at Amreli for obtaining interim injunction restraining the defendants Nos. 1, 2 and 3 from getting the property mutated in the Government record in the name of the defendants Nos. 1 and 2 and further restraining the Talati-cum-Mantri, Giriya as well as the Mamlatdar, Amreli not to effect any change in the Government record in respect of the lands in dispute during the pendency of the suit. In the papers which are at Ex. 44 collectively, there is also a copy of the notice dated 9-12-1983 sent by the Mamlatdar's office to the concerned parties including the complainant fixing the hearing in respect of the mutation on 17-12-1983 and it appears from the endorsement made thereunder that the copy was forwarded to the accused for serving the notice on the complainant and his father. The accused had on 11-1-1984 reported to the Mamlatdar that he was not able to serve the notices on the complainant and his father as they were not at their house when he, had visited Giriya on 7-1-84 and 10-1-84. He reported that no one was prepared to be a panch for affixing the notices at their house and that, therefore, it was not possible to serve the notices and they were returned. Thereafter, the Mamlatdar again issued notices on the interested persons including the complainant on 23/27-12-1983 fixing the next date of hearing on 11-1-1984 and forwarded the same to the accused for serving it on the complainant and his father. These are also at Ex. 44 collectively. Again the Mamlatdar, Amreli on 12-1-1984 sent a notice to the complainant and his father forwarding it to the accused for serving the same on them, informing them about the next date of hearing which was fixed as 30-1-1984. On31-1-1984 the Mamlatdar again issued notice for the next date of hearing, which was fixed on 8-2-1984 on the complainant and his father for being served at village Giriya through the accused and it was clearly mentioned that if they did not accept the notice, it should be affixed on their house. That notice was served on 7-2-1984 and a report was sent thereof to the Mamlatdar by the accused as per his communication which is also at Ex. 44 collectively. In the meantime, the complainant had given a notice under Section 80 of the C.P.C. through his Advocate on 31-1-1984 to the Mamlatdar, asking him not to effect the entries and the Mamlatdar had on 10-2-1984 informed the learned Advocate that until the sale deed was cancelled, the proceedings could not be dropped and that the next date of hearing was fixed on 22-2-1984 on which date he should remain present for hearing. It appears that on 2nd March, 1984 by Registered Post A. D. notice the Mamlatdar wrote to the Advocate of the complainant that since he did not remain present on 22-2-1984, the matter was adjourned to 14-3-1984 for hearing.
It will be seen from the aforesaid documentary evidence that the accused was vitally concerned with the proceedings and the notices which were issued from the Mamlatdar's office fixing the dates of the hearing of the objections against the mutation entries were being sent for service through the accused and the accused initially could not serve these notices on them and did not even find panchas to effect service by affixing on their house at Giriya and ultimately, on 7-2-1984 he reported to the Mamlatdar that the notices were served. The accused was fully aware about the proceedings in the Mamlatdar's office and in his official capacity was concerned with them having made the initial entries and issued the notices under under Section 135-D(2) inviting objections against the entries. He also attended the Court in response to the notice issued in the Application for interim injunction filed by the complainant in respect of mutation, which was to take place. The complainant had, as per the evidence on record, personally approached the accused with the objection application which fact is clear from the endorsement made below that application by the accused, which is not disputed. In the proximity of time, there was a notice sent to the complainant by the Mamlatdar on 2nd March, 1984. In the background of the aforesaid facts established by the prosecution, the assertion of the accused in paragraph 7 of his deposition Ex. 46 that he had never met the complainant, is totally false. The accused was in his official capacity directly concerned with making of the entries of the transaction and inviting objections and he was remaining present even before the Mamlatdar on the dates fixed for hearing of the objections. The complainant was, therefore, not a stranger to him and the evidence discloses that the complainant had approached him in the matter while the proceedings were going on.
10. The prosecution has relied upon the evidence of the complainant-Abidhussain, who has deposed at Ex. 8; the pach witness Lakhman Becharbhai Rakholia who was deposed at Ex. 16; witness Akbarali Mohmadmiya - father of the complainant who was deposed at Ex. 18; P. I. Dilavarsinh Zala, whose deposition is at Ex. 36; Head Constable Harshad Pandya at Ex. 45, in support of the prosecution version that the accused had demanded bribe from the complainant about four days prior to 6-3-1984 and also on 6-3-1984 and as a result of which the complainant had filed the complaint Ex. 9 on 7-3-1984, pursuant to which the trap was arranged at the appointed place and time, being the house of the complainant at village Giriya on 8-3-1984, and, on that day, the accused did come to the house of the complainant at around 12 Noon and sat in the living room opposite the complainant and accepted the bribe of Rs. 500/-, which were in five one hundred rupee notes all treated with anthracene powder. As regards the first part of the panchnama Ex. 17 and the deposition of the witnesses on that aspect, namley - that pursuant to the complaint Ex. 9 which was filed on 7-3-1984, the complainant was called on the next morning and the panchas were also called in whose presence the five currency notes of the denomination of rupees hundred produced by the complainant which were to be given to the accused, were carefully treated with anthracene powder and kept in the complainant' s bush-shirt pocket and the procedure that was undergone and recorded, there has not been any dispute either before the trial Court or before us and that part of the evidence has not been challenged. The numbers of the said currency notes were duly recorded in the panchnama Ex. 17 and the raiding party started for village Giriya in a jeep after the completion of the first part of the panchnama at 5.35 a.m.
