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CR.A/950/1998 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 950 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
ABDULMUNAF
GULAMBHAI CHAUHAN @ MUNNABHAI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
MJ BUDDHBHATTI for
Appellant(s) : 1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 28/04/2011
CAV
JUDGMENT
By
way of present appeal filed under Section 374 of the Code of
Criminal Procedure, 1973, the appellant-original accused No.1 has
inter alia prayed to quash and set aside the judgment and order of
conviction and sentence dated 15th October, 1998 passed
by the learned Special Judge, Surat, in Special Case No.21 of 1995
whereby the learned Special Judge was pleased to convict the
appellant for the offence punishable under Section 7 of the
Prevention of Corruption Act, 1988 and sentenced him to undergo
rigorous imprisonment for a period of two years, and also imposed
fine of Rs.2,000/-, and in default of payment of fine; sentenced him
to undergo simple imprisonment for a further period of two months.
The appellant was also convicted for the offence punishable under
Section 13(2) of the Prevention of Corruption Act, 1988 and was
sentenced to undergo rigorous imprisonment for a period of four
years, and also imposed fine of Rs.20,000/-, and in default of
payment of fine; sentenced to undergo simple imprisonment for a
further period of six months.
As
per the case of the prosecution, the appellant was serving as
Talati-cum-Mantri of Naren Gram Panchayat, Taluka-Mandvi,
District-Surat. The complainant had filed a Suit against his mother
and therefore, wanted copies of Form No.7/12 of Survey No.339 from
1945 to 1990. The complainant had applied for the same before the
Mamlatdar. The said application of the complainant was forwarded by
the Mamlatdar to the present appellant on 16th September,
1994 and ordered the appellant to do the needful and also ordered to
make report to the said effect. It is the case of the prosecution
that therefore, the complainant on 19th September, 1994
about 10.00 hours, visited office of Areth Gram Panchayat and gave
his application to the present appellant. The appellant thrown the
said application of the complainant and demanded Rs.450/- from the
complainant as illegal gratification from the complainant.
Thereafter, again on 21st September, 1994 the complainant
visited the office of Gram Panchayat, Areth and gave application to
obtain copies of Form No.7/12 of Survey No.339. Therefore, the
appellant told the complainant that come on 26th
September, 1994 at the office of Areth Gram Panchayat between 10.00
hours to 11.00 hours with Rs.450/- and thereafter only, he will give
copies of Form No.7/12.
Thereafter,
as the complainant was not willing to pay the said amount, he
approached office of ACB at Surat and lodged his complaint.
Thereafter, services of two panchas were sought. The facts of the
case were narrated to them and thereafter experiment was made on the
currency notes with the help of anthracene powder. The basic
ingredients of the anthracene powder were made understood to the
panchas as well as the complainant. After performing the experiment,
preliminary part of the panchnama was drawn. The currency notes were
smeared with anthracene powder, i.e. nine notes of the denomination
of Rs.50/- each. Thereafter, the complainant, panchas and members of
the raiding party proceeded to trap the accused person to village
Areth. When the reached to Areth, it revealed that the appellant had
left for Mandvi. Therefore, the raiding party proceeded to Mandvi.
There the appellant was approached by the complainant in presence of
panch No.1, the appellant demanded the amount of Rs.450/- from the
complainant and accepted the said amount from the complainant in
presence of panch No.1. Thereafter, as agreed, the appellant gave
signal to the members of raiding party and raid was carried out.
Thereafter, on making necessary inquiry, trap amount was received
from the plastic bag of the appellant. Thereafter, experiment of UV
Lamp was carried out. The light blue fluorescent marks were found on
the currency notes, on the hand of the appellant-accused and on the
hand of the complainant. The number of the currency notes recovered
from the plastic bag of the appellant got tallied with the numbers
noted down in the first part of panchnama. Thereafter, the currency
notes and plastic bag were seized under the panchnama. Thereafter,
the second part of panchnama was drawn.
Thereafter,
the Investigating Officer lodged FIR, registered the offence and
recorded statements of various persons. Thereafter, after obtaining
sanction, charge-sheet came to be filed against the
appellants-accused before the learned Special Judge, Surat.
Thereafter,
charge at Exhibit 4 was framed against the appellant for the
offences punishable under Section 7, 13(1)(d)(i), (ii) and (iii) as
well as under Section 13(2) of the Prevention of Corruption Act,
1988. The appellant-accused pleaded not guilty and claimed to
be tried.
