Gujarat High Court
Jayantilal Ambalal Gandhi vs State Of ... on 16 January, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/236/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 236 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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JAYANTILAL AMBALAL GANDHI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR BS PATEL, ADVOCATE for the Appellant(s) No. 1
MRS RANJAN B PATEL, ADVOCATE for the Appellant(s) No. 1
MS HB PUNANI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 16/01/2017
ORAL JUDGMENT
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1. The present Criminal Appeal is preferred by the appellant - Jayantilal Ambalal Gandhi against the judgment and order dated 10.2.1999 passed by learned Special Judge, Vadodara in Special Case No.3 of 1995 whereby the original accused - appellant herein was convicted for the offence under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act 1988 ("the Act" for short) and sentenced him to undergo four years rigorous imprisonment and to pay fine of Rs.5000/-, in default, to undergo further six months simple imprisonment.
2. The short facts giving rise to the present appeal are that the complainant purchased the property on 8.2.1994 from its original owner and as the sale deed has been executed, the complainant went in the office of the City Survey Superintendent, Vadodara for entering his name in the property card and hence, for obtaining the property card, the complainant made the application on 11.4.1994 along with necessary documents. It is alleged that the complainant received the notice dated 18.4.1994 and, therefore, he met the appellant accused and that he informed the complainant that his application has been filed and that the complainant was asked to make fresh application and accordingly, the complainant made the fresh application. It is alleged that the complainant again met the appellant and the appellant made predemand for initiating the process of entering the name of Page 2 of 25 HC-NIC Page 2 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT the complainant. It is alleged that the appellant demanded Rs.1000/- which was ultimately scaled down to Rs.500/-. It is alleged that as the complainant did not want to pay the bribe, he approached the ACB office and lodged the complaint before the Police Inspector, ACB. It is alleged that after following necessary procedure, trap was arranged and the accused was caught red handed.
3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
3.1 In order to bring home the guilt, the prosecution has examined three witnesses and also produced documentary evidences.
3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.
4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.
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R/CR.A/236/1999 JUDGMENT
5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such.
6. Mr.B.S.Patel, learned advocate for the appellant - accused has taken this Court through the charge framed against the present appellant as well as material evidence on record, more particularly, Mr.Patel has given more weightage to the explanation rendered by the appellant accused while recording his statement under section 313 of the Code of Criminal Procedure and argued that this is a clear case wherein the prosecution has miserably failed to establish that the appellant raised predemand with the complainant on 28.7.1994 at about 12.00 noon. He has submitted that from 10.30 am to 2.00 pm, the appellant was attending the duty at Varnama and in order to substantiate his contention, the appellant also produced movement register during the course of tendering his explanation indicating the same and therefore, since the prosecution has failed to establish the visit of Page 4 of 25 HC-NIC Page 4 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT the complainant at 12.00 noon, predemand itself is not proved. He submitted that mutation entry was already effected in the revenue record on 28.7.1994 and therefore there was no reason for asking the bribe as the act which was to be performed by the present appellant was already performed prior to demand and hence there was no question to make a demand. He further submitted that as the complainant was the son of the former Collector who was stationed at Vadodara for the tenure of three years and therefore, when the appellant accused was called at the instance of the Peon of the complainant, the appellant visited under the belief that former Collector was there and hence, the appellant has been wrongly implicated in the crime in question. He submitted that the appellant has explained in his explanation while recording the statement under section 313 of the Code that money was thrusted upon his pocket though he did not demand and accept it.
6.1 On the point of sanction, Mr.Patel has vehemently submitted that entire proceedings were not placed before the sanctioning authority and that there was no proper and valid sanction granted within the meaning of "sanction" under the Act. He submitted that even the evidence of the sanctioning authority is not satisfactory and on going through the tenets of the order in light of his oral evidence, the sanctioning authority Page 5 of 25 HC-NIC Page 5 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT has not even accorded sanction so far as section 7 of the Act is concerned. He submitted that from the deposition of the sanctioning authority, it clearly emerges that he has relied upon the statements putforth before him and he mechanically accorded sanction which is clear indicative of nonapplication of mind and, therefore, the proceedings suffer for want of valid sanction and resultantly, no prosecution could have been initiated against the present appellant as such. He submitted that for want of valid sanction, the impugned judgment and order of conviction against the appellant is required to be quashed and set aside as such. In support of his submissions, Mr.Patel has placed reliance on the decision in the case of Mansukhlal Vithaldas Chauhan Vs State of Gujarat, reported in 1998 (1) GLR 793 as well as the decision in the case of Habibulla Kalyani Vs State of Gujarat, reported in 1985 (2) GLR 1282.