11. The complainant-Abidhussain Akbarali had a share in the land bearing Survey Nos. 85/1 and 85/2, which was in village Giriya and since his father had executed a sale deed in respect of the entire land in favour of Popat Thakarshi and Rasilaben Popat for a total sum of Rs. 44,000/-, he had filed Special Civil Suit No. 56/83 in the Court of learned Civil Judge (Senior Division), Amreli, challenging the same and seeking interim injunction against making entries in the mutation register, pursuant to which notices were issued on the accused and the Mamlatdar also. The complainant has also stated that he made an application to the accused raising objections in response to the notice inviting objections issued by the accused under Section 135-D(2) of the Bombay Land Revenue Code. He has referred to various dates on which he was required to go to Mamlatdar's Court. As stated by him when he had gone to the Mamlatdar's Court after 24-8-1983, the accused had met him outside the Court and had told him that if he wanted that the entries should not be made in favour of Popat Thakarshi and Rasilaben Popat, a sum of Rs. 1,000/- will have to be paid by him. The complainant at that time only said that he would think over. The complainant has then stated that thereafter on the subsequent dates which were fixed for hearing the case, the accused used to tell him that if he pays Rs. 1,000/- his work would be done. According to the complainant, since the matter was dragging on in the Mamlatdar's office, he had sent a notice through his Advocate Mr. Harkishandas Gandhi to the Mamlatdar, Amreli and the accused. Thereupon, the complainant was required to remain present on 22-2-1984, but since his Advocate was not present, the matter was adjourned to 4-3-1984. As noted above, a registered post notice dated 2-3-1984 was despatched to the complainant's Advocate informing him about the said date of hearing on 14-3-1984. The complainant has then stated that about 4-5 days prior to 6th March, 1984 the accused had met him in the bazaar of Amreli and demanded Rs. 1,000/- for ensuring that the entries were not made in favour of Popat Thakarshi and Rasilaben Popat. The complainant told him that he should arrange for a personal talk with Mamlatdar, but the accused said that the Mamlatdar would not talk to him and will not take the amount from him. The complainant thereafter told the accused that he would pay him Rs. 1,000/-. Thereafter, on 6-3-1984 while the complainant was going towards Kasbawad the accused met him near Roopam Talkies, being the place near which the accused admittedly resided and again demanded the amount of Rs. 1,000/-. Thereupon the complainant told him that he was not in a position to pay the amount of Rs. 1,000/ - at a time. The accused, therefore, told him to pay Rs. 500/- initially and the remaining Rs. 500/-later on. The complainant told him that he did not have the amount with him and would be getting his salary on 7-3-1984 and would pay to him the amount after he gets the salary and rest of Rs. 500/-, he would pay after selling wheat crop. The complainant has stated that the accused thereupon told him that he would be coming to Giriya on 8-3-1984 between 10.00 a.m. to 12.00 noon to take the amount of Rs. 500/- and that the complainant should keep that amount ready. The complainant has categorically stated that he did not intend to pay the illegal gratification to the accused and therefore, on 7-3-1984 he had gone to the office of the Anti-Corruption Bureau in the evening and informed the Police Inspector about the aforesaid facts and his complaint Ex. 9 came to be recorded at that time by Inspector Zala. He has proved his complaint Ex. 9 stating that it was dictated by him and the contents thereof are correct. If we go through the complaint Ex. 9 it is clear that the aforesaid version of the complainant before the Court stands fully corroborated. It was recorded in the complaint that four or five days prior to 6th March, 1984, the accused had asked for Rs. 1,000/- from the complainant for getting his work done through the Mamlatdar and that on 6th March, 1984, he had again asked for the said amount and the complainant had told him that he cannot pay the entire sum at a time and that thereupon the accused asked him to pay Rs. 500/- initially and the remaining Rs. 500/-later on. It was clearly recorded in the complaint that the accused had told him that he would come to Giriya on 8-3-1984 between 10 a.m. - 12 noon to the house of the complainant for taking the amount. In the complaint it was stated that the accused was to come to the house of the complainant on 8th March, 1984, as arranged, for taking the amount of Rs. 500/-, but since the complainant did not intend to give any bribe, he had approached the Anti-Corruption Bureau for filing this complaint and for taking necessary action. This complaint was recorded at 5.30 p.m. on 7-3-1984. It thereafter transpires from the complainant's evidence that the accused had demanded a sum of Rs. 1,000/- to ensure that the entries were not made in favour of the vendees and had told the complainant that he would be coming to his house at Giriya to recover the amount of Rs. 500/-, which was the first instalment of the total amount of Rs. 1,000/-. It also transpires that the complainant was not willing to give the amount and that is why he filed this complaint, which fact would indicate that the complainant cannot be treated as an accomplice though he may be a person interested in the outcome of his complaint and his evidence is to be closely scrutinised. It would also be material to note at this stage that the authenticity of the complaint Ex. 9 stands established even from the deposition of the panch witness Lakhmanbhai Becharbhai Rakholia, who has in terms deposed at Ex. 16 that the complaint Ex. 9 was read over before the panchas in the morning of 8th March, 1984 and that the complainant had affirmed before them that the facts mentioned in the complaint were correct. The panchas had put their signatures in token thereof below the complaint. This fact is also mentioned in the first part of the panchnama Ex. 17.