In
order to bring the home charges levelled against the
appellant-accused, the prosecution has examined three witnesses and
also produced four documentary evidence in support of its case.
Thereafter,
after filing closing pursis by the prosecution, further statement of
the appellant-accused under Section 313 of the Code of Criminal
Procedure, 1973 was recorded in which accused has denied the case of
the prosecution and submitted that he has never demanded any amount
from the complainant. He has also submitted that a false case is
filed against him. The appellant has also submitted in his further
statement that there was hot exchange of words and the complainant
threatened the appellant of dire consequences. The case of the
appellant is that copies were already supplied to the complainant
and to prove the case, the appellant has examined five defence
witnesses.
After
considering the oral as well as documentary evidence and after
hearing the parties, the learned Special Judge vide impugned
judgment and order dated 15th October, 1998 held the
appellant-original accused guilty to the charges levelled
against him as mentioned above.
Being
aggrieved by and dissatisfied with the impugned judgment and order
of conviction and sentence passed by the learned Special Judge,
Surat, the appellant has preferred the present appeal.
Heard
Mr.M.J. Budhbhatti, leaned counsel for the appellant and Mr.H.L.
Jani, learned Additional Public Prosecutor for the respondent-State.
Mr.Bhdubhatti,
learned counsel appearing for the appellant has contended that the
judgment and order passed by the learned trial Judge is illegal,
invalid and improper. He has also contended that the learned trial
Judge has not considered the case of the defence and evidence and
material produced on record. He has read the charge at Exhibit 4 and
contended that the complainant was an accomplice and therefore, his
evidence was required to be corroborated by evidence of independent
witnesses on material evidence like first demand, agreement, fixing
date, second demand, acceptance and recovery. He has contended that
the prosecution evidence is totally absent on these material
aspects. Mr.Budhbhatt has further contended that the trap was
arranged trap. Originally the complainant shall have to meet the
appellant at village Areth and not at Mandvi. The members of raiding
party were in fact chasing the appellant wherever he had been. This
shows the conduct of the complainant. The learned Special Judge has
failed to consider that this is case a of plantation. He, therefore,
contended that in absence of any independent witnesses, case of the
complainant cannot be considered. He has contended that the
appellant has proved his probable defence through the evidence of
defence witnesses. The learned Special Judge has not considered the
probable defence of the appellant. He has also contended that
panchas are selected panchas. Under the pressure, they were
supported the case of the prosecution. He has further read the
cross-examination of the complainant and contended that the plastic
bag of the appellant was lying on the table and in absence of the
appellant, the trap amount was thrusted into the bag. Mr.Budhbhatti
has read the oral evidence of PW No.2 and contended that he is
police witness and under pressure of Trapping Officer and due to
fear, he has supported the case of the prosecution. He, therefore,
contended that the oral evidence of PW No.2 is not trustworthy,
reliable and acceptable. He has also contended that panchnama at
Exhibit 32 is not proved beyond reasonable doubt. He has read the
oral evidence of defence witnesses, who are examined by the present
appellant. He has read the oral evidence of DW No.1 at Exhibit 29
and contended that he is an eye-witness of the case. He was present
at the event of trap, yet, due to bias investigation, he was not
considered as an eye-witness. He has contended that his statement
was forcefully recorded. He has also read the evidence of DW Nos.2,
3, 4 and 5 and contended that appellant has proved the probable
defence, but the learned Special Judge has discarded the evidence of
defence witnesses. He has contended that even investigation was
biased and the Trapping Officer as well as Investigating Officer are
biased and they have not conducted the investigation in a proper
manner. He has also contended that when the appellant has
successfully proved probable defence, benefit of doubt is required
to be given to the appellant. Mr.Budhbhatti has further contended
that so far as offence under Section 13(2) is concerned, punishment
imposed upon the appellant is very harsh. When the prosecution has
failed to prove the story of demand and acceptance beyond reasonable
doubt, benefit of doubt ought to have been given to the appellant.
He has contended that four years imprisonment under Section 13(2)
is very harsh in nature. He, therefore, contended that present
appellant is, therefore, required to be acquitted from the charges
levelled against him.