6.2 In the alternative, Mr.Patel, learned advocate for the appellant has submitted that if this Court comes to the conclusion that the appellant is guilty of the charges levelled against him, in that case, this Court may consider the fact that there is long gap of time in between the alleged incident of the year 1994 and this appeal is being heard and decided in the year 2017, i.e. for about 22 years and at the relevant point of time, there was minimum Page 6 of 25 HC-NIC Page 6 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT sentence of one year prescribed, however, learned trial Judge has inflicted sentence of four years which is hard. He further submitted that the appellant is aged about 70 years and is suffering from various ailments and that he has already lost his job and hence, he urged this Court to reduce the sentence imposed upon the appellant accused.
7. On the other-hand, Ms.H.B.Punani, learned APP has supported the judgment rendered by learned trial Court. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused which calls for no interference. She further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence. She submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant. She further submitted that this is a clear case wherein the prosecution has successfully established pre-demand as well as acceptance thereof by way of tendering sufficient oral as well as documentary evidence. She submitted that even otherwise also, in the explanation itself, the appellant accused has accepted so far as recovery of money is concerned, however, the explanation tendered by him as regards to forcefully thrusting the bribe amount upon his Page 7 of 25 HC-NIC Page 7 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT pocket is an afterthought in view of his clear admission of accepting the amount which is very clear in unequivocal terms which indicates that the appellant accused accepted the bribe amount in pursuance of predemand and the demand raised by him.
8. This Court has heard Mr.B.S.Patel, learned advocate for the appellant accused and Ms.Punani, learned APP for the State.
9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, the appellant accused was serving as Maintenance Surveyor in the office of the Superintendent of City Survey, Vadodara. It is alleged that on 28.7.1994, the appellant initially demanded Rs.1000/- from the complainant for entering his name in the property card which amount came to be scaled down to Rs.500/-. As the complainant was not willing to pay the bribe amount, he lodged the complaint before the ACB, trap was laid on 29.7.1994 and the appellant accused caught red handed along with tainted currency notes of Rs.500/- and thereby the appellant accused committed the offence, as alleged.
10. PW 1 - Narendra Nanubhai Dave has been examined at Exh.5. The witness has deposed that Page 8 of 25 HC-NIC Page 8 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT the incident in question occurred on 29.7.1994 and that he is running his notified customs shop and on 29.7.1994, he was at his shop. The witness has deposed that as he purchased the shop vide the sale deed from one Bipin Surti, he applied before the City Survey office for entering his name and in pursuance thereof, he received the notice and while he had gone for inquiring, at that time, he met the present appellant accused. The witness has deposed that the appellant accused explained the witness that the procedure is very long and he would have to pay Rs.1000/-. The witness has deposed that he has tried to scale down the amount and ultimately, it was scaled down to Rs.500/-. The witness has deposed that predemand was raised on 28.7.1994 in between 12.00 and 1.00 noon and as the witness was not desirous to pay the amount of bribe, he approached the ACB office and lodged the complaint and thereafter details as regards to laying the trap were explained to him. The witness has deposed that the ACB office requisitioned official panch as well as carried out the procedure of anthracene powder test. The witness has deposed that thereafter on the day of trap, he was made to understand that he has to accompany the panch and he was also directed not to handover the money till the accused raised the said demand. The witness has deposed that the panch was made to understand that he was to view and hear the conversation between the complainant Page 9 of 25 HC-NIC Page 9 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT and the appellant accused. The witness has deposed that thereafter at about 2.30 pm there was telephone from the appellant accused and he told the witness that he has arrived at his office and soonafter the call, the appellant arrived within ten minutes and thereafter on arrival of the appellant, the complainant introduced the panch by gesture as appellant accused. The witness has deposed that thereafter the appellant took his seat in his shop and on being asked by