12. The complainant has further deposed that he was asked by Inspector Zala to remain present early in the morning at 4 'O Clock on 8-3-1984 and bring the amount with him. Accordingly, he had started from village Giriya on a bicycle at 3.45 a.m. and reached the Anti-Corruption Bureau Office at Amreli at 4 a.m. i.e. within 15 minutes. The panchas were called through the Head Constable Harshadrai Pandya and they came to the office at 4.30 a.m. The complaint was read over to them and the complainant was asked before them whether it contained their signature and whether the facts mentioned therein were correct and the complainant confirmed their signature and the facts contained therein. He had then produced five hundred rupee notes before them, the numbers of which were noted down in the panchnama. He has then referred to the procedure that was followed for treating the currency notes with anthracene powder and which were ultimately put in his bush-shirt pocket. Inspector Zala, instructed him that he should not touch them and that when the accused accepted the bribe amount, the complainant should give a signal by saying "cha muko" (prepare tea). The panchas and the members of the raiding party were given instructions that they should sit in the room adjoining the sitting room and hear and see, what is happening. Thereafter, they had gone to village Giriya in a jeep, which was halted near a temple and the driver was instructed to take it to the workshop. The complainant, two panchas and the members of the raiding party walked down to the complainant's house from the rear of the village and entered his house through the door, which fell on the street. All of them sat in the sitting room till 9 'O Clock and had tea. He has stated that in the sitting room of his house there was a cot, opposite to which there was a chair on that day. For going to the room next to the sitting room, there was a door frame in the southern wall, which did not have doors i.e. shutters, but had a curtain with holes. In the room which is to the south of the sitting room, there was a cot. The main door of that southern room fell on the eastern side through which one could go in the 'osri'. There is another room which is to the east of the sitting room and north of the osri and the common wall of the sitting room and the said eastern room was 6 ft. high and it was possible to hear the talk that may take place in the sitting room from the said eastern room and it was possible to see as to what was happening. The complainant has then stated that after 9 'O Clock, he sat on the cot, which was in his sitting room, while Inspector Zala along with two panch witnesses sat in the room which was to the south of the sitting room, on a cot. The other members of the raiding party were asked by Inspector Zala to sit in the eastern room and to see and hear whatever they could. According to the complainant at 12.00 noon the accused came to his house and at that time he welcomed him by saying "Avo Mantri Saheb" and the accused entered the room and sat on the chair. After sometime, the complainant's father had entered, but he had gone inside, in the other room. The complainant has then deposed that he told the accused that he should get his work done soon by telling the Mamlatdar and that he was suffering a great loss. The accused thereupon told him that he had gone to the Mamlatdar's office, but the Mamlatdar was on leave for a month. The accused asked as to what he had done about that what was told to him by the accused. The complainant on this being said, took out the amount of Rs. 500/- from his bush-shirt's pocket and gave it to the accused. Thereafter, as recorded in his deposition, this witness said that the Talati had spoken that he had told him that the Mamlatdar was on leave. This sentence is following the earlier sentence deposed by the complainant in which he has stated that the accused asked him as to what he had done about what was told to him by the accused. The trial Court has mixed up these two distinct sentences and the cross-examination which is directed against the latter sentence in which the witness said that the accused had told him that he had informed him about the fact that the Mamlatdar was on leave, is taken to be the cross-examination in respect of the earlier sentence by separating words "Tenoo shoon" from the earlier sentence, which ought to be read in the entire sentence said to have been spoken by the accused as to his having asked the complainant as to what did he do about that was told to him. The complainant has then deposed that when he was giving the amount of Rs. 500/- to the accused, the accused told him 'alright give it' and saying so he had taken the said amount in his right hand and counted with his both hands and thereupon the complainant shouted the signal of "cha muko". When that was done, Inspector Zala with panch Witnesses and other members of the raiding party came in the living room and Inspector Zala introduced himself to the accused. The accused became nervous and said that he was falsely trapped. Inspector Zala asked the accused as to for what purpose had he accepted the amount; but the accused did not give any reply at that time. The accused shifted the currency notes to his left hand and started rubbing his hands. The complainant has then deposed as to the