Mr.Budhbhatti
has also contended that the prosecution has failed to establish the
demand and acceptance beyond reasonable doubt. He has further
contended that copies were already given to the complainant and
therefore, there arises no question of demanding bribe amount. He
has also contended that the present appellant is innocent and has
been falsely involved in the present case. He, therefore, contended
that the judgment and order of conviction and sentence passed by the
learned Special Judge is required to be quashed and set aside and
the appellant is required to be acquitted from the charges levelled
against him.
As
against this, Mr.Jani, learned Additional Public Prosecutor, has
contended that the judgment and order passed by the learned Special
Judge is absolutely just and proper. He has contended that the
prosecution has proved its case beyond reasonable doubt. He has
contended that looking to the overall facts and circumstances of the
case, circumstantial evidence and evidence produced on record, the
learned Special Judge has passed absolutely just, proper and correct
and is not required to be interfered with. He has read the oral
evidence of PW No.1-complainant and contended that the first demand
made by the appellant is proved through the oral evidence of this
witness. He has also contended that when first time demand was made
by the appellant, as the complainant was not having money, he had
not given the money to the appellant. When again on 21st
September, 1994 the complainant visited the office of the appellant,
again the appellant demanded the bribe amount from the complainant
and told him to come on 26th September, 1994 with money
to collect the copies which the complainant was required. Thus, the
first demand is proved through oral evidence of PW No.1-complainant.
Mr.Jani has contended that on the day of trap, the complainant along
with members of raiding party reached to the office of the appellant
round about 11.00 hours and by the time, the appellant went to the
office of Mamlatdar at Mandvi. Mr.Jani has contended that PW No.1 in
his oral evidence deposed that the appellant called him between
10.00 hours and 11.00 hours, but due to unavoidable circumstances
the complainant could not reach to the office of the appellant on
the time given by the appellant and went towards Mandvi for his
work. Therefore, on the say of Peon that the appellant had left for
Mandvi, the complainant along with members of raiding party followed
the appellant at Mandvi. It is the case of the complainant that he
met the appellant at Mandvi and in presence of panch No.1-PW No.2,
the appellant demanded the bribe amount. Mr.Jani has contended that
PW No.2 has deposed the said thing in his oral evidence. Thus,
question regarding demand is proved through the oral evidence of PW
No.2 also. He has further contended that the PW No.2 is an
independent witness. Thus, sufficient corroboration is proved
through the oral evidence of PW No.2-independent witness. Thus, case
of demand and acceptance is proved beyond reasonable doubt. He has
also contended that if the say of the learned counsel for the
appellant that money was thrusted in the bag of the appellant in his
absence, is believed, then anthracene powder would not have been
found from the finger tips of the appellant. It is very clear that
anthracene powder was found from the finger tips of the appellant.
Thus, that defence of the appellant cannot be believed. Mr.Jani has
read the oral evidence of PW No.3-Trapping Officer at Exhibit 20 and
contended that trap was carried out by him with utmost care and
caution. It was not planned trap. The case of the appellant that the
trap was biased is absolutely wrong. The defence has failed to prove
that the trap was biased. He has contended that when sufficient
documents are produced on record to prove the case and even through
oral evidence of witnesses, demand, acceptance and recovery of trap
amount is proved beyond reasonable doubt, then it is the duty of the
appellant to rebut the presumption under Section 20 of the Act. He
has also contended that the appellant has failed to explain
regarding presence of anthracene powder in his further statement
recorded under Section 313 of the Code of Criminal Procedure.
Mr.Jani has also read the oral evidence of DW No.1 and contended
that he was not an eye-witness. He was not present when the trap was
carried out. He has also contended that the appellant has failed to
rebut the presumption through the evidence of defence witnesses. He
has contended that when the demand, acceptance and recovery is
proved beyond reasonable doubt, the judgment and order of conviction
passed by the learned Special Judge, Surat is required to be
confirmed and appeal is required to be dismissed.