the witness, the appellant replied that the work of the witness is over so far as entering his name is concerned and if he would have paid earlier, that could have been finished earlier and thereafter the appellant demanded Rs.500/- so that he could pursue further work. The witness has deposed that thereafter the complainant took out the amount from his pocket and gave it to the appellant which was accepted and put the same in the pocket by the appellant and thereafter the witness raised alarm. The witness has deposed that therefore the members of the raiding party arrived there, recovery was also effected from the person of the appellant and that ultra violate lamp test was also found positive. In the cross examination, the witness has admitted that his father was functioning as Collector of Vadodara from 19.9.1985 to 12.4.1988. The witness has admitted that since his previous application for entering his name was filed, there was no fault on the part of the Page 10 of 25 HC-NIC Page 10 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT appellant and after rectification of the documents, the witness tendered the application on 6.7.1994 and in between the trap, he visited the City Survey office several times. The witness has admitted that on 28.7.1994, in order to inquire as regards to proceedings, he visited the office of the appellant and while his statement was recorded by the appellant on 28.7.1994, none was present at that time and after recording such statement, on the following day, his name was mutated.
11. PW 2 - Pravinbhai Becharbhai Prajapati has been examined at Exh.12. The witness has deposed that the appellant demanded Rs.500/- and hence, the complainant took the amount from his pocket and tendered the same to the appellant which came to be accepted by the appellant and placed the same in his pocket of the shirt. The witness has deposed that thereafter ultra violate lamp test was also found positive on the person of the appellant. In the cross examination of this witness, nothing worth as regards to demand and acceptance is brought on record. On the contrary, it is established that on being raising instant demand, the complainant handed over the amount to the appellant at his shop.
12. As the vital ingredients i.e. instant demand, acceptance and recovery are established from the evidence of the aforesaid two witnesses, Page 11 of 25 HC-NIC Page 11 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT the evidence of other witnesses is in the nature of corroborative evidence and their evidence is also consistent, but the same has not been repeated.
13. The accused has also examined one defence witness i.e. Shankarbhai Ramchandra who was working as Peon in the office of the Superintendent, City Survey, Vadodara wherein he has deposed that on 28.7.1994 after resuming the office at 10.00 O'clock, the accused as well as he reported on duty at Varnama and they returned to the office at about 2.30 pm on 28.7.1994. He further deposed that on 29.7.1994, while he was on duty, at that time, one person came with visiting card of the complainant and therefore, the accused visited the shop of the complainant under the belief that former Collector might have arrived in the shop of the complainant.
14. PW 4 - Anilbhai Narayanbhai Trivedi has been examined at Exh.17. The witness has deposed that he was serving as Superintendent in the office of the Land Records, Vadodara. The witness has deposed that chapter was sent to him for according sanction and after studying the entire record, he accorded sanction. The witness has deposed that even he also gone through the statements prepared by the Head Clerk and thereafter he arrived at the subjective satisfaction that there was prima facie case to Page 12 of 25 HC-NIC Page 12 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT be proceeded against the appellant and therefore, after examining the record, he accorded sanction. In the cross examination, the witness has admitted that he is having qualification of B.A., B.Com., LLB. The witness has admitted that the procedure for according sanction is quasi judicial in nature and that he has relied upon the information supplied by the ACB official as well as he also studied the papers containing in the chargesheet and the notings prepared by his official. The witness has also admitted that he granted sanction to prosecute the appellant under sections 7 and 13(2) of the Act. The witness has admitted that he did not study the papers which were lying in the office of the accused pertaining to the present chapter. The witness has admitted that he did not examine the movement register and that he did not accord sanction under section 7 of the Act. The witness has admitted that, however, in the last paragraph of Exh.18, he failed to indicate section 7, however, the same is already indicated in previous paragraph thereto and that he stuck to his stand that he has accorded sanction.
15. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in Page 13 of 25 HC-NIC Page 13 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT that event, irrespective of the fact that the raid was carried out and sanction was accorded by the competent authority to prosecute the accused, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.
16. In the backdrop of the aforesaid factual position, this Court has minutely gone through the impugned judgment and order as well as the depositions of the witnesses in light of the rival submissions made by learned advocates for both the sides.
17. As regards to the contention raised by Mr.Patel, learned advocate for the appellant that the prosecution gets vitiated for want of valid sanction on record, this Court has heard Mr.Patel, learned advocate for the appellant at length. Mr.Patel has read over the impugned order of sanctioning authority at Exh.18. On going through Exh.18 itself, it is clearly established that the ACB official submitted the entire record pertaining to CR No.16 of 1994 which was taken into consideration and that has also been mentioned in the preface itself. Even the tenor of the sanction accorded by the Superintendent, Land Records clearly indicates that entire file containing chargesheet was placed before him along with the statements and note prepared by his official and thereafter studying the same, he Page 14 of 25 HC-NIC Page 14 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT found prima facie case against the appellant and therefore, he accorded sanction and that has been clearly revealed that he accorded sanction for prosecution for the offence under sections 7 and 13(2) of the Act. However, in the last paragraph, indication as to section 7 was left out, but the same is clearly mentioned in the paragraph prior thereto wherein the sanctioning authority has clearly narrated that sanction is accorded for the offence under section 7 as well as section 13(2) of the Act.
18. In light of the aforesaid position revealing from the Record and Proceedings, it would be necessary to refer to the judgment relied upon by Mr.Patel in the case of Mansukhlal Vithaldas Chauhan (supra). Paragraphs 17, 18 and 34 read as under.
"17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions (See Mohd. Iqbal Ahmed v. State of A.P., 1979 (4) SCC 172 : AIR 1979 SC 677).
Sanction is a weapon to ensure
discouragement of frivolous and
vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.
18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority Page 15 of 25 HC-NIC Page 15 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also Jaswant Singh v. State of Punjab, 1958 SCR 762 : AIR 1958 SC 124, and State of Bihar v. P.P.Sharma, 1991 Cri.LJ 1438).
xxx xxx xxx
34. Learned counsel for the State of Gujarat contended that the judgment passed by the High Court cannot be questioned in these proceedings as it had become final. This contention is wholly devoid of substance. The appellant has questioned the legality of "sanction" on many grounds one of which is that the sanctioning authority did not apply its own mind and acted at the behest of the High Court which had issued a mandamus to sanction the prosecution. On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a pro forma drawn up by the office. Since the correctness and validity of the Page 16 of 25 HC-NIC Page 16 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT `sanction order' was assailed before us, we had necessarily to consider the High Court judgment and its impact on the "Sanction". The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings."
Mr.Patel has also placed reliance on the decision in the case of Habibulla Kalyani (supra) wherein relevant paragraph reads as under.
".....It appears that the powers of the State Government are to be exercised by the Council of Ministers and the powers could be exercised by the concerned Minister by virtue of being placed in charge of that Department as per the provisions of the Gujarat Government Rules of Business, 1984 with regard to the matters pertaining to his department as listed in the First Schedule of the Rules. This is a sort of delegation of authority of the Council of Ministers to the concerned Minister. It appears that because the powers of according sanction under Sec. 6(1)(b) of the Prevention of Corruption Act are to be exercised by the State Government, we do not find any place anywhere authorising even the Chief Secretary to accord sanction. It is not necessary to consider in these revision petitions whether the Minister could have delegated the power of according sanction to any other officer Page 17 of 25 HC-NIC Page 17 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT because the Circulars of Instructions which are placed in my hand on behalf of the State do not contain any such digestion. It may also be mentioned here that in fact the Instructions regarding channel of submission of cases and decision taking levels contained in the Government Circular dated 1st July, 1980, which I have referred to earlier, show that it case of Class I Officers, the decision taking level is the Minister and submission is to be made by the Secretary GAD to the Chief Secretary and then to the Minister. So far as dismissal, removal or disciplinary action resulting in reduction in rank of such officer is concerned, the Minister has to take the decision in the matter even as per these instructions....."