procedure which was adopted for detecting anthracene powder which was noticed on the currency notes which were recovered from the accused under the instructions of Inspector Zala. Anthracene powder marks were also noticed, according to the complainant, on the right hand thumb and three fingers and also on the left hand thumb and three fingers of the accused. The powder marks were also noted on both his palms. The panchnama, which was drawn of what had happened and the procedure regarding detection of the anthracene powder marks, was completed at 1.45 p.m. After a lengthy cross-examination of the complainant was already made, the learned counsel for the accused had made application Ex. 15 for deferring his further cross-examination to a date after the deposition of the complainant's father and the panchas was recorded. This request was granted by the trial Court on 12-6-1986, as per the note made in the deposition itself. In his further cross-examination, the defence version that complainant had paid the amount of Rs. 500/- to the accused towards the Government dues was put to the complainant and denied by him. Earlier in his cross-examination it was suggested to him that when his further statement was recorded by the police, he was asked questions about the Government dues payable by his father. The complainant has categorically stated that he did not know as to what amount was due to be paid by his father towards the Government dues and maintained that he had no talk with the accused about any such Government dues. The complainant despite lengthy and searching cross-examination was not at all shaken on the substantive part of the evidence regarding the accused having earlier demanded bribe from him on 6-3-1984, about his having filed the complaint on 7th March, 1984 and about the accused having come to his house and accepting the amount of Rs. 500/- as earlier fixed. From the deposition of this witness, it clearly transpires that the accused wanted to take an amount of Rs. 1,000/- from him to ensure that the entries were not mutated. He was vitally concerned as noted above with the mutation proceedings and the complainant had occasions to meet him. The complainant has clearly referred to the fact that at the time when the accused came to take the amount, there was reference to the proceedings in the Mamlatdar's office and in that context, the accused had reminded the complainant as to what did he do about what he was told, meaning thereby whether he had kept the amount of Rs. 500/- ready as earlier fixed. When the complainant took the amount from his pocket, the accused said "alright give it" and then accepted the same. Therefore, evidence of the complainant clearly shows that the accused demanded the illegal gratification of Rs. 1,000/- from the complainant and since the complainant was not in a position to pay it at a time, told him to pay Rs. 500/- initially on 8-3-1984, went to his house at the appointed time and obtained the amount from the complainant in context of the earlier talks and demand made by him. The complainant was the person waiting in the sitting room opposite whom the accused sat in the room. The complainant had no enmity against the accused and he being nearest in the room just opposite the accused, would be a more reliable witness as to what transpired between the two. The version of the complainant on the aspect of the accused coming to his house at 12.00 noon on 8th March, 1984 and sitting opposite him in the chair and as regards the talk about the proceedings in the Mamlatdar's office regarding mutation and the accused having accepted the treated anthracene powder currency notes of Rs. 500/- and his shouting the pre-arranged signal of "cha muko," the Inspector, panchas and raiding party members coming there and apprehending the accused with the bribe amount in his hand, is amply corroborated by other evidence namely of the panch witness Lakhmanbhai Becharbhai, Inspector Zala and Head Constable Harshadrai Pandya. The evidence clearly discloses that the room which was to the south of the sitting room in which the panch witness sat along with the Inspector was a small room of 7 ft x 8 ft. With a cot, on which the panchas sat and that the curtain which was in the door frame was having about four holes in it. The trial Court has been carried away by minor discrepancies about the size of the holes in the curtain and has overlooked the fact that it was a very small room and while sitting on the cot panch witnesses could have seen the incident happening about a few feet away. The exact position from which the witnesses saw the incident namely whether they were glued on the cot or moved about to see what was happening cannot be visualised in detail. The very purpose of these persons remaining in the southern room was to hear and see what was being done and when they have said that they had seen and hea rd the talk between the accused and the complainant that cannot be lightly dismissed by measuring the holes in the curtain or entering into a hair splitting distinction between a torn curtain and a curtain with holes, as is done by the trial Court. The fact remains that according to them they had seen that the accused had accepted the bribe amount from the complainant and on all the material aspects, they fully support the version of the complainant.