I
have heard the learned counsel for the parties and perused the
papers produced before me. I have also perused the submissions
advanced by the learned counsel for the parties. It appears from the
oral evidence of PW No.1-complainant that demand prior to the trap
is proved beyond reasonable doubt. It appears that the appellant had
demanded the money at the second event in presence of PW No.2-panch
No.1. Thus, the version of complaint as well as oral evidence of
complainant is corroborated by the evidence of PW No.2, who is an
independent witness. The appellant had accepted the said amount in
presence of PW No.2 and put it in plastic bag he had with him. The
evidence of PW No.2 is in corroboration with the evidence of PW No.1
with regard to demand, acceptance and recovery of trap amount. When
experiment of UV Lamp was carried out, anthracene powder was found
on the finger tips of the appellant as well as inside the plastic
bag. The appellant has failed to explain presence of anthracene
powder in further statement recorded under Section 313 of the Code
of Criminal Procedure. I have also perused provision of Section 20
of the Prevention of Corruption Act, 1988. As per the said
provision, it is the duty of the appellant to rebut the presumption
and presence of anthracene powder which is found on the finger tips
as well as inside the bag. It appears that the appellant has failed
to rebut the presumption. The contention taken by the appellant that
PW No.2-panch No.1 is selected witness and under pressure and fear,
he has supported the case of the prosecution, is baseless and not
acceptable. No doubt defence has tried to establish that
investigation is biased and it is fatal to the case of the
appellant, but when I have perused oral evidence of PW Nos.1 and 2,
I have found that each link of the chain of events is established.
I have also perused the oral evidence of PW No.3-Trapping Officer
and looking to the evidence of PW No.3, he is fair enough and proper
care is taken by him with respect to trap carried out by him.
Looking to the oral evidence of PW Nos.1 and 2 and also the
documentary evidence produced on record, I have not found anything
to consider the probable defence of the appellant. So far as
acceptance is concerned, it is proved through oral evidence of PW
Nos.1, 2 and 3 and so far as recovery is concerned, it is proved
that in connection of the demand made by the present appellant, the
amount was accepted by the appellant. Thus, I am of the opinion that
in light of Section 7 of the Prevention of Corruption Act, 1988
demand is proved. I have also perused further statement of the
appellant recorded under Section 313 of the Code of Criminal
Procedure. The appellant has failed to rebut the said evidence of
the prosecution witnesses.
I
have also perused defence witnesses. It appears from the evidence of
these witnesses that they are unable to prove defence version. Even
from the cross-examination of these witnesses, I have not found any
substance to consider the defence version. The defence witnesses
have failed to establish the defence version. The probable defence
taken by the defence witnesses is not proved beyond reasonable doubt
by the defence witnesses.
So
far as offence under Section 13(2) is concerned, I am of the opinion
that it is harsh in nature. The present appeal is of the year 1998.
Thus, after a long period of 13 years, present appeal is finally
heard and decided by this Court. I have also perused age of the
appellant and looking to the age of the appellant, I am of the
opinion that conviction imposed upon the appellant under Section
13(2) is very harsh and under such circumstances, if some lenient
view is taken, it would meet with ends of justice. Therefore, in my
opinion, instead of four years, two years punishment under Section
13(2) of the Prevention of Corruption Act, 1988 is sufficient. So
far as order qua fine under Section 13(2) of the Act is concerned, I
am of the opinion that it is proper and does not require any
interference.
As
per above observation, I found that demand, acceptance and recovery
of trap amount of illegal gratification made by the
appellant-accused is proved beyond reasonable doubt through the oral
evidence of complainant and panch witness as well as through the
documentary evidence produced on record. As per provision of Section
20 of the Prevention of Corruption Act, presumption is required to
be drawn against the present appellant and when the appellant has
failed to rebut the said presumption, no defence can be considered,
which is tried to establish by the learned counsel for the
appellant.
Hence,
in view of the foregoing reasons, present appeal is partly allowed.
The judgment and order of conviction dated 15th
October, 1998 passed by the learned Special Judge, Surat, in Special
Case No.21 of 1995, is hereby confirmed; however, the judgment and
order of sentence dated 15th
October, 1998 passed by the learned Special Judge, Surat, in Special
Case No.21 of 1995 is concerned, conviction under Section 13(2) of
the Prevention of Corruption Act, 1988 is hereby reduced and
modified to the extent that now the appellant shall have to undergo
rigorous imprisonment for a period of two years instead of four
years. The rest of the judgment and order dated 15th
October, 1998 shall remain unaltered. The appellant is on bail. This
bail bond shall stand cancelled. The appellant-accused is,
therefore, directed to surrender himself before the Jail Authority
within a period of four weeks from today, failing which the trial
Court concerned is directed to issue
Non-bailable warrant against the appellant-accused to effect his
arrest. Record and Proceedings, if any, be sent back to the trial
Court concerned, forthwith.
(Z.
K. Saiyed, J)
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