19. This Court has examined the contention raised by Mr.Patel regarding sanction accorded by the sanctioning authority very meticulously and upon examination, this Court subjectively satisfied that while according sanction, the ACB official has placed the entire record along with the chargesheet before the sanctioning authority and that was processed by his subordinate, but after due application of mind, the sanctioning authority found prima facie case to be proceeded against the appellant and accordingly accorded sanction. It can also be seen that exercise of powers by the sanctioning authority were in pursuance of the request made by the ACB official and therefore so far as reliance placed by Mr.Patel on the aforesaid decision in the case of Mansukhlal Vithaldas Chauhan (supra) is Page 18 of 25 HC-NIC Page 18 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT concerned, in the said case, the sanctioning authority accorded sanction upon the mandatory dictation from the High Court and therefore, it was found that there was not at all application of mind on the part of the sanctioning authority and virtually it was found that it was not valid sanction. Similarly, in the second judgment relied upon by Mr.Patel in the case of Habibulla Kalyani (supra), there was question of according sanction against the person who was belonging to Class-I cadre and the sanctioning authority was State Government. In that case, the powers exercised by the Secretary were not falling within the scope of Gujarat Government Rules of Business 1984, however, the State Government was the competent authority. In the present case, there appears no dispute as regards to the powers vested in the Superintendent of Land Records and Consolidating Officer, Vadodara. Precisely, on this issue, as narrated above, this Court has examined sanction order at Exh.18 as well as deposition of the sanctioning authority and this Court is satisfied that sanction is accorded in accordance with the provisions of law. Even otherwise, the said sanction is not found to be defective rather it is valid one and therefore the argument advanced by Mr.Patel regarding sanction accorded by the sanctioning authority is invalid is rejected.
20. In corruption cases, as laid down in Page 19 of 25 HC-NIC Page 19 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT the series of judgments by the Honourable Apex Court as well as by this Court, three vital ingredients are required to be established by the prosecution beyond reasonable doubt in order to prove the offence as alleged. So far as the ingredients as regards to demand, acceptance and recovery are concerned, in the present case, Mr.Patel, learned advocate for the appellant has argued that there is discrepancy in the record as to whether demand was raised on 28.7.1994 at about 12.00 noon by the appellant accused as at the relevant time, the accused was at Varnama and therefore, entire narration as regards to predemand falls to the ground. However, on going through the Record and Proceedings of the case as well as oral evidence which came to be produced by the appellant accused himself along with his statement under section 313 of the Code of Criminal Procedure wherein at page 34, it can be noticed that the statement of the complainant was recorded by the accused himself on 28.7.1994. Under the circumstances, whether the statement as alleged was recorded at about 12.00 noon by the appellant or it was recorded after arrival of the accused in the office after 3.00 pm onwards makes no difference. Further more, Record and Proceedings of the case indicates the presence of the complainant in the office of the appellant accused and that too for the very work for which alleged demand has been raised. The said statement recorded by the appellant accused came Page 20 of 25 HC-NIC Page 20 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT to be seized by the ACB official while carrying out the raid on 29.7.1994 which is clear indicative of the fact that the complainant did visit the office of the appellant and his statement was also recorded. Whether the demand was made while recording such statement or it might be raised at 12.00 noon makes no difference when the Record and Proceedings of the case clearly indicates that in pursuance of the predemand, the complaint was lodged before the ACB official and the ACB official managed to lay trap and the trap was successfully carried out on 29.7.1994 wherein, as narrated above, at the time of actual trap, the present appellant accused arrived at the notified shop of the complainant and during the course of conversation as regards to entering the name in the city survey record, specific demand of Rs.500/- was made and in pursuance thereof, the complainant handed over tainted currency notes which came to be found from the pocket of the appellant. After search and seizure, the test of ultra violate lamp was found positive so far as the present appellant as well as tainted currency notes are concerned. Not only that, but the say of the complainant is fully getting corroboration from the evidence of Panch No.1 who accompanied the complainant at the time of trap. Over and above the aforesaid primary as well as corroborative evidence, the appellant accused himself also in his further statement under section 313 of the Code of Page 21 of 25 HC-NIC Page 21 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT Criminal Procedure has admitted that as if the father of the complainant who was former Collector might have arrived in the shop of the complainant, he visited the said shop at the time of trap and at that time, the complainant demanded copy of the property card and it was not possible as at that time certain persons were present in the shop of the complainant. It appears that while the appellant accused was in the shop of the complainant, at that time, the complainant took out tainted currency notes from his pocket and thrust upon the pocket of the appellant accused and while retaining the said tainted currency notes by the appellant accused, the ACB official arrived there.