The panch witness Laxman in his deposition at Ex. 16 has stated that at 12.00 noon when the accused entered the sitting room, the complainant had welcomed him by saying "Avo Mantri Saheb beso" and he then sat on the chair opposite the cot on which the complainant was sitting. The father of the complainant had therafter come and gone inside. He has also deposed that the complainant had told the accused that his work should be done fast and that he was suffering a loss. The complainant had told the accused that he should meet the Mamlatdar arid get the work done and thereupon, the accused told him that he had gone to the office of the Mamlatdar, who was on leave for a month. The complainant gave him the amount of Rs. 500/- and the accused accepted by saying "Alright give it," and then he counted the currency notes and on the complainant's shouting the signal "cha muko," they rapidly went into the sitting room where the accused got confused and he started rising from the chair shifting the currency notes to his left hand, but was told by the Inspector to keep sitting. The Inspector had asked him as to for what had he accepted the amount, but accused could not give any immediate reply and started rubbing his hands. Thuis panch witness on instructions from the Inspector had taken the five currency notes from the hands of the accused and he has deposed that anthracene powder marks were noticed on three fingers and palm of the right hand of the accused and also on the thumb fingers and palm of his left hand. The currency notes were also checked up in the ultra violet lamp and powder marks were noted. Initials of the panch witness were obtained on these currency notes which he identified before the Court, stating that the numbers of these currency notes which were mentioned in the second part of the panchnama tallied with the numbers already noted in the first part. The panch witness has fully supported the prosecution version which is also reflected in the panchnama Ex. 17. In his cross-examination he stands firm on the material part of his deposition and the lengthy cross-examination did not shake his testimony. The minor aspects which have been brought out in the cross-examination would not at all affect his version on the main incident. It is significant to note that there is no suggestion made to this panch witness that the accused had stated at the time when he was apprehended that the amount of Rs. 500/-which was found with him was paid towards the Government dues of the complainant's father. The witness has reiterated in paragraph 16 of his deposition in the cross-examination that the accused did not say anything beyond saying that he was trapped:
Police Inspector Zala in his deposition at Ex. 36 gave all the material particulars regarding the complaint and the panch witnesses having been called to his office, the facts recorded in the first part of the panchnama and the raiding party along with the complainant and panchas having proceeded to the complainant's house at Giriya in the morning on 8th March, 1984 and waiting there and positioning themselves after 9'0 clock in the manner stated by the complainant and the panch witness. He has in terms stated that it was possible to see as to what happened in the sitting room while sitting in the southern room, in which he sat along with two panch witnesses. There were holes in the curtain and he said that even if there had not been any holes, it was possible to see whatever happened in the sitting room even while sitting on the cot in the southern room. Mr. Zala in his cross-examination stated that he does not remember as to whether he was standing or the panch witnesses were sitting at the time when the accused had entered the sitting room. He stated that he was standing near the cot in the said southern room. He has stated that cot on which they were sitting in the southern room was about one and a half feet away from the eastern wall. He has firmly denied the suggestion that they could not have had the view of the sitting room. Inspector Zala has fully supported the complainant's version as to the accused entering the house and the complainant telling him to get the work done by meeting the Mamlatdar since he was suffering a lot of damage and about the fact that the accused told him that the Mamlatdar was on leave as also on the aspect of the complainant giving him Rs. 500/- and the accused saying "alright give it" and accepting the amount and thereupon the complainant giving the pre-arranged signal. Inspector Zala has stated that when the accused was asked by him as to what for had he taken the amount, he did not say anything and became nervous stating that he was falsely trapped. He speaks about the anthracene powder detected on three fingers and palm of the right hand and on the left hand tumb, fingers and palm of the accused. In his cross-examination, he has stated that if the currency notes are held in between the fingers of the right hand and counted with the left hand, then the anthracene powder marks would appear at the places at which they actually appeared in the hands of the accused. He has maintained that the accused had not said anything at the time when he was apprehended beyond what he has already mentioned in the examination-in-chief. He has then stated that after the statement of the accused was recorded he had asked questions regarding Government dues on the basis of that statement to the complainant and his father. He has made it clear only after the completion of the panchnama, in his statement the accused had said that the amount was of Government dues. The evidence on record clearly discloses that at the time when the accused was apprehended with the currency notes in his hand, he was non-plussed and beyond saying that he had been falsely trapped, he did not give any explanation that the amount was given to him towards the Government dues. It is only after the panchnama was completed at 1.45 p.m. that the accused in his statement for the first time made a mention of the Government dues. This, in our view, was clearly an afterthought. If the amount had been paid towards the Government dues of the complainant's father, the accused would have at the very moment when Inspector Zala asked him while he was holding the currency notes, stated that it was paid to him towards the Government dues.
Constable Harshadrai Pandya, who was present in the eastern room with the other members of the raiding party has also in his deposition Ex. 45 supported the prosecution version on material particulars. He was in a position to hear the conversation because common wall between the sitting room and the eastern room in which he waited was only 6 ft. high and above that it was open till the ceiling. He heard the complainant welcoming the accused and asking him to get the matter disposed of early by meeting the Mamlatdar and stating that loss was being caused to him. He also has stated that he heard the accused saying that he had gone to the Mamlatdar's office and that Mamlatdar was on leave. He has also stated that the complainant at the time when the accused said that he had been to the Mamlatdar's office, stated that he was giving Rs. 500/- and the accused thereupon said alright. He has also stated that thereafter, the complainant gave the signal by shouting "cha muko" and he and other members of the raiding party who were sitting in that room reached in the sitting room where Inspector Zala and panch witnesses had already reached. This witness has also stated that the currency notes were in the hands of the accused and when Inspector Zala asked him as to for what purpose he had taken the amount, the accused had become nervous and had said that he was falsely involved. He also deposed as to the find of the anthracene powder marks on the hands of the accused. Thus, on material particulars this witness also supports the prosecution case.
The evidence adduced by the prosecution therefore establishes beyond any shadow of doubt that the accused was serving as a Talati-cum-Mantri at the relevant time, that in respect of the proceedings for mutating the entries in the register for the transaction which was entered into by the complainant's father, the accused issued notice under Section 135-D(2) of the Bombay Land Revenue Code, that he forwarded the papers to the Mamlatdar in view of the objection lodged by the complainant and on the ground that he would help the complainant in seeing to it that the entries are not certified in the mutation register demanded illegal gratification of Rs. 1,000/- on about 4 days prior to 6-3-1984; and thereafter on 6-3-1984, he again demanded the amount and when the complainant told him that he was not in a position to pay it at a time, asked him to give Rs. 500/- initially and Rs. 500/- thereafter and told the complainant that he would come to his house at Giriya to collect the amount on 8-3-1984 between 10.00 a.m. to 12.00 noon. It is also established that on that day he went to the complainant's house at 12.00 noon and in context of the proceedings pending in the Mamlatdar's office, accepted the amount of Rs. 500/- demanded by him from the complainant and at that time he was apprehended red handed with the said treated currency notes and had no explanation to offer. It is clearly established that his earliest statement was only to the effect that he was falsely trapped and at that time he did not state that one amount was given to him by the complainant for paying the Government dues of his father. That version was given by the accused only as an afterthought much after the incident and after the panchnama was drawn, only when his statement was recorded by the Police Officer. The trial Court has mixed up that subsequent version by proceeding on an assumption that as if it was an immediate version given by the accused at the time when he was apprehended with the currency notes.
The defence version as reflected in the deposition of the accused at Ex. 46 is that on 6-3-1984 when the accused met the complainant's-father in the bazaar of village Giriya and asked for the Government dues, he was told by the complainant's-father that he would pay some amount towards the dues on 8-3-1984. It is not the defence version that any time or place for such payment was fixed for 8th March, 1984. It is not at all the defence suggestion that the accused was to come to the complainant's-father's house on 8-3-1984 at any particular time or at all to collect the dues. Thus, when the complainant's-father did not know that the accused would come to his house to collect the money on 8-3-1984, there was in that case no scope for the trap being arranged in the complainant's house by filing the complaint on 7-3-1984. The version of the accused that he was stopped at 11.30 a.m. while he was passing on the highway for going to village Nana Machiyala by the father of the complainant would show that it was never fixed with the accused by the complainant' s-father that he would come to complainant's house to collect the dues. If that was not fixed, then there was obviously no possibility of arranging a trap at the house of the complainant at the instance of the complainant's-father. Moreover, the father of the complainant could not have known that the accused would be passing through the village Giriya at 11.30 a.m. for going to village Nana Machiyala. The defence version that the father of the complainant took him to the house under the pretext of paying his Government dues and got him trapped therefore, is highly improbable and is a cooked up version. No such version was put up by the accused at the point of time when he was apprehended with the treated currency notes, which he took from the complainant. At that particular moment he only said that he was falsely trapped. The story regarding the Government dues of the complainant's-father flashed only after the panchnama was drawn and when his statement was recorded, on the basis of his statement, a few questions were asked by the Police Inspector in the further statements of the complainant and the complainant's-father, which are relied upon by the defence to argue that at the earliest point of time the accused had referred to the amount being paid towards the dues of the complainant's-father by the complainant. The panchnama was noted above, was completed at 1.45 p.m. which was more than one and a half hours of the accused being caught. Thus, the accused who initially was non-plussed and had only nervously muttered that he was falsely trapped folding hands, had time enough to reflect and cook up a version of the amount being paid towards the Government dues only when his statement was recorded much later i.e. after the panchnama was drawn. There is no suggestion to the panch witness in the cross-examination that at the point of time when he was caught around 12.05 p.m., the accused had at that time said that the complainant had given the amount towards his father's Government dues. The panch witness, as noticed above, has asserted even in the cross-examination that the accused did not say anything beyond stating that he was falsely trapped. Nothing on the question of the accused having talked about the Government dues of his father or the amount of Rs. 500/- being paid on that account was suggested to the panch witnesses. Even Police Inspector Zala is categorical about the fact that the accused did not say anything when he was apprehended with the currency notes.