21. In view of the aforesaid nature of evidence, though Mr.Patel, learned advocate for the appellant accused has made futile exercise by way of showing certain minor contradictions on record with regard to predemand alleged to have been raised at 12.00 noon, however, that is not required to be given much importance when on 28.7.1994, the statement of the complainant for entering his name was recorded by the appellant accused on that day is clear indicative of his presence in the office of the appellant accused and that itself is suggestive of the fact that predemand was made by the appellant at the time of recording the statement of the complainant which came to be seized during the course of Page 22 of 25 HC-NIC Page 22 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT search and seizure by the ACB official. So far as demand, acceptance and recovery are concerned, the evidence on record clearly indicates consistency and also getting corroboration from the evidence of the panch. In this view of the matter, vital ingredients i.e. demand, acceptance and recovery are established beyond reasonable doubt. Under the circumstances, this Court is in complete agreement with the finding recorded by learned trial Court and hence, the finding as well as conviction recorded by learned trial Court is in accordance with the evidence available on record which calls for no interference by this Court.
22. As noted above, it is the alternative argument of Mr.Patel, learned advocate for the appellant accused that taking into consideration the time gap of about 22 years as well as the current age of the accused, sentence awarded by learned trial Court is harsh which is required to be reduced as such.
23. This Court has considered the submissions made by learned advocates for both the sides. The fact that the case against the accused is proved beyond reasonable doubt and is found to be culprit so far as bribe is concerned, but taking into consideration the time lag in between the date of offence and dictating this judgment, i.e. today, around 22 years have passed Page 23 of 25 HC-NIC Page 23 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT and the age of the accused as argued by Mr.Patel, learned advocate is 70 years and the fact that the accused is sufficiently punished as he has lost his job, but when the accused is found to be offender, reasonable sentence is also required to be inflicted upon him. In this view of the matter, taking into consideration the facts and circumstances of the case, this Court is of the considered opinion and it would be just and proper, in peculiar facts of this case, to reduce the sentence from four years to one year for the offence under sections 13(1)(d) and 13(2) of the Act to meet with the ends of justice which was the minimum sentence prescribed in the statute at the relevant time.
24. In view of the above discussion, the following final order is passed.
Criminal Appeal No.236 of 1999 filed by appellant accused is partly allowed. The impugned judgment and order dated 10.2.1999 passed by learned Special Judge, Vadodara in Special Case No.3 of 1995 is modified to the extent that instead of sentence of rigorous imprisonment for four years for the offence under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, the appellant accused shall undergo the sentence of rigorous imprisonment for one year. Rest of the impugned judgment is not disturbed. The appellant accused - Jayantilal Page 24 of 25 HC-NIC Page 24 of 25 Created On Sat Aug 12 11:55:10 IST 2017 R/CR.A/236/1999 JUDGMENT Ambalal Gandhi is ordered to surrender to custody within a period of ten weeks from today for undergoing the remainder sentence, if he has not undergone so far, failing which the investigating agency shall be at liberty to take necessary action in accordance with law. The impugned judgment and order stands modified accordingly. Bail bond, if any, stands cancelled.
R & P be sent back to the trial Court, forthwith.
(R.P.DHOLARIA,J.) pathan Page 25 of 25 HC-NIC Page 25 of 25 Created On Sat Aug 12 11:55:10 IST 2017