The entry of the complainant's-father in the house soon after the accused had come and sat in the chair, need not cause any wonder because the complainant's-father was residing in the eastern portion of that every building. He entered the sitting room and straightway proceeded to the inner room where he was by gesture asked to keep quiet by the Inspector and he had then gone beyond that room. The portion which was occupied by the complainant's-father was to the east of the eastern room in which the members of the raiding party other than the Inspector and the panchas were sitting. If there was any earlier talk between the accused and the complainant's-father that he would pay the dues of the Government, then there would have been some communication to that effect between the accused and the complainant' s-father in presence of the complainant and the accused would not have accepted the amount from the complainant unless it was made clear to him that it was being paid towards the Government dues of the complainant' s-father. The dues which were payable by the complainant' s-father were pursuant to the notice given to him on 4-1 -1984 by the Taluka Development Officer. A copy of that notice is at Ex. 19. It was issued under the signature of the Taluka Development Officer, Amreli to the complainant's-father, requiring him to pay Rs. 2,386.92 p within 10 days, failing which it was stated that proceedings would be taken for imposing penalty and surcharge. The amount which was payable under that notice by the complainant's-father was not required to be paid by the complainant. It was the liability of his father who alone could have been held liable for making the payment of the Government dues. In fact, the accused in paragraph 14 of his deposition Ex. 46, himself stated that ordinarily the Government dues are required to be paid in the Talati' s office, but he has stated that there is no such rule. Therefore, there was no imminent stage of recovery reached on the basis of the notice dated 4-1 -1984, which would have enabled the accused to effect recovery. Ordinarily, the father of the complainant would have paid the amount in the office and there was no reason for the accused to go to the complainant's house for such recovery. The accused has stated that when he had entered the complainant's-house, the complainant had not said anything. He has also stated that the father of the complainant had entered the room and gone inside without saying anything. Therefore, there was no occasion for the accused to know at that time without there being any talk between the complainant and his father that the amount was to be given by the complainant to him towards the dues of his father. As held by us above, the story regarding the amount being paid towards the Government dues flashed only after the raid and the recording of the panchnama, at the belated stage when the Police statement of the accused was recorded. If there was any substance in what the accused has proffered by way of defence, that would have reflected immediately when he was caught red handed with the currency notes. The defence of the accused is clearly an afterthought and tailor-made by him to suit his purpose, having been caught with the treated currency notes in the complainant's own house.
In view of the aforesaid facts which are established by the prosecution evidence, which proved the ingredients of the offences which are levelled against the accused and the hollowness of the defence version, which far from creating any doubt is demonstrated to be palpably false, we are satisfied that the prosecution has established the guilt of the accused and the trial Court has gone wrong in acquitting him on flimsy reasoning. The trial Court was impressed by the fact that there were no anthracene powder marks on the right thumb of the accused, but overlooked that merely because the anthracene powder marks were absent on his right thumb, that did not nullify the facts established by cogent and reliable evidence showing that the accused had accepted the amount and the anthracene powder marks were detected on three fingers and palm of his right hand and also on his left hand thumb, fingers and palm. The trial Court ignored the fact that such marks could occur at these places if the currency notes treated with anthracene powder are held in between the fingers of the right hand without thumb touching them and counted with the left hand. The trial Court also ignored the fact that even according to the accused, these treated currency notes were placed in his left hand by the complainant. There hardly therefore remained any doubt on the question that the treated currency notes were accepted by the accused from the complainant and they were recovered from him by the raiding party for which an authentic and reliable panchnama was drawn. The trial Court was unnecessarily impressed by the initial instructions of sitting in a room given by the Inspector not being followed and the actual positioning being different as per which the Inspector and panchas sat in the southern room while the remaining raiding party members sat in the room on the eastern side. The fact that they sat in two rooms instead of one is clearly borne out by cogent evidence and deviation from initial instruction when the first part of the panchnama was prepared to sit in a room adjoining the sitting room in this manner can never be used as a factor going against the prosecution. The evidence clearly shows that the Inspector and the panch witnesses were in a position to see and hear as to what happened in the sitting room, while the membrs of the raiding party who sat in the eastern room were in a position to hear the conversation in the sitting room. At some place the trial Court was confused about the height of the common wall between the sitting room and the eastern room on the basis of the cross-examination regarding height of the common wall between the sitting room and the southern room. The trial Court while observing that Amreli would have been a more convenient venue for the amount to be paid to the accused by the complainant, has resorted only to its own conjectures flying in the face of the positive evidence on record showing that the accused was to and did come to the house of the complainant oh 8-3-1984 to take the amount of Rs. 500/- between 10.00 a.m. to 12.00 noon. The trial Court has also drawn an undue inference from the fact that the complainant did not disclose his talk with the accused that took place on 6-3-1984 to his father. The fact that on 6-3-1984 the complainant had met the accused and the accused had demanded the amount of Rupees 1,000/- and that since the complainant was not in a position to pay it at a time, had asked him to pay Rs. 500/- initially for which he was to come to his house on 8-3-1984 at Giriya is borne out from the complaint filed on 7-3-1984. The trial Court ought not to have expected the complainant to go on telling everybody about the matter for which a trap was to be led on te basis of his complaint. There is therefore, nothing unusual about the complainant not informing his father about the talk that took place between the accused with him on 6-3-1984. As noted above, the trial Court has mixed up the subsequently cooked up version, at the stage of his statement, regarding Government dues proffered by the accused and treated it as if it was his immediate version at the time when the accused was caught red handed with the currency note. The trial Court ought not to have discarded the complainant's evidence on the ground that he was an accomplice. As noted above, the evidence discloses that he was not willing to pay the amount demanded by the accused and this fact was clearly reflected in the complaint also. Therefore, the complainant could not have been treated as an accomplice and therefore, there was no need for any independent corroboration to his deposition. However, the complainant having lodged the complaint was a person interested in the outcome of the proceedings and therefore, we have examined his deposition with great care and we find that the version of the other witnesses namely the panch witness Lakhmanbhai Bechar, Inspector Zala and Head Constable Pandya supports his version on all material particulars and even the complaint Ex. 9 and the panchnama Ex. 17 reflect the same story. In this view of the matter, we find that the grounds which have been given by the trial Court in support of its decision are palpably wrong, manifestly erroneous and demonstrably unsustainable and this is not a case where out of the two views possible, we are taking a different view. This is a case where the prosecution has clearly established the guilt of the accused and the defence version, as noted by us above, is an afterthought and does not raise any doubt whatsoever against the prosecution case. For the reasons that we have given above, the decisions which have been cited by the learned counsel appearing for the accused, cannot assist the accused.
In the above view of the matter, we set aside the acquittal of the respondent-accused and hold that the accused-Jivraj Manjibhai Patel is guilty of the offence under Section 161 of the Indian Penal Code and the offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. The accused is therefore, convicted for the offences under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947.
At this stage, we asked the learned counsel for the accused whether the accused is present, but he has said that the accused is not present and that submissions would be made on the question of punishment for which a date may be given when he will endeavour to ensure the presence of the accused to be heard on the question of sentence. We therefore direct bailable warrant in the sum of Rs. 5,000/- to be issued on the accused respondent to ensure his presence before this Court on 9-7-1998 for being heard on the question of sentence.
Today, pursuant to the bailable warrant issued on 2-7-1998 requiring the presence of the convict for being heard on the question of sentence, the convict has remained present. His counsel has filed an affidavit sworn by the convict. The convict has orally reiterated the same facts as are mentioned in his affidavit. He has stated that he is 65 years of age and that he has no source of income except pension, which he will lose due to conviction and that he is totally dependent upon his son. He has also stated that he is not keeping good health and suffers from blood pressure. He is also not able to hear due to old age.
We have given our anxious consideration to the question of quantum of punishment that may be imposed on the convict, keeping in view what he has stated before us. It is also stated that the incident took place in February, 1984. We may say that the fact that the Court has taken time to decide the acquittal appeal because of pendency of matters cannot work in favour of the convict because all through out these years, he has enjoyed the benefit of an erroneous acquittal and his remaining out is not a matter which can be said to be working to his prejudice. Having regard to the facts and circumstances of the case, we are of the view that the interest of justice will be met if the respondent convict is sentenced for each of the offence to undergo rigorous imprisonment for a period of three years and ordered to pay fine of Rs. 2,000/-, in default of payment of which, to undergo further rigorous imprisonment for a period of one month.
We therefore, pass the following final order:-
The respondent-Jivraj Manjibhai Patel whom we have convicted for the offences under Section 161 of the Indian Penal Code and Section 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947, is sentenced to rigorous imprisonment for a period of three years and ordered to pay fine of Rs. 2,000/-, in default to undergo further rigorous imprisonment for a period of one month, for the offence under Section 161 of the I.P.C. He is also sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 2,000/-, in default to undergo further rigorous imprisonment for a period of one month for the offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. The substantive sentences of rigorous imprisonment for both the offences shall run concurrently.
The request made on behalf of the respondent convict for giving two weeks' time to surrender, is rejected. The respondent convict is ordered to be taken in custody forthwith.